author: BAKER, Judge.

text:
    Wayne BRANT, Appellant-Defendant, v. CITY OF INDIANAPOLIS, Appellee-Plaintiff.
    No. 49A05-1201-OV-12.
    Court of Appeals of Indiana.
    Sept. 12, 2012.

      Karen Celestino-Horseman, Indianapolis, IN, Attorney for Appellant.
    Alexander Will, Chief Litigation Counsel, Travis E. Shields, Assistant Corporation Counsel, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, we consider whether a pet owner with four barking dogs that annoy only one of his neighbors creates a sufficient nuisance to be in violation of a local noise ordinance. We conclude that the plain, ordinary, and usual meaning of the term “persons” as used in the ordinance necessitates our holding that the complaints of just one neighbor are insufficient.

Appellant-defendant Wayne Brant appeals the trial court’s ruling that he violated a local noise ordinance enforced by appellee-plaintiff, the City of Indianapolis (City). On appeal, Brant raises three issues, which we consolidate and restate as: (1) whether the plain and ordinary meaning of the term “persons” in the ordinance requires a finding that multiple persons were seriously annoyed or disturbed in order for a violation to have occurred; and (2) whether the ordinance is unconstitutionally vague as applied because its definition lacks an objective reasonableness standard.

We conclude that the trial court lacked sufficient evidence to find Brant in violation of the noise ordinance. Because we find this issue dispositive, we reverse the trial court’s ruling without reaching Brant’s constitutionality claim.

FACTS

Brant and his mother Betty Wilson live at 9037 East 12th Street in Indianapolis. They have four dachshunds. Marilyn Annette Moore lives two parcels down from Brant and Wilson at 9135 East 12th Street. Moore also owns the house at 9131 East 12th Street, which is located between her residence and that of Brant and Wilson, and she uses this house as a rental property. Moore maintains a daily log of all the goings-on in the neighborhood that bother her and frequently calls law enforcement and other municipal agencies when she identifies what she believes to be a violation of the law.

On at least one occasion, Moore called the authorities to report that the dogs at Brant’s residence were continuously barking and interfering with her ability to enjoy her property. In September 2011, Brant received a citation from the City for allegedly violating section 531-204(a) of the Revised Code of the Consolidated City and County (Revised Code), which provides:

It shall be unlawful for a person to own or keep any animal which by frequent or habitual howling, yelping, barking, screeching, other vocalization or otherwise shall cause serious annoyance or disturbance to persons in the vicinity.

On January 4, 2012, a bench trial was held during which Moore, Brant, and several neighbors testified. Moore, as the City’s only witness, testified that Brant’s dogs “are out for many minutes per day barking at the house wanting to get back in.” Tr. p. 9. She testified that the dogs may bark continuously “for fifteen minutes to a half a day.” Id. at 22. As to how the barking seriously annoys or disturbs her, Moore testified that when she is in her backyard, she cannot hear her cellular telephone ring or enjoy her gardening because of the “constant noise and harassment from [the] dogs.” Id. at 23. She also stated that she could not sit outside and have a cookout “peacefully.” Id. The logs kept by Moore, a mostly typed summary relating only to Moore’s complaints about Brant and Wilson and her original handwritten log, were admitted into evidence.

On cross-examination, Brant’s counsel questioned Moore about the accuracy of the typed summary, noting that many of the time durations appeared to have been added at a later date because they were not present in the original handwritten log. For example, the typed log for one entry stated, “1245 barking x 1 hour” while the handwritten log for the same entry stated, “1245 9037 Bark.” Tr. p. 24-25; Plaintiffs Ex. 1 at 1; Defendant’s Ex. A at 4. In response, the City stipulated “that the times may not be accurate” and stated, “I don’t care if they were barking for five minutes or five hours. That’s irrele-vant_” Tr. p. 26.

Brant’s counsel also cross-examined Moore about other notations in the log and the number of times she has called the authorities on other neighbors. Moore admitted to calling the police on children playing in the street in front of her house, which she characterized as “[h]igh-pitched screaming, personal disturbances.” Id. at 29. She also admitted to calling the police because of “[disturbing loud music” and to calling Animal Care and Control on another neighbor more than forty times in a period of six years. Id. at 29-30. In June 2011, Moore wrote and distributed a letter to others in the neighborhood in which she referred to Brant as a “freeloader” and Wilson as “demented,” in addition to airing grievances about other neighbors. Defendant’s Ex. D at 1. In her in-court testimony, Moore referred to Brant as “gay” although this assertion is apparently not true. Tr. p. 37, 59. Finally, Moore admitted to installing surveillance cameras that were aimed into the backyard and at the screened-in porch of Brant and Wilson for the purpose of “capturing the dog disturbances.” Id. at 34.

Several neighbors testified for Brant. Most of the neighbors acknowledged that they had heard the dogs barking on occasion, but they all testified that they were neither seriously annoyed nor seriously disturbed by the barking. Adrian Trow-bridge, the neighbor upon whom Moore had called Animal Care and Control forty times, testified that she had her dogs “debarked” because of Moore’s repeated reports but that Moore continued to make reports even after the procedure. Id. at 44.

Brant also testified on his own behalf. He testified that he has two short-haired dachshunds and two long-haired dachshunds that he sometimes lets outside in his fenced yard for up to an hour. He stated that the dogs typically go outside for about fifteen or twenty minutes in the morning, and he “occasionally” lets them out at night as well. Tr. p. 59-60. He stated that he never leaves the dogs out when he leaves. Brant testified that the dogs only bark occasionally, such as at other animals or at “[Moore] when she decides to provoke them.” Id. at 58. Brant stated that Moore has “ran planks of boards up against her fence,” “yell[ed] at [his] dogs,” “thrown water over the fence at [the] dogs,” “sprayed [the] dogs with her water hose,” and “throw[n] dirt over.” Id. at 58-59.

In reaching its decision, the trial court observed that Moore is “extremely anal-retentive about keeping notes and about calling the police when something bothers her.” Tr. p. 71. However, the court stated that “[i]t is a right as a citizen to call the police when you are disturbed by your neighbors....” Id. In finding that Brant had violated section 531-204(a) of the Revised Code, the trial court stated that “what’s been presented to the court shows that at least one person had been seriously annoyed by the habitual barking of the dogs.” hi at 72. Consequently, the trial court ordered, pursuant to the mandatory provisions of section 531-728 of the Revised Code, that Brant be limited to owning two dogs and that the dogs be spayed or neutered. The trial court ordered these decrees to be completed within thirty days from the date of the hearing. Brant now appeals.

DISCUSSION AND DECISION

As noted above, Brant’s first argument on appeal is that the State failed to prove that he violated the ordinance at issue if the term “persons” in the ordinance is afforded its plain and ordinary meaning. More particularly, Brant argues that the ordinance requires more than one person to be seriously annoyed or disturbed for a violation to occur and that the City consequently failed to meet its burden by presenting only Ms. Moore’s testimony in support of its case.

We review a trial court’s interpretation of an ordinance de novo. City of Indianapolis v. Campbell, 792 N.E.2d 620, 623-24 (Ind.Ct.App.2003). Once we arrive at the correct interpretation of a statute, our review of a challenge alleging insufficient evidence is limited. Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind.Ct.App.1999). We will consider only the evidence favorable to the judgment and all reasonable inferences. Muehlman v. Keilman, 257 Ind. 100, 107, 272 N.E.2d 591, 595 (1971). We will not reweigh the evidence or judge the credibility of witnesses, and we will reverse only “if there is not substantial evidence of probative value to establish each material element of the claim.” In re Petition of Meyer, 471 N.E.2d 718, 721 (Ind.Ct.App.1984).

Ambiguous municipal ordinances are interpreted according to the same rules of construction that apply to ambiguous statutes. Hall Drive Ins., Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind.2002). An ordinance is ambiguous if it is susceptible to more than one reasonable interpretation. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind.Ct.App.2003).

Our primary goal in construing an ordinance is to “ascertain and give effect to the intent of the ... drafters.” Campbell, 792 N.E.2d at 624. The intent of the drafters is best recognized by appreciating the specific language that was chosen. Id. Accordingly, each word in an ordinance should “be given [its] plain, ordinary, and usual meaning, unless a contrary purpose is shown by the ... ordinance itself.” Rag ucci v. Metro. Dev. Comm’n of Marion Cnty., 702 N.E.2d 677, 681 (Ind.1998). However, we consider the ordinance “as a whole” and “avoid ‘excessive reliance upon a strict literal meaning or the selective reading of individual words.’” George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150, 154 (Ind.2011), reh’g denied (citing State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind.2008)).

As noted above, Brant was cited for a violation of section 531-204(a) of the Revised Code, which provides:

It shall be unlawful for a person to own or keep any animal which by frequent or habitual howling, yelping, barking, screeching, other vocalization or otherwise shall cause serious annoyance or disturbance to persons in the vicinity.

