author: NAJAM, Judge. KIRSCH, Judge,

text:
    Robert GELLER and Judy Geller, Appellants-Plaintiffs, v. Kurt P. KINNEY, Holly Kinney, and A.M. Rentals, Inc., Appellees-Defendants.
    No. 29A02-1111-PL-1202.
    Court of Appeals of Indiana.
    Dec. 7, 2012.

      Steven Stoesz, Stoesz & Stoesz, West-field, IN, Attorney for Appellants.
    Donald D. Levenhagen, Landman & Beatty, Lawyers, LLP, Indianapolis, IN, Attorney for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Robert and Judy Geller appeal the trial court’s judgment in favor of A.M. Rentals, Inc. (“A.M.”) and the court’s calculation of damages for the Gellers against Kurt P.

Kinney and Holly Kinney. The Gellers raise two issues for our review, namely:

1. Whether the trial court erred in its interpretation of an exculpatory clause in the Gellers’ contract with A.M.; and
2. Whether the trial court’s calculation of damages against the Kinneys is clearly erroneous.
We affirm.

FACTS AND PROCEDURAL HISTORY

On March 23, 2011, the Gellers filed their amended complaint against the Kin-neys and A.M. Under Count I, the Gellers alleged that the Kinneys had breached their lease agreement, causing the Gellers damages in excess of $70,000. Under Count II, the Gellers alleged that A.M., the Gellers’ leasing agent, had failed “to properly investigate the Kinneys before recommending them as tenants,” thereby breaching A.M.’s lease management agreement with the Gellers. Appellants’ App. at 8. And under Count III, the Gellers alleged that A.M. had breached its duties under Indiana Code Chapter 25-34.1-10 when A.M. had failed to “exercise due diligence and care when investigating possible tenants, recommending tenants to the Gellers, and executing lease agreements on behalf of the Gellers.” Id. at 9.

Following a bench trial, on October 11, 2011, the trial court entered judgment for the Gellers on their claim against the Kin-neys but against the Gellers on both claims against A.M. In its order, the court found the following facts:

4. The Gellers ... lived [at 168 E. Columbine Lane, Westfield, Indiana,] until November 2006, at which time they moved to 15639 Buxton Court, West-field, Indiana, another house [the] Gel-lers had purchased in September 2006. Because Mr. Geller was transferred by his employer to a position in Elmhurst, Illinois, effective on January 1st, 2007, the Gellers listed the Columbine Lane house for sale.... The house did not sell in the time the Gellers had it listed ... and they began to consider leasing the property_
5. The Gellers’ initial awareness of [A.M.] came from a sign in a subdivision where [A.M.] had another client. They did not consider any other leasing agent and spoke only with [A.M.] about listing the Columbine Lane property for lease. By October 26, 2006, the Gellers had discussed the likelihood of leasing the Columbine Lane property with Decarius Spells, [A.M.’s] representative, entered into the Lease and Management Agreement, and authorized [A.M.] to enter the property into the multiple listing service to begin finding a tenant for the property. One reason for selecting [A.M.] was that the Gellers understood that [A.M.] was a corporate relocation company as well as a home rental company, and because the Gellers believed [A.M.] could attract the type of tenant the Gel-lers were looking for to place in their home.
7. Neither party signed the Lease and Management Agreement, but both the Gellers and [A.M.] accept its terms and agree that it is a legally-binding contract for them both. Although Mr. Geller was the one responsible for negotiating the agreement with [A.M.] ... he admits to not having read the agreement prior to the subsequent lease with the Kinneys but had merely “kind of previewed it.” The evidence establishes that the contract was in effect prior to October 26, 2006.
8. It was not until around March 15, 2007, that Decarius Spells, the [A.M.] representative, contacted Mr. Geller and said that he had a party interested in leasing the house. This party was the Kinney family. Up until that time, Mr. Geller had limited contact with Mr. Spells because no other tenants had even previewed the house in the nearly five months it had been listed for lease. Mr. Geller had spoken with Mr. Spells only two other times, those being the original telephone call of introduction and to schedule a time to meet at the house, and the meeting that took place at the house so Mr. Spells could see it. In that time, the Gellers also dropped the requested monthly rental from $3,150 to $2,950, and then to $2,750. Meanwhile, the Gellers were paying mortgages and associated expenses on two houses totaling approximately $5,800 per month. While Mr. Geller’s income was $175,000 per year, 22 percent of that amount ($38,500) came from a bonus that he did not receive until the year’s end, and therefore!] his gross monthly income before bonus was of $11,375. The Gellers did have another rental property that was renting at a profit of $300 per month that off-set some expenses.
9. The next contact with Mr. Spells was on the day the Kinneys previewed the house, when Mr. Spells called to advise that they liked the house and wanted to submit an application. There was a final call, and in this call[] Mr. Spells discussed the Kinneys’ application and sought the Gellers’ decision on whether to enter into a lease with the Kinneys. Of note is that!,] in one of these final two telephone calls, the Gel-lers agreed to another reduction in the monthly lease amount to $2,495. This completed a 21 percent drop from the original monthly rate and was in response to what the Kinneys could afford to pay.
10. The content of this final telephone conversation between Mr. Spells and Mr. Geller forms the factual crux of the lawsuit. In this conversation, Mr. Spells went over the lease application ... and the Kinneys’ credit report ... with Mr. Geller. Mr. Spells has no recollection of the Gellers, the transaction involving the Gellers and the Kinney lease and specifically has no recollection of his final conversation with Mr. Geller. He testified that he was “very process oriented” and that he would have done everything the same way in accordance with his procedure every time. He further testified that he would have gone over the application and credit report line by line starting at the top and reading down to the bottom. He demonstrated how he did this during his testimony.
11. Mr. Geller does have a specific recollection of this conversation from March of 2007. He recalls that Mr. Spells informed him that [A.M.] had investigated the party and that the employment checked out and the residential information checked out. Mr. Spells further advised Geller that [A.M.] had pulled a credit bureau report and that it revealed that the Kinneys filed bankruptcy several years before, but that since then[] the Kinneys were clean. Geller testified that he asked Mr. Spells to confirm the Kinneys were “clear” since their bankruptcy and [was] told by Mr. Spells that “I wouldn’t mislead you.”
12. Mr. Geller recalls that he requested to see the credit report and Mr. Spells stated he could not provide it[,] citing “confidentiality issues.” Although Mr. Spells stated that he would not have denied such a request, the only evidence before the Court is that [A.M.] did not supply the report to the Gellers nor did they have it from any other source prior to committing to a lease with the Kin-neys. Having now seen that report, Mr. Geller testified that there was information in it that was not conveyed to him by Mr. Spells. That information specifically was (a) the existence of a high fraud alert stating that the Social Security number used was for an individual between 16 and 18 years of age[. (]The Court finds that this is a misstatement of what [the credit report] reflects. The credit report says only that Kurt Kinney would have obtained, his Social Security number between the ages of 16 and 18, and this is not inconsistent with his age at the time of the report.[)]; (b) the current address provided for the Kin-neys was a commercial and not a residential property; and (c) there were approximately $30,000 in delinquent debts incurred by the Kinneys since the filing of their bankruptcy, as well as delinquent car payments and other debts which were shown as current after the date of the bankruptcy.
13. In demonstrating how he would have gone over the credit report ... Mr. Spells came to the “Special Messages” section of the Kinneys’ credit report, and testified, “And then going to any special messages. No special messages.” In fact there were “special messages, including this notice: * * *HIGH RISK FRAUD ALERT: INPUT CURRENT ADDRESS IS COMMERCIAL* * * * AND * * * * SSN YEAR OF ISSUANCE: INPUT SSN ISSUED: 1985-86; STATE: MI FILE SSN ISSUED: 1985-1986; STATE: MI; (ESTIMATED AGE OBTAINED: 16 TO 18) * * *.”
14. Mr. Geller also testified that there was additional information on the Kin-neys’ application to lease ... which was
not disclosed ..., including (a) the application revealed the Kinneys were only in their previous home for nine months; (b) the Kinneys’ prior rental history had not been investigated and verified, nor did it appear that any of the other information on the application appeared to be verified; and (c) there was a discrepancy between the income listed on the rental application and that given in the job verification letter.
15.Based on the information that was provided from Mr. Spells and an evaluation of their finances and other available options, the Gellers authorized [A.M.] to enter into the lease with Kinneys ... for a period of three years at a monthly rental of $2,495.
18. The lease took effect March 22, 2007, and was uneventful through August 2007. In September of 2007[,] however, the Kinneys tendered a non-sufficient funds check to pay their rent, and when this was not made good, [A.M.] filed suit on October 23, 2007, for eviction. The Kinneys, having already defaulted on the lease, paid no further rent and by court order were required to vacate the property no later than December 2, 2007. The balance of the rent due under the lease is $74,850.
⅜ * ⅝
21. Mr. Geller claims that he would not have authorized [A.M.] to proceed with the lease to the Kinneys had he had the information that [A.M.] would have provided. While there is no question that the additional information would have prompted more questions from Mr. Geller to [A.M.], the totality of the circumstances at the time undermines that assertion when the answers to those questions are unknown. For example, as to the issue of the age of the person holding Kurt Kinney’s Social Security number, a question would have revealed that this issue was nothing more than a misunderstanding of the report. Further, as to the issue of non-verification of application information, per Marlene Slagle’s testimony on behalf of [A.M.], Mr. Geller would have presumably been told that everything except employment had been verified and the verification was in the file despite not being checked off on the application. It is unknown what follow-up would have been done on any other questions and the impact the additional information would have had on the Gel-lers’ decision.
22. With this said, the evidence is clear that [AM.] failed to disclose adverse material facts about the Kinneys that bore directly on the Gellers’ ability to evaluate the risks involved with leasing their property to the Kinneys.
* * *
26. [I]n ... paragraph [9 of the Lease and Management Agreement] it says, “Agent shall not be liable to Owner for any error in judgment, nor for any good faith act or omission in its performance or attempted performance of any of its duties or obligations under this Agreement.” [ (“The exculpatory clause.”) ]
27. The Gellers were not compelled in any way to enter into the contract with [A.M.] Mr. Geller is an intelligent consumer with experience in the contracts and financial matters dealing with real estate.... They came to [A.M.] based on seeing one of [AM.]’s signs in a neighborhood and signed on after minimal contact with Mr. Spells. There is no evidence of any high pressure sales techniques. This was not a situation of one party having a dominant or even an advantageous bargaining position. Mr. Geller chose, without any pressure
from [A.M.], to commit to the Lease and Management Agreement.
28.Mr. Geller testified that he believed, and the Court finds it true, that neither [A.M.] nor Mr. Spells “did anything intentionally.” ...
34. [Under the lease agreement with the Kinneys, t]he Gellers, as lessors, were “required to reasonably mitigate damages.”
35. The Kinneys vacated the property on or about December 2, 2007.... [I]n January of 2008, the Gellers determined to sell the property rather than to try to rent it again. The home was sold in a “short sale” on March 8, 2008, for $300,000. The Gellers had purchased the home in 2002 for $279,000 ..., had listed it for sale in the fall of 2006 for $375,000 without success, and relisted it for sale in January 2008 for $339,500. The evidence fails to establish that they took a true loss on the home or that the Kinneys were the cause of that loss. Given the need to relocate and the housing market at the time, such a connection is speculative at best.

