author: FRIEDLANDER, Judge. BARNES, Judge,

text:
    Kathleen K. PETERINK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 57A03-1112-CR-586.
    Court of Appeals of Indiana.
    July 27, 2012.

      Jill M. Acklin, Acklin Law Office, LLC, Westfield, IN, Attorney for Appellant.
    Gregory P. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Kathleen Peterink pleaded guilty to Possession of Marijuana as a class A misdemeanor and was subsequently sentenced to one year imprisonment suspended to probation, which was to include six months on home detention. Peterink challenges the sentence imposed, presenting two issues for our review:

1. Is the sentence imposed contrary to Ind.Code Ann. § 35-50-3-1 (West, Westlaw current through legislation effective May 31, 2012)?
2. Is a defendant serving time on home detention as part of probation entitled to good time credit?

We reverse and remand.

A probation search of Peterink’s home in July 2010 turned up marijuana in an amount less than thirty grams. As a result of the discovery, Peterink was charged with Count I, possession of cocaine or narcotic drug as a class D felony, and Count II, possession of marijuana as a class A misdemeanor. On September 6, 2011, Pet-erink pleaded guilty to Count II and the State dismissed Count I. On November 1, 2011, the trial court sentenced Peterink as follows: “The Defendant shall be imprisoned in the Noble County Jail for a period of 1 year, all of which is suspended. The suspended portion of the Defendant’s sentence shall be served on probation under the terms attached hereto and made a part hereof.” Appellant’s Appendix at 42. A special condition of probation was that Pet-erink serve six months of home detention for which she was to receive “no good time credit.” Id. at 45.

On November 23, 2011, Peterink’s trial counsel filed a Motion to Correct Errors challenging the sentence imposed. The trial court held a hearing on the motion on December 16, 2011, at the conclusion of which the court denied the motion. Peter-ink now appeals.

1.

Peterink argues that the trial court erred by sentencing her in excess of the statutory maximum. Peterink pleaded guilty to a class A misdemeanor for which the maximum sentence is not to exceed one year. I.C. § 35-50-3-2 (West, West-law current through legislation effective May 31, 2012). During the sentencing hearing, the trial court pronounced the sentence as follows:

In the FD-246 case I will sentence the Defendant to one year at the Noble County Jail, that will be all suspended, you shall serve one year on probation subject to the Court’s standard terms and conditions of probation including the requirement that she serves 6 months of that probation on electronically monitored home detention.

Transcript at 45. According to Peterink, because the court sentenced her to one year (albeit that the sentence was suspended), the trial court violated I.C. § 35-50-3-2 when it sentenced her to an additional year of probation. Peterink cites this court’s decision in Jennings v. State, 956 N.E.2d 203 (Ind.Ct.App.2011), trans. pending, as support for her argument that the sentence imposed exceeds the statutory maximum for a class A misdemeanor. The State does not challenge Peterink’s reliance upon Jennings, but rather asks that we revisit the issue addressed by the Jennings court with regard to misdemean- or sentencing.

Although a trial court may suspend any part of a sentence for a misdemeanor and “place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year ... the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.” I.C. § 35-50-3-l(b). As noted by the Jennings court, we have before held that for purposes of I.C. § 35-50-3-l(b), the “term of imprisonment” includes both the executed and suspended portions of a sentence. Jennings v. State, 956 N.E.2d at 206 (citing Collins v. State, 835 N.E.2d 1010 (Ind.Ct.App.2005)). Thus, as in Jennings, here, the trial court sentenced Peterink in excess of the statutory maximum (i.e., one year) when it sentenced her to a one-year suspended sentence and one year of probation. While we recognize that there is a split among the judges of this court regarding the interpretation of I.C. § 35-50-3-1, we decline the State’s request to revisit the Jennings decision. We therefore reverse the sentence imposed by the trial court and remand for resentencing.

2.

Although we have reversed the sentence imposed, we nevertheless address the second issue presented by Peterink to explain an additional error made by the trial court in sentencing Peterink. Peter-ink argues that the condition of her probation that her time on home detention was ordered to be without good-time credit contravenes statutory authority. Peterink maintains that I.C. §§ 35-50-6-6 and 35-38-2.5-5 (West, Westlaw current through legislation effective May 31, 2012), “when read together, logically lead to the conclusion that probationers on home detention may receive ‘good time credit.’” Appellant’s Brief at 7. The State agrees that Peterink is entitled to good-time credit.

I.C. § 35-50-6-6 provides, in pertinent part, “Except as set forth under IC 35-38-2.5.-5, a person does not earn credit time while on parole or probation.” Subsection (e) of I.C. § 35-38-2.5-5 provides, “A person confined on home detention as a condition of probation earns credit for time served.” We note that I.C. § 35-50-6-6 speaks in terms of credit time while I.C. § 35-38-2.5-5 provides that a person “earns credit” for time served on home detention. An ambiguity therefore exists as to whether I.C. § 35-38-2.5-5 permits a person confined on home detention as a condition of probation to earn “good-time credit.” “It is a cardinal rule of criminal justice, however, that penal statutes are to be strictly construed against the State and that ambiguities therein are to be resolved in favor of the accused.” Pennington v. State, 426 N.E.2d 408, 410 (Ind.1981). Here, the State concedes that Peterink is entitled to good-time credit and we think a fair reading of the statutes taken together leads to that result. The trial court’s order to the contrary is reversed. The trial court is instructed to amend its sentencing order to allow for credit time.

