author: RILEY, Judge.

text:
    Glenn PARKER, As Trustee Under the Revocable Declaration of Trust Agreement of Glenn Parker, Glenn Parker, Individually and Phyllis C. Parker, Individually, Appellants-Plaintiffs, v. OBERT’S LEGACY DAIRY, LLC, Appellee-Defendant.
    No. 26A05-1209-PL-450.
    Court of Appeals of Indiana.
    April 30, 2013.
    Leslie C. Shively, Evansville, IN, Attorney for Appellants.
    Todd J. Janzen, Brianna J. Schroeder, Plews Shadley Racher & Braun, LLP, Indianapolis, IN, Attorneys for Appellee.
    Indiana Agricultural Law Foundation, Inc., Justin Schneider, Mark Thornburg, Sara MacLaughlin, Indiana Dairy Producers, Gregory A. Neibarger, Bingham Greenebaum Doll, LLP, Indiana Soybean Alliance, Inc., Indiana Corn Growers Association, Daniel P. Mclnerny, Bose McKinney & Evans, LLP, Indiana Pork Advocacy Coalition, Joshua Trenary, Indianapolis, IN, Indiana State Poultry Association, Joseph A. Miller, Seymour, IN, for Amicus Brief.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Plaintiffs, Glenn Parker (Glenn), individually and as Trustee under the Revocable Declaration of Trust Agreement of Glenn Parker, and Phyllis C. Parker (Phyllis) (collectively, the Parkers), appeal the trial court’s grant of summary judgment in favor of Obert Legacy Dairy, LLC (the Dairy).

We affirm.

ISSUE

The Parkers raise one issue on appeal which we restate as follows: Whether the Indiana Right to Farm Act bars their nuisance claim against the Dairy.

FACTS AND PROCEDURAL HISTORY

The Parkers own approximately 68 acres of land in Fort Branch, Gibson County, Indiana. In 1965, the property was given to them by Glenn’s mother, who had acquired it in 1934. In 1972, Glenn built a house on the property where the Parkers have resided ever since. Outbuildings and grain silos are also located on the property. Although employed by Ball Corporation in Muncie, Indiana for many years, Glenn “hobby farmed” the land surrounding his home until 2005. (Appellants’ Amended App. p. 30). Thereafter, Glenn leased the farmland to Ron Miley (Miley), who grows corn and soybeans.

The Obert family, members of whom own either the Dairy or Obert’s Farm Property, Inc. (the Obert Farm), have engaged in farming in Gibson County since 1830. The Obert family’s property consists of approximately 157 acres adjacent to the Parkers’ property. Of these 157 acres, two 45 acre-tracts comprise the Obert Farm, which represents the family’s original dairy farm and includes a residence, silos, other dairy farm structures, and approximately 100 cows. The Dairy operates on the remaining 67 acre-tract, which the Oberts acquired “sometime after 1965,” and was originally used as cropland to support the dairy. (Appellants’ Amended App. p. 77-A).

In 2006, members of the Obert family formed the Dairy for tax and estate planning purposes and sought to expand operations by increasing the number of cows and adding new facilities and equipment. After examining possible locations, the Oberts decided to utilize part of the 67 acre-tract for the expanded dairy operation, which would include a concentrated feeding operation. In July or August 2009, the Oberts sent notice of their intentions to their neighbors, including the Par-kers.

On September 18, 2009, the Dairy applied to the Indiana Department of Environmental Management (IDEM) for a National Pollutant Discharge Elimination System, Concentrated Feeding Operation (NPDES CAFO) general permit for a maximum of 900 dairy cows and 80 dairy calves. In October 2009, Glenn sent a letter to IDEM in protest. He stressed that although he supported family farming, in contrast, the Dairy sought to become a “factory-like ‘mega-farm.’ ” (Appellants’ Amended App. p. 116). As his home was the closest residence to the Dairy’s planned facilities, due to the prevailing wind patterns, Glenn alleged that the increased odors from the Dairy’s proposed confined feeding operation would be “first and foremost concentrated on [his] home.” (Appellants’ Amended App. p. 115). Glenn also speculated that the Oberts deliberately placed the proposed operation away from their residence to avoid the potential increase in odors. On March 9, 2010, IDEM granted the Dairy’s application, issuing a five-year NPDES CAFO permit. Currently, the Dairy houses approximately 760 dairy cows.

On June 28, 2011, the Parkers filed their complaint for nuisance, which was amended on May 14, 2012. The Parkers alleged that the Dairy’s concentrated feeding operation produced offensive odors, devalued their property, and caused them “discomfort, inconvenience, and personal injury.” (Appellants’ Amended App. p. 106). On August 22, 2011, the Dairy filed its answer asserting the Indiana Right to Farm Act, Ind.Code § 32-30-6-9, as an affirmative defense.

On April 25, 2012, the Dairy filed its motion for summary judgment. On June 19, 2012, the trial court held a hearing on the motion. On August 27, 2012, the trial court granted summary judgment to the Dairy. In pertinent part, the trial court concluded that the Act barred the Parkers’ nuisance claim:

To avail itself of the protections of the [Act], [the Dairy] must demonstrate that it is an agricultural operation in continuous operation on the locality for more than one year, there have been changed conditions in the vicinity of the locality and there has been no significant change in the type of operation.
[T]he evidence demonstrates that Obert Farms is an agricultural operation as defined by [I.C. § ] 32-30-6-1 as the Obert family has been operating a dairy farm which has included producing crops, livestock and milk.
The evidence also shows that Obert Farms has been in continuous operation for many, many years (well more than one year) on the locality. Contrary to the [Parkers’] assertion, locality as defined in I.C. § 32-30-6-3 is appropriately understood to mean all of the facilities and land used in the entire agricultural operation. The [c]ourt concludes that it is of no moment that the Obert [d]airy farm operation consists of more than one tract of land with separately described properties because it is clear that all facilities and the various tracts of land, including the 67 acres on which the expansion is located, are part of the same agricultural operation which is being conducted on that locality.
Further, the evidence demonstrates that the conditions have changed in the vicinity of the locality in that what was once a fully agricultural area now contains several non-farm residences, including that of the Parkers. Clearly, this is not a case in which the Parkers moved to the nuisance as that expression is typically understood, but it is equally clear that the vicinity of the locality has changed over the years in that non-agricultural land uses (non-farming residences) are now extending into this agricultural area. [...]. [... ] the [c]ourt concludes that the Act is applicable when non-agricultural land uses such as non-farming residences extend into agricultural areas, whether as a result of ‘non-farmers’ moving into the area or, as in the present case, when ‘erstwhile farmers’ now utilize the land as a non-farming residence after ceasing farm operations. In either case, the non-agrieultural land uses (non-farming residences) now extend into agricultural areas.
Further, the evidence shows that there has been no significant change in the type ■ of operation of the Obert [d]airy [f]arm operation. While the court concedes that whether there has been a significant change in the type of operation initially sounds as though it would be a question of fact for the jury, the court finds the evidence is undisputed in that any changes to the operation are not significant changes as that term is defined by law.

(Appellants’ Amended App. pp. 12-14).

The Parkers now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). An issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth or if the undisputed facts support conflicting reasonable inferences. Id.

In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Ogden v. Robertson, 962 N.E.2d 134, 140 (Ind.Ct.App.2012), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id.

The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. New Albany Historic Preservation Comm’n v. Bradford Realty, Inc., 965 N.E.2d 79, 84 (Ind.Ct.App.2012). When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs’ cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs’ claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

Here, the trial court issued findings of fact and conclusions of law in support of its grant of summary judgment. Its findings on summary judgment are not binding oh appeal. Myers v. Coats, 966 N.E.2d 652, 656 (Ind.Ct.App.2012). Although an aid to appellate review, the trial court’s findings and conclusions merely afford the appellant an opportunity to address the merits of the trial court’s rationale. Id.

The Parkers contend that the trial court erred in granting summary judgment based on its conclusion that the Indiana Right to Farm Act (the Act) bars their nuisance claim. Nuisance is defined by statute as:

[wjhatever is:
(1) injurious to health;
(2) indecent;
(3) offensive to the senses; or
(4) an obstruction to the free use of
property;
so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.

Ind.Code § 32-80-6-6. However, the Act limits a plaintiffs ability to bring a nuisance action against an agricultural operation. In particular, the Act provides:

(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:
(A) The conversion from one type of agricultural operation to another type of agricultural operation.
(B) A change in the ownership or size of the agricultural operation.
(C) The:
(i) enrollment; or
(ii) reduction or cessation of participation; of the agricultural operation in a government program.
(D) Adoption of new technology by the agricultural operation.
(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.

I.C. § 32-30-6-9(d).

The Dairy asserted and the trial court agreed that the Act bars the Parkers’ nuisance action against it. On appeal, the Parkers make three arguments that the Act does not bar their nuisance claim. First, the Parkers assert the Act does not apply in a nuisance action between two agricultural operations. Second, they contend that the Oberts’ conversion of a specific part of their farm, from crops to a concentrated feeding operation, constitutes a significant change precluding the Act’s applicability. Finally, the Parkers argue that the Act has no applicability since they have resided at their property for years before the alleged nuisance began.

