author: Barnes, Judge.

text:
    Andre TAYLOR, a/k/a Robert Davidson, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A04-1708-CR-1930
    Court of Appeals of Indiana.
    FILED May 4, 2018 Rehearing denied July 11, 2018
    Attorney for Appellant: Frederick Vaiana, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
   Barnes, Judge.

Case Summary

[1] Andre Taylor, a/k/a Robert Davidson, appeals his convictions for Level 2 felony burglary, Level 3 felony armed robbery, two counts of Level 3 felony criminal confinement, and the finding that he is an habitual offender. We affirm in part, reverse in part, and remand.

Issues

[2] The issues before us are:

I. whether the trial court properly admitted evidence recovered from Taylor's cell phone; and
II. whether his multiple convictions violate double jeopardy principles.

Facts

[3] In the early morning hours of January 10, 2015, Victor Villalobos was at his home in Indianapolis packing items to send to his family in Mexico. Villalobos's housemate Julian Altatenco also was there. Villalobos and Altatenco heard loud banging on the front and back doors. Villalobos looked through a window onto his front porch and saw a man with a gun. At that point Villalobos attempted to call 911 but was unable to complete the call before two men broke in through the back door, two men broke in through the front door, and one of them took his cell phone. At least two of the men were armed with guns, and they all were wearing masks. Two of the men forced Villalobos into a bedroom, and the other two men forced Altatenco into another room. The men attempted to tie Villalobos's and Altatenco's hands with zip ties, repeatedly punched them both, and demanded money from Villalobos. At first, Villalobos said he had no money. However, after one of the men pointed a gun at Villalobos's head and threatened to kill him, Villalobos told them there was $150 on a table, which one of the men took.

[4] One of Villalobos's neighbors called 911 and reported several men breaking into his residence. Indianapolis Metropolitan Police Officers Kevin Larussa, Michael Beatty, and Shiela McNeal responded to the call. When arriving on the scene, Officer Larussa saw a masked man dressed in black looking at him from the front window of Villalobos's house. The officers then heard someone yell "police," followed by running in the house. Officers Larussa and Beatty ran into the front of the house and saw two black men, one dressed in gray and the other in black, running out the back door. The man in black managed to scale a fence and run away. After that, a shot was fired toward Officer Larussa. Officer Larussa turned toward where the shot came from and saw the man in gray pointing a gun at him. Officer Larussa returned fire multiple times and hit the man in the leg. When the officers arrested the man, he gave his name as Robert Davidson rather than his actual name, Andre Taylor. The other three men involved in the burglary and robbery were Donte Jones, Dariel Dodd, and Quincy Stamps.

[5] Later that same day while searching the scene, officers found a cell phone in Villalobos's backyard, which was determined to belong to Jones. When Taylor was taken to the hospital for treatment of his gunshot wound, police seized his phone. A technician was able to determine that between January 8-10, 2015, there were thirty-six calls and six texts between these two phones. However, because there was a passcode lock on Taylor's phone, the technician was unable to access the content of any texts or data on the phone.

[6] A different technician, Detective Grant Melton, had received training in a method of acquiring data from a phone with a passcode that cannot be decoded. The technique, called "Chip-Off," involves first de-soldering and removing a phone's memory chip from the phone's circuit board, primarily by heating the board until the solder and epoxy connecting the chip to the board loosens. A technician can then place the memory chip into a standalone memory chip reader and retrieve the data from the chip. After performing the "Chip-Off" procedure on Taylor's phone, Detective Melton was able to read six text messages sent between Taylor and Jones between 9:55 and 10:05 p.m. on January 9, 2015. The texts were not highly revealing. Taylor first texted Jones, "You good bro," to which Jones responded, "Yup coming out n a min." Ex. 155. Taylor then wrote, "I think the boys out here," and Jones wrote, "Here I come." Id. Taylor replied, "K," followed several minutes later by "B***h come on." Id.

[7] The State charged Taylor with Level 2 felony burglary, Level 3 felony armed robbery, two counts of Level 3 felony criminal confinement, Level 4 felony unlawful possession of a firearm by a serious violent felon, and Level 5 felony attempted battery with a deadly weapon. The State also alleged that Taylor was an habitual offender. Before trial, Taylor filed a motion in limine to exclude evidence related to Detective Melton's examination of his cell phone, asserting that the "Chip-Off" investigation method was not established as reliable. The trial court denied this motion.

[8] A bifurcated jury trial was held on June 26-28, 2017. At the conclusion of the first part of trial, the jury found Taylor guilty of Level 2 felony burglary, Level 3 felony armed robbery, and two counts of Level 3 felony criminal confinement, but found him not guilty of attempted battery with a deadly weapon. Taylor then pled guilty to the habitual offender enhancement and, in exchange, the State dismissed the serious violent felon charge. The trial court entered judgments of convictions and sentences for all of the guilty findings and imposed an habitual offender sentence enhancement. Taylor now appeals.

Analysis

I. Admission of Evidence

[9] Taylor first contends the trial court erred in allowing Detective Melton to testify as to what he was able to recover from Taylor's phone by using the "Chip-Off" forensic technique. We will reverse a conviction based on an evidentiary ruling only if there has been an abuse of discretion resulting in prejudicial error. Williams v. State , 43 N.E.3d 578, 581 (Ind. 2015). "A trial court abuses its discretion when its ruling is either clearly against the logic and effect of the facts and circumstances before the court, or when the court misinterprets the law." Id.

[10] Taylor specifically argues that Detective Melton failed to meet the standard for the admission of expert scientific testimony under Indiana Evidence Rule 702. That rule provides:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

In adopting this rule, our supreme court did not intend to interpose an unnecessarily burdensome procedure or methodology for trial courts to apply when considering the admissibility of expert testimony. Sears Roebuck & Co. v. Manuilov , 742 N.E.2d 453, 460 (Ind. 2001). Rather, the rule was meant "to liberalize, rather than to constrict, the admission of reliable scientific evidence." Id.

[11] The proponent of expert scientific testimony bears the burden of establishing the foundation and reliability of the scientific principles underpinning such testimony pursuant to Evidence Rule 702(b). Sciaraffa v. State , 28 N.E.3d 351, 357 (Ind. Ct. App. 2015), trans. denied . Reliability may be established by judicial notice or by sufficient foundation to convince the court that the relevant scientific principles are reliable. Id. In determining reliability, courts may consider the following nonexclusive factors: (1) whether the technique has been or can be empirically tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error as well as the existence and maintenance of standards controlling the technique's operation; and (4) general acceptance within the relevant scientific community. Barnhart v. State , 15 N.E.3d 138, 144 (Ind. Ct. App. 2014).

[12] Here, Detective Melton testified regarding his extensive training in the field of cell phone forensics, which included 700 hours generally and forty hours specifically with respect to the "Chip-Off" technique. That technique has been in common use in the forensics community since 2014 or 2015 and has been the subject of empirical studies and peer review. The National Institute of Standards and Technology-part of the United States Department of Commerce-has established guidelines regarding use of the technique and other cell phone data recovery methods, as has an organization called the Scientific Working Group on Digital Evidence. Detective Melton has personally recovered data from approximately 800 cell phones and has used the "Chip-Off" method seventy-one times. He successfully recovered data on sixty-one of those occasions; the reasons he was not able to in the other ten cases were because the data was encrypted and "Chip-Off" cannot decrypt data or because the chip was damaged during the process of de-soldering and removal from the phone. Detective Melton was unaware of any case in which "Chip-Off" could result in the alteration of data on a phone memory chip as opposed to damaging or deleting such data.

[13] Despite this evidence, Taylor claims Detective Melton's foundational testimony was too vague and conclusory with respect to the degree of scientific acceptance of the "Chip-Off" method and that he likewise could not provide details on peer review and publication regarding the method. However, Taylor's argument presupposes that Detective Melton was presenting "scientific" evidence. The "specialized knowledge" mentioned in Evidence Rule 702(a) includes more than just scientific knowledge, and if knowledge is not "scientific," it need not be proven reliable by means of "scientific principles" under Evidence Rule 702(b). Lyons v. State , 976 N.E.2d 137, 142 (Ind. Ct. App. 2012) (citing Malinski v. State , 794 N.E.2d 1071, 1084 (Ind. 2003) ). "Rather, such evidence is governed only by the requirements of Rule 702(a), and any weaknesses or problems in the testimony go only to the weight of the testimony, not to its admissibility, and should be exposed through cross-examination and the presentation of contrary evidence." Id. (citing Turner v. State , 953 N.E.2d 1039, 1050 (Ind. 2011) ).

[14] We agree with the State that Detective Melton's expertise and testimony was not "scientific" in nature. Rather, it would more correctly be called "technical" or "specialized" knowledge. This court has identified mechanical engineering as "technical," not "scientific," knowledge. O'Banion v. Ford Motor Co. , 43 N.E.3d 635, 643 (Ind. Ct. App. 2015), trans. denied . The processes by which Detective Melton can recover data from cell phones is more akin to engineering than science. Detective Melton was not testifying about the quantum physics principles behind smartphone technology.

