author:
SHEPARD, Senior Judge.
      MATHIAS, Judge, BAILEY, Judge,

text:
    Phillip GRIFFIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1212-CR-964.
    Court of Appeals of Indiana.
    Oct. 23, 2013.

      Barbara J. Simmons, Oldenburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

Citizens are obliged to obey a police officer’s order to stop when the officer has probable cause or reasonable suspicion to believe that criminal activity may be afoot. When there is no indication of possible criminal activity, does a citizen who walks away commit the crime of resisting arrest by departing? We think it cannot be so, consistent with the Fourth Amendment, and reverse appellant Phillip Griffin’s conviction for resisting law enforcement.

On the other hand, whether Griffin’s conviction for battering- an officer while being placed under arrest stands on different grounds. We affirm it.

FACTS AND PROCEDURAL HISTORY

On June 27, 2012, Officer Matthew Miller of the Lawrence Police Department was on patrol, in uniform and in a marked police car. He passed Phillip Griffin, who was walking down the street. When Miller looked in his rearview mirror, Griffin appeared to be gesturing at him. It appeared to Officer Miller that Griffin was “maybe unstable,” Tr. p. 6, so Miller called for backup as he turned around and drove back to Griffin.

Miller got out of his car and asked Griffin what was happening. Griffin, shouting in a “kind of incoherent” manner, id., accused Miller of trying to run him over. Next, although the two men were standing fifteen feet apart, Griffin threw “two kind of shadow punches” at Miller and ran away from him. Id.

Miller pursued Griffin, shouting at him to stop and warning that he would use his Taser if necessary. When Griffin did not stop, Miller deployed his Taser, which struck Griffin and caused him to fall to the ground. Griffin stood up and struck Miller with his hands and feet as Miller attempted to handcuff him. At this point, several other officers arrived. They tackled Griffin, tased him four times, and eventually handcuffed him. Tr. pp. 18-20.

The State charged Griffin with two counts of resisting law enforcement, both class A misdemeanors. Ind.Code § 35-44-3-3 (2011). It also charged him with two counts of battery upon a law enforcement officer, both class A misdemeanors. Ind.Code § 35-42-2-1 (2009). One of these counts alleged battery on Miller during the initial encounter; the other count alleged battery on the officers who subdued Griffin a moment later.

After a bench trial, the court found Griffin guilty of battering Miller and of resisting law enforcement in relation to disregarding Miller’s command to stop. The court found Griffin not guilty of the other two charges.

The court sentenced Griffin to two concurrent terms of 365 days, to be suspended and served on probation. Furthermore, the court ordered him “to do 24 hours of community service work in lieu of his court costs” and found him indigent as to all other fees. Tr. p. 39.

ISSUES

Griffin raises two issues:

I. Whether the evidence is sufficient to sustain his convictions.
II. Whether the trial court abused its discretion by ordering him to perform community service in lieu of paying court costs.

DISCUSSION AND DECISION

I. SUFFICIENCY OF THE EVIDENCE

When an appellant challenges the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809 (Ind.2011). We consider only the probative evidence and reasonable inferences supporting the judgment, and we will affirm if the evidence and reasonable inferences could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

A. Resisting Law Enforcement, by Fleeing

Griffin does not argue that Indiana’s statute on resisting law enforcement is unconstitutional. What he does contend is that when the evidence does not reflect any suggestion of criminal activity afoot, a citizen is free to terminate an encounter with an officer by walking away. There being no indication of any criminal activity in this case, Griffin says that the officer’s command to stop was an “unreasonable seizure” in violation of the Fourth Amendment.

To convict Griffin of resisting law enforcement as charged, the State was required to prove beyond a reasonable doubt that: (1) Griffin (2) fled (3) from Miller, a law enforcement officer, (4) after Miller, by visible or audible means, identified himself and ordered Griffin to stop. Ind.Code § 35-44-3-3.

The State cites to a number of cases in this Court which hold that the resisting statute does not require that the order to stop be lawful. In Cole v. State, 878 N.E.2d 882, 884 (Ind.Ct.App.2007), for example, an officer drove up to a vehicle around which he saw several people gathered. He did not see any actual sign of criminal activity, though the comings and goings were loosely suggestive of drug dealing. When the officer exited his car and asked the driver and the passenger, Cole, for identification, Cole got out of the car and began walking away. Cole disregarded several orders to get back in the car and then ran away, ignoring the officer’s commands to halt. Another officer tasered Cole, who was subsequently subdued and placed in handcuffs.

The Cole panel was led to “doubt the propriety of the investigatory stop,” id. at 886, but held it unnecessary to address Cole’s claim of a Fourth Amendment violation, stating, “It is well settled that ‘[i]n Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order.’ ” Id. at 886 (quoting Dandridge v. State, 810 N.E.2d 746, 749 (Ind.Ct.App.2004), trans. denied ).

While this may adequately describe the structure of the statute, we think it but states the obvious that the government’s seizure of a citizen is subject to limitation under the Fourth Amendment. As the Indiana Supreme Court has observed: “The Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause.” Woods v. State, 547 N.E.2d 772, 778 (Ind.1989), overruled in pari on other grounds by Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999). Even brief detentions for investigatory purposes must rest on articulable facts that lead an officer to reasonable suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Of course, there are many altogether lawful contacts between officers and citizens in which neither probable cause nor articulable suspicion are present. These include conversations seeking information, in what the cases call “consensual encounters,” where “the person to whom questions are put remains free to disregard the questions and walk away.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Such interactions also occur in which a modest consensual encounter during a “community caretaking” run produces immediate indication of criminal activity warranting a seizure. See, e.g., Woodson v. State, 966 N.E.2d 135 (Ind.Ct.App.2012), trans. denied; R.H. v. State, 916 N.E.2d 260 (Ind.Ct.App.2009), trans. denied. The State has not responded in this case on these grounds or, for example, by citing cases in which detention is appropriate on mental health grounds. It stands instead on the Cole line of cases, saying that the crime of resisting is committed when a directive to halt is disobeyed, whether the directive was lawful or unlawful.

Most persons choose to stay when officers ask them to do so, but citizens who choose to depart cannot be regarded as committing a crime. As Justice Stewart wrote in Mendenhall, “The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” Id. at 553-54 (quotation and citation omitted).

As a recent decision of this Court declared, “We hold that as long as a seizure has not taken place within the meaning of the Fourth Amendment, a person is free to disregard a police officer’s order to stop and cannot be convicted of resisting law enforcement for fleeing.” Gaddie v. State, 991 N.E.2d 137, 141 (Ind.Ct.App. 2013), trans. pending.

In the present case, the State explicitly argues that it need not establish any facts giving rise to probable cause or articulable suspicion that would have warranted detaining Griffin in order to sustain the conviction. This position fits with the record, which does not reveal any facts warranting a detention. Griffin appeared to Miller to be unstable, and he threw “shadow punches” from a considerable distance before running away, but none of Griffin’s actions suggested any criminal offense. Without evidence demonstrating grounds for detention, Griffin’s conviction for resisting law enforcement must be reversed.

B. Battery Upon a Law Enforcement Officer

Griffin’s contention that there is insufficient evidence to sustain his conviction for battering Officer Miller focuses solely on his argument that he was defending himself from Miller’s use of excessive force. This claim is subject to a very different analysis.

The common law rule, still widely recognized, has been that a citizen is permitted to use reasonable force to resist an illegal arrest. 5 Am.Jur.2d Arrest § 89 (2007). Indiana’s criminal code recognizes this principle through a section upon which Griffin relies:

A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;
(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.

Ind.Code § 35-41-3-2® (2012).

To convict Griffin of battery upon a law enforcement officer as charged, the State was required to prove beyond a reasonable doubt that: (1) Griffin (2) knowingly or intentionally (2) touched Miller, (3) a law enforcement officer, (4) in a rude, insolent, or angry manner. Ind.Code § 35-42-2-1.

A valid claim of self-defense is legal justification for an otherwise criminal act. Mayes v. State, 744 N.E.2d 390 (Ind.2001). When a claim of self-defense is raised, the State must disprove at least one of the elements of self-defense beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921 (Ind.1999). Whether a defendant acted in self-defense is generally a question of fact, and on appellate review the finder of fact’s conclusion is entitled to considerable deference. Id. A conviction in spite of a claim of self-defense will be reversed only if no reasonable person could say that the claim was negated by the State beyond a reasonable doubt. Id.

Under this statute, deciding whether the detainee’s use of force was reasonable and whether he reasonably believed it was necessary to protect himself from imminent use of unlawful force is broadly a matter for the finder of fact. We think the facts here sufficient to support the conviction.

II. COMMUNITY SERVICE IN LIEU OF FINE

Griffin says the trial court lacked authority to order him to perform community service in lieu of fines and costs.

Sentencing decisions, including decisions to impose restitution, fines, costs, or fees, are generally left to the trial court’s discretion. Kimbrough v. State, 911 N.E.2d 621 (Ind.Ct.App.2009). A defendant’s indigency does not shield him from all costs or fees related to his conviction. Banks v. State, 847 N.E.2d 1050 (Ind.Ct.App.2006), trans. denied. When the trial court suspends fines, it may impose any reasonable condition it deems appropriate. Campbell v. State, 551 N.E.2d 1164 (Ind.Ct.App.1990). Even if error exists, an appellant is not entitled to reversal unless the error was prejudicial. O’Connor v. State, 590 N.E.2d 145 (Ind.Ct.App.1992).

