author: FRIEDLANDER, Judge.

text:
    Scott SPEERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A01-1208-CR-391.
    Court of Appeals of Indiana.
    June 6, 2013.

      William Van Der Pol, Jr., Martinsville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Scott Speers appeals his conviction for Burglary, as a class C felony, and Theft, as a class D felony. He presents the following restated issues on appeal:

1. Was Speers entitled to discharge under Indiana Criminal Rule 4(C)?
2. Did the trial court err in admitting DNA evidence in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution?
3. Did an evidentiary harpoon occur during the State’s direct examination of the lead detective?

We affirm.

After hours on October 25, 2010, Scrog-gins Gun Shop in Martinsville was burglarized. The burglar forced open the front door of the business, broke a glass display case, and took eight guns. The crime took less than a minute, and surveillance video did not capture the face or other identifying characteristics of the perpetrator.

Officers from the Martinsville Police Department promptly responded to the scene. Officer Jim Barley, an evidence technician, processed the scene, discovering what appeared to be blood spots the size of an eraser head on two pieces of broken glass from the display case. Officer Barley placed each piece of glass into a separate box and sealed the boxes with evidence tape and his initials. He later took this evidence to the Indiana State Police Lab for testing.

Shortly after the crime, police had a suspect, Kevin Faucett, who had been found in the area with cuts on his arms and a makeshift bandage. Police questioned Faucett and swabbed his cheek for DNA. This sample was submitted to the lab for DNA comparison with the substance found at the crime scene. At some point prior to DNA testing, Nicole Stickle, a laboratory technician at the State Police Lab, transferred the suspected blood from the pieces of glass to white cloths. Thereafter, Indiana State Police forensic DNA analyst Lori James processed the substance obtained from the glass for DNA and the suspect’s DNA. There was no DNA match, and Faucett was excluded as a suspect.

Shortly thereafter, Scott Speers was identified as a suspect based on a CODIS database search. Police then obtained a search warrant to swab Speers’s cheek for DNA, and this sample was submitted for DNA analysis. Analyst James determined that Speers’s DNA matched the DNA obtained from the pieces of glass.

On February 22, 2011, the State charged Speers with class C felony burglary and class D felony theft. Police arrested him for these charges on March 11, 2011. Following a number of delays, Speers’s jury trial commenced on July 17, 2011. The jury found him guilty as charged, and the trial court later sentenced him to eight years for the class C felony and a concurrent three years for the class D felony. Speers now appeals. Additional facts will be presented below as needed.

1.

Speers argues that he was entitled to discharge because he was not brought to trial within the one-year limit set out in Crim. R. 4(C). Our Supreme Court has summarized Crim. R. 4(C) as providing that “a defendant may not be held to answer a criminal charge for greater than one year unless the delay is caused by the defendant, emergency, or court congestion.” Curtis v. State, 948 N.E.2d 1143, 1148 (Ind.2011). Our review of a trial court’s ruling on a Crim. R. 4(C) motion is for abuse of discretion. Curtis v. State, 948 N.E.2d 1143.

Speers was arrested on the instant charges on March 11, 2011, which started the running of the one-year clock. At the initial hearing on May 9, the trial date was set for August 24, 2011. On August 8, the date of the final pretrial hearing, Speers filed a motion to continue the scheduled jury trial. In his motion, Speers indicated that the continuance was sought “because counsel will be out of town from August 20, 2011 through September 6, 2011.” Appendix at 221. At the pretrial hearing, the trial court granted Speers’s requested continuance, noting that Speers was due to be released from prison on an unrelated matter on September 3 and then defense counsel could “better prepare.” Id. at 10. The court reset the trial for October 26, 2011.

At the final pretrial hearing on October 3, Speers indicated his intent to plead guilty to the burglary charge. As a result, the court ordered a “preplea investigation” and scheduled a guilty plea/sentencing hearing for December 5. Id. at 11. Due to an arrest in another county earlier that morning, Speers failed to appear in person at the scheduled hearing on December 5. The court, at defense counsel’s request, reset the guilty plea hearing for December 22. At this same time, bond was revoked and a warrant was issued for Speers’s arrest.