[15] As another court has put it:

Forensic investigation increasingly requires the use of computer software or other technological devices for the extraction of data. While an investigator must have specialized knowledge in the use of the particular software or device, it is not required-nor is it practical-for an investigator to have expertise in or knowledge about the underlying programming, mathematical formulas, or other innerworkings of the software.

State v. Pratt , 200 Vt. 64, 128 A.3d 883, 891-92 (2015). In Pratt , similar to here, the defendant had challenged the admissibility of a forensic technician's recovery of data from the defendant's cell phone on the basis that the technician's testimony regarding the scientific reliability of the recovery method was too conclusory and that he lacked knowledge of such things as the error rate of the program he used to recover the data. The Pratt court rejected this argument, noting in part, "The forensic expert's testimony is not about basic scientific principles, and he is not drawing inferences from the facts. He merely is explaining how he extracted the data from the cell phone and how he read that data-specialized knowledge that he acquired through his training and experience." Id. at 893. We reach the same conclusion here regarding Detective Melton's testimony. The trial court did not abuse its discretion in admitting this evidence.

[16] Furthermore, even if the evidence Detective Melton presented related to the "Chip-Off" method was erroneously admitted, any such error was harmless. In assessing whether an evidentiary error prejudiced a defendant, we consider the probable impact of the evidence on the jury in light of all the other properly-presented evidence. Williams , 43 N.E.3d at 581. "If the conviction is properly supported by other independent evidence of guilt, the error is harmless." Id.

[17] The most compelling evidence against Taylor was his apprehension in Villalobos's backyard immediately after the burglary and robbery, when he was shot by Officer Larussa after first shooting at the officer. The fact that there was ongoing, frequent communication between Taylor's phone and Jones's phone was established by evidence other than that acquired by the "Chip-Off" method. The "Chip-Off" method did reveal the contents of several texts between Taylor and Jones a few hours before the burglary, but there is no mention of any criminal activity in those texts. In sum, the additional evidence Detective Melton said he recovered from Taylor's phone was not very impactful in light of all the other evidence in this case and would have been harmless if it were erroneously admitted.

II. Double Jeopardy

[18] Taylor also contends that his convictions for Level 3 felony armed robbery and two counts of Level 3 felony criminal confinement must be vacated because of double jeopardy concerns and that only his conviction for Level 2 felony burglary may stand. Article 1, Section 14 of the Indiana Constitution provides, "No person shall be put in jeopardy twice for the same offense." Two or more offenses are the "same offense" in violation of the Indiana Double Jeopardy Clause if, " 'with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.' " Sistrunk v. State , 36 N.E.3d 1051, 1053 (Ind. 2015) (quoting Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999) ). The Richardson "actual evidence" test is not violated if the evidentiary facts used to establish the essential elements of one offense establish only one or even several, but not all, of the essential elements of a second offense. Spivey v. State , 761 N.E.2d 831, 833 (Ind. 2002).

[19] In addition to the constitutional test prescribed by Richardson , Indiana courts adhere to rules of statutory construction and common law that prohibit multiple convictions, as delineated in Justice Sullivan's concurring opinion in Richardson . Sistrunk , 36 N.E.3d at 1053-54. One of those rules prohibits "[c]onviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished." Richardson , 717 N.E.2d at 55 (Sullivan, J., concurring). An example of that rule's application is Wethington v. State , 560 N.E.2d 496, 508 (Ind. 1990), in which our supreme court vacated a confinement conviction because the confinement was coextensive with the behavior or harm necessary to establish an element of the defendant's robbery conviction. Id.

[20] Taylor first argues that he cannot be convicted of both burglary and robbery, the underlying felony he intended to commit when he broke and entered into Villalobos's home. However, Indiana courts have consistently held that double jeopardy principles do not prohibit convictions for both burglary and the felony the defendant intended to commit when breaking and entering. "[T]he criminal transgression of burglary is committed by a person intending to commit an underlying felony at the moment the building or structure is broken into and entered. The person's culpability is established at the point of entry regardless of whether the underlying intended felony is ever completed." Swaynie v. State , 762 N.E.2d 112, 114 (Ind. 2002). See also Lee v. State , 892 N.E.2d 1231, 1236-37 (Ind. 2008) (holding convictions for both burglary and attempted armed robbery did not constitute double jeopardy);

Pierce v. State , 761 N.E.2d 826, 830 (Ind. 2002) ("The taking of money supports the robbery and the breaking and entering supports the burglary, but neither is an element of the other crime."); Bunch v. State , 937 N.E.2d 839, 846 (Ind. Ct. App. 2010) (affirming convictions for both burglary and robbery "[b]ecause the burglary was complete before the robbery began"), trans. denied . Under this clear precedent, we find no double jeopardy concern with Taylor's convictions for both Level 2 felony burglary and Level 3 felony armed robbery.

[21] With respect to Taylor's convictions for criminal confinement, we do agree that they must be vacated. As noted, a confinement conviction may not stand if a defendant was convicted of a second offense that inherently required confinement of the victim and the confinement was no more extensive than necessary to carry out the other offense. Wethington , 560 N.E.2d at 508. See also Vanzandt v. State , 731 N.E.2d 450, 455 (Ind. Ct. App. 2000) (vacating confinement conviction where defendant also was convicted of robbery, which was effected by ordering victims to lie on floor and pointing a gun at them while taking money and obtaining access to getaway vehicle), trans. denied . Convictions for both confinement and a second offense, such as robbery, may both stand if there is evidence that confinement of a victim continued after a robbery was completed. See Merriweather v. State , 778 N.E.2d 449, 455-56 (Ind. Ct. App. 2002) (affirming convictions for both robbery and confinement where defendant ordered victim to empty cash registers, then continued holding her at gunpoint and ordered her to go to store manager's office).

[22] Here, we see no reasonable basis upon which to conclude that the confinement of Villalobos and Altatenco was any more extensive than necessary to carry out the robbery. As testified to by Villalobos and Altatenco, immediately after Taylor and his cohorts broke into the house, they forced them into separate rooms at gunpoint, put zip ties around their wrists, and then began beating them up. It was while Villalobos was being beaten that one of the men demanded money from him. When Villalobos at first said he had no money, one of the men pointed a gun at his head and threatened to kill him if he had no money. Villalobos then told them about the $150, which one of them took. Villalobos could not recall how long the incident took because "[e]verything happened so fast." Tr. Vol. II p. 116. He also said that the beating and confinement in the bedroom only ended when police arrived on the scene.

[23] Given this evidence, it is apparent that the confinement of both Villalobos and Altatenco was part and parcel of how Taylor and his cohorts accomplished the robbery. There was no evidence of any separate or significant length of confinement after the robbery was completed. And, this was not a protracted incident. As such, we conclude that Taylor's two convictions for Level 3 felony confinement must be vacated.

Conclusion

[24] The trial court properly allowed Detective Melton to testify about evidence he recovered from Taylor's phone by using the "Chip-Off" forensic technique; in any event, that evidence would have been harmless if it was erroneously admitted. Although Taylor's convictions for Level 2 felony burglary and Level 3 felony robbery do not violate double jeopardy principles, those principles require that we reverse and remand for the trial court to vacate his convictions for Level 3 felony confinement.

[25] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Pyle, J., concur.

      When arrested, the appellant told police his name was "Robert Davidson," but police soon learned that his true name is Andre Taylor. He does not dispute this fact, although most of the filings in this case at trial and on appeal, including the CCS and appellate docket, have listed the appellant's primary name as "Robert Davidson." However, two weeks after the initial charging in this case, the trial court granted the State's motion to amend the charging information to list the name as Andre Taylor a/k/a Robert Davidson. In this opinion, we will use Taylor's undisputed legal name throughout.

      We also note that the elevation of both Taylor's burglary and robbery convictions to higher levels of felonies based on the use of the same weapon presents no double jeopardy problem. See Miller v. State , 790 N.E.2d 437, 439 (Ind. 2003).


source: Caselaw Access Project

author: Darden, Senior Judge

license: Public Domain

text:
    Frances DEHOYOS, Appellant-Plaintiff, v. GOLDEN MANOR APARTMENTS, Appellee-Defendant.
    Court of Appeals Case No. 45A05-1711-CT-2721
    Court of Appeals of Indiana.
    FILED May 7, 2018
    Attorney for Appellant: Robert A. Plantz, Robert A. Plantz & Associates, LLC, Merrillville, Indiana
    Attorneys for Appellee: Kimberly P. Peil, Lauren K. Kroeger, Hoeppner Wagner & Evans LLP, Merrillville, Indiana
   Darden, Senior Judge

Statement of the Case

[1] Frances Dehoyos appeals the trial court's grant of summary judgment in favor of Golden Manor Apartments. We reverse and remand.

