text:
    Darryl SHEPHERD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1111-CR-600.
    Court of Appeals of Indiana.
    April 8, 2013.

      Valerie K Boots, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

NAJAM, Judge.

On July 8, 2012, we affirmed Shepherd’s conviction for unlawful possession of a firearm by a serious violent felon (“SVF”) and his sentence as an habitual offender in a memorandum decision. On July 31, 2012, the Indiana Supreme Court, in Dye v. State, held that an SVF cannot have his sentence enhanced under the general habitual offender statute. Dye v. State, 972 N.E.2d 853, 855, 858 (Ind.2012). On August 2, 2012, Shepherd filed a petition for rehearing in which he asserted, among other things, that the holding in Dye applied retroactively to his appeal. On August 17, 2012, the State filed- its response to Shepherd’s petition, asking that we hold his petition in - abeyance while the State sought rehearing in Dye.

On March 21, 2013, the Indiana Supreme Court issued its opinion on rehearing in Dye. In its opinion on rehearing, the court clarified that its earlier holding was not. intended to break new ground but, rather, was simply an application of the law announced in Mills v. State, 868 N.E.2d 446 (Ind.2007). Dye v. State, 984 N.E.2d 625, 627-29, 2013 WL 1169670 (Ind. Mar. 21, 2013) (opinion on rehearing). Specifically, the court clarified that an SVF conviction enhanced by an habitual offender adjudication is impermissible only when the same underlying offense, or an underlying offense within the res gestae of another underlying offense, is used to establish both the SVF status and the habitual offender status. Id. at 629-30.

Mills is established law and was available to Shepherd at the time he filed his initial brief on direct appeal, but Shepherd did not argue that Mills or related law applied in his appeal. “[I]t is well established that ‘any question not argued on appeal cannot be raised for the first time in a petition for rehearing.’ ” Carey v. Haddock, 881 N.E.2d 1050, 1050 (Ind.Ct.App.2008) (quoting Brockmann Enters. LLC v. City of New Haven, 868 N.E.2d 1130, 1132 (Ind.Ct.App.2007), trans. denied ), trans. denied. Shepherd’s argument in his petition on rehearing that Mills or related law should be applied to him is waived.

Shepherd’s waiver notwithstanding, our review of the record available on direct appeal demonstrates that his SVF status was based on a 1993 conviction for dealing in cocaine, as a Class B felony, while his habitual offender enhancement was based on a 1991 Class C felony conviction for battery and a 2008 Class D felony conviction for intimidation. There is no reason for this court to believe that any one of those three underlying felonies is in any way related to another.

Accordingly, we grant Shepherd’s petition for rehearing and affirm our prior decision.

RILEY, J„ and DARDEN, Sr.J., concur.

      . Shepherd’s other arguments in his petition for rehearing are without merit, and we do not consider them.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Adam MORRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 14A05-1209-CR-495.
    Court of Appeals of Indiana.
    April 9, 2013.

      J. Dirk Carnahan, Vincennes, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Adam Morris appeals the one-year sentence and order of restitution imposed following his conviction for Class A misdemeanor operating a vehicle while intoxicated (“OWI”). We affirm in part and reverse in part.

Issues

The restated issues before us are:
I. whether Morris’s guilty plea waived his ability to challenge his sentence on direct appeal;
II. whether Morris’s sentence is inappropriate; and
III. whether the trial court properly ordered Morris to pay $14,972.45 in restitution.

Facts

In the early morning of October 4, 2009, Morris was driving an ATV in Daviess County and was involved in an accident with another ATV. Morris’s fiancee, Jennifer Celeste, was riding on the back of Morris’s ATV and had been thrown from it, causing serious head injuries. The first responding officer noticed that Morris smelled of alcohol and had slurred speech, bloodshot eyes, unsteady balance, and poor manual dexterity. Morris agreed to take a portable breath test, which registered an alcohol content of .138. A later blood test indicated Morris had a blood alcohol content of .158. Celeste died from her injuries later in the morning of October 4.

On October 21, 2009, the State charged Morris with Class C felony causing death while operating a vehicle with a blood alcohol equivalent of .08 or more. On July 9, 2012, Morris agreed to plead guilty to the lesser included offense of Class A misdemeanor OWL The plea agreement provided that Morris “shall be sentenced at the discretion of the Court,” but made no mention of restitution. App. p. 33. The agreement also noted certain required terms of probation, including mandatory drug and alcohol testing, although it did not expressly state that Morris would be receiving a term of probation. The agreement further stated that Morris was forfeiting “all grounds for review of any aspect of this case whether by appeal or post-conviction relief’ and that he “knowingly, intelligently, and voluntarily waives her [sic] right to challenge the conviction or sentence on this [sic] basis that it is erroneous.” Id. at 35.

On September 28, 2012, the trial court sentenced Morris to a term of one year, fully executed. It also ordered Morris to pay $14,972.45 to Celeste’s family as restitution related to her funeral expenses. Morris now appeals.

Analysis

I. Waiver

Before turning to the' merits, we address whether Morris’s guilty plea waived the ability to challenge his sentence on direct appeal. It is clear that “a defendant may waive the right to appellate review of his sentence as part of a written plea agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind.2008). A waiver of that kind should be given effect if “ ‘the record clearly demonstrates that it was made knowingly and voluntarily.’ ” Id. (quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir.1999)). The specific waiver that was upheld in Creech stated, “I hereby waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement.” Id. at 74. Other cases following Creech that have found waiver addressed similar statements in plea agreements. See Bowling v. State, 960 N.E.2d 837, 841 (Ind.Ct.App.2012), trans. denied. Still other cases have found waiver where the plea agreement said, “Defendant further waives the right (under Indiana Appellate Rule 7 and I.C. 35-38-1-15 or otherwise) to review of the sentence imposed,” Brattain v. State, 891 N.E.2d 1055, 1057 (Ind.Ct.App.2008), or that the defendant had waived “the right to challenge the ‘reasonableness’ of the Court’s sentence under Appellate Rule 7(B), waived the right to challenge the Court’s findings as to aggravating and mitigating circumstances, and waived the right to challenge the weighing of aggravating and mitigating circumstances,” Buchanan v. State, 956 N.E.2d 124, 125 (Ind.Ct.App.2011).

The purported waiver of the right to appeal in this case was much less clear than the waivers in the above cases. There was, first, a general waiver of appellate review “of any aspect of this case” and a more specific waiver of the ability to challenge an “erroneous” sentence. App. p. 35. In legal terms, an “erroneous” sentence is not the same as an “inappropriate” sentence. An “erroneous” sentence, which may be attacked by a motion to correct erroneous sentence under Indiana Code Section 35-38-1-5, is one that is erroneous “on its face” without reference to proceedings before, during, or after trial. Davis v. State, 937 N.E.2d 8, 10-11 (Ind.Ct.App.2010). Our supreme court has recently observed that “the ‘appropriateness’ of a sentence has no bearing on whether a sentence is erroneous.... ” Kimbrough v. State, 979 N.E.2d 625, 630 (Ind.2012). Even when a trial court has acted within its lawful discretion when imposing sentence, that sentence still may be characterized by an appellate court as “inappropriate” under Indiana Appellate Rule 7(B). Id. at 629.

Plea agreements are contractual in nature, and the general rule is that any ambiguities in such agreements must be construed against the State because the State ordinarily drafts them. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind.Ct.App.2008), trans. denied. We conclude that the purported waiver provisions in the boilerplate plea agreement drafted by the State here are ambiguous as to whether Morris was giving up his right to challenge his sentence as inappropriate under Rule 7(B). As such, we will construe that ambiguity against the State and give Morris .the benefit of the doubt and address the appropriateness of his sentence. We also believe it is clear that any purported waiver could not preclude Morris from challenging a sentencing term that exceeded the scope of the plea agreement, as it would constitute a violation of the agreement itself by the trial court. See id.

II. Appropriateness

Before turning to whether Morris’s sentence is inappropriate, we note that he also alleges that the trial court abused its discretion in sentencing him. However, it is clear that abuse of discretion review of a sentence, which concerns a trial court’s duty to issue a sentencing statement along with its findings of aggravators and miti-gators, has no place in reviewing a- misdemeanor sentence. See Cuyler v. State, 798 N.E.2d 243, 246 (Ind.Ct.App.2003), trans. denied; see also Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007) (stating that post-Blakely revisions to sentencing statutes included sentencing statement requirement “whenever imposing sentence for a felony offense”). We will not further address Morris’s abuse of discretion claims.

We now assess whether Morris’s one-year fully executed sentence is inappropriate under Rule 7(B) in light of his character and the nature of the offense. Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s sentencing decision, we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence' is inappropriate.” Id.

The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those' charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). We “should focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Id. Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed by the trial court in sentencing the defendant, including whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1028, 1025 (Ind.2010).

Regarding the nature of the offense, Morris was involved in a very serious ATV accident while he had a blood alcohol content well above the per se legal limit of .08. The minimum facts necessary to support Morris’s conviction for Class A misdemeanor OWI were that he operated a vehicle while intoxicated in a manner that endangered a person. See Ind.Code § 9-30-5-2(b). Morris’s involvement in a very serious accident went well beyond that minimum.