After arriving late for the December 22 hearing, Speers initially did not want to enter an open plea. When the State stated that it was prepared to file a habitual offender allegation, Speers asked to continue with the guilty plea. The court directed Speers to discuss the matter with defense counsel off the record. Upon leaving the courtroom to consult with counsel, Speers fled. The court indicated that the case would be reset upon Speers’s capture.

Speers was arrested on December 26, and the court reset the matter for another final pretrial hearing on January 30, 2012. On January 19, defense counsel moved to withdraw due to a conflict with the new escape case, for which counsel was a witness. The court granted the motion the following day and then appointed Speers’s current counsel. At defense counsel’s urging, the trial court recused on February 13, due to a similar conflict with the escape case. The cause was subsequently reassigned on February 23 from Morgan Superior Court 3 to Morgan Superior Court 2.

The new court set the cause for pretrial hearing on March 1, 2012. Thereafter, the court set a trial date of June 5, 2012. At the final pretrial hearing on May 21, the State made an oral motion for continuance. Speers objected to the continuance based upon Crim. R. 4(C). The court took the matter under advisement and issued an order on May 29, 2012, concluding that the Crim. R. 4 deadline was July 28, 2012. Accordingly, the court granted the State’s request for a continuance and rescheduled the trial for July 17, 2012. The jury trial was held on July 17-18, 2012, at which Speers sought discharge based upon Crim. R. 4(C).

Some 478 days elapsed between Speers’s arrest and trial. Working backward, therefore, at least 113 days of delay must be attributable to Speers in order to uphold the trial court’s denial of the motion for discharge. At oral argument, Speers conceded that he was responsible for the delays caused by his indication that he was going to plead guilty and his ensuing escape during the guilty plea hearing. Thus, the 84 days between October 3 and December 26 count against Speers.

Speers narrowed the issue, at oral argument, down to the delay caused by his motion for continuance filed on August 8 at the final pretrial hearing before the scheduled August 24, 2011 trial date. Speers’s appellate counsel argued that the State agreed to the continuance, which was sought as a matter of expediency because Speers was to be released from the Department of Correction in an unrelated cause shortly after the scheduled trial date. Regardless, the record indicates that Speers requested the continuance, which resulted in the trial date being reset for October 26, 2011. This delay is attributable to Speers. See Cole v. State, 780 N.E.2d 394 (Ind.Ct.App.2002) (observing that it does not matter why the defendant sought the continuance), trans. denied. This delay easily gets the State the rest of the way over the 113-day hurdle. Accordingly, we conclude that the trial court properly denied the motion for discharge.

2.

Speers contends that the trial court erroneously admitted results of DNA testing in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. Despite the fact that the DNA analyst (Lori James) testified at trial regarding the DNA analysis and results, Speers contends that his confrontation rights were violated because the lab technician (Nichole Stickle), who transferred the suspected blood from the glass to white cloths for testing by James, did not testify. He claims that Stickle’s transfer of the blood to the swabs amounted to a crucial step in the process and that, therefore, Stickle was an important witness that was required to be called. Without Stick-le’s testimony, Speers argues “there is no assurance that the sample tested and allegedly matched to the defendant was in fact even relevant to the instant case.” Appellant’s Brief at 14. In other words, according to Speers, there was “no evidence tying the sample to the crime scene”. Id.

The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, states in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. “A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Pendergrass v. State, 913 N.E.2d 703, 705 (Ind.2009) (cit-mg Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). The Confrontation Clause applies, however, only to testimonial statements, that is, “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford v. Washington, 541 U.S. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).

In Pendergrass v. State, our Supreme Court held that a Certificate of Analysis regarding DNA evidence was testimonial evidence, requiring the opportunity for cross-examination of a witness. The Court further held that the defendant’s confrontation rights were satisfied by the testimony of the laboratory supervisor, who had a “direct part in the process by personally checking [the laboratory processor’s] test results.” Pendergrass v. State, 913 N.E.2d at 708. The Court noted, “she could testify as to the accuracy of the tests as well as standard operating procedure of the laboratory and whether [the processor] diverged from these procedures.” Id. at 707-08. In response to Pendergrass’s argument that the State “did not call the right — or enough — witnesses”, the Court indicated that not “everyone who laid hands on the evidence must be called.” Id. at 708 (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)). The State’s decision to call the laboratory supervisor “with direct involvement” in the technical processes “sufficed for Sixth Amendment purposes.” Id.