Issue

[2] Dehoyos raises one dispositive issue, which we restate as: whether the trial court erred in granting Golden Manor's motion for summary judgment.

Facts and Procedural History

[3] Golden Manor is a senior citizen living facility located in Hammond, Indiana. During the winter of 2013, Golden Manor's maintenance staff would generally arrive at work at 8:00 a.m. to inspect the parking lot and sidewalk for ice and snow. In its response to Dehoyos' interrogatories, Golden Manor indicated that its policy was to have staff also apply salt to sidewalks as needed. Golden Manor had also contracted with Meier Snow Plow Company to clear snow from the parking lot and to apply salt to sidewalks and the parking lot. However, under the terms of the contract, Meier performed ice melting applications only when directed by Golden Manor.

[4] Dehoyos lived at Golden Manor. Earlier, in 2013, she had experienced a situation wherein Golden Manor's management had failed to ensure that snow was removed from the sidewalks. As she walked toward the building, she found herself up to her ankles in icy snow. On that occasion, the building's manager helped her walk through the snow and ice. On other occasions, Dehoyos observed that Golden Manor's management failed to clean snow and ice off sidewalks "until late afternoon." Appellant's App. Vol. II, p. 49. She had also heard other residents complain about a lack of timeliness in clearing off ice and snow on the premises.

[5] On the morning of Sunday, December 29, 2013, there was snow on the ground, and it had been there for a few days. It was cold. Meier's workers had applied salt at Golden Manor over the previous several days. There is no evidence that Golden Manor's staff inspected the sidewalks or applied salt on the morning of December 29, 2013. Between 10:00 a.m. and 11:00 a.m., Dehoyos exited Golden Manor's building. The door she used opened onto a sidewalk that led to the parking lot. A portion of the building's downspout was located on top of the sidewalk.

[6] Dehoyos took approximately two steps onto the sidewalk and then slipped and fell on ice, striking her head. Although the sidewalk had initially appeared clear, there was a "glaze" of ice on it. Id. at 41, 46. Dehoyos bled from a cut on her head. She managed to return to her apartment and called her children, and was taken to the hospital. She also sustained an injured ankle. Further, after the fall Dehoyos began experiencing recurring headaches and neck pain.

[7] It appears from Golden Manor's phone records that Golden Manor called Meier shortly before 11:00 a.m. It further appears that Meier's employees went to Golden Manor shortly thereafter and again at approximately 3:30 p.m. that day and applied two bags of salt at some point during those visits. On the next day, December 30, 2013, Meier's workers returned to Golden Manor and spread six bags of salt on the sidewalks.

[8] On September 23, 2015, Dehoyos sued Golden Manor, alleging negligence arising from the icy condition of the premises. Golden Manor filed an answer, and the case progressed. Golden Manor took Dehoyos' deposition in January 2017. Next, Golden Manor filed a motion for summary judgment with a supporting memorandum of law and a designation of evidence. Dehoyos filed a response, a memorandum of law, and designation of materials, which included her affidavit.

[9] Golden Manor filed a reply. In addition, Golden Manor moved to strike a portion of Dehoyos' affidavit and a portion of Dehoyos' response to Golden Manor's motion for summary judgment. The trial court held oral argument, after which it granted Golden Manor's motion to strike. The trial court also granted Golden Manor's motion for summary judgment. The trial court concluded, "there is no dispute of material fact "that Golden Manor knew that a condition existed that created an unreasonable danger to DeHoyos [sic], or should have discovered the condition and its danger." Id. at 16. This appeal followed.

Discussion and Decision

[10] Dehoyos argues the trial court erred in concluding there were no disputes of material fact. She claims there is ample evidence Golden Manor knew or reasonably should have known of the ice on which she fell and failed to take reasonable steps to protect her against that danger.

[11] We review summary judgment de novo, applying the same standard as the trial court. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment is appropriate "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). We construe the evidence in favor of the nonmovant and resolve all doubts against the moving party. Pfenning v. Lineman , 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The party moving for summary judgment bears the initial burden to establish its entitlement to summary judgment. Id. at 396-97. Only then does the burden fall upon the nonmoving party to set forth specific facts demonstrating a genuine issue for trial. Id. at 397 (quotation omitted).

[12] The summary judgment process is not a summary trial. Hughley , 15 N.E.3d at 1003-04. Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at 1004. Further, summary judgment is rarely appropriate in negligence cases because such cases are particularly fact-sensitive and are governed by a standard of the objective reasonable person, which is best applied by a jury after hearing all the evidence. Kramer v. Catholic Charities of Diocese of Fort Wayne-South Bend, Inc. , 32 N.E.3d 227, 231 (Ind. 2015). Nevertheless, a grant of summary judgment is clothed with a presumption of validity, and the appellant bears the burden of demonstrating that the trial court erred. Id. (quotation omitted).

[13] Dehoyos' premises liability claim against Golden Manor is grounded in negligence. To recover on a negligence claim, a plaintiff must establish: (1) a duty owed by the defendant to the plaintiff; (2)

a breach of that duty; and (3) injury to the plaintiff resulting from the defendant's breach. Miller v. Rosehill Hotels, LLC , 45 N.E.3d 15, 19 (Ind. Ct. App. 2015).

[14] In Indiana, a person entering onto the land of another is an invitee, a licensee, or a trespasser, and the entrant's status on the land determines the duty that the landowner owes to said person. Burrell v. Meads , 569 N.E.2d 637, 639 (Ind. 1991). The parties do not dispute that Dehoyos was an invitee of Golden Manor because she resided on its property. A property owner has a duty to maintain its property in a reasonably safe condition for business invitees. Miller , 45 N.E.3d at 20. Liability for breach of the duty to maintain property is established as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Id. at 20 (quoting Restatement (Second) of Torts § 343 ). " '[T]he duty of reasonable care owed by an inviter to an invitee should in no way be diminished by the presence of natural accumulations of ice and snow.' " Henderson v. Reid Hosp. and Healthcare Servs. , 17 N.E.3d 311, 316 (Ind. Ct. App. 2014) (quoting Poe v. Tate , 161 Ind. App. 212, 215, 315 N.E.2d 392, 394 (1974) ), trans. denied .

[15] The key question is whether Golden Manor breached its duty to Dehoyos to maintain its property in a reasonably safe condition. Whether an act or omission is a breach of duty is generally a question of fact for a jury. N. Ind. Pub. Serv. Co. v. Sharp , 790 N.E.2d 462, 466 (Ind. 2003). It is a question of law only if the facts are undisputed and a single inference can be drawn from those facts. Id.

[16] The Court has previously addressed premises liability cases involving invitees who fell on snow and ice. In the Miller case, Miller was staying at a motel and went outside to get in her car. 45 N.E.3d at 16. She saw snow on the ground, and the parking lot was icy. Miller walked to her car via a salted sidewalk and decided to move her car closer to the motel. Next, Miller got out of her car, and she fell as she stepped onto a slick curb. She sued, claiming negligence based on premises liability. The motel prevailed on summary judgment at the trial court, but the Court reversed. The Court concluded there were disputes of material fact as to whether the motel should have anticipated that an invitee such as Miller would walk in the parking lot and on sidewalks despite the risk of danger. Further, the Court determined there were disputes as to whether the motel knew or reasonably should have known that the sidewalk was unsafe.

[17] Similarly, in the Henderson case, a hospital's maintenance staff was notified early one winter morning that slick patches were present in the parking lot. 17 N.E.3d at 313-14. They assembled a crew, who spread salt on the hospital's parking lots and sidewalks. Henderson parked in the hospital's lot and slipped on a patch of ice as she got out of her car, falling to the ground. Security personnel later notified the maintenance staff that the parking lot was insufficiently salted. The trial court granted summary judgment to the hospital, but the Court reversed. The Court concluded there were disputes of material fact as to whether the hospital acted reasonably in response to the ice on its property as to invitees.

[18] In Christmas v. Kindred Nursing Ctrs. Ltd. P'ship , 952 N.E.2d 872 (Ind. Ct. App. 2011), Christmas visited a physical rehabilitation center. He walked through snow and water in a parking lot and then stepped onto a sidewalk that appeared to be covered in water. The substance was actually ice, and Christmas slipped and fell. He had noticed salt on the ground next to the area where he fell. The trial court granted summary judgment to the center, but the Court reversed. Among other conclusions, the Court determined there were genuine disputes of material fact as to whether the rehabilitation center knew or reasonably should have known of the condition and the harm it posed to invitees and failed to exercise reasonable care to protect against the danger.

