author: MAY, Judge.

text:
    In re the PATERNITY OF V.A., a Minor Child, R.A., Father, Appellant-Petitioner, v. B.Y., Mother, Appellee-Respondent.
    No. 39A01-1307-JP-304.
    Court of Appeals of Indiana.
    May 30, 2014.

      Bryan Lee Ciyou, Lori B. Schmeltzer, Ciyou & Dixon, P.C., Indianapolis, IN, Attorneys for Appellant.
    Mary Beth Mock, Law Office of Mary Beth Mock, Madison, IN, Attorney for Ap-pellee.
   OPINION

MAY, Judge.

R.A. (“Father”) appeals the denial of his motion to correct error and the order reinstating his visitation time. As the trial court did not err by denying his motion to correct error and the parenting time issue is moot, we affirm.

FACTS AND PROCEDURAL HISTORY

B.Y. (“Mother”) gave birth to V.A. (“Child”) in 2003. Mother and Father never married. In June 2011, Mother and Father ended their relationship. On August 3, 2011, Father filed a petition in Jefferson County to establish paternity and determine custody, parenting time, and child support. In August 2012, after a hearing, Judge Ted Todd issued a final order addressing paternity, custody, child support, and other issues. Father appealed that order.

While the appeal was pending, Father asked for a change of judge and Special Judge James Morris assumed jurisdiction. The same day Father filed the motion for change of judge, he filed a petition to modify custody and support. Mother moved to dismiss, arguing the paternity court lacked jurisdiction to decide Father’s petitions because the issues were part of Father’s pending appeal of the August 24, 2012, order. Judge Morris dismissed Father’s petition to modify custody and support without prejudice, citing lack of jurisdiction. On March 28, 2013, Father filed a motion to correct error.

On May 10, 2013, we decided Father’s appeal and remanded the case for the trial court to determine V.A.’s legal custody, “to clarify the factual basis for its child support order and, if the award is a deviation from the child support guidelines, to enter findings articulating the facts supporting that conclusion,” In re the Paternity of V.A., No. 39A01-1209-JP-413, 2013 WL 1932932 (Ind.Ct.App. May 10, 2013), slip op. at 7, and to address Father’s contempt petition.

On May 16, 2013, Judge Morris held a hearing on Father’s motion to correct the error alleged in the dismissal of his petition to modify custody and support. Judge Morris denied his motion, again citing lack of jurisdiction.

Thereafter, the parties disputed whether Judge Todd or Special Judge Morris should rule on the issues remanded to the trial court after our resolution of Father’s appeal of the August 24, 2012, order. Judge Morris determined Judge Todd should rule on the remanded issues. Father appealed this determination, and we affirmed in an opinion decided today. In re V.A., No. 39A04-1310-JP-512.

At a hearing on July 1, 2013, Mother requested dismissal of an ex parte order that she had obtained on October 30, 2012, to protect Child from Father. Judge Morris granted her request and immediately considered how to reinstate Father’s parenting time. After hearing testimony from the guardian ad litem, Judge Morris issued an order that provided parenting time would be gradually phased in between July 4, 2013 and July 27, 2013, at which time Father would “resume visitation as outlined in the Indiana Parenting Time Guidelines and as set for [sic] in the prior order, provided the Court finds no issues have arisen during these times.” (App. at 72.)

DISCUSSION AND DECISION

Father appeals the denial of his motion to correct error, which challenged the trial court’s dismissal of Father’s verified petition to modify physical and legal custody and to modify child support. We review denial of a motion to correct error for abuse of discretion. Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind.Ct.App.2007). An abuse of discretion occurs if the trial court’s decision is against the logic and effect of the facts and circumstances before the court, or the reasonable inferences therefrom. Id.

The trial court dismissed Father’s petition to modify on the ground the court lacked jurisdiction. Father brought his petition to modify while his appeal of the trial court’s original paternity decree was pending. Normally an appeal of a final judgment transfers general jurisdiction of the case to this court, thereby suspending any further action by the trial court. City of New Haven v. Allen Cnty. Bd. of Zoning Appeals, 694 N.E.2d 306, 310 (Ind.Ct.App.1998), trans. denied. At issue in Father’s prior appeal were the validity of the trial court’s determinations of child custody and support. As Father’s subsequent petition also addressed custody and support, the trial court properly determined it did not have jurisdiction to rule on the petition to modify. Accordingly, we cannot hold the court abused its discretion when it denied Father’s motion to correct error. We accordingly affirm the denial of Father’s Motion to Correct Error regarding the dismissal of his petition to modify custody and support.

Affirmed.

VAIDIK, C.J., and RILEY, J., concur.

      . Father timely filed two appeals in this case, and we consolidated them.

      . Judge Morris gradually reinstated Father's parenting time over a period of about a month, at which point the parenting time would return to that established by the August 24, 2012, order. Father argues he should have had his full allotment of parenting time between July 1,2013, and August 9, 2013. As that part of the order is no longer in effect, we are unable to render relief. See Francies v. Francies, 759 N.E.2d 1106, 1111 (Ind.Ct.App.2001) (we will not reverse a lower court’s decision when no change in the status quo will result from the reversal), reh’g denied, trans. denied.

      While we decline to address that issue, we note the Indiana Parenting Time Guidelines contemplate phased-in reinstatement of parenting time:
      Where there is a significant lack of contact between a parent and a child, there may be no bond, or emotional connection, between the parent and the child. It is recommended that scheduled parenting time be "phased in” to permit the parent and child to adjust to their situation. It may be necessary for an evaluation of the current relationship (or lack thereof) between the parent and the child in order to recommend a parenting time plan. A guardian ad litem, a mental health professional, a representative from a domestic relations counseling bureau or any other neutral evaluator may be used for this task.
      Indiana Parenting Time Guidelines, Section 11(B), Cmt. 2.

      . Mother sought that order in Bartholomew County. On October 30, 2012, the Bartholomew County Court transferred the petition to Jefferson County, and Judge Todd issued an ex parte order that granted Mother’s request and effectively suspended Father’s parenting time. On April 26, 2013, the protective order action was consolidated with the paternity action.

      . There are situations in which a trial court may retain jurisdiction and act notwithstanding a pending appeal. Specifically, a trial court retains jurisdiction to perform such ministerial tasks as reassessing costs, correcting the record, or enforcing a judgment. City of New Haven v. Allen Cnty. Bd. of Zoning Appeals, 694 N.E.2d 306, 310 (Ind.Ct.App.1998), trans. denied.

      . Father’s petition did not allege an emergency regarding the safety of the child that needed to be immediately addressed by the trial court. Furthermore, the ex parte protective order that Mother obtained in October of 2012 and that was not dismissed until July of 2013, prohibited contact between Father and V.A. That prevented the trial court from transferring custody of V.A. to Father pursuant to Father’s motion to modify.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    Joseph FUENTES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A04-1310-CR-522.
    Court of Appeals of Indiana.
    May 30, 2014.

      Julie P. Verheye, Mishawaka, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Joseph Fuentes (“Fuentes”) was convicted in St. Joseph Superior Court of Class A felony attempted murder, Class C felony possession of a handgun by a felon, Class D felony criminal recklessness, and Class D felony resisting law enforcement, and was sentenced to an aggregate term of forty years. Fuentes appeals and presents three issues for our review, which we restate as:

I. Whether the trial court erred in admitting evidence that the police found an AR-15 rifle in the trunk of Fuentes’s car;
II. Whether the trial court improperly instructed the jury to continue to deliberate; and
III. Whether the State presented evidence sufficient to convict Fuentes of attempted murder.

We affirm.

Facts and Procedural History

On October 2, 2012, South Bend Police Officers John Comeau (“Officer Comeau”) and Tim Cichowicz (“Officer Cichowicz”) were dispatched to a house on Ford Street in South Bend, Indiana on a report of a possibly armed male. When the officers arrived at the scene, Fuentes was standing by his tan Cadillac. Another man, later identified as Jaime Duron (“Duron”) was standing in the yard of the house. Officer Comeau told Duron to approach him and ordered Fuentes not to move. Duron obeyed the officer’s commands, but Fuentes jumped into his car and drove away. Officer Cichowicz pursued Fuentes in his patrol car with the siren and flashing lights activated. Fuentes ignored Officer Cichowicz’s car and continued to flee, running through a stop sign. Soon thereafter, Fuentes lost control of his car and crashed into a nearby yard. Undaunted, Fuentes exited his car and fled on foot.

Officer Cichowicz got out of his patrol car and gave chase on foot. With Officer Cichowicz closing in on him, Fuentes slowed down, turned around, and pointed a firearm at Officer Cichowicz at head level. Officer Cichowicz dove for cover and heard Fuentes fire the weapon. Fuentes then continued to flee down an alleyway. Officer Cichowicz continued to pursue Fuentes, took cover behind a garage, and peered around the corner. Fuentes, who was approximately twenty-five yards away, fired his weapon two more times as Officer Cichowicz took cover.

Fuentes then took refuge in an abandoned home. After the police SWAT team surrounded the house and kicked in the door, Fuentes surrendered himself. When he was taken into custody, Fuentes did not have a firearm on his person. However, during a search of Fuentes’s car, the police found an AR-15 rifle in the trunk. Fuentes asked the police officer who transported him to jail, “if [the police] had found an A.R. rifle in the trunk of the car that [Fuentes] was driving.” Tr. p. 306.

