author: RUCKER, Justice. MASSA, Justice,

text:
    Anthony H. DYE, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
    No. 20S04-1201-CR-5.
    Supreme Court of Indiana.
    March 21, 2013.

      Peter D. Todd, Appellate Public Defender, Elkhart, IN, Kenneth R. Martin, Gosh-en, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition For Rehearing

RUCKER, Justice.

The State seeks rehearing of this Court’s opinion in which we determined that the Defendant’s sentence for unlawful possession of a firearm by a serious violent felon (“SVF”), which was enhanced under the general habitual offender statute, constituted an impermissible double enhancement. Dye v. State, 972 N.E.2d 853 (Ind.2012).

The essential facts are these. On May 1, 2007 the State charged Anthony H. Dye with unlawful possession of a firearm by a serious violent felon based on his September 10, 1998 conviction of attempted battery with a deadly weapon. The State also sought to have Dye’s sentence enhanced under the general habitual offender statute which provides that the sentence of a person convicted of a felony can be enhanced by up to thirty years if he or she previously has been convicted of two prior unrelated felonies. See Ind.Code § 35-50-2-8. The two felonies on which the State relied were Dye’s 1998 conviction for possession of a handgun within 1,000 feet of a school and his 1993 conviction for forgery.

Dye pleaded guilty to the SVF charge; but filed a motion to dismiss the habitual offender charge contending that enhancing his sentence under the general habitual offender statute would constitute an impermissible double enhancement. The trial court denied the motion and the case proceeded to a jury trial on the habitual offender allegation. The jury found that Dye was a habitual offender; and the trial court sentenced him to 20 years imprisonment for the SVF conviction, enhanced by 30 years for the habitual offender adjudication. The trial court suspended 15 years to probation, for an executed term of 35 years. Dye appealed contending the trial court improperly denied his Batson challenge; the trial prosecutor improperly elicited details of Dye’s prior convictions; the habitual offender charge was impermissi-bly enhanced; and his sentence was inappropriate considering the nature of the offense and the character of the offender under Indiana Appellate Rule 7(B). In a divided opinion the Court of Appeals rejected Dye’s claims. Dye v. State, 956 N.E.2d 1165 (Ind.Ct.App.2011). In dissent Judge May concluded that Dye had been subject to an impermissible double enhancement. Id. at 1173-76 (May, J., dissenting).

Dye sought transfer contesting the habitual offender adjudication, the trial court’s denial of his Batson challenge, and arguing his sentence was inappropriate. Accepting transfer a majority of this Court concluded the trial court erred in denying Dye’s -motion to dismiss the habitual offender allegation and vacated the 30-year enhancement the trial court had imposed under the general habitual offender statute. See Dye, 972 N.E.2d at 858. In so doing we held in part “a double enhancement is improper where the underlying conviction is for unlawful possession of a firearm by an SVF.” Id. (citing Mills v. State, 868 N.E.2d 446, 452 (Ind.2007)).

The State filed a timely petition for rehearing contending the Court’s decision is a departure from Mills in that the Court has now “held that serious violent felons who possess firearms cannot be punished as habitual offenders.” Pet. for Reh’g at 1. We grant rehearing to address this contention.

Corey Mills was charged with (1) carrying a handgun without a license (the “handgun” count); (2) possession of a firearm by a serious violent felon (the “SVF” count); and being a habitual offender (the “habitual offender” count). The handgun count was based on Mills’ arrest for possession of an unlicensed handgun. The SVF count, which requires a prior conviction of a serious violent felony, was based on Mills’ 1995 conviction for voluntary manslaughter. The habitual offender count, which requires two prior unrelated felony convictions, was based on that same 1995 voluntary manslaughter conviction and on Mills’ conviction for robbery in 1989. Mills v. State, 868 N.E.2d at 447. Under the terms of a plea agreement Mills pleaded guilty to the SVF and habitual offender counts. The State dismissed the handgun count. Subject to a cap of twenty years, sentencing was left to the discretion of the trial court. Before entering into the plea agreement, Mills had asked his attorney whether the law permitted him to be sentenced on the SVF count and then have an additional sentence imposed based on the habitual offender count. Mills’ lawyer assured him that sentencing on both the SVF and habitual offender counts was permissible. As it turns out, the Court of Appeals had ruled just the opposite in an opinion pre-dating Mills’ plea. After entering into the plea agreement, but before sentencing, Mills sought to withdraw his guilty plea, objecting to the prospect that he would be sentenced on both the SVF and habitual offender counts. The trial court denied Mills’ request and in accordance with the plea agreement sentenced Mills to ten years on the SVF count, enhanced by ten years on the habitual offender count. Id. at 447-48.

Mills did not appeal the trial court’s denial of his request to withdraw his plea. Instead Mills sought post-conviction relief contending (1) he received ineffective assistance of counsel because he had been inaccurately advised on the propriety of sentencing on both the SVF and habitual offender counts, and (2) his guilty plea was thus not knowing, intelligent, and voluntary. Id. at 448. The post-conviction court denied relief and the Court of Appeals affirmed. On transfer this Court traced the legislative and case law developments on the question of when a trial court may impose on criminals more severe sentences than would otherwise be the case because they have proven to be “repeat” or “habitual” offenders. Id. at 448-51. Ultimately the Court held “a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a ‘serious violent felon.’ ” Id. at 447 (emphasis added); see also Beldon v. State, 926 N.E.2d 480, 483 (Ind.2010) (“[A] defendant convicted under a progressive penalty statute ‘may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony’ used to elevate the underlying charge.”) (quoting Mills, 868 N.E.2d at 452); Dugan v. State, 976 N.E.2d 1248, 1250 (Ind.Ct.App.2012) (same). We reaffirm this holding today.

In this case, Dye was charged as a serious violent felon based on a 1998 conviction for attempted battery with a deadly weapon. He was also charged as a habitual offender based on a 1998 conviction for possession of a handgun within 1,000 feet of a school, and a 1993 conviction for forgery. Thus Dye’s twenty-year enhanced sentence under the general habitual offender statute was not based on the “same felony” used to establish that Dye was a serious violent felon. On this ground Dye is not entitled to relief.

However, in his petition to transfer before this Court Dye argued that he nonetheless was subject to an impermissible double enhancement. We agree. Although the habitual offender adjudication was not based on the same felony used to establish that Dye was a serious violent felon, it was based on a felony that was part of the same res gestae.

The general habitual offender statute provides in pertinent part “the state may seek to have a person sentenced as a habitual offender for any felony by alleging ... that the person has accumulated two (2) prior unrelated felony convictions.” I.C. § 35-50-2-8(a) (emphasis added). As we noted nearly three decades ago — shortly after the statute was enacted — “[t]he phrase ‘unrelated felony1 in our habitual offender statute means the predicate felony is not part of the res gestae of the principal offense and that the second predicate felony was committed after conviction of the first predicate felony.” Beach v. State, 496 N.E.2d 43, 45 (Ind.1986) (citing Erickson v. State, 438 N.E.2d 269, 273 (Ind.1982); Connell v. State, 470 N.E.2d 701, 707-08 (Ind.1984)). See also Toney v. State, 715 N.E.2d 367, 369 (Ind.1999) (“ ‘Unrelated’ does not mean that the earlier felonies must be of a different nature, but is interpreted as [though] the felonies are not related ... as part of the res gestae of the current crime”) (internal quotation omitted); Beldon, 926 N.E.2d at 484 (quoting Beach, 496 N.E.2d at 45) (“ ‘[Unrelated felony’ in our habitual offender statute means the predicate felony is not part of the res gestae of the principal offense.”).

Although res gestae is a term regularly used in Indiana’s common law of evidence to denote facts that are part of the story of a particular crime, it also includes acts that are part of an “uninterrupted transaction.” Swanson v. State, 666 N.E.2d 397, 398 (Ind.1996). And “[a] crime that is continuous in its purpose and objective is deemed to be a single uninterrupted transaction.” Eddy v. State, 496 N.E.2d 24, 28 (Ind.1986).

The record shows that arising out of a confrontation between Dye and an officer of the Elkhart Police Department on March 27, 1997, Dye was charged with Count I attempted murder; Count II possession of a handgun as a class C felony; Count III possession of a handgun within 1,000 feet of a school; and Count IV attempted battery while armed with a deadly weapon. Tr. at 504-508. On May 7, 1998 under cause number 20C01-9703-CF-00018 pursuant to the terms of a plea agreement, the State dismissed Count I and Dye pleaded guilty to Counts II thru IV. The trial court sentenced Dye to an eight-year concurrent term on each count. App. at 86-89. All three offenses arose out of one incident. Tr. at 507.

As we held in Mills a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence for that crime enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon. Mills, 868 N.E.2d at 447. Thus it is clear the State could not have relied on Dye’s 1998 conviction of attempted battery while armed with a deadly weapon as a predicate offense for the habitual offender adjudication, since that was the felony on which the State based the SVF charge. Rather, the State relied on another charge that arose out of and was a part of an “uninterrupted transaction” on which the SFV charge was based, namely Dye’s 1998 conviction for possession of a handgun within 1,000 feet of a school. This result contradicts the rule of lenity which we described in Ross v. State, 729 N.E.2d 113 (Ind.2000):

[W]hen a conflict arises over the question of imposing a harsher penalty or a more lenient one, the longstanding Rule of Lenity should be applied. “It is a familiar principle that statutes which are criminal or penal in their nature or which are in derogation of a common-law right must be strictly construed.” Also, “where there is ambiguity it must be resolved against the penalty....”