Id. at 31-42 (emphases added).

On Count I against the Kinneys, the court concluded that the Kinneys were liable to the Gellers for the amount of unpaid rent between September 2007 and March 8, 2008, or $15,613.87. The court then concluded that, after March 8, 2008, the Gellers mitigated their losses by selling the home. And the court ruled for A.M. on Count II based on the plain language of the Lease and Management Agreement between the Gellers and A.M.

On Count III, the court concluded as follows:

8. Under Indiana Code § 25-34.1-10-10(a)(3)(C), [A.M.] had a duty to disclose to the Gellers “adverse material facts or risks actually known” by [A.M.]
9. [A.M.], by its agent, Decarius Spells, failed to disclose to the Gellers “adverse material facts or risks” actually known to them as required by the above statute.
10. While the [relevant statute] establishes a duty owed by a licensee who is an agent for another in a real estate transaction, it provides no penalty for a breach. The Court can only conclude that failure to perform that duty creates a cause of action for either an intentional tort, or for negligence.
11. In this case, there is no evidence that supports that [A.M.] committed an intentional tort. The evidence does establish, however, that Mr. Spells was negligent in failing to perform a statutory duty owed to the Gellers....
19. Although not citing the word “negligence” specifically, the [exculpatory] clause is legally sufficient. It makes clear that [A.M.] is not liable to the Gellers for any good faith act or omission in the performance of its duties under the parties’ agreement. This is a faithful rendering in lay person’s terms of the legal concept of negligence and puts the Gellers on notice that [A.M.] has no responsibility for mistakes it may make in the performance of its duties.

Id. at 45-48. Thus, the court held that A.M. was not liable to the Gellers under Count III by virtue of the parties’ exculpatory clause. This appeal ensued.

DISCUSSION AND DECISION Standard of Review

The Gellers appeal the trial court’s judgment following the entry of findings of fact and conclusions thereon. When a trial court’s judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 148, 147 (Ind.2005). First, we determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. ■ Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). If the evidence and inferences support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trans. denied.

Issue One: The Exculpatory Clause

The Gellers first assert that the trial court erroneously concluded that the exculpatory clause exempted A.M. from liability for its breach of duty under Indiana Code Section 25-34.1-10-10(a)(3)(C). According to that statute:

A licensee representing a seller or landlord has the following duties and obligations:
(3) To promote the interests of the seller or landlord by:
* ⅝ *
(C) disclosing to the seller or landlord adverse material facts or risks actually known by the licensee concerning the real estate transaction

Ind.Code § 25-34.1-10-10(a). And the exculpatory clause in the parties’ contract states: “Agent shall not be liable to Owner for any error in judgment, nor any good faith act or omission in its performance or attempted performance of any of its duties or obligations under this Agreement.” Appellants’ App. at 39-40.

The Gellers contend that the exculpatory clause is not sufficient to cover A.M.’s failure to perform its duties under Indiana Code Section 25-34.1-10-10(a)(3)(C). On this issue, the trial court concluded that, because the statute does not provide a “penalty for a breach” of its duties, “the failure to perform that duty creates a cause of action for either an intentional tort, or for negligence.” Id. at 46. The parties do not challenge that rationale on appeal but, instead, dispute whether the language of the exculpatory clause covers A.M.’s negligent performance of its duties.

We agree with the trial court’s ultimate conclusion for A.M. but not with its rationale. It is well established that, “ ‘unless the contract provides otherwise, all applicable law in force at the time the agreement is made impliedly forms a part of the agreement without any statement to that effect.’ ” Van Prooyen Builders, Inc. v. Lambert, 907 N.E.2d 1032,1035 (Ind.Ct. App.2009) (quoting Miller v. Geels, 643 N.E.2d 922, 928 (Ind.Ct.App.1994), trans, denied), aff'd on reh’g, 911 N.E.2d 619, trans. denied. Accordingly, as a matter of law Indiana Code Section 25-34.1-10-10(a)(3)(C) was an implied part of the Lease and Management Agreement. Thus, the Gellers’ claim against A.M. on Count III is a claim that A.M. breached its contractual duties to the Gellers, including the duties listed under Indiana Code Section 25-34.1-10-10(a).

Further, “[w]hen the parties have, by contract, arranged their respective risks of loss ... tort law should not interfere.” Greg Allen Const. Co. v. Estelle, 798 N.E.2d 171, 175 (Ind.2003). The exculpatory clause exempts A.M. from liability for “any error in judgment” and for “any good faith act or omission in its performance ... of any of its duties or obligations under this Agreement.” Appellants’ App. at 39-40. Here, the trial court first found that the Gellers had met their burden of showing that A.M. breached their statutory obligations under Indiana Code Section 25-34.1-10-10(a). Id. at 46. But the court expressly noted that “Mr. Geller testified that he believed, and the Court finds it true, that neither [A.M.] nor Mr. Spells ‘did anything intentionally.’ ” Id. at 40. The court then concluded that A.M. successfully relied upon the plain language of the exculpatory clause as an affirmative defense. See id. at 46-48.

Thus, the trial court did not address whether the' Gellers or A.M. would have borne the burden of proof on the intentional act issue. And, in any event, as discussed above this is a contract case that requires this court to consider the application of the contract’s plain language to undisputed facts, so an intentional act determination is not required. We cannot say that the trial court’s conclusion that the exculpatory clause exempted A.M. from liability for the breach of its statutory duties here was clearly erroneous.

Still, the Gellers contend, and the dissent agrees, that applying the exculpatory clause to the duties listed under Indiana Code Section 25-34.1-10-10(a) violates public policy. Indiana recognizes a “very strong presumption of enforceability” of freely negotiated contracts. Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1130 (Ind.1995). Nonetheless, a contract not prohibited by statute or clearly tending to injure the public may be deemed unenforceable as a matter of public policy based on a consideration of the following factors:

(i) the nature of the subject matter of the contract; (ii) the strength of the public policy underlying the statute; (iii) the likelihood that refusal to enforce the bargain or term will further that policy; (iv) how serious or deserved would be the forfeiture suffered by the party attempting to enforce the bargain; and (v) the parties’ relative bargaining power and freedom to contract.

Id. (citations omitted).

Applying those five factors here leads to the conclusion that the exculpatory clause does not violate public policy. The Lease and Management Agreement is an agency agreement between the Gellers and A.M., and the strength of the public policy underlying Indiana Code Section 25-34.1-10-10(a) is clear. To refuse to enforce the exculpatory clause might further the policy behind the statute. But the statute does not prohibit an exculpatory clause, and a valid exculpatory clause remains enforceable under the common law. And, here, the exculpatory clause is limited in its application to “error[s] in judgment” and only “good faith” breaches of A.M.’s statutory duties. Appellants’ App. at 39-40. The exculpatory clause does not protect A.M. from treating its customers in bad faith.