In support of their first argument that the Act does not apply in a dispute between two agricultural operations, the Parkers rely on TDM Farms of North Carolina v. Wilhoite Family Farm, 969 N.E.2d 97, 110 (Ind.Ct.App.2012). In TDM Farms, this court held that “the Act does not apply in [a nuisance] action between two established farming operations.” Id. A porcine virus broke out on TDM Farms and spread to the Wilhoite Family Farm, a neighboring commercial hog farm, causing losses. Id. at 99. In concluding that the Act did not apply to bar Wilhoite Family Farms’ nuisance claim, we reasoned that the Act “was intended to prohibit nonagricultural land uses from being the basis of a nuisance suit against an established agricultural operation.” Id. at 111. Because the Wilhoite Family Farm, one established agricultural operation, brought suit against another, TDM Farms, thé Act did not apply. Id.

In contrast, the Parkers here asserted nonagricultural land uses as the basis of their nuisance suit against the Dairy. Their claims are for the odor emanating from the Dairy and the discomfort and devaluation of property values which it may entail. The lease of their property to Miley does not alter this because the Par-kers allege no damages to Miley’s crop farming operation. Therefore, we conclude that TDM Farms is not applicable to this case.

Next, the Parkers assert that the Act does not apply because the Dairy’s concentrated feeding operation differs from the historical Obert family farm. Specifically, the Parkers argue that the applicable locality under the Act refers to the 67 acre-tract where the Dairy is located, rather than the two 45 acre-tracts where the Obert Farm sits. Since it commenced operations within a year of filing their claim, the Parkers contend the Act does not bar their nuisance claim against the Dairy.

Under the Act, an agricultural operation “is not and does not become” a nuisance if the operation has been in operation on the locality for more than one year so long as no significant change has occurred. I.C. § 32-30-6-9(d). The Act defines “locality” as “the specific area of land upon which an [... ] agricultural operation [... ] is conducted.” I.C. § 32-30-6-3(l)(A). Further, a “conversion from one type of agricultural operation to another type of agricultural operation” does not constitute a significant change. I.C. § 32-30-6-9(d)(1)(A).

Here, our review of the evidence reveals that prior to expansion, the Oberts used the 67 acre-tract to produce crops for their dairy farming operation. The IDEM permit covers both the Dairy and the Obert Farm. The IDEM permit is not “site-specific” and states that the Dairy constitutes a “four-unit confinement operation” with two existing dry cow barns for 150 cows and one existing calf barn for 80 calves. (Appellants’ Amended App. pp. 131). As the permit contemplates that a “freestall barn” for 750 cows will be constructed by the Dairy, it is clear that the permit covers both the original Obert family farm as well as the Dairy. (Appellants’ Amended App. pp. 131). Contrary to the Parkers’ argument, the undisputed facts show that the Dairy’s 67 acre-tract and the Obert Farms’ two 45 acre-tracts exist as a single agricultural operation and therefore together constitute the specific area of land upon which the agricultural operation is conducted under I.C. § 32-30-6-3.

Finally, the Parkers argue that “[t]he Act was never intended to bar a nuisance claim by landowners [... ] who have lived in an area for more than 40 years and then are impacted by a significant change in use, such as the [concentrated] feeding operation, which is established long after the acquisition of the property and establishment of the use of the property by the landowners.” (Appellants’ Br. p. 10). We conclude that the Parkers’ argument is without statutory support.

“A significant change in the type of agricultural operation does not include [... ] [t]he conversion from one type of agricultural operation to another type of agricultural operation.” I.C. § 32-30-6-9(d)(1)(A). By specifying that a conversion from one agricultural operation to another is not a significant change, the Act removes claims against existing farm operations that later undergo a transition from one type of agriculture to another. Here, the Obert family farm converted that part of its operation used to produce crops to feed its cows into a dairy operation. Although the size of the transformation, from 100 cows to 760 cows, is substantial, this too does not constitute a significant change. See I.C. § 32-30-6-9(d)(l)(B). Consequently, the Oberts transformation of their family farm into that of a larger operation, does not, under these circumstances, give rise to an actionable nuisance under the Act. See Laux v. Chopin Land Associates, Inc., 550 N.E.2d 100, 102 (Ind.Ct.App.1990), trans. denied.

The Parkers argue that the legislature could not have intended the Act to apply to long-time residents whose daily, rural life suffers at the hands of a “factory-like ‘mega-farm.’ ” (Appellants’ Amended App. p. 116). However, it is clear that the Act insulates the Oberts’ expansion of their dairy farm from nuisance suits under these circumstances. In sum, we affirm the trial court’s grant of summary judgment in favor of the Dairy.

CONCLUSION

Based on the foregoing, we conclude that the Act bars the Parkers’ nuisance claim and the trial court properly granted summary judgment to the Dairy.

Affirmed.

BRADFORD, J., and BROWN, J., concur.

      . Although the Parkers refer to the Dairy’s operation as a confined feeding operation, the IDEM permit licenses the Dairy to conduct a concentrated feeding operation. As we noted in Jennings Water, Inc. v. Office of Environmental Adjudication, 909 N.E.2d 1020, 1022 n. 1 (Ind.Ct.App.2009), trans. denied, there is a statutory distinction between a confined feeding operation and a concentrated feeding operation, "but each features the confined feeding of certain animals.” Given the language of the permit, we use the term concentrated feeding operation throughout this opinion.


source: Caselaw Access Project

author: RILEY, Judge. BAKER, Judge,

license: Public Domain

text:
    Stacy SMITH and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased, Appellants-Plaintiffs, v. DELTA TAU DELTA, Appellee-Defendant, Beta Psi Chapter of Delta Tau Delta, Wabash College and Marcus Manges, Defendants.
    No. 54A01-1204-CT-169.
    Court of Appeals of Indiana.
    May 8, 2013.
    Rehearing Denied July 18, 2013.

      Stephen M. Wagner, Wagner Reese, LLP, Carmel, IN, Attorney for Appellants.
    Kevin C. Schiferl, Lucy R. Dollens, Vanessa A. Davis, Frost Brown Todd, LLC, Indianapolis, IN, Attorneys for Ap-pellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Plaintiffs, Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, deceased (the Smiths), appeal the trial court’s summary judgment in favor of Appellee-Defendant, Delta Tau Delta, with respect to claims arising from the wrongful death of Johnny Dupree Smith (Johnny), a Wabash College freshman, following acute alcohol intoxication.

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

The Smiths raise two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by denying the Smiths’ motion to strike certain designated evidence purporting to contain un-sworn, unverified, and uncertified statements; and
(2) Whether the trial court erred in granting Delta Tau Delta’s motion for summary judgment, finding that there is no genuine issue of material fact that an agency relationship existed between the national fraternity and its local chapter and that the national fraternity did not assume a duty to protect its freshmen pledges.

FACTS AND PROCEDURAL HISTORY

This cause comes before us as an appeal to the trial court’s grant of summary judgment in an action arising from the wrongful death of a child following acute alcohol poisoning at the Delta Tau Delta fraternity house at Wabash College, Indiana.

I. The Events of the Fall of 2008

In the fall of 2008, Johnny, originally from Tucson, Arizona was a college freshman at Wabash College, in Crawfordsville, Indiana. At the beginning of the fall semester, Johnny pledged at the Beta Psi Chapter of Delta Tau Delta and began living in the Beta Psi fraternity house, which was owned by the College. In the week leading up to Homecoming on October 4, 2008, the freshmen pledges were put through a “hell week” of hazing and sleep deprivation. (Appellant’s App. p. 145). In one of these activities, Johnny was required to participate in Chapel Sing, an annual Wabash tradition the week of Homecoming where freshmen pledges of each fraternity house compete against each other to yell the Wabash school song the loudest. At practices for Chapel Sing, fraternity members routinely haze the freshmen pledges. Because Johnny failed to perform to the satisfaction of his fraternity brothers during the Chapel Sing competition on October 2, 2008, he had a large red W spray painted on him. In addition, the pledges were required to stay up into the early morning hours to build a Homecoming float and to clean the fraternity house kitchen wearing only an apron.

On Tuesday, September 30, 2008, Beta Psi’s social chairman emailed the Delta Tau Delta pledges announcing a house party at the fraternity house the weekend of Homecoming at which there would be “an abundance of alcohol.” (Appellant’s App. p. 145). During this house party on October 4, 2008, Johnny began drinking beer at the fraternity house shortly before 9 p.m. Throughout the evening, Johnny consumed multiple beers and several shots of hard alcohol. Later, after Johnny was visibly intoxicated, he was summoned to the first floor room of an upperclassman to participate in a “pledge family drink night.” (Appellant’s App. p. 147). As a condition of membership, freshmen pledges were required from time to time to drink alcohol with their fraternity families. While participating in the required family drink night, Johnny consumed numerous shots of hard alcohol. At approximately 10:30 p.m., Johnny left the room and shortly thereafter, he fell down a stairwell, cutting his lip, cheek, and chin. At that time, he was unable to walk and could barely talk.

At 11 p.m., Johnny’s pledge brothers physically carried him to the upstairs bedroom. At the instruction of Delta Tau Delta’s house risk manager, Johnny’s mattress was taken off his top bunk and placed on the floor. Johnny was placed on his side “so he wouldn’t choke on his vomit” and Stevan Stankovich (Stankovich), a freshman pledge, was ordered to keep an eye on him. (Appellant’s App. p. 149). Around 11:30 p.m., Stankovich noticed Johnny’s body to be limp, his breathing shallow, and his eyes remained open even though he was non-responsive. At around 2 a.m., Stankovich left the room to drive several drunken Delta Tau Delta alumni back to their hotel; he returned around 3:45 a.m. On October 5, 2008, at 8:45 a.m., when the pledges were awoken to clean up after the party, Johnny was found deceased, lying in a pool of his own vomit. The Montgomery County coroner later determined that, when he was found, Johnny had been dead for at least four to eight hours; and his blood alcohol content was nearly .40%.