In this case, the court costs were $166, and the court ordered Griffin to perform twenty-four hours of community service in lieu of payment. To be sure, it is well established that a trial court may impose community service as a condition of probation, Ind.Code § 35-38-2-2.3(a)(13) (2009), but the court did not impose community service as a condition of probation.

In resolving Griffin’s claim, we follow this Court’s recent decision in Vaughn v. State, 982 N.E.2d 1071, 1075 (Ind.Ct.App.2013). The Vaughn panel declared that in the absence of statutory authority, a court may not impose community service in lieu of costs and fees. Id. Per the holding in Vaughn, we conclude the trial court erred by requiring Griffin to perform community service in lieu of paying court costs. We reverse the court’s order to perform community service and remand to address the question of payment of costs.

CONCLUSION

For the reasons stated above, we affirm the battery conviction, reverse the resisting conviction and the order of community service, remanding for further proceedings on the issue of costs.

Affirmed in part, reversed in part and remanded.

MATHIAS, J., concurs with separate opinion.

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

MATHIAS, Judge,

concurring.

I agree that Officer Miller lacked reasonable suspicion to detain Griffin for the purpose of investigating a possible crime, and therefore, Griffin was free to disregard Officer Miller’s order to stop. Accordingly, I concur fully in the majority’s conclusion that Griffin’s conviction for resisting law enforcement must be reversed. However, I write separately to address concerns about Officer Miller’s conduct in this case, particularly given his suspicion that Griffin suffered from a mental illness at the time in question.

Officer Miller testified that prior to detaining Griffin, he did not suspect that Griffin had committed a criminal offense, but he observed that Griffin was possibly mentally ill. See tr. p. 16. Had Officer Miller approached Griffin as a person who might need mental health treatment, this case would have turned out for the better, in every regard. Our mental health statutes provide that any law enforcement officer, who has “reasonable grounds to believe that an individual has a mental illness, is either dangerous or gravely disabled, and is in immediate need of hospitalization and treatment, may ... [ajpprehend and transport the individual to the nearest appropriate facility.” Ind.Code § 12 — 26^4—1.

On the record before us, Griffin’s motions in the officer’s direction were observed by way of Officer Miller’s rearview mirror, and when filtered through our statutory mental health detention criteria, would generally not even rise to the level of concern to justify involuntary detention. By any account, Griffin could not have appeared truly dangerous to himself or to others, or gravely disabled to the degree that he appeared to be in immediate need of hospitalization and treatment. Sadly, there are far too many Indiana citizens who are mentally ill to such a noticeable degree that they appear “troubled,” but not to such an extent that they might reasonably seem to' be dangerous or disabled. Simply said, Officer Miller could have justifiably decided not to intervene in the first place.

That said, we must also recognize the dilemma we put our law enforcement officers in regarding persons like Griffin. “A healthy, civil society is most robust when it feels safe and when that feeling of safety is validated through interaction with vigilant and responsive law enforcement engaged in the important business of policing neighborhoods within a community.” R.H. v. State, 916 N.E.2d 260, 268 (Ind.Ct.App.2009), trans. denied (Mathias, J., concurring). In his role as a community caretaker, Officer Miller would have acted reasonably had he chosen to intervene in order to assess Griffin as a person with possible mental illness and to proceed accordingly, rather than to treat the encounter as a potential criminal offense from the outset. Had he done so, according to the evidence in the record, Griffin would have certainly appeared troubled, but not to the extent of appearing to be dangerous or gravely disabled, warranting immediate hospitalization and treatment.

There was no evidence in the record that would establish that Officer Miller had reason to believe that Griffin might have been involved in criminal activity, that he was a danger to the officer or members of the community, or a danger to himself. When Griffin ran from Officer Miller, the officer had not seized Griffin within the meaning of the Fourth Amendment, and had no constitutionally permissible reason to do so; therefore, Griffin was free to disregard his order to stop. See Gaddie, 991 N.E.2d at 141. Thankfully, Griffin was not injured when he was tazed during the incident, but the tazing likely would not have occurred at all had Officer Miller initially assessed Griffin under Indiana’s mental health law, rather than under its criminal law.

Finally, it is important to remember that Officer Miller did what he was trained to do in the situation. What I hope and mean to suggest is that law enforcement officials throughout Indiana can best reaffirm their commitment to serve all of Indiana’s citizens by remembering the criteria for mental health intervention as an initial alternative to treating troubling and troubled, but otherwise innocuous, conduct as a possible crime.

For all of these reasons, I concur in Senior Judge Shepard’s opinion reversing Griffin’s conviction for resisting law enforcement.

BAILEY, Judge,

concurring in part and dissenting in part.

I concur in the affirmation of Griffin’s conviction for battery. However, I respectfully dissent from the reversal of his conviction for resisting law enforcement.

Griffin did not merely choose to walk away in termination of a consensual encounter; he ran away and continued to flee despite repeated orders to stop. Griffin was convicted of violating Indiana Code section 35-44-3-3(a)(3), which then provided: “A person who knowingly or intentionally: flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop commits resisting law enforcement[.]” Griffin has made no challenge to the constitutionality of this statute, which imposes a duty upon a citizen to stop if ordered to do so by a law enforcement officer. Subsection (3) in particular does not condition compliance upon the officer being lawfully engaged in executing his or her duties.

In Cole v. State, 878 N.E.2d 882, 886 (Ind.Ct.App.2007), a panel of this Court recognized:

Because of the danger flight poses and the fact that a defendant has judicial remedies if he does not flee, the rule in our State is that even if a police officer does not have reasonable suspicion to stop a defendant, the defendant has no right to flee when the officer orders him to stop.

This conclusion was based upon a wealth of decisions: Dandridge v. State, 810 N.E.2d 746, 749 (Ind.Ct.App.2004) (stating “In Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order”), tram, denied; State v. Howell, 782 N.E.2d 1066, 1067 (Ind.Ct.App.2003) (reversing order dismissing various criminal charges and observing “the general rule has become that a person may not flee from a police officer that orders a person to stop regardless of the lawfulness of the officer’s order”); Lashley v. State, 745 N.E.2d 254, 261 (Ind.Ct.App.2001) (recognizing that section 3 of the resisting law enforcement statute does not condition the offense upon a lawful order and declaring that defendant was not permitted to flee from officer’s show of authority), trans. denied; Corbin v. State, 568 N.E.2d 1064, 1065 (Ind.Ct.App.1991) (“evidence of flight following a police officer’s order to stop is admissible in a prosecution for resisting law enforcement regardless of the lawfulness of the order”); Alspach v. State, 755 N.E.2d 209, 211 (Ind.Ct.App.2001), (“A citizen today can seek his remedy for a police officer’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action.”), trans. denied.

The Cole decision also quoted approvingly the language of. the New Jersey Supreme Court:

[A]ny flight from police detention is fraught with the potential for violence because flight will incite a pursuit, which in turn will endanger the suspect, the police, and innocent bystanders. Cases abound in which a suspect’s flight from the police set in motion an ensuing chase that resulted in death or serious injury either to a police officer, a suspect, or a bystander. For practical and public-policy-based reasons, constitutional deci-sionmaking cannot be left to a suspect in the street, even one who has done no wrong; a suspect cannot be the judge of his own cause and take matters into his own hands and resist or take flight. This reasoned approach encourages persons to avail themselves of judicial remedies, and signals that if a person peaceably submits to an unconstitutional stop the result will be suppression of the evidence seized from him.

Cole, 878 N.E.2d at 886 (quoting State v. Williams, 192 N.J. 1, 926 A.2d 340, 347 (2007)). I And this sound rationale to be particularly a propos here, where indeed the situation needlessly escalated and ultimately resulted in injury to the defendant.

I would follow the settled law as discussed in Cole. For this reason, I dissent from the reversal of Griffin’s conviction for resisting law enforcement.

      . This statute was subsequently recodified as Indiana Code section 35-44.1-3-1 (2012).

      . Cole and Dandridge belong to a line of cases standing for the proposition that the resisting law enforcement statute does not condition the offense upon a lawful order. See State v. Howell, 782 N.E.2d 1066, 1068 (Ind.Ct.App. 2003); Lashley v. State, 745 N.E.2d 254, 261 (Ind.Ct.App.2001), trans. denied; Corbin v. State, 568 N.E.2d 1064, 1065 (Ind.Ct.App.1991).

      . Judge Najam provided a helpful roadmap to these three variations of police-citizen interaction. See Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), trans. denied.


source: Caselaw Access Project

author: DARDEN, Senior Judge.

license: Public Domain

text:
    Chaunsey L. FOX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A04-1304-CR-187.
    Court of Appeals of Indiana.
    Oct. 28, 2013.

      Charles W. Lahey, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Chaunsey L. Fox appeals his conviction of felony murder. Ind.Code § 35-42-1-1 (2007). We affirm.

ISSUES

Fox raises three issues, which we restate as:

I. Whether the court erred in denying Fox’s motions to dismiss.
II. Whether the trial court exhibited bias toward Fox.
III. Whether the prosecutor withheld exculpatory evidence.

FACTS AND PROCEDURAL HISTORY

On the night of March 9, 2009, South Bend Police Department officers were dispatched to investigate a report of a shooting. They arrived at Eddie Williams’ house and found his body in the backyard. The body was on the ground near a car, and the car’s engine was still running. Williams had been shot once in the head.