Section 101-2 of the Revised Code is instructive in that it sets forth a number of “rules of construction” to be utilized by the courts in their interpretation of all ordinances contained within the Revised Code “unless the context clearly indicates otherwise.” Indianapolis, Ind., Rev. Code of the Consol. City and County § 101-2. The subsection most relevant provides, “[a] word importing the singular number only may extend and be applied to several persons and things as well as to one person and thing.” Id. § 101-2(3). However, the Revised Code is conspicuously silent as to the construction of a word importing a plural number.

Brant argues that because only Moore testified that she was seriously annoyed or disturbed by his dogs’ barking, the trial court erred when it found that he was in violation of the statute because “at least one person had been seriously annoyed by the habitual barking of the dogs.” Tr. p. 72. Indeed, if we accept Brant’s argument that the ordinance requires multiple persons to be seriously annoyed or disturbed, this finding by the trial court is insufficient to support Brant’s citation.

In response, the City asserts that the word “persons” in the ordinance is used disjunctively in that it “is meant to signify one or more individuals.” Appellee’s Br. p. 5 (emphasis added). In support of its position, the City points to section 531-208(a) of the Revised Code, which provides:

Persons finding a stray animal are to notify the animal care and control division within forty-eight (48) hours. At the discretion of the division, the animal may be kept by the finder and a found report left with the division, to enable the finder an opportunity to return the animal to its rightful owner.

Id. at 8 (emphasis in original).

We agree with the City that in section 531-208(a) it would prove to be an anomaly if only dogs found by multiple persons were required to be reported to Animal Care and Control because this was likely not the intent of the drafters of this particular ordinance. However, we are not convinced that the disjunctive use of the word “persons” to mean one or more individual in section 531-208(a) necessarily means that the word is used in the same manner in section 531-204(a). In section 531-208(a), the singular term “finder” in the second sentence of the ordinance is used as a synonym for the plural word “persons” in the first sentence. Thus, we agree that for section 531-208(a) of the Revised Code, the context surrounding the use of the word “persons” clearly indicates that it was intended to mean one or more persons.

However, this is not the same context that presents itself in section 531-204(a), where the term “persons” does not relate back to any singular terms in the ordinance. Although the singular term “person” is used in section 531-204(a), it is being used to refer to a different entity than the subject identified by “persons.” Because “persons” is used in a dissimilar manner in the two ordinances, we do not believe that what would be an absurd interpretation in one would necessarily also be an absurdity in the other. In other words, we do not believe that we should abandon the plain, ordinary, and usual meaning of “persons” as a plural noun in section 531-204(a) because, unlike in section 531-208(a), its context within the ordinance does not clearly suggest a different interpretation.

We have interpreted the plain, ordinary, and usual meaning of the term “persons” at least once before. In Hook v. State, 775 N.E.2d 1125 (Ind.Ct.App.2002), we interpreted the term in the context of a criminal statute. In Hook, the statute at issue provided that one commits the crime of maintaining a common nuisance when he or she “knowingly or intentionally maintains a [place] that is used one or more times ... by persons to unlawfully use controlled substances....” 775 N.E.2d at 1127. Recognizing that penal statutes “must be strictly construed” and that words and phrases in a statute are to be given “their plain, ordinary, and usual meaning unless a different meaning is shown by the statute[,]” the Hook Court held that the word “persons” meant “more than one person.” Id. Because the evidence demonstrated only that one person had used illegal substances in Hook’s home, Hook’s conviction was reversed. Id. at 1127-28.

Similarly, in this case, the evidence most favorable to the judgment is insufficient to prove that more than one person was seriously annoyed or disturbed by the barking of Brant’s dogs. At most, the evidence shows that Moore was seriously annoyed or disturbed by the barking of Brant’s dogs, and other neighbors in the vicinity had heard the dogs barking but were not seriously annoyed or disturbed by the noise. Thus, in light of the plain, ordinary, and usual meaning of the term “persons” in section 531-204(a) of the Revised Code, the judgment against Brant in the trial court must be vacated for lack of sufficient evidence.

As a final aside, we address the City’s contention that our interpretation of the word “persons” to mean more than one person would run afoul of the guarantee of equal protection under the Fourteenth Amendment to the United States Constitution. See Appellee’s Br. p. 8. The City asserts that interpreting the term in this manner “is to assume the City-County Council intended to protect households with multiple dwellers (such as married people or families) but to ignore the household of the single homeowner.” Id.

Ordinances, like statutes, are presumed to be constitutional. Carpenter v. Whitley Cnty. Plan Comm’n, 174 Ind.App. 412, 419, 367 N.E.2d 1156, 1161 (1977). Thus, if reasonably avoidable, we will not attribute unconstitutional intention to the drafters of an ordinance. Price v. State, 622 N.E.2d 954, 963 (Ind.1993). To survive a federal equal protection challenge not involving a fundamental right or a suspect class, as is the case here, an ordinance must be rationally related to a legitimate interest of the municipality. City of Indianapolis v. Armour, 946 N.E.2d 553, 560-61 (Ind.2011) (citing Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). To that end, the “legitimate interest ... need only be plausible[,]” and “it is no requirement that the conceivable policy in fact motivated the governmental decision maker.” Id. at 561.

In the present case, while we appreciate that section 531-204(a) of the Revised Code may not give the same level of protection from annoyances to a single homeowner, we disagree that the City-County Council (Council) could not have had a rational basis for its decision to use the plural term “persons” in the ordinance. One possibility raised by Brant is that the Council may have intended requiring multiple complainants to satisfy the need for an objective standard, which he argues is required in his constitutional claim. Appellant’s Reply Br. p. 15. Without commenting on Brant’s suggestion, we can think of at least one other possibility that would seem to satisfy the rational basis test — that the Council did not wish to invoke its civil penalty authority for a noise ordinance unless multiple members of its citizenry were negatively impacted, such that the noise constituted a public rather than a private nuisance. Because we cannot say that the City did not have a rational basis for using the term “persons,” we decline to abandon the plain, ordinary, and usual meaning of the term.

In sum, we find that section 531-204(a) of the Revised Code requires more than one person to be seriously annoyed or disturbed by habitual and frequent animal noises and that the trial court’s judgment must be vacated because the City failed to produce evidence that more than one person was bothered by Brant’s barking dogs. Because we find these issues to be disposi-tive, we need not address Brant’s allegations that the ordinance is unconstitutional. See Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 108 (1998) (holding that if a case can be resolved on statutory grounds, judicial restraint mandates that issues of constitutionality be left unresolved).

The judgment of the trial court is reversed.

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

      . “Debarking” is a procedure during which a veterinarian makes cuts in the vocal cords of a dog to reduce the volume of a dog’s bark. Tr. p. 44-45. This procedure is apparently illegal in some states. Id.

      . On April 13, 2012, the trial court ruled to stay its judgment and the related restrictions on Brant’s dog ownership pending this appeal.

      . We recognize that proceedings relating to the violations of municipal ordinances are civil rather than penal in nature. See Boss v. State, 944 N.E.2d 16, 21 (Ind.Ct.App.2011). However, we do not believe that the absence of the requirement for strict construction of a municipal ordinance changes the plain, ordinary, and usual meaning of the term "persons” as expressed in Hook.

      . Neither party has cited to any legislative history that would explain why the City-County Council used the term "persons” rather than "person.”


source: Caselaw Access Project

author: MAY, Judge. BARNES, Judge,

license: Public Domain

text:
    Janice BRANDOM, Appellant-Defendant, v. COUPLED PRODUCTS, LLC, Appellee-Plaintiff.
    No. 92A03-1112-PL-542.
    Court of Appeals of Indiana.
    Sept. 21, 2012.

      Jeffrey A. Macey, Macey Swanson and Allman, Indianapolis, IN, for Appellant.
    Lindsey A. Grossnickle, Matthew R. Shipman, Bloom Gates & Whiteleather, LLP, Columbia City, IN, Michael A. Wilkins, Broyles Kight & Ricafort, P.C., Indianapolis, IN, for Appellee.
   OPINION

MAY, Judge.

Janice Brandom’s employer, Coupled Products, LLC, sued her for defamation after she made comments to a local newspaper about Coupled. Brandom moved to dismiss pursuant to the “anti-SLAPP” statute, Ind.Code § 34-7-7-5, which is intended to discourage lawsuits brought primarily to chill free speech about issues of public concern. Her motion was denied, and we affirm.

FACTS AND PROCEDURAL HISTORY

Brandom was an employee of Coupled Products. Coupled’s hourly employees are represented by UAW Local 2049 (“the Local”), and Brandom was chair of the Local’s bargaining committee. Between August of 2009 and July of 2010, articles appeared in a Whitley County newspaper about Coupled’s proposed move of equipment from an Ohio facility to Columbia City, Indiana; a tax abatement Whitley County had promised in exchange for the move; and jobs the move would bring.