Pendergrass is directly applicable to the instant case. Here, the DNA analyst who performed — not just supervised — the DNA testing and analysis testified at trial and was subject to cross-examination. As a result of her direct involvement, James was able to testify regarding procedures of the lab, potential tampering, specifics and accuracy of the testing and analysis, and the Certificate of Analysis and other related documents admitted into evidence. Speers’s claim that the State should have called the laboratory technician who performed the preliminary step of swabbing the blood from the glass amounts to a chain of custody argument and does not rise to the level of a confrontation issue. Analyst James had direct involvement in the testing and analysis of the DNA at issue, and her testimony regarding the DNA evidence sufficed for Sixth Amendment purposes. See Pendergrass v. State, 913 N.E.2d 703.

Understanding the clear implications of Pendergrass, Speers argues that the case is no longer good law in light of United States Supreme Court’s plurality opinion in Williams v. Illinois, - U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). We cannot agree. Speers’s argument in this regard is fundamentally flawed because it is based on the premise that the Court in Pendergrass “found that the Confrontation Clause was not implicated.” Appellant’s Brief at 11. On the contrary, the Court found it implicated but satisfied. See Pendergrass v. State, 913 N.E.2d at 707 (“we will treat the Certificate of Analysis in the present case as testimonial”).

Further, the facts of the instant case and Williams are not on par. In Williams, vaginal swabs taken from a rape victim were submitted to an independent, private laboratory — Cellmark. In turn, Cellmark produced a report transmitting a DNA profile that its analysts had purportedly developed from the swabs. Using the DNA profile obtained from Cellmark, Sandra Lambatos, a forensic specialist at the Illinois State Police Lab, searched the state’s database and found a matching profile, that of Williams. At trial, over Williams’s Confrontation Clause objection, Lambatos was permitted to testify that the DNA profile of Williams’s blood in the state database matched a male DNA profile Cellmark had created from semen in the victim’s vaginal swabs. Although Cell-mark’s written report was not introduced into evidence, Lambatos was allowed to rely upon it during her expert testimony. No witness having personal knowledge of Cellmark’s development of the putative offender’s DNA profile testified at trial.

On these facts, five justices concluded that the Confrontation Clause was not violated by Lambatos’s testimony because the information in Cellmark’s report was not testimonial. Justice Thomas provided the swing vote, disagreeing with the rationale of the lead opinion authored by Justice Alito but concurring in the judgment. In Justice Thomas’s view, the Cellmark report was not testimonial because it “lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact.” Williams v. Illinois, 132 S.Ct. at 2260.

In the case at hand, analyst James’s testimony was not based on a certified declaration of fact from another analyst or lab. In fact, no outside lab was involved in this case, and the DNA profile and Certificate of Analysis at issue were produced by James, who testified at trial and was subject to cross-examination. Accordingly, we find Williams inapposite and Pendergrass controlling.

3.

Finally, Speers contends that during direct examination of the lead detective the State “presented evidence in such a way as to create an evidentiary harpoon.” Appellant’s Brief at 19. The following testimony occurred after the detective explained that the initial suspect was excluded based on DNA results:

[STATE:] Okay. Did there come a point where you developed a second suspect?
[WITNESS:] Yes.
[STATE:] And having developed a suspect, what did you then do[?]

Transcript at 314. Speers objected and moved for a mistrial on the basis that the State was leaving the jury to speculate as to how he was developed as a suspect. The State responded that the reason a defendant is developed as a suspect is often kept from the jury and that, here, the State was carefully trying to avoid informing the jury of the CODIS match, which would have indicated Speers had a prior criminal history. The trial court denied the motion for mistrial.

On appeal, Speers claims that the testimony set out above amounted to an evidentiary harpoon. “An evidentiary harpoon is the placing of inadmissible evidence before the jury with the deliberate purpose of prejudicing the jurors against the defendant.” Kirby v. State, 774 N.E.2d 523, 535 (Ind.Ct.App.2002), trans. denied. To prevail on such a claim, the defendant must show that: (1) the prosecution acted deliberately to prejudice the jury; and (2) the evidence was inadmissible. Id. The defendant must show further that he was “placed in a position of grave peril to which he should not have been subjected.” Jewell v. State, 672 N.E.2d 417, 424 (Ind.Ct.App.1996), trans. denied.