A witness reported seeing men run away from the scene through an alley. The men wore masks, and the witness saw at least two guns. Officers searched the alley that night and found a handgun, which was later determined to be the murder weapon. Officers also found several gloves and pieces of black cloth which had been used as masks. The next day, officers searched the alley in daylight and found a pistol-grip shotgun in a trash can thirty to forty feet from where the handgun was found.

The gloves and cloth pieces were sent to a lab for DNA testing. The police also sent to the lab DNA samples that they collected from various individuals over the course of the investigation. DNA found on one of the masks and one of the gloves matched a sample collected from Derek Fields. The police had interviewed Fields in July 2009, before the results of the DNA testing were known, and he had denied any involvement in the shooting. After the DNA match was discovered, Fields continued to deny any involvement in the shooting.

In June 2011, Fox was incarcerated in the St. Joseph County Jail on a charge unrelated to the current case. He contacted Detective James Taylor. Fox claimed to have information about Williams’ homicide and wanted favorable treatment on his pending charge.

Taylor and another officer interviewed Fox on June 20, 2011. The interview was recorded. Fox claimed that Jason White (“Jason”) shot Williams. He told Taylor that Jason arrived at his house immediately after the shooting. He stated Jason told him that he and his cousin Bruce White (“Bruce”) had intended to rob Williams, but Jason shot Williams when he resisted. He further said that Jason was angry at Williams because Williams had sold Jason some crack cocaine, and Jason believed the cocaine was adulterated and of poor quality. He also told Taylor that Jason said he and Bruce had a lookout, but Fox denied knowing who the lookout was and denied being present at the shooting. Taylor then asked Fox if he knew a Derek Fields, and Fox said he had heard of him and had spoken to him on the phone but did not know him personally. Finally, Fox described with specificity the handgun that was used in the shooting and said it belonged to Jason. A description of the handgun had not been released to the public.

Later, Fox asked to speak with the officers again. On July 6, 2011, Taylor conducted a second interview with Fox, which was also recorded. Fox’s attorney was also present. Fox admitted to the officers that he had been present during the shooting. He repeated that Jason was angry at Williams for selling him poor quality cocaine and had recruited Fox to assist in the robbery. Fox said he was a lookout, and Jason and Bruce ambushed Williams. He told Taylor that Bruce had a pistol-grip shotgun, describing with specificity the shotgun that the officers had discovered the day after the murder. He further said Jason and Bruce wore masks, but he only put his hood up. In addition, he reiterated that Jason had the handgun and shot Williams when Williams resisted being robbed, and then the three men ran away.

Fox denied that anyone else participated in the shooting besides Jason, Bruce, and himself. Taylor then told Fox that the evidence showed that someone else was also there and, said that he could not help Fox unless Fox told the truth. At that point, Fox admitted that there was a fourth participant, but he claimed not to know that person’s identity. The parties then took a break from the interview.

When the interview resumed, a deputy prosecutor entered the interview room at Fox’s request. The deputy prosecutor said on the record that in exchange for Fox’s information, the State would not charge him with murdering Williams if: (1) he was truthful, (2) he testified for the State against other individuals, if called upon, (3) he was not the shooter, and (4) he did not carry a gun during the crime. The deputy prosecutor also said he would consider a deal in Fox’s pending case. After the deputy prosecutor left, Fox maintained that he still did not know the fourth person, claiming the individual attempted to hide his identity from Fox prior to and during the robbery. Fox further said he would be unable to identify the person in a lineup because so much time had passed since that night. The State continued its investigation into the matter.

While he was incarcerated in the county jail, Fox apparently told several of his fellow inmates that he shot Williams. In addition, Fox told fellow inmate Shawn Fox (“Shawn” — no relation to Fox) that Derek Fields was with him at the time of the shooting. He also told the inmates that when he spoke with the police, he tried to place the blame for the murder on other people. After Fox’s July 6, 2011 interview, several of the inmates contacted police officers and told them about Fox’s statements.

In early 2012, Fields was incarcerated and facing unrelated federal charges. Fields provided a general cleanup statement regarding crimes he had been involved in, during which he admitted that he had participated in Williams’ murder. He initially said that Fox and Jason were with him, but he later amended his statement to say that only he and Fox participated in the murder. Fields further admitted he carried a shotgun and said Fox shot Williams with the handgun. Fields also said that he and Fox had been friends for several years prior to the murder.

The State charged Fox with murder, attempted robbery, and felony murder on December 20, 2011. Fox filed a combined motion to dismiss, to enforce plea agreement, and to suppress evidence. The court denied Fox’s motion after an eviden-tiary hearing. The case went to trial, and the State presented recordings of Fox’s June 20, 2011 and July 6, 2011 interviews to the jury, among other evidence. The jury did not find Fox guilty of murder but instead found him guilty of attempted robbery and felony murder. The trial court declined to enter judgment of conviction for attempted robbery. After the jury rendered its verdicts on March 8, 2018, but before the sentencing hearing, Fox filed a “renewed” motion to dismiss and to enforce plea agreement. Appellant’s App. p. 12. The trial court denied Fox’s motion at the beginning of the sentencing hearing and sentenced him on the felony murder conviction on April 8, 2013. This appeal followed.

DISCUSSION AND DECISION

I. MOTIONS TO DISMISS THE CHARGING INFORMATION

Fox argues that the court should have dismissed the murder charges or suppressed his recorded statements from the June 20, 2011 and July 6, 2011 interviews because he was immune from prosecution on those charges pursuant to his agreement with the State. The State asserts that Fox breached the agreement, thereby rendering void the State’s promise not to prosecute him for murder.

We start with the motion to dismiss that Fox filed prior to trial. A defendant may file a motion to dismiss an indictment or information. Ind.Code § 35-84-1-8 (1981). The court may grant a defendant’s motion to dismiss if, among other grounds, the defendant has immunity with respect to the crimes at issue. Ind.Code § 35-34-1^4(a)(6) (1983). We review a trial court’s ruling on a motion to dismiss a charging information for an abuse of discretion. Matlock v. State, 944 N.E.2d 936, 938 (Ind.Ct.App.2011).

When a defendant files a motion to dismiss an information, the facts alleged in the information are to be taken as true. Delagrange v. State, 951 N.E.2d 593, 594 (Ind.Ct.App.2011), trans. denied. Facts permitted to be raised in a motion to dismiss typically concern only pretrial matters. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App.2003). Consequently, questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss. Id.

In this case, the parties admit that they had an agreement that the State would not prosecute Fox for murder if he: (1) was completely truthful, (2) cooperated by testifying for the State if needed, (3) did not carry a gun at any point during the murder, and (4) was not the actual shooter. The court held an evidentiary hearing on Fox’s motion to dismiss, at which Fields testified that he and Fox initially tried to rob Williams, but the robbery resulted in a murder. Fields further stated that Fox carried the handgun that evening, wore a mask like Fields, and was the shooter. In addition, Fields testified that he had known Fox for several years prior to the shooting, contrary to the information Fox provided during the interviews. Jackie Parker testified at the hearing, and he said Fox told him in jail that he had shot Williams.

The parties’ dispute at the evi-dentiary hearing focused on whether Fox had been truthful about his role in Williams’ murder. This dispute called into question the credibility of Fox, Fields, Parker, and other witnesses. Witness credibility is generally a question of fact to be decided at trial. We thus conclude that the trial court did not abuse its discretion by denying Fox’s motion to dismiss and allowing the jury to determine the issue of credibility and answer the question of who was telling the truth.

Fox nonetheless argues that he was entitled to enforce the State’s promise not to prosecute him for murder because he relied on it. Our Supreme Court has stated that a court must enforce an agreement between the prosecution and the defendant “either if the State has materially benefitted from the terms of the agreement or if the defendant has relied on the terms of the agreement to his substantial detriment.” Badger v. State, 637 N.E.2d 800, 804 (Ind.1994). Here, there was a dispute at the time of the hearing on the motion to dismiss as to whether the State had materially benefitted from the agreement, because the State contended Fox’s information was false and of no value. In addition, at the time of the hearing there was a dispute as to whether Fox had detrimentally relied on the agreement because he had already admitted his involvement in the robbery/murder (as a lookout) even before the deputy prosecutor entered the interview room and offered him the agreement. Subsequently, after further investigation by the State, the evidence revealed there was a substantial dispute as to whether Fox was telling the truth. In any event, Fox was only entitled to rely on the agreement if he kept his end of the bargain.

After the jury issued its verdicts and was discharged, but prior to the sentencing hearing, Fox filed a “renewed” motion to dismiss and for specific enforcement of the agreement, which the court denied. Appellant’s App. p. 12. By statute, a defendant may only file a motion to dismiss on grounds of immunity “before or during trial.” Ind.Code § 35-34-l-4(b). Thus, we conclude Fox’s motion is more appropriately treated as a motion for judgment on the evidence under Trial Rule 50.

A party is entitled to judgment on the evidence when all or some of the issues in a case tried to a jury “are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it.” Ind. Trial Rule 50. On appeal, we use the same standard of review as the trial court in determining the propriety of a judgment on the evidence. Garcia v. State, 979 N.E.2d 156, 158 (Ind.Ct.App.2012). When the trial court addresses a motion for judgment on the evidence, it must view the evidence in a light most favorable to the party against whom judgment on the evidence would be entered. Id. A trial court may not invade the province of the jury by weighing the evidence presented or the credibility of witnesses. Id.