On September 16, 2009, the newspaper published an article with a number of statements Coupled contends are false: 1) that Coupled received a tax abatement from Whitley County after it announced plans to move some of its operations to Columbia City from Ohio; 2) that Coupled was making automotive components for Ford, General Motors, and Chrysler; 3) that seven truckloads of equipment were delivered to Coupled but were removed after the Local voted down certain concessions; 4) that Coupled asked members of the Local to surrender sickness and accident pay, bereavement pay, dental and life insurance, and a one dollar per hour raise; and 5) that Coupled raised the deductible on the employees’ health insurance plan without the knowledge or consent of the Local. Coupled believed Brandom was the source of those statements.

Coupled sued Brandom for defamation, submitted evidence to contradict the statements Brandom allegedly gave the newspaper, and submitted evidence there had been a “noticeable decrease in employee morale and productivity” and “a noticeable increase in hostility” toward management. (Appellee’s App. at 78.) Brandom moved to dismiss pursuant to the “Anti-SLAPP” statute on the ground the statements were made in furtherance of her right to free speech in connection with an issue of public interest. Both parties designated evidence, and the trial court denied Brandom’s motion to dismiss. It then certified its order for interlocutory appeal, and we accepted jurisdiction.

DISCUSSION AND DECISION

“SLAPPs,” or Strategic Lawsuits Against Public Participation, are “merit-less suits aimed at silencing a plaintiffs opponents, or at least at diverting their resources.” Hamilton v. Prewett, 860 N.E.2d 1234, 1241-42 (Ind.Ct.App.2007) (quoting John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 895, 403 (1993)), trans. denied. The anti-SLAPP statute is intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. Id. To reduce the number of lawsuits brought to chill speech, a defendant who prevails on a motion to dismiss under the anti-SLAPP statute is entitled to recover reasonable attorney’s fees and costs. Ind.Code § 34-7-7-7.

The “anti-SLAPP” statute provides:

It is a defense in a civil action against a person that the act or omission complained of is:
(1) an act or omission of that person in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue; and
(2) an act or omission taken in good faith and with a reasonable basis in law and fact.

Ind.Code § 34-7-7-5. The person who files a motion to dismiss must state with specificity the public issue or issue of public interest that prompted the act in furtherance of the person’s constitutional right of petition or free speech. Ind.Code § 34-7-7-9.

A motion to dismiss brought under this chapter is treated as a motion for summary judgment. Ind.Code § 34-7-7-9. The motion is to be granted if the court finds the person filing the motion has proven, by a preponderance of the evidence, that the act on which the claim is based is a lawful act in furtherance of the person’s constitutional right of petition or free speech. Id.

Summary judgment is appropriate only if the pleadings and evidence considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Hamilton, 860 N.E.2d at 1240. On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against Brandom, the moving party. See id. All facts and reasonable inferences from those facts are construed in favor of Coupled, the nonmoving party. See id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Id. The party appealing a summary judgment has the burden of persuading us the grant or denial of summary judgment was erroneous. Id.

Brandom spoke on a matter of public interest but there is a genuine issue as to whether she spoke in good faith and without malice. Her motion to dismiss was therefore properly denied.

1. Issue of Public Interest

Brandom demonstrated her speech was related to an issue of public interest. The person who files a motion to dismiss must state with specificity the public issue or issue of public interest that prompted the act in furtherance of the person’s constitutional right of petition or free speech. Ind.Code § 34-7-7-9.

Coupled alleged Brandom’s defamatory statements were her statements to the newspaper that: (1) Coupled had received a tax abatement from Whitley County after it announced plans to move some operations from Ohio to Columbia City; (2) Coupled was manufacturing automobile components for General Motors, Ford and Chrysler; (3) seven truckloads of equipment were delivered to Coupled but were removed after the Local voted down certain concessions; (4) Coupled asked the union members to surrender their sickness and accident pay, bereavement pay, their dental and life insurance, and a one dollar per hour raise; and (5) Coupled raised the health insurance deductible without the knowledge or consent of the Local.

Speech is on a matter of public concern if it is addressed to “any matter of political, social, or other concern to the community,” as determined by its content, form, and context. Love v. Rehfus, 946 N.E.2d 1, 10 (Ind.2011) (quoting Connick v. Myers, 461 U.S. 138, 146-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)), reh’g denied. Our courts have not addressed at length when speech is or is not about a matter of public concern in the anti-SLAPP context, but we find instructive the analysis in Cross v. Cooper, 197 Cal.App.4th 357, 127 Cal.Rptr.3d 903, 912-14 (2011), as modified on denial of reh’g, review denied.

[The terms “public interest” and “public issue”] are inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition. Some courts have noted commentary that no standards are necessary because courts and attorneys will, or should, know a public concern when they see it.
Nevertheless, courts have discussed how to decide whether a statement concerns a matter of public interest. In Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 72 Cal.Rptr.3d 210 (Nygard), the court pointed out that although [the California anti-SLAPP statute] does not define “public interest,” it does mandate that its provisions “ ‘be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ ” (Id. at p. 1039, 72 Cal.Rptr.3d 210, quoting § 425.16, subd. (a).)
⅜ ⅜ ‡ $ ‡ ⅜
Accordingly, courts have broadly construed “public interest” to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. Indeed, even before the Legislature mandated broad construction, the court in [Church of Scientology v. Wollersheim, 42 Cal.App.4th 628, 49 Cal.Rptr.2d 620 (1996), review denied ] opined that “[although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.” (Id. at p. 650, 49 Cal.Rptr.2d 620). And in Nygard, supra, 159 Cal.App.4th at page 1042, 72 Cal.Rptr.3d 210, the court opined that taken together, the legislative history of the amendment and the cases that precipitated it “suggest that ‘an issue of public interest’ ... is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute — it is enough that it is one in which the public takes an interest.”
In [Rivero v. Am. Fed’n of State, County, & Mun. Employees, AFL-CIO, 105 Cal.App.4th 913, 130 Cal.Rptr.2d 81 (2003), review denied], the court reviewed several cases and described three non-exclusive and sometimes overlapping categories of statements that have been given anti-SLAPP protection. (Id. at pp. 919-924, 130 Cal.Rptr.2d 81.) The first category comprises cases where the statement or activity precipitating the underlying cause of action was “a person or entity in the public eye.” (Id. at p. 924, 130 Cal.Rptr.2d 81.) The second category comprises cases where the statement or activity precipitating the underlying cause of action “involved conduct that could affect large numbers of people beyond the direct participants.” (Ibid.) And the third category comprises cases where the statement or activity precipitating the claim involved “a topic of widespread, public interest.” (Ibid.) Courts have adopted these categories as a useful framework for analyzing whether a statement implicates an issue of public interest and thus qualifies for anti-SLAPP protection.

We agree with Brandom that her statements were “undertaken in connection with a public issue in furtherance of [Brandom’s] right to free speech.” (Appellee’s App. at 91.) Her statements were made in the context of negotiations between Coupled and the union concerning a move of some of Coupled’s business to Columbia City, and all the statements “concerned either the details of the move or concessions [Coupled] had asked its employees to make in anticipation of the move.” (Id. at 93.) The economic impact of the move made the issue one of public interest and the matter was significant enough to the community that the local newspaper devoted several articles to it.

Brandom’s statements fit within the second and third Cross categories, ie., statements involving conduct that could affect large numbers of people beyond the direct participants and statements involving a topic of widespread, public interest.

In Love, a firefighter sent a private email supporting a candidate for trustee and criticizing the efficiency and financial stability of the township’s fire department. Our Indiana Supreme Court found the government’s allocation of funds and resources within a fire department was a matter of public concern, and Love’s email was not “an extension of any dispute with his superiors.... [T]his was a general grievance as to the operation of government like the letter in Pickering; it was not an employment-related grievance.” Id. at 10 (footnote added).

Nor did Brandom’s statements in the case before us reflect a mere “employment-related grievance.” See id. To the extent the Local’s willingness to accept pay and benefit concessions might have affected Coupled’s decision whether to move some of its operations to Columbia City, the outcome of such employment-related grievances had broader implications that would affect large numbers of people beyond the direct participants. As her statements dealt with “the role of [Coupled] in the economic development of Columbia City,” (Appellant’s Br. at 18), and the effect on the community of the tax abatement and the expansion of jobs and economic activity there, they addressed matters of public interest.

2. Good Faith/Malice

While Brandom’s statements were made “in connection with a public issue,” Ind.Code § 34-7-7-5, there is a genuine issue of material fact as to whether she made the statements without malice or “in good faith and with a reasonable basis in law and fact.” Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Hamilton, 860 N.E.2d at 1240. Resolving, as we must, all doubts as to the existence of material issues of fact against Brandom, the moving party, id., and construing all facts and reasonable inferences from those facts in favor of the nonmoving party, Coupled, id., we hold the trial court could properly deny Brandom’s motion to dismiss on the ground there is an issue whether her statements were made in good faith or were made with malice. Id.