Finally, the fourth and fifth factors here are interrelated and weigh strongly in favor of enforcing the exculpatory clause. The trial court expressly found that Mr. Geller “is an intelligent consumer with experience in the contracts and financial matters dealing with real estate.” Id. at 40. Further, the court found “no evidence of high pressure sales techniques. This was not a situation of one party having a dominant or even an advantageous bargaining position. Mr. Geller chose, without any pressure from [A.M.], to commit to the Lease and Management Agreement.” Id Considering those undisputed findings, the parties had equal bargaining power and it would be an “[unjdeserved ... forfeiture” by A.M. for this court to refuse to enforce the exculpatory agreement. See Fresh Cut, 650 N.E.2d at 1130.

In sum, we cannot say that the trial court’s enforcement of the exculpatory clause is clearly erroneous. We also hold that enforcing the exculpatory clause on these facts is not contrary to public policy. As such, we affirm the trial court’s judgment for A.M.

Issue Two: Damages

The Gellers also assert that the trial court erroneously concluded that the sale of the home in March of 2008 mitigated their losses from the Kinneys’ breach of the lease. The Kinneys have not filed a brief in response on that issue. Accordingly, we do not undertake the burden of developing argument for the appellee, as that duty remains with the appellee. Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind.Ct.App.2003). When the appellee does not file a brief, we apply a less stringent standard of review and may reverse the trial court when the appellant establishes prima facie error. Id. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.” Id. (citations omitted). If the appellant is unable to meet the burden of prima facie error, however, we will affirm. See Abouhalkah v. Sharps, 795 N.E.2d 488, 490 (Ind.Ct.App.2003).

The Gellers argue that the trial court misapplied paragraph 13 of their lease agreement with the Kinneys. That paragraph states, in relevant part:

Upon the occurrence of any Event of Default, Lessor and Lessor’s Agent may, at its option, in addition to any other remedy or right it has hereunder or by law:
c. Terminate this Lease at any time upon the date specified in a notice to Lessees. Lessee[s ] liability for damage shall survive such termination. Upon termination, such damages recoverable by Lessors from Lessees shall be an amount equal to the rent and other payments provided for in this Lease which would have become due and owing thereunder from time to time during the Unexpired Term plus the cost and expenses paid or incurred by Lessor or Lessor’s Agent in connection with obtaining possession, removal and storage of Lessee’s property, maintenance of Premises while vacant, reletting, lease fee incurred by the owner of the Premises, putting Premises in acceptable condition to relet.
d. Without terminating this Lease, Lessors may relet the Premises with[out] the same being deemed an acceptance of a surrender of this Lease nor a waiver of Lessor’s rights and remedies and Lessors shall be entitled to damage for the Unexpired Term. Any reletting by Lessors may be for a period equal to or less than or extending beyond the remained [sic] of the original term, or for any sum or to any Lessees or for any use Lessors deem appropriate. Upon any occurrence herein, the Lessor will be required to reasonably mitigate damages.

Pis.’ Exh. 4 at 5-6 (emphases added).

According to the Gellers, paragraph 13 created “options available to the Gellers” and, “because the[y] chose to proceed according to paragraph 13c, there was no requirement they mitigate their damages” under paragraph 13d. Appellants’ Br. at 13. The Gellers further argue that, even if they did mitigate their damages, that does not prohibit them from pursuing the full unpaid balance from the Kinneys. In sum, the Gellers contend that “enforcement of a savings clause in a lease subverts the doctrine of mitigation of damages.” See Nylen v. Park Doral Apartments, 535 N.E.2d 178, 183 (Ind.Ct.App. 1989), trans. denied. We squarely rejected that argument in Nylen. As we explained:

The doctrine of mitigation of damages creates an obligation on the part of the landlord to use such diligence as would be exercised by a reasonably prudent man under similar circumstances to re-let the premises, if possible, in order to mitigate damages resulting from the tenant’s breach of lease. The obligation exists even if there is no mandatory re-letting clause in the lease. Further, courts have recognized and enforced the doctrine of mitigation of damages while at the same time sustaining savings clauses.

Id. (citations omitted).

Stated another way, the Gel-lers’ argument ignores the fact that the duty to mitigate damages is a common law duty independent of the contract terms. See Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 507 (Ind.Ct. App.2007). Further:

[T]he non-breaching party is not entitled to be placed in a better position than he would have been if the contract had not been broken. Indeed, the non-breaching party, as a general rule, must mitigate his damages.... Where a party does mitigate its damages, the breaching party is entitled to set off the amount of the damages mitigated.

Id. (citations omitted). And, again, “ ‘it is well settled that, unless the contract provides otherwise, all applicable law in force at the time the agreement is made impliedly forms a part of the agreement without any statement to that effect.’ ” Van Prooyen, 907 N.E.2d at 1035 (quoting Miller, 643 N.E.2d at 928).

While the Gellers’ lease agreement only expressly refers to the duty to mitigate in paragraph 13d, nothing in the language of paragraph 13c indicates that the parties agreed to negate the Gellers’ common law duty- to mitigate in the event the Gellers chose to proceed with the termination of the lease under paragraph 13c. Accordingly, the trial court’s conclusion that the Gellers’ sale of the home mitigated their damages is not clearly erroneous.

Conclusion

In sum, we hold that the exculpatory clause of the Lease and Management Agreement exempts A.M. from liability for its failure to perform its duties to the Gellers under Indiana Code Section 25-34.1 — 10—10(a)(3)(C). We also hold that applying the exculpatory clause on these facts is not contrary to public policy. Finally, we hold that the trial court’s conclusion that the Gellers’ sale of their home mitigated the Kinneys’ damages to the Gellers is not clearly erroneous. As such, we affirm the court’s judgment.

Affirmed.

MAY, J., concurs.

KIRSCH, J., dissents with separate opinion.

KIRSCH, Judge,

dissenting.

I respectfully dissent.

Here, the trial court properly concluded that A.M. Rentals, Inc. (“Agent”) had a duty under Indiana Code section 25-34.1-10 — 10(a)(3)(C) to disclose to Robert Geller and Judy Geller (collectively, “Owner”) the adverse material facts about the Kinneys’ creditworthiness that were actually known by Agent and that it breached this duty. It then found that although Agent was negligent in failing to perform its statutory duty, it had no liability because there was no evidence that Agent had committed an intentional tort, and, accordingly, Agent had no liability because of the exculpatory clause here at issue. I believe that the trial court erred in placing the burden on Owner to prove that Agent had committed an act that was exculpated by the contract and in interpreting the exculpatory clause to require the commission of an intentional act by Agent to establish liability. I also believe that the clause as interpreted by the trial court vitiates the contract, contravenes Indiana law and is unconscionable.

The exculpatory clause at issue provides: “Agent shall not be liable to Owner for any error in judgment, nor for any good faith act or omission in its performance or attempted performance of any of its duties under this Agreement.” Appellants’ App, at 39-40.

By the terms of the exculpatory clause, Owner releases Agent from liability according to its terms. Thus, the clause is an affirmative defense that Agent must raise and prove. Ind. Trial Rule 8(C). Agent had the burden of proving that its failure to perform its statutory duty to disclose the known adverse material facts or risks to Owner was due to an act or omission that it made in good faith. The trial court erred in shifting the burden to Owner to prove the converse.

The contract here at issue does not define good faith, and the term is inherently ambiguous. One legal commentator has noted that “the term ... lacks a fixed meaning ... because [it] is loose and amorphous.” Another described good faith as “indefinable” noting that it is “an elusive term best left to lawyers and judges to define over a period of time as circumstances require.” And, one court has observed that, “It is impossible to define ‘good faith’ comprehensively and exactly.” Star Credit Corp. v. Molina, 59 Misc.2d 290, 298 N.Y.S.2d 570, 578 (Civ.Ct. Rec.1969).

Good faith requires more than the absence of bad faith. In AquaSource, Inc. v. Wind Dance Farm, Inc., 838 N.E.2d 535, 539 (Ind.Ct.App.2005), we defined good faith effort “as what a reasonable person would determine is a diligent and honest effort under the same set of facts or circumstances.” See also Hamlin v. Steward, 622 N.E.2d 535, 540 (Ind.Ct.App. 1993). Professor Steven J. Burton has written that good faith requires parties to act fairly in order “to protect justifiable expectations arising from their agreement.” Good faith under Article Two of the Uniform Commercial Code on the part of a merchant includes the “observance of reasonable commercial standards of fair dealing in the trade.” Ind.Code § 26-1-2-103(l)(b).

The contract here was drafted by Agent. In accordance with the rules of contract interpretation any ambiguity in the contract will be construed against the party who drafted it. Boswell Grain & Elevator, Inc. v. Kentland Elevator Supply, Inc., 593 N.E.2d 1224, 1227 (Ind.Ct.App.1992). Indiana Code section 25-34.1-10-10 provides that a licensee representing a landlord has the duty to “exercise reasonable care and skill.” Nothing in the contract excused Agent from this duty. Good faith on the part of a licensed real estate agent should include the exercise of reasonable care and skill. Such a construction is “what a reasonable person would determine is a diligent and honest effort under the same set of facts or circumstances.” See AquaSource, 833 N.E.2d at 539. It is also the construction necessary “to protect justifiable expectations arising from their agreement.” See Burton, supra. Finally, it is consistent with the “observance of reasonable commercial standards of fair dealing” in the real estate industry. See Ind.Code § 26-l-2-103(l)(b).