As a result of this incident, the State charged Fuentes on October 4, 2012, with Class A felony attempted murder, Class C felony possession of a firearm by a felon, Class D felony criminal recklessness, Class D felony resisting law enforcement, Class D felony intimidation, and Class A misdemeanor carrying a handgun without a license. The State later dismissed the intimidation charge. A bifurcated jury trial commenced on September 3, 2013, with regard to all charges except possession of a firearm by a felon. The jury found Fuentes guilty the following day, and Fuentes then pleaded guilty to being a felon in possession of a firearm. At the October 2, 2013 sentencing hearing, the trial court “merged” the misdemeanor conviction for carrying a handgun without a license into the conviction for possession of a firearm by a felon and imposed an aggregate executed term of forty years. Fuentes now appeals.

I. Admission of Evidence

Fuentes first claims that the trial court erred in admitting evidence regarding the AR-15 rifle found in the trunk of his car. In reviewing this claim, we note that questions regarding the admission of evidence are left to the sound discretion of the trial court, and we review the court’s decision only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 959 (Ind.Ct.App.2008), trans. denied. The trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

When the State began to offer into evidence photographs of the items found in Fuentes’s car, including the AR-15 rifle, Fuentes’s counsel objected, stating: “I only object to photo number 24. I believe it’s a picture of an A.R. 15 found in the trunk of the automobile. I object to it because it’s not relevant, and any relevance the gun has to this case is clearly outweighed by the undue prejudice toward [the defendant].” Tr. p. 272. After the State argued to the trial court that the rifle was relevant to Fuentes’s motive to flee from the police, Fuentes’s counsel replied, “Mr. Fuentes was not charged with possession of a stolen item [i.e., the gun]. I mean there’s other evidence of motive to flee that’s been presented. Obviously this gun is unduly [ ] prejudicial. It’s an assault rifle.” Tr. pp. 272-73.

On appeal, Fuentes similarly claims that the admission of evidence that the rifle was found in his trunk was improper because it was irrelevant and unfairly prejudicial. As we summarized in Jackson v. State, 973 N.E.2d 1123, 1127 (Ind.Ct.App.2012), trans. denied:

Indiana Evidence Rules 401 through 403 govern relevancy of evidence. Relevant evidence is admissible; irrelevant evidence is not. Ind. Evidence Rule 402. Evidence is. relevant if it has any tendency to make any “fact that is of consequence to the determination” of the action more or less probable. Ind. Evidence Rule 401. Relevant evidence can be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Ind. Evidence Rule 403.

All evidence that is relevant to a criminal prosecution is inherently prejudicial; thus proper inquiry under Evidence Rule 403 boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial impact of that evidence. Duvall v. State, 978 N.E.2d 417, 428 (Ind.Ct.App.2012), trans. denied, (citing Carter v. State, 766 N.E.2d 377, 382 (Ind.2002)). When determining the likely unfair prejudicial impact, courts will look for the dangers that the jury will substantially overestimate the value of the evidence or that the evidence will arouse or inflame the passions or sympathies of the jury. Id.

Here, it is clear that the presence of a rifle, which was not registered to Fuentes, in the trunk of Fuentes’s car was relevant to the question of Fuentes’s motive to flee from the police. That is, the presence of the rifle made it more likely that Fuentes had a reason to flee from the police when he was ordered to stop. And we do not think that the relevance of this rifle was substantially outweighed by the danger of unfair prejudice. First, the possession of a firearm, generally speaking, is not a misdeed. See Williams v. State, 690 N.E.2d 162, 175 (Ind.1997). Moreover, Fuentes was charged with possession of a handgun, and the State presented direct evidence that Fuentes shot at the pursuing officer. Thus, the jury was already aware that Fuentes possessed a firearm, and it is unlikely that the jury would “substantially overestimate” the value of evidence that Fuentes had in his trunk a weapon that he did not use. We therefore conclude that the trial court did not abuse its discretion in admitting evidence regarding the rifle found in the trunk of Fuentes’s car.

II. Jury Instruction

Fuentes next claims that the trial court erred in its instruction to the jury to continue deliberating after the jury indicated that it was “split” on one of the counts. The trial court has discretion in instructing the jury, and we will reverse only when the instructions amount to an abuse of discretion. O’Connell v. State, 970 N.E.2d 168, 172 (Ind.Ct.App.2012). To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. Id. We will consider jury instructions as a whole and in reference to each other, not in isolation. Id.

Here, during the jury’s deliberations, the trial court received a question from the jury asking, “How do we proceed, if we are split on one Count?” Tr. p. 380. The trial court conferred with counsel for both parties. The trial court proposed two responses, and both counsel agreed to the following response, “May I suggest that you continue to deliberate to see if you are able to reach a verdict?” Id. The trial court gave this response to the jury, which subsequently returned its verdicts.

On appeal, Fuentes acknowledges that he did not object at trial to this response by the trial court. His claim on appeal is therefore waived. See Baker v. State, 948 N.E.2d 1169, 1178 (Ind.2011) (noting that a defendant who fails to object to an instruction at trial waives any challenge to that instruction on appeal). Fuentes attempts to avoid the effect of his waiver by arguing that the trial court’s response constituted fundamental error. As explained by our supreme court in Baker:

The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal. In order to be fundamental, the error must represent a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. The error must be so prejudicial to the defendant’s rights as to make a fair trial impossible. In considering whether a claimed error denied the defendant a fair trial, we determine whether the resulting harm or potential for harm is substantial. Harm is not shown by the fact that the defendant was ultimately convicted. Rather, harm is determined by whether the defendant’s right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.

Id. at 1178-79 (citations omitted).

Fuentes claims that the trial court’s response to the jury constituted an impermissible “Allen” charge. In Lewis v. State, 424 N.E.2d 107, 109 (Ind.1981), our supreme court explained, “The Allen charge,’ a designation given to a supplemental charge given by a trial judge to an apparently deadlocked jury, is named after the first major case which considered such a charge, Allen v. United States, [164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) ].” Thus, an Allen charge is an instruction given to urge an apparently deadlocked jury to reach a verdict. Hero v. State, 765 N.E.2d 599, 604 (Ind.Ct.App.2002). Such additional instructions are closely scrutinized to ensure that the court did not coerce the jury into reaching a verdict that is not truly unanimous. Id.

There are at least two problems with Fuentes’s claim in this regard. First, there is no indication that the jury was deadlocked. The jury began deliberations at 3:10 p.m. and sent its question to the trial court hardly more than an hour later, at 4:20 p.m. The jury’s question did not mention the word deadlocked, nor did the discussion between the parties and the trial court. The jury simply indicated that they had “split,” i.e. were not unanimous, as to one count and requested instructions on how to proceed.

Second, and more importantly, the trial court’s response did not coerce the jury into reaching a non-unanimous verdict; it simply suggested to the jury that they continue to deliberate to see if they were able to reach a verdict. The trial court’s reply did not place any pressure on the jury to force it to reach a verdict. Moreover, the jury had been instructed in the trial court’s final instructions that:

[t]he verdict must represent the considered judgment of each juror. To return any verdict, your decision must be unanimous. As jurors, you have the duty to consult with each other, and to deliberate with a view to reaching a unanimous agreement, if you can agree without violence to individual judgment. You must each decide the case for yourself, but should do so only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to re-examine your own views. Change your opinion if you become convinced that it is wrong. But do not surrender your honest belief as to the weight or effect of evidence only because of the opinion of your fellow jurors, or merely to return a verdict.

Appellant’s App. p. 66 (emphasis added). Under these facts and circumstances, we cannot say that the trial court’s response to the jury’s question amounted to fundamental error that made a fair trial impossible.

III. Sufficiency of the Evidence

Lastly, Fuentes claims that the State failed to present evidence sufficient to convict him of attempted murder. When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Corbin v. State, 840 N.E.2d 424, 428 (Ind.Ct.App.2006). We consider only the evidence most favorable to the verdict and the reasonable inferences that can be drawn from this evidence. Id. We will not disturb the jury’s verdict if there is substantial evidence of probative value to support it. Id. “[A] reviewing court respects ‘the jury’s exclusive province to weigh conflicting evidence.’ ” Id. (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005)).

To convict Fuentes of attempted murder, the State was required to prove beyond a reasonable doubt that Fuentes engaged in conduct that constituted a substantial step toward intentionally killing another human being. Id. at 429 (citing Ind.Code §§ 35-41-5-1, 35-42-1-1). The intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily injury, in addition to the nature of the attack and circumstances surrounding the crime. Id. And our supreme court held that discharging a weapon in the direction of a victim is substantial evidence from which the jury could infer intent to kill. Id. (citing Leon v. State, 525 N.E.2d 331, 332 (Ind.1988)).

On appeal, Fuentes claims that “there is no substantial evidence that Fuentes discharged his weapon in the direction of Officer Cichowicz.” Appellant’s Br. p. 21. Fuentes makes much of the fact that Officer Cichowicz did not actually see Fuentes fire the weapon. However, Fuentes ignores the evidence that Officer Cichowicz saw Fuentes point a gun at him at “head level,” and that as Officer Cichow-icz took cover, he heard Fuentes fire the gun. Tr. p. 229.