Judgment reversed and remanded for resentencing.

MAY, J., concurs.

BARNES, J., concurs in part and dissents in part.

BARNES, Judge,

concurring in part and dissenting in part.

I concur in part two of the majority opinion but respectfully dissent from part one. I do not agree with the holding in the Jennings case cited by the majority, at least to the extent it holds that for purposes of determining whether a misdemeanor sentence exceeds the one-year limitation found in Indiana Code Section 35-50-3-1 (b), a sentence such as the one here that orders a term of one year suspended, to be served on probation, is actually the equivalent of a two-year sentence.

In Smith v. State, 621 N.E.2d 325 (Ind.1993), a trial court sentenced a misde-meanant to a term of 110 days executed to be followed by one year of probation. At the time, Section 35-50-3-1(b) was unclear as to whether such a sentence was illegal, but our supreme court held that it was. Id. at 326. The court held “that a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction of a misdemeanor.” Id. Section 35—50—3—1(b) was amended in 2001 to, in my view, effectively codify Smith by adding the following language: “the combined term of imprisonment and probation for á misdemeanor may not exceed one (1) year.” I think that additional language clearly signaled the legislature’s intent.

The Smith opinion also stated, “fundamental sentencing guidelines with respect to treatment of felonies likewise apply to misdemeanors.” Id. The court further agreed with Judge Barteau’s dissenting opinion from this court’s decision in Smith, wherein she observed, “ ‘[t]he trial court has the option, in sentencing a class A misdemeanant, to suspend the sentence in whole or in part and to place the defendant on probation, so long as the combination of the executed sentence and the probationary period do not exceed the maximum statutory sentence for that offense.’ ” Id. (quoting Smith v. State, 610 N.E.2d 265, 272 (Ind.Ct.App.1993) (Barteau, J., dissenting)).

Given our supreme court’s agreement with what Judge Barteau said and considering that the same principles of sentencing apply to both felonies and misdemeanors, I do not believe that a sentence of one year suspended, to be served on probation, is equivalent to a two-year sentence. It would fundamentally disrupt the sentencing practices of trial courts to say, for example, that a sentence for a Class B felony that consisted of fifteen total years, with ten suspended to be served on probation, was equivalent to a twenty-five year sentence, in excess of the statutory maximum for a Class B felony. See I.C. § 35-50-2-5. Certainly, no appellate case that has reviewed the propriety of a defendant’s felony sentence, and there are a vast number of them, has ever reached such a conclusion. I also agree with the State’s contention that a suspended sentence without a probationary term accompanying it lacks any “mechanism by which to secure good behavior: there would be no possibility of the suspended portion ever being executed, because there is no probation to govern conduct, or, if conduct is not in keeping with its terms, to be revoked.” Appellee’s Br. p. 7.

In sum, I would not follow the Jennings holding. As such, I believe the sentence here of one year suspended, to be served on probation, is legal.

      . Ind.Code Ann. § 35-48-4-11 (West, West-law current through legislation effective May 31, 2012).

      . I should point out that I recently concurred in another case, Tumbleson v. State, No. 90A02-1107-CR-613, 2012 WL 172873 (Ind.Ct.App. Jan. 20, 2012), which the State also is seeking transfer on, along with Jennings. However, Tumbleson presented a straightforward violation of Smith, because the defendant was sentenced to an executed term of six months, followed by one year of probation, resulting in a one-and-a-half year total sentence. Tumbleson, slip op. at 3. Moreover, the State conceded before this court that the trial court had erred in sentencing the defendant, in violation of Smith.

      . When reviewing a sentence for appropriateness under Indiana Appellate Rule 7(B), an appellate court 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 and ordered to be served on probation. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010). However, I have never seen any indication that courts should consider a sentence suspended to probation as equaling twice the length of the suspension. If anything, such a suspension is viewed as less punitive than an executed sentence of the same length. See Jenkins v. State, 909 N.E.2d 1080, 1084-85 (Ind.Ct.App.2009), trans. denied.


source: Caselaw Access Project

author: BARTEAU, Senior Judge.

license: Public Domain

text:
    Donald Gregory HULS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 64A04-1110-CR-552.
    Court of Appeals of Indiana.
    Aug. 6, 2012.

      Scott King, Woodward, Buis, Blaskovich & King, LLP, Merrillville, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Ian McLean, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Donald Gregory Huls appeals his two convictions of criminal recklessness, one as a Class C felony and one as a Class D felony. Ind.Code § 35-42-2-2 (2006). We affirm.

ISSUES

Huls raises three issues, which we restate as:

I. Whether Huls was entitled to a mistrial based on his claim of prosecuto-rial misconduct.
II. Whether the trial court abused its discretion by rejecting Huls’ proposed jury instructions on self-defense and mistake of fact.
III. Whether the State provided sufficient evidence to rebut Huls’ claim of self-defense.