Applying these observations of good faith to the contract here at issue and interpreting the contract against Agent, its drafter, the trial court erred in interpreting the exculpatory clause provision of releasing Agent from liability for any action other than an intentional tort. The question before the trial court should have been whether Agent exercised reasonable care and skill in dealing with the adverse material information that it had about the prospective tenants, and the burden of showing such an exercise was on Agent.

Moreover, I believe that the exclusionary clause as interpreted by the trial court vitiates the duties imposed by the contract and by Indiana law on the part of Agent, contravenes public policy and renders the provision unconscionable. The Indiana General Assembly set out the duties that a licensed agent owes to a seller or landlord at Indiana Code section 25-34.1-10-10. Included in those duties are the duties to

promote the interests of the seller or landlord by
(C) disclosing to the seller or landlord adverse material facts or risks actually known by the licensee concerning the real estate transaction;
(E) timely accounting for all money and property received [and]
(F) exercising reasonable care and skill....

Here, Agent was a real estate professional licensed and regulated by the State of Indiana. As such, Agent was entitled to the benefits of and subject to the duties imposed by that status. As interpreted by the trial court, the inclusion of exculpatory clause in the form agency agreement enabled Agent to avoid its statutory duties. I believe such an interpretation is unconscionable and contrary to public policy.

Moreover, and as stated above, I believe it is reasonable to interpret the exclusionary clause in a manner that does not contravene public policy or conscionability by interpreting the phrase “good faith act or omissions” to exculpate only acts and omissions that were consistent with Indiana law and reasonable commercial standards in the real estate industry. Such an interpretation, for example, could exculpate the agent from any liability for relaying inaccurate credit reporting information received from a credit reporting agency of the type and character customarily relied upon by real estate professionals.

I would reverse the decision of the trial court and remand with instructions to enter judgment for Owner for all losses incurred as a result of Agent’s failure to perform its statutory duties to disclose to Owner the adverse material facts known to Agent and to exercise reasonable care and skill in this transaction.

      . The Kinneys have not filed a brief in this appeal.

      . For an excellent discussion of the inherent ambiguity of good faith, see Stankiewicz, James J., Good Faith Obligation in the Uniform Commercial Code: Problems in Determining Its Meaning and Evaluating Its Effect, 7 Val. U. L. Rev 389 (1973). Although Mr. Stankiewicz’s comments were in the context of the Uniform Commercial Code, they apply with equal force here.

      . F.K. Juenger, Listening to Law Professors Talk About Good Faith: Some Afterthoughts, 69 Tul. L. Rev. 1253, 1254 (1995).

      . PJ. Powers, Defining the Indefinable: Good Faith and the United Nations Convention on the International Sale of Goods, 18 J.L. & Com. 333, 333 (1999).

      . Steven J. Burton, Principles of Contract Law, (2d ed. West Group, 2001) at 444-45.


source: Caselaw Access Project

license: Public Domain

text:
    Phillip T. BILLINGSLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A05-1204-CR-216.
    Court of Appeals of Indiana.
    Dec. 7, 2012.

      Thomas C. Allen, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Phillip T. Billingsley appeals his conviction for possession of marijuana, as a Class D felony, following a bench trial. Billings-ley raises three issues for our review, which we consolidate and restate as the following two issues:

1. Whether the officer responding to a 9-1-1 call initiated an investigatory stop of Billingsley or, instead, placed Billingsley under arrest when the officer withdrew his firearm upon his arrival at the scene; and
2. Whether the responding officer had a reasonable and articulable suspicion to initiate an investigatory stop of Billingsley.

We hold, based on the totality of the facts and circumstances available to the responding officer at the time he detained Billingsley, that the responding officer initiated an investigatory stop of Billingsley based on a reasonable and articulable suspicion that he was engaged in criminal activity. Accordingly, the trial court did not abuse its discretion when it admitted into evidence marijuana seized following the officer’s detention of Billingsley, and we affirm his conviction.

FACTS AND PROCEDURAL HISTORY

Around 2:84 a.m. on November 5, 2011, the 9-1-1 dispatch center of the Fort Wayne Police Department (“FWPD”) received a call from a woman. The woman said there was a “young man” at the Veterans of Foreign Wars (“VFW”) building who had “held [her] hostage” a week or two before and that she “want[ed] the police to come up here and lock him up.” Def.’s Ex. B. She then stated that he was “going to leave right now” and that she did not “want him to leave because that’s the same dude who did the shooting at Mook-ie’s nightclub.” Id. The caller stated that the man was currently armed, though she could not specify the type of firearm; that his name was Phillip Billingsley; and that he was sitting as a passenger in a “newer,” “tan-brown” or “tan-gray” Dodge Durango with tinted windows. Id. She further stated that the man sitting in the driver’s seat of the vehicle was also armed.

During her five-minute phone call with 9-1-1, the caller turned her attention away from the dispatch operator to tell a third party that she was not “talking to the police I’m talking to my brother.” Id. At the dispatch operator’s request, the caller then identified herself as Renita Brown and said she was calling from a friend’s cell phone. The FWPD dispatched Officer Nicholas Lichtsinn to the scene.

Officer Lichtsinn knew the VFW was “not the most friendly environment” and also knew Billingsley from having personally arrested him on prior allegations of possession of cocaine, resisting arrest, fleeing, and criminal trespass. Motion to Suppress Hearing Transcript at 14, 19. Officer Lichtsinn further knew that Billingsley had also been arrested for possession of a handgun by a felon and that Billingsley used to “hang around with” two people who have since been convicted of murder. Id. at 29.

Upon arriving at the VFW, Officer Lichtsinn did not see a Dodge Durango but did observe an SUV — a Chevrolet Trailblazer — that, “in the darker light ... appealed] to be brown[, but] when the sun’s out, it appealed] to be silver.” Id. at 40. Officer Lichtsinn knew from his experiences as an officer that, “often when people call [9-1-1], colors [of vehicles] are goofy and makes and models of vehicles are goofy.” Id. at 30. Officer Lichtsinn then observed Billingsley in the passenger seat of the Trailblazer and parked his patrol vehicle in front of the Trailblazer. Officer Lichtsinn called for backup and exited his vehicle with his sidearm drawn. He ordered Billingsley to place his hands on the roof of the SUV while they waited for backup to arrive, which Billingsley did.

Backup officers arrived shortly thereafter. Officer Lichtsinn then holstered his weapon and ordered Billingsley to exit the vehicle. Officer Lichtsinn handcuffed Billingsley and patted him down for weapons. While doing so, Officer Lichtsinn smelled an “overpowering odor of [raw] marijuana,” which he recognized based on “[n]umerous” prior arrests he had made involving marijuana. Id. at 18. Officer Lichtsinn then observed “on the front passenger seat where [Billingsley] was sitting ... a clear plastic baggie containing ... a green leafy plant substance that [Officer Lichtsinn] immediately recognized ... to be marijuana.” State’s Exh. 1. The substance field tested positive for marijuana and was later measured at 229.7 grams. No firearm was found on or near Billingsley.

The State charged Billingsley with possession of marijuana, as a Class D felony. Billingsley moved to suppress the seized marijuana and, after a hearing, the trial court denied Billingsley’s motion. Bill-ingsley renewed his objections during the ensuing bench trial, and the court overruled them. The court then found Bill-ingsley guilty as charged and sentenced him accordingly. This appeal ensued.

DISCUSSION AND DECISION

Billingsley contends that the trial court abused its discretion when it admitted the seized marijuana into evidence because the State’s seizure of the marijuana from the front passenger seat of the SUV violated his rights under the federal and Indiana constitutions. A trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. We will not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court’s ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007).

Issue One: Investigatory Stop or Arrest

The parties first dispute whether Officer Lichtsinn exiting his vehicle with his firearm drawn upon his arrival at the VFW subjected Billingsley to an investigatory stop or an arrest. An investigatory stop allows a police officer to “temporarily freeze the situation in order to make an investigative inquiry.” Johnson v. State, 766 N.E.2d 426, 429 (Ind.Ct.App.2002), trans. denied. In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when, based on a totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. Hardister v. State, 849

N.E.2d 563, 570 (Ind.2006). A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer’s suspicions. Id. (citing Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185-89, 124 S.Ct. 2451,159 L.Ed.2d 292 (2004)). Reasonable suspicion entails some minimal level of objective justification for making a stop, something more than an unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind.Ct. App.1996) (citing United States v. Sokolow, 490 U.S. 1, 7,109 S.Ct. 1581,104 L.Ed.2d 1 (1989)).

An arrest, on the other hand, occurs “when a police officer interrupts the freedom of the accused and restricts his liberty of movement.” Sears v. State, 668 N.E.2d 662, 667 (Ind.1996). An arrest requires probable cause. See, e.g., Reinhart v. State, 930 N.E.2d 42, 45 (Ind.Ct.App. 2010). There is no question that “[h]old-ing a person at gunpoint certainly restrains his liberty of movement” and may be an example of an arrest. Taylor v. State, 464 N.E.2d 1333, 1335 (Ind.Ct.App.1984). But “there is no ‘bright line’ for evaluating whether an investigative detention is unreasonable” such that it has been transformed into a full arrest. See Mitchell v. State, 745 N.E.2d 775, 782 (Ind.2001) (quoting United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)).