The fact that the officer did not directly see Fuentes fire the gun is not fatal to the State’s case. Officer Cichowicz repeatedly testified that Fuentes pointed the gun at him, and as he took cover, the officer heard a gunshot. From this evidence, the jury could reasonably conclude that Fuentes discharged his weapon directly at Officer Cichowicz, at “head level,” and that Fuentes specifically intended to kill Officer Cichowicz. See Leon, 525 N.E.2d at 332 (holding that evidence that defendant discharged a weapon in the direction of the victim was substantial evidence from which the jury could infer the intent to kill sufficient to support a conviction for attempted murder); Davis v. State, 558 N.E.2d 811, 811 (Ind.1990) (holding that evidence was sufficient to support a conviction for attempted murder where defendant ran from the police, turned, and fired a shot which struck an automobile directly behind the pursuing officer); Reese v. State, 939 N.E.2d 695, 702 (Ind.Ct.App.2011) (holding that evidence was sufficient to sustain a conviction for attempted murder where defendant, in an attempt to flee the police, fired three shots at the pursuing officer, two of which struck the officer); Perez v. State, 872 N.E.2d 208, 214 (Ind.Ct.App.2007) (holding that evidence that defendant fired his gun directly at passengers inside a car was substantial evidence supporting inference that defendant intended to kill the victims).

Fuentes’s citation to Henley v. State, 881 N.E.2d 639 (Ind.2008), is unavailing. In that case, our supreme court held that the defendant had received ineffective assistance of appellate counsel for failing to properly present a claim of insufficient evidence to sustain the defendant’s conviction for attempted murder. The court held that, if the claim had been properly presented, the conviction would have been reversed because there was no evidence that the defendant was aware of the presence of the police officer or actually pointed his weapon at the officer when he fired it. Id. at 652. Instead, the defendant was attempting to ward off an attack by the police dog. Id. This is far from what happened in the present case, where Fuentes pointed his gun directly at the pursing officer’s head and fired his weapon.

In short, the State presented evidence from which the jury could reasonably conclude that Fuentes specifically intended to kill Officer Cichowicz when he fired the gun at him. Therefore, Fuentes’s claim that the State did not present evidence sufficient to support his conviction for attempted murder fails.

Conclusion

The trial court did not abuse its discretion in admitting evidence that Fuentes had an AR-15 rifle in the trunk of the car in which he fled from the police. Nor did the trial court commit fundamental error by encouraging the jury to continue to deliberate to see if it could reach a unanimous verdict. Lastly, evidence that Fuentes pointed his gun in the direction of the pursuing officer and at the level of the officer’s head, then fired the gun was sufficient to establish Fuentes’s intent to kill. Accordingly, the State presented evidence sufficient to support Fuentes’s conviction for attempted murder.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.

      . "The AR-15 is a civilian version of the military’s M16 rifle.” Steinberg v. State, 941 N.E.2d 515, 520 (Ind.Ct.App.2011).

      . Fuentes also claims that "[t]he real effect of the evidence of this gun was to create the impression in the minds of the jurors that Fuentes was a bad guy and the kind of person who would shoot at another person[.]” Appellant’s Br. p. 12. To the extent that this is an argument that evidence regarding the rifle was improper evidence of "prior bad acts” under Indiana Evidence Rule 404(b), Fuentes failed to preserve this argument by objecting on 404(b) grounds at trial. See Lashbrook v. State, 762 N.E.2d 756, 759 (Ind.2002) (holding that defendant failed to preserve any error in the admission of evidence under Evidence Rule 404(b) where he objected at trial only on grounds of relevancy).

      . We also note that the police officer who transported Fuentes to jail testified without objection that Fuentes asked him “if [the police] had found an A.R. rifle in the trunk of the car that [Fuentes] was driving.” Tr. p. 306. Thus, there was other evidence admitted without objection that Fuentes had an AR-15 in the trunk of his car. "It is well settled that any error in admission of evidence is harmless if the same or similar evidence has been admitted without objection.” Lowery v. State, 478 N.E.2d 1214, 1228 (Ind.1985).


text:
    Jose M. SANTANA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1302-CR-54.
    Court of Appeals of Indiana.
    May 30, 2014.

      Peter D. Todd, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Jose M. Santana appeals his conviction of Class C felony operating a motor vehicle while privileges are forfeited for life. As the police had reasonable suspicion to stop Santana, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 4, 2011, Goshen police officer Todd Burks saw a pick-up truck Santana was driving in Goshen, Indiana. He ran the license plate information for the truck, but he omitted one digit from the plate number and the result came back “Not on File.” (Tr. at 6.) Officer Burks followed the truck and saw it turn 100 to 150 feet after the turn signal was activated. Ind.Code § 9-21-8-25 requires: “A signal of intention to turn right or left shall be given continuously during not less than the last two hundred (200) feet traveled by a vehicle before turning or changing lanes.”

Officer Burks pulled the truck over and asked Santana for his license. Santana said he did not have a license, and Officer Burks asked if he had any kind of identification. Santana produced a Mexican voter registration card with his photograph. Officer Burks asked for the registration of the truck. He entered the number properly and discovered the registration was valid. However, Officer Burks arrested Santana after he determined Santana had been adjudicated an Habitual Traffic Offender such that his driving privileges were forfeited for life.

The State charged Santana with Class C felony operating a motor vehicle while privileges were forfeited for life. Santana filed a Motion to Suppress, arguing Officer Burks did not have a valid basis for stopping his truck. The trial court denied the motion and, during the trial, Santana lodged a continuing objection to the validity of the stop. After a bench trial, Santana was found guilty.

DISCUSSION AND DECISION

Our standard for review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Turner v. State, 862 N.E.2d 695, 699 (Ind.Ct.App.2007). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

Police officers may stop a vehicle when they observe minor traffic violations. Id. A stop is lawful if there is an objectively justifiable reason for it, and a stop may be justified on less than probable cause. Id. If there is an objectively justifiable reason, then the stop is valid whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives. Id. at 699-700.

The trial court heard evidence Santana committed a traffic violation that would permit a lawful traffic stop. Officer Burks testified Santana did not signal for the proper distance before turning, but Santana argues the evidence shows there was “a real possibility” he could have signaled “at the two hundred and fifteen foot (215) mark.” (Appellant’s Br. at 6.) Santana’s argument is a request to reweigh the evidence, which we may not do, see Turner, 862 N.E.2d at 699, and we accordingly affirm. See Haynes v. State, 937 N.E.2d 1248, 1253 (Ind.Ct.App.2010) (officer’s testimony of traffic infraction sufficient to justify traffic stop), trans. denied.

Affirmed.

VAIDIK, C.J., and RILEY, J., concur.

      . Ind.Code § 9-30-10-17.

      . Officer Burks testified a result of "Not on File” can indicate an old plate is being used on a new car, when the older vehicle has been sold or re-registered. (Tr. at 19.)

      . Santana also argues the stop was improper because the report his license plate number was not on file was erroneous. He argues an officer's mistake of that nature cannot be a basis for the good faith exception to the requirement of reasonable suspicion.
      We need not address that allegation of error, as the turn signal violation provided an independent basis for a valid traffic stop. The officer did not stop Santana until he saw the tum signal violation. Santana correctly notes the officer agreed, when asked at trial, that "the focus of your traffic stop was the erroneous license plate as opposed to the two-hundred (200) feet.” (Tr. at 12.) But the officer was later asked, after he described Santana’s turn, "why did that ... cause you to initiate the stop?” (Id. at 35.) The officer responded with the requirement that a turn be signaled 200 feet prior to the turn.


author: BAKER, Judge.

text:
    Brandon BRUMMETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1304-CR-378.
    Court of Appeals of Indiana.
    June 2, 2014.

      Susan D. Rayl, Smith Rayl Law Office, LLC, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Appellant-defendant Brandon Brummett asks this Court to reverse his convictions for Child Molesting as a class B felony, Child Molesting as a class C felony, and three counts of Sexual Misconduct with a Minor, class D felonies. More particularly, Brummett argues that prosecutorial misconduct placed him in grave peril and amounted to fundamental error. Additionally, Brummett argues that the testimony of K.A. was incredibly dubious and, therefore, there was insufficient evidence to support one of his convictions for sexual misconduct with a minor. Finally, Brum-mett contends that the trial court committed fundamental error when it admitted evidence that Brummett touched A.A. in other states on family vacations. We conclude that the prosecutor’s continued misconduct did constitute fundamental error that placed Brummett in grave peril. Therefore, we reverse and remand for a new trial.

FACTS

Brummett, aged twenty-three at the time of the trial, is the cousin of K.A., aged sixteen at the time of the trial, and A.A., aged fourteen at the time of the trial. The girls’ father, Brummett’s uncle, was incarcerated in West Virginia. Although the girls’ mother, Iva Desonier, was divorced from their father, she encouraged the girls to spend time with their relations on their father’s side.

K.A. told Brandon Clem, whom she dated from February 2012 until February 2013, that Brummett had been molesting her since she was nine years old. Clem convinced K.A. that she needed to tell Desonier. On March 20, 2012, Clem met with K.A. and Desonier. When K.A. tried to tell Desonier about Brummett, she became upset and had trouble speaking, so Clem told Desonier what K.A. had told him concerning Brummett. Desonier telephoned the penitentiary where the girls’ father was located and had to explain the situation to a counselor before Father could return her call. When A.A. returned home from school that day, Desonier asked her if Brummett had ever touched her inappropriately. A.A. told Desonier that he had.

On June 21, 2012, the State charged Brummett with Count I, class B felony child molesting, Count II, class C felony child molesting, Count III, class D felony sexual misconduct with a minor, Count IV, class D felony sexual misconduct with a minor, and Count V, class D felony sexual misconduct with a minor. Brummett’s jury trial began on March 4, 2013.

At the trial, K.A. testified that when she was nine or ten years old, Brummett touched the inside of her vagina underneath her clothes at their Grandmother’s house. She also testified that, on another occasion, Brummett touched her vagina over her clothes at her Grandmother’s house. K.A. stated that when she was fourteen, Brummett touched her vagina over her clothing at her Aunt Tena’s house, and that in January 2012, Brum-mett touched her outside of her clothing at her Grandmother’s house.