[19] Also in 2011, the Court issued a decision in Bell v. Grandville Coop., Inc. , 950 N.E.2d 747 (Ind. 2011). In that case, in February 2007 Bell was babysitting her grandchild at an apartment complex. There were piles of snow in the parking lot that had melted and refrozen over the past few days, and on the morning at issue the complex's maintenance staff had placed ice melt around the complex. Bell's daughter, who lived in the complex, had previously informed the complex's managers that ice tended to form in the parking lot outside her building. As Bell walked to her car, she slipped and fell on the ice, suffering injuries. The trial court granted summary judgment to the apartment complex, but the Court reversed. The Court concluded there was a dispute of material fact as to whether the complex knew or should have known of the threat of ice to invitees and took reasonable steps to address it.

[20] By contrast, in Orth v. Smedley , 177 Ind. App. 90, 378 N.E.2d 20 (1978), a panel of the Court affirmed the trial court's grant of summary judgment to a landlord in a renter's action for premises liability. The renter, Orth, left her apartment at 6:00 a.m. on a day in January. It had rained the night before, and the rain had frozen into ice. Orth slipped and fell on an icy patch of driveway, breaking her arm. She saw the ice before stepping on it but was trying to reach a car where her coworker was waiting. The landlords did not wake up until 7:30 a.m. The Court concluded there was no dispute of material fact as to whether the landlords had actual or constructive knowledge of the danger the ice posed to invitees because the landlords had not yet woken up and were unaware it had stormed and then frozen the night before.

[21] To summarize, in the Henderson , Christmas , and Bell cases, the Court took note of evidence that employees and contractors of the defendants had been aware of icy and snowy ground and tried to address it, thus giving rise to disputes of material fact as to whether: (1) the defendants were aware or reasonably should have been aware of the danger; and (2) took reasonable steps to correct it. By contrast, in the Orth case the property owners were asleep when ice formed at their property, and there was no dispute of material fact as to whether the property owners reasonably should have been aware of the danger to their invitee.

[22] The current case more closely resembles the Miller , Henderson , Christmas , and Bell cases rather than the Orth case. Golden Manor does not dispute the fact that it operated a senior citizen living center and had contracted with Meier Snow Plow Company to clear snow from the building's parking lot and to apply salt on its sidewalks only as directed by Golden Manor. Earlier in 2013, Dehoyos alleges that she had encountered trouble with ice and snow, and the building's manager had assisted her in walking through a dangerous area. In addition, she alleges that she had noticed inadequate efforts to remove ice and snow at the building. At times, snow and ice was not removed until the afternoon. In addition, Dehoyos claimed she had heard complaints from others on that topic.

[23] On the morning of December 29, 2013, snow remained on the ground at Golden Manor and had been there for several days. Meier employees had applied salt to Golden Manor sidewalks over the past several days. Between 10 a.m. and 11 a.m. on December 29, Dehoyos fell on a sidewalk that initially looked safe but had a glaze of ice on it. Dehoyos' inability to see the ice further distinguishes this case from the Orth case, where the plaintiff saw the ice but chose to walk on it anyway.

[24] The record indicates that shortly before 11:00 a.m., Golden Manor called Meier. Afterwards, Meier's employees went to Golden Manor twice that day, and apparently spread two bags of salt on the sidewalk during their visits. On the next day, December 30, Meier spread six bags of salt on the sidewalks.

[25] We conclude from the foregoing evidence that there are disputes of material fact as to whether Golden Manor knew or reasonably should have known on the morning of December 29, 2013, of the risk posed by ice on the sidewalk where and before Dehoyos fell and whether Golden Manor took reasonable care to address the risk.

[26] Golden Manor argues Dehoyos has failed to provide any evidence showing when the ice formed, speculating that it could have formed after Golden Manor's building staff was supposed to have inspected the property in the morning. Golden Manor points to no evidence that its staff did, in fact, inspect the sidewalks before 10:00 a.m. the morning of December 29, 2013. It is undisputed that cold winter conditions existed at the time of the incident and that snow had been present at Golden Manor for several days. Further, Dehoyos testified in her deposition that it was cold outside and had been for several days. Given this evidence, and Golden Manor's failure to point to any evidence of drastic weather changes on the morning of December 29, one could reasonably infer that the ice formed prior to Dehoyos' slip and fall on the morning of December 29. Dehoyos has carried her burden of demonstrating error in the trial court's grant of summary judgment.

[27] Dehoyos also argues the trial court erred in granting Golden Manor's motion to strike, but we do not need to address that issue. There is other evidence in the record that amply establishes disputes of material fact, and we do not need to consider the statements that Golden Manor moved to strike.

Conclusion

[28] For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings.

[29] Reversed and remanded.

[30] Baker, J., and Altice, J., concur.


author: Bailey, Judge.

text:
    Jerold W. LEATHERMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 47A04-1711-CR-2711
    Court of Appeals of Indiana.
    FILED May 9, 2018 As Corrected August 24, 2018
    Attorney for Appellant: Jennifer G. Schlegelmilch, Lawrence County Public Defender Agency, Bedford, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Evan Matthew Comer, Deputy Attorney General, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] Jerold W. Leatherman ("Leatherman") appeals his convictions for maintaining a common nuisance, a Level 6 felony, and possession of paraphernalia, as a Class C misdemeanor.

[2] We affirm in part and reverse in part.

Issues

[3] Leatherman raises the following two issues:

I. Whether the State provided sufficient evidence to support his conviction for maintaining a common nuisance.
II. Whether the State provided sufficient evidence to support his conviction for possession of paraphernalia.

Facts and Procedural History

[4] On February 27, 2017, Sergeant Justin Dodd ("Sgt. Dodd") of the Bedford Police Department and Detective Chris Roberts ("Det. Roberts") of the Lawrence County Sheriff's Department were investigating a tip regarding possible drug dealing and prostitution near Frank Street in Mitchell, Indiana. While patrolling the area in an unmarked vehicle, the two officers saw Leatherman, who was driving a van that had been parked alongside the road, drive a short distance to another home on nearby Meridian Street. A man exited the house and approached Leatherman's van. Leatherman then backed out of the driveway and parked his van alongside the road on Frank Street.

[5] As Det. Roberts, who was driving the officers' vehicle, drove past Leatherman's van on the driver's side, Leatherman opened the driver's side door and nearly struck the officers' vehicle. Det. Roberts stopped the vehicle and, as he approached Leatherman's vehicle, he instructed Leatherman to "be a little more careful" about opening his car door. Tr. Vol. II at 71-72. In accordance with safety protocol, Sgt. Dodd also exited the truck and approached Leatherman's van on the passenger's side. When he crossed behind the van, Sgt. Dodd saw Leatherman pass a small bag to the female passenger, Heather Ditton ("Ditton"), who was sitting in the front seat. Sgt. Dodd then saw Ditton pull out the elastic waistband of her pants and place the baggie inside her vagina.

[6] Sgt. Dodd knocked on the passenger window of the van and asked Ditton, "Are you done shoving that?" Id. at 96, 103. Ditton responded, "I'm on my period and I don't have tampons, it's napkins[,] I swear." Id. at 103. Sgt. Dodd escorted Ditton from the van and Ditton removed the bag from her vagina. Sgt. Dodd observed that the bag contained a white crystal substance, which was later confirmed by lab testing to be methamphetamine.

[7] After Ditton turned over the bag of methamphetamine to Sgt. Dodd, Det. Roberts ordered Leatherman to exit the van. Det. Roberts conducted a pat down of Leatherman and discovered two syringes hidden in Leatherman's pockets. Leatherman informed Det. Roberts that the syringes were from the Lawrence County Needle Exchange Program in which Leatherman participated. Det. Roberts, "a drug recognition specialist," saw that the syringes contained a liquid residue and had grey caps that indicated that they were from the needle exchange program. Tr. Vol. II at 68.

[8] The officers placed both Leatherman and Ditton in handcuffs and called a drug-sniffing dog to the scene. While sniffing the perimeter of Leatherman's van, the dog gave a positive alert for narcotics three times. The officer conducting the dog sniff observed a syringe sitting on the dashboard underneath a cellular phone. A subsequent search of the vehicle revealed the presence of an additional syringe that had been hidden inside a purse located on the passenger side of the vehicle.

[9] On March 1, 2017, the State charged Leatherman with Count I, maintaining a common nuisance, a Level 6 felony; Count II, possession of methamphetamine, as a Level 6 felony; and Count III, possession of paraphernalia, as a Class C misdemeanor. On April 17, 2017, the State filed an amended information, which included a habitual offender sentence enhancement. Following Leatherman's May 24 jury trial, the jury found Leatherman guilty on all three counts. Leatherman admitted to his status as a habitual offender. At a sentencing hearing conducted on August 22, Leatherman was sentenced to two years for Count I, two years for Count II, and 60 days for Count III, with the sentences for Counts I and II to run concurrently with no time suspended. One count was enhanced by three years due to Leatherman's habitual offender status. This appeal ensued.