This court recently considered the fine line between an investigatory stop and an arrest when the attending officer has drawn his firearm. In Willis v. State, 907 N.E.2d 541, 545 (Ind.Ct.App.2009), we held that, based on the facts of that case, an investigatory stop had occurred. In particular, we noted that “the police arrived at the scene moments after a caller reported a man holding a handgun to another man’s head.” Id. Upon arriving at the scene, the police immediately observed two individuals matching the description provided by the caller. We held that under the totality of those circumstances the police did not convert an investigatory stop into an arrest when they immediately withdrew their firearms to investigate whether the suspect had a firearm. Id.; accord United States v. Askew, 403 F.3d 496, 507 (7th Cir.2005) (holding that officers conducted a Terry stop and not an arrest even though the officers blockaded Askew’s car and approached with guns drawn, based on the officers’ “reasonable suspicion” that Askew was in the car and “the inherent danger in stopping those suspected of drug trafficking, for which guns are known tools of the trade”).

About a year after this court’s decision in Willis, we held on a different set of facts that an officer’s withdrawal of his firearm from its holster placed the suspect citizen under arrest. Specifically, in Rein-hart, we held as follows:

Unlike in Willis, the facts presented here indicate that what may have begun as a Terry investigatory stop was quickly converted to an arrest requiring probable cause. “[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” Illinois v. Ca-balles, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Deputy Coney’s purported purpose in stopping Reinhart’s vehicle was to investigate a possible drunk driver. While Deputy Coney testified that, at the time of the stop, he was concerned with his safety based upon Reinhart’s earlier behavior of pulling into the third driveway and yelling out the window, there is no evidence suggesting that Reinhart engaged in any behavior which could have led to a specific reasonable inference that he was armed with a weapon. Therefore, under the circumstances, Deputy Coney’s action of ordering Reinhart to exit the vehicle at gunpoint was excessive.

930 N.E.2d at 47 (alteration original).

Thus, whether an officer’s use of a firearm to detain a suspect is pursuant to an investigatory stop or an arrest is dependent on whether the totality of the facts and circumstances before the officer at that time demonstrated a specific and reasonable belief that the suspect may be armed with a weapon. Here, Officer Lichtsinn was responding to a call that Billingsley was armed at the VFW. Officer Lichtsinn knew the VFW to be a dangerous area, knew Billingsley, knew Bill-ingsley to be a convicted felon, and knew Billingsley had a history of dangerous acquaintances. Upon his arrival at the VFW, Officer Lichtsinn immediately observed Billingsley sitting in the passenger seat of a brown-gray SUV, which corroborated the caller’s description of the scene. And Officer Lichtsinn’s use of his firearm was limited. Namely, he had his firearm drawn only until backup arrived at the scene, at which time Officer Lichtsinn holstered his firearm and then further engaged Billingsley.

On these facts, Officer Lichtsinn withdrew his firearm only because he had a specific and reasonable belief that Billings-ley may have been armed. As in Willis, it would have been unreasonable to expect Officer Lichtsinn to approach Billingsley without his gun drawn because the risk to the officer’s safety was simply too great. 907 N.E.2d at 546. And Officer Licht-sinn’s limited use of his firearm temporarily froze the situation until backup could arrive and he could complete his investigative inquiry in a safer environment without his firearm. We conclude that the totality of these circumstances describes an investigatory stop under Terry v. Ohio and not an arrest.

Issue Two: Reasonable Suspicion

Billingsley next asserts that, even under the standards for Terry stops, Officer Lichtsinn did not have a reasonable and articulable suspicion to stop Billingsley because the caller, Renita Brown, did not give police any personally identifying information and later was not located by either the State or Billingsley’s defense counsel. According to Billingsley, because Brown could not later be found, her call to the police is equivalent to an anonymous tip. We cannot agree.

As the Supreme Court of the United States has explained:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams ... demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S.[ 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).] Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417 [101 S.Ct. 690, 66 L.Ed.2d 621] (1981), that must be taken into account when evaluating whether there is reasonable suspicion.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412,110 L.Ed.2d 301 (1990).

The reasonable suspicion requirement is satisfied where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Lyons v. State, 735 N.E.2d 1179, 1183-84 (Ind.Ct.App.2000), trans. denied. Thus, reasonable suspicion entails something more than an inchoate and unparticularized suspicion or hunch but considerably less than proof of wrongdoing by a preponderance of the evidence. Luster v. State, 578 N.E.2d 740, 743 (Ind. Ct.App.1991). We review a trial court’s determination regarding reasonable suspicion de novo. Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000).

Brown’s possible status as an anonymous caller presents an important question. As our supreme court has explained:

Reliability of the professional informant or anonymous tipster generally must be established by reference to underlying facts and circumstances which indicate that the information is trustworthy. Our requirement for corroboration is necessitated because this type of information may be unreliable or self-serving, especially if given in return for favors such as money or leniency in possible criminal prosecution. On the other hand, we recognize a concerned citizen tip is different. This tip is made up of people who may have been victims of crime or have witnessed a crime. These individuals generally come forward with information out of a spirit of good citizenship and a desire to help law enforcement. Some jurisdictions have therefore held informants of this type are considered more reliable. In Kellems [■v. State, 842 N.E.2d 352, 356 (Ind.2006), rev’d on other grounds, 849 N.E.2d 1110 (Ind.2006) ], we again reaffirmed our belief that there “may well be great indicia of reliability in the report of the ‘concerned citizen’ as distinguished from the ‘professional informant’ — though again the totality of the circumstances controls.” These concerned citizens are usually one-time informants, and no basis exists from prior contacts to determine their reliability....

State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind.2011) (citations omitted); see also Florida v. J.L., 529 U.S. 266, 270,120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (distinguishing known informants from anonymous informants); Sellmer v. State, 842 N.E.2d 358, 361 (Ind.2006) (describing the degree of corroboration necessary before law enforcement may rely on an anonymous tip).

Here, Billingsley’s argument for why Brown should have the status of an anonymous caller is as follows:

The only identifying information the caller gave to the police when she called was her name. She did not provide a birth date, a telephone number, an address, or any other information which would allow the State to hold her “responsible” if her allegations turned out to be fabricated. In fact, the only information she gave which would have identified her turned out to be false as both the State of Indiana and the defense attorney attempted to no avail to locate her for purposes of having her testify at trial.... There was [also] no evidence put forth that the [FWPD] had th[e] technological tools available [to know the telephone number from which the call was placed].

Appellant’s Br. at 15-16 (citations omitted). Billingsley also suggests that, since the caller identified him by name, the caller must have had a questionable motive for the 9-1-1 call.

Billingsley’s argument misapplies our legal standards. Indeed, the crux of Bill-ingsley’s legal position is that a caller who identifies herself by name can nonetheless become anonymous after the fact when legal counsel fails to locate her. But “[t]hat ex post inquiry ... is not our focus.” United States v. Terry-Crespo, 356 F.3d 1170, 1174 (9th Cir.2004). What matters is whether the facts known to Officer Lichtsinn at the moment of the stop, together with the reasonable inferences arising from those facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. See Lyons, 735 N.E.2d at 1183-84. This is not to say that a caller who identifies herself by name can per se create reasonable suspicion. Again, whether reasonable suspicion exists requires us to consider the totality of the circumstances known to Officer Lichtsinn at the time of the stop. See id.

Moreover, Brown was not an anonymous caller but a concerned citizen. In her 9-1-1 call, she claimed both to have been a recent victim of Billingsley’s criminal activity and to be witnessing his ongoing criminal activity. As an apparent concerned citizen, she was entitled to a degree of reliability despite the fact that “no basis exist[ed] from prior contacts to determine [her] reliability.” Renzulli, 958 N.E.2d at 1147; see also Kellems, 842 N.E.2d at 356-57 (holding that a caller who had reported an intoxicated driver was not an anonymous caller but a concerned citizen because she had provided her name, even though her identity could not later be verified).

On these facts, we conclude that Officer Liehtsinn had reasonable suspicion to briefly detain Billingsley. At the time he stopped Billingsley, Officer Liehtsinn had been informed by a 9-1-1 caller identified by name that a known felon had a firearm, contrary to Indiana Code Section 35-47-2-23(c)(2)(B), in a dangerous area at about 2:30 in the morning. Upon arriving at the scene, Officer Liehtsinn immediately observed Billingsley in the passenger seat of a brown-gray SUV, which he reasonably believed to be consistent with Brown’s description of the scene.

Billingsley notes that Brown’s description of the scene was based on information generally available to the public and was therefore not quality information on which to support a finding of reasonable suspicion. But Brown’s specific identification of Billingsley lends her description of the scene greater credibility than that of the general public.