Fox argues that because the jury acquitted him of murder but found him guilty of felony murder, the jurors must have concluded that he did not personally shoot Williams but was merely liable for the murder as an accessory because he participated in the proposed robbery. He thus reasons that the jury agreed with him that he was merely a lookout, and that his version of events must be taken as true. Consequently, he concludes he did not lie to the State, that he was truthful, and the trial court was obligated to dismiss the murder charges because he did not violate the terms of his agreement and was entitled to immunity from prosecution for murder.

It is well settled in both criminal appeal and civil appeal contexts that we presume that the jury followed the law contained in the trial court’s instructions and applied that law to the evidence before it. Newland Res., LLC v. Branham Corp., 918 N.E.2d 763, 771 (Ind.Ct.App.2009). We do not otherwise attempt to interpret the thought process of the jury in arriving at its verdict. Jones v. State, 689 N.E.2d 722, 724 (Ind.1997).

The jury’s acquittal of Fox for murder does not inevitably lead to a conclusion that it wholly accepted his version of events. For example, viewing the facts in the light most favorable to the State, jurors could have determined that Fox’s friend Fields, rather than Jason and Bruce, participated in the crimes. Jurors could have also determined that Fox carried a gun on the night of the crimes but did not shoot Williams. In addition, they could have concluded that Fox accidentally shot Williams during the robbery, which would eliminate the intent to kill necessary for a murder conviction but would not prevent a conviction for felony murder. Any of these determinations would be consistent with the verdicts but would also establish that Fox lied to investigators about Fields’ involvement or that Fox carried a handgun on the night in question, thereby breaching his agreement with the State. Fox has failed to establish a lack of evidence to support his conviction, and the court did not err in denying his renewed motion to dismiss and to suppress evidence.

II. JUDICIAL BIAS

Fox argues that his conviction is improper because the trial judge demonstrated bias or prejudice against him in front of the jury.

A criminal defendant has a right to a fair trial before an impartial judge. Harris v. State, 963 N.E.2d 505, 506 (Ind.2012). When the impartiality of the trial judge is challenged on appeal, we will presume that the judge is unbiased and unprejudiced. Perry v. State, 904 N.E.2d 302, 307 (Ind.Ct.App.2009), trans, denied. To rebut that presumption, a defendant must establish from the judge’s conduct actual bias or prejudice that places the defendant in jeopardy. Massey v. State, 803 N.E.2d 1133, 1139 (Ind.Ct.App.2004). Such bias and prejudice exists only where there is an undisputed claim or where the judge expressed an opinion of the controversy over which the judge was presiding. Id. Furthermore, a trial judge has a duty to conduct the trial in a manner calculated to promote the ascertainment of truth, fairness, and economy of time. Id. Within the scope of this duty is the authority to make impartial statements about the general admissibility of evidence. Id.

During the trial, Fox cross-examined Fields, and the following exchange occurred:

[Q:] Now, you said that Jason White though was involved with this?
[A:] Yes.
[Q:] And you knew that by telling the federal agents that Jason White was involved and was one of the three people that killed Mr. Williams, Eddie Williams, you knew that you were obligating yourself to testify against him in court?
[A:] Yes.
[Q:] And you were going to do that?
[A:] No. That’s the whole reason why I came back the next week and admitted to having a shotgun.
[Q:] Well, on February 2nd why did you say that if you weren’t willing to testify against him?
[A:] I wasn’t going to testify against him. That’s why I cleared it up.
[Q:] You thought that you could go to a Criminal Rule 11 proffer, tell them about a murder, and that they were going to give you consideration, not charging you in the murder, giving you a break on your federal charges, and you weren’t going to have to testify about that?
[A:] No, I knew I was going to have to testify. That’s why I cleared it up and said he wasn’t there.
[Q:] Well, before you cleared it up, not only did you perfectly well intend to testify falsely against an innocent man on February 2nd, but you—
[JUDGE:] I can’t allow that form of a statement by you which is not a question but an accusation as to what he fully well intended. You don’t read his mind. It’s improper. And if you have a question, ask a question. Don’t accuse the witness of something that’s in your mind that you think is in his mind.
[Q:] You went back four days later and picked Jason White’s photograph out of a lineup; did you not?
[A:] Yes.

Trial Tr. pp. 305-07. We find that the judge’s ruling on Fox’s question was an impartial statement upon an evidentiary issue. The judge did not express an opinion on the merits of the case or on the witness’s credibility but instead instructed trial counsel to ask a proper question. Fox argues that the judge improperly limited his question of Fields, but the record does not support that argument. After the judge interjected, Fox continued to question Fields in detail about his prior statements. We conclude that Fox has failed to establish judicial bias and prejudice, and he was not placed in jeopardy.

III. WITHHOLDING OF EVIDENCE BY THE STATE

Fox claims the State withheld exculpatory evidence from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To prevail on a Brady claim, a defendant must establish: (1) the prosecution suppressed evidence, (2) the suppressed evidence was favorable to the defense, and (3) the evidence was material to an issue at trial. Shelby v. State, 986 N.E.2d 345, 358 (Ind.Ct.App.2013), trans. denied. Impeachment evidence as well as exculpatory evidence falls within the Brady rule. Sangsland v. State, 715 N.E.2d 875, 881 (Ind.Ct.App.1999), trans. denied. Evidence is material if there is a reasonable probability that the result of the proceeding would be different if the State had disclosed the evidence to the defense. Stephenson v. State, 864 N.E.2d 1022, 1057 (Ind.2007).

In this case, Fields and Shawn were both under investigation for federal crimes that were not related to the State’s investigation of Fox. The federal proceedings resulted in proffers of statements of responsibility and plea agreements by Fields. Fox argues that he should have been provided with those documents for impeachment purposes.

The record reflects that the State turned over to Fox all relevant documents in its possession. In an October 15, 2012 letter to Fox’s counsel, the deputy prosecutor described the status of Fields’ and Shawn’s federal cases and provided documents from those cases. Fox conceded at a subsequent hearing, “I might point out that I have no question at all that [the deputy prosecutor] is supplying what he has.” Oct. 18, 2012 hearing, Tr. p. 49. Thus, the State did not suppress evidence. See Williams v. State, 757 N.E.2d 1048, 1063 (Ind.Ct.App.2001) (the State did not commit a Brady violation with respect to Williams’ cellular telephone records because it turned the records over to Williams and listed a cellular telephone representative as a witness), trans. denied.

Fox, however, argues that the State had a duty under Brady to obtain all relevant documents from federal agencies and turn them over to him. He cites several cases from other jurisdictions and Bunch v. State, 964 N.E.2d 274 (Ind.Ct.App.2012), trans. denied, in support of his argument. In Bunch, a panel of this Court concluded that the State suppressed evidence in violation of Brady because the State did not disclose to Bunch reports and notes produced by personnel at the federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”). The Court determined that although the ATF was a separate agency and kept the documents on its premises rather than giving them to the State, the State had a duty to obtain the documents and disclose them to Bunch because “the ATF was acting at the behest of the State” in testing various pieces of evidence. Id. at 301.

Bunch is distinguishable from Fox’s case. A review of the record demonstrates that the federal prosecutors and law enforcement agencies working on Fields’ and Shawn’s cases were not acting on behalf of or at the behest of the State. Rather, both the State and federal authorities shared information that was relevant to their respective and separate investigations, and the federal authorities released to the State such information that it deemed proper. Thus, Bunch does not compel a conclusion here that the State suppressed information by failing to obtain all documents from federal agencies, and we conclude that there was no Brady violation.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

BAKER, J., and BAILEY, J., concur.

      . Fox did not include the charging information in his Appellant's Appendix. However, he acknowledges in his Appellant’s Brief that the State charged him as stated. Appellant's Br. p. 3.

      . Fox presents identical arguments in support of his claims for dismissal and for suppression of his recorded statements. For ease of discussion, in this analysis we refer only to his request to dismiss the information, but our analysis applies equally to the suppression issue.

      . The transcript in this appeal consists of the trial and several hearings. The transcript volumes are not consecutively paginated, in violation of Indiana Appellate Rule 28(A)(2). We cite to the transcript volumes according to the trial or hearings contained therein.

      . There is also no evidence that Fox made any efforts to obtain documents from federal authorities. During a pretrial hearing, Fox told the trial court he was aware that he could subpoena such documents. However, he never pursued such a remedy.


author: BAKER, Judge. VAIDIK, Judge,

text:
    In the Matter of the Termination of the Parent-Child Relationship of I.P., Minor Child and his Father, T.P. T.P. (Father), Appellant-Respondent, v. Child Advocates, Inc., Appellee-Guardian ad Litem, and Indiana Department of Child Services, Co-Appellee-Petitioner.
    No. 49A02-1303-JT-283.
    Court of Appeals of Indiana.
    Oct. 29, 2013.

      Mark Small, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Patrick M. Rhodes, DCS, Marion County, Dede K. Connor, Child Advocates, Inc., Indianapolis, IN, Attorneys for Appellees.
   OPINION

BAKER, Judge.

This case is one of several termination cases stemming from Magistrate Cartmel’s resignation to reach this court. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. As a result, the case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley’s findings and conclusions and issued an order terminating Mother’s parental rights.

In this case, T.P. (Father) challenges the order terminating his parental rights with regard to his minor son, I.P. Father was incarcerated on both days that the termination hearing took place, but he participated telephonieally and was represented by counsel. Although Father does not challenge the substance of the order terminating his parental rights, he maintains that the judgment violated his right to due process and the provisions of Indiana Trial Rule 63(A) because Magistrate Cartmel, the magistrate who actually heard the evidence, did not issue the recommended order.