Morris argues that we should not consider the fact of Celeste’s death as evidence of the egregiousness of the offense, because the State agreed to dismiss the charge of operating with a BAC exceeding .08 resulting in death in exchange for his guilty plea. Morris cites Farmer v. State, 772 N.E.2d 1025, 1027 (Ind.Ct.App.2002), which held that a trial court cannot rely on facts underlying charges that have been dismissed as part of a plea agreement as aggravating circumstances. Our supreme court recently decided Bethea v. State, 983 N.E.2d 1134 (Ind.2013), in which it effectively overruled Farmer and similar cases, such as Roney v. State, 872 N.E.2d 192 (Ind.Ct.App.2007). Rather, the court held that unless a plea agreement expressly forecloses the possibility of the trial court enhancing a sentence based on elements or evidence related to charges dismissed in exchange for the plea, “it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them.” Bethea, 983 N.E.2d at 1145. Here, there was nothing in Morris’s plea agreement that forbid consideration of the undisputed fact that Celeste died as a result of this accident in considering what sentence to impose. As such, we conclude that the severity of the accident, including Celeste’s death, makes this particular offense very egregious, much more so than the “typical” Class A misdemeanor OWI.

Regarding Morris’s character, it is true as he argues that he pled guilty. However, a guilty plea may not be entitled to much weight in considering a sentence if it is clear the decision to plead guilty was merely a pragmatic one because of the weight of the State’s evidence. Rogers v. State, 878 N.E.2d 269, 273 (Ind.Ct.App.2007), trans. denied. Again, there appears to be no doubt here that the ATV accident resulted in Celeste’s death, and Morris received a significant benefit from the plea agreement in the dismissal of the C felony charge in exchange for an A misdemeanor conviction. Morris also has no prior criminal convictions. He was, however, charged for operating a vehicle with a BAC exceeding .15 twice before, in 2008 and 2003. The 2008 charge was dismissed without explanation, and the 2003 charge was dismissed after Morris successfully completed a pre-trial diversion program. Although those charges do not technically constitute a criminal history because they were never reduced to convictions, they still indicate that Morris had twice before been subjected to the police power of the State and was specifically warned of the dangers of OWI but was not deterred from committing the present offense. See Cotto v. State, 829 N.E.2d 520, 526 (Ind.2005). We conclude Morris’s one-year executed sentence is not inappropriate in light of the nature of the offense and his character.

In a related argument, Morris argues that the trial court violated the plea agreement by failing to suspend any portion of his sentence to probation. He notes that the plea agreement makes specific reference to required terms of probation and argues that this necessarily implies that the trial court had to impose a term of probation. We disagree. The listing of required terms of probation clearly was part of a boilerplate plea agreement that would apply in the event the trial court decided to exercise its discretion to impose probation. Regarding that discretion, the plea agreement was very clear in stating that the trial court had unfettered discretion in choosing what sentence to impose. To the extent Morris argues that his guilty plea was involuntary because he was under the impression that the trial court would impose a term of probation, such an argument must be raised, if at all, through a post-conviction relief proceeding and not on direct appeal. See Stringer v. State, 899 N.E.2d 748, 750 (Ind.Ct.App.2009).

III. Restitution

Finally, we address Morris’s challenge to the restitution order of $14,972.45 for Jennifer’s burial expenses. Morris contends there is insufficient evidence to support that order and that it improperly applies to the C felony charge that was dismissed as part of the plea bargain. However, there is a more fundamental problem with that order: the plea agreement was completely silent on whether Morris could be ordered to pay restitution. It is clear that when a plea agreement is silent on the issue of restitution, a trial court may not order the defendant to pay restitution as part of his or her sentence; such an order exceeds the scope of the plea agreement. Sinn v. State, 693 N.E.2d 78, 80 (Ind.Ct.App.1998). Thus, we reverse the order that Morris pay $14,972.45 in restitution.

Conclusion

Although we decline to find that Morris waived his challenge to the appropriateness of his sentence, we find that sentence to be appropriate. However, we reverse the restitution order against him.

Affirmed in part and reversed in part.

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

      . The State acknowledges that the ability to seek post-conviction review of a guilty plea cannot be waived. See Creech v. State, 887 N.E.2d 73, 75-76 (Ind.2008).

      . We need not address whether this waiver could have affected abuse of discretion review of a sentence, given our discussion below.

      . It does not appear that Morris objected before the trial court to there being any award of restitution. However, this court will review the propriety of restitution orders on appeal, even where it was entered without objection by a defendant, because of our duty to correct illegal sentences. Iltzsch v. State, 972 N.E.2d 409, 412 (Ind.Ct.App.2012), summarily aff'd in relevant part, 981 N.E.2d 55, 57 (Ind.2013).


author: RUCKER, Justice.

text:
    UTILITY CENTER, INC. d/b/a Aqua Indiana, Inc., Appellant (Petitioner below), v. CITY OF FORT WAYNE, Indiana, Appellee (Respondent below).
    No. 90S04-1208-PL-450.
    Supreme Court of Indiana.
    April 11, 2013.

      William T. Hopkins, Matthew M. Hoh-man, Barnes & Thornburg LLP, Fort Wayne, IN, Misty Smith Kelley, Baker Donelson Bearman Caldwell & Berkowitz PC, Chattanooga, TN, Attorneys for Appellant.
    Briane M. House, Matthew E. Melton, Norris Choplin Schroeder LLP, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Chapter of the National Association of Water Companies.
    Robert T. Keen, Jr., Larry L. Barnard, Richard Paul Samek, Carson Boxberger LLP, Fort Wayne, IN, Randolph L. Seger, Brian W. Welch, Karl L. Mulvaney, Bing-ham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

At issue in this case is the scope of judicial review where a property owner challenges the compensation awarded for condemnation of its property by a city’s board of public works under an eminent domain statute applicable to cities and towns.

Background and Procedural History

Doing business as Aqua Indiana, Utility Center, Inc. owned and operated certain water and sewer facilities in the City of Fort Wayne. The facilities were divided into two separate geographic areas, the North System and the Aboite System, both of which provided services to customers within and outside the city limits. In 2002 the City — through its Board of Public Works — passed a resolution appropriating and condemning Utility Center’s North System which served approximately 12,000 customers. And in 2003, based on the average of two appraisals, the Board assessed damages in the amount of $17,202,499.50. Then in 2004 based on updated appraisals, the Board assessed damages in the amount of $14,759,500.00. Utility Center challenged the condemnation proceedings alleging that the City failed to follow the proper eminent domain or condemnation statutes. The trial court granted summary judgment in the City’s favor which the Court of Appeals reversed on review. See Util. Ctr., Inc. v. City of Fort Wayne, 834 N.E.2d 686 (Ind.Ct.App.2005). On transfer a majority of this Court affirmed the trial court’s grant of summary judgment, essentially holding that the City was authorized to acquire the North System and did so in accordance with the applicable statute. See Util. Ctr., Inc. v. City of Fort Wayne, 868 N.E.2d 453 (Ind.2007).

After this Court’s June 2007 opinion the Board, in October 2007, reaffirmed its initial resolution appropriating and condemning Utility Center’s North System; and based on another updated appraisal adopted a resolution assessing damages in the amount of $16,910,500.00. Utility Center filed a written remonstrance with the Board challenging the assessment, after which the Board confirmed the resolution.

Utility Center appealed the Board’s decision to the trial court and requested a trial by jury. The City moved to strike this request and also moved for partial judgment on the pleadings on grounds that the trial court was “limited to a review of the record before the City of Fort Wayne Board of Public Works.” Appellant’s App. at 82. The trial court granted the City’s motion to strike the jury trial request as well as the City’s motion for partial judgment on the pleadings. Utility Center sought interlocutory review and the Court of Appeals affirmed the trial court’s judgment. See Util. Ctr., Inc. v. City of Fort Wayne, 960 N.E.2d 824 (Ind.Ct.App.2012). Having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we now reverse the judgment of the trial court.

Discussion

“[T]he power of eminent domain is inherently vested in the State but can be delegated to other entities by the legislature.” Vickery v. City of Carmel, 424 N.E.2d 147, 148 (Ind.Ct.App.1981) (citing Bd. of Comm’rs v. Blue Ribbon Ice Cream & Milk Corp. 231 Ind. 436, 109 N.E.2d 88, 89-90 (1952)). “Exercise of the delegated power consists of two aspects: 1) a specific legislative grant of authority; and 2) a method of procedure, prescribed by the legislature, whereby the authority must be exercised so as to protect the rights of property owners.” Id. (citing Highland Realty. Inc. v. Indianapolis Airport Auth., 182 Ind.App. 439, 395 N.E.2d 1259, 1266 (1979); Blue Ribbon Ice Cream, 109 N.E.2d at 89-90). Further, condemnation proceedings consist of two phases: the legislative determination of the necessity of the taking, and the judicial determination of just compensation for the taking. See Bragg v. Weaver, 251 U.S. 57, 58-59, 40 S.Ct. 62, 64 L.Ed. 135 (1919); Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 37 L.Ed. 463 (1893); Bd. of Aviation Comm’rs of the City of Warsaw v. Kosciusko Cnty. Super. Ct., 430 N.E.2d 754, 755 (Ind.1982).