Further, because Officer Liehtsinn reasonably believed that the caller was a concerned citizen, one reasonable inference is that he believed Brown could later be located and held accountable for false reporting. See J.L., 529 U.S. at 270, 120 S.Ct. 1375. Stated another way, it is reasonable for the police to believe that a 9-1-1 caller has provided her real name. See Renzulli, 958 N.E.2d at 1147; Kel-lems, 842 N.E.2d at 356-57. As the Ninth Circuit Court of Appeals has stated:

We acknowledge that any given caller reporting an emergency to [9-1-1] could provide a false name.... We decline to impose a duty on the police to confirm the identity of every [9-1-1] caller who provides his or her name or to know the universe of names in the United States and their endless variants.

Terry-Crespo, 356 F.3d at 1175. Accordingly, Brown’s 9-1-1 call “was not anonymous and therefore was entitled to greater reliability.” Id. at 1174; see Renzulli, 958 N.E.2d at 1147.

Finally, the fact that Brown called 9-1-1 rather than a police station entitles the call to a degree of reliability. Calls to 9-1-1 are “entitled to greater reliability than a tip concerning general criminality because the police must take [9-1-1] emergency calls seriously and respond with dispatch.” Terry-Crespo, 356 F.3d at 1176 (discussing United States v. Holloway, 290 F.3d 1331, 1339 (11th Cir.2002), cert, denied, 537 U.S. 1161, 123 S.Ct. 966, 154 L.Ed.2d 897 (2003)). Calls to 9-1-1

involve exigent situations that may limit the police’s ability to gather identifying information. Police delay while attempting to verify an identity or seek corroboration of a reported emergency may prove costly to public safety and undermine the [9-1-1] system’s usefulness. We do not believe that the Constitution requires that result. The touchstone of our search and seizure jurisprudence remains the Fourth Amendment’s textual requirement that any search be “reasonable,” a determination we make by weighing the competing interests of individual security and privacy with the need to promote legitimate governmental interests. Having weighed those interests, we conclude that it is reasonable to accommodate the public’s need for a prompt police response. The Fourth Amendment does not require the police to conduct further pre-response verification of a [9-1-1] caller’s identity where the caller reports an emergency. Accordingly, an emergency [9-1-1] call is entitled to greater reliability than an anonymous tip concerning general criminality.

Id. (citations omitted); see also Kellems, 842 N.E.2d at 356-57 (holding that the exigent circumstances described by a concerned citizen were “particularly relevant” to justifying the need for a Terry stop).

In sum, based on the totality of the facts and circumstances known to Officer Lichtsinn at the time he detained Bill-ingsley, we conclude that Officer Lichtsinn had a reasonable and articulable suspicion that Billingsley may have been involved in criminal activity. Officer Lichtsinn had been informed, by a concerned citizen who had called 9-1-1, of a known felon with a firearm at a location known to be dangerous. Accordingly, Officer Lichtsinn’s Terry stop of Billingsley did not violate Billin-glse/s Fourth Amendment rights. For the same reasons, Billingsley’s claim under Article I, Section 11 of the Indiana Constitution must fail. E.g., Sowers v. State, 724 N.E.2d 588, 591-92 (Ind.2000).

Conclusion

Officer Lichtsinn lawfully detained Bill-ingsley during an investigatory stop. Accordingly, the State lawfully seized the discovered marijuana and the trial court did not abuse its discretion in admitting that evidence against Billingsley. Thus, we affirm Billingsley’s conviction.

Affirmed.

MAY, J., concurs.

KIRSCH, J., dissents with separate opinion.

KIRSCH, Judge,

dissenting.

I respectfully dissent.

To conduct an investigatory stop, a police officer must have a reasonably articu-lable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To determine whether a citizen’s constitutional rights are violated by such a stop, the Supreme Courts of the United States and of Indiana have directed reviewing courts to look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” U.S. v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), State v. Bulington, 802 N.E.2d 435, 438 (Ind.2004).

Both courts have also held as a general matter that “an anonymous tip alone is not likely to constitute the reasonable suspicion necessary for a valid Terry stop.” Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind.1997) (citing Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). The concern about uncorroborated anonymous tips arises because “[i]f any anonymous caller’s allegation, uncorroborated by anything beyond public knowledge, could justify a search, every citizen’s home [and car for that matter] would be fair game for a variety of innocent and not so innocent intrusions.” Joggers v. State, 687 N.E.2d 180, 183 (Ind. 1997).

For an officer to have a “ ‘particularized and objective basis’ for suspecting legal wrongdoing, significant aspects of the tip must be corroborated by the police.” Lampkins, 682 N.E.2d at 1271. The corroboration requirement will be satisfied if the anonymous tip gives the police something more than details readily obtainable by the general public. See Johnson v. State, 659 N.E.2d 116, 119 (Ind.1995) (holding that anonymous tip that provided only information easily obtainable by members of general public was insufficiently reliable to constitute reasonable suspicion to conduct investigatory stop). In addition, to constitute reasonable suspicion for an investigatory stop, an anonymous tip must also demonstrate an intimate familiarity with the suspect’s affairs and be able to predict future behavior. See id. at 118.

Here, the police received a tip from a 9-1-1 caller who, in response to police questioning, gave her name as “Renita Brown.” She was neither asked for, nor provided, any other information about her identity such as her age, address, or Social Security Number. The caller could not be located by either the State or the defense, and it is not known whether the caller was, in fact, “Renita Brown” or whether the caller provided a false name. Nothing known to the police officer, nor provided to this court, allow us to determine the accuracy or inaccuracy of the identification information.

In regard to the other information provided in the 9-1-1 call, the only information that was accurate was that Phillip Billingsley was in the passenger seat of an SUV in the parking lot of the Fort Wayne VFW and that the SUV could appear to be brown when viewed “in a darker light.” Other than Billingsley’s name, there was no information that provided details that would not be known to the general public, there was no information that demonstrated “an intimate familiarity” with Billings-ley’s affairs, and there was no information that demonstrated an ability to predict future behavior. None of the other information provided during the call was verified by the officer before conducting the investigatory stop. Indeed, none of such information was ever shown to be accurate.

Because there was no supporting information or any other indicia of reliability for the name provided, I do not believe that the mere providing of a name by a 9-1-1 caller removes this ease from the category of an anonymous caller. I also do not believe that the information known to the investigating officer was sufficient to satisfy the standards established by our Supreme Court and the Supreme Court of the United States for investigatory stops. Accordingly, I would reverse Billingsley’s conviction.

      . The parties do not describe the measures taken in the attempts to locate Brown.

      . In reviewing claims under Article I, Section 11, we balance three factors to determine the reasonableness of a search or seizure: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the seizure imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs. Litch-field v. State, 824 N.E.2d 356, 361 (Ind.2005). The State asserts, and we agree, that Billings-ley’s argument fails to address the second and third prongs under Article I, Section 11.


author: MATHIAS, Judge.

text:
    James O. YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1112-CR-699.
    Court of Appeals of Indiana.
    Dec. 11, 2012.

      Brian M. Kubicki, Jones Obenchain, LLP, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Following a jury trial in Elkhart Superi- or Court, James Young (“Young”) was found guilty of Class D felony domestic battery in the presence of a child and Class D felony strangulation. Young appeals and argues that (1) the hearsay testimony of two firefighters regarding the victim’s statements to them violated his rights under the Confrontation Clause of the Sixth Amendment of the Constitution of the United States; (2) the hearsay testimony of a police officer regarding the victim’s later statements to her was inadmissible hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment; and (3) there was insufficient evidence to support the convictions and to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense from a Class A misdemeanor to a Class D felony.

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts and Procedural History

On the morning of May 28, 2011, Dulce Gomez (“Gomez”), a friend, visited Young and Blanca Medrano (“Medrano”), at the apartment that they shared. Gomez observed the couple argue and saw Young leave with the couple’s two-year-old child. She did not observe any physical contact between the couple while she was there. She left the apartment around 10:30 a.m.

Around noon, Medrano walked across the street from her apartment to Station 5 of the Elkhart Fire Department. She walked in front of the fire station’s door several times while holding her infant child, and then she sat down on a bench outside and cried. Acting Lieutenant, Michael Hochstetler (“Hochstetler”), approached her to inquire about what was wrong. At first, Medrano did not tell him and continued crying. Hochstetler observed “bruising on her arm and on her neck and an abrasion on her hand.” Tr. p. 184. She then told Hochstetler that her husband had beaten her and left with their other child. Hochstetler asked firefighter, Gene Sanders (“Sanders”), to do a patient assessment and called dispatch for a police officer.

Medrano did not want to go to the hospital; therefore, Sanders checked her vitals and put a bandage on her hand. Sanders observed that Medrano was a petite woman and that she “had some bruising ... a small cut on her right hand ... a bruise on her — on her right side of her face near her chin ... complained of back pain and she had bruising on her neck.” Id. at 201. He also noticed she was distraught, crying, and “seemed to be a little afraid of something.” Id.