FACTS AND PROCEDURAL HISTORY

On the night of June 14, 2009, four teenagers, A.M., E.M., C.M., and J.G., were at a party at a friend’s house in Valparaiso, Indiana. At around midnight, they decided to walk to a convenience store for snacks. It was dark, the neighborhood was not well-lit, and the teenagers were unfamiliar with the area. As they walked along Highway 80, they passed a wooded area with heavy underbrush. Suddenly, the teenagers heard someone shout, “Hey,” which was followed by a gunshot. Tr. p. 132. They sought cover in the woods. More shots were fired in their direction, and A.M. was shot in the right leg. Some of the teenagers heard a man shout, “Get the f* *k out of here.” Id. at 173. At that point, CM. shouted, ‘We’re getting out of here. We’re going. Stop shooting.” Id. However, their assailant continued shooting. The teenagers returned to Highway 30, with two of them carrying A.M., and called 911.

The police arrived at the scene shortly afterwards. However, they had been dispatched in response to a 911 call by Huls, whose property overlooked and included a portion of the wooded area. Huls had told the 911 dispatcher that he had shot at people who were trying to break into his house. A.M. was taken to the hospital, and the officers took the other three teenagers into custody. Next, the officers went to Huls’ house, where he told the officers he had been unloading his recreational vehicle when he heard noises in the woods and opened fire with his pistol. Huls acknowledged hearing someone asking him to stop shooting because they were leaving, and he told the officers that in response he fired more bullets until his clip was empty, reloaded his gun, and fired additional bullets. He then went inside and called 911. Huls stated that he never saw who was in the woods because it was dark. The police recovered fourteen shell casings at Huls’ property.

The State charged Huls with two counts of criminal recklessness and one count of pointing a firearm at another person, a Class D felony, Ind.Code § 35-47-4-3 (1995).

At trial, Huls called expert witness Steven Michael Neese to testify. Neese had prepared a diagram of Huls’ property-showing the pattern of Huls’ gunshots. During direct examination, Huls attempted to ask Neese if Neese’s testimony was consistent with Huls’ statement to the police, and the State objected because Neese had not read the statement. When Huls attempted to show Neese a copy of Huls’ statement, the following discussion occurred:

[Huls]: Okay. You’re looking at State’s Exhibit No. 25(A), recorded statement of Donald Gregory Huls taken by the Porter County Sheriffs Department, 15th day of June 2009.
[State]: Judge, I’m going to object to this because the defendant is here to testify. He can’t now learn—
[Huls]: Objection, Your Honor. Leave to approach the bench?
The Court: Yes, you may.
(Bench conference held.)
[Huls]: Judge, I move for mistrial. I move for mistrial.

Tr. pp. 528-29. During a subsequent discussion outside the presence of the jury, Huls asserted that the State had improperly commented on his failure to testify, but he did not request an admonishment, stating that “no curative instruction, the case law is clear, can unring that bell.” Id. at 529-30. Later in the discussion, the trial judge stated, “I don’t think a curative instruction would help at all. In fact, it will just draw attention to it.” Id. at 533. The trial court took the motion for mistrial under advisement and continued with the presentation of evidence. The trial court denied Huls’ motion after the jury retired to deliberate. The jury found Huls guilty of both counts of criminal recklessness but not guilty of pointing a firearm. The trial court sentenced Huls accordingly, and this appeal followed.

DISCUSSION AND DECISION

I. REQUEST FOR MISTRIAL

Huls claims that at trial, the prosecutor improperly commented upon his failure to testify in violation of his privileges against self-incrimination under the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution. The State responds that Huls waived this claim for appellate review. The State further argues that if the claim is not waived, the prosecutor’s comment did not place Huls in a position of grave peril.

It is well established that when an improper statement is alleged to have been made, failure to request an admonishment or to move for mistrial results in waiver of the claim for appellate review. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind.2004). The State contends that Huls waived his challenge to the prosecutor’s comment because Huls moved for a mistrial but did not request an admonishment. We disagree. Huls’ motion for mistrial sufficiently articulated to the trial court Huls’ challenge to the prosecutor’s comment. Furthermore, the trial court agreed with Huls that an admonishment would not have helped. Thus, Huls’ claim is preserved for our review. Cf. id. (determining that Dumas’ claim of prosecutorial misconduct was waived because Dumas neither requested an admonishment nor moved for mistrial).

Turning to the merits of Huls’ claim, the denial of a motion for mistrial lies within the sound discretion of the trial court, and this Court reviews only for abuse of that discretion. Lucio v. State, 907 N.E.2d 1008, 1010 (Ind.2009). A mistrial is an extreme remedy and should be granted only when no other action will remedy the situation. Id. at 1010-11. The trial judge is in the best position to gauge the surrounding circumstances and the impact on the jury when deciding whether a mistrial is appropriate. Oliver v. State, 755 N.E.2d 582, 585 (Ind.2001).