II. Delta Tau Delta

The national fraternity, Delta Tau Delta, was founded in 1858 at Bethany College in West Virginia, and is now comprised of 131 local chapters and colonies in multiple countries. It is a non-profit corporation, with its central office located in Fishers, Indiana and comprised of a volunteer alumni board of directors. Although originally managed by its undergraduate members, in the late 19th Century the members determined they no longer had the ability to manage the fraternity effectively and they created and bequeathed power to the national organization.

Delta Tau Delta is governed by a constitution, bylaws, and member responsibility guidelines which promulgate policies, rules, and procedures for its local chapters. These rules encompass, among others, the rituals to be carried out by the local chapters, delineate the powers and duties of the local chapters’ officers, prescribe discipline and process for expelling fraternity members, and describe the type of social events which are prohibited. Specifically, Delta Tau Delta mandates that

[n]o chapter of Delta Tau Delta shall indulge in any physical abuse or undignified treatment (hazing) of its pledges or members. Hazing is defined as any action taken or situation created intentionally, whether on or off Fraternity premises, to produce mental or physical discomfort, embarrassment, harassment, or ridicule. Such activities and situations include paddling in any form, creation of excessive fatigue, physical and psychological shocks, quests, treasure hunts, scavenger hunts, road trips or any other such activities, kidnapping of actives by pledges or pledges by actives as well as the forced consumption of alcohol, wearing apparel which is conspicuous and not normally in good taste, engaging in any public stunts and buffoonery, morally degrading or humiliating games and activities, late work sessions which interfere with academic activity, and any other activities which are not consistent with Fraternal law, Ritual, or policy with the regulations and policies of the host educational institution.

(Appellant’s App. p. 227).

In addition to its constitution and bylaws, the national fraternity adopted member responsibility guidelines which “provide a concise articulation of the responsibilities of each member, regarding alcohol, drugs, hazing, abusive behavior, and property management. Any violation of these criteria is viewed seriously by [Delta Tau Delta], and it is the responsibility of every undergraduate chapter member and volunteer to see that [t]he [g]uidelines are upheld.” (Appellant’s App. p. 238). In 1999, and as restated in 2007, Delta Tau Delta explicitly recognized “the well known dangers of alcohol and substance abuse”, and adopted policy statements as part of its guidelines, reaffirming:

the over arching principle that drunken-nesss or other intoxication, and their associated behaviors by individual members, are unacceptable. Delta Tau Delta will first use education as a means to support appropriate behavior, but also recognizes that where such behavior places the Fraternity, an individual chapter or colony, or our Brothers at risk, it can be cause for suspension or expulsion from membership.... With the education of youth our primary objective, the Arch Chapter has adopted GreekLifeEdu as the Fraternity’s alcohol education program. At a minimum, each new member of Delta Tau Delta will be provided and is expected to complete this program prior to the end of the term in which he is initiated. In addition, the Arch Chapter requires each chapter and colony to contact an alcohol and substance treatment organization in its area and arrange for a representative to address the chapter or colony on addiction and abuse issues each academic year.

(Appellant’s App. p. 234). In addition, Delta Tau Delta prohibited the purchase of alcohol with fraternity funds, use of alcohol at rush, pledge, and initiation activities, drinking games, as well as kegs of beer and other common containers of alcohol.

The specific implementation procedures of these guidelines at local level prescribe that:

1. The chapter president, along with the risk management chairman ■ and chapter advisor, shall communicate information on risk management and the [guidelines to the chapter on a regular basis.
2. The chapter president, along with the risk management chairman and chapter advisor, shall be responsible for advising and assisting the chapter in implementation, verification, and enforcement of [t]he [g]uidelines.
3. The chapter president, along with the new member educator shall be responsible to ensure that all new members complete [Delta Tau Delta’s] approved alcohol education program during the academic term of their initiation.

(Appellant’s App. p. 233).

To promulgate and enforce these rules, Delta Tau Delta enacted an hierarchical enforcement criteria and a complex enforcement program. Upon dividing violations of Delta Tau Delta’s constitution, bylaws, and member responsibility guidelines into three levels, each level institutes its own sanction. Specifically, a level I violation — e.g., failure to implement Delta Tau Delta’s alcohol education program — triggers a response “determined and coordinated by [Delta Tau Delta’s] Central Office staff;” while a level II violation — e.g. hazing, alcohol during pledge activities, and drinking games — may result in suspension of the member, fines, or suspension of the local chapter. (Appellant’s App. p. 229). In its enforcement program, Delta Tau Delta also described the reporting process for potential violations, its investigation procedure, and subsequent sanctions.

To further regulate hazing and alcohol use at its local chapters, Delta Tau Delta implemented “Delts Talking About Alcohol.” This program is designed to educate individual members as to how to recognize the signs of acute alcohol poisoning, and once recognized, how to properly handle the emergency. At the time of Johnny’s death, Delta Tau Delta required all pledges to complete the program within the first semester of their pledgeship. As of the evening of October 4, 2008, none of the members of Johnny’s pledge class had completed the program.

To ensure compliance by the local chapter with its mandates, Delta Tau Delta relies on chapter consultants and chapter advisors. Chapter consultants periodically visit the local chapter to review its operations. If, during the visit, the chapter consultant observes conduct in violation of Delta Tau Delta’s constitution, bylaws, or member responsibility guidelines, he advises his supervisor who is responsible to investigate the incident. A chapter advis- or, on the other hand, is assigned to a local chapter by the national fraternity and is required to attend at least one chapter meeting a month to keep the national fraternity “fully and accurately informed of the affairs of the chapter.” (Appellant’s App. p. 184). At the time of Johnny’s death, Beta Psi’s chapter advisor was Doug Coy (Coy). As chapter advisor, he was expected to report any conduct violations to Delta Tau Delta as well as ensure that the local chapter complied with corrective actions ordered by the national fraternity and the new pledges completed the “Delts Talking About Alcohol” program. Coy was at the fraternity house on the evening of October 3, 2008 and again on the day of the Homecoming party, October 4, 2008.

During the existence of its local chapter at Wabash College, Delta Tau Delta has investigated and substantiated prior incidents involving hazing. Most recently, in the spring of 2007, a chapter consultant discovered a video showing Beta Psi members hitting other students with pledge paddles. After investigating the incident, Delta Tau Delta imposed corrective actions and sanctions on Beta Psi, including fines and a requirement to rewrite its bylaws to bring them current with existing Delta Tau Delta policies and procedures. In addition, James Russell (Russell), Delta Tau Delta’s executive vice president, and Jack Kreman, Delta Tau Delta’s director of chapter services, informed the Beta Psi members that “the practice of pledge family oriented activities must cease immediately.” (Appellant’s App. p. 107).

III. Procedural History

On September 22, 2010, the Smiths, individually and as representatives of Johnny’s estate, initiated an action for the wrongful death of a child. On February 9, 2011, the Smiths filed an amended complaint against Delta Tau Delta, its local chapter Beta Psi, Wabash College, and Beta Psi’s risk manager alleging hazing in violation of Ind. Code § 35-42-2-2, dram shop violations of I.C. § 7.1-5-7-8, and negligence. On July 29, 2011, Delta Tau Delta filed a motion for summary judgment claiming Beta Psi’s individual members were not acting as agents of Delta Tau Delta and the national fraternity had not assumed a duty to the pledges of its local chapter to protect them from hazing and the danger of excessive alcohol consumption. Together with its motion, Delta Tau Delta designated, among other documents, Russell’s affidavit and two unsworn and uncertified statements. On January 31, 2012, the Smiths filed a response, designated evidence, as well as a motion to strike Russell’s affidavit and the two statements. On March 12, 2012, the trial court conducted a hearing on both motions. That same day, the trial court denied the Smiths’ motion to strike. On March 23, 2012, the trial court summarily granted Delta Tau Delta’s motion and entered final judgment against the Smiths.

The Smiths now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Motion to Strike

The Smiths first contend that the trial court abused its discretion when it denied their motion to strike certain portions of Delta Tau Delta’s designated evidence in support of the fraternity’s motion for summary judgment. A trial court is vested with broad discretion in ruling on a motion to strike. In re Fitz, 778 N.E.2d 432, 436 (Ind.Ct.App.2002). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances supporting the judgment for relief. Id.

In their motion, the Smiths attempted to strike three documents designated by Delta Tau Delta as contrary to the requirements of Ind. Trial Rule 56. Focusing on Russell’s sworn affidavit, the Smiths assert that because certain, specified paragraphs contradict the affiant’s subsequent deposition testimony, these contradictory portions of the affidavit should be stricken. In addition, the Smiths contend that the uncertified and unsworn statements purportedly made by two freshmen pledges to investigating police officers are inadmissible in summary judgment proceedings. We will analyze each contention in turn.