Id. at 116 (internal citations omitted) (superseded by statute on other grounds). Were we to sanction the State’s charging decision in this case, it would amount to elevating form over substance. We agree with Judge May’s observation that it is incongruous to hold that “two offenses ... are so related they could not be used together for an habitual offender enhancement are, at the same time, so unrelated that they may support .a double enhancement in the form of an SVF count and an habitual offender enhancement.” Dye, 956 N.E.2d at 1175 (May, J., dissenting).

In sum, the State is not be permitted to support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon.

Conclusion

We grant rehearing and again affirm that a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon. In all other respects we reaffirm our original opinion.

DICKSON, C.J., and DAVID and RUSH, JJ., concur.

MASSA, J., concurs in part and dissents in part with separate opinion.

MASSA, Justice,

concurring in part and dissenting in part.

While I join my colleagues in clarifying that the original majority opinion in this matter did not extend Mills to situations where different prior unrelated convictions are used to establish an habitual offender finding and the elements of the Serious Violent Felon statute, I continue to dissent from the ultimate result on rehearing for reasons previously explained. Dye v. State, 972 N.E.2d 858, 859 (Ind.2012) (Massa, J., dissenting).

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Having reached this conclusion, the Court declared Dye’s Batson claim moot. The Court also summarily affirmed that portion of the Court of Appeals opinion rejecting Dye’s Appellate Rule 7(B) claim.

      . Because Mills’ sentence was enhanced under the general habitual offender statute based in part on his 1995 conviction for voluntary manslaughter — the same felony used to establish that he was a serious violent felon — -the sentence ran afoul of the prohibition on double enhancements. However Mills was not entitled to relief because he failed to contest the trial court’s denial of his motion to withdraw his guilty plea by direct appeal and was precluded from raising the issue in a post-conviction proceeding. Id. at 452 (citing Collins v. State, 817 N.E.2d 230, 232 (Ind.2004)). Thus, we affirmed the judgment of the postconviction court.


source: Caselaw Access Project

author: MASSA, Justice.

license: Public Domain

text:
    In re Prosecutor’s Subpoena Regarding S.H. and S.C., S.H., Appellant (Defendant below), v. State of Indiana, Appellee (Plaintiff below).
    No. 73S01-1209-CR-563.
    Supreme Court of Indiana.
    March 27, 2013.

      Cara Schaefer Wieneke, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 73A01-1109-CR-468

MASSA, Justice.

When a prosecutor has neither filed a charge nor initiated a grand jury proceeding, may she nevertheless petition a court to compel a party to testify under a grant of use immunity, when that party is the primary target of the investigation and has asserted the constitutional privilege against self-incrimination? We think not.

Facts and Procedural History

On September 27, 2010, S.C. gave birth to an infant alone in the Shelbyville apartment she shared with her boyfriend, S.H. Shortly thereafter, S.H. returned to the apartment, found S.C. and the infant, and took them to a nearby hospital. Medical staff noticed seven puncture wounds on the infant’s back and notified authorities.

During the ensuing investigation, police heard conflicting accounts of the circumstances of the infant’s birth and the cause of the injuries. The Indiana Department of Child Services initiated a Child in Need of Services investigation, and the infant was ultimately removed from her parents’ care.

On May 13, 2011, the Shelby County prosecutor petitioned the trial court for subpoenas to compel S.H. and S.C. to appear on May 17 and “give testimony relating to an incident involving the home birth of [the infant].” App. at 41. The court granted the petition and issued both subpoenas that same day.

The day before the parents were set to testify, their attorney moved to quash the subpoenas pursuant to their state and federal constitutional rights against self-incrimination. In a hearing held that day, the court granted the motion to quash. Immediately thereafter, the prosecutor petitioned the court for a grant of use immunity pursuant to Indiana Code § 35-34-2-8(a). After hearing argument from counsel, the trial court granted the petition for use immunity. Aware their attorney had raised concerns about the parents’ competency and was unable to continue to represent them, the court appointed counsel for them.

On June 15, new attorneys for both parents filed motions to correct error, arguing that the trial court’s decision to grant the petition for use immunity was based on “incorrect views of the current state of jurisprudence.” App. at 17, 28. After a hearing on August 4, the trial court denied parents’ motion to correct error, reasoning the authority to compel testimony through use immunity was “implicit in the office of the prosecutor itself.” App. at 45.

Parents appealed, and the Court of Appeals affirmed on other grounds. In re S.H., 969 N.E.2d 1048, 1053 (Ind.Ct.App.2012). Citing In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980), in which we said “we hold that the investigatory powers of the prosecutor now parallel those of the grand jury,” id. at 135, 409 N.E.2d at 1091, it concluded

the legislature’s explicit reference to grand jury proceedings in Ind.Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought.

In re S.H., 969 N.E.2d at 1053.

We granted parents’ petition to transfer, 975 N.E.2d 360 (Ind.2012) (table), thereby vacating the opinion below. Ind. Appellate Rule 58(A).

Standard of Review

In general, we review a ruling on a motion to correct error for abuse of discretion, Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.2003), keeping in mind that the trial court is best able to resolve disputed facts. Sanchez v. State, 675 N.E.2d 306, 310 (Ind.1996). Where, however, as here, the ruling turns on a question of law, we review the trial court’s legal conclusions de novo. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind.Ct.App.2010).

The Prosecutor Had No Statutory Authority to Request the Grant of Use Immunity

The founders of our nation, in their wisdom, ensured “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” U.S. Const, amend. V. The framers of our Indiana Constitution, more than sixty years later, made the same fundamental guarantee: “No person, in any criminal prosecution, shall be compelled to testify against himself.” Ind. Const, art. 1, § 14. The privilege so protected is not absolute, however; it “must be balanced against the government’s legitimate demands to compel citizens to testify so that, in order to effect justice, the truth surrounding the criminal incident may be discovered.” In re Caito, 459 N.E.2d 1179, 1182 (Ind.1984): see also Lefkowitz v. Turley, 414 U.S. 70, 81, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (noting the need for “rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.” (internal quotations omitted)). Our General Assembly has empowered prosecutors to compel witnesses to testify, tipping the scales in the government’s favor. See generally Ind. Code §§ 35-37-3-1 et seq. (2008); 35-34-2-1 et seq. (2008). To bring them back into balance, such compulsion must be accompanied by a grant of witness immunity “coextensive with the scope of the privilege.” In re Caito, 459 N.E.2d at 1182. Critically, the immunity must place the witness “in substantially the same position as if he had properly exercised his privilege to remain silent.” Id.

A. Neither Indiana Code Chapter 35-34-2 Nor 35-37-3 Apply Here

Our Indiana Constitution established the office of Prosecuting Attorney, but our General Assembly prescribed its powers and granted its authority. Ind. Const. art. 7, § 16; Mounts v. State, 496 N.E.2d 37, 39 (Ind.1986). “Where the Legislature has enumerated the powers incident to any given office and the Constitution is silent as to the duties of that office, the Legislature’s enactment is final, and supersedes any residual authority that office may have had at common law.” Mounts, 496 N.E.2d at 39. Indiana prosecutors, therefore, are free to exercise any power expressly granted to them by statute, but they may do no more. Id.

Two statutes empower prosecutors to compel testimony through a grant of use immunity. The first was the stated basis for the prosecutor’s petition here. It is located in a chapter entitled “Grand Jury and Special Grand Jury,” and it provides:

Upon request by the prosecuting attorney, the court shall grant use immunity to a witness before the grand jury. The court shall instruct the witness by written order or in open court that any evidence the witness gives before the grand jury, or evidence derived from that evidence, may not be used in any criminal prosecution against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the grand jury or the prosecutor. The court shall then instruct the witness that he must answer the questions asked and produce the items requested.

Ind.Code § 35-34-2-8(a) (2008) (both emphases added). The second provides:

If a witness, in any hearing or trial occurring after an indictment or infor-motion has been filed, refuses to answer any question or produce any item, the court shall remove the jury, if one is present, and immediately conduct a hearing on the witness’s refusal. After such a hearing, the court shall decide whether the witness is required to answer the question or produce the item.

Ind.Code § 35-37-3-l(a) (2008) (emphasis added). And continues:

If the court determines that the witness, based upon his privilege against self-incrimination, may properly refuse to answer a question or produce an item, the prosecuting attorney may make a written request that the court grant use immunity to the witness, in accordance with section 3 of this chapter.

Ind.Code § 35-37-3-2 (2008). And concludes:

Upon request of the prosecuting attorney, the court shall grant use immunity to a witness. The court shall instruct the -witness, by written order or in open court, that any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney. The court shall instruct the witness that he must answer the questions asked and produce the items requested.

Ind.Code § 35-37-3-3(a) (2008).

When confronted with a question of statutory construction, our primary goal is to determine and effectuate legislative intent. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind.2009). The words of the statute are the best evidence of that intent, and we therefore begin our analysis with those words. State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind.2008). We presume they were “selected and employed to express their common and ordinary meanings.” Porter Dev., LLC v. First Nat’l. Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.2007). We will read a clear and unambiguous statute to mean what it says, and we will neither enlarge nor restrict its plain and obvious meaning. Dep’t. of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind.1994).

Both the plain language of the first statute (“the court shall grant use immunity to a witness before the grand jury ”) and its placement within the “Grand Jury and Special Grand Jury” chapter indicate unequivocally that it is only applicable to the grand jury context. Similarly, the plain language of the second statute makes clear that it applies only in a “hearing or trial occurring after an indictment or information has been filed.”