We conclude that Magistrate Bradley’s subsequent recommended order terminating Father’s parental rights did not violate the trial rules or Father’s right to due process. Thus, we decline to set aside the order terminating Father’s parental rights and affirm the judgment of the trial court.

FACTS

I.P. was born on December 11, 2004, and formally removed from Father’s care on May 9, 2011, after I.P. was found to be a Child in Need of Services (CHINS). However, Father last saw I.P. in September 2010. The DCS filed a petition for the involuntary termination of parental rights between Father and I.P. on July 30, 2012, which was served on Father while he was incarcerated at the Putnamville Correctional Center (Putnamville). Father subsequently requested and received court-appointed counsel at the next scheduled hearing on August 31, 2012.

Father has a history of criminal convictions and periods of incarceration dating back to 1998 and continuing through the two days of the termination hearing that took place on December 20, 2012 and January 15, 2013. Father was represented by counsel at the hearing and he appeared by telephone from Putnamville. The Honorable Julie Cartmel (Magistrate Cartmel) of the Marion County Superior Court Juvenile Division heard the evidence during the two-day hearing.

It was established that Father had never scheduled visitations with I.P. because he never appeared in the CHINS court to make such a request. The last time that Father saw I.P. was in September 2010. The evidence also showed that I.P. has developed a “consistent bond” with his foster caregiver following the removal from Father. Tr. p. 120. Testimony was also presented that adoption is in LP.’s best interests.

Following the hearing, Magistrate Cart-mel took the matter under advisement. However, Magistrate Cartmel subsequently resigned before she issued a ruling. After reviewing the record, Magistrate Bradley issued a recommended order to terminate Father’s parental rights as to 1.P. that comprised of twenty-seven findings. Magistrate Bradley stated in his order that “this matter was originally heard by [Magistrate] Cartmel prior to her resignation.... Upon review of the record, final recommended ruling was made by Magistrate Larry E. Bradley.” Appellant’s App. p. 12. The order included detailed findings of fact and conclusions of law. For instance, Magistrate Bradley’s findings included the following:

12. [Father] last saw [I.P.] in September of 2010. He had no contact with his son and in March of 2011, he became incarcerated.
13. [Father] was released from jail in December of 2011, and contacted the IDCSMC in January of 2012.
14. [Father] did not participate in the CHINS action and was reincarcerated in May of 2012.
15. [Father] has a substantial criminal history consisting of nineteen convictions since 1997, six being felonies.
16. [Father’s] current outdate is in October of 2014.
18. There is a reasonable probability that the conditions that resulted in [LP.’s] removal and continued placement outside the home will not be remedied by his father. Although [Father] testified he was in his son’s life before, he had no knowledge of [I.P.’s] CHINS action until it was open for approximately a year. He did not meaningfully participate in the CHINS case when he was not incarcerated, and will be unavailable to participate until October of 2014. Given [Father’s] criminal history of convictions and probation violations, it is highly probable that he will continue to be unavailable in the future.
19. Continuation of the parent-child relationship poses a threat to [LP.’s] well-being in that it would pose as a barrier in obtaining permanency for [I.P.] through an adoption, permanency [I.P.] deserves and needs due to his special needs. Neither parent can offer [I.P.] permanency.
21. [I.P.] has been diagnosed with Reactive Detachment Disorder. [I.P.] needs a caregiver who understands his needs, acquires the skills necessary to manage his R.A.D., and provides him consistency.
22. Father met the clinician three times, and it is clear from his testimony that he is not clear on [I.P.’s] needs.
23. [I.P.] is in preadoptive foster care. His caregiver has been trained in, and is meeting, [I.P.’s] needs. She has moved her residence so that [I.P.] can remain in a school where he is doing well.
24. [I.P.] meets with a mentor, participates in sexually maladaptive therapy, and [is] in counseling. He appears to be thriving in his environment.
25. Termination of the parent-child relationship is in the best interest of [I.P.]. There is no benefit to give parents additional time where they both remain unavailable. [I.P.] has a chance to obtain permanency, [through] adoption, in an environment where he can continue to thrive.
26. There exists a satisfactory plan for the future care and treatment of [I.P.], that being adoption.
27. [I.P.’s] Guardian ad Litem recommends adoption as the permanency plan in [LP.’s] best interests.

Appellant’s App. p. 13. The regular judge of the Marion Superior Court, Juvenile Division, approved Magistrate Bradley’s recommendation and also signed the final order terminating Father’s parental rights.

Father now appeals, challenging the validity of the manner in which the final order terminating his parental rights was reached.

DISCUSSION AND DECISION

Father claims that the termination of his parental rights as to I.P. must be set aside. Father does not challenge the substance of the termination order. Rather, his sole argument is that the final recommended ruling made by a magistrate who did not hear the evidence violated his rights to due process and the provisions of Trial Rule 63.

I. Termination of Parental Rights— Standard of Review

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to raise their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). But parental rights are not absolute and must be subordinated to the child’s interest in determining the proper disposition of a petition to terminate parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind.Ct.App.2004). Thus, “parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.” Id. at 265. The purpose of terminating parental rights is not to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind.Ct.App.2004).

When reviewing the termination of parental rights, we neither reweigh the evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.2009). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment below. Id.

II. Due Process Rights and Trial Rule 63(A)

A. Due Process

The Due Process Clause of the United States Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind.Ct.App.2003).

Although due process has never been precisely defined, the phrase expresses the requirement of fundamental fairness. In re M.M., 733 N.E.2d 6, 10 (Ind. Ct.App.2000). When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of the due process clause. A fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Thompson v. Clark Conty. Div. of Family & Children, 791 N.E.2d 792, 795 (Ind.Ct.App.2003).

There is hardly a more fundamental right than a parent’s right to raise his or her own child. The interest of a parent in the care, custody, and control of his children is arguably one of the oldest of our fundamental liberty interests. In re E.D., 902 N.E.2d 316, 321 (Ind.Ct.App.2009). Similarly, the State’s interest in protecting the welfare of children who cannot protect themselves is also substantial. In re A.B., 922 N.E.2d 740, 745 (Ind.Ct.App.2010).

In this case, the evidence demonstrated that Father has not seen I.P. since September 2010. This is primarily because of Father’s repeated incarcerations and his inability to provide a safe and stable home for I.P. Since that time, I.P. has bonded to his caregivers. Tr. p. 96, 120. Delays in adjudicating a termination of parental rights case impose significant costs upon the functions of government as well as intangible costs to the lives of the children involved. Once I.P. was placed outside his home, he has never been returned. And when the hearing was conducted on the termination petition, I.P.’s family ease manager recognized that I.P. required a “normal sense of a consistent life ... and that his best chance at having that is ... for him to be adopted with the current caregiver.” Tr. p. 124.

As noted above, Magistrate Bradley reviewed the record. Absent his careful review of the evidence, he would have been unable to issue the specific and detailed findings that are contained in his proposed order. Even more compelling, Father has failed to identify any specific prejudice that resulted from Magistrate Bradley’s review of the record and his subsequent recommendation of the findings of fact and conclusions of law. Indeed, one who seeks to disturb a judgment has the burden of showing an erroneous ruling and resultant prejudice. TeWalt v. TeWalt, 421 N.E.2d 415, 420 (Ind.Ct.App.1981). The fact that a determination was made by a judge or magistrate is not conclusive on the issue of neutrality. Green v. State, 676 N.E.2d 755, 761 (Ind. Ct.App.1996). However, a judge is presumed by law to be unbiased and unprejudiced. To overcome this presumption, the party seeking to disqualify a judge must establish actual personal bias. Hite v. Haase, 729 N.E.2d 170, 176 (Ind.Ct.App.2000).

Father was represented by counsel throughout the two-day hearing. Appellant’s App. p. 5-11. Father’s counsel was provided with the opportunity to cross-examine the State’s witnesses, as well as the opportunity to introduce evidence in defense of the action. Under these circumstances, we have recognized that the risk of an inaccurate result decreases significantly. In re C.T., 896 N.E.2d 571, 587 (Ind.Ct.App.2008). It is apparent that counsel protected Father’s interests during the trial, thus decreasing the chance of an error in the evidence that Magistrate Bradley had reviewed.

In sum, Father has failed to demonstrate how he was prejudiced as a result of Magistrate Bradley’s issuance of findings of fact and conclusions of law and recommended order after reviewing the evidence. Thus, Father’s claim that his right to due process was violated fails.

B. Trial Rule 63

Father also contends that Magistrate Bradley’s order terminating the parent-child relationship between Father and I.P. is void because it violated the provisions of Indiana Trial Rule 63(A). Specifically, Father maintains that Magistrate Bradley improperly entered findings in this case because he had no authority to rule on the DOS’s petition to terminate Father’s parental rights under the rule.

In resolving this issue, we first turn to the relevant provisions of Trial Rule 63(A):

(A) Disability and unavailability after the trial or hearing. The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded. If the judge before whom the trial or hearing was held is not available by reason of death, sickness, absence or unwillingness to act, then any other judge regularly sitting in the judicial circuit or assigned to the cause may perform any of the duties to be performed by the court after the verdict is returned or the findings or decision of the court is filed; but if he is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part. The unavailability of any such trial or hearing judge shall be determined and shown by a court order made by the successor judge at any time.