In Nexus Group, Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119, 122 (Ind.Ct.App.2011), we stated the definition of “good faith” in the context of defamation law: “a state of mind indicating honesty and lawfulness of purpose; belief in one’s legal right; and a belief that one’s conduct is not unconscionable.” Id. (quoting Owens v. Schoenberger, 681 N.E.2d 760, 764 (Ind.Ct.App.1997), reh’g denied). We addressed whether the various statements Heritage made were in good faith. The first was: “I have seen massive over assessments especially in the industrial sector in Michigan City and even Nexus, the out of town firm hired without a bid contract says they have no support for the number they chose to value this acreage.” Id. at 122-28. We noted the research Heritage did and the data it collected to support that statement, then said:

Putting aside whether this statement was actually true or false, we note that Nexus has offered no evidence establishing that Heritage knew it was false or entertained serious doubts as to its truth. As a general matter, Nexus directs our attention to evidence that Heritage is a business competitor of Nexus, that Landing considered himself to be an “adversary” of Nexus, appellant’s app. p. 175, and that Landing allegedly harbored resentments stemming from Nexus’s failure to retain his services in the past. Nexus argues that this evidence establishes Heritage’s bad faith.
While this evidence, if true, tends to show that Heritage may not have been acting solely out of concern for the well-being of the community by sending the letter to the newspaper, we cannot conclude that it establishes that Heritage was not acting in good faith. To the contrary, the record reveals that [Heritage’s owner] was genuinely concerned about the quality of the work being performed by Nexus and the fact that the county was footing the bill. That he also may have been motivated by self-interest makes him human, but does not necessarily mean that he acted in bad faith. With respect to each of these statements, the record shows that Landing genuinely believed that he was being factual and also believed that it would be best for his community to sever ties with Nexus. Consequently, we do not find that this evidence establishes that Landing acted in bad faith or without a reasonable basis in law and fact.

Id. at 128.

Bad faith, then, appears to require, regardless of truth or falsity, a statement the speaker “knew ... was false or entertained serious doubts as to its truth”; even if the speaker is “motivated by self-interest,” a statement might not be in bad faith if the speaker “genuinely believed that he was being factual and also believed that it would be best for his community” to pursue the subject matter of the statement. Id. at 123.

As for malice, we said in Shepard that

[s]ubstantively, [the anti-SLAPP statute] does not supplant the Indiana common law of defamation, but provides that the movant must establish that his or her speech was “lawful.” Ind.Code § 34-7-7-9(d). To establish a claim of defamation, a plaintiff must prove the existence of “ ‘a communication with defamatory imputation, malice, publication, and damages.’ ”
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
Actual malice exists when the defendant publishes a defamatory statement “ ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ”

847 N.E.2d at 224-25 (footnote and internal citations omitted).

Brandom relies on Shepard as the basis for her argument Coupled was obliged to prove she acted with actual malice, and not just that her speech was not in good faith. There is malice when a defendant publishes a defamatory statement with knowledge it is false or with reckless disregard of whether it was false. Id. at 225.

Actual malice is not an objective standard of reasonableness; rather, it is a subjective standard that requires one challenging the speech, here Coupled, to prove by clear and convincing evidence that the speaker “ ‘in fact entertained serious doubts as to the truth of his publication,’ or acted with a ‘high degree of awareness of ... probable falsity.’ ” Love, 946 N.E.2d at 14-15 (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)). A speaker is not required to verify facts before speaking unless she has some reason to doubt the veracity of those facts. Id. at 15. The actual malice standard protects those negligent or careless false statements of fact that are inevitable in free debate. Id.

There is a genuine issue of fact as to whether Brandom knew her statements were false, entertained serious doubts as to their truth, or made the statements with reckless disregard of whether they were false. Coupled addresses only one of Brandom’s statements in support of its argument she did not act in good faith: “[at] the very least, Brandom cannot show good faith on the issue of whether Coupled sought additional concessions from UAW Local 2049 including company provided bereavement pay, sickness and accident pay, dental insurance, life insurance, and a One Dollar ($1) an hour raise.” (Br. of Appellee at 14.) There was evidence before the trial court that could permit a jury to infer Brandom might not have “genuinely believed [she] was being factual” in her statements that Coupled demanded additional concessions or that she entertained serious doubts,” id,., as to the truth of the statements.

Coupled points to evidence Brandom “clearly knew,” (Br. of Appellee at 5), that the only concessions Coupled had asked for were the surrender of the employer portion of the dental and life insurance premiums, but despite that knowledge, Brandom told the newspaper Coupled sought additional concessions — specifically bereavement pay, sickness and accident pay, dental insurance, life insurance, and a one dollar per hour raise.

Brandom admitted she told the newspaper that Coupled raised the deductible on the company’s health insurance plan without the knowledge or consent of the Local officials, which statement was inconsistent with statements made during negotiations between Coupled and the Local. Coupled then asserts “Brandom admitted she conveyed to [the newspaper] that Coupled sohght additional concessions from UAW Local 2049 including company provided bereavement pay, sickness and accident pay, dental; insurance, life insurance, and a One Dollar ($1) an hour raise.” (Id.) In the interrogatory response to which Coupled directs us, Brandom said “[t]he fact that these possible concessions were discussed is true.” (Id. at 32) (emphasis added). Coupled directs us to evidence Coupled “never formally asked the Local 2049 to surrender anything but the employer portion of the life and dental insurance,” (Br. of Appellee at 5), and never “asked the bargaining committee for a concession that involved forfeiting union employees’ sickness, accident, or bereavement pay.” (Id.)

We acknowledge Brandom’s argument she did not speak with malice because her statements had “a substantial basis in the truth” which is enough to defeat defamation. See Love, 946 N.E.2d at 15 n. 13 (“Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ ”) (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)). Brandom notes evidence a union representative who met with Coupled testified that, while Coupled did not “formally propose” the union members give up the additional concessions, they were all “on the table.” (Appellant’s App. at 124.)

As there was a genuine issue of fact as to whether Brandom genuinely believed she was being factual in her statements that Coupled demanded additional concessions or that she entertained serious doubts as to the truth of the statements, her motion to dismiss was properly denied. We accordingly affirm.

Affirmed.

FRIEDLANDER, J., concurs.

BARNES, J., dissents with separate opinion.

BARNES, Judge,

dissenting with opinion.

I agree that Brandom’s statements related to an issue of public interest. I dissent, however, from the majority’s holding that genuine issues of material fact exist regarding Brandom’s good faith. As a result, I conclude that the trial court’s denial of Brandom’s motion to dismiss should be reversed.

A defendant is entitled to dismissal of a lawsuit under the anti-SLAPP statute if the act or omission complained of is, in part, “an act or omission taken in good faith and with a reasonable basis in law and fact.” Ind.Code § 34-7-7-5(2). Coupled contends that Brandom cannot show good faith regarding the following statement from the newspaper article:

Initially, the company asked the workers to surrender their sickness and accident pay, their bereavement pay, and a $1 an hour raise as well as dental and life insurance. When union leaders balked, the company scaled back its request to just the dental and life insurance, but when that was submitted to the rank and file for a vote, they turned it down by a 92-4 margin.

Appellant’s App. p. 16. However, in support of her motion to dismiss, Brandom designated her affidavit, which provided:

13. The meeting continued and Tina [Johnson] talked about the need for us to make concessions. She told us that our benefits were better than those paid to the workers at the Upper Sandusky plant. She spelled out the difference in the cost of our Sickness and Accident Pay Benefit, the Bereavement Pay Benefit, the Dental Insurance Benefit, and the Life Insurance Benefit, as well as the dollar-an-hour raise we had gotten when the contract was ratified. I understood that Tina Johnson wanted concessions from us concerning these benefits to cover the cost of the move.
14. The next day, September 1, 2009, Tina Johnson sent a letter to our UAW International Representative, Jeff Shrock and the union, specifically asking us to give up our dental and life insurance benefits....
******
21. The statement in the article regarding concessions sought by Coupled Products was not attributed to me. The exact phrasing of the statement was the reporter’s own. I did communicate to the reporter that Coupled Products sought additional concessions in return for the move of work to Columbia City. Possible concessions that were discussed included the company-provided bereavement pay, sickness and accident pay, dental insurance, life insurance, and a $1 an hour raise. The fact that these possible concessions were discussed is true. I communicated the discussions to the reporter in good faith and without malice.

Id. at 19, 21.

According to Coupled, Brandom’s state of mind “could not have indicated honesty and lawfulness of purpose” because, when she talked to the reporter, she knew that Coupled was asking for concessions only regarding the employer portion of the dental and life insurance benefits. Appellee’s Br. p. 14. Coupled designated evidence that, although differences between the benefits received by employees at the Coupled’s union and non-union facilities were discussed during negotiations, it formally requested concessions only on the employer contribution to the life and dental insurance.