Here, the prosecutor neither convened a grand jury nor filed an indictment or information. Thus, the prosecutor was not authorized to request a grant of use immunity under either of the above statutes. The source of that authority, if the authority indeed exists, must lie elsewhere.

B. The Prosecutor’s Section 33-39-1-4 Authority Does Not Extend to a Request for a Grant of Use Immunity, and Neither Indiana Bell Nor Any Other Precedent Confers Prosecutorial Authority in the Absence of Express Statutory Language

The State argues the prosecutor’s authority to request use immunity in this case stems from another statute, which provides:

When a prosecuting attorney receives information of the commission of a felony or misdemeanor, the prosecuting attorney shall cause process to issue from a court (except the circuit court) having jurisdiction to issue the process to the proper officer, directing the officer to subpoena the persons named in the process who are likely to have information concerning the commission of the felony or misdemeanor. The prosecuting attorney shall examine a person subpoenaed before the court that issued the process concerning the offense.

Ind.Code § 33-39-l-4(a) (2008). On its face, this statute empowers prosecutors to subpoena witnesses. It does not empower them to provide use immunity to those witnesses; indeed, it says nothing at all about use immunity. Therefore, it does not authorize the petitions for use immunity in this case.

The State further contends that regardless of the plain statutory text, our precedent has demonstrated tacit approval of the practice at issue here. Particularly, the State points to language from our opinion in In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980).

In Indiana Bell, the State, believing two ' prison escapees had made collect telephone calls to their parents, issued a subpoena duces tecum to the telephone company to obtain the parents’ telephone records. We framed the question on appeal as “whether a court has the power to issue a subpoena duces tecum to a non-party, non-witness, upon request of a prosecutor engaged in the investigation of a crime.” Id. at 134, 409 N.E.2d at 1091. Although the prosecutor had neither convened a grand jury nor filed charges against the escapees, we upheld the issu-anee of the subpoena, concluding: “we hold that the investigatory powers of the prosecutor now parallel those of the grand jury.” Id. at 135, 409 N.E.2d at 1091.

There are many reasons to decline the State’s invitation to extend our Indiana Bell holding here. First, that case dealt with a subpoena duces tecum, which does not implicate the constitutional privilege against self-incrimination; here, in contrast, we are dealing with a subpoena ad testificandum, which does implicate that privilege. See Ajabu v. State, 693 N.E.2d 921, 931 n. 11 (Ind.1998) (characterizing the right against self-incrimination as “testimonial in nature”); see also U.S. v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (characterizing the federal Fifth Amendment as a bar against compelled testimony). Second, the target of the Indiana Bell subpoena was not believed by anyone to be a target of the prosecutor’s investigation; here, the parents appear to be the only targets of the investigation. Most significantly, however, it is the General Assembly’s responsibility to delineate the scope of prosecutorial authority. We will not use Indiana Bell as a justification for a judicial expansion of that authority in contravention of the General Assembly’s express instructions. To do so would be an encroachment into the legislative purview incompatible with our constitutionally-mandated separation of powers.

Finally, the State argues it is illogical to construe these statutes in a way that gives prosecutors fewer investigatory powers in the pre-charge investigation stage than they have after they have filed charges. But that is not what we are doing here. If a prosecutor wishes to employ use immunity to compel testimony before deciding to file charges in a case, he or she may convene a grand jury and do so. We also recognize that the General Assembly may have had good reason to restrict use immunity — a potent tool that permits courts to override an individual’s constitutional right against self-incrimination — to contexts in which there is substantial judicial oversight. See, e.g., Oman v. State, 737 N.E.2d 1131, 1138 (Ind.2000) (noting that the judicial oversight of grand jury proceedings “militates against the possible prejudicial impact of testimonial or physical evidence improperly gathered by a prosecutor during his or her pre-charge investigation.”). Both grand jury proceedings and post-charge hearings and trials provide that oversight.

We therefore hold that in a situation where, as here, no charges have been filed and no grand jury has been convened, a prosecutor may subpoena witnesses pursuant to Indiana Code § 33-39-1-4; if those witnesses invoke their constitutional right against self-incrimination, however, the prosecutor cannot petition the court to grant them use immunity and compel them to testify without first filing charges or convening a grand jury. Further, we disapprove any language in Indiana Bell that may be read to contradict our holding today.

Conclusion

We reverse the trial court’s ruling on the motion to correct error and remand this case for further proceedings consistent with our opinion.

DICKSON, C.J., RUCKER, DAVID, and RUSH, JJ., concur.

      . The General Assembly made a cosmetic amendment to this section effective July 1, 2012, see Act of March 19, 2012, P.L. 126— 2012, § 48, 2012 Ind. Acts 2441, but we quote the statute here as it read when the subpoenas were issued, on May 13, 2011.

        . The General Assembly made a similar cosmetic amendment to this section effective July 1, 2012, see Act of March 19, 2012, P.L. 126-2012, § 49, 2012 Ind. Acts 2441-42; again, we quote the version in effect when the subpoenas were issued.


author: BAKER, Judge.

text:
    Robert E. EASTWOOD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 07A04-1202-CR-64.
    Court of Appeals of Indiana.
    Dec. 4, 2012.
    Publication Ordered Jan. 31, 2013.

      Katharine C. Liell, Liell & McNeil, Bloomington, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Robert E. Eastwood was charged with one count of Child Molesting, a class A felony, one count of Child Molesting, a class C felony, and one count of Fondling in the Presence of a Minor, a class D felony. During Eastwood’s jury trial, certain hearsay evidence was admitted through the testimony of various witnesses, and Eastwood did not object. The trial court also admitted two audio-taped statements of the victim into evidence, and Eastwood did not object to the admission of these statements. Eastwood was ultimately found guilty as charged.

It is apparent that Eastwood’s defense counsel’s decision not to object to the testimony and taped statements was indicative of a strategy to challenge the victim’s credibility and to point out the inconsistencies in her testimony. Eastwood has waived these issues and has not established that the admission of this evidence amounted to fundamental error. As a result, we affirm the judgment of the trial court.

FACTS

H.S. was born on May 20, 1997, and between the summer of 2002 and the fall of 2003, she and her brother attended a daycare at the Brown County home of Eastwood and his wife. Eastwood was otherwise unemployed and spent most of his time around the house.

During afternoon naptime, H.S. would sleep in one of the bedrooms with several of the older children. On one occasion during naptime, Eastwood walked into the room and placed his penis on H.S.’s anus. Another time, Eastwood told H.S. to put her mouth on his penis, but she refused. On other occasions, Eastwood would put his hands down H.S.’s pants, remove her clothes, put his mouth on H.S.’s vagina, or place his fingers inside her vagina.

Over the weekend of November 14-16, 2003, after H.S. and her brother had stopped attending the Eastwoods’ daycare, H.S. visited her great aunt, Debbie Hilli-goss. At some point, Hilligoss saw H.S. attempting to put a tube of lip gloss into her vagina and rub herself with a rubber ball. When Hilligoss asked H.S. why she was doing these things, H.S. responded that she did not know. However, H.S. told Hilligoss that Eastwood had “touched her there.” Tr. p. 332. H.S. also stated to Hilligoss that Eastwood had “rubbed [her] privates in the front and on the back.” Id. at 333. H.S. added that Eastwood “had laid on top of her with no clothes and on her backside with no clothes.” Id.

Hilligoss called Amanda, H.S.’s stepmother, and told her what H.S. had reported to her. Amanda drove to Hilligoss’s residence where they called Dana Stone, H.S.’s mother, and arranged to meet her at the McDonald’s restaurant in Nashville. Hilligoss informed Stone of what H.S. had said, and they proceeded to the Brown County Sheriffs Office. When they arrived, Detective Steve Brahaum interviewed H.S.

During the interview, H.S. told Detective Brahaum that Eastwood had placed his fingers on her “front and back.” Tr. p. 466. H.S. explained that her front is the part she uses to go to the bathroom. H.S. also clarified that her back was her “butt.” Id. at 467. H.S. told Detective Brahaum that Eastwood did these things to her in the bedroom while the other children were sleeping. H.S. further explained that Eastwood touched her on her bottom and on her front under the clothes and that Eastwood made her touch his “doing ding — the part that boys use to go to the bathroom.” Id. at 471. She also stated that Eastwood would be on top of her, and that Eastwood would “put his front on her front” and it felt “bad.” Id. at 473. H.S. then explained to Detective Brahaum that Eastwood would sometimes lie on the bed and masturbate in front of her and that' Eastwood told H.S. never to tell anyone about the incidents. At the conclusion of the interview, Detective Brahaum told H.S. to let Stone know if she remembered anything else.

The next day, Detective Brahaum and a representative from the Department of Child Services (DCS) went to the East-woods’ residence. Although Eastwood denied any wrongdoing, the DCS shut down the daycare that day.

On November 18, 2003, H.S. returned to the Sheriffs Office for a second interview. During that conversation, H.S. told Detective Brahaum that Eastwood would sometimes lie on the bed and ejaculate while she was next to him.

On January 16, 2004, Detective Brah-aum prepared an affidavit for probable cause and obtained an arrest warrant for Eastwood. When Detective Brahaum went to the residence, he discovered that Eastwood had fled. Eastwood was ultimately tracked to Robinson, Illinois, in 2011, and Detective Brahaum requested assistance from the United States Marshals Service (Marshals Service) in executing the arrest warrant.