We agree with the State that Speers has mischaracterized this situation as an evidentiary harpoon. The brief question and answer set out above did not inject any inadmissible evidence into the trial and was used by the State as a simple transition from testimony regarding the initial suspect to the detective’s subsequent investigation of Speers. In fact, it is clear that the State deliberately sought to avoid introducing any evidence regarding the CODIS match. While the jury may have been left to speculate as to how Speers became a suspect, this would have been true regardless of whether the above exchange occurred. Under the circumstances, we find neither the insertion of an evidentiary harpoon nor a situation of grave peril.

Judgment affirmed.

ROBB, C.J., and CRONE, J., concur.

      . Ind.Code Ann. § 35-43-2-1 (West, Westlaw current through P.L. 171 with effective dates through May 7, 2013).

      . I.C. § 35-43-4-2 (West, Westlaw current through P.L. 171 with effective dates through May 7, 2013).

      .We held oral argument in this matter at Martin University as part of the university’s annual Law Day observance on April 26, 2013. We thank Martin University and its staff and students for their professionalism and hospitality, and we commend both advocates for their skilled presentations.

      . The State argues that Speers caused additional delay as a result of his escape because it necessitated defense counsel’s withdrawal from the case and the recusal of the original trial court. We find this argument persuasive, but we need not address it because the delays we have already attributed to Speers establish there was no Crim. R. 4(C) violation.

      . In Melendez-Diaz, a majority of the United States Supreme Court indicated that it was not the case that "anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case.” Melendez-Diaz v. Massachusetts, 557 U.S. at 311 n. 1, 129 S.Ct. 2527.

      . There is no indication that the technician’s role in the DNA testing involved a material exercise of judgment or analysis. On the contrary, it is evident that this preliminary stage required the technician to perform a largely mechanical task. "[Ajbsent some reason to believe there was error or falsification, the need to call such a technician as a witness may not become a constitutional necessity.” United States v. Boyd, 686 F.Supp.2d 382, 384 (S.D.N.Y.2010), aff'd by summary order, 401 Fed.Appx. 565 (2d Cir.2010), cert. denied.

      . Justice Thomas, who provided the swing vote in Williams, would have likewise treated the Certificate of Analysis in Pendergrass as a testimonial statement. His concurring opinion, however, does not contradict the holding in Pendergrass regarding satisfaction of the constitutional demands.

      . Speers directs us to a number of juror questions, submitted but not answered, regarding what led police to develop him as a suspect. During final instructions, the trial court instructed the jury:
      During the trial, the Court may rule that certain questions may not be answered and/or that certain exhibits may not be allowed into evidence. You must not concern yourselves with the reasons for the rulings.... Your verdict should be based only on the evidence admitted and the instructions on the law.”

        Transcript at 353-54.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    In re the Matter of the Supervised Administration of the ESTATE OF Cora E. YOUNG, deceased, Terry Douthitt, Kelly Douthitt, and Kevin Douthitt, Appellants-Intervenors, v. Theodore R. Young, Appellee-Personal Representative.
    No. 53A04-1301-EU-36.
    Court of Appeals of Indiana.
    June 7, 2013.

      Thaddeus Craig Kelley, Kelley, Belcher & Brown, Bloomington, IN, Attorney for Appellant.
    P. Mason Clark, P. Mason Clark, Attorney at Law, P.C., Bloomington, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Terry Douthitt, Kelly Douthitt, and Kevin Douthitt (collectively “the grandchildren”), appeal the trial court’s denial of their motion to reconsider. They contend that based on the language of Cora Young’s will, the trial court erred in finding that the proceeds of a sale of her property should be distributed to her second husband at her death. We hold that since the property was a specific bequest under Cora’s will and was sold before Cora’s death, it was adeemed by extinction and therefore the proceeds pass to the residuary beneficiary under her will. Finding that the residuary beneficiary is her second husband, we affirm the trial court.