In this case, it is apparent that Magistrate Cartmel was unavailable to suggest a final order or judgment regarding the petition to terminate Father’s rights because she resigned from her magistrate position after the final hearing but before a ruling was made. Under Trial Rule 63(A), any other judge regularly sitting in the judicial circuit asked to rule in the present case could, in his or her discretion, grant a new trial or hearing if he was satisfied that the substitute duties for Magistrate Cartmel could not be performed. Similarly, Magistrate Bradley is in the same superior court as was Magistrate Cartmel. Thus, he could prepare findings from a record that was created before the initial judge, or he could have granted a new hearing if he deemed it necessary to do so. See Ruby v. State, 166 Ind.App. 310, 315, 335 N.E.2d 635, 638 (1975) (finding no error when the judge who heard the evidence in a post-conviction relief case found against the petitioner but later died, and the judge’s successor, with the assistance of the record of the hearing, made the required findings consistent with the previous decision). Like the circumstances in Ruby, we find no error in Magistrate Bradley’s issuance of the recommended order on the pending termination petition. Rather, the decision to issue the order that was consistent with the evidence presented at the termination hearing was a logical one, and permitting the decision to linger would have delayed I.P.’s permanent placement. For all these reasons, we decline to set aside the order terminating Father’s parental rights as to IP.

The judgment of the trial court is affirmed.

FRIEDLANDER, J., concurs.

VAIDIK, J., concurs in result with an opinion.

VAIDIK, Judge,

concurring in result.

In this case, the majority concludes that Father’s due-process rights were not violated when Magistrate Bradley reviewed the record and reported findings and conclusions to Judge Moores, despite the fact that Magistrate Bradley did not preside over the underlying evidentiary hearing. I respectfully concur in result because I agree, but my reasoning differs from the majority’s. I believe that Magistrate Bradley did not err because the underlying evidence was undisputed and did not require him to make any credibility determinations.

The State must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent-child relationship. Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind.Ct.App.2006) (citation omitted), tram, denied. Due process in parental-rights cases involves the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) the countervailing government interest supporting the use of the challenged procedure. In re C.G., 954 N.E.2d 910, 917 (Ind.2011) (citing A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App.2000), reh’g denied, trans. denied). The private interest affected by the proceeding is substantial — a parent’s interest in the care, custody, and control of his or her child. Id. (citation omitted). And the State’s interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DOS’s actions and the trial court’s actions. Id.

Where evidence is heard by a trial judge who later dies or resigns from office before making findings or ruling on the evidence, the general rule is that a successor judge may not make findings or conclusions without a trial de novo. In re A.S. et al., 912 N.E.2d 840, 845 (Ind.Ct.App.2009) (citing Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App.1985)), trans. denied. “This is because ‘a party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence.’ ” Farner, 480 N.E.2d at 257 (citation omitted). “In a case where the resolution of a material issue requires a determination as to the weight and credibility of testimony, due process requires that the trier of fact hear all of the evidence necessary to make a meaningful evaluation.” Id. (citation omitted). When a successor judge attempts to resolve credibility and weight-of-evidence issues without having heard the evidence and observed the demeanor of witnesses, the judge deprives the parties of an essential element of the trial process. Urbanational Developers, Inc. v. Shamrock Eng’g, Inc., 175 Ind.App. 416, 372 N.E.2d 742, 746 (1978) (citation omitted). “Such an undertaking by the successor judge is against the logic and effect of the facts and circumstances before the court and amounts to an abuse of discretion.” Id.

In two other cases stemming from Magistrate Cartmel’s resignation, this Court focused on the issues of credibility and weight of evidence. In D.P., another panel of this Court concluded that a father’s due-process rights were violated when Magistrate Bradley reviewed the record and reported factual findings and conclusions that Judge Moores later approved. In re D.P., 994 N.E.2d 1228 (Ind.Ct.App.2013). In D.P., the father testified and witnesses gave conflicting testimony regarding the child’s removal and the father’s ability to remedy the conditions leading to removal. Because the evidence was in conflict and credibility determinations had to be made, the panel determined that a new evidentia-ry hearing was required. In the second case, this panel affirmed a termination order based on Magistrate Bradley’s review of the record. In re S.B. et al., 999 N.E.2d 419, No. 49A02-1303-JT-244, 2013 WL 5799433 (Ind.Ct.App. Oct. 29, 2013). In S.B., there was no dispute that the mother, who did not appear during the termination proceedings, had failed to complete required services and had not secured stable housing or employment. There was also no dispute that the mother had stopped visiting the children and communicating with caseworkers. We concluded that Magistrate Bradley did not err by reviewing the record and reporting findings and conclusions to Judge Moores without holding a new evidentiary hearing because there were no credibility issues and the evidence was undisputed.

The same is true here. Appearing by phone at the termination hearing, Father did not dispute the State’s evidence against him; namely, that his extensive criminal history made him unavailable to parent his son. Father has been convicted of six felonies since LP.’s birth, and as a result, has been incarcerated for three-fourths of the child’s life. See Tr. p. 109. He has not seen I.P. in years. Father also did not dispute that his son, who has special needs, was thriving in foster care and should not be removed from his placement.

Because both the State and Father have substantial interests in this termination proceeding, when determining what process is due, we focus on the risk of error. See C.G., 954 N.E.2d at 917. Any risk presented by the procedure used here is minimal. The evidence was not in dispute and there were no credibility determinations to be made. And Father was ably represented by counsel who had the opportunity to present evidence in his favor and cross-examine witnesses. See Tillotson v. Clay Cnty. Dep’t of Family & Children, 777 N.E.2d 741, 746 (Ind.Ct.App.2002) (Proper representation by counsel in a termination proceeding significantly decreases the risk of an inaccurate result.), trans. denied.

Our Courts have long recognized that parental rights “constitute an important interest warranting deference and protection,” while simultaneously acknowledging that “children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships.” C.G., 954 N.E.2d at 917 (citations omitted). Having considered Father’s rights at length, it should also be said that his child, I.P., has an undeniable interest in securing permanency and finality.

Because the evidence was undisputed and Magistrate Bradley was not required to make "any credibility determinations, I agree that Father’s due-process rights were not violated in this ease, and I respectfully concur in result.

      . I.P.’s Mother is not a party to this appeal. At the time of the termination hearing, there was an open warrant for her arrest and her whereabouts were unknown. Appellant’s App. p. 13.

      . We presume that Magistrate Bradley listened to the audiotape of the termination proceedings. Father does not contend otherwise.

      . In In re D.P., 994 N.E.2d 1228 (Ind.Ct.App.2013), a different panel of this court determined that a Father’s due process rights were violated when Magistrate Bradley reviewed the record and reported factual findings and conclusions that Judge Moores subsequently approved. In that case, the evidence was in conflict and credibility determinations had to be made. Thus, the panel in D.P. concluded that a new evidentiary hearing was required. Op. at 397-98.

      . I concur in full with the majority’s treatment of Father’s Trial Rule 63(A) argument.

      . Judge Baker concurred in result in S.B., articulating the reasoning found in the majority opinion here.


author: BARNES, Judge.

text:
    Richard PRANCIK, b/n/f, Renee Prancik, Appellant, v. OAK HILL UNITED SCHOOL CORPORATION, Appellee.
    No. 27A05-1302-CT-86.
    Court of Appeals of Indiana.
    Oct. 31, 2013.

      Joe Keith Lewis, Marion, IN, Attorney for Appellant.
    Kirk A. Horn, Mandel Horn, P.C., Car-mel, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Richard Prancik b/n/f Renee Prancik appeals the trial court’s grant of summary judgment in favor of Oak Hill United School Corporation (“Oak Hill”). We affirm.

Issue

The issue before us is whether Oak Hill was entitled to summary judgment on Prancik’s claim that Oak Hill breached a duty to him when a fellow student assaulted him.

Facts

The evidence most favorable to Prancik as summary judgment nonmovant is that on November 24, 2009, Prancik was a seventh-grade student at Oak Hill Junior High School. On that day, Prancik went into his classroom during a four-minute passing period. K.M., a fellow student and acquaintance of Prancik, approached Pran-cik from behind and placed him in a “choke hold” by putting his forearm around Prancik’s neck. App. p. 90. As a result, Prancik lost consciousness and fell to the floor, causing facial injuries. During this time the classroom teacher, Rita Nolan, was standing in the hallway outside the classroom, in accordance with a school policy requiring teachers to supervise hallways during passing periods as long as there were more students in the hallways than in the classrooms. Nolan did not witness the incident, although she could have positioned herself in the hallway so that she could see at least some, though not all, of the classroom at the same time she was observing the hallway. K.M. had no school record of any previous violent behavior, nor had he and Prancik previously had conflicts. KM.’s only disciplinary history was related to use of profanity and not doing homework.

On September 29, 2010, Prancik sued Oak Hill, alleging it had been negligent in supervising its students, leading to K.M.’s injuring of him. Oak Hill moved for summary judgment. On November 16, 2012, the trial court denied Oak Hill’s motion. Oak Hill filed a petition to certify this order for interlocutory appeal. At a hearing on that petition, Oak Hill alternatively requested that the trial court reconsider its earlier ruling, citing additional legal authority it had discovered. On February 12, 2013, the trial court reversed its earlier ruling and granted summary judgment to Oak Hill. Prancik now appeals.