On September 14, 2011, Deputy Pete Kell of the Marshals Service went to Eastwood’s address in Robinson. The police officers eventually located Eastwood hiding behind a shelving unit at the residence. Eastwood told Deputy Kell that he had “dragged the whole process out” because he was hoping that the police would give up and go away. Tr. p. 549.

Eastwood was taken into custody, and at a jury trial that commenced on December 14, 2011, Eastwood testified that he had moved from Brown County to his daughter’s mobile home in Parker’s Lake, Kentucky, at about the same time that the arrest warrant was issued. He and his wife eventually moved to Robinson. When Eastwood was apprehended, he told Deputy Kell that he was “old and tired of running.” Id. at 635.

H.S. testified as a witness against Eastwood and was cross-examined about some inconsistencies in her deposition statements, trial testimony, and the initial statements that she gave to Detective Brahaum. The trial court admitted her recorded interviews with Detective Brah-aum into evidence with no objection. H.S. also testified several times in detail regarding the allegations with no objection.

Hilligoss testified about H.S.’s initial statements that H.S. made to her about the incidents. Eastwood also did not object to that testimony. Stone also testified about what Hilligoss had told her. Eastwood objected on the grounds of hearsay, and the trial court instructed the jury that

[Sjhe’s about to tell you something that someone else, Ms. Hilligoss, told her, you are not to consider that evidence for the truth of what Ms. Hilligoss said, only as to why this witness took the next step she did. You may answer.

Tr. p. 413-14. Stone went on to testify that “Debbie asked the kids to stay in the car. Said she needed to talk to me. We went behind the van. She and Amanda and my ex-husband Jeremy.” Id. Eastwood’s counsel made a continuing objection, and the trial court again instructed that “it’s only being offered to show why she took the next step she did. Not for the truth of what Ms. Hilligoss said.” Thereafter, Stone testified:

She told me that [H.S.] had been molested and ... I mean, from there, um ... I didn’t know who. I mean ... so ... I asked and she said that [H.S.] told her it was [Eastwood]. So I asked if they would go with me immediately to the Sheriffs Department because I didn’t know what else to do. And that’s what we did.

Id.

At the conclusion of the trial, Eastwood was found guilty as charged. Thereafter, he was sentenced to an aggregate term of thirty years of incarceration. Eastwood now appeals.

DISCUSSION AND DECISION

I. Admission of Audiotaped Statements

Eastwood argues that fundamental error occurred when the trial court admitted into evidence the two audio-taped statements of H.S. that she had provided to Detective Brahaum. Although Eastwood did not object, he claims that such evidence was inadmissible as a matter of law and inflamed the passion of the jury.

We initially observe that the decision to admit or exclude evidence is within a trial court’s sound discretion and is afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.2003). An abuse of discretion occurs when the trial court’s decision is clearly erroneous and against the logic and effect of the facts and circumstances before it or it misinterprets the law. Id. at 703. When reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence in the defendant’s favor. Redding v. State, 844 N.E.2d 1067, 1069 (Ind.Ct.App.2006).

Eastwood acknowledges that he did not object and has waived the allegation of error. Johnson v. State, 734 N.E.2d 530, 532 (Ind.2000). However, as noted above, Eastwood attempts to preserve the issue, claiming that the trial court committed fundamental error in admitting the recordings into evidence.

The fundamental error exception is very narrow, and it arises only when there are “clearly blatant violations of basic and elementary principles, and the harm of potential for harm could not be denied.” Warriner v. State, 435 N.E.2d 562, 563 (Ind.1982). Fundamental error occurs only when the error is so prejudicial that a fair trial is rendered impossible. Benefield v. State, 945 N.E.2d 791, 801 (Ind.Ct.App.2011).

Although Eastwood argues that fundamental error occurred because he was denied his right to confront H.S., she was, in fact, called as a witness and underwent cross-examination. Tr. p. 381, 390. In fact, H.S. was specifically cross-examined about inconsistencies between her deposition statement with defense counsel and at trial with her initial statements to Detective Brahaum. Id. at 394-96. As a result, we reject Eastwood’s contention that fundamental error occurred in this instance.

We similarly reject Eastwood’s claim that fundamental error resulted and prejudiced Eastwood to the extent that he was denied a fair trial by the “drumbeat repetition” of H.S.’s testimony and the allegations against him. Appellant’s Br. p. 8-10. Indeed, Eastwood may very well have been able to prevent such repetition by objecting. However, Eastwood’s failure to object appears to have been a purposeful strategy that Eastwood’s defense counsel employed in an effort to challenge H.S.’s credibility.

Indeed, this appears to be the case because Eastwood did object to other alleged hearsay evidence that was offered at trial. Tr. p. 413. The strategy ultimately failed, and Eastwood’s counsel is now attempting to find fault with the admission of the very same evidence that was admitted into evidence without objection. This, Eastwood is not permitted to do, and he has failed to establish fundamental error with regard to this issue.

Eastwood then contends that he was unduly prejudiced by Hilligoss’s trial testimony regarding the initial disclosure that H.S. made. However, once again, Eastwood could have objected but failed to do so. The State observes, and we agree, that had Eastwood objected, the trial court would have at the very least, have given a limiting instruction regarding the use to which the jury could consider Hilligoss’s testimony. For instance, the trial court could have explained that the statement was introduced to show the next step that Hilligoss took with regard to the allegations. However, because Eastwood’s counsel appears to have chosen not to object as part of a deliberate strategy, Eastwood’s claim of fundamental error fails. See Stavropoulos v. State, 678 N.E.2d 397, 398 (Ind.1997) (observing that defense counsel’s failure to object to hearsay evidence in a child sexual assault case that consisted of mother’s testimony as to what the child had told her regarding the alleged assault and a police officer’s testimony as to the mother’s report of the child’s statements, was not particularly prejudicial, did not amount to ineffective assistance of counsel, and did not rise to the level of fundamental error requiring reversal).

In short, we will not permit the doctrine of fundamental error to provide a cover for a failed strategy that Eastwood deliberately pursued. Thus, his claims of fundamental error fail.

II. Admission of Evidence Regarding H.S. Disclosure to Hilligoss

Eastwood next claims that the trial court erred in admitting testimony regarding Hilligoss’s relation of the events to Stone about what H.S. had initially reported to Hilligoss. Eastwood argues that the trial court erred in admitting this evidence under the theory that the statements were used to explain the course of the investigation because the issue of why Stone took H.S. to the police “was irrelevant and of no probative value.” Appellant’s Br. p. 13.

As noted above, Stone testified about her reason for taking H.S. to the Sheriffs Office. Tr. p. 412-14. The testimony that followed concerned the statement that H.S. gave to Detective Brahaum that formed the basis for Eastwood’s arrest. Stone’s testimony also explained why a second interview with H.S. was conducted.

However, Eastwood asserts that the evidence was not relevant because “the theory of defense was that something may have happened to H.S., but Eastwood was not the perpetrator.” Appellant’s Br. p. 12. Notwithstanding this contention, the interview with Detective Brahaum was the means by which he came to suspect that Eastwood was the offender, which then prompted him to go to Eastwood’s residence and speak with him. Tr. p. 452, 481. It is apparent that the prosecutor presented this evidence showing why the investigation focused on Eastwood and not someone else. Moreover, the evidence was relevant to show the various investigative steps that Detective Brahaum took and why he took them. In short, Stone’s testimony provided the jury with an explanation as to why that interaction occurred at all.

When the trial court admitted this testimony, it twice cautioned the juror that they were not to regard the testimony for the truth of the matter asserted, but only to show why Stone took H.S. to the Sheriffs Department. Tr. p. 413-14. For these reasons, Eastwood has failed to show that he was unduly prejudiced by the admission of this evidence, and he has not established fundamental error.

The judgment of the trial court is affirmed.

.ROBB, C.J., and BRADFORD, J., concur.

      . Ind. Code § 35-42-4-3(a)(l).

      . I.C. § 35-42-4-3(b).

      . I.C. § 35 — 42—4—5(c)(3).


author: RILEY, Judge.

text:
    Demetrius WALKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1205-CR-380.
    Court of Appeals of Indiana.
    Jan. 30, 2013.
    Ordered Published March 4, 2013.

      Suzy St. John, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Demetrius Walker (Walker), appeals his conviction for resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-1.

We affirm.

ISSUE

Walker raises one issue on appeal which we restate as: Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his conviction.

FACTS AND PROCEDURAL HISTORY

At approximately 12:25 a.m. on March 25, 2012, Officer Jason Ehret (Officer Eh-ret) of the Indianapolis Metropolitan Police Department was dispatched to a fight in progress. At the intersection of South Sheffield Avenue and West Ray Street, the Officer was flagged down by a group of twenty-five to thirty people. He noticed two men, later identified as Cory Finch (Finch) and Walker, standing at the intersection, “[yjelling and cussing back and forth at each other.” (Transcript p. 8). At the time the Officer arrived, Walker appeared to walk away from Finch. However, Finch “was yelling towards” Walker and Walker then started walking back to Finch. (Tr. p. 8). Officer Ehret ordered to men to stay separate and then lay flat on the ground. Walker and Finch ignored the order and continued to move towards each other. Finch “threw a punch towards [Walker][;]” Walker retaliated and “they threw a couple more” for about ten to fifteen seconds. (Tr. p. 9). Officer Ehret repeatedly ordered the men to stop fighting and to lay on the ground. Finally, the Officer gave them a final warning, announcing that if they refused to comply they would be tased. Once the Officer said “tased,” Finch dropped to the ground with his arms out flat. (Tr. p. 11). Walker turned towards the Officer “with his clinched fists, and kind of stared at [the Officer] for a second, and then walk[ed] towards [him]. (Tr. p. 11). The Officer repeated his instruction to drop to the ground, but Walker continued to walk towards him with his “arms and fists [] clinched in an aggressive manner.” (Tr. p. 11). When Walker was about three to four feet away from the Officer, the Officer tased Walker. Walker fell to the ground and submitted to being handcuffed without incident.