Facts and Procedural History

On December 17, 1976, Cora executed her Last Will and Testament (“Will”). Item Two of her Will reads:

That property which was vested in me at the time of my marriage to my husband, Theodore R. Young, including the residence at R.R. 9, Box 314, Bloomington, Indiana, a lot in Turkey Mountain Estates, Stone County, Missouri, and a lot in Lehigh Acres, Lee County, Florida, I will, devise and bequeath to my son, Dennis A. Douthitt, of Monroe County, Indiana.

Appellants’ App. p. 15. Item Five of her Will reads:

All the rest and residue of my property (excepting what m[a]y be the proceeds of any of the items mentioned in item two) I will devise and bequeath to my husband, Theodore R. Young, or if he shall not survive me then my property which may come directly through him shall be divided among his heirs and any property not so attributable shall go to my said son, Dennis Douthitt.

Id. at 16. Cora never changed her Will although her son, Dennis, predeceased her, id. at 7, and there was no language in her Will that specifically referred to her grandchildren in any way. Rather, Cora left her grandchildren non-probate assets in the amount of $350,271.97. Id. at 27.

Cora sold the property in Florida in 1984 and sold the property in Missouri in 1987. Id. at 7. On May 2, 2012, Cora sold her Bloomington residence to the State of Indiana for the expansion of Interstate 69. Id. at 10. She received $263,550 for the sale, but the proceeds had not been paid at the time of her death. On June 6, 2012, Cora purchased property at 3934 North State Road 45, Solsberry, Indiana, for $288,257. The proceeds from the sale of Cora’s Bloomington property were used to pay off a portion of the debt owed on the Solsberry property after Cora’s death.

Cora died testate on June 26, 2012. On July 13, 2012, her second husband filed a Verified Petition for Probate of Will in which he listed himself as the only beneficiary. Id. at 11-16. The grandchildren then filed a Petition Requesting Instructions as to Interpretation and Construction of the Will, contesting that they should have been listed as beneficiaries of the Will as well, since they would stand in the shoes of their deceased father, Dennis, and therefore be entitled to the proceeds of the sale of the Bloomington property. A hearing was held, and the trial court took the matter under advisement, allowing the parties to submit further argument and authorities.

The trial court entered its order three months later, holding that the proceeds from the Bloomington property should be distributed to Cora’s second husband and not the grandchildren. Since the property was no longer owned by Cora at the time of her death, it was adeemed by extinction and therefore the proceeds of the sale would pass through the residuary clause of the Will and go to Cora’s second husband. Id. at 7-10. The grandchildren filed a motion to correct errors, which the trial court denied.

The grandchildren now appeal.

Discussion and Decision

The grandchildren appeal the trial court’s denial of their motion to correct errors. We review rulings on motions to correct errors for abuse of discretion. Baumgart ex rel. Baumgart v. DeFries, 888 N.E.2d 199, 205 (Ind.Ct.App.2008), trans. denied. A trial court abuses its discretion if its decision is against the logic and effect of the facts and circumstances before the court. Id.

The grandchildren first contend that the trial court erred in determining that since Cora conveyed the Bloomington property during her lifetime, the devise is adeemed by extinction. We disagree.

The doctrine of ademption by extinction is “defined as an act which causes a legacy to become inoperative because the subject matter of the legacy has been withdrawn or disappeared during the testator’s lifetime.” In re Estate of Warman, 682 N.E.2d 557, 560 (Ind.Ct.App.1997), trans. denied. This doctrine only applies to specific bequests, not general bequests, and “occurs only when the subject matter of the legacy is so altered or extinguished that the legacy is completely voided.” Id. Indiana’s approach to ademption is governed by the “Modern Rule.” Pepka v. Branch, 155 Ind.App. 637, 659, 294 N.E.2d 141, 153 (1973). There are two steps under this approach: (1) “establish the identity of the specific bequest which the testator purports to make under the terms of the will,” Warman, 682 N.E.2d at 560, and (2) apply the form and substance test. Id.