A. Affidavit of James Russell, Executive Vice President of Delta Tau Delta.

With respect to Russell’s affidavit, the Smiths assert that paragraphs 6, 11, 16, 17, and 18 contradict his sworn deposition testimony and therefore, these paragraphs should be stricken from his affidavit. In a general response, Delta Tau Delta argues that Russell’s deposition merely expands and clarifies his eighteen paragraph affidavit.

As a matter of course, parties routinely present Trial Rule 56 materials in support of or in opposition to motions for summary judgment attempting to demonstrate that there is or is not a dispute of material fact. Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind.2010). This is often accomplished through the presentation of affidavits by affiants claiming to have personal knowledge of the facts alleged. Id. It is quite ordinary and not at all surprising that the parties’ affidavits or other Rule 56 materials compete with conflicting claims about the facts. Id. Affidavits submitted in support of or in opposition to a motion for summary judgment may be stricken for a variety of reasons, one of which is contradiction with the affiant’s deposition testimony. Id.

1. Paragraph 6

In Paragraph 6 of his affidavit, Russell affirms that “[t]he International Organization does not handle the affairs of local chapters.” (Appellant’s App. p. 302). Contrasting this statement with Russell’s deposition in which he explained the interaction between Delta Tau Delta and its local chapters, the Smiths assert that both statements are contradictory and paragraph 6 should be stricken.

At first glance, Russell consistently stated in his deposition that

[W]e do not tell [the local chapter] who they can pledge, who — you know, what people they elect to join the organization; we do not control their funds ... we do not get involved in housing arrangements in terms of where they live; how many men to a room; all of those sort of — of things.

(Appellant’s App. p. 242). However, a closer review of Russell’s deposition testimony also reveals that Russell testified that Delta Tau Delta has a constitution, bylaws, and member responsibility guidelines that provide policies and rules “that speak to both individual and chapter expectations.” (Appellant’s App. p. 242). He stated that Delta Tau Delta requires its local chapters to comply with its rules and enforces its rules at the chapter level in a variety of ways. In addition, Russell admitted that Delta Tau Delta sends a chapter consultant to the individual chapters on a regular basis. During this visit, the consultant reviews the finances of the chapter and reports back to the national organization if any violations of the member responsibility guidelines are observed. We conclude that the outright denial of any interference in the affairs of the local chapter, as stated in paragraph 6 of the affidavit, contradicts Russell’s more detailed deposition indicating an close interaction between Delta Tau Delta and the local chapter and therefore should be stricken.

2. Paragraphs 16 and 17

In Paragraphs 16 and 17, Russell affirmed that

16. The local chapters, pursuant to the International Organization’s Bylaws, make their own decisions regarding alcohol use, in conformity with state, local and university/college laws and regulations.
17. Every chapter, consistent with their individual member’s obligations under the law and per the Member Responsibility Guidelines, develops their own standards of behavior with regard to alcohol use and abuse.

(Appellant’s App. p. 41). Asked about these paragraphs in his deposition testimony, Russell confirmed the statements and added that even though Delta Tau Delta allows its individual local chapters to promulgate their own rules with respect to allowing alcohol on house premises and its use for those members over legal drinking age, these rules must be consistent with the organization’s bylaws, member responsibility guidelines as well as state, local and university or college laws and regulations. Viewed in this light, we conclude that Russell’s deposition testimony is more an elaboration of his affidavit, rather than an outright contradiction. Therefore, Paragraphs 16 and 17 were properly designated.

3. Paragraph 18

In Paragraph 18, Russell declared that “[t]he only enforcement power of the International Organization is suspending or expelling individual members or revoking chapters.” (Appellant’s App. p. 41) (emphasis added). Nevertheless, during his deposition, Russell admitted to several other enforcement powers. Specifically, Russell conceded that besides the enforcement powers enumerated in his affidavit, Delta Tau Delta could also impose fines on individual members, order a local chapter to attend additional educational training, temporarily suspend chapter operations, cease social events, and order the local chapter to refrain from using any alcohol for a certain period of time.

Delta Tau Delta responds that a distinction must be made between enforcement powers and sanctions. They assert that as such, Russell’s affidavit speaks to the enforcement mechanisms of Delta Tau Delta while his deposition testimony elaborated on the organization’s sanctioning power. We disagree. Although Delta Tau Delta’s counsel introduces a distinction between enforcement and sanctions during the deposition, the Smiths consistently questioned Russell on whether certain actions constituted enforcement powers by the organization. Therefore, Russell’s categorical statement in his affidavit is contrary to his deposition during which he admits to the organization’s additional enforcement mechanisms. As a result, the trial court abused its discretion by refusing to strike paragraph 18.

B. Unsworn and Uncertified Statements

As part of the evidence in support of its motion for summary judgment, Delta Tau Delta designated two unsworn, uncertified, and unauthenticated statements purportedly made by two freshmen to investigating police officers. In determining a motion for summary judgment, a trial court can consider only material deemed appropriate by Ind. Trial Rule 56(E). Duncan v. Duncan, 764 N.E.2d 763, 766 (Ind.Ct.App.2002). That rule provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self authenticated of all pages or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial. An unsworn statement or unverified exhibit does not qualify as proper evidence. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996). Where the content of the uncerti-fied exhibits is materially in issue, said exhibits will be insufficient and consideration of them is improper. Wallace v. Ind. Ins. Co., 428 N.E.2d 1361, 1365 (Ind.Ct.App.1981). Because Delta Tau Delta’s two designated statements were not attached to an affidavit and were unsworn and unverified, they cannot now be considered in ruling on a motion for summary judgment. See Kronmiller, 665 N.E.2d at 627.

Delta Tau Delta now attempts to circumvent the requirements of T.R. 56(E) by asserting that the statements are admissible pursuant to Ind. Evidence Rule 803(8). Indiana Evidence Rule 803(8), contains certain exceptions to the prohibition against hearsay and provides that:

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case[.]

Here, because of its uncertified and un-sworn nature, the precise characterization of the two statements is unclear. However, both statements commence with

Today’s date is Sunday the 5th of October 2008 time’s approximately 11:50 AM. Speaking is Det. Sgt Bob Rivers of the Crawfordsville Police Dept., speaking from the interview room in the detective division of the Crawfordsville Police Dept. And I am speaking with [ ].

(Appellant’s App. p. 43). Although Delta Tau Delta asserts — without any citations to the designated evidence — that these statements are not investigative reports but merely “transcribed, oral statements” made to the detective “by two individuals with personal knowledge of the matters at issue,” we are not persuaded. (Appellee’s Br. p. 31). It is clear the statements purport to be an interview by a police officer of two witnesses pertaining to the events surrounding Johnny’s death. As such, both documents fall within the provision of investigative police reports and are inadmissible as hearsay statements in accordance with Evid. R. 803(8). The trial court abused its discretion by denying the Smiths’ motion to strike with respect to the two statements.

II. Motion for Summary Judgment

In their amended complaint, the Smiths bring three claims against Delta Tau Delta. In Counts I and II, the Smiths allege violations of the hazing statute and the dram shop laws respectively. They assert liability on the part of Delta Tau Delta by way of an agency relationship with its local chapter. Specifically, they maintain that Delta Tau Delta, through the actions of their officers and agents at its local chapter, is responsible for the hazing of Johnny in violation of I.C. § 35-42-2-2 and continued to furnish Johnny alcoholic beverages at the Homecoming party resulting in Johnny’s acute alcohol intoxication and death. With respect to Count III — a claim of negligence against Delta Tau Delta — the Smiths base their accusation on an assumption of duty, contending that Delta Tau Delta, “through their actions and promises to the parents of prospective fraternity members, assumed a duty to protect freshmen pledges, including Johnny, from hazing and excessive alcohol consumption which could result in bodily injury or death.” (Appellant’s App. pp. 154-55). The trial court granted summary judgment in favor of Delta Tau Delta on all three claims. The Smiths appealed, maintaining that the trial court erred in issuing summary judgment for Delta Tau Delta because a genuine issue of material fact exists with respect to the national fraternity’s responsibility in all three Counts.

To be sure, we are presented with a very narrow legal issue today. The parties are not alleging that an actual violation of the hazing statute or dram shop laws occurred; rather, we are requested to determine whether the national fraternity assumed a duty to its pledges or an agency relationship existed with the local chapter which could propel Delta Tau Delta within the purview of liability if the perceived violations of the hazing statute and dram shop laws took place.

A. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its decision and facilitate appellate review. Id.

B. Assumption of Duty

First, the Smiths allege that Delta Tau Delta affirmatively assumed a duty to protect Johnny from hazing practices and the dangers of excessive alcohol consumption. A duty of care may arise where one party gratuitously or voluntarily assumes such a duty. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 975 (Ind.1999). An assumption of duty creates a special relationship between the parties and a corresponding duty to act as a reasonably prudent person. Id. Although the existence and extent of an assumed duty is generally a question of fact for the jury, it may be resolved as a matter of law if the designated evidence is insufficient to establish such a duty. Id. The Restatement (Second) of Torts Section 324A(b) (2d ed. 1965) provides that one who undertakes to render services to protect a third person is subject to liability to the third person resulting from his failure to exercise reasonable care if he has undertaken to perform a duty owed by the other to the third person. “The actor must specifically undertake to perform the task he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative legal duty to perform the undertaking carefully.” Am. Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d 532, 535 (Ind.Ct.App.1999), trans. denied. This means that the defendant must have undertaken the duty both “specifically and deliberately ... [I]t is also important that the party on whose behalf the duty is being undertaken relinquish control of the obligation; the party who adopts the duty must be acting ‘in lieu of the original party.” Griffin v. Simpson, 948 N.E.2d 354, 360 (Ind.Ct.App.2011), trans. denied.