Indiana Code section 32-24-1 et seq. (“Chapter 1”) sets forth Indiana’s general eminent domain procedure. In short, Chapter 1 proceedings are initiated by a would-be condemnor filing a complaint in the trial court. Ind.Code § 32-24-l-4(a). If the property owner objects to the condemnation and the objection is overruled, then the trial court appoints appraisers to assess the damages or benefits the owner may sustain by reason of the acquisition. I.C. §§ 32 — 24—1—7(c); 32-24-l-8(e). Either party may file exceptions to the appraiser’s report after which the case proceeds to trial and judgment as in civil actions. I.C. § 32-24-1-11.

In this case, the Board exercised its power of eminent domain pursuant to Indiana Code section 32-24-2 et seq. (“Chapter 2”), which sets forth eminent domain procedures for cities and towns. Unlike Chapter 1, under Chapter 2 the proceedings are initiated by a municipal works board which adopts a resolution declaring that the municipality wants to acquire the property, I.C. § 32-24-2-6, and the board assesses the amount of damages due the affected property owners, I.C. § 32-24-2-8. An aggrieved party may remonstrate in writing. I.C. § 32-24-2-10. And once the board makes a final determination, the aggrieved party may “take an appeal” of the assessment by filing “an original complaint” in the trial court. I.C. §§ 32-24-2-10(c), -11(a). In such an appeal, “[t]he court shall rehear the matter of the assessment de novo and confirm, reduce, or increase the assessment.” I.C. § 32-24-2-ll(a).

At stake in this case is what does it mean to say, in the context of a Chapter 2 eminent domain proceeding, that “[t]he court shall rehear the matter of the assessment de novo.” More precisely: What did the Legislature intend in this context? The City argues the trial court is limited to a review of the record before the Board. Utility Center counters the trial court’s review includes a full evidentiary hearing before a jury.

When presented with a question of statutory construction, we first determine “whether the legislature has spoken clearly and unambiguously on the point in question.” Ind. Dept. of Revenue v. Miller Brewing Co., 975 N.E.2d 800, 803 (Ind.2012) (quoting Sloan v. State, 947 N.E.2d 917, 922 (Ind.2011)). “If so, our task is relatively simple: we need not ‘delve into legislative intent’ but must give effect to ‘the plain and ordinary meaning of the language.’ ” Id.

At first blush it would appear that this case is a “no brainer.” In its plain and ordinary sense the meaning of a hearing “de novo” is rather straightforward: “[a] new hearing of a matter, conducted as if the original hearing had not taken place.” Black’s Law Dictionary 789 (9th ed.); see also Uhlir v. Ritz, 255 Ind. 342, 264 N.E.2d 312, 314 (1970) (“[I]n the usual sense of that phrase [de novo] one might envisage a complete retrial of the issues involved.”); Stiller v. LaPorte Hosp., Inc., 570 N.E.2d 99, 108 (Ind.Ct.App.1991) (noting that a “trial de novo” is commonly understood to mean “a proceeding where a reviewing court decides facts anew, reweighs evidence, or substitutes its judgment for that of the fact-finder in the administrative proceeding.”). However, things are not so simple in this case.

In a variety of contexts concerning judicial review of a decision by an administrative body our courts have essentially determined that de novo review does not mean “a new hearing ... as if the original hearing had not taken place.” Black’s Law Dictionary 789 (9th ed.) As the Court of Appeals correctly observed, Indiana appellate courts have repeatedly confirmed the propriety of limited review of administrative decisions. See Util. Ctr., Inc., 960 N.E.2d at 829-30 (citing cases). This Court’s opinion in City of Mishawaka v. Stewart, 261 Ind. 670, 310 N.E.2d 65 (1974), is also instructive. Stewart involved the termination of a firefighter from a city fire department — a decision made by the City’s Board of Public Works and Safety. Pursuant to a statute calling for “de novo review” the firefighter appealed and after an evidentiary hearing the trial court reversed the Board’s decision. The Court of Appeals reversed the trial court’s judgment. On transfer this Court affirmed the trial court’s judgment. Important to our discussion the Court had this to say:

Although the statute recites that the appeal shall be heard by the court de novo, this is not literally true. This has been held to mean, not that the issues at the hearing before the board are heard and determined anew, but rather that new issues are formed and determined.
“[A] review or appeal to the courts from an administrative order or decision. is limited to a consideration of whether or not the order was made in conformity with proper legal procedure, is based upon substantial evidence, and does not violate any constitutional, statutory, or legal principle.”

Id. at 68-69 (quoting State ex rel. Pub. Serv. Comm’n v. Boone Cir. Ct., 236 Ind. 202, 138 N.E.2d 4, 8 (1956)). In short our courts have long held that judicial review of administrative decisions is restrained and limited, even where statutory language suggests otherwise. However, the question remains whether the Legislature intended this limited review under the facts presented here.

We make the following observations. First, condemnation is an exercise of the State’s power of eminent domain. And because statutes of eminent domain are “in derogation of the common law rights to property [they] must be strictly construed, both as to the extent of the power and as to the manner of its exercise.” Cemetery Co. v. Warren Sch. Twp., 236 Ind. 171, 139 N.E.2d 538, 544 (1957) (citing Kinney v. Citizens Water & Light Co. of Greenwood, 173 Ind. 252, 90 N.E. 129, 131 (1909); Westport Stone Co. v. Thomas, 170 Ind. 91, 83 N.E. 617, 617 (1908)). The “rehear de novo” language in the current statute has existed in predecessor statutes since as early as 1905. See Acts 1905, ch. 129, § 102. (“Such appeal may be taken by filing an original complaint. ... Such court shall rehear the matter of such assessment de novo, and confirm, lower or increase the same as may seem just.”). Nothing before us suggests that in the various subsequent reenactments or recodifications of this statute the Legislature intended to change the plain and ordinary meaning of the term. Strictly construing Chapter 2, and absent evidence to the contrary we presume the statutory wording retains its original meaning.

Second, the inviolability of private property has been a central tenet of American life since before this country’s founding. As Justice Story observed, the Fifth Amendment requirement that “just compensation” be paid when private property is taken for public use is

an affirmance of a great doctrine established by the common law for the protection of private property. It is founded'in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen.

Joseph Story, Commentaries on the Constitution of the United States § 933 at 663-64 (1833) (Carolina Academic Press 1987). In fact, the original governing document of what is now Indiana, the Northwest Ordinance of 1787, enshrined this principle even before it was enshrined in the U.S. Constitution. Further, “[w]hile the Takings Clause presupposes that government can take private property without the owner’s consent, the just compensation requirement spreads the cost of condemnations and thus ‘prevents the public from loading upon one individual more than his just share of the burdens of government.’ ” Kelo v. City of New London, 545 U.S. 469, 497, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (O’Connor, J., dissenting) (quoting Monongahela Navigation Co., 148 U.S. at 325, 13 S.Ct. 622); see also Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) (“The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”).

Because the determination of just compensation is a judicial rather than a legislative function, see Weaver, 251 U.S. at 59, 40 S.Ct. 62; Monongahela Navigation Co., 148 U.S. at 327, 13 S.Ct. 622; Bd. of Aviation Comm’rs of the City of Warsaw, 430 N.E.2d at 755, and recognizing the extent to which protecting the ownership of private property is woven into the fabric of our jurisprudence, we are not persuaded the Legislature intended a limited role of the judiciary when declaring that an aggrieved party may “take an appeal” of the compensation awarded by an administrative municipal board and that “[t]he court shall rehear the matter of the assessment de novo.... ” I.C. § 32-24-2-ll(a). Rather we are convinced the opposite is true.

Finally, we note that a municipality has the option of pursuing condemnation proceedings under either the general eminent domain statute — Chapter 1 — or the eminent domain statute for cities and towns— Chapter 2. See Michael v. City of Bloomington, 804 N.E.2d 1225, 1230 (Ind.Ct.App. 2004). We read Chapter 2 as evidencing a legislative intent of merely providing municipalities an alternative and streamlined procedure for taking private property. Among other things this procedure relieves the municipality from the burden of: first making an offer to purchase the property before proceeding to condemn it, see I.C. § 32-24-1-3; filing a complaint in court if the property owner does not agree with the amount of the offer, see I.C. § 32-24-1^1; complying with detailed notice requirements, see I.C. §§ 32-24-1-6 & 7; responding to objections that, among other things, the municipality did not have the right to exercise the power of eminent domain, see I.C. § 32-24-1-8; and possibly being forced to appeal a trial court’s decision sustaining the objection, or responding to the property owner’s appeal in the event the trial court overrules the objection, see id. Further, as we noted earlier in this opinion, under Chapter 1, if the property owner’s objection is overruled, then the trial court appoints appraisers to assess the damages or benefits the owner may sustain by reason of the acquisition. I.C. §§ 32-24-1-7; 32-24-l-8(e). And either party may file exceptions to the appraiser’s report after which “ ‘[t]he cause shall further proceed to issue, trial, and judgment as in civil actions.’ ” I.C. § 32-24-l-ll(a)-(b).

We find it inconsistent that the Legislature would on the one hand provide a municipality the option of short circuiting the detailed procedure for condemnation under Chapter 1, attendant with a full “trial and judgment as in civil actions,” but on the other hand provide for judicial review only of the record before the public works board when the municipality exercises that option.

Conclusion

We conclude that “rehear the matter of the assessment de novo” within the meaning of Indiana Code section 32-24-2-ll(a) contemplates a new hearing with trial and judgment as in all other civil actions. And where a party so requests, a trial by jury. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.