On March 25, 2012, the State filed an Information charging Walker with Count I, resisting law enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1 and Count II, disorderly conduct, a Class B misdemeanor, I.C. § 35^45-1-3. On April 18, 2012, the trial court conducted a bench trial. At the close of the State’s evidence, Walker moved for involuntary dismissal of both Counts. The trial court denied the motion as to Count I but granted the motion as to Count II. After Walker rested, the trial court found him guilty of Count I and sentenced Walker to ninety days in the Marion County Jail.

Walker now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Walker contends that the State failed to present sufficient evidence to sustain his conviction for resisting law enforcement. When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind.Ct.App.2009), trans. denied. We may look only to the evidence most favorable to the judgment and reasonable inferences therefrom and will affirm if we conclude that evidence of probative value exists such that a reasonable fact finder could find the elements of the underlying crime proven beyond a reasonable doubt. Id.

To convict Walker of resisting law enforcement as a Class A misdemeanor, the State was required to establish beyond a reasonable doubt that Walker knowingly or intentionally forcibly resisted, obstructed, or interfered with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties. See I.C. § 35^44.1-3-1. Focusing on the “forcibly resisting” element of the charge, Walker argues that because he did not physically resist the Officer but merely disobeyed his command to drop to the floor, he cannot be found guilty under the statute.

Indiana courts have grappled with the issue of when resistance, obstruction, or interference rises to the level of forcible resistance, obstruction or interference. In Spangler v. State, 607 N.E.2d 720, 723 (Ind.1993), our supreme court clarified that “forcibly modified the entire string of verbs in that particular section of the statute, due to the placement of the adverb before the string of verbs in that particular section.” As such, the supreme court noted that “one forcibly resists law enforcement when strong, powerful, violent means are used to evade a law enforcement officer’s rightful exercise of his or her duties.” Id. We tempered the Span-gler definition of forceful in Johnson v. State, 833 N.E.2d 516, 519 (Ind.Ct.App.2005), when we stated that “our jurisprudence has not read ‘violent’ to mean that which is thought of in common parlance.” We concluded that “until we are instructed otherwise by our [s]upreme [c]ourt, we see no reason to apply what appears to be an overly strict definition of ‘forcibly resisting[.]’ ” Id. Our supreme court relied on Johnson, when it declared that “the force involved need not rise to the level of mayhem” and recognized that a “modest level of resistance may suffice.” Graham v. State, 903 N.E.2d 963, 965 (Ind.2009).

On the other hand, passive inaction is insufficient to rise to the level of forcible resistance. In A.C. v. State, 929 N.E.2d 907, 911 (Ind.Ct.App.2010), we determined that refusing to stand, without more, does not trigger the statute. Even if passive resistance requires police officers to use force, it is insufficiently forceful. See, e.g., Colvin v. State, 916 N.E.2d 306, 307-09 (Ind.Ct.App.2009), trans. denied (refusing to comply with officers’ commands to remove hands from pockets is not forcible resistance even though officers had to physically place defendant on the ground); Braster v. State, 596 N.E.2d 278, 280 (Ind.Ct.App.1992), trans. denied (defendant remained standing after being ordered to he on the floor and the officer swept defendant’s legs out from underneath him).

Moreover, even if a defendant’s resistance, obstruction, or interference is not passive, it still may fall short of being considered “forcible.” In Spangler, 607 N.E.2d at 721, when a sheriffs deputy attempted to serve the defendant with process, the defendant told the officer “I told you not to bother me at work ... Don’t you ever bother me at work again.” The defendant then turned around and walked away from the officer. Id. Even though the officer told Spangler to “come back here,” Spangler refused. Id. The Span-gler court held that this was resistance, but not forcible resistance. Id. at 724-25. However, adhering to the rule that the statute requires only modest levels of force, our supreme court has indicated that merely stiffening one’s arms instead of presenting them for handcuffing suffices for force. Graham, 903 N.E.2d at 966.

Recently, in Pogue v. State, 937 N.E.2d 1253, 1258 (Ind.Ct.App.2010), trans. denied, we declared that merely showing “strength and a threat of violence” is sufficient to prove forcible resistance, obstruction, or interference. In Pogue, a police officer ordered the defendant to drop a box cutter that he was holding. Id. at 1256. When Pogue attempted to move the box cutter unto his pocket, the officer tackled Pogue to the ground. Id.

In Stansberry v. State, 954 N.E.2d 507, 509 (Ind.Ct.App.2011), the defendant pulled his shirt over the top of his head and charged at the officer from ten feet away. The officer drew his pepper spray and announced that he would spray Stans-berry if he continued moving closer. Id. Stansberry disobeyed and kept charging, so the officer sprayed him in the face from six feet away. Id. After citing to Pogue with approval, the Stansberry court nevertheless reversed the conviction:

Here, the trial court stated that “I’m satisfied that the attempted resisting was forcible.” Thus the trial court expressly found that Stansberry did not resist, obstruct, or interfere with [the officer’s] execution of his duties. If we were working on a blank slate, we may have reached a different conclusion on these facts. However, given the trial court’s findings, Stansberry could not be convicted of [resisting [l]aw [enforcement.

Id. at 511.

The situation before us clearly falls within Pogue and its progeny. After Officer Ehret told Walker and Finch that he would use his tazer if they failed to comply with his order to drop to the ground, Walker disobeyed. Instead, Walker turned towards the Officer, stared at him, clinched his fists in an aggressive manner, and started walking towards him. Officer Ehret continued to demand Walker to drop to the floor, but when Walker was three to four feet away from the Officer, the Officer deployed his tazer. By these actions, we conclude that Walker displayed his “strength and a threat of violence” to satisfy the charge of forcibly resisting law enforcement. See Pogue, 937 N.E.2d at 1258.

CONCLUSION

Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Walker’s conviction.

Affirmed.

BAKER, J., and BARNES, J., concur.

      . At the time of Walker's offense, resisting law enforcement was codified at Ind. Code § 35-44-3-3. However, effective July 1, 2012, Public Law 126-2012 repealed that section and codified the offense under I.C. § 35-44.1-3-1. The Legislature did not alter the language or the requirements of the offense.


author: PYLE, Judge.

text:
    In re the PATERNITY OF A.S. M.S., Appellant, v. M.S., and B.H., Appellees.
    No. 64A03-1204-JP-171.
    Court of Appeals of Indiana.
    Jan. 31, 2013.

      Jeffrey A. Golding, Valparaiso, IN, Attorney for Appellant.
    Steven M. Bush, Valparaiso, IN, Attorney for Appellees.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

M.S. (“Mother”) appeals the trial court’s order awarding custody of her daughter, A.S., to the maternal grandmother, M.D. (“Grandmother”).

We reverse.

ISSUE

Whether Grandmother rebutted the presumption that A.S.’s interests are best served by placement with Mother.

FACTS AND PROCEDURAL HISTORY

On February 19, 2002, Mother gave birth to A.S. After their release from the hospital, both Mother and A.S. moved into Grandmother’s Crown Point, Indiana home. For an unspecified period, Grandmother provided primary care to both Mother, who was suffering from postpartum depression, and A.S. According to Grandmother, once Mother felt better, “we [Mother and Grandmother] jointly cared and raised [A.S.] (Tr. 78). Grandmother provided the majority of AS.’s financial support. Mother sporadically worked outside the home, and Grandmother worked full time as a nurse at a local hospital.

Mother and A.S. continued to live with Grandmother until April of 2007, when Mother moved out of the house to live with her current husband and A.S.’s stepfather, Mi.S. (“Stepfather”). In approximately May of 2007, Mother and Stepfather began living in an apartment in Lowell, Indiana. In August of 2007, Mother was convicted of operating a vehicle while intoxicated, and her driver’s license was suspended. At that time, Mother had already registered A.S. for pre-school in the Crown Point District, and Mother, Stepfather, and Grandmother agreed that A.S. would continue to live with Grandmother during the school week and live with Mother and Stepfather on weekends. This arrangement continued until May, 2008, the end of the 2007/2008 school year.

After May of 2008, A.S. lived with Mother and Stepfather in their Valparaiso apartment and was living with them at the time of the custody hearing. From May of 2008 until December of 2009, A.S. visited Grandmother on the weekends. On April 22, 2009, Mother gave birth to Mother and Stepfather’s first child, Av.S. In July of 2009, Mother again became pregnant, and in December of 2009, Mother experienced life-threatening complications that required her to be hospitalized on December 26, 2009, in an Illinois hospital.

On that date, A.S. was already visiting Grandmother. At Stepfather’s request, Grandmother agreed to babysit Av.S. while he visited Mother in the hospital. On December 28, 2009, Grandmother called Stepfather and told him to pick up Av.S., who was crying uncontrollably. Stepfather arrived at Grandmother’s house on December 29, 2009, with the intention of picking up both A.S. and Av.S. Stepfather and Grandmother disagreed about whether Mother had authorized him to pick up A.S., and he left Grandmother’s house without A.S. Subsequently, Stepfather pushed Grandmother during a confrontation at the hospital.