Courts in all jurisdictions have addressed liability for fraternities stemming from injuries incurred on university or fraternity property with varying outcomes. The most prominent cases usually all involve activities surrounding initiation rituals, and more often than not, excessive fraternity-sponsored alcohol consumption.

In Delta Tau Delta, our supreme court held as a matter of law that the national fraternity did not gratuitously assume a duty to protect a female sexual assault victim during an alcohol party at the chapter house by sending a series of posters to the local chapter professing that Delta Tau Delta fraternity was a leading fighter against date rape and alcohol abuse. Delta Tau Delta, 712 N.E.2d at 975. In Foster v. Purdue University Chapter, the Beta Mu of Beta Theta Pi, 567 N.E.2d 865, 865 (Ind.Ct.App.1991), we affirmed summary judgment in favor of the national fraternity and local fraternity association where an inebriated freshman broke his neck after diving into a waterslide at the chapter house during a party. The court rejected Foster’s argument that the fraternity association affirmatively assumed a duty to control the chapter members’ conduct based on its execution of chapter by-laws, noting first that the association resolutions were recommended but not binding and that even if they were binding on fraternity members, Foster, as a member, would be contractually bound to control his own behavior. Id. at 871.

In contrast, the Louisiana Court of Appeals concluded in Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1118 (La.Ct.App.1999), writ denied, that based upon the national fraternity’s complex hierarchical system for controlling its local chapters’ charters as well as its knowledge of prior hazing incidents at the particular local chapter, the national fraternity had undertaken a duty to regulate that local chapter to the extent necessary to protect Morrison from hazing. The court noted that on the national level, the fraternity had the authority to approve or revoke a local group’s chapter. Id. On a regional level, Kappa Alpha Psi had the authority to supervise the activities of the local chapters and administer discipline for rule violations. Id. Also, the national fraternity had adopted a level of regional officers who were charged with the responsibility of auditing local chapters for compliance with fraternity, university, and local criminal rules and regulations. Id.

The Smiths designated evidence establishing that Delta Tau Delta promulgated rules and enforcement procedures focused on hazing and alcohol abuse. The evidence supports- that from its inception, Delta Tau Delta has focused on regulating hazing and alcohol consumption by its chapter members and increased its involvement in the local chapters throughout the years, culminating in the detailed membership responsibility guidelines specifically dedicated to hazing and alcohol. Initially, Delta Tau Delta’s rules prescribed the membership rituals to be carried out by the local chapters, its membership recruitment procedures, and the process to expel members who exhibit conduct unbecoming a member of the fraternity. With the compilation and enactment of member responsibility guidelines, Delta Tau Delta included specific provisions clarifying its position with respect to hazing, alcohol and drugs, and other abusive behavior. In particular, besides the general definition of hazing, the national fraternity elaborated that “[n]o member or pledge/associate/new member/novice shall permit, tolerate, encourage or participate in ‘drinking games.’ ” (Appellant’s App. p. 228). Together with these specific behavior provisions and their violations, Delta Tau Delta included enforcement criteria in the member responsibility guidelines, varying from suspension of the member to fines and educational programming, as well as an enforcement program, in which the national fraternity emphasized that it needs to be informed of “potential violations ... as soon as possible by anyone with knowledge thereof either to the chapter advisor, division vice president, or to the Fraternity’s Central Office.” (Appellant’s App. p. 231). At the conclusion of these guidelines, Delta Tau Delta included a verification program, in which each local chapter must certify presentation of the guidelines to its members and the “efforts made to comply with the implementation requirements.” (Appellant’s App. p. 232).

Subsequent to the initial adoption of the member responsibility guidelines, in August 1990, and restated in 2007, Delta Tau Delta added very detailed policy statements on alcohol and substance abuse. In these statements, Delta Tau Delta mandated the completion by each new member by the end of his initiation term of an alcohol education program — GreekLifeEdu—as well as the collaboration between the local chapter and a local alcohol and substance treatment organization. At the same time, Delta Tau Delta instituted Delts Talking About Alcohol, an educational program required for all pledges on how to recognize the signs of acute alcohol poisoning. In addition, pledge family-oriented activities, alcohol at pledge activities, and drinking games — like the ones Johnny participated in during the Homecoming party — were expressly prohibited.

Although Delta Tau Delta enacted its comprehensive provisions on hazing and alcohol in its member responsibility guidelines, these are not mere guidelines as would be understood in common parlance in the sense of being voluntary. Rather, a sophisticated compliance and enforcement mechanism ensured acquiescence from the local chapters. Through its chapter consultants and chapter advisors, Delta Tau Delta remained apprised of the daily activities in their local chapters. Not only were chapter advisors required to report conduct violations, they also were responsible to ensure the local chapter complied with any enforcement and corrective mechanisms mandated by the national fraternity. More specifically, designated evidence reveals that the chapter advisor was present at the fraternity house on the evening of October 3, 2008 and again on the day of the Homecoming party.

While it is clear that the sophisticated nature of the rules and the lengthy, explicitly phrased member responsibility guidelines with its enforcement mechanisms indicate some oversight by the national fraternity in policing its collegiate chapters, there remains a genuine issue of material fact whether this level of influence alone is sufficient to find that Delta Tau Delta assumed a duty to protect its pledges from hazing and excessive alcohol consumption. As such, the undisputed material facts support conflicting reasonable inferences which make the grant of summary judgment inappropriate. Therefore, we reverse the trial court’s grant of summary judgment in favor of Delta Tau Delta.

C. Agency Relationship

In a related argument, the Smiths contend that the trial court erred in concluding as a matter of law that Delta Tau Delta is not responsible for violations of the hazing statute and the dram shop laws as it did not have an agency relationship with its local chapter. To be liable under this theory, an agency relationship must exist. Foster, 567 N.E.2d at 872. Agency is a relationship which results from manifestation of consent by one party to another. Id. The elements of agency are consent and control. Id. An agent must acquiesce to the arrangement, and be subject to the principal’s control. Id. Where apparent authority is at issue, it must be initiated by a manifestation of the principal. Swanson v. Wabash College, 504 N.E.2d 327, 331 (Ind.Ct.App.1987). In other words,

the necessary manifestation is one made by the principal to a third party who in turn is instilled with a reasonable belief that another individual is an agent of the principal. It is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party. Statements or manifestations made by the agent are not sufficient to create an apparent agency relationship.

Id. at 331-32.

In Ballou v. Sigma Nu Gen.’l Fraternity, 291 S.C. 140, 352 S.E.2d 488, 496 (S.C.Ct.App.1986), the court recognized the fraternity’s implied consent to the agency relationship with its local chapter after a pledge died of alcohol intoxication during a mandatory initiation party (hell night). Looking at the scope of the agency, the court focused on the following:

Although Sigma Nu by-laws prescribe a formal, quasi-religious initiation ceremony, they do not prohibit an active collegiate chapter from supplementing the initiation process by requiring candidates for membership to participate in an additional initiation activity. In this case, the active collegiate chapter required candidates for membership to participate in hell night as part of the process of initiation into Sigma Nu.
In initiating new members, the local chapter was accomplishing the purpose of Sigma Nu and was “about the business” of Sigma Nu. Indeed, as Justice Cothran observed in his concurring opinion in Derrick v. Sovereign Camp, W.O.W., 115 S.C. [437] at 443, 106 S.E. [222] at 224 [(1921)], the introduction of new members “is the life blood of all such organizations.” Because it was within Sigma Nu’s interest that new members be received, we are satisfied that the local chapter in conducting hell night and in requiring the pledges to participate in hell night was a condition of membership in Sigma Nu acted within the scope of the apparent authority conferred on it by Sigma Nu.

Id.

Delta Tau Delta’s constitution, bylaws, and member responsibility guidelines establish that the national fraternity prescribed rules and requirements for recruiting and initiating new members, and for approved conduct in daily activities. It explicitly prohibited the local chapter to engage in hazing, pledge family activities, and to provide alcohol to pledges. Deviation from these rules and guidelines is penalized by sanctions and suspensions. The national fraternity further controlled the activities of its local chapter with respect to hazing and alcohol consumption through its enforcement procedures, implemented by the chapter consultants and advisors. There is designated evidence that the local chapter appeared to submit to and comply with the national fraternity constitution, bylaws, guidelines, and administered sanctions. As with the assumption of duty, we likewise conclude that there is a genuine issue of material fact whether an agency relationship existed between Delta Tau Delta and its local chapter.

D. Comparative Fault

As an alternative argument, Delta Tau Delta contends that because the “undisputed evidence establishes that Johnny [was] more than 50% at fault for his own damages,” the trial properly granted summary judgment pursuant to the Indiana Comparative Fault Act. (Appellee’s Br. p. 24).

Under the Comparative Fault Act, liability is to be apportioned among persons whose fault caused or contributed to causing the loss in proportion to their percentages of fault as found by the jury. See I.C. § 34-51-2-8. Fault apportionment is uniquely a question of fact to be decided by the jury. McKinney v. Pub. Serv. Co. of Ind., Inc., 597 N.E.2d 1001, 1008 (Ind.Ct.App.1992), trans. denied. At some point, the apportionment of fault may become a question of law for the court. But that point is reached only when there is no dispute in the evidence and the factfinder is able to come to only one logical conclusion. City of Crawfordsville v. Price, 778 N.E.2d 459, 463 (Ind.Ct.App.2002).