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

      . In 1905, the Indiana Legislature enacted the general eminent domain statute, Acts 1905, ch. 48, §§ 1-12, and the predecessor to the statute at issue here which specifically governs condemnation actions taken by towns and cities, Acts 1905, ch. 129, §§ 97-106. It appears that when the Board brought the instant action in June of 2002, the relevant statutes, as subsequently reenacted, were codified at section 32-11-1-1 et seq. and section 32-11-1.5-1 et seq. of the Code, respectively. They were then recodified effective July 1, 2002. The 2002 recodification had no substantive effect on the law, and we shall refer in this opinion to the 2002 scheme because the parties do so and because the present statute, though subsequently amended in some ways, is similarly numbered.

        . It was on this ground the Court affirmed the trial court’s judgment. The Court concluded that the City Attorney, one of the members of the Board, had a conflict of interest and should not have played a role in the decision terminating the firefighter. See Stewart, 310 N.E.2d at 69.

      . "[N]o man shall be deprived of his liberty or property but by the judgment of his Peers, or the law of the land; and should the public exigencies make it necessary for the common preservation to take any persons property, or to demand his particular services, full compensation shall be made for the same....” Northwest Ordinance of 1787, art. II. The passage of the Northwest Ordinance predated that of the Constitution by two months, and predated the ratification of the Fifth Amendment by over four years. See Robert M. Taylor, ed., The Northwest Ordinance 1787: A Bicentennial Handbook xviii-xix (1987).

      . Although not applicable to the case before us, as amended in 2009 Chapter 2 "applies if the works board of a municipality wants to acquire property for the use of the municipality.... However, this chapter does not apply if a municipality wants to acquire the property of a public utility (as defined in IC 8 — 1—2—1.).” I.C. § 32-24-2-6(a). Because Utility Center is a public utility as defined by statute, the works board today would not have the option of condemning Utility Center’s property under Chapter 2.


author: BAKER, Judge.

text:
    Fredrick Allen LAUX, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 27A04-1205-PC-269.
    Court of Appeals of Indiana.
    Feb. 20, 2013.

      Stephen T. Owens, Public Defender of Indiana, Laura L. Volk, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, the appellant-petitioner, Fredrick Laux, challenges the denial of his petition for post-conviction relief after he was convicted of murdering his wife and receiving a sentence of life without parole (LWOP). Laux claims that his trial counsel was ineffective for failing to: 1) properly question a juror regarding bias; 2) object to alleged victim impact evidence; and 3) object to instances of prosecutorial misconduct. Laux also contends that his trial counsel did not adequately prepare for the penalty phase of the trial. Finally, Laux maintains that his appellate counsel was ineffective for failing to present these alleged errors on direct appeal.

Concluding that Laux has failed to show that he received the ineffective assistance of either trial or appellate counsel, we affirm the denial of Laux’s request for postconviction relief.

FACTS

As set forth in Laux’s direct appeal to our Supreme Court, the facts are as follows:

In June 2001, Heidi Laux separated from her husband Fred Laux, moved with her two daughters from Anderson to Marion, and began divorce proceedings. Soon thereafter, Laux also relocated to Marion, and moved into a house situated less than one mile from Heidi. On November 19, 2001, the divorce became final. On the following Valentine’s Day, February 14, 2002, Laux personally delivered a rose and card to Heidi at her place of work. Heidi gave the rose to a friend, disposed of the card, and told Laux what she did with his offerings. The next day, Heidi and Laux agreed to attend a dance sponsored by Heidi’s employer. Laux had the daughters for weekend visitation and brought them with him to the dance. During the dance, Laux became increasingly suspicious that Heidi was involved with a coworker. Laux left the dance around 8:00, went home, and played cards with his daughters before going to bed. Around 3 a.m. the following morning, Laux awoke and decided to “fix” Heidi. He dressed in two pairs of sweatpants, a sweatshirt, gloves, a hat, and a ski mask. He collected a flashlight and a crowbar and ran to Heidi’s house.
Upon arrival, Laux used the crowbar to pry open a coal chute and gain entrance to Heidi’s house. He entered the basement through the chute and made his way upstairs. Laux proceeded to Heidi’s bedroom, struck her three times with the crowbar, strangled her, and left. She died from her injuries within twenty minutes.
The State charged Laux with murder, felony murder, and burglary resulting in bodily injury. It later requested a sentence of life in prison without parole. After a three-day trial, the jury found Laux guilty on all counts and recommended life in prison without parole. The trial court merged Laux’s murder and felony murder convictions and sentenced him to life in prison without parole for the murder and a consecutive term of twenty years for the burglary.

Laux v. State, 821 N.E.2d 816, 817-18 (Ind.2005).

At the penalty phase of the trial, the State called three witnesses, Drs. George Parker and Velma Atkinson, both of whom interviewed Laux following a motion for evaluations for competency, and Detective Stephen Dorsey. The State used the doctors’ testimony to recount the facts of Laux’s criminal offenses as he had described them during his evaluations. Laux cross-examined the doctors regarding their opinions as to his mental health.

Dr. Parker, a psychiatrist, determined that Laux suffered from “moderately severe major depression” but that the “severe mental disease” did not interfere with Laux’s ability to distinguish between right and wrong. Tr. p. 431-32, 435^1. Dr. Atkinson, a psychologist, found no evidence of mental disease but diagnosed Laux with anti-social personality disorder. Dr. Atkinson also noted that, at the timé of the offense, Laux was cognizant of distinguishing between right and wrong.

Laux testified and called the following witnesses: his priest, Father Richard Wiesenberger and Cathy Cole, who attended the same church and was one of his daughter’s kindergarten teachers. Both witnesses testified about how Laux was a devoted Catholic, father, and husband, and his beliefs about divorce under Catholicism. Laux testified about the details of his actions and thoughts before, during, and after the murder. He also introduced evidence of his lack of criminal history, his employment history, being a. graduate of Purdue University, and obtaining a new job to move closer to his children.

At the conclusion of the penalty phase, the jury found beyond a reasonable doubt that Laux murdered Heidi while he was committing burglary. The jury also found that the aggravating factors outweighed any proffered mitigators. As a result, the jury recommended a sentence of LWOP. The trial court ultimately sentenced Laux according to the recommendation of the jury. Laux was also ordered not to contact his children or his wife’s family.

On direct appeal, Laux asserted that: 1) that Indiana’s death penalty statute was unconstitutional because the jury need not find all elements of the alleged crime; 2) the inclusion of the order precluding him from having contact with his children or the victim’s family was improper; 3) his convictions for both murder and felony murder violated double jeopardy principles; 4) his consecutive sentence for burglary after it was the aggravating circumstance for LWOP violated double jeopardy principles; 5) the trial court failed to assign appropriate weight to his lack of criminal history; and 6) his sentence was inappropriate. Laux, 821 N.E.2d at 818-23. In a 3-2 decision, our Supreme Court vacated the no-contact order, but affirmed the trial court in all other respects. Id. at 823.

On May 11, 2011, Laux filed an amended petition for post post-conviction relief, claiming that his trial counsel was ineffective for: 1) failing to properly question a juror to reveal potential bias; 2) failing to object to alleged victim impact evidence/testimony; 3) failing to object to alleged irrelevant and prejudicial evidence; 4) admitting during closing argument that the State had proven its statutory aggra-vator in the penalty phase allegedly without Laux’s consent; 5) failing to adequately prepare and investigate prior to the penalty phase of the trial; 6) admitting evidence of anti-social personality disorder; 7) failing to adequately cross-examine the mental health experts and to provide them with sufficient material to render an accurate diagnosis; 8) failing to object to testimony that did not relate to the statutory aggravator; and 9) failing to object when the trial court informed the jury they may be sequestered at the conclusion of the penalty phase but not because they were in danger.

Laux also maintained that his appellate counsel was ineffective for failing to raise the issues on appeal that his trial counsel did not raise pursuant to the fundamental error doctrine.

At the post-conviction hearing, Laux presented testimony from his trial and appellate counsel, a juror, Dr. Parker, Laux’s sister, and a former co-worker. Laux’s coworker and sister testified about Laux’s positive traits, his childhood, and demean- or throughout the divorce.

The juror testified that she was harassed by a man who requested that she alter his pants. The harassment led to three acts of battery. Although the man believed that they were in a steady relationship, the juror denied this and further testified that the man raped her once but that she did not report it to the police. However, the juror unequivocally testified that she had no pre-conceived notions about Laux and that her verdict was based solely on the evidence presented and not on any prior incident.

Dr. Parker reaffirmed his diagnosis that Laux suffered only from major depression and criticized Dr. Atkinson’s opinion that Laux suffered from antisocial disorder. Dr. Atkinson was unable to testify because she had died on November 19, 2004.

Laux’s trial counsel testified that this was his first LWOP case and that to prepare, he read material from the Public Defender Council regarding those types of cases. Trial counsel also testified that his preparation for the penalty phase “was essentially similar to preparing for a sentencing hearing in a normal case.” Tr. p. 13, 31-32. However, the record demonstrates that prior to trial, Laux’s trial counsel initiated proceedings for mental evaluations. Those evaluations were discussed, through testimony, during the penalty phase on cross-examination by counsel. The evidence also established that trial counsel reviewed the physicians’ reports prior to the penalty phase and that he spoke to Dr. Atkinson before she talked to Laux and before Dr. Atkinson testified.