Discussion and Decision

Standard of Review

[10] Leatherman challenges the sufficiency of the evidence to support his convictions for maintaining a common nuisance, as a Level 6 felony, and possessing paraphernalia, as a Class C misdemeanor. Our standard of review of the sufficiency of the evidence is well-settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Clemons v. State , 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied . Moreover, "[a] conviction may be based on circumstantial evidence alone so long as there are reasonable inferences enabling the factfinder to find the defendant guilty beyond a reasonable doubt." Lawrence v. State , 959 N.E.2d 385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied .

Sufficiency of the Evidence-Maintaining a Common Nuisance

[11] To support Leatherman's conviction for maintaining a common nuisance, the State was required to prove that Leatherman knowingly or intentionally maintained a vehicle to unlawfully use, manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a controlled substance. I.C. § 35-45-1-5(a) and (c). The word "maintain," as used in that statute, does not require that the defendant actually own the vehicle; rather, a defendant "maintains" a vehicle when he exerts control over it. E.g. , Mack v. State , 23 N.E.3d 742, 758 (Ind. Ct. App. 2014), trans. denied .

[12] At trial, the State provided evidence that Leatherman exerted control over the van he was driving, although the van was actually owned by his cousin. The State also provided evidence that, while in the van, Leatherman not only possessed a controlled substance himself, but also handed a bag of methamphetamine to Ditton. Sgt. Dodd testified that he personally witnessed that exchange of the drugs. That was sufficient evidence that Leatherman used the van to unlawfully "deliver" a controlled substance. I.C. § 35-45-1-5(a)(3)(G).

[13] Lovitt v. State , 915 N.E.2d 1040 (Ind. Ct. App. 2009), cited by both parties, is consistent with our holding. In Lovitt , a panel of this court held that the legislature did not intend for the "maintaining a common nuisance" statute to apply to "an offender who has personal use quantities of controlled substance(s) on his or her person or even loose in the vehicle." Id. at 1045. Rather, we held that the statute is intended to apply to "an offender who uses his or her vehicle to facilitate ... delivery ... of a controlled substance." Id. The State provided sufficient evidence that Leatherman is just such an offender.

[14] However, to prove the nuisance was a "common" nuisance, the State must provide evidence that the vehicle was used on more than one occasion for the unlawful delivery of a controlled substance. See Zuniga v. State , 815 N.E.2d 197, 200 (Ind. Ct. App. 2004) (holding "the term 'common nuisance' as used in the statute requires proof of a continuous or recurrent violation"). This requirement is apparent from the judicial and legislative history of the crime of maintaining a common nuisance. In Wells v. State , the court described what constitutes a common nuisance, and explained that inherent in this classification is "a notion of continuous or recurrent violation.... The words 'maintains' and 'maintaining' denote continuous or recurrent acts approaching permanence." 170 Ind.App. 29, 351 N.E.2d 43, 46 (1976). The court held that, for the purposes of maintaining or visiting a common nuisance, the statute "requires a showing of more than an isolated or casual instance of the prohibited activity." Id. at 47.

[15] In 1998, however, the General Assembly amended the common nuisance statute and added introductory language stating: "A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times ..." I.C. § 35-48-4-13(b) (2008) (emphasis added). Under the 2008 version of the statute, there was no requirement for ongoing instances of prohibited activity; as the Seventh Circuit noted in Wheeler v. Lawson , the 2008 version of the statute abrogated Wells . 539 F.3d 629, 635 n.7 (7th Cir. 2008).

[16] The "one or more times" language remained in the statute for several years, until the statute was again updated in Indiana Code Section 35-45-1-5 (2016) to remove that language. 2016 Legis. Serv. P.L. 59-2016, §§ 7, 8. The 2016 amendment of the statute is significant in that it evinces a conscious desire on the part of our Legislature that the common nuisance statute not be applied to isolated instances of prohibited activity. As our Supreme Court has noted,

We have stated on numerous occasions that [a] fundamental rule of statutory construction is that an amendment changing a prior statute indicates a legislative intention that the meaning of the statute has changed. We have also relied on a rule of statutory construction to the effect that when language from an earlier version of a statute is deleted, the Legislature intended to change the law by removing that language.

State v. Boles , 810 N.E.2d 1016, 1019 (Ind. 2004) (quotations and citations omitted). Moreover, when construing a statute, we presume that the legislature had "in mind the history of the act and the decisions of the courts upon the subject matter of the legislation being construed." Reynolds v. Dewees , 797 N.E.2d 798, 800 (Ind. Ct. App. 2003).

[17] Here, it is clear that the legislature intended by the removal of the "one or more times" language to restore the prior common law and statutory requirement that a common nuisance is one in which continuous or recurrent prohibited activity takes place. I.C. § 35-45-5-1(a), (c). Because the State failed to provide evidence that the vehicle Leatherman drove had been used on multiple occasions for the delivery of a controlled substance, the State failed to provide sufficient evidence to support Leatherman's conviction of maintaining a common nuisance. We must reverse that conviction.

Sufficiency of the Evidence-Possession of Paraphernalia

[18] To support Leatherman's conviction for possession of paraphernalia as a Class C misdemeanor, the State was required to prove that Leatherman knowingly or intentionally possessed an instrument, device, or other object that he intended to use for introducing into his body a controlled substance. I.C. § 35-48-4-8.3(b)(1). The State provided evidence that Leatherman had been in possession of a bag of methamphetamine, that he handed that bag to Ditton, that the substance in the bag tested positive for methamphetamine, that Leatherman was in possession of two syringes that contained an unidentified liquid, and that two other syringes were located in the vehicle.

[19] Intent to introduce a controlled substance into one's body may be inferred from circumstantial evidence. E.g. , Halsema v. State , 823 N.E.2d 668, 673 n.1 (Ind. 2005). And "this Court has held that the simultaneous possession of an illegal drug and an instrument for administering that particular illegal drug is sufficient to establish the intent" to use the instrument to introduce drugs into the body. Berkhardt v. State , 82 N.E.3d 313, 318 (Ind. Ct. App. 2017) (citing McConnell v. State , 540 N.E.2d 100, 103 (Ind. Ct. App. 1989) ); see also Perkins v. State , 57 N.E.3d 861, 866 (Ind. Ct. App. 2016) (finding sufficient evidence of possession of paraphernalia where unused syringes were found in the same container as a bottle cap that contained a controlled substance).

[20] Here, the State provided evidence that Leatherman had possessed methamphetamine and delivered it to Ditton, and Det. Roberts testified that he found two used syringes on Leatherman's person. And, although the State did not provide evidence regarding what liquid was in the syringes, such evidence was not necessary. Rather, evidence of possession of even a small amount of a controlled substance-such as the bag of methamphetamine-together with possession of paraphernalia that can be used to introduce the controlled substance into the body provides sufficient circumstantial evidence of the intent to use the paraphernalia. Perkins , 57 N.E.3d at 864-65.

[21] However, Leatherman contends that his conviction for possession of paraphernalia must be reversed because he had "legal authority" to possess the syringes under the local needle exchange program. In support, he cites Indiana Code Section 35-41-3-1, which provides that "[a] person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so." But Leatherman raises that argument for the first time on appeal; therefore, it is waived. Moreover, he has failed to show that the conviction was obtained because of fundamental error.

[22] It is well-established that we generally will not address an argument that was not raised in the trial court and is raised for the first time on appeal.

[A] trial court cannot be found to have erred as to an issue or argument that it never had an opportunity to consider. Accordingly, as a general rule, a party may not present an argument or issue on appeal unless the party raised that argument or issue before the trial court. Marshall v. State , 621 N.E.2d 308, 314 (Ind. 1993). In such circumstances the argument is waived. Id.

Washington v. State , 808 N.E.2d 617, 625 (Ind. 2004). Here, Leatherman did not raise a "legal authority" argument below. Therefore, he has waived our consideration of his argument on appeal.

[23] In an effort to avoid waiver, Leatherman raises a cursory allegation that his conviction of possession of paraphernalia was obtained due to fundamental error. As this court has routinely stated, merely calling an error fundamental does not make it so. See, e.g. , Taylor v. State , 614 N.E.2d 944, 947 (Ind. Ct. App. 1993), trans. denied . Rather, in order to be fundamental, the error must be so prejudicial to the rights of the defendant that he could not have received a fair trial. Id. We have also characterized fundamental error as error that constitutes a clear, blatant violation of basic and elementary principles, and that causes or could cause substantial harm. Id.

[24] Here, waiver notwithstanding, we nevertheless choose to address Leatherman's claim that it was fundamental error to not recognize his "legal authority" defense. The statute providing for the creation of needle exchange programs was not intended to-and does not-confer upon its participants immunity from prosecution for possession of paraphernalia. The goal of statutory interpretation is to discern and further the intent of the legislature, and the best evidence of legislative intent is the language of the statute itself. E.g., Doe 1 v. Boone Cty. Prosecutor , 85 N.E.3d 902, 908 (Ind. Ct. App. 2017). If the language of a statute is clear and unambiguous, we simply apply the statute's plain and ordinary meaning, heeding both what the statute says and what it does not say. Id. As a matter of statutory interpretation, "we will not ordinarily read requirements into clear and unambiguous statutes that are not there." Tibbs v. State , 86 N.E.3d 401, 405 (Ind. Ct. App. 2017), trans. denied .