We have not reached that point yet. Although the undisputed designated evidence establishes that Johnny was required to attend the Homecoming party and pledge family drink night, there is no evidence before us that Johnny either voluntarily or was forced to consume the amount of alcohol he did.' Moreover, even if the evidence reflected that Johnny was not mandated to consume alcohol, there is no evidence establishing that Johnny was made aware of that fact. Based on the designated evidence, we cannot say that a factfinder could come to only one logical conclusion.

CONCLUSION

Based on the foregoing, we hold that the trial court abused its discretion by admitting certain paragraphs of Russell’s affidavit and by admitting two unsworn, unverified, and uncertified statements. Additionally, we find that the trial court erred in granting Delta Tau Delta’s motion for summary judgment as there is a genuine issue of material fact that (1) an agency relationship existed between the national fraternity and its local chapter and (2) the national fraternity assumed a duty to protect its freshmen pledges.

Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

BARNES, J. concurs.

BAKER, J. concurs in part and in result with separate opinion.

BAKER, Judge,

concurring in part and in result.

While I concur in the result reached by the majority and in most of its analysis, I write separately to detach myself from a conclusion reached by the majority pertaining to the motion to strike. More particularly, regarding Paragraph 6 of Russell’s affidavit stating that “[t]he International Organization does not handle the affairs of local chapters,” appellant’s app. p. 302, I cannot agree that this is an “outright denial of any interference in the affairs of the local chapter,” that Russell contradicted in his subsequent deposition testimony. Op. at 333 (emphasis added).

To be sure, Russell’s deposition testimony is consistent with the statement in his affidavit that Delta Tau Delta does not handle the affairs of the local chapter. For instance, Russell testified that Delta Tau Delta did not tell the local chapters “who they can pledge ... what people they elect ... we do not control their funds ... we do not get involved in housing arrangements-” Appellant’s App. p. 242. Moreover, I cannot agree that Russell’s testimony regarding Delta Tau Delta’s constitution, bylaws, and guidelines, coupled with the presence of enforcement mechanisms, directly contradicts his affidavit such that the trial court abused its discretion when it denied the Smiths’ request to strike Paragraph 6.

      . This cause comes before us as an appeal to the trial court's grant of summary judgment, instigated by Delta Tau Delta's motion. Although the Smiths filed an amended complaint, which also alleged several claims against Wabash College, Delta Tau Delta’s local Beta Psi Chapter, and Marcus Manges, Beta Psi’s risk manager, these parties did not join in the motion for summary judgment and accordingly are not before us on appeal. See Appellate Rule 17(A).

      . Although the Smiths enumerate paragraph 11 as being contradictory to Russell’s deposition, they omit any argument pertaining to it. As such, the Smiths waived their claim relating to paragraph 11.

      . The second statement expresses a similar sentiment but is dated Wednesday, Dec. 3, 2008 and took place at the former Delta Tau Delta building on the Wabash College campus.

      . Even though Delta Tau Delta points to evidence indicated that drinking was not a requirement for membership, we deemed this evidence to be inadmissible.


author: CRONE, Judge.

text:
    Terrence T. WALKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A04-1208-CR-441.
    Court of Appeals of Indiana.
    May 14, 2013.

      Mark A. Bates, Office of the Lake County Public Defender, Appellate Division, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Terrence T. Walker appeals his conviction for class C felony child molesting involving fondling or touching. He argues that the victim’s father made several inadmissible statements concerning Walker’s guilt, resulting in fundamental error. He also argues that the trial court erred in failing to instruct the jury on class D felony sexual battery because it is a lesser-included offense. Finally, he argues that the trial court abused its discretion in replacing a juror because that juror was the only African-American juror.

We conclude that fundamental error did not occur as a result of any inadmissible testimony. We also conclude that the trial court did not err in failing to instruct the jury on class D felony sexual battery because it is not an inherently or factually included offense of class C felony child molesting as charged here. We further conclude that the trial court did not abuse its discretion in replacing the juror. Therefore, we affirm.

Facts and Procedural History

In July 2010, thirty-eight-year-old Walker lived in Crown Point with his wife, Crystal King, and two step-daughters, A.K. and M.K. Walker’s stepdaughters sometimes played with thirteen-year-old A.B., who lived nearby with her mother (“Mother”), her step-father (“Father”), and her brother.

On the evening of July 14, 2010, A.B. was riding her bike and playing with Walker’s stepdaughters. As twilight fell, A.B.’s parents went to Walker’s residence to bring A.B. home. Walker was going to set off fireworks, and the girls wanted to watch. Walker told AB.’s parents that he and his stepdaughters would walk A.B. home. A.B.’s parents gave her permission to stay and watch the fireworks, and they returned to their home.

At 11:30 p.m., A.B. was still outside playing with Walker’s stepdaughters. Walker was sitting outside and drinking beer with Keith Woods, who lived across the street. Walker was intoxicated. Eventually, Walker told A.B. to go home but to “come back around.” Tr. at 336. Walker told his stepdaughters to walk A.B. home. A.B. rode her bike, and the girls walked behind her. Walker watched from the front of his house. When A.B. was about halfway home, Walker called his stepdaughters to return home. They came home and went to bed. A.B. waited until Walker was alone outside, and she rode her bike back to Walker’s residence. A.B. set her bicycle down in the front yard. Walker told her to put the bike in the back yard behind the shed. Walker took A.B. inside his house, and they sat on the couch and watched TV. Walker touched A.B. on the shoulder and said that she was pretty. Walker asked A.B. to come with him. A.B. followed Walker into the kitchen, through the laundry room, and then into the garage.

Walker’s car was in the garage. Walker opened the driver’s side door, lifted up the driver’s seat, and pushed A.B. into the back seat. A.B. asked Walker what he was doing. She told him to stop. A.B. tried to scream, but Walker covered her mouth with his hand. Walker pulled down A.B.’s leggings. He pulled the left leg of her leggings completely off. He got on top of her. He kissed her neck and told her that she was pretty. A.B. heard someone trying to lift the garage door. Walker got up, told A.B. to stay there, and left. Three or four minutes later, A.B. pulled up her leggings, noticed that her underwear was missing, and went into the house through the laundry room door.

Meanwhile, Mother and Father had fallen asleep at home. They woke up and realized that A.B. was not home. They went to Walker’s house. Father knocked on the doors and windows, but nobody answered. Father went across the Street to Woods’s house for help. Woods knocked on the door to Walker’s house. Woods used his cell phone to call Walker. Walker’s wife, King, was in bed alone. She answered the phone. King said that Walker was not at home and that A.B. was not there. Father called the police.

The police arrived in approximately five minutes. Two officers knocked on Walker’s front door. A third officer went to the back of the house, observed an empty deck, and returned to the front of the house. King answered the front door in her nightgown. She told the officers that A.B. was not there and that her husband was not home. Walker emerged from the kitchen area and came to the door clothed and wearing tennis shoes. Police asked him to come forward, and Walker stepped outside. He told police that he had been outside on the back deck and that he did not know where A.B. was. Police saw A.B. emerge from the kitchen. A.B. then exited the house through the front door. Mother described A.B. as “disheveled” and “a complete wreck.” Id. at 151. A.B. felt “scared,” “confused,” “like everything was [her] fault that if [she] said something [she] would be in trouble.” Id. at 348.

The police took A.B. to the side of the house to talk to her. The officers located A.B.’s bike behind Walker’s shed. A.B. did not reveal to the police that anything inappropriate had occurred between her and Walker. The officers told A.B.’s parents to take her to the hospital. The police took Walker to the police station for questioning.

A.B.’s parents took her to the hospital. A.B. denied that she had been raped and would not agree to submit to a sexual assault evidence collection kit or “rape kit” because she was “scared” and “uncomfortable” “because all [her] family was in the room” and she “didn’t know if they would leave or not.” Id. at 350. The doctor on staff did not order a rape kit for A.B. because she did not “verbally tell him that she had been raped.” Id. at 155.

A.B. and her parents returned home. Mother stayed in the car with A.B., who started crying. A.B. went into the house. Mother followed A.B. to the bathroom and noticed that she was not wearing her underwear. Mother had watched A.B. dress that morning and knew that she was wearing underwear when she went out that day. Mother asked A.B. what had happened to her underwear. A.B. began crying again and told Mother that Walker had taken her into his ear and sexually assaulted her. Mother called the police. They instructed her to bag up A.B.’s clothing and bring it to the police station. Mother decided not to take A.B. back to the hospital because A.B. was having an “emotional breakdown.” Id. at 184.