Laux’s appellate counsel could not remember whether, or how, any alleged victim impact evidence was presented at Laux’s trial, and therefore could not recall why he did not present such an argument. Laux’s counsel on appeal also could not remember any evidence of non-statutory aggravators that were presented during the penalty phase. However, Laux’s appellate counsel was able to discuss the reasons for pursuing the claims that were raised in his brief, including his arguments regarding the inappropriateness of Laux’s sentence.

Following a hearing, the post-conviction court issued findings of facts and conclusions of law denying Laux’s request for relief. It was determined that neither Laux’s trial counsel nor his appellate counsel was ineffective. Laux now appeals.

DISCUSSION AND DECISION

I. Standard of Review — Post-Conviction Relief

In reviewing the judgment of a post-conviction court, we consider only the evidence and reasonable inferences that support the judgment. Conner v. State, 711 N.E.2d 1238, 1245 (Ind.1999). The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite of that reached by the post-conviction court. Graves v. State, 823 N.E.2d 1193, 1197 (Ind.2005).

Where, as here, the post-conviction court enters findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule (1)(6), we will reverse only upon a showing of clear error— that which leaves us with a definite and firm conviction that a mistake has been made. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000). Only where the evidence is without conflict and leads to but one conclusion, and the postconviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law. Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998).

II. Laux’s Claims-Inejfective Assistance of Counsel

Laux claims that the post-conviction court erred in denying his request for relief because he established that both his trial counsel and appellate counsel were ineffective. More particularly, Laux argues that his trial counsel was ineffective for failing to: 1) challenge a juror for cause; 2) object to victim impact evidence; and 3) adequately prepare for, and present, mitigating evidence at the penalty phase. Laux also asserts that his appellate counsel was ineffective for failing to present the same issues on appeal that his trial counsel allegedly neglected to raise.

A. Standard of Review

We review claims of ineffective assistance of counsel under the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bieghler v. State, 690 N.E.2d 188, 192 (Ind.1997). The same standard applies to claims of ineffective assistance of both trial and appellate counsel. Id.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show that his counsel’s performance fell below an objective standard of reasonableness as determined by prevailing norms, and that the lack of reasonable representation prejudiced him. Randolph v. State, 802 N.E.2d 1008, 1013 (Ind.Ct.App.2004). To satisfy the first prong, the petitioner must show that counsel’s performance was deficient in that counsel’s representation fell below an objective standard of reasonableness and that counsel committed errors so serious that petitioner did not have the “counsel” guaranteed by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind.2006). To establish prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Pruitt v. State, 903 N.E.2d 899, 906 (Ind.2009).

Under this standard, judicial scrutiny of counsel’s performance must be highly deferential, and there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Bieghler, 690 N.E.2d at 192. Counsel is afforded considerable discretion in choosing strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at 1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id.

Ineffective assistance of appellate counsel claims fall into three categories: 1) denial of access to an appeal; 2) waiver of issues; and 3) failure to present issues well. Id. at 193-95. To prevail on a claim regarding appellate counsel’s failure to raise an issue, the first prong of the Strickland test requires Laux to show from the information available in the trial record or otherwise known to appellate counsel that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy. Carter v. State, 929 N.E.2d 1276, 1278 (Ind.2010). We “consider the totality of an attorney’s performance to determine whether the client received constitutionally adequate assistance.” Bieghler, 690 N.E.2d at 194.

Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal. Reed, 856 N.E.2d at 1196. One reason for this is that the decision about what issues to raise is one of the most important strategic decisions to be made by appellate counsel. Id.

Finally, we note that the two prongs of the test under Strickland are separate and independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we may determine the prejudice prong first without inquiring into whether counsel’s performance was adequate. Thacker v. State, 715 N.E.2d 1281, 1284 (Ind.Ct.App.1999).

B. Fair and Impartial Juror

Laux contends that his trial counsel was ineffective for failing to adequately question a juror regarding her life experiences that were similar to the charges that had been brought against him. Laux maintains that had the juror been adequately questioned, she would have been struck from the panel for cause because she had been a victim of rape, assault, and stalking.

We note that Article 1, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution guarantee a defendant the right to an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 526-28, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Joyner v. State, 736 N.E.2d 232, 238 (Ind.2000). These constitutional guarantees are satisfied when the jury is capable and willing to decide the case solely on the evidence before it. Leach v. State, 699 N.E.2d 641, 642 (Ind.1998).

The function of voir dire is to ascertain whether a prospective juror can render a fair and impartial verdict in accordance with the law and the evidence. Zachary v. State, 469 N.E.2d 744, 747 (Ind.1984). Generally, proof that a juror was biased against the defendant or lied during voir dire entitles a defendant to a new trial. Warner v. State, 773 N.E.2d 239, 246 (Ind.2002).

In support of his claim, Laux relies primarily on State v. Dye, 784 N.E.2d 469 (Ind.2003). In Dye:

Gunn [the juror at issue] twice answered “no” [in her questionnaire], to the question of whether she or any member of her family had ever been a victim of a crime. However, in the post-conviction hearing, she testified that she had been raped by her uncle when she was two or three years old, but that her uncle had not been prosecuted. She also testified that she still thinks about the rape, and, although she did not reveal the crime on her juror questionnaire because she has “tried to forget it,” she thought about her experience during the trial.
In the present case, while the defendant’s convictions did not include rape, evidence was presented at his trial that one of the victims was found laying partially undressed in a position highly suggestive of sexual assault, and a semen-stained washcloth was found near her body. Noting that the State did not charge that the victim was murdered in the course of a sexual assault, the post-conviction court nevertheless found that “a reasonable inference of sexual activity could be drawn from the evidence.”

Id. at 474-75.

The juror in Dye also concealed in her juror questionnaire and during voir dire, her and her family’s criminal histories and her predisposition to impose the death penalty upon a conviction for intentional murder. Id. Based on the juror’s deceit and evidence on the record that she was indeed biased, the post-conviction court found that the juror committed gross misconduct and reversed Dye’s convictions on three counts of murder and sentence of death. Our Supreme Court affirmed. Id.

The rationale in Dye does not apply in these circumstances. First, at no point did the juror intentionally deceive the court or the parties as did the juror in Dye. Second, the juror was unequivocal throughout voir dire and at the post-conviction hearing that her past experiences did not affect her ability to render a fair and impartial sentence and verdict. Tr. p. 90, 109. Thus, the post-conviction court properly found that “no credible evidence exist[ed] that [the juror] was ... biased.” Appellant’s App. p. 158.

Indeed, the record indicates that the juror was objective and competent. She was open to all arguments and evidence and prepared to follow the law as the trial court would instruct. The questionnaire, voir dire, and the juror’s testimony all support this conclusion. Id. at 58, 90, 101, 109. The record does not show any valid bases to support a challenge for cause.

Finally, we note that the juror’s circumstances were not even superficially similar to that of Heidi’s. The juror was subjected to harassment from a past customer with which she had no domestic relationship. Tr. p. 58. Her victimization occurred essentially out of happenstance.

In contrast, Heidi was a victim of her ex-husband. The complete dissimilarity in the circumstances of the acts, coupled with the juror’s unequivocal and non-wavering impartiality, demonstrates her lack of bias and the- accompanying lack of prejudice to Laux.

In sum, Laux falls far short of showing that the juror was biased, impliedly or otherwise. Thus, Laux cannot show that counsel was ineffective with regard to this claim.

C. Trial Counsel’s Decision Not to Object to Background Witness Testimony

Laux also contends that his trial counsel’s decision not to object to alleged victim impact and non-statutory aggravation evidence during the guilt phase of the trial constituted' ineffective assistance of counsel. Laux points to several instances in the State’s case-in-chief during the guilt phase where evidence was allegedly admitted improperly and without objection.

First, Laux argues that his trial counsel should have objected to the testimony from the victim’s mother that described where Heidi grew up, her education and employment, and where Heidi met and married Laux. While Laux’s counsel did object to the introduction of such evidence, the State asserted that it was merely preliminary information and asked the court for leeway. In response, the trial court permitted the State to “briefly finish in [that] area,” and overruled the objection. Tr. p. 36. Laux’s counsel also objected to the mother’s testimony regarding Heidi’s religious beliefs, reasons for the victim’s trips to see her mother, and her scheduled gall bladder surgery approximately a week before she was murdered. In response, the prosecutor maintained that the victim’s physical condition, just days before the murder, was relevant. The trial court overruled that objection as well. Id. at 41.

Second, Laux argues that counsel should have objected to the introduction of a photo of Heidi and their children. Tr. p. 45-47. However, Laux’s counsel did object to the introduction of individual photographs of the children as irrelevant and the trial court sustained that objection. Id. at 47.

Third, Laux argues that his trial counsel should have objected to the testimony of Ruthann Curtis, one of Heidi’s co-workers, regarding the services provided by their employer, Heidi’s position at the company, the activities they engaged in outside of work, and the admission of the last known photograph of Heidi while she was alive that was taken on the night of the murder. Laux’s counsel objected not once, but six times, throughout Curtis’s testimony raising claims of irrelevancy and hearsay.