We therefore must first identify the specific bequest at issue. A specific bequest is “a bequest of some definite or specific part of the testator’s estate which is capable of being designated, identified, and distinguished from other like things composing the testator’s estate.” Id. (citing Weaver v. Schultz, 177 Ind.App. 563, 380 N.E.2d 601, 602 (1978)). A general bequest, on the other hand, is “a bequest out of the general assets of the testator’s estate, such as a gift of money or other things in quantity not in any way separated or distinguished from other things of the same kind.” Key v. Sneed, 408 N.E.2d 1305, 1307 (Ind.Ct.App.1980). Since Cora specifically named the piece of real estate at issue, the bequest is capable of being distinguished from the other assets in her estate. We therefore find that the bequest at issue was a specific bequest of the residence at R.R. 9, Box 314, Bloomington, Indiana.

We next must apply the form and substance test, which states: “[i]f there has only been a formal change in the bequest since the execution of the will, there is no ademption; however, if the specific bequest has changed in substance, the legacy is adeemed.” Warman, 682 N.E.2d at 560. In this case, the specific bequest has changed in substance. Cora sold her Bloomington residence and signed a Warranty Deed in favor of the State of Indiana on May 2, 2012. The bequest has therefore changed from a piece of real estate to the proceeds that Cora received from the State of Indiana for the sale. This is a change of substance of the bequest, so it was therefore adeemed. See id. at 561 (“Under [the form and substance test], the bequest fails if the article specifically bequeathed has been given away, lost or destroyed during the testator’s lifetime.”) (Emphasis added).

When a bequest is adeemed, the proceeds pass through the residuary clause of the will. Scher v. Stoffel, 115 Ind.App. 195, 199, 58 N.E.2d 118, 120 (1944). The grandchildren contend that the clause should be read in a way that excepts the proceeds of the sale of the Bloomington property from the residuary beneficiary and leaves those proceeds to Cora’s son, Dennis Douthitt. Appellant’s Br. p. 14. We disagree; we find that the clear language of this clause indicates that the proceeds of the sale are to go to Cora’s second husband, Theodore R. Young. The residuary clause is Item Five of the Will, which reads:

All the rest and residue of my property (excepting what m[a]y be the proceeds of any of the items mentioned in item two) I will devise and bequeath to my husband, Theodore R. Young, or if he shall not survive me then my property which may come directly through him shall be divided among his heirs and any property not so attributable shall go to my said son, Dennis Douthitt.

Appellants’ App. p. 16.

The grandchildren first argue that the clause “excepting what m[a]y be the proceeds of any of the items mentioned in item two” clearly excepts the proceeds of the sale from the residuary clause and bequeaths them to Dennis. The word “proceeds” in the clause, however, is not sufficiently specific to identify what proceeds Cora was referencing. We are unable to determine if she was referring to the proceeds from any sale of the properties, regardless of when they occurred, or if she was referring only to the proceeds of a sale that occurred after her death. It is telling that the grandchildren are only contesting the proceeds from the sale of the Bloomington property and not the sales of the Missouri and Florida properties that took place after the Will was executed but some thirty years before Cora’s death, but we cannot be certain as to Cora’s true intent. We therefore must find that this particular clause in Item Five is not specific enough to overcome the clear doctrine of ademption by extinction and except the proceeds of the sale of the Bloomington residence out of the residuary clause. The proceeds therefore must go to the residuary beneficiary that Cora has clearly named in her Will: Theodore R. Young.

We also note that the last clause of Item Five leaving “any property not so attributable” to Cora’s son, Dennis, is only applicable if Cora’s second husband predeceases her. The grandchildren argue that “[t]he will unfortunately left out a few commas,” Appellants’ Br. p. 14, and that the last clause was meant to apply regardless of whether Cora’s second husband predeceases her. However, a plain reading of Item Five as it is written makes it clear that the last clause that leaves property to Dennis is dependent upon Cora’s second husband predeceasing her. We therefore find this argument of the grandchildren to be without merit.

Finally, the grandchildren contend that this Court’s decision in Funk v. Funk, 563 N.E.2d 127 (Ind.Ct.App.1990), trans. denied, should apply, and we should try to discern Cora’s intent and find that she intended to leave the proceeds of the sale to her grandchildren. However, we find that Funk is not applicable to this situation. In this case, Cora had personally divested herself of the Bloomington property before her death, signing a Warranty Deed in favor of the State of Indiana on May 2, 2012. In Funk, however, the testator’s attorney-in-fact sold the land in question when the testator was alive but incapacitated. Id. at 128. This crucial fact distinguishes Funk from the present case, rendering its holding inapplicable.