I cannot conclude that this evidence establishes that Brandom acted in bad faith or without a reasonable basis in law and fact. The “actual malice standard ... protects those negligent or careless false statements of fact that are inevitable in free debate, as is required by the Constitution.” Love v. Rehfus, 946 N.E.2d 1, 15 (Ind.2011). “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ ” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991) (quoting Heuer v. Kee, 15 Cal.App.2d 710, 714, 59 P.2d 1063, 1064 (1936)).

The difference between “discussing” concessions and “asking” for concessions is a mere matter of semantics that should not be used to chill free speech. The same can be said about the difference between surrendering life and dental insurance versus surrendering the employer contribution to the life and dental insurance. We are viewing here an important economic issue not only to the actual workers at the plant in question, but also to the entire citizenry of Whitley County. The good faith requirement should and must be present, but in this context, with collective bargaining in play, I believe Brandom’s conversation with the reporter was had in good faith. Remember, too, there is no direct quote in the article in question, and the reporter was free to, and undoubtedly did, capsulize, summarize, and characterize the conversation. In my view, the anti-SLAPP statute provides protection in such instances. I believe Brandom was entitled to her dismissal and protection under the statute.

      . We heard oral argument August 6, 2012. We commend counsel on the quality of their advocacy.

      . Coupled first asserts Brandom's statement of the issue of public interest related to her speech was not sufficiently specific. Coupled offers no authority to explain what level of specificity the statute requires, nor does it explain why Brandom's statement was inadequate. Rather, it simply concludes her motion does not “state with any specificity the public issue or issue of public interest that prompted the act.” (Br. of Appellee at 13.) Brandom responds by pointing to language she included in the motion to dismiss, then concludes, also without citation to authority, she "clearly complied with her obligations under the anti-SLAPP statute.” (Appellant’s Reply Br. at 3.) In her motion, she did not quote or paraphrase specific statements she made, but she accurately characterized the statements as made in the context of negotiations between the Local and Coupled, which negotiations "concerned the move of a significant portion of [Coupled's] business to the Columbia City facility whose employees are represented by” the Local. (Appellee’s App. at 93.) The statements “all concerned either the details of the move or concessions that [Coupled] had asked its employees to make in anticipation of the move.” (Id.) Brandom’s statement was specific enough.

      . In Pickering v. Board of Education, 391 U.S. 563, 566, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the United States Supreme Court held the First Amendment protected a public school teacher who wrote a letter to a newspaper in which he criticized the allocation of school funds and the manner by which the school board raised such funds:

        'Pickering and its progeny provide a two-step analysis for determining whether the First Amendment protects an employee’s speech. First, the employee must have been speaking as a citizen on a matter of public concern. Garcetti [v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ]. If this threshold requirement is not met, then there is no First Amendment retaliation claim. Id. If the employee satisfies this threshold, then the Pickering balancing test must be applied to determine if the government was justified in ‘‘treating the employee differently from any other member of the general public.”

        Love, 946 N.E.2d at 9 (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951). Neither Love nor Pickering addressed an anti-SLAPP statute. Rather, both involved claims by public employees that they had been fired, not sued, for statements they made.

      . Coupled argues, pursuant to that section of the anti-SLAPP statute, Brandom’s statements were not made in good faith. In her brief, Brandom argues her statements were not made with actual malice. (Appellant’s Br. at 14) (citing Shepard v. Schurz Communications, Inc., 847 N.E.2d 219, 224 (Ind.Ct.App.2006), which applied an actual malice standard in an anti-SLAPP case). Brandom does not offer argument about good faith, and Coupled does not offer argument about malice in its argument the anti-SLAPP statute does not apply. It does argue, in the alternative, that if this court should "consider matters outside the scope of the Anti-SLAPP statute,” Brandom's statements were defamatory because they were made with actual malice. (Br. of Appellee at 16.) We find there is a genuine issue of fact under either standard.

      . Judge Barnes’s well-supported dissent appears to be based on the premise he "cannot conclude that this evidence establishes that Brandom acted in bad faith or without a reasonable basis in law or fact.” Brandom v. Coupled Products, LLC, No. 92A03-1112-PL-542, op. at 392 (Ind. Ct. App. 2012). Nor can we, and we do not reach any such conclusion. Rather, we hold only that the designated evidence gives rise to a genuine issue of fact as to whether Brandom’s statements were in good faith.


author: MAY, Judge.

text:
    Justin TAYLOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1201-CR-4.
    Court of Appeals of Indiana.
    Sept. 21, 2012.

      Ellen M. O’Connor, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer-Smith, Special Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Justin Taylor appeals his conviction of Class D felony failing to register as a sex offender. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 6, 2008, Taylor pled guilty to Class C felony child molesting. When released from incarceration on June 18, 2009, he was notified he was required to register with the Sex and Violent Offender Registry in Marion County for ten years. The registry requirement mandated Taylor provide his current address, and update his address within three days or seventy-two hours of relocation to a new residence. Taylor first registered on June 19, 2009 and reregistered with a new address on July 1, 2009.

In May 2011, Taylor was arrested and later convicted of criminal confinement. He was released to home detention on August 29. The home detention was to be served at 1725 Sloan, which was not listed as one of his addresses on the Sex Offender registry. In September, a compliance officer in the Sex and Violent Offender Registration Division learned Taylor was not living at either of the addresses listed as his residence on the Sex Offender registry.

The compliance officer learned of Taylor’s address from his home detention supervisor and arrested him there for failing to register as a sex offender. The State charged Taylor with Class D felony failure to register as a sex offender and the trial court found Taylor guilty as charged.

DISCUSSION AND DECISION

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

To convict Taylor of Class D felony failure to register as a sex offender, the State must prove he knowingly or intentionally failed to register as a sex offender when his address changed. Ind.Code § 11 — 8—8— 17. Taylor does not dispute he did not update his registry information when he was placed on house arrest at the Sloan street address, however, he contends he did not knowingly or intentionally fail to register because he was not aware he was required to register upon his release from incarceration to home detention: “he assumed they were closely monitoring him by ankle bracelet and other means. [Tr.*] [sic] He was unaware he was required to submit himself to double monitoring.” (Br. of Appellant at 9.) We find his argument/defense without merit.

“Because knowledge is the mental state of the actor, it may be proved by circumstantial evidence and inferred from the circumstances of each case.” Wilson v. State, 835 N.E.2d 1044, 1049 (Ind.Ct.App.2005), trans. denied. At trial, the State presented evidence Taylor received notice, after his release from incarceration for Class C felony child molesting, that he was required to register as a sex offender for the next ten years. When Taylor first registered on June 19, 2009, he received and signed a form that stated:

I hereby certify that I truthfully answered the information requested above. If I move to a different residential location (home address) within Marion County, I will provide a newly completed registration to the Indianapolis Metropolitan Police Department within three (3) days of making such change. Further, if I move to a different residential location (home address) outside of Marion County, not more than 72 hours/ three (3) days after the address change, I must:
1) provide written notice to the Indianapolis Police Department Sex Offender Registry of change and
2) register within a new county of residence.

(State’s Exhibit at 5.) Taylor received and signed the same form when he changed his address on July 1, 2009. In addition, both forms displayed in bold letters, “FAILURE TO COMPLY IS A CLASS D FELONY.” (Id. at 5 and 6) (emphasis in original).

Taylor’s signature acknowledged he understood that language, and he did comply with the requirements when he first registered as a sex offender. Any argument Taylor offers to the contrary is an invitation for us to reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146. Accordingly, we affirm his conviction of Class D felony failing to register as a sex offender.

Affirmed.

NAJAM, J., and KIRSCH, J., concur.

      . Ind.Code § 11-8-8-17.

      . The State first charged Taylor with Class D felony failure to register for “failing to register initially as a sex offender within seven (7) days after [his] obligation to register[.]” (App. at 36.) However, the State moved for, and the trial court granted, an amendment to the charging information to allege Taylor did not register or update his address within seventy-two hours of moving to a new address and/or did not reside at the address he previously registered.


text:
    Marquis Dayvon BROOKS, Appellant-Plaintiff, v. ANDERSON POLICE DEPARTMENT, CITY OF ANDERSON, and Chris Barnett, Appellee-Defendant.
    No. 48A02-1110-CT-1045.
    Court of Appeals of Indiana.
    Sept. 24, 2012.

      Mark R. Regnier, Bingham Farrer & Wilson P.C., Elwood, IN, Attorney for Appellant.
    Angela Warner Sims, Hulse, Lacey, Hardacre, Austin, & Sims, P.C., Anderson, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

The old adage, with which many of us are familiar, “you can’t put an old head on young shoulders,” seems fitting to the young man in the instant case. Nevertheless, his failure to make wise choices does not preclude him from having his day in court where the factfinder is entitled to determine whether the consequences he endured as the result of his unwise choices exceeded the bounds of the law.