In reviewing a claim of prosecu-torial misconduct, we determine whether the prosecutor engaged in misconduct and, if so, whether the misconduct, under the circumstances, placed the defendant in a position of grave peril to which he or she should not have been subjected. Brown v. State, 912 N.E.2d 881, 899 (Ind.Ct.App.2009), trans. denied. The gravity of peril turns on the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. Id. A defendant’s privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.2001).

In this case, during Huls’ presentation of his case-in-chief, the State objected to Huls’ attempt to show his expert witness a copy of his statement to police, noting: “I’m going to object to this because the defendant is here to testify.” Tr. p. 528. The prosecutor’s statement was a clear reference to Huls’ availability to testify. However, the statement was isolated in nature, and it does not appear that the prosecutor was deliberately attempting to prejudice the jury to deprive Huls of a fair trial. See Watkins v. State, 766 N.E.2d 18, 26 (Ind.Ct.App.2002) (determining that a prosecutor’s comments during closing arguments that Watkins had failed to present evidence did not have a probable persuasive impact on the jury because the comments were not intended to improperly influence the jury), trans. denied.

Huls asserts that the prosecutor’s comment prejudiced him because he had initially cooperated with investigators, and the prosecutor’s reference to Huls’ failure to testify at trial “created even more of an invitation for the jury to infer guilt by Mr. Huls’ silence.” Appellant’s Reply Br. p. 3. We disagree. Here, there is no dispute that Huls shot at the teenagers and that one of his shots struck A.M. in the leg. Huls argued that he acted to defend himself and his property, but the evidence at trial demonstrated that the teenagers were not on Huls’ property and were not the aggressors. Furthermore, Huls opened fire without identifying his target, and he continued to fire even after the teenagers shouted to him that they were leaving. In light of this evidence, we conclude that the prosecutor’s isolated comment did not have a probable persuasive effect on the jury and did not place Huls in grave peril. See Redmon v. State, 734 N.E.2d 1088, 1093 (Ind.Ct.App.2000) (determining that the prosecutor’s comment during closing arguments on Redmon’s failure to provide evidence to dispute the charge of marijuana possession did not have a probable persuasive effect on the jury in light of the other evidence against Redmon). Therefore, the trial court did not err by denying Huls’ motion for mistrial.

II. PROPOSED JURY INSTRUCTIONS

Huls argues that the trial court erred by rejecting two instructions he tendered on his claim of self-defense and one instruction he tendered on the defense of mistake of fact. The State contends that Huls’ proposed instructions were flawed and that the trial court’s instructions were adequate.

The manner of instructing the jury lies largely within the sound discretion of the trial court, and we review the trial court’s decision only for abuse of that discretion. Boney v. State, 880 N.E.2d 279, 293 (Ind.Ct.App.2008), trans. denied. In reviewing a trial court’s decision to give or refuse tendered jury instructions, the appellate court considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Corbett v. State, 764 N.E.2d 622, 629 (Ind.2002).

In this case, Huls tendered several instructions on self-defense. His Tendered Final Instruction Number 3 (“Instruction 3”) provides:

Because the defendant has raised the defense of legal authority, particularly self-defense; defense of others and defense of property adjoining his dwelling, the burden is now on the State of Indiana to negate the presence of one or more of the necessary elements of those defenses beyond a reasonable doubt.
The questions concerning the existence of the imminent use of unlawful force; the unlawful entry upon the Defendant’s property; the necessity or apparent necessity of using force, as well as the amount of force necessary to repel an attack or terminate the unlawful entry upon the Defendant’s property, can only be determined from the standpoint of the Defendant at the time and under all existing circumstances. In using force to protect person or property, the Defendant ordinarily is required to act immediately, without time to deliberate and investigate. In such circumstances, the danger which exists only in appearance is as real and imminent to him as if it were actual.
The important question is: Was the danger actual to the Defendant’s comprehension? It is not whether an injury or unlawful entry of property was actually intended by the assailants, but whether it presented a danger from the Defendant’s point of view under the circumstances.

Appellant’s App. p. 65. The trial court rejected this instruction because it did not think the instruction reflected “the absolute state of the law.” Tr. p. 567. Huls’ Tendered Final Instruction Number 4 (“Instruction 4”) provides,

Actual danger is not necessary to justify self-defense. The question of the existence of such danger, the necessity or apparent necessity to act, and the amount of force necessary to resist a perceived attack can only be determined from the standpoint of the accused under all of the circumstances existing at the time. If a person is confronted by an appearance of danger which arouses in his mind an honest conviction that he is about to suffer death or great bodily harm, and if a reasonable person in the same situation, knowing the same facts, would be justified in believing himself in danger, then the accused’s right of self-defense is the same whether the danger is real or not. A person may use the force reasonably necessary to resist an attack or apparent attack. He will not be accountable for an error in judgment as to the amount of force necessary provided he acted reasonably and honestly.

Appellant’s App. p. 66. The trial court rejected this instruction because it concluded it was covered by other instructions, and the court did not “believe that the person’s mindset can be a defense to reckless conduct.” Tr. p. 571.