K.A. testified that, when Brummett touched her in January 2012, they were at Aunt Tammy’s house. She, Aunt Tammy, Aunt Tena, her Grandmother, A.A., and Brummett were all playing Phase Ten at the kitchen table. She testified that, during the card game while they were all seated at the table, Brummett put his leg over hers and forced her legs apart, unzipped her jeans, and put his hand on her vagina over her panties for ten minutes. She further testified that while this happened, she would move her chair away from Brummett and he would move his towards her.

A.A. testified that Brummett began touching her when she was eight or nine years old. She testified that she was at her Grandmother’s home, sleeping on the couch while Brummett slept on the floor. She further testified that he reached up and touched her on top of her clothing but did not say where he touched her. A.A. also testified that Brummett touched her inside her privates. She testified that another incident occurred at her Grandmother’s house when she was eight or nine, during which Brummett touched her vagina outside her clothing for five minutes. She also testified that the last time something had happened was when they had been in West Virginia visiting her Father.

Brummett’s jury trial concluded on March, 5, 2013; the jury found Brummett guilty on all charges. On April 3, 2013, the trial court imposed the following sentences, to be served concurrently: ten years imprisonment with three years suspended on Count I; four years imprisonment for Count II, and 545 days imprisonment on Counts III through IV.

Brummett now appeals.

DISCUSSION AND DECISION

I. Prosecutorial Misconduct

Brummett contends that the prosecutor engaged in misconduct that placed him in grave peril and rendered a fair trial impossible. Although Brummett did not object to the misconduct at trial, he argues that the repeated instances of misconduct resulted in fundamental error.

When reviewing a claim of prose-cutorial misconduct, we will first determine whether the prosecutor engaged in misconduct. Carter v. State, 956 N.E.2d 167, 169 (Ind.Ct.App.2011). If this Court finds that there has been misconduct, we then determine “whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected.” Id. The gravity of the peril is not measured by the degree of impropriety of the conduct but, rather, by the probable persuasive effect of the misconduct on the jury’s decision. Booher v. State, 773 N.E.2d 814, 817 (Ind.2002). In order to preserve a claim of prosecuto-rial misconduct, the defendant must both object to the alleged misconduct and request an admonishment and move for a mistrial. Cowan v. State, 783 N.E.2d 1270, 1277 (Ind.Ct.App.2003).

Brummett did not object to the misconduct at trial and, therefore, did not properly preserve his claim. Thus, his argument is waived unless he establishes both the grounds for prosecutorial misconduct as well as the grounds for fundamental error. Booher, 773 N.E.2d at 818. Fundamental error is a “substantial, blatant violation of due process” so prejudicial to the rights of the defendant that it renders a fair trial impossible. Hall v. State, 937 N.E.2d 911, 913 (Ind.Ct.App.2010).

A. Comments Regarding Defense Counsel and Defense Lawyers Generally

Brummett argues that, during its closing argument, the State made three statements that were disparaging of Brummett’s defense counsel and the role of defense counsel in general. First, Brummett contends the State promoted a “good guy/bad guy” theme throughout its closing argument when it stated:

First, I’d like to start as I typically always have to do ah, at this point in a trial and apologize for any rude um, facial expressions I might have made or um, If you thought I got to [sic] angry or to [sic] upset at times I do apologize it’s just in my um, nature and I trust that if it was a child that any of you loved having to come into this courtroom you would appreciate um, that same conviction or anger, call it whatever you want, coming out of the State if it was your kid coming on the stand.
... when [the defense attorney] says that it’s, it’s an empty case or it’s a hollow case or it falls short, that’s frustrating because we do tell our kids to come forward and tell. And then time and time and time again they do and this is what happens. We tell them to tell us if you’re touched, tell us immediately. Come and tell us, we’ll keep you safe. We’ll protect you. The prosecutors, the police will do things for you but we don’t explain to them that all of this will happen. That they’ll come and have to speak to you strangers. That there will be people in the back of the courtroom. That they’ll have to answer questions for a defense attorney. We don’t teach them that what that all entails and then when they’re strong enough to do it, when they have the courage or what have you, whatever you want to call it, to do it, then we do this and we say it’s not enough. It’s not good enough. You coming in and telling the truth when you couldn’t possibly give us anymore isn’t enough and that’s empty and that’s hollow and that falls short. And if that’s the case and if that’s what we’re gonna [sic] say in this county then we should start telling our kids not to come forward anymore.
If it was [sic] my job to pull the wool over you guy’s [sic] eyes I wouldn’t be here number one and number two, the State wouldn’t have been honest about bad facts like Dad being in prison.

Tr. p. 207-8, 208-9, 211.

Additionally, Brummett contends the State’s comment below, also made during closing argument, “implies] that because of what defense counsel did in this case, and in child molest cases generally, child molesters ‘get away with’ their crimes[.]” Appellant’s Br. p. 13.

We see these cases on the news and I think all of us think how do these guys get away with that. Or we see them on a Dateline or a whatever and think how do they get away with this. Again, this is how they get away with it. Because this process is hard. It’s hard for kids. But this is what they do and it comes down to little things. Little things like I don’t know if any of you noticed when [defense attorney] was questioning the girls he stayed at his table. Why, so that they would have to look at him. They have to look right at him. But he questioned his client he was right over there. Why, so that Mr. Brummett is looking at you guys. That’s why. How do you make a fourteen or sixteen year old girl even more uncomfortable to talk about her vagina, well you make her look at the guy who touched it.

Tr. at 209-10. Finally, Brummett claims the State attacked defense counsel’s integrity when it stated, during closing argument:

[Brummett] knew in March they were accusing him. And in those months he couldn’t come up with anything. But once he hired an attorney and they were able to kind of talk things through all of a sudden it’s this money issue which doesn’t make any since [sic] anyways and is frankly insulting to that that [sic] is what this would all be about.

Id. at 213.

The prosecutor is required to confine her closing argument to comments based upon the evidence presented in the record. Lambert v. State, 743 N.E.2d 719, 734 (Ind.2001). In general, lawyers are required to demonstrate respect for the legal system, as well as other lawyers; “comments that demean opposing counsel, especially in front of a jury, are inappropriate.” Marcum v. State, 725 N.E.2d 852, 858-859 (Ind.2000). In Marcum, this Court found that comments by the prosecutor stating that the defense counsel was trying to “mislead the jury,” were attacks on the character of defense counsel and improper. Id. at 859.

The State asserts that the prosecutor’s comments “remained within the realm of professionalism and appropriate comment on the law and the facts of the case.” Appellee’s Br. p. 7. We disagree. Here, the prosecutor made comments that implied that defense counsel’s arguments helped guilty men go free. Tr. p. 209-210. Further, she stated that defense counsel employed tricks, such as sitting at his table while questioning the girls. Id. Moreover, when the prosecutor stated, “I trust that if it was a child that any of you loved having to come into this courtroom you would appreciate um, that same conviction or anger, call it whatever you want, coming out of the State if it was your kid coming on the stand,” she took the jury out of the jury box and asked them to focus on irrelevant and improper considerations. Id. at 207-208.

Additionally, the prosecutor accused the defense counsel of collaborating with Brummett to falsify information: “And in those months he couldn’t come up with anything. But once he hired an attorney and they were able to kind of talk things through all of a sudden it’s this money issue.” Id. at 2123. This is a clear suggestion that defense counsel helped Brum-mett to fabricate information to provide the jury.

Here, the prosecutor not only impugned the integrity of defense counsel but also suggested that the role of defense lawyers was to help guilty men go free. Id. We agree with Brummett that the prosecutor attempted to create a good guy/bad guy dichotomy that portrayed defense counsel as the “bad guy.” In Bardonner v. State, this Court held such conduct to be inappropriate, stating that,

We think this is an unfair tactic which not only negates the defendant’s presumption of innocence, but also runs afoul of IN. Prof. Conduct Rule 3.4, which requires fairness to opposing party and counsel, and prohibits an attorney from alluding to matters that the lawyer does not reasonably believe are relevant or will not be supported by the facts in issue ... It is not the jurors’ responsibility to make a finding as to the role of the prosecutor and defense counsel or to determine the character of the defense counsel. This information is certainly not relevant to the case.

587 N.E.2d 1353, 1361 (Ind.Ct.App.1992).

We conclude that the prosecutor’s comments impugned the integrity of defense counsel and demeaned the role of defense counsel in this case. Therefore, we determine that the prosecutor’s improper comments concerning defense counsel constituted prosecutorial misconduct.

B. Comments Vouching for State Witnesses

Brummett also contends that the prosecutor committed misconduct when she made statements he alleges vouched for the State’s witnesses.

A prosecutor may not state his or her personal opinion regarding the credibility of a witness during trial, as such statements amount to vouching for a witness. Thomas v. State, 965 N.E.2d 70, 77 (Ind.Ct.App.2012), trans. denied. However, “a prosecutor may comment as to witness credibility if the assertions are based on reasons arising from the evidence presented at trial.” Id. It is the fact-finder’s role to determine the truthfulness of witnesses. Rose v. State, 846 N.E.2d 363, 369 (Ind.Ct.App.2006).