On January 1, 2010, Mother picked up A.S. from Grandmother’s house, and A.S. resumed living with Mother and Stepfather, as she had prior to Mother’s hospitalization. Because of the tension between the families, Mother refused contact with Grandmother, and Grandmother did not see A.S. again until January of 2011.

On January 5, 2010, Stepfather filed a petition to adopt A.S. On the same date, Stepfather filed a petition for temporary custody alleging that Mother was being treated for an unspecified medical condition and could not care for A.S. on a full-time basis. The trial court granted the petition for temporary custody on the basis that “placing the child with the petitioner for adoption pending the hearing on the petition for adoption is in the best interests of the child.” (Ex. Book 139).

Sometime thereafter, Mother’s sister contacted A.S.’s biological father, B.H. (“Father”), on Facebook and informed him that he had a nine-year-old daughter who was about to be adopted by her stepfather. Father is an Illinois resident who knew that he had impregnated Mother but assumed she had lost the child due to complications during the pregnancy. During the years following A.S.’s birth, Father made only one attempt to ascertain whether Mother had given birth, and Mother and Grandmother made no attempt to inform him of the birth. On February 11, 2010, Father filed his “Objection to Petition for Adoption of Minor Child” and a petition to establish paternity.

Meanwhile, on February 5, 2010, Grandmother filed a petition for grandparent’s visitation rights. On April 6, 2010, Grandmother followed the filing of the petition for visitation with a petition for custody based on her status as a de facto custodian.

The trial court joined the causes and ordered mediation, and the parties entered into a facilitation agreement on November 18, 2010. The trial court issued a December 6, 2010 order incorporating the facilitation agreement, finding in pertinent part that (1) Father was AS.’s biological father; (2) Stepfather had withdrawn his request for adoption and custody; (3) Mother was the custodial parent; and (4) Father was to begin supervised visitation with A.S. In the order, the trial court reserved other matters for future adjudication.

In a separate order, however, the trial court stated that Grandmother could exercise visitation under the supervision of Family House. This supervised visitation began on January 2, 2011 and lasted for four sessions. Grandmother then began exercising unsupervised visitation with A.S. every other Saturday from 8 a.m. until 8 p.m., an arrangement that was in effect at the time of the custody hearing.

The trial court appointed Mark Roscoe to serve as guardian ad litem for A.S. The guardian ad litem reviewed A.S.’s school progress reports and Mother’s medical records, met with Mother, Stepfather, A.S., Grandmother, and Father, and then submitted a report in which he stated:

[Grandmother] disapproves of the way her daughter has chosen to live her life and contends that she is incapable of caring for [A.S.] in the same manner that [Grandmother] has provided for said child in the past. Although [A.S.’s stepsisters, Av.S. and A1.S.] are also the biological grandchildren of [Grandmother], she has not expressed the same concerns regarding the care of said children. It is evident to this writer that [Grandmother] has developed a maternal bond with her granddaughter, [A.S.], and views her as her own child. As the perceived primary care giver of said child from [A.S.’s] date of birth through 2007, it is not unusual for a grandparent to develop such a bond. However, what concerns this writer is the extent to which [Grandmother] has gone to discredit her daughter and prove that she is incompetent to care for [A.S.], even to the extent of further damaging [Mother’s] mental health. This process may impede the reconciliation efforts of all parties involved.
⅜ ⅜ ⅜ ⅝ ⅝ ⅜
My client, [A.S.], is nine (9) years of age and currently resides with her Mother, Stepfather and two (2) siblings. [A.S.] is a third grade student ... [and] her favorite subject is Art. She is an above average student and typically earns A’s and B’s on her report cards. [A.S.] enjoys painting, baking, swimming, playing with her two (2) cats, Penelope and Henry, and playing outside with her friends. She also enjoys spending time with her Mother, Stepfather, and sisters. Although she was sad when she was physically separated from her Grandmother, she reports she has made the adjustment but still misses her. [A.S.] is articulate, direct and a respectful young girl.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
[T]here is no doubt in my mind that [Grandmother] has played a major role in providing care and support for [A.S.] throughout the majority of her life, but [Mother] and [Father] are the biological parents of [A.S.] and should be charged with the responsibility of providing care and support for said child. Although [Mother’s] progress has been slow with respect to the treatment of her Schizoaf-fective Disorder, she is maintaining said condition through her medications and has the current ability to recognize when her medications require adjustments. It is unclear to me why [Grandmother] believes that [Mother] is incapable of raising [A.S.] but yet capable of raising [Grandmother’s] two other grandchildren, Av.S. and A1.S. I suspect that [Grandmother] is of the belief that [Stepfather], as the biological father of Av.S. and A1.S., is capable of providing care for said children if [Mother] falls short of her responsibility. However, as the Court is aware, this action began with an adoption petition filed by [Stepfather] wherein he was seeking to adopt [A.S.],

(Mother’s App. 71; 74).

The guardian ad litem, recommended that (1) Mother retain custody of A.S.; (2) Grandmother be granted visitation; and (3) Father initially be granted supervised visitation with the goal that he eventually be afforded visitation under the Indiana Parenting Time Guidelines. (Mother’s App. 75-76).

On October 11, 2011, the trial court held a custody hearing to determine whether Mother, Father, or Grandmother should exercise physical custody of A.S. At the hearing, Grandmother and Father were represented by counsel who presented evidence of Mother’s battle with a schizoaf-fective disorder, former alcoholism, and an early post-adolescent involvement with gangs. Mother appeared pro se, and although she asked no questions of opposing witnesses, she gave a statement to counteract some of the claims made by other witnesses. The guardian ad litem’s report was placed into evidence, and the guardian ad litem testified that physical custody should remain with Mother. Grandmother requested that the trial court issue findings pursuant to Indiana Trial Rule 52, and Grandmother and Father filed joint proposed findings on November 10, 2011.

On November 15, 2011, the trial court issued its findings of fact and conclusions of law. The trial court awarded physical custody of A.S. to Grandmother, with Mother and Father to exercise visitation rights. The trial court stated that its ultimate goal was to facilitate a relationship between Father and A.S. that would culminate in Father receiving primary physical custody of his daughter.

On December 15, 2011, Mother filed her “Motion to Correct Error and Motion for Rehearing.” (Mother’s App. 82). The trial court denied the motion.

The relevant content of the trial court’s findings of facts and conclusions of law will be disclosed in our discussion below.

DECISION

Mother contends that the trial court erred in granting physical custody of A.S. to Grandmother. Mother argues that the evidence is insufficient to overcome the presumption that it is in A.S.’s best interests that she remain in the custody of her natural parent.

In reviewing findings made pursuant to Indiana Trial Rule 52, we first determine whether the evidence supports the findings and then whether the findings support the judgment. In re Paternity of K.I., 903 N.E.2d 453, 457 (Ind.2009). On appeal, we “shall not set aside the findings or the judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Id. (quoting Ind. Trial Rule 52(A)). We will not reweigh the evidence and consider only the evidence favorable to the trial court’s judgment. Allen v. Proksch, 832 N.E.2d 1080, 1099 (Ind.Ct.App.2005). Findings are clearly erroneous only when the record contains no facts to support them “either directly or by inference.” Id. A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. In re K.I., 903 N.E.2d at 457. In order to determine that a finding or conclusion is clearly erroneous, we must come to the firm conviction that a mistake has been made. Allen, 832 N.E.2d at 1099.

Where, as here, the dispute involves a parent and a third party, we cannot ignore the constitutional implications; the relationship of a parent and a child is of a constitutional dimension. In re L.J.S., 923 N.E.2d at 462. “As the United States Supreme Court has recently reiterated, the Fourteenth Amendment’s Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. (quoting In re Guardianship of L.L. and J.L., 745 N.E.2d 222, 228-29 (Ind.Ct.App.2001), trans. denied). So long as a parent adequately cares for her children, there will normally be no reason for the State to inject itself into the private realm of the family to question the ability of the mother to make the best decisions concerning the rearing of her child. In re L.L., 745 N.E.2d at 229 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)).

In disputes between a natural parent and a third party, a presumption exists that it is in the best interests of the child to be placed in the custody of the natural parent. Allen, 832 N.E.2d at 1098. “Indiana law has traditionally recognized that ‘natural parents are entitled to custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control, and education.’ ” Id. (quoting In re Guardianship of B.H., 770 N.E.2d 283, 285 (Ind.2002)). The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. In re Paternity of T.P., 920 N.E.2d 726, 731 (Ind.Ct.App.2010), trans. denied. The presumption will not be overcome merely because “a third party could provide the better things in life for the child.” Id. In a proceeding to determine whether to place a child with a person other than the natural parent, we may consider, among other things, the natural parent’s (1) unfitness, (2) long acquiescence in the third party’s custody of the child, or (3) voluntary relinquishment of the child such that the affection of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. Id. (citing In re K.I., 903 N.E.2d at 458-59; Hendrickson v. Binkley, 161 Ind.App. 388, 394, 316 N.E.2d 376, 380 (1974)) (endorsing above factors but concluding they are non-exclusive for purposes of overcoming natural-parent presumption). At issue is “whether the important and strong presumption that a child’s interests are best served by placement with natural parents is clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with another person.” Id. The third party has the burden to rebut the presumption that a child should be in the custody of her natural parent. A.J.L. v. D.A.L., 912 N.E.2d 866, 873 (Ind.Ct.App.2009).