Our Supreme Court has determined that a claim of self-defense “includes both subjective and objective components.” Littler v. State, 871 N.E.2d 276, 279 (Ind.2007). Specifically, one must demonstrate a “subjective belief that force was necessary to prevent serious bodily injury [ ] and that such actual belief was one that a reasonable person would have under the circumstances.” Id. Here, Huls’ Instruction 3 and Instruction 4 unduly emphasized that the validity of the use of force in self-defense “can only be determined from the standpoint of the accused” without also instructing them to equally consider whether Huls’ belief was objectively reasonable under the circumstances. Therefore, his proposed instructions incorrectly stated the law on self-defense, and the trial court did not abuse its discretion by refusing them.

Huls also tendered a proposed jury instruction on the defense of mistake of fact, which provided:

It is a defense that the defendant was reasonably mistaken about a matter of fact if that mistake caused the defendant to commit the offense with which he is charged. The state has the burden of proving beyond a reasonable doubt that the defendant was not reasonably mistaken.

Appellant’s App. p. 67. The trial court refused this instruction without explanation.

A defendant is entitled to an instruction on any defense which has some foundation in the evidence. Potter v. State, 684 N.E.2d 1127, 1135 (Ind.1997). In determining whether the evidence required an instruction upon a defense of mistake of fact, we consider whether the evidence relevant to it, if believed, could have created a reasonable doubt in the jury’s mind that the accused had acted with the requisite mental state. Stoner v. State, 442 N.E.2d 983, 985 (Ind.1982).

Huls argues that he was entitled to a mistake of fact instruction because he presented evidence that he believed someone was on his property and was coming toward him. Although this evidence was presented to the jury, it could not have created a reasonable doubt as to whether Huls acted recklessly, the minimum level of culpability required for the offense of criminal recklessness. See Ind.Code § 35^12-2-2. A person engages in conduct recklessly if he or she engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. Ind.Code § 35-41-2-2 (1977). It is not an acceptable standard of conduct to fire a handgun into the night without determining who is there or whether the person poses a threat. See Nordstrom v. State, 627 N.E.2d 1380, 1383 (Ind.Ct.App.1994) (determining that even if Nordstrom genuinely believed that his gun would not fire without a clip inserted, it was inherently reckless for him to point the gun at his wife and pull the trigger under any circumstances, so his belief did not negate the culpability for reckless homicide), trans. denied. The evidence does not support the giving of Huls’ proposed jury instruction on mistake of fact; thus, the trial court did not abuse its discretion by rejecting the instruction.

III. SUFFICIENCY OF THE EVIDENCE

Huls argues that the State failed to rebut his claim of self-defense. The State contends that the jury’s verdict is supported by the evidence.

When a claim of self-defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements. Wilson v. State, 770 N.E.2d 799, 800 (Ind.2002). The standard of review for a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence claim. Id. at 801. We neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be disturbed. Id.

A valid claim of defense of oneself, another person, or one’s property is legal justification for an otherwise criminal act. Id. at 800. Pursuant to the governing statute:

A person:
(1)is justified in using reasonable force, including deadly force, against any other person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

Ind.Code § 35-41-3-2(d) (2006). Nevertheless, a defendant is not justified in using force if “the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.” Ind.Code § 35-41-3-2(g)(3). Thus, in order to prevail on a claim of self-defense, the defendant must show that he or she: (1) was in a place where he or she had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3)had a reasonable fear of death or great bodily harm. Wilson, 770 N.E.2d at 800. Furthermore, an initial aggressor must withdraw from the encounter and communicate the intent to do so to the other person before he or she may claim self-defense. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.Ct.App.2011), trans. denied.

Here, Huls contends that the evidence establishes that he shot at the teenagers because he believed it necessary to protect himself and his property. We disagree. Two of the teenagers stated that they never entered his property. Furthermore, the police found a hat belonging to one of the teenagers in the wooded area next to Huls’ property rather than on Huls’ property. In any event, Huls opened fire without identifying his target, and after he opened fire he did not attempt to end the encounter and communicate his intent to do so, in violation of the statute. See Ind.Code § 35—41—3—2(g)(3). To the contrary, Huls continued to shoot even after C.M. shouted at Huls to stop firing and stated that he and his companions were leaving. Thus, the evidence demonstrates that Huls instigated and participated in the violence, and the State carried its burden of negating Huls’ claim of self-defense.

CONCLUSION

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

Affirmed.

BAKER, J., and MAY, J., concur.