Brummett asserts prosecutorial misconduct occurred when the prosecutor vouched for the State’s witnesses during closing argument by stating, “yes some kids do lie but these kids do not ... they do not lie about the Defendant.” Tr. p. 198. Brummett also contends the deputy prosecutor vouched for the credibility of K.A.’s boyfriend Clem when she said he “had nothing to gain by, by being here today. He just had to do the right thing.” Id. at 199. Brummett argues the comments were “particularly egregious” because “[t]here was no other evidence against Mr. Brummett except the testimony of K.A. and A.A.” Appellant’s Br. p. 16.

Indiana Rule of Professional Conduct 3.4(e) states,

A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of the accused ...

A prosecutor may comment on the credibility of witnesses only if the assertions are based on reasons which arise from the evidence. Lainhart v. State, 916 N.E.2d 924, 938 (Ind.Ct.App.2009).

The State argues that the prosecutor was merely explaining the reasons why the girls were believable witnesses and asserts that such arguments are an “appropriate comment on the evidence that the jury heard.” Appellee’s Br. p. 8. While we recognize that the prosecutor was responding to Brummett’s contention that the girls were lying, this does not allow the prosecutor to personally vouch that the girls “do not lie.” Tr. p. 198.

In Gaby v. State, this court held that “[although we recognize that the prosecutor’s comments were in response to Gaby’s argument that M.C.’s accusations were false, the prosecutor’s response still crosses the line into improper vouching as her comments were not based solely on reasons which arose from the evidence, but rather, asserted a personal knowledge of the facts at issue.” 949 N.E.2d 870, 881 (Ind.Ct.App.2011).

Here, as in Gaby, the credibility of the girls is the central issue in the case. Id. We find that the prosecutor’s statement that “these kids do not ... they do not lie about the Defendant,” was not based on any evidence outside of the girls’ testimony and conclude that the statement constituted improper vouching. Tr. p. 198.

Next, we turn to the prosecutor’s assertion that Clem “had nothing to gain by, by being here today. He just had to do the right thing.” Id. at 199. While the prosecutor may discuss whether a witness has any interest, bias, or prejudicial reason to lie, she may not personally vouch for the witness or the justness of the cause. Lainhart, 916 N.E.2d at 938. In Lain-hart, we held that a prosecutor’s comments constituted improper vouching when the prosecutor stated, concerning the testimony of a police officer, that “it would take an awful lot to get an officer to lie,” and that “there is no place for it in our society.” Id.

Here, while the prosecutor’s comment that Clem, “had nothing to gain,” was permissible, she went too far when she stated that Clem, “just had to do the right thing,” as it suggested that the prosecutor knew Clem was telling the truth and constituted improper commentary on the justness of the cause in general. Tr. p. 199. We agree with Brummett that the prosecutor’s remarks constituted improper vouching and commentary on the justness of the cause.

C. Argumentative and Inflammatory Questions

Next, Brummett argues that the State asked argumentative and inflammatory questions during its cross-examination of Brummett. During direct examination, Brummett made a comment about the victims’ possible dislike of him because he held the keys to the enclosure where their father’s motorcycles and vehicles were kept while he was incarcerated. Brum-mett contends that the following exchange that occurred on cross-examination contained argumentative and inflammatory questions:

[State]: At no point, at any time in your interview with Detective Shafer, did you try to elude [sic] to anything about anybody being worried about Harley Davidson’s [sic] or cars or what have you[?] You never mentioned any of that did you?
[Brummett]: Not to my knowledge.
[State]: Okay. That’s because it’s not true, right? And that’s what you’ve just come up with today conveniently, correct?
[Brummett]: No, it is true.
[State]: Okay. How long did it take you to think up that one?
[Brummett]: What do you mean?
[State]: I think you’re clear on what I mean but I’ll withdraw the question. You told the detective that you understood that people just don’t kind of make this stuff up out of the no where, [sic] right?
[Brummett]: Correct.
[State]: And you have absolutely no reason that you could think of that these two young girls would lie about you, right?
[Brummett]: Yes.
[State]: Okay. Which girl do you like better?
[Brummett]: I didn’t have a special.
[State]: You didn’t have a preference?
[Brummett]: Uh-huh.
[State]: Did you enjoy touching both of their vagina’s [sic] or was there one you like[d] better ...
[Brummett]: I never did that.
[State]: ... than the other?
[Brummett]: I never did that.

Tr. p. 175-76.

The attitude displayed by the prosecutor in the above exchange amounts to belligerence toward the defendant. We agree with Brummett that the questions were argumentative and inflammatory and amounted to prosecutorial misconduct.

D. Revealing Inadmissible Evidence

Brummett argues that the prosecutor engaged in misconduct by revealing inadmissible evidence to the jury when, during the defense’s examination of A.A. and during the cross-examination of the forensic interviewer, the prosecutor referred to uncharged acts in front of the jury. The first instance under examination, during the defense examination of A.A., was as follows:

[Defense Counsel]: And again, you didn’t, you didn’t tell the jury that today, right?
[State]: Judge, at this point I’m gonna have to object. The Court’s already rules that the acts that aren’t charged, the State’s not to go into detail on it so it can’t be a double edge sword here, Either I can go into everything.
[The Court]: Please come forward, come forward.

Tr. p. 75-76. The second exchange, during the cross examination of the forensic interviewer, was as follows:

[State]: And, and Judge I’m gonna object again. If wanna [sic] go into the uncharged acts before the defendant turned eighteen ...
[The Court]: Hold on.
[State]: I’ll go there ...
[The Court]: Approach, approach.

Id. at 129-130.

While we do not believe that the prosecutor’s references to uncharged acts in front of the jury was necessarily wise or appropriate, we must also note that, with regard to both statements, the prosecutor’s objections were prompted by the defense’s improper reference to the uncharged acts. Id. at 76-77, 129-130. Indeed, the trial court cautioned defense counsel in each instance that further questions regarding such uncharged acts would open the door for the State to question Brummett about the acts. Id. at 76, 130. As such, while we would caution that such objections should be made in such a manner as to avoid revealing uncharged acts to the jury, we do not find the objections to constitute prosecu-torial misconduct.

E. Cumulative Effect

We will now turn to Brum-mett’s contention that the above instances of prosecutorial misconduct, when looked at cumulatively, resulted in fundamental error that requires a reversal and a new trial. “It has been long held by this Court that when an isolated instance of misconduct does not establish grave peril, repeated instances may evidence a deliberate attempt to improperly prejudice the defendant and result in reversal.” Kent v. State, 675 N.E.2d 332, 337 (Ind.1996).

In Lainhart, this court held that the prosecutor’s misconduct constituted fundamental error when the case involved conflicting testimony and hinged almost exclusively on the credibility of the witnesses. Lainhart, 916 N.E.2d at 938-939. We determined there that, because much of the State’s misconduct “went straight to the credibility of the witnesses,” we would not hold that the error was harmless.

Here, we find that the prosecutor improperly distinguished the roles of the prosecution and defense, vouched for the credibility of the witnesses and the justness of the cause, and asked argumentative and inflammatory questions. This case, like Lainhart, hinges largely on the credibility of the witnesses. Therefore, we conclude that the prosecutor’s misconduct placed Brummett in grave peril and, cumulatively, amounted to fundamental error.

II. Sufficiency of the Evidence

Brummett also argues that the State lacked sufficient evidence to convict him regarding one count of sexual misconduct with a minor. More particularly, Brummett argues that K.A.’s testimony that he touched her vagina at the kitchen table while playing cards with four other people was incredibly dubious.

When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. When we are confronted with conflicting evidence, we consider it most favorably to the trial court’s ruling. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. Therefore, it is not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

Under the “incredible dubiosity rule” we may “impinge on the jury’s responsibility to judge the credibility of the witness only when it has confronted ‘inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.’ ” Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind.1981). We will reverse a conviction if the sole witness presents inherently improbable testimony and there is no circumstantial evidence of the defendant’s guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind.1999). Further, we will overturn a conviction based upon the incredible du-biosity rule when the testimony is so incredibly dubious or inherently improbable that it runs counter to human experience, and no reasonable person could believe it. Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind.Ct.App.2008).

K.A. testified Brummett touched her vagina underneath her pants while she, Brummett, and other family members were playing a card game at a table. She testified the table had a tablecloth, and Brummett “touched [her] on the outside of [her] clothes and then on the inside.” Tr. p 41. K.A. testified Brummett did so by “kind of like put[ting] his leg in between [hers]” id., unbuttoning and unzipping her jeans, and touching her vagina for “[m]aybe ten minutes.” Id. at 43. K.A. also told the person who interviewed her about the incident that “[she] would scoot [her] chair away and [Brummett] would scoot after [her][.]” Id. at 56. At trial, the testimony from K.A.’s grandmother and two aunts indicated they did not notice anything suspicious occurring between Brummett and K.A. during the card game in question.

Brummett argues K.A.’s testimony regarding the incident is incredibly dubious because it is not possible that he could have performed the alleged actions without arousing suspicion from the other individuals seated at the table. While we agree with Brummett that K.A.’s testimony might stretch the limits of credulity, this is not the test for incredible dubiosity. K.A.’s testimony does not run so counter to human experience that no reasonable person could believe it. Therefore, this Court will not invade the province of the jury by reweighing the evidence. Thus, this argument must fail.

III. Testimony Regarding the Uncharged OuUof-State Incident

Brummett next contends that the trial court committed fundamental error when it admitted evidence that Brummett touched A.A. in another state on a family-vacation.

At the outset, we note that we have already reversed on the prosecutorial misconduct issue and rule on this issue only for future guidance as the case will be retried.