Here, the trial court concluded that Mother’s battle with schizoaffective disorder “is of great concern to the Court, particularly when coupled with her history of suicidal ideation, alcohol abuse and life choices that are suspect at best.” (Mother’s App. 39). It then concluded that “[t]here are simply no corresponding risks attendant to a placement of the child with Grandmother.” Id. In short, the trial court concluded that Mother is unfit to parent A.S.

In support of its decision to grant custody to Grandmother, the trial court cited to testimony that on one occasion Mother’s schizoaffective disorder caused her to have suicidal ideations. Although the trial court recognized that the disorder is controlled by medication, it questioned the efficacy of the medication over a long period of time. There is no evidence that Mother now experiences suicidal ideations, and there is no evidence to support the trial court’s reservations about Mother’s ability to combat the disorder with medication. Indeed, the only evidence in the record on this subject is that the medication is working and that Mother has both the desire and the ability to make sure that appropriate adjustments will be made to the medication to assist her in her battle against the disorder.

In addition, there is no evidence that anyone involved with Mother believes that she will again abuse alcohol. Further, there is no evidence that Mother, a thirty-eight-year-old stay at home mom with a husband and three daughters, is going to return to the gang-related life of her late adolescence. There is evidence, however, that Mother, along with the help of Stepfather, has so far parented an above average student who is articulate, direct and respectful and who enjoys her life with her Mother, Stepfather, and sisters. There is further evidence, as supported by the trial court’s finding, that A.S. is “well adjusted” in Mother’s home. (Mother’s App. 38-39).

The trial court also concluded that the relationship between A.S. and Grandmother is “so strong, compelling and interwoven that if it were not continued, it would potentially be harmful to the future wellbe-ing of [A.S.].” (Mother’s App. 39). This conclusion is not supported by the trial court’s finding that A.S., while sad about being physically separated from her Grandmother, has made the appropriate adjustment to that separation while still missing her Grandmother. In addition, this finding ignores Grandmother’s testimony that Grandmother and Mother jointly shared caregiving of A.S. from shortly after her birth in 2002 until April of 2007, a finding that supports a bond with both Mother (the natural parent) and Grandmother (the third party). Finally, the conclusion is inconsistent with the trial court’s stated intention that physical custody of A.S. be eventually awarded to Father.

While it appears that Grandmother and Mother joined forces in caring for A.S. during the period lasting from shortly after A.S.’s 2002 birth until April of 2007 and that Grandmother provided valuable assistance by caring for A.S. on school days during the months of the 2007/2008 school year, these acts do not frame the issue before the trial court. See L.J.S., 923 N.E.2d at 465. Rather, the issue is “whether the important and strong presumption that [A.S.’s] best interests are best served by placement with [Mother] were clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with [Grandmother].” Id. (citing In re B.H., 770 N.E.2d at 287). Even when we consider the evidence most favorable to the trial court’s judgment, without reweighing that evidence or judging the credibility of the witnesses, we must conclude that the evidence does not support the trial court’s conclusion that Grandmother has overcome the aforementioned presumption. In short, the trial court’s judgment is not supported by clear and convincing evidence, leading us to the firm conviction that a mistake has been made.

CONCLUSION

We reverse and remand with instructions that the trial court vacate its award of physical custody to Grandmother, thereby returning custody to Mother. The trial court shall determine the details of Father’s visitation. It shall also determine what, if any, visitation rights are due to Grandmother under the Grandparent Visitation Act.

Reversed.

ROBB, C.J., and MAY, J., concur.

      . Mother points out that the trial court's findings and conclusions "mirror[]” the proposed findings. Although we "by no means encourage" the wholesale adoption of proposed findings and conclusions, the practice is not prohibited. Piles v. Gosman, 851 N.E.2d 1009, 1012 (Ind.Ct.App.2006). “[T]he critical inquiry is whether such findings, as adopted by the court, are clearly erroneous.” Id.

      . Mother also contends that the trial court erred in finding that Grandmother was A.S.'s de facto custodian. As in In re Paternity of L.J.S., 923 N.E.2d 458, 461 n. 1 (Ind.Ct.App.2010), trans. denied, we are not required to address this issue. Assuming without deciding that Grandmother qualifies as a de facto custodian, she "must still overcome the strong presumption in favor of [Mother], the natural parent, in order to gain custody of [A.S.]." See id. "Accordingly, we consider whether the trial court committed clear error in concluding that [Grandmother] overcame this presumption.” Id.

      . As then Chief Justice Shepard stated in his concurrence in B.H.: “If the evidence showed that the natural parent was a fit parent, that he/she was caring regularly for the child, and that no third person was emotionally central to the child’s life, what 'non-[Hendrickson'] factors’ would suffice to remove the child from the natural parent?” 770 N.E.2d at 290.


author: BARNES, Judge.

text:
    AMERICAN ACCEPTANCE CO., LLC, as Assignee of Washington Mutual Finance, Appellant-Plaintiff, v. Melissa WILLIS, Appellee-Defendant.
    No. 42A04-1208-CC-466.
    Court of Appeals of Indiana.
    Feb. 14, 2013.
    Glenn S. Vician, Bowman Heintz Boscia & Vician, P.C., Merrillville, IN, Attorney for Appellant.
   OPINION

BARNES, Judge.

Case Summary

American Acceptance Co., LLC, as as-signee of Washington Mutual Finance (“American Acceptance”), appeals the trial court’s denial of its motion for a garnishment order against Melissa Willis. We affirm.

Issue

American Acceptance raises one issue, which we restate as whether the trial court properly denied its motion for a garnishment order against Willis.

Facts

In May 2009, American Acceptance filed a complaint against Willis alleging that she owed $1855.50 for goods and/or services. The trial court entered a default judgment against Willis in August 2009. In June 2012, American Acceptance filed a motion for proceedings supplemental. Western Southern Financial Group (“Western Southern”)' answered interrogatories and affirmed that Willis was an employee of the company and had an “average weekly gross income” of $724.38. App. p. 18.

On August 10, 2012, Willis appeared at the proceedings supplemental hearing, and American Acceptance requested a garnishment order against Willis. Willis testified that she had been employed by Western Southern for four months, that she made a salary of $500 per week for the first eight weeks, and that she was now paid solely on commissions. Her highest bi-weekly net paycheck had been $1200. Willis was supporting her two children and her husband, who had been charged with theft and possession of a firearm by a serious violent felon. Her husband was out on bond, and they had posted a $25,000 cash bond for his release. Willis testified that she was signing up for food stamps, that her student loans were coming due, and that she did not have any assets. Willis suggested that American Acceptance be. paid out of the bond money when her husband’s criminal charges were settled.

The trial court issued an order denying American Acceptance’s motion for garnishment. The trial court found that Willis did “not have substantial income to allow a wage garnishment order.” App. p. 19. The trial court also ordered that the Clerk of the Knox Circuit/Superior Court “is not to release the bond in Cause Number 42D01-1010-FB-139, State v. Todd Willis, until a hearing can be held in this cause of action for purposes of settlement.” Id. American Acceptance now appeals.

Analysis

American Acceptance argues that the trial court improperly denied its motion for a garnishment order. We initially note that Willis did not file an appellee’s brief. When an appellee fails to submit a brief, we will not undertake the burden of developing arguments for the appellee. Ramsey v. Ramsey, 863 N.E.2d 1232, 1237 (Ind.Ct.App.2007). In these situations, we apply a less stringent standard of review with respect to showings of reversible error, and we may reverse the trial court’s decision if the appellant can establish pri-ma facie error. Id. In this context, prima facie error is defined as “at first sight, on first appearance, or on the face of it,” Id.

American Acceptance argues that the trial court erred because, even though Willis had funds that were subject to garnishment, the trial court failed to grant the garnishment order. Garnishment is defined as “any legal or equitable proceéd-ings through which the earnings of an individual are required to be withheld by a garnishee, by the individual debtor, or by any other person for the payment of a judgment.” Ind.Code § 24-4.5-5-105(l)(b). Exemption statutes are construed liberally. Branham v. Varble, 952 N.E.2d 744, 748 (Ind.2011). Indiana Code Section 24-4.5-5—105(2) limits the amount that can be garnished from any single workweek to the lesser of twenty-five percent of that week’s disposable earnings or the amount of that week’s disposable earnings that exceeds thirty times the federal minimum hourly wage. Id. at 747-48. Disposable earnings are defined as “that part of the earnings of an individual, including wages, commissions, income, rents, or profits remaining after the deduction from those earnings of amounts required by law to be withheld.” I.C. § 24-4.5-5-105(1)(a); Branham, 952 N.E.2d at 748.

American Acceptance claims that, under the Indiana Code Section 24-4.5-5-105 calculation, Willis had income that was subject to garnishment and, thus, the trial court was required to order the garnishment. “The trial court has broad discretion in conducting proceedings supplemental.” Kirk v. Monroe County Tire, 585 N.E.2d 1366, 1370 (Ind.Ct.App.1992). Further, Indiana Code Section 24-4.5-5-105 does not mandate that the trial court order garnishment if the debtor has available non-exempt income. Rather, the statute merely defines the non-exempt income and the maximum amount subject to garnishment. Indiana Code Section 34-55-8-7(a) is also relevant here. That statute governs proceedings supplemental and provides:

After a hearing of which the judgment debtor has been notified, the court may order:
(1) any property, income, or profits of the judgment debtor not exempt from execution or process, in the hands either of the judgment debtor or of any other person; or
(2) any debt due to the judgment debt- or;
to be applied to the satisfaction of the judgment and forbid transfers of property and choses in action.