In this case, a young man and his friend were at a local teen nightclub into the early morning hours when gunshots were fired. Sensing trouble, he and his friend decided to leave immediately; however, they were quickly pursued by a police officer who was attempting to locate those responsible for the gunshots. Although there was no evidence linking the young man to the shooting incident, he had been drinking while underage, smoking marijuana, and was driving without a license. Consequently, he led the police on a high-speed vehicular chase that ended when the young man struck the side of a residence with his vehicle.

The young men fled on foot. The friend was apprehended quickly, but the young man hid in a shed until other police officers, including a police dog arrived. The police dog was permitted to apprehend the young man, who was down on the ground in the shed. During the apprehension, the young man sustained a bite to his arm and a severe laceration to his scrotum.

The young man brought suit against the city, the police department, and the police officer who was in control of the police dog. Summary judgment was granted in favor of the city, the police department, and the police officer. We conclude that this was error, inasmuch as there are many genuine issues of material fact, including whether this young man was already secured when the police dog was permitted to bite him again, causing the severe laceration to his scrotum.

Appellant-plaintiff Marquis Dayvon Brooks appeals from the trial court’s order granting summary judgment in favor of appellees-defendants the Anderson Police Department, the City of Anderson, and Officer Chris Barnett (collectively, “the Appellees”). More particularly, Brooks argues that summary judgment was inappropriate because there are genuine issues of material fact regarding whether Officer Barnett violated the Reasonable Force Statute by permitting his police dog to bite Brooks during his arrest. Additionally, Brooks contends that a violation of the Reasonable Force Statute precludes the Appellees from alleging immunity under the Indiana Torts Claims Act. Concluding that there are genuine issues of material fact, we reverse the decision of the trial court and remand for further proceedings.

FACTS

At approximately 2:00 a.m. on December 24, 2006, the Anderson Police Department received a report that gun shots had been fired at Togo’s, a nightclub for teens. Brooks was at Togo’s that night, but he and his friend, Josh Robinson, decided to leave after the shots were fired. Brooks and Robinson left Togo’s in a 1994 white Dodge Spirit with Brooks driving.

Officer Tommy Fedrick was dispatched to Togo’s, where a witness pointed out a vehicle traveling away from the location, which was later identified as a 1994 white Dodge Spirit. Officer Fedrick followed the vehicle in an attempt to locate the suspect who had fired the shots.

As Brooks was driving away from the club, he noticed an Anderson Police Department vehicle following him. When Officer Fedrick activated his red and blue lights, Brooks pulled to the side of the street but then pulled back onto the street and proceeded without stopping. Officer Fedrick activated his siren, attempting to stop the vehicle once more; however, Brooks immediately accelerated at a high rate of speed. As Officer Fedrick pursued the vehicle, he saw it leave the ground when it struck a bump in the road.

Although Brooks was fleeing law enforcement, there was no evidence that he was connected to anyone involved in the shooting or had knowledge of who was involved in the shooting. Brooks, however, had been drinking while underage, smoking marijuana, and was driving without a license.

Eventually, a door on Brooks’s vehicle opened and struck a street sign at an intersection. The vehicle proceeded back onto the street, but it came to a stop after crashing into the corner of a house. After the vehicle struck the house, Brooks and Robinson immediately exited the vehicle and ran toward an alley behind the house that the vehicle had struck. Officer Fed-rick and Officer Mark Naselroad, who arrived a short time later, caught Robinson, whose pants had become entangled in a chain-link fence.

Officer Barnett was aware that officers had been sent to Togo’s, where shots had been fired and was en route to that area when he heard Officer Fedrick report that a witness had pointed out a vehicle leaving the area whose occupants may have been involved in the shooting. He heard Officer Fedrick as he attempted to stop the vehicle and was aware that the vehicle had crashed into a house, sending the occupants fleeing on foot. When Officer Barnett arrived at the scene where the vehicle had crashed into the residence, Robinson had already been apprehended and taken into custody, but Brooks was still at large.

Because of the nature of the situation, Officer Barnett deployed his K-9 partner, Rex, a Belgian Malinois. In searching for Brooks, Officer Barnett went into an alley with Rex on a six-foot leather leash. When Officer Barnett came to a dilapidated shed in the alley, Rex gave a hard pull towards the shed. It was dark and Officer Barnett could not see, but he knew from his training and experience with Rex that someone was in the shed.

Officer Barnett claims that he gave three verbal warnings: “Anderson Police Department K-9. Make yourself known. We’ll search with the dog. You will get bit.” Appellees’ App. p. 29. Brooks, however, stated during his deposition that he heard a dog barking and then a knock on the door. The door was immediately pushed open, and three police officers entered. Although Brooks did not comply with .Officer Barnett’s commands, Brooks stated that when Officer Barnett opened the door to the shed, he put his hands up and told Officer Barnett that he surrendered. A struggled ensued, during which Brooks was injured by Rex. Brooks claims that Officer Barnett ordered Rex to apprehend Brooks even though he had surrendered. More particularly, according to Brooks:

The dog immediately grabbed me, and I was in there tussling around with the dogs [sic]. So Officer Barnett, he comes up, pushed me down, punched me, and then two more officers come up, grab me, hold me down, and that’s when the dog, he had came up and bit me on my arm. And then I said, “Get the dog off of me. Get the dog off of me. I give up. I give up.” They held me down, and that’s when the dog came and bit me in my testicles.

Appellant’s App. p. 71. Indeed, after suffering a dog bite to the arm, Brooks sustained a severe scrotal laceration from another dog bite.

The entire time that Rex was biting Brooks, he was never off his six-foot leather leash and was under the verbal control of Officer Barnett. There were at least three officers in the shed when Rex bit Brooks. Officers had already surrounded the shed at the time the incident occurred.

On April 22, 2008, Brooks filed a complaint against the City of Anderson, the Anderson Police Department, and Officer Chris Barnett, alleging intentional tortious conduct and negligence. On July 18, 2008, the Appellees filed an answer and jury demand, and on December 22, 2009, the trial court granted Brooks’s motion to amend his complaint.

On August 16, 2010, the Appellees filed a motion for summary judgment. On December 2, 2010, Brooks filed his response along with his supporting brief and designated evidence, which included the deposition testimony of Brooks and Officer Barnett, affidavits, and the Anderson Police Department’s General Orders regarding the use of K-9 units.

On October 21, 2011, following a hearing, the trial court entered its ruling granting the Appellees’ motion for summary judgment. Brooks now appeals.

DISCUSSION AND DECISION

Brooks argues that the trial court erred by granting the Appellees’ motion for summary judgment. Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Spudich v. N. Ind. Pub. Serv. Co., 745 N.E.2d 281, 289 (Ind.Ct.App.2001). “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue.” Id. at 290. We review the grant or denial of a motion for summary judgment de novo. N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1018 (Ind.2009).

Brooks maintains that there are genuine issues of material fact regarding whether Officer Barnett used excessive force by allowing Rex to attack him. The Reasonable Force Statute provides in relevant part that “[a] law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest.” Ind. Code § 35-41-3-3(b). Any claim that excessive force was used by a police officer when making an arrest is analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution. Shoultz v. State, 735 N.E.2d 818, 823-24 (Ind.Ct.App.2000).

Because the Fourth Amendment reasonableness standard does not lend itself to a precise definition or mechanical application, the facts and circumstances of each individual case require careful attention. Id. at 824. Relevant considerations are “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. Additionally, the reasonableness standard in an excessive force case is objective: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them” on the scene, rather than with the benefit of 20/20 hindsight. Id.

In Shoultz, a panel of this Court determined that an officer had used excessive force by spraying pepper spray in Shoultz’s left eye and striking him twice with a metal flashlight that was fifteen to eighteen inches long, once in the back of the leg and the second time in the head, causing profuse bleeding. Id. at 822. In analyzing whether the officer had used excessive force, the Shoultz Court considered six circumstances: 1) Shoultz never threatened the officer with force or violence; 2) there was no evidence that Shoultz made any threatening gestures or touched the officer before the officer subdued him with pepper spray and the flashlight; 3) it appeared that the officer never informed Shoultz that he was under arrest before he began using force; 4) the officer had not attempted to handcuff Shoultz before using force; 5) the alleged crime for which the officer was attempting to arrest Shoultz for was a misdemeanor; 6) the Evansville Police Department’s Standard Operating Procedures provided for the use of nonlethal force where the officer is attacked or resisted, but that only the amount necessary to overcome the attack or resistance should be used. Id. at 824. Moreover, all officers were to avoid blows to the head unless absolutely necessary, and a flashlight or similar device was not to be used except when absolutely necessary. Id. at 825. Shoultz did not forcibly resist the officer, and accordingly, there was no justification for the amount and the method of force that the officer used against Shoultz. Id.