      . We heard oral argument on June 21, 2012 at Indiana State University during the Hoosier Girls State program. We thank the parties for their helpful presentations, and we thank Indiana State University and Hoosier Girls State for their hospitality.


text:
    In the Matter of Shane E. BEAL, Respondent.
    No. 27S00-1204-DI-221.
    Supreme Court of Indiana.
    Aug. 7, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On April 24, 2012, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $523.00 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


text:
    In the Matter of Richard S. TEBIK, Respondent.
    No. 45S00-0909-DI-406.
    Supreme Court of Indiana.
    Aug. 7, 2012.
   PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT, ACCEPTING RESIGNATION, AND CONCLUDING PROCEEDING

Respondent has been suspended from the practice of law in this state since December 17, 2009. On January 6, 2012, the Indiana Supreme Court Disciplinary Commission petitioned this Court to direct Respondent to show cause why he should not be held in contempt of this Court, alleging that Respondent has practiced law in this state while suspended from the practice of law. In particular, the Commission alleged that during 2010 and 2011, Respondent provided services to a person, who is now deceased, and others associated with him. Those services included preparation of a durable power of attorney, trust documents, deeds in trust, and consents to unsupervised administration of a decedent’s estate. Respondent sent a bill to one of the persons for $1,575, representing 10.5 hours of work at $150 per hour.

The Court entered a Order to Show Cause on January 19, 2012, directing Respondent to show cause in writing, within 15 days of service why he should not be held in contempt for disobedience to this Court’s order suspending him from practice. Respondent filed a response on May 10, 2012, in which he admitted preparing the documents at issue.

On May 14, 2012, Respondent tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17). If his resignation is accepted, Respondent must wait five years to apply for reinstatement and then must prove his fitness to resume practice by clear and convincing evidence. See Admis. Disc. R. 23(4).

The Court concludes that Respondent practiced law while suspended in contempt of this Court. However, in light of Respondent’s resignation from the bar, the Court will impose no penalty. If Respondent seeks reinstatement, all matters bearing on his fitness to practice will be at issue, including his practicing law in contempt of this Court’s suspension order.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk is directed to forward a copy of this Order to the hearing officer if one has been appointed, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: NAJAM, Judge.

text:
    WELLS FARGO BANK, N.A., f/k/a Wachovia Commercial Mortgage, Inc., Appellant-Plaintiff, v. PNC BANK, N.A., f/k/a National City Bank of Indiana, Appellee-Defendant.
    No. 49A02-1111-PL-1004.
    Court of Appeals of Indiana.
    July 3, 2012.
    Craig D. Doyle, Kurt V. Laker, Doyle Legal Corporation, P.C., Indianapolis, IN, Attorney for Appellant.

      Anne L. Cowgur, Whitney L. Mosby, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Wells Fargo Bank, N.A., f/k/a Wachovia Commercial Mortgage, Inc., f/k/a The Money Store Investment Corporation (“Wells Fargo”) appeals the trial court’s grant of summary judgment in favor of PNC Bank, N.A., f/k/a National City Bank of Indiana (“National City”) on Wells Fargo’s complaint alleging breach of contract, promissory estoppel, unjust enrichment, breach of duty to deal in good faith, tor-tious injury to property interest, slander of title, and bad faith. Wells Fargo presents a single dispositive issue for our review, namely, whether the trial court erred when it found that the claims asserted in Wells Fargo’s complaint are barred by res judicata.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history underlying this case were set out in Money Store Investment Corporation v. Summers, 849 N.E.2d 544 (Ind.2006) (“Money Store I ”), as follows:

From 1992 to 1996, Neal Summers granted eleven mortgages on three parcels of his real estate to Fort Wayne National Bank as security for a series of loans. Three of these mortgages contained dragnet clauses.
In February 1998, Paula Phillips sued Summers and the company in which he was the sole shareholder, Mangy Moose Enterprises, Inc. Her complaint raised a dispute over the ownership of the trademark/trade name “Paula’s Seafood.” The parties entered into a written settlement agreement on September 21, 1999, and the suit was subsequently dismissed without prejudice.
On September 15, 2000, Summers and Mangy Moose borrowed $508,275 from the Money Store Investment Corporation d/b/a First Union Small Business Capital and granted a mortgage on the same three parcels used to secure the Fort Wayne National mortgages (to which National City succeeded), plus an additional six lots. On the same day, Mangy Moose, by Summers as president and secretary, borrowed $471,000 from Money Store, and granted a mortgage on the same real estate.'
Prior to these loans, on August 80, National City sent to Money Store’s title company three pay-off statements that included the daily interest. National City assured the title company that eight mortgages and two assignments of rents and leases would be released upon the proper payoff of the three loans. On September 15, National City received three payments, but one payment came up $375 short of the amount reflected on the pay-off statements. (Appellant’s App. at 271-274.) National City did not release any of the mortgages and was still owed some $4700 on Mangy Moose’s overdrawn checking account.! ]
Phillips filed a motion to enforce the settlement agreement on August 10, 2001. Just over a month later, Money Store filed a complaint for foreclosure and appointment of a receiver. On February 5, 2002, the trial court in the Phillips!] action found that Summers and Mangy Moose had failed to comply with an earlier order and granted Phillips a $205,700 judgment.
Phillips then purchased National City’s nine mortgages and two assignments of rents and leases, and National City assigned all of its interest to Phillips. In March 2002, Phillips filed a complaint to foreclose these mortgages, and also moved to intervene in the Money Store foreclosure action. Both Phillips and Money Store moved for summary judgment.
The trial court entered its judgment and decree foreclosing both Phillips’ and Money Store’s mortgages. (Appellant’s App. at 48m-o, r.) It held that “dragnet” clauses contained in three of the mortgages assigned to Phillips secured “all debts or obligations owed to Paula Phillips by Summers,” which included Phillips’ judgment lien against Summers, Mangy Moose’s overdrawn checking account, collection fees, attorney[’]s fees, and interest. (Appellant’s App. at 48h-i.) It granted Phillips priority over Money Store on the three Summers!] lots used as collateral in the mortgages assigned to Phillips.
The Court of Appeals affirmed, holding that “the mortgage dragnet clauses support!] the trial court’s conclusion that the monetary judgment resulting from Summers’ failure to comply with his written settlement agreement was, after Phillips acquired the mortgage through assignment by National City, ‘secured by” the dragnet mortgages.” The Money Store Inv. Corp. v. Summers, 822 N.E.2d 223, 229 (Ind.Ct.App.2005) vacated.