The police obtained DNA samples from Walker, A.B., A.B.’s leggings, the back seat of Walker’s car, and items recovered from the car. Two samples taken from A.B.’s leggings contained DNA from which Walker could not be excluded as a contributor. One sample was from Area 16, which is located on the inside of the right leg of the leggings. State’s Ex. 14. The probability that a random person in the African-American population contributed to the DNA mixture in the sample from which Walker could not be excluded was 1 in 2.9 billion. Tr. at 616-17. The DNA expert testified that such a low probability indicated that it would be “somewhat rare to find another individual to be [a] possible contributor.” Id. at 617-18. The other sample was from Area 18, which is located on the outside front of the leggings somewhat below the waistband. State’s Ex. 12. The probability that a random person in the African-American population contributed to the DNA mixture in the sample from which Walker could not be excluded was 1 in 83,000. In addition, the sample taken from the back seat of Walker’s car contained DNA from which A.B. could not be excluded as a contributor. The probability that a random person in the African-American population contributed to the DNA mixture in the sample from which A.B. could not be excluded was 1 in 140,-000. Tr. at 628 and 624.

On October 14, 2010, the State charged Walker with class A felony child molesting involving sexual intercourse and class C felony child molesting involving touching or fondling. A four-day jury trial began June 18, 2012. The jury found Walker not guilty of class A felony child molesting but guilty of class C felony child molesting. Walker now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Father’s Testimony

At trial, Father testified on direct examination as follows:

Q. At some point in time did you wake up?
A. Yes, we did.
Q. And what happened when you woke up?
A. It was real late and then we thought about our daughter[ ].
Q. Okay.
A. You shouldn’t have done that, man. You shouldn’t have done that man. You shouldn’t have done that to my daughter.
[The prosecutor]:
Your Honor? Your Honor — [Father],
Q. Come on, man. You shouldn’t have done that. You took me and my wife’s kindness—
[The prosecutor]:
May we have a recess?
THE COURT:
[Father],
A. I can’t be in here. I can’t do this testimony.
THE COURT:
Just control yourself.
A. I really can’t be in here. I got to get out of here because I can’t — can I leave your courtroom, sir?
[Defense counsel]:
Your Honor, I still have obviously cross-examination as well.
THE COURT:
You can’t leave. Just control your temper, all right?
A. Yes, sir, I’m sorry.
THE COURT:
Otherwise the bailiffs will control you.
A. They ain’t gonna have to control me because I’m reliving something with my child.
THE COURT:
Would you like to take about a five minute recess?
A. Come on, right now, let’s go.
THE COURT:
Why don’t you go with the bailiff for just a few minutes, stand in recess for about five minutes. The jury will remain right there.
WHEREUPON THE COURT TOOK A SHORT RECESS.
THE COURT:
Ladies and gentlemen, please disregard the recent outburst that you heard there. It was not responsive to any questions, it was a volunteered outburst, so just disregard that outburst and I know all of you can consider how it occurred, so I hope it doesn’t happen again. If the defendant is ready we will bring him back in and start questioning.
A. I would like to apologize for my manners in your courtroom and I would like to apologize to everyone in the courtroom as well.
THE COURT:
Thank you, sir. Proceed. Just answer counsel’s questions.
A. Okay.

Tr. at 197-99.

During cross-examination, defense counsel questioned Father about the manner in which Mother questioned A.B. after she exited Walker’s house:

Q. Was your wife excited?
A. What do you mean excited?
Q. Was she upset?
A. Yeah, she was upset.
Q. Was she loud?
A. Was she loud? What do you mean?
Q. What [sic] she like, “[A.B.], where have you been?” Or was she asking her loudly, and in an excited, upset manner?
A. She wasn’t upset at [A.B.], it’s not [A.B.’s] fault.
Q. I’m just asking you, how she was speaking?
A. I’m explaining it to you. She was talking to my child, when this happened I was not mean to my daughter because that’s — that’s more abuse. She’s been messed over and abused here and you’re gonna take her home and abuse her? You don’t do a person like that.

Id. at 233.

Defense counsel also questioned Father regarding A.B.’s refusal to submit to a rape kit:

Q. And you remember the hospital personnel asking her, asking to examine her and she said “no”?
A. It was her choice, they said it was her own choice. We could not force her as parents to be examined.
Q. Did you hear her telling them “no”?
A. Yes, she said she didn’t want to be examined.
Q. Okay.
A. She just broke down, it’s like — it’s not a good feeling I guess for a kid to be violated. As an adult, how would you feel if somebody [violates] you? It would take your whole morale — so this is a little kid.
Q. Your wife told us that [A.B.] would not — or the hospital would not give [A.B.] a rape kit because [A.B.] never said anybody touched her. But you said that it was an issue of consent, [A.B.] wouldn’t let them test her?
A. They asked her did she want to take a test? [A.B.] is the one who has to say “yes”. As [a] parent you can’t do that. First of all, let me tell you something, if I thought that this individual didn’t do nothing, I would be in this court saying this man is innocent. I would never let nobody go through assassinating their character, and assassinating their life, putting a burden like this on them.

Id. at 235, 240.

Walker argues that Father’s testimony violated Indiana Evidence Rule 704(b) and denied him the presumption of innocence to which he is entitled. Walker did not object to the testimony of which he now complains and therefore has waived the issue for appellate review. See Kubsch v. State, 784 N.E.2d 905, 923 (Ind.2003) (“Failure to object at trial to the admission of evidence results in waiver of that issue on appeal.”). Moreover, the trial court admonished the jury following Father’s outburst. A timely and accurate admonishment is presumed to cure any error in the admission of evidence. Lay v. State, 659 N.E.2d 1005, 1009 (Ind.1995). “‘[Reversible error is seldom found when the trial court has admonished the jury to disregard a statement made during the proceedings.’ ” Warren v. State, 757 N.E.2d 995, 999 (Ind.2001) (quoting Bradley v. State, 649 N.E.2d 100, 108 (Ind.1995)).

Nevertheless, Walker argues that the trial court’s failure to sua sponte order a mistrial was fundamental error. He also claims that defense counsel’s failure to object to Father’s subsequent comments and move for mistrial resulted in fundamental error. We have said that

[t]he fundamental error exception is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. This exception is available only in egregious circumstances.

Palilonis v. State, 970 N.E.2d 713, 730 (Ind.Ct.App.2012), trans. denied.

Indiana Evidence Rule 704(b) provides, “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” It is clear that from Father’s outburst and his subsequent testimony that he believed Walker was guilty. However, it is unsurprising that Father believed his daughter and experienced intense emotions. We expect that most fathers would experience similar emotions. The trial court acknowledged that the jurors would have such an understanding. See Tr. at 199 (“so just disregard that outburst and I know all of you can consider how it occurred.”). We agree with the trial court that the jurors would understand this basic human response and presume that the jury followed the court’s instruction to disregard Father’s remarks. We conclude that the trial court’s admonishment cured any error arising from Father’s outburst.

As for Walker’s argument that Father’s subsequent comments rose to the level of fundamental error, we are unpersuaded. These subsequent comments were made during defense counsel’s cross-examination. Two of the three comments were responsive to defense counsel’s questions and therefore constitute invited error. “ ‘[Ejrror invited by the complaining party is not reversible error.’” Booher v. State, 773 N.E.2d 814, 822 (Ind.2002) (quoting Ellis v. State, 707 N.E.2d 797, 803 (Ind.1999)). The first of the comments was in response to defense counsel questions regarding whether Mother was excited, upset, and loud when she talked to A.B. about what had happened. Father replied, “I’m explaining it to you. She was talking to my child, when this happened I was not mean to my daughter because that’s — that’s more abuse. She’s been messed over and abused here and you’re gonna take her home and abuse her? You don’t do a person like that.” Tr. at 233. Father was merely explaining why they would not have been harsh with A.B. The second comment was in response to defense counsel’s questioning regarding A.B.’s refusal to submit to a rape kit. Father testified, “She just broke down, it’s like — it’s not a good feeling I guess for a kid to be violated. As an adult, how would you feel if somebody [violates] you? It would take your whole morale — so this is a little kid.” Id. at 235. Father was offering a reasonable explanation as to why A.B. would not agree to the rape kit. As this testimony constituted invited error, it is not reversible error.

Father’s last comment, however, was not responsive to defense counsel’s questions. He stated, “First of all, let me tell you something, if I thought that this individual didn’t do nothing, I would be in this court saying this man is innocent. I would never let nobody go through assassinating their character, and assassinating their life, putting a burden like this on them.” Tr. At 240. This testimony clearly violated Indiana Evidence Rule 704(b), but we cannot conclude that it deprived Walker of a fair trial. In addition to Father’s testimony, the jury observed and listened to the testimony of A.B., Mother, Walker’s wife, Walker’s stepdaughters, Keith Woods, five police officers, and two lab technicians. All witnesses were vigorously cross-examined. As discussed earlier, the jury would have understood that Father’s statements were influenced by his intense emotional response to the situation. In fact, the jury acquitted Walker of class A felony child molesting. Accordingly, we conclude that Father’s statement did not result in fundamental error.

II. Failure to Give Instruction

At the instruction conference following closing arguments, Walker requested an instruction on sexual battery as a class D felony. The trial court concluded that class D felony sexual battery was a lesser-included offense of class C felony child molesting and stated that it would give the instruction even though defense counsel had not submitted an instruction. However, the following day, the trial court did not provide the jury with an instruction on class D felony sexual battery. Walker did not object to the omission of the instruction.

Walker asserts that the trial court erred in failing to give the class D felony sexual battery instruction. The State asserts that Walker waived his claim by failing to object to the omission of the requested instruction. We agree. See Treadway v. State, 924 N.E.2d 621, 633 (Ind.2010) (“Failure to object at trial waives the issue for review unless fundamental error occurred.”). Walker can obtain reversal only by establishing fundamental error, error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process. Palilonis, 970 N.E.2d at 730.