A trial court has broad discretion in ruling on the admissibility of evidence, and, on review, we will disturb its ruling only on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). When reviewing a decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the decision. Id. A claim of error in the admission or exclusion of evidence will not prevail on appeal unless a substantial right of the party is affected. Ind. Evidence Rule 103(a). In determining whether error in the introduction of evidence affected a defendant’s substantial rights, we assess the probable impact of the evidence on the jury. Sparkman, 722 N.E.2d at 1262.

Here, Brummett did not make a contemporaneous objection. The failure to object normally results in waiver and precludes appellate review unless the admission was fundamental error. Willey v. State, 712 N.E.2d 434, 444 (Ind.1999). As noted above, fundamental error is an error “so prejudicial to the rights of the defendant as to make a fair trial impossible.” Id. at 445.

Here, during trial, the State asked A.A. during direct examination:

[State]: What about um the last time something happened, do you remember when that would have been?
[A.A.]: West Virginia.
[State]: Okay. And you were in West Virginia? Were you visiting you[r] Dad?
[A.A.]: Yes.
[State]: Do you remember when that was?
[A.A.]: January
[State]: Okay of not this year but the year before?
[A.A.]: Yes.
[State]: Okay. Was it the same kind of stuff?
[A.A.]: Yes.
[State]: Were there other times that he did the same thing that we haven’t talked about?
[A.A.]: Yes.

Tr. p 70-1.

Prior to trial, Brummett moved to prohibit the State from eliciting testimony about allegations that occurred in other states, namely West Virginia and Arizona, as Brummett asserted that such testimony would be evidence of uncharged acts and run afoul of Indiana Evidence Rule 404. The State argued that testimony regarding those allegations should be admissible for the purpose of establishing a timeline. The trial court ruled:

All right. I think ah, as long [as] you go ... don’t go into the specific details regarding it, I think you can put at least ah, some information in it over 404-B [sic] in regard to ah, again motive, intent, preparation, plan, knowledge, identity, absence of mistake or accident ah, as to showing a, a pattern just for that ... for those limited purposes. Again, no details, no fact that he was charged, none of that stuff should come in aside from again just using the timeline.

Id. at 5-6.

Indiana Evidence Rule 404(b) states:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Brummett argues A.A.’s testimony regarding an alleged incident in West Virginia does not fall under any of the permitted uses described in Evidence Rule 404(b)(1).

While we find that the testimony concerning the alleged incident may have been improperly admitted, we cannot find that the admission regarding the uncharged act in West Virginia amounts to fundamental error. We conclude that the admission of this evidence did not place Brummett in grave peril or make a fair trial impossible.

CONCLUSION

We conclude that the prosecutor engaged in prosecutorial misconduct by improperly distinguishing between the role of the defense and the prosecution, by improperly vouching for the State’s witnesses, and by asking argumentative and inflammatory questions. The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial.

The judgment of the trial court is reversed and we remand for a new trial.

VAIDIK, C.J., concurs, and BAILEY, J., concurs in result.

      . Ind.Code § 35-42-4-3(a).

      . I.C. § 35-42-4-3(b).

      . I.C. § 35-42-4 — 9(b).

      .We heard oral argument on April 2, 2014 at Vincennes University. We would like to thank the University’s administration, faculty, and students for their hospitality. We also thank counsel for their informative and illustrative oral advocacy.

      . We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State, 992 N.E.2d 776 (Ind.Ct.App.2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan.


author: FRIEDLANDER, Judge.

text:
    CELADON TRUCKING SERVICES, INC., a/k/a Celadon Trucking Services of Indiana, Appellant-Defendant v. UNITED EQUIPMENT LEASING, LLC, Appellee-Plaintiff.
    No. 30A01-1311-CC-0507.
    Court of Appeals of Indiana.
    June 3, 2014.
    Rehearing Denied Aug. 8, 2014.

      Robert F. Wagner, Robert R. Foos, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellant.
    Eric S. Pavlack, Colin E. Flora, Pavlack Law, LLC, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Celadon Trucking Services, Inc. (Cela-don) appeals from the trial court’s grant of United Equipment Leasing’s (United) Motion for Relief from the Court’s May 31, 2012 Order. On appeal, Celadon presents three issues for our review, which we consolidate and restate as: Did the trial court err in granting United’s request for relief?

We affirm.

On February 8, 2012, United purchased 119 transport trailers from Teton Transportation, Inc. (Teton), a Tennessee trucking company. United and Teton immediately executed a Trailer Sublease Agreement (Sublease Agreement), which provided that United, through an affiliated company, would lease the 119 trailers back to Teton. United never took possession of the trailers after the purchase or before executing the Sublease Agreement. The trailers were located at Te-ton’s customer’s facilities, attached to Te-ton’s tractors, or parked in various Teton drop lots or at their truck yard in Knoxville, Tennessee. United never received an itemization from Teton as to the locations of the trailers United purchased.

On February 27, 2012, Teton sold substantially all of its assets to Celadon. Two days later, United terminated the Sublease Agreement with Teton and demanded that Teton “deliver the trailers to the point where the trailers were originally received or to such other location designated by [United]” as Teton was obligated to do pursuant to the terms of the Sublease Agreement. Appellant’s Appendix at 177. Teton did not comply with this provision.

United then made similar demands to Celadon in its efforts to locate its trailers. Although Celadon has no contractual obligation to return the trailers to United, Celadon nevertheless provided United with three options concerning the trailers: (1) United could enter into a marshaling agreement whereby it would pay a fee to Celadon to return the trailers to Indianapolis; (2) Celadon could purchase the trailers from United and then Celadon would be responsible for locating the trailers; or (3) Celadon would leave the trailers where they were currently located and it would be United’s responsibility to locate and then coordinate the return of the trailers to United’s facility. On March 1, 2012, United requested Celadon compile a list of the trailer locations. Approximately three days later, Celadon provided a list of the trailer locations based on information it had received from Teton. Celadon was unable to verify the location of a large portion of the trailers.

On March 12, 2012, United filed its Complaint for Replevin of Property, Damages for Conversion, Recovery of Treble Damages under the Indiana Crime Victims Act, Quantum Meruit and Unjust Enrichment against Celadon. Contemporaneously therewith, United filed a Motion for Order Requiring Defendant to Appear at Hearing on Replevin and Prejudgment Attachment in which United requested the trial court consolidate the preliminary and final hearings such that the hearing would be a final hearing on the matter. The trial court issued an order setting a hearing for March 28 and ordering that the hearing would be “a final hearing on [United’s] entitlement to possession of the Collateral.” Appellant’s Appendix at 31. After a continuance, a hearing was finally held on April 26, 2012.

During the April 26 hearing, Celadon did not dispute that United is the owner of the 119 trailers. Celadon claimed that it had only touched or moved nineteen of United’s trailers and that was because they were attached to Teton’s tractors when Celadon finalized the asset purchase agreement with Teton. Celadon claimed that it had not asserted control over any other trailers owned by United.

The trial court issued its findings of fact and conclusions of law on May 31, 2012. The trial court concluded that United had satisfied the first element of replevin in that United established its right to possession of the 119 trailers. The trial court thus ordered that United “is the true and rightful owner of the Trailers and is entitled to immediate possession[.]” Appellant’s Appendix at 103. The trial court further concluded, however, that United had not proven the second and third elements of replevin because it failed to establish that the trailers were unlawfully detained or that Celadon wrongfully had possession of the trailers. Thus, the trial court concluded that United was not entitled to damages. The court made no further determination with respect to the remaining claims set forth in United’s complaint.

On July 17, 2012, Celadon filed a Motion to Dismiss United’s Complaint in its entirety. The trial court held a hearing on this motion on September 24, 2012, and took the matter under advisement. On May 30, 2013, United filed a Motion for Relief from the Court’s May 31, 2012 Order. The trial court held a hearing on United’s Motion for Relief on July 15, 2013. During this hearing, United informed the court that since the April 26, 2012 hearing and the court’s subsequent order, its efforts to recover the trailers revealed that at least two of its trailers were on Celadon’s property and that there was evidence that Celadon was in fact using at least one of United’s trailers. This newly discovered evidence was the basis for United’s request for relief. On October 25, 2013, the trial court issued an order granting United’s Motion for Relief without comment and denying Celadon’s Motion to Dismiss. Celadon now appeals.

Our standard of review in evaluating a trial court’s reconsideration of its prior ruling is abuse of discretion. In re Estate of Hammar, 847 N.E.2d 960 (Ind.2006). “An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it.” Ind. Univ. Med. Ctr. v. Logan, 728 N.E.2d 855, 859 (Ind.2000).

We begin by considering the nature of the trial court’s May 31, 2012 order. Indiana Trial Rule 54(B) provides:

When more than one [1] claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties....

(Emphasis supplied). In its ruling on the issue of replevin, the trial court did not make an express determination that there is no just reason for delay and did not expressly direct entry of judgment. The court’s findings and conclusions were on the issue of replevin only, and there several remaining claims contained within United’s complaint. The trial court’s determination as to the issue of replevin was thus not a final judgment, but rather remained interlocutory in nature.

With this in mind, we consider Ce-ladon’s arguments. Celadon argues that United’s request for relief is an impermissible attempt to appeal the court’s May 31, 2012 order. Celadon asserts that pursuant to Ind. Trial Rule 52(B), a party may reopen a judgment only through a motion to correct error under Ind. Trial Rule 59. We note that T.R. 52 governs findings by the court in the entry of a judgment pursuant to Ind. Trial Rule 58. Further, the remedy for amending findings and a judgment under T.R. 52 is to file a motion to correct error under T.R. 59, which in and of itself only provides a mechanism for addressing newly discovered evidence capable of production within thirty days of a final judgment. As noted above, the court’s May 31, 2012 order was not a final judgment. Celadon’s reliance on T.R. 52 to characterize the trial court’s order of May 31, 2012 as a judgment that can be challenged only through a motion to correct error or an appeal is misplaced.