In this case, Officer Barnett stated in his February 4, 2010 deposition that when he approached the shed where Brooks was hiding, Rex indicated that someone was there, but that he was unsure if the person in the shed was the same individual who had fled from Officer Fed-rick. Appellant’s App. p. 57, 62. Officer Barnett explained that he gave three announcements, “Anderson Police Department K-9. Make yourself known. We’ll search with the dog. You -will get bit.” Id. at 64.

Officer Barnett acknowledged that Brooks was not running, but rather, was lying on the ground and that the shed was essentially secured. Id. at 65. Rex entered the shed first on a six-foot leather leash followed by Officer Barnett. Officer Barnett further stated that although Brooks was not following any of his commands, he was not making any threatening motions towards him. Id. at 57. Rex apprehended Brooks, during which, Rex pulled down Brooks’s sweat pants, “trying to bite any part of the body that was exposed.” Appellees’ App. p. 48. According to Officer Barnett, during the struggle, Brooks tried to push Rex away, which Officer Barnett “took [ ] as a threat,” even though he saw no weapons in Brooks’s hands as he pushed the dog away. Id.

Furthermore, Brooks stated during his March 18, 2010 deposition that he was in the shed for about twenty-five to thirty minutes when he heard a dog barking and then a knock on the door. Appellant’s App. p. 72. The door was immediately pushed open and three police officers entered. Id. Brooks stated that he put his hands up and told them that he surrendered; however, Officer Barnett told Rex to apprehend him. Id. More particularly, as stated above, Brooks described the event as follows:

The dog immediately grabbed me, and I was in there tussling around with the dogs [sic]. So Officer Barnett, he comes up, pushed me down, punched me, and then two more officers come up, grab me, hold me down, and that’s when the dog, he had came up and bit me on my arm. And then I said, “Get the dog off of me. Get the dog off of me. I give up. I give up.” They held me down, and that’s when the dog came and bit me in my testicles.

Appellant’s App. p. 71. Thus, after suffering a dog bite to the arm, Brooks then sustained another dog bite to his scrotum, all while he was on the ground. To be sure, while Officer Barnett and Brooks may not agree on many details of what occurred that night, they do agree that Brooks was on ground when Rex apprehended him, causing severe injury.

Additionally, the Anderson Police Department had promulgated general orders regarding the general use of K-9 units. For instance, Order II E 3 provides, in part, that the “K-9 handler will give a verbal warning to a fleeing suspect before the canine is released.” Id. at 44. Similarly, Order II E 4 directs that “K-9 handlers will insure that their canines do not engage criminal suspects if they are not resisting, fleeing, or endangering the public’s well being.” Id. Likewise, Order II E 8 states that the Anderson Police Department is responsible for any civil suits and judgments which may occur as a result of the use of the canine, and Order II D 1 dictates that K-9 units will not be deployed on juveniles unless they are violent or thought to be armed and have committed a felony or serious misdemeanor. Id. at 45.

As stated above, because the reasonableness standard of the Fourth Amendment is not capable of precise definition and mechanical application, we must look carefully at the individual circumstances in this case. When doing so and comparing them to the circumstances in Shoultz, where it was determined that excessive force was used, we conclude that there is a genuine issue of material fact as to whether Officer Barnett used excessive force when he permitted his K-9 partner, Rex, to apprehend Brooks in such a manner that Brooks sustained a severe scrotal laceration. Indeed, even to answer this ultimate question, the fact-finder will be confronted with other factual questions, such as whether Officer Barnett gave a proper warning before entering the shed, whether Officer Barnett had a reasonable belief that Brooks was armed, whether Brooks immediately surrendered when the police entered the shed, and whether Brooks was already secured when Rex was permitted to bite Brooks’s scrotum after biting his arm, just to name a few. But this only bolsters our conclusion that summary judgment was inappropriate under these facts and circumstances. Accordingly, we reverse the trial court’s order granting the Appellees’ motion for summary judgment and remand for further proceedings.

Reversed and remanded.

ROBB, C.J., concurs.

BRADFORD, J., concurs in result without opinion.

      . For those unfamiliar with the old proverb, it means “you can't expect a young person to have the wisdom or maturity associated with older people.” Oxford University Press, http://oxforddictionaries.com (last visited August 29, 2012).

      . Ind.Code § 35-41-3-3.

      . Ind.Code § 34-13-3-3. The Appellees do "not disagree with Brooks’ argument that excessive force in making an arrest is not shielded from liability under the Indiana Tort Claims Act.” Appellees’ Br. p. 7. Accordingly, we need not address this argument.

      .According to the website of the American Kennel Club, the Belgian Malinois "is an alert, high-energy breed, popular as both a police and military working dog” that is "sometimes mistaken for the German Shepherd Dog.” American Kennel Club, http:// www.akc.org/breeds/belgian_malinois/ (last visited August 24, 2012).


author: CRONE, Judge.

text:
    Charles HALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 13A04-1111-CR-622.
    Court of Appeals of Indiana.
    Sept. 25, 2012.

      Susan E. Schultz, Corydon, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

A deputy with the Crawford County Sheriffs Department attempted to initiate a traffic stop of a vehicle driven by Charles Hall. Hall, who was driving with a suspended license and also had an active methamphetamine lab in his vehicle, led the deputy on a high speed chase. Hall ultimately drove the vehicle off the road, left it in a field, and fled on foot. When the deputy found the vehicle, he had another deputy conduct an inventory search in preparation for impoundment. When the deputy discovered evidence of a methamphetamine lab in the vehicle, he turned the search over to the State Police’s clandestine lab team. The search uncovered an active methamphetamine lab, finished methamphetamine, and various precursors. Hall was ultimately convicted of and sentenced on four offenses: dealing in methamphetamine, possession of precursors, operating a vehicle after a lifetime suspension, and resisting law enforcement. The trial court imposed an aggregate sentence of twenty-four years.

On appeal, Hall argues that the inventory search violated his Fourth Amendment rights, and therefore the evidence obtained from the vehicle should have been excluded. He also argues that his sentence is inappropriate. We conclude that Hall abandoned his vehicle; therefore, the search did not implicate the Fourth Amendment. In light of Hall’s highly dangerous conduct and his lengthy record of convictions relating to driving and/or drug use, Hall has not persuaded us that his sentence is inappropriate. Therefore, we affirm.

Facts and Procedural History

On April 5, 2011, while he was off duty, Deputy Shawn Scott of the Crawford County Sheriffs Department was at a CVS pharmacy in the town of English. His attention was drawn to a woman with disheveled hair and sores on her neck, shoulders, and arms. She was with a man in a blue Cadillac with a Lawrence County license plate. Deputy Scott’s suspicions were aroused because the woman’s appearance was consistent with that of a methamphetamine user and because the car was from out of town. Deputy Scott memorized the license plate number and relayed it to dispatch. The dispatcher informed him that it was registered to a gray Oldsmobile with an address on Popcorn Road in Springville, which is in Lawrence County-

Later that day, when he was on duty, Deputy Scott checked the electronic log that tracks purchases of ephedrine and pseudoephedrine. There were three purchases at the English CVS around the time that Deputy Scott had been there; one of the purchases was made by a Kimberly Jones and another was made by Hall, who had an address on Popcorn Road in Springville. Deputy Scott ran a license check on Hall and learned that he had outstanding warrants and that his license had been suspended as a habitual traffic offender.

Deputy Justin Ash was working the same shift, and Deputy Scott told him to be on the lookout for Hall and the blue Cadillac. Deputy Ash informed Deputy Scott that a detective from Monroe County had also asked him to keep an eye out for Hall and had informed him that Hall was believed to be in the Marengo area and driving a blue Cadillac.

Around 9:00 or 9:30 p.m., Deputy Ash located the blue Cadillac at a gas station in Marengo. Deputy Scott arrived at the scene, confirmed that the blue Cadillac had the same license plate he had seen earlier at CVS, and identified Hall and Jones. Deputy Scott decided that they would wait for Hall to leave, follow him, and make a traffic stop. When Hall made a turn without signaling, Deputy Scott turned on his lights and siren to initiate a stop. Hall initially slowed down, but then took off at a high rate of speed. Deputies Scott and Ash chased Hall, who reached speeds of over 100 miles an hour, crossed the center line several times, and at one point drove another car off the road. After several miles, the deputies lost sight of Hall.

After following a bad lead that Hall had turned on McClure Road, Deputy Scott eventually found the blue Cadillac in a field off of Alton-Fredonia Road. Hall and Jones were nowhere in sight, so Deputy Scott had Deputy Ash prepared the vehicle for impound while he began searching for the suspects with his dog. Deputy Ash started to conduct an inventory search of the car, but quickly noticed a bottle of bubbling liquid, which he believed to be a one-pot methamphetamine lab. Deputy Ash stopped his search and contacted the Indiana State Police clandestine lab team. The team removed several items from the car that are used to manufacture methamphetamine. Although most of the items were destroyed for safety purposes, some items were sent to a lab for testing, which confirmed the presence of methamphetamine.