On transfer, our supreme court summarily affirmed this court’s disposition of “the issues about the admissibility of the affidavits, Summers’ personal liability, and attorney’s fees.” Id. at 550. But our supreme court reversed the trial court’s grant of priority to Phillips over Money Store on the lots in question, reversing this court. Id. at 549-50.

Thereafter, on December 29, 2008, Wells Fargo filed a complaint against National City with eight counts stemming from National City’s refusal to release “at least nine mortgages” attaching to real estate in Fort Wayne owned by Summers. Appellant’s App. at 28. In particular, Wells Fargo alleged breach of contract, promissory estoppel, unjust enrichment, duty to deal in good faith, tortious injury to property interest, slander of title, and bad faith. On May 12, 2011, National City filed a motion for summary judgment and, following a hearing, the trial court granted that motion. This appeal ensued.

DISCUSSION AND DECISION

We review a summary judgment order de novo. Bules v. Marshall County, 920 N.E.2d 247, 250 (Ind.2010). The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151, 1153 (Ind.Ct.App.2001), trans. denied. We must determine whether the evidence that the parties designated to the trial court presents a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Bules, 920 N.E.2d at 250. We construe all factual inferences in the nonmoving party’s favor and resolve all doubts as to the existence of a material issue against the moving party. Bules, 920 N.E.2d at 250.

Wells Fargo contends that the trial court erred when it concluded that each of the claims asserted in its complaint is barred by the doctrine of res judicata. In Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1048 (Ind.Ct.App.2007), we explained res judicata in relevant part as follows:

The doctrine of res judicata consists of two distinct components, claim preclusion and issue preclusion. Dawson[ v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind.Ct.App.2003) ].
Claim preclusion is applicable when a final judgment on the merits has been rendered and acts to bar a subsequent action on the same claim between the same parties. When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. Claim preclusion applies when the following four factors are present: (1) the former judgment was rendered by a court of competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the matter now at issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action was between parties to the present suit or their privies.
Id. (emphases removed) (citations omitted).

Here, the trial court found and concluded in relevant part:

11.On June 27, 2006, the Indiana Supreme Court determined that Phillips, as the assignee of National City and the holder of National City’s Mortgages held valid, enforceable and senior mortgages on Summers’ real property (the “Real Property”). Money Store I, 849 N.E.2d at 544.
12. The Indiana Supreme Court expressly found:
While it is true that Phillips stepped into the shoes of the mortgagee [i.e., National City], this entitled her to collect debts secured in accordance with the terms of the mortgages, not her judgment lien. The debts in this ease were limited to the $375 short payment on the loan payoff and the $4700 overdrawn checking account, plus interest, collection costs, and attorney’s fees.
Id. at 549.
13. After the Indiana Supreme Court decision, Phillips and the Plaintiff stood in the following order of priority as to the Real Property: (a) first, Phillips, as the assignee of the National City Mortgages, for the $375 short payment on the loan payoff and the $4700 overdrawn checking account; (b) second, the Plaintiff for the amount due on its mortgages and judgment liens against Summers; and (c) third, Phillips for a $205,700 judgment lien obtained against Summers. The Money Store Investment Corp. v. Summers, 909 N.E.2d 450, 456 (Ind.Ct.App.2009) (hereinafter “Money Store II”).
14. In this case, the Plaintiff seeks a determination that National City had an obligation to release the National City Mortgages after the September 15, 2000[,] closing and[] its failure to do so[] caused the Plaintiff damages for which National City is liable.
15. Entering judgment in favor of the Plaintiff—i.e., finding that National City had an obligation to release the National City Mortgages after the September 15, 2000 closing—would have the legal effect of rendering the National City Mortgages invalid, unenforceable and unassignable.
16. A finding here that National City did not hold valid and enforceable mortgages on the Real Property that could be assigned to and enforced by Phillips would be in complete contradiction [of] the findings and determinations [by our supreme court] in Money Store I.
17. For this reason, the claims asserted and issues raised by the Plaintiff in its Complaint ... are barred by the doctrine of res judicata.

Appellant’s App. at 15-16 (emphases original).

On appeal, Wells Fargo maintains that res judicata does not bar its claims for the following reasons: claim preclusion does not apply because there is no privity of parties or mutuality of estoppel, and Wells Fargo is not asserting the same claims as decided in the prior matter and resolved by our supreme court. We address each contention in turn.