Analysis

We review a trial court’s summary judgment ruling de novo. Miller v. Dobbs, 991 N.E.2d 562, 564 (Ind.2013). We will affirm a grant of summary judgment “ ‘only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.2008)); see also Ind. Trial Rule 56(C). We must construe all evidence and resolve all doubts in favor of the non-moving party, so as to avoid improperly denying that party’s day in court. Id. Under Indiana Trial Rule 56(C), a summary judgment movant must make a pri-ma facie showing that there are no genuine issues of material fact that it is entitled to judgment as a matter of law. Wabash County Young Men’s Christian Ass’n, Inc. v. Thompson, 975 N.E.2d 362, 365 (Ind.Ct.App.2012), trans. denied. If this occurs, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

To prevail on a negligence claim, a plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach. Id. Summary judgment is rarely appropriate in negligence cases. Id “Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiffs claim.” Id. In particular, although the question of breach of duty is usually one for a trier of fact, the question becomes one of law for the court if no reasonable fact finder could conclude that a specific standard of care was breached. Cox v. Paul, 828 N.E.2d 907, 911-12 (Ind.2005).

Our focus in this case is whether there are any genuine issues of material fact that could possibly establish a breach of duty on Oak Hill’s part towards Prancik. There are a number of cases addressing the nature and scope of a school’s duty to prevent children from coming to harm while in the school’s care and custody and the quantum of proof necessary to establish a possible breach of that duty. Our supreme court addressed the issue at length in Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (1974). In that case, a fifth grader was injured by an exploding detonator cap brought to school by another student while several students were alone in a classroom during a half-hour recess period. In accordance with school policy, the teacher was absent from the classroom at the time, although another teacher was periodically checking in on the students during the recess period. The student sued the teacher, principal, and school, the case proceeded to trial, and the trial court granted the defendants’ motion for judgment on the evidence under Trial Rule 50 at the end of the plaintiffs case. Our supreme court affirmed.

First, the court held that school authorities have a duty “to exercise reasonable care and supervision for the safety of the children under their control.” Miller, 261 Ind. at 611, 308 N.E.2d at 706. As for the scope of that duty, the court stated:

[S]chools are not intended to be insurers of the safety of their pupils, nor are they strictly liable for any injuries that may occur to them. The duty imposed by this legal relationship is a practical recognition by the law that school officials are required to exercise due care in the supervision of their pupils; that while they are neither an insurer of safety nor are they immune from liability. It is not a harsh burden to require school authorities in some instances to anticipate and guard against conduct of children by which they may harm themselves or others.

Id. at 612, 308 N.E.2d at 706-07.

Applying that standard to the facts of the case, the court concluded that the trial court properly granted the motion for judgment on the evidence because there was a total absence of evidence that the defendants had breached their duty to the injured student. Id. at 612-13, 308 N.E.2d at 707. The court noted that the plaintiff had “failed to show the actual length of time the students were left unattended or that the activity in which they were engaged was particularly hazardous or that any of the students in the room were of a troublesome, mischievous nature.... ” Id. at 613, 308 N.E.2d at 707. It also observed:

[W]hat constitutes due care and adequate supervision depends largely upon the circumstances surrounding the incident such as the number and age of the students left in the classroom, the activity in which they were engaged, the duration of the period in which they were left without supervision, the case of providing some alternative means of supervision and the extent to which the school board has provided and implemented guidelines and resources to insure adequate supervision.

Id.

In Norman v. Turkey Run Community School Corporation, 274 Ind. 310, 411 N.E.2d 614 (1980), two elementary school students were injured on a playground during recess when they accidentally ran into each other while running backwards. At the time of the incident, approximately seven or eight teachers were watching 188 children on the playground, and there were “no abnormal, dangerous or extra-hazardous conditions present prior to the collision.” Norman, 274 Ind. at 314, 411 N.E.2d at 616. Our supreme court affirmed a grant of summary judgment in favor of the school in a lawsuit brought by one of the injured children. The court stated, “No teacher can observe every student at every instant on a playground. To look at one is to look away from another.” Id. at 316, 411 N.E.2d at 617. It also noted, “there was no indication that there was any event [sic] dangerous condition, dangerous instrumentality or special knowledge of students having a troublesome or mischievous nature being on the playground area known to the supervising teachers at the recess.” Id. at 317, 411 N.E.2d at 618. Under these circumstances, the court held that “school personnel here clearly exercised ordinary and reasonable care for the safety of the children under their authority.” Id.

The case whose facts are most similar to the present case is McClyde v. Archdiocese of Indianapolis, 752 N.E.2d 229 (Ind.Ct.App.2001). There, a student was assaulted and injured by a fellow student in a classroom as they were returning from lunch. The teacher was following the class back to the room, but she was not yet in the room at the beginning of the assault and was unable to stop it when she arrived. We held that in order to hold the school liable for the assault and resulting injuries, the injured student would be required to prove: (1) the assaulting student had a propensity towards violence; (2) the school system or teacher was aware of this propensity; (3) the teacher failed to adequately supervise the class; and (4) this failure allowed the opportunity for the assault to occur, proximately resulting in injuries to the assaulted student. McClyde, 752 N.E.2d at 233. Because there was an unstricken affidavit from the injured student’s mother, who was also a school employee, relating that the assaulting student was known to have behavioral and “anger management” problems, that he had earlier on the day of the assault verbally challenged her son, and that the teacher’s being at the end of the line returning from lunch had allowed the assault to occur, we held there was sufficient evidence to proceed to trial and reversed the trial court’s grant of summary judgment in favor of the school. Id. at 234. It appears that in the absence of that affidavit, we would have affirmed the trial court’s grant of summary judgment. See id. at 235.

Miller, Norman, and McClyde all demonstrate that Indiana courts will not shy away from holding as a matter of law that a school did not breach its duty to reasonably supervise the children in their care and control where the facts warrant such a holding. Here, there is no evidence that either Oak Hill or Nolan was aware of any violent tendencies on KM.’s part and, thus, they were not on any kind of notice that K.M. needed to be closely watched to prevent aggressive or violent behavior by him. There was no evidence of prior altercations between K.M. and Prancik. There also is no evidence that the school’s policy of having teachers focus their attention on hallways during passing periods instead of classrooms, so long as more students were in the hallways than in the classrooms, had previously resulted in physical altercations in the classrooms. Particularly in the absence of such evidence, that policy of focusing attention on where the greater number of students are located is eminently reasonable. The amount of time that Prancik and K.M. would have been left unobserved in the classroom would have been a matter of a few minutes; no more than four, the total amount of the passing period, and likely less than that, as Nolan would have refocused her attention on the classroom once more students arrived.

Prancik posits that Nolan theoretically could have positioned herself so that she could have looked back and forth between the hallway and the classroom and therefore could have noticed and intervened in K.M.’s behavior. Regardless, it is almost always possible to speculate that something more could have been done in situations like this. Such speculation is insufficient to avoid summary judgment. See Norman, 274 Ind. at 317, 411 N.E.2d at 618. The fact remains that Nolan has only one pair of eyes; contrary to the belief of many generations of students, teachers do not in fact have eyes in the back of their heads. She was acting reasonably in focusing her attention on the hallway rather than the classroom at the moment the assault occurred. Moreover, schools are not required to constantly observe all students at all times, nor to guarantee that incidents such as the one here never happen, in order to discharge then-duty of adequate supervision.

Praneik also argues that reversal here is warranted by our supreme court’s decision in King v. Northeast Security, Inc. and Metropolitan School District of Washington Township, 790 N.E.2d 474 (Ind.2003). In King, a high school contracted with a private security firm to provide security at the school, including in the parking lot before and after school, after several criminal incidents at the school in the previous two years. In addition to the security firm, the school’s assistant principal normally stayed outside the school building after classes were dismissed to personally monitor the students’ departure. One day, however, the assistant principal was absent and no other school official replaced him in watching the students’ departure; on that particular day a student was assaulted and beaten in the parking lot at the end of the school day. The injured student subsequently sued the school and the security firm, and the trial court granted summary judgment in favor of both the school and the security firm.

Our supreme court reversed summary judgment as to both. King, 790 N.E.2d at 487. The majority of the opinion addressed whether the school enjoyed immunity from the student’s claims under the Indiana Torts Claim Act, with the court holding that it did not. Id. at 484. The opinion also addressed at length whether the security firm owed a duty to the student, with the court holding that it did. Id. at 487. In addition to these two lengthy discussions, the court also briefly addressed whether, for summary judgment purposes, there was sufficient evidence that the school did not exercise reasonable care in its supervision of students. Id. at 484-85. The school claimed that it adequately fulfilled its supervision responsibilities by contracting with the security firm, but the court rejected this claim by noting, “whether merely entering a contract is all the [school] should have done or was required to do in discharging its duty of care and supervision for the safety of its students is a matter for the jury to decide .... ” Id. at 485. The court also noted the absence of the assistant principal who usually watched students leaving at the end of school and the failure to replace him on that day. Id. The court did not engage in discussion of how this case differed from ones such as Miller, Norman, or McClyde, nor did it express any disapproval of them, but it ultimately held the school did not meet its summary judgment burden of establishing as a matter of law that it had adequately supervised its students. Id.