As a result, Hall was charged with class B felony dealing in methamphetamine, class D felony possession of methamphetamine, class C felony possession of precursors, class A misdemeanor possession of paraphernalia, class C felony operating a vehicle after a lifetime suspension, and class D felony resisting law enforcement. Prior to trial, Hall filed a motion to suppress the evidence obtained during the warrantless search of the vehicle. The State argued that a warrant was not required because the vehicle had been abandoned and because the officers had conducted a proper inventory search. The trial court denied the motion to suppress. During the jury trial, Hall entered a continuing objection to the evidence recovered from the vehicle, and the evidence was admitted over his objection. At the conclusion of the trial, the jury found Hall guilty on all counts except possession of paraphernalia.

A sentencing hearing was held on November 1, 2011. Hall informed the court that he was participating in a substance abuse program and asked the court to consider that his incarceration would be a hardship on his children. The trial court noted Hall’s lengthy criminal record, which consists mostly of driving- and drug-related offenses. The court found that there was a high probability that Hall would offend again, that he was in need of rehabilitation best provided by a penal facility, and that the aggravating circumstances outweighed the mitigating circumstances. The trial court imposed sentences of seventeen years for dealing in methamphetamine, thirty months for possession of precursors, seven years for operating while suspended, and thirty months for resisting law enforcement. The court ordered the seventeen- and seven-year sentences to be served consecutively, with the remaining sentences served concurrently, for an aggregate sentence of twenty-four years. Hall now appeals.

Discussion and Decision

Hall argues that the trial court abused its discretion by admitting the evidence obtained from the search of his vehicle and that his sentence is inappropriate.

I. Admission of Evidence

Hall contends that the admission of the evidence obtained from the vehicle violated his rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment protects citizens from unreasonable searches and seizures. Buckley v. State, 886 N.E.2d 10, 14 (Ind.Ct.App.2008). Searches conducted without a warrant are per se unreasonable, subject to a few established exceptions. Bell v. State, 818 N.E.2d 481, 484 (Ind.Ct.App.2004), trans. denied (2005). To trigger Fourth Amendment protections, the subject of the search must exhibit “an actual subjective expectation of privacy that society as a whole is prepared to recognize as objectively ‘reasonable.’ ” State v. Seidl, 939 N.E.2d 679, 688 (Ind.Ct.App.2010).

In reviewing the trial court’s ruling on the admissibility of evidence from an allegedly illegal search, we do not reweigh the evidence, but defer to the trial court’s factual determinations unless clearly erroneous. Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009). We consider the conflicting evidence most favorable to the trial court’s ruling, but also consider any uncon-troverted evidence in the defendant’s favor. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007). We consider afresh any legal question of the constitutionality of a search or seizure. Meredith, 906 N.E.2d at 869.

The State argues that the Fourth Amendment was not implicated because Hall abandoned the vehicle. Abandoned property is not subject to protection under the Fourth Amendment. Campbell v. State, 841 N.E.2d 624, 627 (Ind.Ct.App.2006).

The question of abandonment is primarily a question of intent. Intent may be inferred from words, acts, and other objective facts. Abandonment rests upon whether the defendant so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.

State v. Machlah, 505 N.E.2d 873, 879 (Ind.Ct.App.1987) (citations omitted), trans. denied.

In the context of abandoned vehicles and the Fourth Amendment, “the question is not whether someone ‘had a proprietary or possessory interest in the automobile at the time of the police activity in question,’ taking into account the ‘subtle distinctions of common law property concepts,’ but rather whether [the] ‘defendant was entitled to and did have a reasonable expectation that the automobile would be free from government intrusion.’ ”

Wilson v. State, 966 N.E.2d 1259, 1264 (Ind.Ct.App.2012) (citations omitted), trans. denied.

In Wilson, an officer observed the defendant exit a bar and drive away in a car that had been parked in a handicapped space. The car did not have a handicapped plate or permit, so the officer checked the license plate number and learned that the registered owner had a suspended license and two outstanding warrants. The officer therefore followed the car, which pulled into a parking space near a strip club. The officer pulled up behind the car and activated his lights, and the defendant fled on foot. The officer decided to impound the vehicle and therefore conducted an inventory search. Inside the car, the officer found several prescription pill bottles belonging to someone other than the defendant. At his trial for dealing in and possession of narcotic drugs, the defendant objected to the evidence found in the car, arguing that im-poundment of his vehicle had been unjustified. The evidence was admitted over his objection, and the defendant appealed. We concluded that the defendant had abandoned the vehicle and therefore affirmed. See id. (quoting United States v. Pittman, 411 F.3d 813, 817 (7th Cir.2005), for the proposition that if “the driver of a car flees at the approach of the police, this is pretty good evidence that he’s abandoned the car^ — that he doesn’t want to be associated with it and therefore isn’t going to reclaim it.”).

The evidence of abandonment is even stronger in Hall’s case than in Wilson. Hall did not leave the car in a parking lot; he drove it off the road and into a field, where he left it with a flat tire. He also left an active one-pot methamphetamine lab untended in his vehicle. State Police Officer Paul Andry, who was part of the team that removed the hazardous materials from Hall’s vehicle, testified that the one-pot method involves mixing the necessary chemicals in a closed bottle. The mixture produces gases which build up pressure inside the bottle. The bottle needs to be periodically “burped” to release the pressure. Tr. at 278. If the lab is not tended to, one of two things typically happens: either the pressure builds to the point where it causes an explosion and releases a lethal cloud of ammonia gas, or the mixture melts a hole in the bottle, and the exposure to oxygen causes the chemicals to ignite as they spew from the bottle, creating an effect like a flame thrower. Officer Andry testified that these effects were capable of burning out an entire vehicle. Thus, the evidence raises an inference that Hall not only was attempting to disassociate himself with the vehicle, but also that he did not reasonably expect the vehicle to remain intact. There is ample evidence that Hall abandoned the vehicle; therefore, his Fourth Amendment rights were not violated, and the trial court did not abuse its discretion by admitting the evidence obtained from the vehicle.

II. Appropriateness of Sentence

Hall asserts that his sentence is inappropriate based on the nature of the offenses and his character. Article 7, Section 6 of the Indiana Constitution authorizes this Court to independently review and revise a sentence imposed by the trial court. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. Indiana Appellate Rule 7(B) states, “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

Ultimately the length of the aggregate sentence and how it is to be served are the issues that matter. In the vast majority of cases, whether these are derived from multiple or single counts, involve maximum or minimum sentences, and are concurrent or consecutive is of far less significance than the aggregate term of years.

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Purvis v. State, 829 N.E.2d 572, 587 (Ind.Ct.App.2005) (internal citations and quotations omitted), trans. denied, cert. denied (2006). The defendant bears the burden of persuading us that the sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007).

As to the nature of the offenses, Hall led police on a high-speed chase while operating a volatile methamphetamine lab in his vehicle. While Hall points out that no one was injured, that is more attributable to luck and the officers’ skill in responding to the situation than anything that Hall did. Hall also argues that his offenses were all part of one series of events, but he does not explain the nexus between his decision to drive with a suspended license and his decision to manufacture methamphetamine. His decision to do both at the same time served only to create a more dangerous situation.

As to Hall’s character, he has a lengthy criminal record consisting of nine misdemeanors and six felonies, almost all of which involve driving and/or drugs. In the past, Hall has received alternatives to incarceration, such as probation and community service. He has had probation revoked in two different cases. Hall has acknowledged that he needs treatment for substance abuse, but in light of his history, the trial court was fully justified in determining that Hall’s rehabilitation needs to take place within the highly structured environment of prison. Hall has not persuaded us that his sentence of twenty-four years is inappropriate. Therefore, we affirm.

Affirmed.

RILEY, J., and BAILEY, J., concur.

      . The trial court did not enter judgment of conviction on the charge of possession of methamphetamine because it was a lesser-included offense of dealing in methamphetamine.

      . Hall also makes a passing reference to Article 1, Section 13 of the Indiana Constitution, which deals with the rights of the accused in a criminal prosecution, including the right to a jury trial, the right to counsel, the right to confrontation, and the right to compulsory process. Hall presumably meant to cite Article 1, Section 11, which mirrors the Fourth Amendment. Even if he had provided the proper citation, he fails to develop an argument concerning his state constitutional rights; therefore, any such argument is waived. See Taylor v. State, 717 N.E.2d 90, 93 n. 4 (Ind.1999) (arguments under Indiana Constitution waived where defendant failed to provide independent argument of state constitutional claims).