Privity/Mutuality of Estoppel

Wells Fargo first contends that there is no claim preclusion without privity of parties and that National City is not in privity with Phillips. In particular, Wells Fargo asserts that “a necessary component of privity is ‘mutuality of estoppel’ ” and that National City has “failed to prove the ‘mutuality of estoppel’ necessary to qualify as a ‘privy’ to the Allen County Action.” Brief of Appellant at 13-14. We cannot agree.

Wells Fargo is correct that the fourth element of claim preclusion requires that the parties to the subsequent action must be the same parties as, or those in privity with, those in the first action. See Perry, 871 N.E.2d at 1048. It is well settled that persons in the relationship of assignor and assignee with respect to the subject matter are generally in privity. Braun v. Loshe, 180 Ind.App. 641, 390 N.E.2d 189, 192 (1979). The few exceptions to that general rule do not apply here. See 17 I.L.E. Judgment § 367. National City and Phillips were named defendants in the Allen County action when National City assigned “all of its interests]” in its nine mortgages and two assignments of rents and leases to Phillips, and National City was dismissed as a party. Money Store I, 849 N.E.2d at 546. As our supreme court observed, Phillips “stepped into the shoes of’ National City. Id. at 548. Thus, National City is in privity with Phillips with respect to the Allen County action.

Still, Wells Fargo contends, in effect, that Indiana case law requires mutuality of estoppel even where privity has been established. We cannot agree. Proof of mutuality of estoppel is not required where, as here, privity was established by assignment when National City assigned its interest to Phillips.

Same Issues

Next, Wells Fargo contends that claim preclusion does not apply here because it is not asserting the same claims as it did in the Allen County action. The most critical question for the application of res judicata is whether the present claims were within the issues of the first action or whether the claims present an attempt to split a cause of action or defense. Micro-Vote Gen. Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 192 (Ind.Ct.App.2010). It has generally been said that the test for making this determination is whether identical evidence will support the issues involved in both actions. Id. Here, Wells Fargo contends that, while the pleadings in the Allen County action “did present the issue of whether the National City mortgages could secure other debts owed to Phillips or $5,181 in checking account overdrafts[,]” those pleadings “did not ... require proof of the crucial allegation on which this current action depends: that National City made a binding contract with Wells Fargo to release its mortgages, even if it did not receive payment of the $5,181 overdraft.” Brief of Appellant at 16. Accordingly, Wells Fargo maintains that the same evidence will not support the issues presented in both actions.

But, as National City points out, one of Wells Fargo’s allegations in the Allen County action was that Phillips was es-topped to enforce the National City mortgages. And the evidence advanced in support of that claim of estoppel included “National City’s own affidavit testimony” that “no balance remained due on the National City loans covered by the payoff statements on which Money Store relied to its detriment[.]” Appellee’s App. at 127. Indeed, the trial court identified six specific pieces of evidence submitted in the Allen County action that Wells Fargo also relies upon in this case: facsimile correspondence between National City and Jeffrey Harlan in September of 2000; commercial loan pay-off statements from National City dated August 24, 2000; receipts from National City dated September 15, 2000; a letter from National City Bank to Phillips’ attorney dated January 28, 2002; an Affidavit by Jeffrey Harlan; and an Affidavit by Kenneth Lust of National City dated June 4, 2008. Appellant’s App. at 19.

We agree with the trial court that “identical evidence has been submitted in support of both the Plaintiffs Claims and Issues asserted herein and the equitable estoppel claim asserted in the [Allen County action].” Id. at 19. Accordingly, the matter now at issue was, or might have been, determined in the prior action. See Perry, 871 N.E.2d at 1048. Wells Fargo could have pursued its claim directly against National City, notwithstanding National City’s assignment to Phillips, but Wells Fargo made no objection to National City’s dismissal from the Allen County action.

Instead, Wells Fargo pursued Phillips, and its claim against Phillips was entirely derivative of its claim against National City. Thus, the adjudication in favor of Phillips was for these purposes an adjudication in favor of National City. Relitigation of the same or equivalent claim is barred by res judicata. Wells Fargo cannot avoid claim preclusion by attempting to re-cast its claim as a different cause of action when both claims share the same factual predicate and, again, the matter either was or might have been, determined in the prior action. Wells Fargo is not entitled to a second bite from the apple.

In sum, National City and Phillips are in privity for purposes of the instant action, and the issues are the same for purposes of res judicata. Wells Fargo does not dispute that the other two elements of claim preclusion are satisfied here. The trial court did not err when it concluded that National City is entitled to summary judgment under the doctrine of res judica-ta.

Affirmed.

RILEY, J., and DARDEN, J., concur.

      . The parties refer to the prior action between the Money Store and Phillips as “the Allen County action,” and we will do the same for ease of discussion.

      . The complaint listed the plaintiff as Wacho-via Commercial Mortgage, Inc., f/k/a The Money Store Investment Corporation d/b/a First Union Small Business Capital. Wells Fargo is Wachovia's successor in interest.