Celadon also argues that because the court’s Findings of Fact and Conclusions of Law following the April 26, 2012 hearing were not a final judgment, relief under T.R. 60(B) was inappropriate because that rule applies only to final judgments. In Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967 (Ind.2014), our Supreme Court noted a 2008 amendment to T.R. 60(B) that deleted the word “final” from the rule such that the express language of the rule no longer limits relief only from a “final” judgment. Celadon is thus incorrect in its assertion that the finality aspect of the court’s May 31, 2012 order foreclosed the court from considering United’s Motion for Relief pursuant to T.R. 60(B). T.R. 60(B) is a mechanism that a party can use to seek relief from a prior order of a court, even if the matter has not proceeded to a final judgment.

We note that United based its Motion for Relief on T.R. 60(B)(3) and (8), and as we have determined, T.R. 60(B) is a proper mechanism for seeking relief from a non-final order of the court. In addition to the remedies afforded by T.R. 60(B), however, we note that T.R.54(B) also provides a mechanism to seek relief from a prior court order. T.R. 54(B) provides that “an order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” (Emphasis supplied.) Our Supreme Court recently reiterated:

The highlighted portions of Rule 54(B), [supra, ] represent this Court’s recognition, through its rule making authority, of a well-settled practice in this state, namely: “We have long and consistently held a trial court has inherent power to reconsider, vacate, or modify any previous order so long as the case has not proceeded to final judgment.”

Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d at 972 (quoting Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160, 1163 (Ind.Ct.App.1993)).

The trial court’s grant of United’s motion for relief is sustainable under the trial court’s inherent power to reconsider, vacate, or modify any previous order so long as the case has not proceeded to final judgment. This is precisely what the trial court did in this case. The trial court was well within its discretion to grant United the requested relief.

Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.

      . Teton is not a parly in this action.

      . After the sale of its assets to Celadon, Teton ceased to be an ongoing business.

      . The trial court stated, "United has failed to prove that Celadon has any contractual or common law obligation to find and/or return the 119 trailers, Celadon is under no obligation to deliver the Trailers at a location to be determined and specified by United as requested in the second part of subparagraph (b) of Count I-Replevin of Plaintiff's Complaint.” Appellant’s Appendix at 103.

      . The entry in the trial court's chronological case summary identifies the Motion to Dismiss as having been filed by "the Defendant, United Equipment Leasing.” Appellant's Appendix at 5. This appears to be a typographical error as it is clear from the record that it was in fact Celadon who filed the Motion to Dismiss.

      . Celadon’s motion to dismiss was based upon the trial court’s conclusion for purposes of the replevin claim that United had not established that Celadon wrongfully held possession of United’s trailers.

      . T.R. 52(A) provides: "In the case of issues tried upon the facts without a jury or with an advisory jury, the court shall determine the facts and judgment shall be entered thereon pursuant to Rule 58.” The rule continues by outlining under what circumstances the court is required to enter special findings in the course of entering a judgment.

      . T.R. 59(A) provides that a motion to correct error may be sought on grounds of "[njewly discovered material evidence ... capable of production within thirty (30) days of final judgment...."


author: WENTWORTH, J.

text:
    VAN BUREN TOWNSHIP, Madison County, Boone Township, Madison County, The Summitville Fire Protection Territory, Petitioners, v. DEPARTMENT OF LOCAL GOVERNMENT FINANCE, Respondent.
    No. 49T10-1104-TA-27.
    Tax Court of Indiana.
    May 16, 2014.
    Stephen W. Schuyler, Attorney at Law, David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorneys for Petitioners.
    Gregory F. Zoeller, Attorney General of Indiana, Thomas D. Cameron, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   WENTWORTH, J.

Van Burén Township, Madison County, Boone Township, Madison County, and the Summitville Fire Protection Territory have asked this Court to review the Department of Local Government Finance’s (DLGF) final determination denying their levy request. Upon review, the Court affirms the DLGF’s final determination.

FACTS AND PROCEDURAL HISTORY

In 2010, Van Burén Township, Madison County, and Boone Township, Madison County (“the Townships”), entered into an agreement to establish the Summitville Fire Protection Territory. In order to fund the fire protection territory’s budget, the Townships needed the DLGF’s approval to impose a tax levy within their respective jurisdictions. Before they could seek the DLGF’s approval, however, Indiana Code § 36-8-19-6 required them to give notice of, and conduct, a public hearing to receive public comment on the creation of the fire protection territory.

The Townships scheduled their public hearing for March 17, 2010. The administrative record shows that Boone Township provided the following notice of that hearing:

NOTICE OF BOONE TOWNSHIP ADVISORY BOARD SPECIAL MEETING FOR THE PURPOSE OF INFORMATION ON THE FORMATION OF A FIRE TERRITORY BETWEEN BOONE TOWNSHIP AND VAN BU-REN TOWNSHIP, ALL LOCATED IN MADISON COUNTY, STATE OF INDIANA
Notice is hereby given that the Advisory Board of Boone Township, Madison County, State of Indiana, will hold a special meeting at 5:00 pm, on Wednesday March 17, 2010, at the Van Burén Township Fire Department, located at 813 East Mill Street, Summitville, Indiana 46070, for the purpose of a public hearing on the creation of a Fire Territory between Van Burén Township, provider unit, and Boone Township, participating unit, Madison County, State of Indiana.
Further that the geographical description of the said Territory shall be the same as the combined geographical description of Van Burén Township, Boone Township and Duck Creek Township, Madison County, State of Indiana. The tax levy for the said territory shall be the same for the entire territory as well. Copies of the proposed Resolution will be available for public inspection at the meeting. The name and address of a representative of the Township who can be contacted for further information is Stephen W. Schuyler, 765 643 3300, 200 East 11th Street Suite 100, Anderson, IN 46106.
Dated February 25, 2010 Teresa Hiatt, Boone Township Trustee

(Cert. Admin. R. at 37.) The administrative record further provides that Van Bu-rén Township’s notice stated:

NOTICE OF VAN BUREN TOWNSHIP ADVISORY BOARD SPECIAL MEETING FOR THE PURPOSE OF INFORMATION ON THE FORMATION OF A FIRE TERRITORY BETWEEN BOONE TOWNSHIP, VAN BUREN TOWNSHIP AND DUCK CREEK TOWNSHIP, ALL LOCATED IN MADISON COUNTY, STATE OF INDIANA
Notice is hereby given that the Advisory Board of Van Burén Township, Madison County, State of Indiana, will hold a special meeting at 5:00 pm, on Wednesday March 17, 2010, at the Van Burén Township Fire Department, located at 813 East Mill Street, Summitville, Indiana 46070, for the purpose of a public hearing on the creation of a Fire Territory between Van Burén Township, Boone Township and Duck Creek Township, Madison County, State of Indiana. Further that the geographical description of the said Territory shall be the same as the combined geographical description of Van Burén Township, Boone Township and Duck Creek Township, Madison County, State of Indiana. The tax levy for the said territory shall be the same for the entire territory as well. Dated February 25, 2010 Harvey Stitt, Lafayette Township Trustee

(Cert. Admin. R. at 36.)

On March 24, 2010, after conducting their public hearing, the Townships presented a tax levy request to the DLGF for approval. On December 22, 2010, the DLGF issued a final determination denying the Townships’ levy request, stating that because the Van Burén Township notice did not comply with the statutory requirements of Indiana Code § 36-8-19-6, “no legal fire territory was created and thus the [DLGF] cannot grant the requested initial maximum levy.” (Cert. Admin. R. at 222.) The Townships subsequently requested the DLGF to set aside its final determination, but the DLGF rejected their request.

On April 7, 2011, the Townships initiated this original tax appeal. The Court conducted oral argument on October 18, 2011. Additional facts will be supplied when necessary.

STANDARD OF REVIEW

The Townships, in challenging the propriety of the DLGF’s final determination, bear the burden of demonstrating its invalidity. See Scopelite v. Indiana Dep’t of Local Gov’t Fin., 939 N.E.2d 1138, 1145 (Ind. Tax Ct.2010). Thus, they must demonstrate to the Court that the DLGF’s final determination is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence or in contravention of the law. See State Bd. of Tax Comm’rs v. Gatling Gun Club, Inc., 420 N.E.2d 1324, 1326-29 (Ind.Ct.App.1981) (discussing the limited nature of the scope of judicial review of administrative agency decisions in general), trans. denied. See also Scopelite, 939 N.E.2d at 1147; DeKalb Cnty. E. Cmty. Sch. Dist. v. Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260-61 (Ind. Tax Ct.2010); Clark-Pleasant Cmty. Sch. Corp. v. Dep’t of Local Gov’t Fin., 899 N.E.2d 762, 769 (Ind. Tax Ct.2008) (discussing the Court’s scope of judicial review in DLGF cases).