[25] Chapter 7.5 of Title 16, Article 41, governs the establishment of needle exchange programs in Indiana. Indiana Code Section 16-41-7.5-5 (2017) allows a county to establish a needle exchange program if:

(A) There is an epidemic of hepatitis C or HIV.
(B) [T]he primary mode of transmission of hepatitis C or HIV in the county is through intravenous drug use.
(C) [A] syringe exchange program is medically appropriate as part of a comprehensive public health response.

Furthermore, a "law enforcement officer may not stop, search, or seize an individual based on the fact the individual has attended a program under this chapter." I.C. § 16-41-7.5-9(a). And the "fact an individual has attended a program under this chapter may not be the basis, in whole or in part, for a determination of probable cause or reasonable suspicion by a law enforcement officer." I.C. § 16-41-7.5-9(b).

[26] Nowhere in the Chapter on needle exchange programs does the legislature evince an intent to carve out an exception to the crime of possession of paraphernalia under Indiana Code Section 35-48-4-8.3(b)(1). Rather, it is apparent that Section 16-41-7.5-9 protects the means by which individuals in counties with certain disease epidemics obtain hypodermic syringes. It does so by prohibiting mere possession of a needle obtained through the program or attendance at the program as bases for arrest or prosecution. Nothing in the language of the statute purports to condone unlawful conduct that transpires after an individual has obtained a needle from the exchange program. Thus, while Leatherman could not be prosecuted for obtaining hypodermic needles from a needle exchange or participating in a needle exchange program, he could be found guilty of possession of paraphernalia if there was evidence that he intended to use those syringes for unlawful ends. The State provided sufficient evidence of Leatherman's intent to do just that. Therefore, we affirm his conviction for possession of paraphernalia, as a Class C misdemeanor.

Conclusion

[27] The State provided sufficient evidence to support Leatherman's conviction of possession of paraphernalia, as a Class C misdemeanor, and we affirm that conviction. However, the State failed to provide sufficient evidence that the vehicle Leatherman drove had been used on multiple occasions for the delivery of a controlled substance, which was an essential element of the crime of maintaining a common nuisance. Therefore, we reverse his conviction for that crime.

[28] Affirmed in part, reversed in part.

Crone, J., and Brown, J., concur.

      Ind. Code § 35-45-1-5 (2017).

      I.C. § 35-48-4-8.3.

      I.C. § 35-48-4-6.1. Leatherman does not challenge his conviction for that charge.

      We disagree with Leatherman's assertion that defense counsel's passing remarks in closing argument suggesting that Leatherman had obtained the needles from the needle exchange program sufficiently raised the "legal authority" argument.

      Leatherman's brief assumes that he raised the legal authority argument below, and raises the idea of "fundamental error" only in passing. Appellant's Br. at 12-17. And Leatherman did not address the legal authority assertion at all in his reply brief.


author: WENTWORTH, J.

text:
    NOVA TUBE INDIANA II LLC, Petitioner, v. CLARK COUNTY ASSESSOR, Respondent.
    Cause No. 49T10-1708-TA-00013
    Tax Court of Indiana.
    FILED May 18, 2018
    ATTORNEYS FOR PETITIONER: BRENT A. AUBERRY, BENJAMIN A. BLAIR, FAEGRE BAKER DANIELS LLP, Indianapolis, IN
    ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR., ATTORNEY GENERAL OF INDIANA, BENJAMIN J. LEGGE, WINSTON LIN, ALEKSANDRINA P. PRATT, DEPUTY ATTORNEYS GENERAL, Indianapolis, IN
   WENTWORTH, J.

Nova Tube Indiana II, LLC appeals the Indiana Board of Tax Review's final determination, which upheld the assessments of its real property for the 2011, 2012, and 2013 tax years. Upon review, the Court reverses the Indiana Board's final determination.

FACTS AND PROCEDURAL HISTORY

During the years at issue, Nova Tube owned two parcels of land in Clark County, Jeffersonville, Indiana. (See Cert. Admin. R. at 451-59.) Together, the parcels were comprised of 29.1 acres of land with rail spurs that provided access to the nearby railroad and a 109,443 square foot industrial warehouse. (See Cert. Admin. R. at 195, 215, 616-17, 622-624.)

In 2010, the property was assessed at $2,245,900. (See Cert. Admin. R. at 452, 459.) In 2011, however, the Clark County Assessor increased the property's assessment by over 50%, assigning it a total assessed value of $4,653,100. (See Cert. Admin. R. at 452, 459, 522.) Over the next two years, the property's assessments increased incrementally, with it being assessed at $4,767,200 in 2012 and $4,767,300 in 2013. (See Cert. Admin. R. at 522-23.)

On October 3, 2013, Nova Tube appealed its assessments for the years at issue to the Clark County Property Tax Assessment Board of Appeals (the PTABOA). In May of 2014, while the appeals were still pending with the PTABOA, Nova Tube sold the property to the Port of Indiana for $6,125,000. (See Cert. Admin. R. at 650-54.) The PTABOA subsequently affirmed all three of Nova Tube's assessments.

Nova Tube appealed the PTABOA's determinations to the Indiana Board on July 18, 2014. After conducting a hearing on the appeals, the Indiana Board issued a final determination in the matter on June 30, 2017. In that final determination, the Indiana Board explained that with respect to the 2011 appeal, the Assessor bore the burden of proving that the assessment increase was correct under Indiana Code § 6-1.1-15-17.2. (See Cert. Admin. R. at 97-98 ¶ 36.) The Indiana Board then determined that the Assessor met her burden because the evidence that the property was sold in a "market value" transaction in May 2014 and that the market was relatively stable during the years at issue supported her assessment values. (See Cert. Admin. R. at 97 ¶¶ 34-35, 99-102 ¶¶ 41-46.) Consequently, the burden shifted to Nova Tube to rebut the Assessor's prima facie case. (See Cert. Admin. R. at 101-02 ¶ 46.)

In its rebuttal presentation, Nova Tube asserted that the May 2014 sale was not a market value transaction because the buyer, the Port of Indiana, was atypically motivated given that it was a government entity that already owned "the vast majority of the land in that area[,]" including land adjacent to Nova Tube's property. (See Cert. Admin. R. at 100-01 ¶ 43, 651-57.) Nova Tube also asserted that the Assessor had admitted that the May 2014 sales price did not actually reflect the property's market value-in-use because the property record cards stated that the sale was "invalid." (See, e.g., Cert. Admin. R. at 596-601, 656-57.) Finally, Nova Tube presented an appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP), that valued the property at $2,900,000 for 2011. (See, e.g., Cert. Admin. R. at 194-280, 561-62, 644-806.)

The Indiana Board weighed the competing evidence and determined that Nova Tube did not persuasively rebut the Assessor's prima facie case, explaining that the lack of support for certain adjustments and valuations in Nova Tube's 2011 appraisal, particularly the land valuations, had diminished its probative value. (See Cert. Admin. R. at 102-03 ¶¶ 47-53.) Consequently, the Indiana Board upheld the property's 2011 assessment of $4,653,100. (See Cert. Admin. R. at 100-05 ¶¶ 43-46, 54-57.)

With respect to Nova Tube's 2012 and 2013 appeals, the Indiana Board did not state which party bore the burden of proof; rather, it stated that the Assessor had made a prima facie case for 2012 and 2013 by using the same evidence offered to support her 2011 assessment. (See Cert. Admin. R. at 101-02 ¶ 46.) The Indiana Board determined that Nova Tube's 2012 and 2013 appraisals, which valued the property at $3,000,000 for 2012 and $3,100,000 for 2013, did not persuasively rebut the Assessor's prima facie case because they suffered from the same infirmities as its 2011 appraisal. (See Cert. Admin. R. at 101-04 ¶¶ 46-53, 55.) (See also Cert. Admin. R. at 836-37, 859-60.) Accordingly, the Indiana Board also upheld the property's 2012 assessment of $4,767,200 as well as its 2013 assessment of $4,767,300. (See Cert. Admin. R. at 104-05 ¶ 57.)

On July 17, 2017, Nova Tube filed a Request for Rehearing. (See Cert. Admin. R. at 106-17.) On July 31, 2017, the Indiana Board denied Nova Tube's Request for Rehearing. (See Cert. Admin. R. at 123-26.)

On August 11, 2017, Nova Tube initiated this original tax appeal. The Court heard oral argument on February 14, 2018. Additional facts will be supplied if necessary.