Fourth, Laux contends that his counsel should have objected to the testimony of Sybil Kay, Heidi’s co-worker, regarding her testimony that detailed Heidi’s whereabouts immediately after her employer’s sponsored dance only hours before she was murdered.

Fifth, Laux contends that counsel should have objected to the testimony of Shawn Fulton, one of Heidi’s clients at her place of business, and one of the people she drove home from the dance just hours before her murder. Specifically, Laux argues that counsel should have objected to Fulton’s testimony as to how Heidi’s employment responsibilities led them to meet and interact with each other.

Sixth, Laux argues that counsel should have objected to the testimony of William Barnes, Heidi’s co-worker, the person who found her dead. Specifically, Laux maintains that testimony as to how Barnes and Heidi met and how they interacted with each other and co-workers should not have been admitted into evidence.

Seventh, Laux argues that counsel should have objected to the introduction of a photograph of Heidi’s kitchen and a table which showed items that the children had made. The photographs were introduced through Detective Robin Young, who explained the layout of Heidi’s house that Laux had broken into in the early morning.

Eighth, Laux asserts that trial counsel should have objected to the State’s closing argument in the guilt phase when it stated that Heidi’s hands were “only meant to care and give” and during rebuttal in the guilt phase where the State noted that Laux “violated the law and it was against the peace and dignity of the State of Indiana. Against the peace and dignity of Heidi....” Tr. p. 381, 400.

Finally, Laux argues that his counsel should have objected to the State’s penalty phase closing argument when the State asked, “what is appropriate for Heidi and what she went through?” Id. at 572. Laux also asserts that counsel should have objected to the State’s penalty phase rebuttal closing argument where it averred that he was not responsible after he had just offered to the jury testimony about how he was a devoted father.

In resolving the issues that Laux presents, we note that during the penalty phase of an LWOP case, the evidence must be confined to the charged statutory aggravators set forth in Indiana Code section 35-50-2-9. In this case, the aggravator at issue was whether Laux intentionally killed the victim while committing burglary. Appellant’s App. p. 32. “[W]hen the death sentence is sought, courts must ... limit the aggravating circumstances eligible for consideration to those specified in the death penalty statute. The same is true for a sentence of life without parole.” Cooper v. State, 854 N.E.2d 831, 840 (Ind.2006).

Victim impact testimony is not admissible in the sentencing phase of a capital trial if that testimony is irrelevant to the alleged aggravating factor. Bivins v. State, 642 N.E.2d 928 956 (Ind.1994). Generally, victim impact evidence is evidence that demonstrates the consequences suffered by a victim or a victim’s family as a result of a crime. Holmes v. State, 671 N.E.2d 841, 848 (Ind.1996), reh’g denied, cert. denied, 522 U.S. 849, 118 S.Ct. 137, 139 L.Ed.2d 85, abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675 (Ind.2009). Error in the receipt of victim impact evidence is subject to harmless error analysis. Bivins, 642 N.E.2d at 956-57.

In this case, eight of the nine claims of ineffectiveness revolve around evidence that was introduced during the guilt phase. As noted above, the Bivins restriction precluding evidence of non-statutory aggravation applies to the penalty phase and not the guilt phase.

We agree with the post-conviction court’s determination that the evidence cited by Laux was “taken out of context” and “[a]t worst, [it] merely filled in the background for other testimony of a particular witness.” Appellant’s App. p. 159. The evidence in question revealed background information as to how the witnesses and the victim became acquainted and how they interacted, or it set up a foundation to inform the jury of victim’s whereabouts the night of the murder. In short, this is not evidence that “demonstrates the consequences suffered by a victim or a victim’s family as a result of a crime.” Holmes, 671 N.E.2d at 848.

Also, we cannot say that the evidence was victim impact evidence considered by the jury in non-statutory aggravation. The trial court expressly admonished the jury through its penalty phase instructions that it may only consider the charged statutory aggravator as weighing in favor in LWOP. Thus, we cannot say that trial counsel was ineffective for failing to object to evidence that was never used as Laux contends. Consequently, it was irrelevant that Laux questioned trial counsel regarding his knowledge of LWOP penalty phases and that he probably did not know that victim impact evidence and other non-statutory aggravation evidence were inadmissible in LWOP cases. Tr. p. 31-32.

It is worth noting that Laux’s post-conviction counsel ceased the inquiry of trial counsel with that question. More particularly, Laux’s post-conviction counsel never asked Laux specific questions regarding each claim Laux now claims on appeal that trial counsel should have objected to as victim impact and/or non-statutory aggravation evidence. Without evidence of Laux’s trial counsel’s thought process with respect to each claim of error, the presumption of effectiveness must stand. Harrington, supra. Simply put, Laux has failed to sustain his burden.

Also, with regard to the penalty phase, we note that the State properly moved to have all the evidence from the guilt phase admitted at the penalty phase, as Indiana Code section 35-50-2-9(d) permits. However, the jury was properly instructed that it could only consider the charged aggravator as weighing in favor of an LWOP sentence. Tr. p. 479.

The jury is presumed to follow the trial court’s instructions and not law recited by counsel during arguments. See Chandler v. State, 581 N.E.2d 1233, 1237 (Ind.1991) (observing that it is presumed that a jury will obey a trial court’s instructions); Hudgins v. State, 451 N.E.2d 1087, 1091 (Ind.1983) (holding that “[a]ny misstatements of law during closing argument are presumed cured by final instruction”). Thus, contrary to Laux’s assertion, the entirety of the evidence to which his counsel chose not to object was not before the jury during the penalty phase. Put another way, non-statutory aggravation evidence and victim impact evidence was not before the jury because the trial court gave an instruction which admonished the jury from considering such evidence. As a result, Laux has failed to demonstrate that his counsel was deficient with respect to these claims or how he suffered prejudice. Thus, Laux’s contentions of ineffective assistance of trial counsel fails on this basis.

D. Not Objecting to Alleged Prosecutorial Misconduct

Laux next contends that his trial counsel was ineffective because the deputy prosecutor repeatedly offered inadmissible evidence throughout the trial. Laux argues that he was placed in a position of grave peril by the deputy prosecutor’s improper introduction of extensive evidence about the victim during trial. Appellant’s Br. p. 31.

In resolving this issue, we note that to prevail on an ineffective assistance of counsel claim because of prosecutorial misconduct, a post-conviction relief petitioner must first establish that prosecutorial misconduct in fact occurred. Pruitt v. State, 903 N.E.2d 899, 928 (Ind.2009). When reviewing a properly preserved claim of prosecutorial misconduct, it must be determined 1) whether the prosecutor engaged in misconduct, and if so, 2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected. Baer v. State, 866 N.E.2d 752, 756 (Ind.2007). Whether a prosecutor’s actions constitute misconduct is measured by reference to case law and the Rules of Professional Conduct. Cooper, 854 N.E.2d at 835. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. Baer, 866 N.E.2d at 756. With regard to the penalty phase, we inquire whether the prosecutor has sought the penalty on some basis other than that the mitigating factors are outweighed by the aggravating factors. Cooper, 854 N.E.2d at 841.

In this case, we agree that the post-conviction court correctly found that “the allegations made by the Petitioner claiming the prosecutor committed misconduct are, at best, meritless. The Petitioner cites to no authority that any evidence introduced or arguments made by the prosecutor constituted misconduct. None of the prosecutor’s conduct referred to by Petitioner ‘infected the trial with unfairness.’ ” Appellant’s App. p. 159-60.

Again, the evidence to which Laux directs us was never utilized as victim impact evidence or a non-statutory aggravator. After the State properly moved for its inclusion in the penalty phase, the trial court expressly admonished the jury through its penalty phase instructions that it may only consider the charged statutory aggravator as weighing in favor of LWOP. Appellant’s App. p. 118, 188. Thus, contrary to Laux’s assertion, the entirety of the evidence presented by the prosecution in the guilt phase was not before the jury during the penalty phase. That said, Laux has failed to demonstrate either that his ■counsel was deficient for choosing not to raise a claim of alleged prosecutorial misconduct that had no merit or how he was prejudiced by that choice.

E. Trial Counsel’s Preparation and Presentation for Penalty Phase

Laux contends that his counsel was ineffective for failing to: 1) conduct an adequate investigation into Laux’s background and behavior; 2) provide the court-appointed experts with adequate information; 3), present all readily-available mitigating evidence; and 4) rebut inaccurate mental health testimony. Laux contends that had defense counsel presented all of the mitigating evidence to the jury and rebutted the inaccurate evidence it received, there is a reasonable probability the jury would not have recommended a sentence of LWOP.

In resolving this issue, we note that our Supreme Court has determined:

[Fjailure to investigate and present mitigating evidence could constitute ineffective assistance of counsel, warranting the vacation of a death sentence. That is not to say that counsel is required to present all available mitigation evidence. Counsel may make strategic judgments not to present certain types of mitigating evidence. Timberlake v. State, 690 N.E.2d 248, 261 (Ind.1997) (“As a matter of trial strategy, a defense counsel in a capital case may decide what is the best argument to present during the penalty phase.”). However, the strategic choice not to present mitigating evidence made after less than complete investigation may give rise to an ineffective assistance of counsel claim for failure to investigate.