For about forty-five minutes before the police arrived, Medrano spoke to Ho-chstetler and Sanders. Medrano spoke limited English and neither Hochstetler nor Sanders spoke Spanish. They had to repeat themselves often and had to ask her to repeat herself to ensure they understood her correctly. Id. at 196. According to Hochstetler, her bruises were from her husband beating her “at their apartment across the street” about “15 minutes ago.” Id. at 185, 188-89, 191. Medrano did not tell Hochstetler where the children were during the incident, and he did not ask her. Id. at 196. She also told him she did not know where Young had gone but said her two-year-old daughter was with Young. Id. Sanders did not recall her “saying that she was upset about [Young] taking the child.” Id. at 211. Hochstetler testified that after roughly forty minutes, Medrano was “getting kind of antsy to leave” and when the police arrived, she “was no longer crying.” Id. at 190.

Corporal Laurie Stuff (“Officer Stuff’) of the Elkhart City Police Department arrived about forty-five minutes after Me-drano came to the fire station. Id. at 192, 247. Officer Stuff noticed that Medrano had “redness to her neck,” a bandage on her right hand, and some bruising. Id. at 234-35. Officer Stuff thought Medrano appeared “upset, she was crying, she seemed scared,” and Medrano told Officer Stuff that “her husband had strangled her” until she could not breathe. Id. at 234, 241.

When Young, accompanied by his two-year-old daughter, pulled up to his and Medrano’s apartment, which was within sight of the fire station, Officer Stuff left the fire station to speak with him. Young told Officer Stuff that he and his wife had gotten into a verbal argument, that she had taken $1000 from him, and that “she was trying to move and take the kids away from him.” Id. at 243. Officer Stuff placed Young under arrest due to Medra-no’s “visible injuries” and Medrano’s statements about being battered by Young. Id. at 244.

As a result of these events, the State charged Young with Class D felony strangulation and Class D felony domestic battery. The domestic battery charge was elevated from a Class A Misdemeanor to a Class D felony based on the State’s allegation that Young had committed the offense in the “physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense.” Ind.Code § 35 — 42-2-1.3(b)(2).

At trial, Medrano did not testify and could not be found. Therefore, over Young’s objections, Hochstetler, Sanders, and Officer Stuff testified in regard to Medrano’s prior statements. At the conclusion of trial, the jury found Young guilty of domestic battery in the presence of a child and guilty of strangulation, both Class D felonies. Young was sentenced to concurrent terms of three years for domestic battery and three years for strangulation. Young now appeals.

I. Admission of Firefighters’ and Police Officer’s Testimony

A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010), trans. denied (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)). An abuse of discretion occurs if the trial court’s decision is “clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.” Boatner v. State, 934 N.E.2d 184,186 (Ind. Ct.App.2010).

A. Medrano’s Statements to the Firefighters as Admissible Excited Utterance

It is axiomatic that the firefighters’ testimony concerning the statements Medra-no made to them is hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801; see also Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (citing Ind. R. Evid. 802). However, hearsay can be admissible under one of several exceptions, including excited utterance. Ind. R. Evid. 803. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” and is not excluded by the hearsay rule. Id. at 803(2). Although Young admits that Medrano’s statements to the firefighters were excited utterances, he argues that, under the facts and circumstances of this case, admission of Medrano’s statements to the firefighters nevertheless violates Young’s constitutional rights under the Sixth Amendment to the U.S. Constitution. We therefore turn to his argument in this regard.

B. The Firefighters’ Testimony Considered under the Confrontation Clause

Young argues that the trial court improperly admitted Medrano’s statements to the firefighters because their primary purpose was to create an out-of-court substitute for trial testimony. The Confrontation Clause of the Sixth Amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” See Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (“We have held that this bedrock procedural guarantee applies to both federal and state prosecutions”); Lehman, 926 N.E.2d at 39. The Confrontation Clause applies to an out-of-court statement if it is testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross-examine the de-clarant. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. The essence of the Sixth Amendment “is to protect against abuses of government officials.” Lehman, 926 N.E.2d at 39 (citing Pendergrass v. State, 913 N.E.2d 703, 706 (Ind.2009)). Neither party contests whether Medrano was unavailable or whether Young had the prior opportunity to cross-examine Medrano.

To determine whether the statements are testimonial, we look at the primary purpose of the interrogation. Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011) (citing Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011)). If the circumstances objectively indicate that “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” then the statements are non-testimonial. Davis v. Washington, 547 U.S. 813, 822, 827, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (holding that the victim’s statements to a 911 operator, while the perpetrator was in the home, were non-testimonial because their primary purpose was to enable police assistance to meet an ongoing emergency). However, if “circumstances objectively indicate” the primary purpose is to “prove past events potentially relevant to later criminal prosecution” then statements are testimonial. Id. While neither Davis nor Bryant addressed to “what extent their holdings extended beyond the context of police interrogation,” we have previously applied this primary purpose inquiry “outside the realm of explicit police questioning!.]” Perry v. State, 956 N.E.2d 41, 53 (Ind.Ct.App.2011) (applying the primary purpose framework to statements made to medical personnel).

In our primary purpose inquiry, one of the most important factors is “the existence of an ongoing emergency!,]” because it “focuses the participants on something other than ‘proving] past events potentially relevant to later criminal prosecution.’” Bryant, 131 S.Ct. at 1157 (quoting Davis, 547 U.S. at 828-30, 126 S.Ct. 2266). Determining whether an emergency exists and is ongoing is a “highly context-dependent inquiry.” Id. at 1158. We consider whether the interrogation is targeted at responding to a call for help where a threat to people is ongoing as compared to an interrogation targeted at establishing past events. See Davis, 547 U.S. at 827, 126 S.Ct. 2266.

An additional factor we consider is the formality and circumstances in which the questioning takes place. “Although formality is not the sole touchstone of our primary purpose inquiry, a statement’s formality or informality can shed light on whether a particular statement has a primary purpose of use at trial.” Turner, 953 N.E.2d at 1055 (citing Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 2721, 180 L.Ed.2d 610 (2011) (Sotomayor, J., concurring)) (internal quotation marks omitted).

We also look at the “statements and actions of both the declarant and interrogators[,]” because they can provide “objective evidence of the primary purpose of the interrogation.” Bryant, 131 S.Ct. at 1160. If questions are targeted at trying to resolve an ongoing emergency as opposed to gathering information about past events, then the responses are less likely to be considered testimonial. See State v. Martin, 885 N.E.2d 18, 21 (Ind.Ct.App.2008) (“[T]he officers’ questions to Brooks sought to resolve the ongoing emergency by establishing Martin’s identity, the type of car he was driving, and his state of mind.”); see also Davis, 547 U.S. at 827, 126 S.Ct. 2266 (2006).

Young argues there was no ongoing emergency when Medrano was questioned by the firefighters, because the injuries were minor, and the questions were not targeted at providing her treatment. He asserts that the questions were targeted at getting information for a criminal prosecution.

In domestic dispute situations, responses to police officers’ initial inquiries may often be, but are not always, non-testimonial, because the officers may need to investigate and identify the people involved in order to assess the situation, the threat to their safety, and the potential danger to the victim. Davis, 547 U.S. at 832, 126 S.Ct. 2266 (2006) (citing Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)). A victim’s medical state can provide “context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.” Bryant, 131 S.Ct. at 1159. We also consider not only whether the threat “to the first victim has been neutralized” but also whether the emergency “threatens the police and public[.]” Id. at 1158. The Supreme Court in Bryant noted that “[d]o-mestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety.” Id. However, even in domestic violence cases, the zone can extend beyond the victim. See Martin, 885 N.E.2d at 21 (holding that even though the declarant was not in danger, “she was experiencing an ongoing emergency because she did not know where her children were and she feared for their safety”).

Here, Medrano arrived at the fire station crying, scared, bruised, with an abrasion on her hand, and holding an infant child. The reasons for Medrano’s physical and emotional state were unknown. Me-drano’s responses to the firefighters’ initial questions showed that Young’s whereabouts were not then known, and that he had taken the couple’s older child with him. Although Sanders testified that he did not recall Medrano being upset about Young taking their child, Medrano told firefighters that Young had beaten her and taken their child, which could reasonably concern the firefighters as to whether the older child was in danger. Thus, as to the issue of whether there was an ongoing emergency, we conclude that the firefighters’ initial inquiries into the situation were proper to assess the situation, to determine the extent of harm Medrano had suffered, and to determine whether the child with Young was at risk. Such inquiries are permissible under Crawford, and we hold that the inquiries at issue were permissible here.

Young next argues that the firefighters’ questioning of Medrano was improper because it was formal in its nature: two firefighters asking Medrano questions at a fire station for forty-five minutes. To determine the level of formality, we look at how the questions were asked, and we look at where and when the “encounter occur[ed] — e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards.” Bryant, 131 S.Ct. at 1156; Martin, 885 N.E.2d at 21 (concluding that there was little formality to the situation because the declarant was questioned while she was hysterical and sitting by the side of the road with “blood all over her face”); of. Crawford, 541 U.S. at 66, 124 S.Ct. 1354 (holding that when the victim calmly responded to questions at the police station with officers often asking leading questions, the statements were testimonial).

Here, the firefighters first encountered Medrano on a bench outside the fire station only fifteen minutes after the incident occurred, and the firefighters were largely focused on treating Medrano’s injuries. Importantly, Medrano had come to the fire station of her own volition. Furthermore, when the firefighters started to ask her questions, Medrano was crying and had bruises on her face and neck. Under these facts and circumstances, we hold that to the extent that the questioning at issue was formal, i.e., on a bench outside a fire station, it was a level of formality commensurate with the nature of Medra-no’s visit, a visit she herself chose to make. We therefore hold that any formality in the firefighters’ questioning of Medrano was of an extremely low level and was invited and created by Medrano herself.