STANDARD OF REVIEW

The party seeking to overturn a final determination of the Indiana Board bears the burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Thus, Nova Tube must demonstrate to the Court that the Indiana Board's final determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of or short of statutory jurisdiction, authority, or limitations; without observance of the procedure required by law; or unsupported by substantial or reliable evidence. See IND. CODE § 33-26-6-6(e)(1)-(5) (2018).

ANALYSIS

On appeal, Nova Tube asks the Court to reverse the Indiana Board's final determination, claiming it is contrary to law, unsupported by substantial or reliable evidence, and constitutes an abuse of discretion. (See, e.g., Oral Arg. Tr. at 11; Pet'r Initial Br. ("Pet'r Br.") at 15-16, 21-22.) More specifically, Nova Tube contends that the Indiana Board erred in upholding the assessments because the Assessor did not meet her initial burden of proving that the assessment increases were correct given that: 1) she failed to demonstrate that the property sold in a market value transaction in May 2014; and 2) she failed to relate the property's May 2014 sales price to the relevant valuation dates. (See Pet'r Br. at 12-22; Pet'r Reply Br. at 13-14.)

1. Market Value Transaction

During the years at issue, Indiana defined "market value" for purposes of its property tax assessment system as:

The most probable price, as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms, for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress.

2011 REAL PROPERTY ASSESSMENT MANUAL ("2011 Manual") (incorporated by reference at 50 IND. ADMIN. CODE 2.4-1-2 (2011) ) at 5-6. The definition specified the conditions required for fair sales, including that the buyer and seller be typically motivated, without duress, compulsion, or pressure to act. See id . Accord 2002 REAL PROPERTY ASSESSMENT MANUAL (2004 Reprint) ("2002 Manual") (incorporated by reference at 50 IND. ADMIN. CODE 2.3-1-2 (2002 Supp.) (repealed 2010) ) at 10 (defining "market value"); Marion Cnty. Assessor v. Simon DeBartolo Group, LP, 52 N.E.3d 65, 70-71 (Ind. Tax Ct. 2016) (construing Indiana's definition of market value); INT'L ASS'N OF ASSESSING OFFICERS, PROPERTY ASSESSMENT VALUATION 100 (2nd ed. 1996) (stating that market value sales require, among other things, that buyers and sellers be typically motivated).

Nova Tube accordingly maintains that to establish that a sale is a market value transaction one must, among other things, show that the parties to the transaction are typically motivated. (See Pet'r Br. at 12; Pet'r Reply Br. at 10-11.) Nova Tube claims that because the evidence in this case indisputably showed that the buyer, the Port of Indiana, was atypically motivated, the Indiana Board abused its discretion in finding that the May 2014 sale was a market value transaction. (See, e.g., Pet'r Reply Br. at 1; Oral Arg. Tr. at 11.) Indeed, Nova Tube maintains the Port of Indiana's atypical motivation was manifest given its status as both a government entity and adjacent landowner. (See, e.g., Pet'r Reply Br. at 7-11.) Moreover, Nova Tube claims that the parties' expert witnesses agreed that the Port of Indiana was atypically motivated during the administrative hearing and that the Assessor tacitly conceded the point by noting on the property record cards that the sale was "invalid" for purposes of the mass appraisal process. (See Pet'r Br. at 15-20.) Nova Tube further asserts that the Assessor failed to rebut its evidence because she focused on factors unrelated to a buyer's atypical motivation, namely whether the property was sold in an "arm's length" or "open market" transaction. (See Pet'r Br. at 13-16; Pet'r Reply Br. at 9-11.) Nova Tube's claims, however, are unpersuasive for three reasons.

First, the certified administrative record reveals that both parties' expert witnesses stated that the mere fact that one of the parties to a transaction is a government entity or adjacent landowner does not in itself demonstrate that the party is atypically motivated. (See, e.g., Cert. Admin. R. at 905-07, 937-39, 967, 972-78 (providing that sales to government entities and adjacent landowners may be used to appraise property under certain conditions, e.g., after researching the sale to verify that it reflects a property's market value).) Moreover, the International Association of Assessing Officers' 2007 Standard on Ratio Studies provides that sales to government agencies may be used in performing a ratio study after researching the sales to verify that they are market value transactions. (See Cert. Admin. R. at 114.) Here, the Assessor initially deemed the May 2014 sale of the subject property invalid for use in the mass appraisal/ratio study process presumably because the sales disclosure form indicated that the buyer was both a government entity and adjacent landowner. (See Cert. Admin. R. 469-72, 955-68.) Upon a more in-depth investigation, however, she determined that the May 2014 sale was equivalent to a market value transaction that supported her assessment increases. (See Cert. Admin. R. at 976-77, 1009-10.)

Second, while Nova Tube asserts that the parties' expert witnesses agreed that the Port of Indiana was atypically motivated, it has not cited the portion of the record containing that agreement, (see generally, e.g., Pet'r Br.), and this Court's review of the record uncovered no such agreement. The totality of the evidence, therefore, does not support Nova Tube's claim that the Assessor's notation on the property record cards was an admission of the Port of Indiana's atypical motivation and her acknowledgment that the May 2014 sales price was inconsistent with the property's market value for all purposes. (See Pet'r Br. at 16-19; Oral Arg. Tr. at 33.)

Finally, the parties offered conflicting evidence on the issue of whether the property's May 2014 sale constituted a market value transaction. (Compare, e.g., Cert. Admin. R. at 650-54 with Cert. Admin. R. at 972-76.) Nova Tube presented evidence that indicated the May 2014 sale was not a market value transaction. (See, e.g., Cert. Admin. R. at 650-54, 656-57, 1026-28 (indicating that the Port of Indiana was the sole party interested in purchasing the property, that its business model was to purchase all nearby land to control its use, and that the property record cards stated that the May 2014 sale was "invalid").) Conversely, the Assessor presented evidence that: a) the property's asking price of $6,950,000 was based on an independent appraisal, b) the property sold after being on the market for 373 days, c) there were "a number of lookers[,]" d) the property ultimately sold for $825,000 less than the asking price, and e) the personal property (i.e., cranes) advertised as part of the sale were not actually included in the sale. (See Cert. Admin. R. at 473-76, 972-76, 1007-09.) The record indicates that the Indiana Board considered and weighed the competing evidence, making its finding based on the facts and circumstances before it. Thus, this Court cannot reweigh the evidence on this issue and replace the Indiana Board's finding with one of its own. See, e.g., Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 315 n.5 (Ind. Tax Ct. 2010) (providing that an abuse of discretion occurs when the Indiana Board either misinterprets the law or acted clearly against the logic and effect of the facts and circumstances before it). Accordingly, the Court finds that the Indiana Board's determination is supported by substantial evidence, and it did not abuse its discretion in finding that Nova Tube's property sold in a market value transaction in May 2014.

2. Relationship to the Valuation Dates

Nova Tube also claims that the Indiana Board abused its discretion in finding, contrary to law, that the May 2014 sales price was sufficiently related to each of the relevant valuation dates because the Assessor did not trend that sale and affirmatively link the sales price to the valuation dates. (See Pet'r Br. at 22-23; Pet'r Reply Br. at 13-14; Oral Arg. Tr. at 29-31.) "Trending" is the process that applies an adjustment factor to the value of a property to estimate its market value-in-use on a specific date. See, e.g., 50 IND. ADMIN. CODE 27-5-1 (2018).

The Assessor, on the other hand, contends that Nova Tube's claim is meritless because she demonstrated to the Indiana Board that trending was unnecessary. (See, e.g., Cert. Admin. R. at 516.) More specifically, the Assessor explains that she presented evidence that the rate of growth in the market ranged from only 0% to 1% between 2011 and 2013, as the market continued to recover from the recession, and that the pattern of limited growth continued in 2014. (See Resp't Br. at 14-15; Oral Arg. Tr. at 39-45.)

When, as here, a taxpayer appeals an assessment that increased by more than 5% from one year to the next, Indiana Code § 6-1.1-15-17.2 automatically shifts the burden of proof from the taxpayer to the assessing official. See IND. CODE § 6-1.1-15-17.2 (2014). Accordingly, the assessing official bears the initial burden of proving to the Indiana Board that the assessment increase, and thus the assessment, is correct. See id. To meet its initial burden, the assessing official must submit evidence relevant to the property's market value-in-use (i.e., the property's value "for its current use, as reflected by the utility received by the owner or by a similar user, from the property") for the appropriate valuation date. See 2011 Manual at 2 (stating that March 1 is the valuation date for the years at issue). Consequently, the Assessor had to demonstrate that the evidence supporting her assessment increases reflected the subject property's market value-in-use as of the March 1, 2011, 2012, and 2013 valuation dates as a matter of law. See 2011 Manual at 2.

In support of her assessment increases, the Assessor provided information about general industrial market trends, residential demographics (e.g., population, income, and sales activities), and building permits issued between 2009 and 2013. (See Cert.