We conclude King does not compel reversal of summary judgment in favor of Oak Hill. The primary argument of the school in King was that its contract with a private security firm was enough to discharge its supervisory responsibilities. That is not a consideration at all in the present case, as Oak Hill has not attempted to delegate its supervisory responsibilities to a third party. Also, there was evidence that the school in King was not following its own supervisory protocols at the time of the assault, due to the absence of the assistant principal and the failure to find a replacement for him to watch the departing students. Here, Nolan was acting in accordance with reasonable protocol for supervising students at the time of the incident, neither she nor the school were on any kind of notice that K.M. could be violent, either generally or towards Pran-eik specifically, and he and Praneik were left unsupervised at most for a mere matter of minutes. These undisputed facts lead us to the conclusion that as a matter of law, Oak Hill did not breach its duty to reasonably supervise the students in its care.

Conclusion

There are no genuine issues of material fact in this case, and Oak Hill is entitled to judgment as a matter of law. We affirm the granting of summary judgment in Oak Hill’s favor.

Affirmed.

CRONE, J., and PYLE, J., concur.

      . It is not clear that K.M. was intending to be malicious, as opposed to engaging in horseplay.

      . There is language in both Norman and McClyde that seems to blur the line between duty and breach of duty, and neither case was very clear as to whether they were addressing duty or breach of duty. However, it is apparent to us that those cases addressed whether the facts were sufficient to establish a possible breach of a school’s well-settled duty to reasonably supervise its students, not whether a duty existed. Our supreme court has held that "because a school’s duty to its students already has been established,” courts should not attempt to rearticulate that duty based upon a given set of facts "because to do so presupposes that an issue which is thought to be settled must be revisited each time a party frames the duty issue a little differently.” Mangold ex rel. Mangold v. Indiana Dep't of Natural Res., 756 N.E.2d 970, 974-75 (Ind. 2001). Instead, courts in cases such as this should focus upon “whether a given set of facts represents a breach of that duty.” Id. at 975.

      . Having reached this conclusion, we need not address Oak Hill's alternative argument that even if it breached its duty to Prancik, K.M.’s conduct was an intervening or superseding cause of Prancik's injury.


author: KIRSCH, Judge.

text:
    Michael R. HOUSTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1303-CR-84.
    Court of Appeals of Indiana.
    Oct. 31, 2013.

      Donald J. Frew, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Michael R. Houston (“Houston”) was convicted after a jury trial of possession of cocaine as a Class D felony. He appeals raising the following restated issue: whether the State presented sufficient evidence to support his conviction.

We reverse.

FACTS AND PROCEDURAL HISTORY

During the early morning hours of January 29, 2012, Officer Stephanie Souther of the Fort Wayne Police Department (“Officer Souther”) was working patrol in Fort Wayne, Indiana when she saw a black Dodge Charger pull out of the lot of Broadway Joe’s bar. The car’s windows were so darkly tinted that she could not see inside the vehicle, but the car merely pulled across the street and parked in a lot there. Officer Souther observed Houston, whom she recognized from prior encounters, walking away from the car, but did nothing more at that time.

About an hour later, at 1:55 a.m., Officer Souther saw the car again moving at a “pretty high rate of speed.” Tr. at 90. She decided to stop the car, but due to the dark tint on the windows, she requested back-up before doing so. Officer Souther activated her emergency lights, and the car eventually stopped after traveling a short distance. Once her back-up arrived, the officer asked for the driver, who was later identified as Houston, to exit the car first, and Houston complied. One by one, three other people exited the car and came back to where Officer Souther stood. Luther Green (“Green”), who was identified as the owner of the car, had been sitting in the back passenger-side seat; Ashanti Hood (“Hood”) had been sitting in the front passenger seat; and Keosha Armour has been seated in the back driver-side seat.

Officer Souther discovered that Houston did not have a valid driver’s license and that the license plate on the car belonged to another car. Because the license plate did not match the car, Officer Souther decided to tow it. Fort Wayne Police Officer Jason Crowder (“Officer Crowder”) conducted an inventory search of the car before it was towed. While performing the search, Officer Crowder discovered a small baggie with white rock-like substance that he believed to be crack cocaine. This baggie was located between the passenger seat and the center console area. Officer Souther conducted a field test on the substance, and it tested positive for cocaine.

Houston was arrested for possession of cocaine and for driving without a valid driver’s license. During the inventory search, officers also found a vial containing a yellow-tinted liquid in the center console area. When Houston was being transported to the jail, he told Officer Souther that the vial contained urine and explained that his uncle had been riding in the car and urinated in the vial. Id. at 110. When Officer Souther commented on how small the vial was, Houston denied knowledge of the vial. The vial was never tested to determine its contents, but at trial, Green stated it was “anointing oil” used by his church. Id. at 145.

The State charged Houston with possession of cocaine as a Class D felony. A jury trial was conducted, at the conclusion of which, Houston was found guilty. Houston was sentenced to three years with one year and 183 days executed and the balance suspended. Houston now appeals.

DISCUSSION AND DECISION

Our standard of review for sufficiency claims is well-settled. When we review a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind.Ct.App.2009) (citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003)). We look only to the probative evidence supporting the judgment and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. It is the function of the trier of fact to resolve conflicts of testimony and to determine the weight of the evidence and the credibility of the witnesses. Yowler v. State, 894 N.E.2d 1000,1002 (Ind.Ct.App.2008).

Houston argues that the evidence presented at trial was not sufficient to support his conviction for possession of cocaine. He contends that no evidence was presented to indicate that he was in actual possession of the cocaine and that the evidence did not prove beyond a reasonable doubt that he constructively possessed the drugs. Houston asserts that he was not the owner of the car, that there were three other people present in the car including the owner, and that there were no other circumstances that showed that he had any knowledge of the presence of the cocaine. Houston further claims that there was no evidence presented that he intended to maintain control over the cocaine. As a result, Houston concludes that the evidence was insufficient to support his conviction.

In order to convict Houston of possession of cocaine as a Class D felony, the State was required to prove beyond a reasonable doubt that he did, without a valid prescription or order of a practitioner acting in the course of his professional practice, knowingly or intentionally possess cocaine, pure or adulterated. Ind. Code § 35-48-4-6. A conviction for possession of contraband may rest upon proof of either actual or constructive possession. Washington v. State, 902 N.E.2d 280, 288 (Ind.Ct.App.2009), trans. denied. Actual possession occurs when a person has direct physical control over the item. Henderson v. State, 715 N.E.2d 833, 835 (Ind.1999). Because Houston did not have direct physical control over the cocaine found in the car, the State had to prove that he had constructive possession of it.

In order to prove constructive possession of drugs, the State must show that the defendant has both: (1) the intent to maintain dominion and control over the drugs; and (2) the capability to maintain dominion and control over the drugs. Wilkerson v. State, 918 N.E.2d 458, 462 (Ind.Ct.App.2009) (emphasis added) (quoting Gee v. State, 810 N.E.2d 338, 340 (Ind.2004)). “The capability prong may be satisfied by ‘proof of a possessory interest in the premises in which illegal drugs are found.’ ” Monroe v. State, 899 N.E.2d 688, 692 (Ind.Ct.App.2009) (citing Gee, 810 N.E.2d at 340). “This is so regardless of whether the possession of the premises is exclusive or not.” Id. Here, Houston is not contesting that the capability prong was satisfied by the evidence, only that the intent prong was not met.

With regard to the intent prong of the test, where, as here, a defendant’s possession of the premises upon which contraband is found is not exclusive, the inference of intent to maintain dominion and control over the drugs must be supported by additional circumstances pointing to the defendant’s knowledge of the nature of the controlled substances and their presence. Id. (citing Gee, 810 N.E.2d at 341). Those additional circumstances include:

(1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant’s plain view, and (6) the mingling of the contraband with other items owned by the defendant.

Wilkerson, 918 N.E.2d at 462.

In the present case, the evidence presented showed that the cocaine was found inside the car in the “crevice between the passenger seat and the center console.” Tr. at 97-98. Although this location may have been within reach of the driver’s seat, where Houston was seated, there was no evidence presented to show that Houston had knowledge of the presence of the cocaine. No testimony was presented to indicate that any of the occupants were aware of the presence of the cocaine in the car. When questioned by Officer Souther, Houston denied any knowledge of the presence of the cocaine in the car, and both Green and Hood testified that the officers did not ask them about their knowledge of the cocaine. Id. at 127-28, 147, 175-76. No evidence was presented that Houston attempted to flee or that he made any furtive gestures. There was also no testimony to establish that the cocaine was found in plain view of Houston as the driver of the car, merely that it was found “in the crevice between the passenger seat and the center console area” within reach of the driver, but on the other side of the console. Id. at 97-98, 131. There was also no evidence that the cocaine was contained near or comingled with any items belonging to Houston.

The only evidence of constructive possession that the State points to is the statement by Houston regarding the vial of yellow-tinted liquid found in the center console area. The State contends that this statement was evidence that Houston was aware of items in and around the console area. Such evidence fails because there was no showing that the vial was connected to the cocaine in any way. Indeed, the evidence established that the vial was in plain view in the console of the vehicle, not in the crevice where the cocaine was found. In addition, the evidence failed to show that Houston even knew what was in the vial because he incorrectly identified the contents of the vial as urine, and Green testified that the vial actually contained anointing oil used in his church. Id. at 145. We conclude that the evidence presented at trial was not sufficient to prove the intent prong of constructive possession. We, therefore, reverse Houston’s conviction for possession of cocaine.

Reversed.

ROBB, C.J., and RILEY, J., concur.

      . See Ind.Code § 35-48-4-6.