DISCUSSION AND DECISION

Fire protection territories are a means by which two or more contiguous jurisdictions may pool resources for the purpose of providing fire protection and prevention services. See Ind.Code § 36-8-19-5 (2010). The basic requirements for establishing a fire protection territory are set forth in the following relevant portions of Indiana Code § 36-8-19-6:

(a) To establish a fire protection territory, the legislative bodies of each unit desiring to become a part of the proposed territory must adopt an ordinance (if the unit is a county or municipality) or a resolution (if the unit is a township) that meets the following requirements:
(1) The ordinance or resolution is identical to the ordinances and resolutions adopted by the other units desiring to become a part of the proposed territory.
(2) The ordinance or resolution is adopted after January 1 but before April 1.
(3) The ordinance or resolution authorizes the unit to become a party to an agreement for the establishment of a fire protection territory.
(4) The ordinance or resolution is adopted after the legislative body holds a public hearing to receive public comment on the proposed ordinance or resolution. The legislative body must give notice of the hearing under IC 5-3-1.
(b) The notice required under this section shall include the following:
(1) A list of the provider unit and all participating units in the proposed territory.
(2) The date, time, and location of the hearing.
(3) The location where the public can inspect the proposed ordinance or resolution.
(4) A statement as to whether the proposed ordinance or resolution requires uniform tax rates or different tax rates within the territory.
(5) The name and telephone number of a representative of the unit who may be contacted for further information.

Ind.Code § 36-8-19-6(a), (b) (2010).

The Townships admit that Van Burén Township’s notice did not comply with Indiana Code § 36-8-19-6(b). Specifically, they admit that the Van Burén Township notice failed to designate: 1) which Township was the fire territory’s provider unit and which Township was the participating unit; 2) the location where the public could inspect the proposed resolution creating the fire territory; and 3) who could be contacted for further information and how. (Compare Oral Arg. Tr. at 11-13 with I.C. § 36 — 8—19—6(b)(1), (3), (5).) Moreover, they admit that the Van Burén Township notice erroneously included Duck Township and erroneously listed Harvey Stitt’s title as “Lafayette Township Trustee” instead of “Van Burén Township Trustee.” (See Oral Arg. Tr. at 10-11.) Even so, the Townships argue on appeal that the DLGF’s final determination denying their levy request was improper because a reasonable person would not have been misled by the Van Burén Township notice’s defects. The Townships assert that because “[t]he pair of notices were published on the same days in the same newspaper” and thus “when read together, they] contain[ed] all the information that [was] necessary” under Indiana Code § 36-8-19-6(b). (Pet’r Br. at 4; Oral Arg. Tr. at 8, 13.) (See also Pet’r Br. at 6 (stating that “[a]nyone who takes the time to read legal notices is more than likely going to read all [the] notices that relate to the same subject matter”); Pet’r Reply Br. at 2 (stating that “[t]he omissions and incorrect statements in the Van Burén [Township] notice were not fatal[ because t]hey were fully cured by the other publication”).)

Unfortunately for the Townships, the Court cannot determine whether there is any merit to their argument because the administrative record in this case is completely devoid of any evidence demonstrating that the two notices were in fact published on the same days in the same newspaper. (See Cert. Admin. R.; Oral Arg. Tr. at 13-14.) Accordingly, the Court cannot find the DLGF’s final determination was improper. The Townships’ request for relief is therefore denied.

CONCLUSION

For the foregoing reasons, the DLGF’s final determination in this matter is AFFIRMED.

      . The Townships were required to give notice of their public hearing under Indiana Code § 5-3-1. See Ind.Code § 36-8-19-6(a) (2010). Indiana Code § 5-3-1-2.3 provides that a notice "published in accordance with this chapter or any other Indiana statute is valid even though [it] contains errors or omissions, as long as ... a reasonable person would not be misled” thereby. Ind.Code § 5-3-i-2.3(a)(l) (2010).


text:
    In the Matter of Michael L. LIPSKY, Respondent.
    No. 71S00-1308-DI-538.
    Supreme Court of Indiana.
    June 12, 2014.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION

On October 28, 2013, pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Indiana Supreme Court Disciplinary Commission concerning a grievance, No. 13-1805, filed against Respondent. The Commission has now moved to convert Respondent’s suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission’s motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noncooperation with the disciplinary process. Accordingly, the Court concludes that Respondent’s suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; to the Disciplinary Commission; and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Paul K. OGDEN, Respondent.
    No. 49S00-1303-DI-183.
    Supreme Court of Indiana.
    June 16, 2014.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Robert W. York, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Procedural summary: The Commission filed a “Verified Complaint for Disciplinary Action” in two counts against Respondent on March 12, 2013. Respondent then filed a motion to dismiss Count 2, which the Court dismissed as proeedurally invalid, see Admis. Disc. R. 23(14)(a); a motion to remove the Commission from the ease and appoint a special prosecutor, which the Court denied; and a motion to disqualify the hearing officer, which the Court also denied. The hearing officer filed his report on December 30, 2013, and briefing is now complete. Respondent has filed a motion for oral argument, which we deny. The Court approves the hearing officer’s findings of the facts underlying the Commission’s charges, which are summarized in relevant part below.

Facts: Count 1. In 2005, an unsupervised estate (“Estate”) was opened for a decedent who was survived by a spouse and four adult children from a former marriage. One of the children was appointed as personal representative. Judge David H. Coleman was appointed as special judge in 2006. In 2008, Respondent entered his appearance for one of the other children (“Client”). In 2009, Respondent was successful in having Judge Coleman replaced pursuant to a Trial Rule 53.1 motion.

In 2010, Respondent engaged in correspondence with the children’s mother and later with Judge Coleman in which he made highly critical statements about Judge Coleman. Those statements can be summarized into the following categories:

(1)He alleged that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate by allowing it to be opened as an unsupervised estate, by appointing a personal representative with a conflict of interest, and by not requiring the posting of a bond.
(2) He alleged that Judge Coleman committed malfeasance in the subsequent administration of the Estate by, among other things, permitting misconduct by the personal representative, which resulted in dissipation of Estate assets.
(3) He alleged that Judge Coleman should have recused himself from the case because he was a friend of some members of the family, including the personal representative, and thus had a disqualifying conflict of interest.
(4) He alleged that Judge Coleman was unqualified as a judge and he engaged in judicial misconduct in presiding over the Estate.

Based on these statements, the Commission charges that Respondent violated Rule 8.2(a) of the Rules of Professional Conduct, which provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge....”

Count 2. The Hon. Patrick L. McCarty and other judges in Marion Superior Court, Civil Division, preside over cases in which law enforcement officials seek forfeiture of a criminal’s property in civil proceedings (“forfeiture cases”). On April 27, 2011, this Court issued an opinion which summarized how funds in civil forfeiture cases are to be distributed. See Serrano v. State, 946 N.E.2d 1139, 1141-42 (Ind.2011). On June 20, 2011, Respondent sent a letter personally addressed to Judge McCarty in which he requested the judge to ensure that forfeiture law, as summarized in Serrano, is followed and enforced. Respondent sent similar letters to other judges of the Marion Superior Court, Civil Division. Respondent also sent copies of his letter to the local prosecutor (who brings forfeiture cases as the plaintiff), to the state attorney general, and to the Marion County public safety director. At the time Respondent sent the letters to the judges, he did not represent any party in pending forfeiture cases.

The Commission charges that the letter to the judges was an improper attempt to influence the judges’ decisions in violation of Rule 8.4(d) of the Rules of Professional Conduct, which provides: “It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.... ”

Analysis: Count 1. To support a conclusion that Respondent violated Rule 8.2(a), there must be clear and convincing evidence that the statement at issue was false and that Respondent made the statement knowing it was false or "with reckless disregard regarding its truth or falsity. In a recent case involving an attorney’s freedom of speech challenge to charges under Rule 8.2(a), the Court adopted the following test for evaluating such statements: “Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made?” Matter of Dixon, 994 N.E.2d 1129, 1137 (Ind.2013) (emphasis added).

The Court concludes that the Commission has met its burden of proof regarding Respondent’s category (1) statements. Respondent’s repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time — a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for his category (1) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a).

The Court concludes, however, that the Commission has not met its burden of proof regarding Respondent’s statements in categories (2) through (4). While not suggesting that Judge Coleman committed malfeasance while presiding over the Estate, the Court concludes Respondent’s category (2) criticisms of Judge Coleman’s rulings fall within his broad First Amendment rights. And although Respondent’s category (3) allegations of a conflict of interest turned out to be false, Respondent based them on Client’s reports to him, which he believed, and thus were not made in reckless disregard of their truth or falsity. Finally, we conclude that Respondent’s category (4) statements were more in the nature of opinions as opposed to statements of fact.

Count 2. Respondent’s letter to Marion County judges requested them to follow forfeiture law as had been recently outlined by this Court. It was not an attempt to communicate with the judges about any particular case without the involvement of opposing parties. There is no allegation that Respondent misstated the law relating to forfeitures. Under these circumstances, we conclude that the Commission has not presented clear and convincing evidence that Respondent’s sending the letters to the Marion County judges was prejudicial to the administration of justice.

Mitigating and aggravating facts. The appropriate discipline in any case depends not just on the misconduct found, but also on mitigating and aggravating facts. See Matter of Newman, 958 N.E.2d 792, 800 (Ind.2011). In mitigation, we note that Respondent has no prior discipline. In aggravation, we find that during the course of this disciplinary proceeding, Respondent’s conduct has been obstreperous rather than cooperative.

Discipline: Although we have found misconduct only with respect to Respondent’s category (1) statements in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case. Respondent has suggested that any misconduct the Court finds should warrant no more than a 30-day suspension with automatic reinstatement. See Brief on Sanctions at 19. We impose discipline accordingly.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning August 5, 2014. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The Court assesses against Respondent one-half of the costs and expenses of this proceeding, including costs incurred by the Commission and payment for the services of the hearing officer. In addition, the Court assesses against Respondent a fee of two hundred fifty dollars ($250) payable to the Clerk. See Admis. Disc. R. 23(16). The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.