Ritchie v. State, 875 N.E.2d 706, 719 (Ind.2007). However, “[w]ith the benefit of hindsight, a defendant can always' point to some rock left unturned to argue counsel should have investigated further.” Id. “The benchmark for judging any claim of inéffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that it deprived the defendant of a fair trial.” Id,

While Laux’s trial counsel acknowledged at the post-conviction hearing.that this was his first LWOP case and that he prepared for the penalty phase in an “essentially similar” manner to any other sentencing hearing, his testimony and the circumstances of the case demonstrate that he made important inquires and decisions about the penalty phase at the outset of the case and presented an objectively reasonable case. Tr. p. 13. “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Wentz v. State, 766 N.E.2d 351, 361 (Ind.2002).

Prior to the penalty phase, Laux’s trial counsel reviewed LWOP materials prepared by the Public Defender Council. And during the penalty phase, Laux’s trial counsel called two lay character witnesses, in addition to Laux, to discuss Laux’s lack of criminal history, his mental instability shortly before the murder, and his traits as a devoted father, Catholic, and husband, in an effort to gain sympáthy from the jury. Tr. p. 479-562. Although Laux’s trial counsel could not remember his precise thought process at the post-conviction hearing, he recalled reviewing the reports of Drs. Parker and Atkinson, speaking with Dr. Atkinson before her testimony prior to sentencing to determine whether their examinations would prove useful. Id. at 14-15. He thoroughly cross-examined both doctors as to their diagnoses of Laux. Tr. p. 20-21. Thus, Laux’s trial counsel presented a penalty phase case in which the jury saw a defendant who was emotionally drained from a divorce with the woman he still loved, accepted responsibility for his actions, was suffering from mental defects, had an acute momentary lapse of reason, genuinely regretted his actions, had no prior criminal history, was educated, had a strong work ethic, and had been a devoted father, Catholic, and husband. Id. at 479-562. As the post-conviction court found, trial counsel’s approach in this matter was not deficient. Appellant’s App. p. 160.

Nevertheless, Laux contends that his trial counsel’s failure to present certain evidence during the penalty phase prejudiced him. At the post-conviction hearing, Laux’s counsel called two lay character witnesses and Dr. Parker. Tr. p. 76, 82, 102. This testimony involved Laux’s work habits while at one job, and his difficult childhood. Id. at 76-81, 82-101. Laux contends that the absence of lay testimony recounting his difficult childhood was prejudicial and constituted deficient performance. Appellant’s Br. p. 35-86.

First, the evidence presented through Laux’s sister was not mitigating. In Ritchie, 875 N.E.2d at 725, our Supreme Court noted that it has consistently held that evidence of a difficult childhood warrants little, if any, mitigating weight. Here, the evidence of Laux’s childhood and background fail to show so much as significant hardship. Laux’s sister testified that Laux’s father was an alcoholic but quit drinking at some point, and that “money was real tight” when they were young, yet they always had food on the table. Tr. p. 89, 91. Laux’s mother was diagnosed with paranoid schizophrenia later in life, which Laux disclosed to Dr. Parker when he interviewed him before trial. Id. at 94, 118. However, there is no evidence that Laux was ever a victim of abuse or neglect and despite his “difficult childhood,” he was never in trouble, excelled in both high school and college, and secured consistent employment where he performed his duties satisfactorily. Id. at 78-80, 83, 94, 98-101. In our view, such family anecdotes have little, if any, mitigating value.

We also note that trial counsel’s testimony that he was unable to remember certain aspects of the case in preparing for the penalty phase is less significant than what the record shows as to how he presented the penalty phase case. Recently, the Supreme Court of the United States has reiterated that trial counsel does not need to expressly state or recall his own strategic motivations for decisions in post-judgment testimony:

Although courts may not indulge “post hoc rationalization” for counsel’s deci-sionmaking that contradicts' the available evidence of counsel’s actions, [Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ], neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a “strong presumption” that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam). After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind. 466 U.S., at 688, 104 S.Ct. 2052.

Harrington, 131 S.Ct. at 790. Trial counsel’s focus on Laux’s mental health, devotion to his faith, and children was a reasonable tactic to employ considering the de minimis value of the proffered childhood testimony. Accordingly, trial counsel was not deficient nor was Laux prejudiced due to the absence of childhood evidence of little, if any, value.

1. Providing Necessary Information to Experts

In a related issue with respect to his trial counsel’s preparation, Laux argues that because his counsel did not interview Laux’s sister and co-worker, he could not provide the necessary background information to the mental health professionals. As a result, Laux argues that he is entitled to post-conviction relief on this basis.

In support of this contention, Laux relies on Prowell v. State, 741 N.E.2d 704 (Ind.2001). In Prowell, the circumstances demonstrated that the defendant’s trial counsel, in a capital case, waited after the defendant pleaded guilty, three weeks after the date of the original sentencing hearing, and three weeks before the postponed sentencing hearing before seeking a mental health expert. Because of the time constraints brought on by counsel’s procrastination, the expert was unable to properly interview the defendant under normal conditions or at any length. Id. at 711. It was further established that the expert could not establish a relationship necessary to elicit information or collect the full range of records and information from collateral sources necessary for a proper diagnosis. Id. Our Supreme Court held, among other things, that trial counsel was ineffective because of the inaction in securing a mental health expert in a timely manner.

Unlike the circumstances in Prowell, over three months before trial, Laux’s trial counsel moved the trial court to appoint two to three board certified experts to evaluate Laux in anticipation of possible defenses and his competency. Contrary to Laux’s assertion, a review of Dr. Atkinson’s evaluation reveals that she was aware of essentially all of what Laux’s sister testified to at the post-conviction hearing. Dr. Atkinson was aware that Laux’s father was an alcoholic, that the finances of the family were strained, and that his mother was a paranoid schizophrenic. She was also aware of Laux’s educational success, his employment history, his close relationship with his siblings, his hobbies, health, including a previous diagnosis of bipolar disorder, and his marriage history. Appellant’s App. p. 159-70. Moreover, Dr. Parker’s evaluation reflects the same childhood background and work ethic that Laux claims was not before the experts. Dr. Parker’s evaluation recited Laux’s work ethic, his success in school, his father’s alcoholism, the poor financial condition of the family, Laux’s challenging childhood, his mother’s paranoid schizophrenia diagnosis in addition to an aunt with the same diagnosis, his relationship history, plus additional background information. Id. at 171-78. Dr. Parker also testified that he was satisfied with his time with Laux to render a diagnosis. Tr. p. 118. These evaluations lasted three hours and two hours, respectively, and were properly conducted as clinical examinations. Id. at 159, 171, 452. The record demonstrates that the experts possessed the information Laux claims was excluded by counsel. Accordingly, the rationale set forth in Prowell is inapplicable. As properly found by the post-conviction court, Laux cannot prevail on his ineffective assistance of counsel argument on this basis.

2. Anti-Social Personality Diagnosis

Laux next contends that his trial counsel was ineffective for failing to challenge Dr. Atkinson’s opinion that Laux’s personality-disorder rendered him deceitful, manipulative, and narcissistic. Laux contends that because there was credible evidence that this diagnosis was not accurate, these traits should have been challenged, and trial counsel was ineffective for failing to do so.

It was not until post-conviction, nine years after Laux’s conviction, that Dr. Parker criticized the late Dr. Atkinson’s diagnosis, which she was unable to defend because of her untimely death. Tr. p. 101, 104-26. Dr. Parker testified that one cannot diagnose antisocial personality disorder without a history of conduct disorder as a juvenile. Id. at 107. Conduct disorder, according to Dr. Parker, would include evidence of a pervasive pattern of lying, cheating, and manipulating.

In sum, Dr. Parker simply does not agree with Dr. Atkinson’s diagnosis. It is also important to note that Dr. Atkinson stated that she was suspicious that Laux might have been malingering. Appellant’s App. p. 166. Dr. Parker did not take that concern into account. Dr. Atkinson’s report was also as thorough as her testimony. Tr. p. 363-414.

It was ultimately up to the jury to decide which, if any, expert to believe, because the fact finder is entitled to weigh and determine the credibility of the expert’s opinion based on the evidence presented, including the extent of the witness’s experience and expertise, the reliability of the analytical methods employed, and the degree of certitude with which the opinion is cast. Strong v. State, 538 N.E.2d 924, 931 (Ind.1989). The finder of fact may also supplant its own conclusion for that of the expert. Id.

Both doctors opined that despite then-diagnoses, Laux was competent at all times and responsible for his actions. It is therefore unclear how any of the doctors’ testimony, whatever diagnosis was found, would have reduced Laux’s culpability or benefited him in any way. In any event, Laux’s claim that it was error for trial counsel to ask Dr. Atkinson on cross-examination what her findings were because she had found that Laux suffered from an anti-social personality disorder is unavailing.

Trial counsel’s pursuit of mental health evidence to support his mitigation was sound strategy. In essence, trial counsel had three options: 1) question neither expert and leave the jury with the belief that Laux was mentally stable and murdered Heidi just because he was angry; 2) question Dr. Parker and provide the jury with just one diagnosis; or 3) question both doctors and provide, not one, but two diagnoses to further persuade the jury that it was his mental instability that caused him to murder Heidi and, therefore, that he was deserving of mitigation. In our view, trial counsel chose the third option, which was the most reasonable under the circumstances. Laux’s contention to the contrary is unsupported and without merit.