Admin. R. at 477-508, 980-81, 989-98.) Her evidence also indicated that the market was recovering from the recession between 2009 and 2014. (See Cert. Admin. R. at 125, 493, 995-97.) The Assessor's evidence showed both that the market was relatively stable from 2009 to 2014 (no more than 1% annual rate of growth in real estate values from 2011 to 2013) and that the difference between the property's 2013 assessment of $4,653,100 and its 2014 sales price of $6,125,000 represented roughly a 22% increase in value. (See, e.g., Oral Arg. Tr. at 43.) Nonetheless, the Assessor's evidence failed to show that the property's May 2014 sales price was directly related to any of the appropriate valuation dates for the years at issue. Moreover, the evidence did not indicate why the property's 2011 assessment of $4,653,100, which was more than double its 2010 assessment of $2,245,900, was correct given that the evidence showed that the market's general growth was relatively flat from 2009 to 2014.

The Assessor also urges the Court to affirm the Indiana Board's finding as to this issue based on the proximate relationship between the property's assessments of $4,653,100 in 2011, $4,767,200 in 2012, and $4,767,300 in 2013 and its May 2014 sales price of $6,125,000. (See Oral Arg. Tr. at 43-45.) The Assessor explains that the 22% increase in value from one year to the next is of little consequence because all these figures are close in value. (See Oral Arg. Tr. at 43-45.) The Assessor further states that to the extent the property was overvalued when it sold in May 2014, that fact would simply increase the reliability of her assessments because she did not request that the property be assessed at that higher value. (See Resp't Br. at 14.) Consequently, the Assessor claims that the Indiana Board, consistent with both its own and this Court's case law, appropriately relied on an objective indicator of value (i.e., the May 2014 sales price) and the figures closer to the objective measure rather than the figures derived from three subjective indicators of value (i.e., Nova Tube's appraisals). (See Resp't Br. at 12-15 (citing Hubler Realty Co. v. Hendricks Cnty. Assessor, Nos. 32-012-06-1-4-00015, et al., (Ind. Bd. Tax Review Dec. 17, 2009); Fisher v. Carroll Cnty. Assessor, 74 N.E.3d 582 (Ind. Tax Ct. 2017) ).) The Assessor's claims, however, are unpersuasive for the following reasons.

Initially, while the property's May 2014 sales price and the assessments at issue are relatively close in value, it is equally true that the property's 2010 assessment of $2,245,900 and its appraised values of $2,9000,000 for 2011, $3,000,000 for 2012, and $3,100,000 for 2013 are similarly close in value. Thus, the mere proximity of certain figures does not indicate whether an assessment reflects a property's market value-in-use as of a specific valuation date.

In addition, the cases that the Assessor cited as support for her position are not persuasive here because their facts and issues on appeal fundamentally differ from the facts and issues on appeal in this case. Specifically, in Hubler Realty the Indiana Board found that the parties' evidence, which consisted of an appraisal and sales data, was probative because the stated valuations were deemed to be contemporaneous to the relevant valuation date (i.e., within three to five months of the relevant valuation date). See Hubler Realty, No. 32-012-06-1-4-000115, slip op., at 7 ¶ 15(g). The Indiana Board's finding as to the probative value of that evidence was not challenged on appeal. See Hubler Realty, 938 N.E.2d at 313-14. In this case, however, the Indiana Board did not base the probative value of the May 2014 sales price on a temporal proximity to the March 1 valuation dates at issue. Moreover, the Indiana Board's finding regarding the probative value of the May 2014 sales evidence has been challenged on appeal due in large part to this lack of proximity and failure to analyze the direct relationship between that sale and each of the March 1 valuation dates. Accordingly, Hubler Realty does not support the Assessor's position.

With respect to the Fisher case, the Court upheld an assessing official's assessment increases because they were corroborated by her market-based evidence: i.e., two appraisals that valued a taxpayer's property on the relevant valuation dates for amounts that exceeded both assessments. See, e.g., Fisher, 74 N.E.3d at 585-86. In this case, however, the Assessor's market-based evidence, the May 2014 sales data, only indicates the value of Nova Tube's property on the date of sale because the Assessor did not trend that sale or provide other market-based evidence that affirmatively related the sales price to the March 1 valuation dates. Accordingly, Fisher does not support the Assessor's position either. Therefore, the Court finds that the Indiana Board abused its discretion by finding that the May 2014 sales price was sufficiently related to each of the March 1 valuation dates. See Peters v. Garoffolo, 32 N.E.3d 847, 852 (Ind. Tax Ct. 2015) (providing that a prima facie case is one in which the evidence is " 'sufficient to establish a given fact and which if not contradicted will remain sufficient' " (citation omitted).) Consequently, the Assessor did not meet her initial burden of proving that her assessment increases were correct.

Indiana Code § 6-1.1-15-17.2 provides that when an assessing official fails to meet her burden of proof, a taxpayer may present evidence to prove the actual market value-in-use of its property. See I.C. § 6-1.1-15-17.2(b). During the administrative hearing, Nova Tube offered three appraisals to establish that its property should be valued at $2,9000,000 for 2011, $3,000,000 for 2012, and $3,100,000 for 2013. (See, e.g., Cert. Admin. R. at 194-450.) The Indiana Board found that each of the appraisals, despite certain flaws, had probative value. (See Cert. Admin. R. at 103-04 ¶¶ 54-55.) While the Assessor has restated the Indiana Board's criticisms of Nova Tube's appraisals on appeal, she has not challenged the Indiana Board's finding as to their overall probative value. (Compare Resp't Br. at 15-17 with Cert. Admin. R. at 102-03 ¶¶ 47-53.) Therefore, the Court concludes that Nova Tube's property should be assessed at $2,9000,000 for 2011, $3,000,000 for 2012, and $3,100,000 for 2013.

CONCLUSION

For the forgoing reasons, the final determination of the Indiana Board is REVERSED. The matter is REMANDED to the Indiana Board so that it may instruct the appropriate assessing officials to assess the subject property consistent with this opinion.

      Indiana Code § 6-1.1-15-17.2, commonly referred to as "the burden-shifting rule," provides that if the assessment of the same property increases by more than 5% from one year to the next, the assessor bears the burden of proving that the assessment is correct. See Orange Cnty. Assessor v. Stout, 996 N.E.2d 871, 873 (Ind. Tax Ct. 2013) ; Ind. Code § 6-1.1-15-17.2 (2014). Compare with Ind. Code § 6.1.1-15-1(l ) (2014) (explaining that otherwise, the taxpayer bears the burden of demonstrating that the assessment is incorrect) (repealed 2017).

      Nova Tube also claims that the Indiana Board violated a fundamental appraisal principle by finding that the May 2014 sale corroborated the assessment increases because the evidence failed to indicate whether it was reasonable to deem a sale occurring up to three years after the relevant valuation dates as probative of the property's market value-in-use for the years at issue. (See Pet'r Initial Br. ("Pet'r Br.") at 22-25.) The Court will not address this issue because the case is resolved on other grounds.

      A ratio study is "[a] study of the relationship between [properties'] appraised or assessed values and market values. Indicators of market values may be either sales (sales ratio study) or independent 'expert' appraisals (appraisal ratio study). Of common interest in ratio studies are the level of uniformity of the appraisal or assessments." 2011 Real Property Assessment Manual ("2011 Manual") (incorporated by reference at 50 Ind. Admin. Code 2.4-1-2 (2011) ) at 6.

      In determining the adjustment factor, assessing officials typically use sales of properties in certain neighborhoods, areas, or classes that "ideally [occurred] not more than fourteen (14) months before the March 1 assessment and valuation date." 50 Ind. Admin. Code 27-5-2(a) (2018).

      For purposes of Indiana Code § 6-1.1-15-17.2, the term "burden of proof" refers to the burden of production (i.e.," '[a] party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against [it] in a peremptory ruling' "). See Peters v. Garoffolo, 32 N.E.3d 847, 852 n.6 (Ind. Tax Ct. 2015) (citations omitted).

      Indeed, it is well-established that when a taxpayer challenges the accuracy of an assessment, he likewise must show that his evidence reflects his property's market value-in use as of the appropriate valuation date. See, e.g., Marion Cnty. Assessor v. Simon DeBartolo Group, LP, 52 N.E.3d 65, 69-70 (Ind. Tax Ct. 2016) ; Big Foot Stores LLC v. Franklin Twp. Assessor, 919 N.E.2d 621, 625-26 (Ind. Tax Ct. 2009) ; O'Donnell v. Dep't of Local Gov't Fin., 854 N.E.2d 90, 95 (Ind. Tax Ct. 2006).

      While the Indiana Board's transcript indicates that this evidence is contained in Respondent's Exhibit G, the actual exhibit is marked as Respondent's Exhibit C. (See, e.g., Cert. Admin. R. at iii, 477, 978-79.)