For all of these reasons, we hold that the primary purpose of the firefighters’ questioning of Medrano was to enable public, government assistance to Medrano in an ongoing emergency rather than to prove past events potentially relevant to future criminal prosecution. Therefore, the admission of Medrano’s statements to the firefighters did not violate Young’s confrontation rights under the Sixth Amendment of the U.S. Constitution. See Bryant, 131 S.Ct. at 1155-57; Davis, 547 U.S. at 828-30, 126 S.Ct. 2266; Crawford, 541 U.S. at 59,124 S.Ct. 1354.

C. Medrano’s Statements to Officer Stuff as Excited Utterance

Turning now to a consideration of Me-drano’s statements to Officer Stuff, once again the testimony at issue is hearsay under Indiana Evidence Rule 801. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and it is inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801; see also Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000) (citing Ind. R. Evid. 802).

The State argues that Medrano’s statement was an excited utterance, which is an admissible exception to the hearsay rule. See Ind. R. Evid. 808. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” and is not excluded by the hearsay rule. Ind. R. Evid. 803(2).

To meet the excited utterance exception, three elements must be present: (1) a “startling event or condition” has occurred; (2) the declarant made a statement while “under the stress or excitement caused by the event or condition;” and (3) the statement was “related to the event or condition.” Lawrence v. State, 959 N.E.2d 385, 389 (Ind.Ct.App.2012), trans. denied. This test is not “mechanical” and admissibility turns “on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications.” Sandefur v. State, 945 N.E.2d 785, 788 (Ind.Ct.App.2011) (citing Boatner v. State, 934 N.E.2d 184,185 (Ind. Ct.App.2010) (citations omitted)). “The heart of the inquiry is whether the declar-ant was incapable of thoughtful reflection.” Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct.App.2003).

In this case, neither party contests whether there was a startling event or whether the statement related to the event or condition. As Young argues, the main issue is whether Medrano’s statements to Officer Stuff were “made while the declarant was under the stress or excitement caused by the event or condition[.]” Lawrence, 959 N.E.2d at 389 (Ind. Ct.App.2012) (citing Impson v. State, 721 N.E.2d 1275,1282 (Ind.Ct.App.2000)).

While lapse of time is not dis-positive, if a statement is made long after a startling event, it is usually “less likely to be an excited utteranee[,]” Boatner, 934 N.E.2d at 186, because “[a] long period of time reduces the likelihood that a statement is made without deliberate thought and under the stress of excitement of an event.” Jenkins, 725 N.E.2d at 68. We do not apply a “rigid test of elapsed time” but our supreme court has “found the exception available one half-hour after the ‘startling event’ only under extreme and continuing stress.” Davenport v. State, 749 N.E.2d 1144, 1149 (Ind.2001) (citing Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind.1996)).

Furthermore, an excited utterance can be made in response to a question so long as the statement is unrehearsed and is made under the stress of excitement from the event. Yamobi, 672 N.E.2d at 1346 (“A declaration does not lack spontaneity simply because it was an answer to a question.”); Williams v. State, 782 N.E.2d 1039, 1046 (Ind.Ct.App.2003). In addition, we have considered if the declarant is crying, appears to be under stress, is injured, or is exhibiting other physical or psychological conditions that indicate stress. See e.g., Fowler v. State, 829 N.E.2d 459, 463-64 (Ind.2005) (holding that statements made while the declarant was in pain, crying, bleeding, and having trouble breathing were properly admissible as excited utterances), cert, denied, abrogated on other grounds by Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).

These cases make it clear that, Medrano had to be under “extreme and continuing stress” for the trial court to find Medra-no’s statements to Officer Stuff admissible as an excited utterance. See Davenport, 749 N.E.2d at 1149. Officer Stuff did not speak with Medrano until about an hour after the incident, the firefighters had treated her injuries prior to Officer Stuffs arrival, and even before Officer Stuff arrived, Medrano had stopped crying and was “antsy to leave.” Tr. p. 190. Even though Officer Stuff testified that Medrano was crying when she arrived, it appears, at least for some time prior to her arrival, Medrano had stopped crying. For all these reasons, we conclude that Medrano was not under the “extreme and continuing stress” of the battery at the time of Officer Stuffs arrival; therefore, her statements to Officer Stuff were not admissible as excited utterances.

D. The State’s Claim of Harmless Error

The State then claims that, even if Medrano’s statements to Officer Stuff were improperly admitted as excited utterances, the testimony was cumulative and the error was harmless. This argument fails in the first instance.

Officer Stuffs testimony at trial was not cumulative; rather, it was the only testimony that supported the State’s strangulation charge against Young. See Turner, 958 N.E.2d at 1059 (holding that error is harmless if there is “substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction”). It is axiomatic that improper admission of the only proffered evidence that supports a charge cannot be harmless error. We must therefore reverse Young’s conviction for strangulation, subject, however, to possible retrial. See Stahl v. State, 686 N.E.2d 89 (1997) (“[I]f all the evidence, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charge.”).

II. Sufficiency of the Evidence as to Young’s Domestic Battery Conviction as a Class D Felony

In reviewing a challenge to sufficiency of the evidence, we do not “reweigh the evidence or judge the credibility of the witnesses” rather we respect “ ‘the jury’s exclusive province to weigh conflicting evidence.’” McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind.2001)). We “consider only the probative evidence and reasonable inferences supporting the verdict” and “affirm ‘if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’” Id. (quoting Tobar v. State, 740 N.E.2d 109,111-12 (Ind.2000)).

We concluded above that the firefighters’ testimony was properly admitted, and from their testimony, which included Me-drano’s statements that she had been beaten by Young and their descriptions of the injuries, a reasonable trier of fact could have found Young guilty of Class A misdemeanor domestic battery beyond a reasonable doubt.

However, Young argues that even if the testimony regarding Medrano’s out-of-court statements was properly admitted, it was insufficient evidence to prove that the domestic battery occurred in the presence of a child less than sixteen years of age, thus elevating the crime to a Class D felony. Under Indiana Code section 35-42 — 2—1.3(b)(2), Young had to commit domestic battery “knowing that the child was present and might be able to see or hear the offense.” This does not require the jury to conclude that the child saw the battery, only that the child might be able to see or hear the offense. True v. State, 954 N.E.2d 1105, 1110-11 (Ind.Ct.App. 2011) (“ ‘Presence’ is defined as knowingly being within either the possible sight or hearing of a child.”).

Gomez testified that the children were in the apartment the morning of the incident, but Gomez left, at the very least, a full hour before the incident occurred. Approximately fifteen minutes after the incident, Medrano arrived at the fire station in tears, with her infant child in her arms, claiming that Young had beaten her and taken their other child with him after doing so. However, Hochstetler testified that Medrano did not tell him where the children were when the incident happened and he did not ask her. Tr. p. 196. Thus, while we know the incident occurred “at their apartment,” there was insufficient evidence in the record as to precisely where the incident took place and where the children were during the incident. Id. at 188 (emphasis added). The only evidence as to the location of the incident and of the children during the incident is the vague preposition, “at.” Id. We hold that this evidence is insufficient for the jury to conclude beyond a reasonable doubt that Young committed domestic battery “knowing that the child was present and might be able to see or hear the offense.” Ind. Code § 35-42-2-1.3(b)(2). However, this evidence is sufficient to support the lesser-included offense of Class A misdemeanor domestic battery as a matter of law.

Conclusion

The trial court did not abuse its discretion when it admitted the firefighters’ hearsay testimony of Medrano’s version of the incident. However, admission of Officer Stuffs hearsay testimony was error and could not be harmless error. We therefore reverse Young’s conviction for Class D felony strangulation, subject however to possible retrial. Further, the evidence was insufficient to support Young’s conviction for domestic battery as a Class D felony but sufficient to support the lesser-included charge of Class A misdemeanor domestic battery; therefore, we remand with instructions that judgment of conviction for domestic battery as a Class A misdemeanor be entered against Young and that he be resentenced accordingly.

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

VAIDIK, J., and BARNES, J., concur.

      . Ind.Code § 35-42-2-9(b).

      . Ind.Code § 35-42-2-1.3.

      . We heard oral argument in this case on October 22, 2012, at the Allen County Courthouse in Fort Wayne, Indiana. We extend our thanks to court personnel and to the attending students and guests. We also commend counsel for the quality of their written and oral advocacy.

      . Young also argues that Officer Stuff’s testimony was a violation of the Confrontation Clause of the Sixth Amendment. However, we refrain from addressing a constitutional issue, if we are able to resolve a case on nonconstitutional grounds. See State v. Moore, 909 N.E.2d 1053, 1058 (Ind.Ct.App. 2009) ("It is long established diat a constitutional question unnecessary to a determination of the merits should not be decided.” (quoting State v. Brown, 840 N.E.2d 411, 414 (Ind.Ct.App.2006))).