(emphasis added).

Thus, the trial court “may order” the garnishment of the debtor’s income to be applied to satisfy the judgment. I.C. § 34-55-8-7(a). The trial court here was not required to order garnishment of Willis’s income. Instead, it was within the trial court’s discretion to do so. The trial court chose to order that the Clerk of the Knox Circuit/Superior Court “not to release the bond in Cause Number 42D01-1010-FB-139, State v. Todd Willis, until a hearing can be held in this cause of action for purposes of settlement.” App. p. 19. Given Willis’s circumstances, the trial court did not abuse its discretion. Consequently, the trial court did not err when it denied American Acceptance’s motion for a garnishment order.

Conclusion

The trial court properly denied American Acceptance’s motion for a garnishment order. We affirm.

Affirmed.

BAKER, J., and RILEY, J., concur.


author: ROBB, Chief Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant-Defendant, v. RIDDELL NATIONAL BANK, Appellee-Plaintiff.
    No. 61A01-1204-PL-159.
    Court of Appeals of Indiana.
    Feb. 20, 2013.

      Karl L. Mulvaney, Shannon D. Lan-dreth, Bingham Greenbaum Doll LLP, Dennis Cantrell, Catherine Haines, Cantrell Strenski <& Mehringer, LLP, Indianapolis, IN, Attorneys for Appellant.
    James E. Deal, Brazil, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

After the owners of a home went through bankruptcy, they executed a deed in lieu of foreclosure to Riddell National Bank, the mortgagee. Riddell discovered extensive damage in the home and filed a claim with State Farm Fire and Casualty Insurance Company. State Farm denied coverage, and Riddell brought suit. State Farm moved to dismiss, and the trial court denied its motion. State Farm raises one issue in this interlocutory appeal: whether the parties’ insurance policy, as limited by Indiana Code section 27-1-13-17, creates a two-year statute of limitations. Concluding the parties’ policy does not create a two-year statute of limitations, and thus the ten year statute of limitations provided in Indiana Code section 34-11-2-11 applies, we affirm.

Facts and Procedural History

Riddell was the mortgagee of a property in Parke County, Indiana. As a condition of the mortgage, the homeowners were required to insure the property against loss by fire, earthquakes, floods, and other hazards. State Farm insured the property, and in 2008 Riddell received an initial declaration notifying it of State Farm’s issuance of a policy with Riddell named as mortgagee. On February 1, 2009, Riddell received a renewal certificate from State Farm. The policy provides:

SECTION I — CONDITIONS
6. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage.
SECTION I AND SECTION II— CONDITIONS
10. Conformity to State Law. When a policy provision is in conflict with the applicable law of the State in which this policy is issued, the law of the State will apply.

Appellant’s Appendix at 121-28.

In approximately August 2008, the homeowners moved from the property without notifying Riddell. In early 2009, the homeowners petitioned for bankruptcy. During the bankruptcy process, Riddell learned the property was vacant and that the homeowners intended to execute a deed in lieu of foreclosure to Riddell. The deed was received on November 18, 2009. Riddell alleges in June 2009 it discovered damage to the residence, including water damage, mold, collapsed plaster ceilings, buckled floors, and deterioration of carpet, walls, ceilings, doors and windows. On December 17, 2009, Riddell notified State Farm of its intent to file a claim. State Farm denied Riddell’s claim, and on September 19, 2011, Riddell brought suit. State Farm moved to dismiss, arguing Riddell’s claim was time barred. The trial court denied State Farm’s motion, and State Farm sought interlocutory appeal. The trial court certified the case for interlocutory appeal and we granted State Farm’s motion for interlocutory appeal.

Discussion and Decision

I. Standard of Review

We review the construction of contract terms de novo. S.C. Nestel, Inc. v. Future Const., Inc., 836 N.E.2d 445, 449 (Ind.Ct.App.2005). If a contract provision is unambiguous, it is conclusive upon the parties and upon the courts. Id. That is, unless the terms of the contract are ambiguous, they will be given their plain and ordinary meaning. Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind.Ct.App.2006). If a provision is ambiguous, however, its meaning is to be determined by extrinsic evidence. S.C. Nestel, 836 N.E.2d at 449-50. When a court interprets a written contract, it should attempt to determine the intent of the parties at the time the contract was made by examining the language used in the contract. Id. at 450. Contracts are to be read as a whole, and a court should construe the language in a contract so as not to render any words, phrases, or terms ineffective or meaningless, and a court should attempt to harmonize the provisions of a contract rather than interpret the provisions as conflicting. Id.

When interpreting a statute, we independently review a statute’s meaning and then apply it to the facts of the case under review. Jones v. Ind. Farmers Mut. Ins. Co., 926 N.E.2d 116, 121 (Ind.Ct.App.2010). First, we determine whether the legislature has spoken clearly and unambiguously in the statute. Id. If a statute is unambiguous, meaning if it is not susceptible to more than one interpretation, we will apply its clear and plain meaning, but if a statute is ambiguous, we will attempt to ascertain the legislature’s intent and interpret the statute to effectuate that intent. Id.

II. The Policy and Indiana Code Section 27-1-13-17

Indiana Code section 27-1-13-17 provides:

(a) This section applies to a policy of insurance that:
(1) covers first party loss to property located in Indiana; and
(2) insures against loss or damage to:
(A) real property consisting of not more than four (4) residential units, one (1) of which is the principal place of residence of the named insured; or
(B) personal property in which the named insured has an insurable interest and that is used within a residential dwelling for personal, family, or household purposes.
(b) A policy of insurance described in subsection (a) may not be issued, renewed, or delivered to any person in Indiana if the policy limits a policyholder’s right to bring an action against an insurer to a period of less than two (2) years from the date of loss.

State Farm concedes the condition in the parties’ policy which requires the insured to bring a claim within one year after the date of loss or damage is unenforceable pursuant to Indiana Code section 27 — 1—13—17(b). State Farm argues, however, that the policy’s provision “clearly expresses the intent of the contracting parties to limit the time period during which an insured (or its mortgagee) could bring a lawsuit against State Farm” and, thus, we should “honor the parties’ intent by construing the Policy as providing a two-year limitation period on lawsuits against State Farm from the date of the loss or damage.” Brief of Appellant at 12. Riddell contends that since the parties’ time limit provision does not apply, the statute of limitations provided by Indiana Code section 34-11-2-11 should.

The contract term only provides that an action must commence within one year. An additional term provides that when a policy term is in conflict with state law, the applicable state law shall apply. Indiana Code section 27-l-lS-17(b) provides only that an insurance policy like the one at issue “may not be issued, renewed, or delivered ... if the policy limits a policyholder’s right to bring an action against an insurer to a period of less than two (2) years from the date of loss.” When interpreting contract provisions and statutory provisions, if each is unambiguous we give them their plain and ordinary meaning. See Jones, 926 N.E.2d at 121; Shorter, 851 N.E.2d at 383. Here, the contract provision unambiguously provides that a claim must be brought within one year of loss or damage. The statute unambiguously provides that such a time requirement in an insurance policy is unenforceable.

Importantly, neither the contract nor the statute provides what State Farm would like us to infer into the contract: that because the policy’s one-year requirement is void, the two-year minimum that Indiana Code section 27-1-13-17 requires for an insurance policy creates a two-year statute of limitations when the statutory minimum voids a contractual time requirement. The contract could have said that a claim must be filed within one year or within the applicable minimum time requirement allowed by state law, but it did not. The legislature could have said that if a policy provides a time requirement of less than two years, a two-year requirement will be substituted, but it did not.

In other words, we agree with State Farm that, pursuant to the policy’s provision requiring conformity -with state law where a policy provision is in conflict with state law, the statutory default applies. However, we find Indiana Code section 27-1-13-17 is unambiguous and does not provide a two-year default statute of limitations. It merely provides that an insurance policy requiring the filing of a claim in a time period less than two years is void. Indiana Code section 34-11-2-11, on the other hand, does provide a default statute of limitations period, and pursuant to the conformity with state law term in the policy, that default applies to the parties.

State Farm also argues the policy provision requiring a claim within one year of damage or loss shows their intent to limit the period to the minimum time period required by Indiana statutes because prior to the enactment of Indiana Code section 27-1-13-17, the minimum limitation period in an insurance policy was one year rather than two years. State Farm argues this demonstrates the parties’ intent to limit the contract’s limitation period to the shortest allowable period under Indiana law. However, Indiana Code section 27-1-13-17 went into effect July 1, 2007, and the policy at issue was enacted in 2008 and renewed in 2009. Thus, even if we were to look beyond the unambiguous language of the contract, we would not infer that the parties’ intended to limit the policy’s limitation period to the shortest period allowed under state law because if that is what they intended, that is what they would have done.

Conclusion

We conclude the unambiguous contract and statutory language void the one-year limitation period in the parties’ contract and, pursuant to the policy’s conformity to state law provision, the ten year statute of limitations provided by Indiana Code section 34-11-2-11 applies and Riddell’s claim was timely. We therefore affirm the trial court’s denial of State Farm’s motion to dismiss.

Affirmed.

MAY, J., and PYLE, J., concur.

      . Riddell actually cites to Indiana Code section 34-11-2-9 as the applicable statute of limitations. That statute provides a six year statute of limitations for promissory notes, bills of exchange, and other written contracts for the payment of money. Indiana Code section 34-11-2-11, which provides a ten year statute of limitations for contracts in writing other than those for the payment of money, is the applicable statute for an insurance policy. See Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind.Ct.App.2006).