When a party requests an instruction on an alleged lesser-included offense, the trial court must use a three-step analysis to determine whether the instruction is appropriate.

[First], the court must compare the statute defining the crime charged and the statute defining the alleged lesser-in-eluded offense. If the alleged lesser-included offense maybe established by proof of all of the same or proof of less than all of the same material elements to the crime, or if the only difference between the two statutes is that the alleged lesser-included offense requires proof of a lesser culpability, then the alleged lesser-included offense is inherently included in the crime charged.
[Second], if the trial court determines that the alleged lesser-included offense is not inherently included in the charged crime, it must compare the statute defining the alleged lesser-included offense with the charging instrument in the case. If all of the elements of the alleged lesser-included offense are covered by the allegations in the charging instrument, then the alleged lesser-included offense is factually included in the charged crime.
[Third], [i]f the trial court has determined that the alleged lesser-included offense is either inherently or factually included in the charged crime, ... the trial court must examine the evidence presented by each party and determine whether there is a serious evidentiary dispute over the element or elements that distinguish the crime charged and the lesser-included offense. If it would be possible for a jury to find that the lesser, but not the greater, offense had been committed, then the trial court must instruct the jury on both offenses.

Watts v. State, 885 N.E.2d 1228, 1231-32 (Ind.2008) (citations omitted).

Walker was charged and convicted pursuant to Indiana Code Section 35^2-4-3(b), which provides,

A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.

Sexual battery is defined in Indiana Code Section 35-42-4-8(a)(l)(A), which provides in relevant part,

A person who, with intent to arouse or satisfy the person’s own sexual desires or the sexual desires of another person touches another person when that person is compelled to submit to the touching by force or the imminent threat of force ... commits sexual battery, a Class D felony.

Class D felony sexual battery is not an inherently included offense of child molesting because the sexual battery statute requires a finding that the victim was compelled to submit to the touching by force or imminent threat of force and the child molesting statute does not require this element but does require proof of age. Compare Ind.Code § 35-42-4-8(a) with Ind. Code § 35-42-4-3; see also Childs v. State, 886 N.E.2d 75, 77 (Ind.Ct.App.2008) (concluding that class D felony sexual battery was not an inherently lesser-included offense of class B felony child molesting).

Class D felony sexual battery is also not a factually included offense of class C felony child molesting as charged. The information for Walker’s class C felony molesting charge alleged,

[O]n or about July 15, 2010, in the County of Lake, State of Indiana, Walker, being at least twenty-one (21) years of age, did knowingly or intentionally perform or submit to any touching or fondling of either [A.B.] or Walker, with intent to arouse or satisfy the sexual desires of either [A.B.] or [Walker] when [A.B.] was a child under fourteen (14) years of age, contrary to I.C. 35-42-4-3 and against the peace and dignity of the State of Indiana.

Appellant’s App. at 6. The information does not allege facts including the element of force or imminent use of force as required for class D felony sexual battery. Accordingly, class D felony sexual battery is neither an inherently nor a factually included offense of class C felony child molesting as charged. Because it is neither inherently nor factually included, we do not proceed to the third step of examining the evidence, even though in this case there was evidence that A.B. was compelled to submit to Walker’s touching by force. Because class D felony sexual battery is neither inherently nor factually included in class C felony child molesting as charged, there was no error, let alone fundamental error, in the trial court’s omission of an instruction on class D felony sexual battery.

III. Replacement of Juror

At the close of the parties’ evidence on June 20, 2012, the trial court instructed the jury to return the following morning at 7:45 a.m. to hear closing arguments so that they could begin deliberating before other scheduled court proceedings began. This was two hours earlier than the three previous mornings.

The following day, Juror 271 was not present at 7:45 a.m. The trial court attempted to contact the juror on his cellphone but was unsuccessful because the juror had provided an incomplete phone number. At 8:22 a.m., the trial court met with the parties in open court, informed them that Juror 271 was not present and could not be reached by cellphone, and that the court had decided to replace the juror with an alternate. Defense counsel objected because Juror 271 was the only African-American on the jury. The court stated:

The truth of the matter is we don’t know where the juror is, we don’t know if that juror -will ever appear. The Court has to proceed[.] [I]t’s not a matter of the Court or anyone trying to prejudice your defendant. It just happened. So I’m going to overrule the motion and we will proceed with the jury and juror number 372 will soon be in juror seat three.

Tr. at 649. The parties presented closing arguments. At 9:45 a.m., the jury retired to deliberate. Juror 271 had arrived by then and explained to the trial court that he depended on public transportation and that the bus had broken down three times that morning.

Walker challenges the trial court’s decision to replace Juror 271 because Juror 271 was the only black juror on the panel. It is well settled that

[t]rial courts have significant leeway under Indiana Trial Rule 47(B) in determining whether to replace a juror with an alternate and we will reverse only if there was an abuse of discretion A defendant is entitled as a matter of right only to an impartial jury, Ind. Const, art. I, § XIII, and not to one of his precise choosing where the issue is merely replacing a regular juror with an alternate. Indeed, alternate jurors are presumed to be fair and equally qualified to the task.

Jervis v. State, 679 N.E.2d 875, 881-82 (Ind.1997) (citations omitted).

Essentially, Walker’s argument is that he was prejudiced by not having an African-American on the jury, and that if the court had just waited until 9:45 a.m. to begin that day, as it had the three previous days, it would not have had to replace Juror 271 because Juror 271 was in court by then and was blameless. Significantly, Walker does not allege that the replacement of Juror 271 was based on racial discrimination, nor are there any facts present here that remotely suggest that Juror 271 was replaced due to racial discrimination. Rather, Walker asks us to assume prejudice, saying that he “was prevented from having his fate determined by a properly empaneled jury selected by him for that purpose.” Appellant’s Br. at 18. We disagree. Indiana Trial Rule 47(B) provides, “Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities and privileges as the regular jurors.” See also King v. State, 508 N.E.2d 1259, 1263 (Ind.1987). Walker does not argue that his role in selecting the alternate juror was anything less than required by our trial rules. We decline to presume prejudice.

Further, to the extent that Walker’s argument relies on the fact that Juror 271 appeared before the end of closing arguments and was blameless, it is based on pure hindsight. At 8:22 a.m., the trial court did not know why Juror 271 was absent, let alone when or whether he would appear. The trial court had sound reasons to proceed. Accordingly, we conclude that the trial court did not abuse its discretion in replacing Juror 271.

Affirmed.

ROBB, C.J. and FRIEDLANDER, J., concur.

      . The State reports that Walker "began assaulting her sexually.” Appellee's Br. at 4. Walker argues that the "statement is not true” because the "jury rejected [A.B.’s] story by acquitting Walker on the Class A felony [child molesting involving sexual intercourse] charge.” Appellant's Reply Br. at 2. A.B. testified that Walker was on top of her, kissed her, and pulled down her leggings. As such, the State was not mischaracterizing the evidence.

      . Apparently, no one ever found or admitted finding A.B.’s underwear.

      . The State says, "Lab tests revealed that A.B.’s DNA was recovered from Defendant’s vehicle and Defendant’s DNA was recovered from the waistband of A.B.’s leggings.” Ap-pellee’s Br. at 6. Walker contends that the State "mischaracterizes the evidence by claiming that A.B.’s DNA was recovered from the vehicle” and that there "was no testimony that Walker's DNA was definitely recovered from A.B.’s leggings.” Appellant’s Reply Br. at 3. Our review of the record reveals the truth to be somewhere between these positions, as shown by our recitation of the facts. It is unfortunate that neither party accurately described the DNA evidence.

      . Walker also asserts that the prosecutor, in closing argument, compounded the error of Father’s improper testimony by vouching for Father’s belief. See Gaby v. State, 949 N.E.2d 870, 880 (Ind.Ct.App.2011) ("It is inappropriate for a prosecutor to make an argument which takes the form of personally vouching for a witness.’’). Walker complains that the following statement constitutes improper vouching: "You might question some of their parenting skills, but as you can see, especially coming from [Father], he is tore up about that fact. That he didn’t do what he needed to do to protect his little girl.” Tr. at 654. The prosecutor merely stated that Father was upset. "A prosecutor may comment on the credibility of the witnesses only if the assertions are based on reasons which arise from the evidence.” Id. at 881. Acknowledgment of Father's emotional distress is not an endorsement of Father’s truthfulness. The prosecutor’s comment does not constitute improper vouching. There was no error, let alone fundamental error.

      . A.B. testified that Walker pushed her into the back seat and pulled off her leggings. She further testified that she told Walker to stop and tried to scream, but Walker covered her mouth with his hand. Thus, there was evidence presented that would have supported the element of touching by force as required by the sexual battery statute. See Ind.Code. § 35-42-4-8(a)(l)(A). However, according to the three-step analysis, it is not appropriate to give the jury an instruction on class D felony sexual battery because it is neither an inherently nor a factually included offense as charged. There appears to be a logical anomaly in the current state of the law that does not permit an instruction on an alleged lesser-included offense even when there is evidence in the record to support all the elements of that offense unless requested by the State. Why the State but not the defendant would have exclusive control over this situation is, however, not readily apparent. We are bound to follow the law unless and until our supreme court instructs us otherwise.

      . The record is unclear as to precisely when Juror271 arrived.