In sum, we conclude, that Laux was provided effective representation of counsel at the penalty phase. Moreover, Laux merely restates his claims about the ineffectiveness of trial counsel and alleges that appellate counsel was ineffective for not raising the issues on appeal under the doctrine fundamental error. Appellant’s Br. p. 42-45. As the postconviction court properly found, because trial counsel was not deficient and/or that any deficiency was not prejudicial, appellate counsel was not deficient for failing to raise Laux’s alleged claims of error on appeal. In other words, Laux does not demonstrate how the result of his direct appeal would have been different had these issues been raised. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Therefore, it cannot be said that 'Laux’s appellate counsel was ineffective. As a result,.the post-conviction court properly denied Laux’s request for relief.

The judgment of the post-conviction court is affirmed.

RILEY, J., and BARNES, J., concur.

      . Laux filed his initial petition for post-conviction relief on March 15, 2005.


author: MAY, Judge.

text:
    Joshua KING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1204-CR-351.
    Court of Appeals of Indiana.
    Feb. 22, 2013.

      Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Joshua King appeals his convictions of Class C felony battery, Class A misdemeanor battery, and Class D felony strangulation. He submits four issues for our review, which we consolidate and restate as:

1. Whether the trial court violated King’s rights under the Confrontation Clause when it admitted testimony by Officer Philip Rossman;
2. Whether the trial court abused its discretion when it admitted recordings of calls King made to the victim from jail; and
8. Whether the trial court erroneously listed one of King’s convictions as a Class C felony instead of a Class A misdemeanor.

We affirm and remand.

FACTS AND PROCEDURAL HISTORY

At approximately noon on January 30, 2012, C.M. ran into the leasing office of her apartment complex and told the assistant manager, Karmen Carpenter, that she had been attacked by King, the father of her child. C.M. was crying, had injuries to her face, neck, and wrist, and said her child was still with King in her apartment. Carpenter called 911, and Officer Philip Rossman arrived at the leasing office. Still visibly shaken, C.M. told Officer Ross-man what happened, and he went to C.M.’s apartment to speak to King and retrieve C.M.’s child. When he arrived at the apartment, he discovered King leaving the apartment with the child. Officer Ross-man asked King to sit down in the apartment and he returned the child to C.M. C.M. was taken to the hospital and Officer Rossman arrested King.

At the hospital, Nurse Patrisha Anderson examined C.M., who told Anderson she and King had argued about money, and then King had pushed her down the hallway, knelt on her with his knee in her spine, and attempted to strangle her. When C.M. briefly escaped his grasp, King picked up a television and threw it against the wall. He then reengaged C.M. in the physical altercation. As King and C.M. fought, C.M. fell over the television. King squeezed C.M.’s stomach and, knowing she was pregnant, told her she was not going to have the baby. C.M. was then able to flee to the leasing office.

The State charged King with two counts of Class C felony battery and one count of Class D felony strangulation. While in the Marion County Jail, King called C.M. at least twice and discussed the details of the crime. The trial court found King guilty of Class C felony battery, Class A misdemeanor battery as a lesser included' offense of the second count of Class C felony battery, and Class D felony strangulation. It sentenced him to four years, with two years to be served on work release and two years suspended to probation.

DISCUSSION AND DECISION

1. Confrontation Clause

We review the trial court’s decision regarding admissibility of evidence for an abuse of discretion. Lindsey v. State, 916 N.E.2d 230, 238 (Ind.Ct.App.2009), trans. denied. Thus, we reverse only if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id. We will not reweigh evidence, and we consider any conflicting evidence in favor of the trial court’s ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

Errors in the admission or exclusion of evidence are to be to be disregarded as harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Hardin v. State, 611 N.E.2d 123, 131 (Ind.1993). In a bench trial, Berry v. State, 725 N.E.2d 939, 943 (Ind.Ct.App.2000) (internal citations omitted).

the harm from any evidentiary error is lessened. In bench trials, we presume that the court disregarded inadmissible evidence and rendered its decision solely on the basis of relevant and probative evidence. Any harm from evidentiary error is lessened, if not completely annulled, when the trial is by the court sitting without a jury. Also, any error in the admission of evidence which is merely cumulative of evidence properly admitted is harmless.

The Confrontation Clause, embodied in the Sixth Amendment to the United States Constitution, provides that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Indiana Constitution extends a similar guarantee. See Ind. Const., Art. 1, § 13(a) (“In all criminal prosecutions, the accused shall have the right to ... meet the witnesses face to face[.] ”). The Confrontation Clause prohibits the admission of an out-of-court statement if it is testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). C.M. did not testify at King’s trial. King argues testimony given by Officer Rossman regarding what C.M. told him was testimonial, and therefore its admission violated the Confrontation Clause. We disagree.

To determine whether a statement is testimonial, we look at the primary purpose of the conversation. Turner v. State, 953 N.E.2d 1039, 1055 (Ind.2011). If the circumstances indicate the purpose of the interrogation is “to enable police assistance to meet an ongoing emergency,” then the statements are considered non-testimonial and not subject to the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). However, if circumstances indicate the primary purpose of the conversation is to “prove past events potentially relevant to later criminal prosecution,” then the statements are considered testimonial and protected by the Confrontation Clause. Id.

When determining the nature of the statement, we consider:

(1) whether the declarant was describing events “as they were actually happening” or past events; (2) whether the declarant was facing an ongoing emergency; (3) whether the nature of what was asked and answered was such that the elicited statements were necessary to be able to resolve the present emergency rather than simply to learn about past events; and (4) the level of formality of the interview.

State v. Martin, 885 N.E.2d 18, 20 (Ind.Ct.App.2008).

Police investigation of domestic violence involves a unique set of circumstances:

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 [v. Washington, 547 U.S. 813,] 832 [126 S.Ct. 2266, 165 L.Ed.2d 224] (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)) However, even in domestic violence cases, the zone [of danger] 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”).

Young v. State, 980 N.E.2d 412, 419 (Ind.Ct.App.2012).

Officer Rossman arrived at the leasing office two or three minutes after Carpenter’s 911 call. He observed “swelling and redness” around C.M.’s right eye and “red marks” around her throat. (Tr. at 7.) C.M. was “upset and crying.” (Id.) She identified • her attacker as King, and indicated King had her eleven-month-old son with him and she was concerned for the child’s safety. Based on C.M.’s demeanor, the proximity in time to the infliction of her injuries, and the immediate possibility of danger to her child, we hold C.M.’s statements to Officer Rossman were non-testimonial and therefore admissible. See Martin, 885 N.E.2d at 21 (holding victim’s statements to police to be non-testimonial because victim was injured and concerned for the welfare of her children, who was in the custody of her attacker).

2. Jailhouse Phone Calls

During trial, the State introduced, over Kong’s objection, a recording of two phone conversations King had with C.M. from jail. During these recordings, King and C.M. discussed the details of the crime. King argues the calls were inadmissible hearsay. We disagree.

Generally, recordings of telephone calls made from jail are admissible when the defendant discusses the crime for which he is incarcerated. Baer v. State, 866 N.E.2d 752, 762 (Ind.2007), reh’g denied. The detective investigating the incident testified King and C.M. “talked about the incident, the disturbance that [the detective] was investigating.” (Tr. at 121.) Because King discussed the crime for which he was incarcerated during the calls, the trial court did not abuse its discretion when it admitted the calls into evidence. See Baer, 866 N.E.2d at 762.

3. Abstract of Judgment

King argues, and the State concedes, the Abstract of Judgment erroneously lists King’s second count of battery as a Class C felony instead of as a Class A misdemeanor. During trial the court stated King’s conviction was of Class A misdemeanor battery and, in accordance therewith, the court pronounced a one-year sentence for that crime. Compare Ind.Code § 35-50-2-6 (sentence for Class C felony is two to eight years) with Ind.Code § 35-50-3-2 (sentence for Class A misdemeanor shall be not more than one year). Therefore, we remand for correction of the Abstract of Judgment to accurately reflect King’s second battery conviction is a Class A misdemeanor.

CONCLUSION

The trial court did not abuse its discretion when it admitted Officer Rossman’s testimony. Further, any error in admission of evidence from Carpenter and Nurse Anderson was harmless as cumulative of Officer Rossman’s testimony. Finally, the trial court did not abuse its discretion when it admitted the recordings of calls King made to C.M. from jail. However, the Abstract of Judgment incorrectly lists King’s second battery conviction as a Class C felony, and we remand for correction of the Abstract of Judgment.

Affirmed and remanded.

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

      .Ind.Code § 35-42-2-l(a)(8).

      .Ind.Code § 35-42-2-l(a)(l).

      .Ind.Code § 35-42-2-9.

      . King argues the trial court abused its discretion when it admitted Carpenter’s testimony regarding what C.M. told her about King’s attack because the statements were inadmissible hearsay. King also argues the trial court abused its discretion when it admitted statements and medical records from C.M.’s visit with Nurse Patrisha Anderson in the emergency room following the attack. Any possible error in the admission of that evidence was, as most, harmless because the testimony of Carpenter and Nurse Anderson was cumulative of Officer Rossman’s testimony, which was properly admitted. See Cole v. State, 970 N.E.2d 779, 784 (Ind.Ct.App.2012) (admission of hearsay is not grounds for reversal where it is merely cumulative of other evidence admitted).