We find that the trial court did not err in denying the grandchildren’s motion to correct errors. The Bloomington residence was adeemed by extinction, so the proceeds of the sale pass to the residuary beneficiary listed in Cora’s Will: her second husband, Theodore R. Young. We therefore affirm the trial court.

Affirmed.

KIRSCH, J., and PYLE, J., concur.

      . The grandchildren also argue that this Court’s holding in Kemp v. Kemp, 92 Ind.App. 268, 154 N.E. 505 (1926), is controlling and that ademption by extinction does not apply to devises of real estate. Appellants’ Br. p. 10. However, Kemp is distinguishable from the present case because the testator died the owner of the land in question, 154 N.E. at 506, while in this case, Cora had completely divested herself of the Bloomington real estate before her death. We therefore reject this argument.


author: ROBB, Chief Judge.

text:
    In the Matter of the ADOPTION OF J.T.A. R.S.P., Appellant-Petitioner, v. S.S., Appellee-Respondent.
    No. 37A03-1212-AD-525.
    Court of Appeals of Indiana.
    June 10, 2013.
    Rehearing Denied July 19, 2013.

      Donald W. Francis, Jr., Michelle B. Domer, Heartland Adoption Agency, Bloomington, IN, Attorneys for Appellant.
    John T. Casey, Rensselear, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

R.S.P. (“Fiancée”) appeals from the trial court’s denial of her petition to adopt J.T.A. (the “Child”). Fiancée raises two restated issues on appeal: 1) whether the trial court erred in concluding that the parental rights of the Child’s biological father, J.M.A. (“Father”), would have been terminated if the petition had been granted; and 2) whether there was sufficient evidence to support the trial court’s denial of the petition. Concluding that the trial court was mistaken regarding termination of Father’s rights, but that there was nonetheless sufficient evidence to support the denial of the petition, we affirm.

Facts and Procedural History

The Child was born in 2000, and it appears that he initially lived with his biological mother, S.S. (“Mother”), and was also cared for by his maternal grandmother. At some point in 2003 or 2004, the Child went to live with Father and Fiancée, and Father filed for custody of the Child. Father was awarded custody in 2004, and Mother was ordered to pay child support. It appears that the change in living situation and custody was precipitated by Mother’s drug use.

Fiancée and Father have been together for approximately ten years, and were engaged to be married at the time of the hearing underlying this case. Fiancée and Father also have two children together, aged four and five years old at the time of the hearing, who are the Child’s half-siblings. The record indicates that all three children live together with Fiancée and Father as a family, that the Child refers to Fiancée as “mom,” and that Fiancée is the Child’s primary caregiver. All parties appear to agree that Fiancée and Father provide the Child with a loving and appropriate home.

The record indicates that Mother never paid any child support until the adoption petition was filed, and that Mother never affirmatively requested visitation with the Child prior to the adoption petition — although Father and Fiancée were aware that Mother would see the Child when the Child visited his maternal grandmother. In 2008, Mother was arrested on drug charges. She completed a rehabilitation program while on pre-trial release, and then spent seventeen months in prison. She was released to a group home just prior to the hearing on the adoption petition.

In September 2010, Fiancée filed a petition to adopt the Child. Fiancée was concerned that, because she had no legal connection to the Child, if anything were to happen to Father, she would lose the Child and the Child’s life would be upturned. Father signed a consent to the adoption. Mother was served with the petition in September 2010, and her attorney entered an appearance in the case less than two weeks later. In December 2010, Mother filed a request for visitation. At a conference in February 2011, the court granted Mother visitation prior to her incarceration, and the court also ordered that a home study be prepared. In December 2011, Fiancée petitioned the court for a hearing date on the adoption petition. After several continuances, the hearing was held in August 2012. After taking the matter under advisement, the trial court issued findings of fact and conclusions of law, and denied Fiancée’s petition to adopt the Child. This appeal followed. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

We will not disturb the trial court’s decision in an adoption proceeding unless the evidence leads only to a conclusion opposite that reached by the trial court. In re Adoption of Childers, 441 N.E.2d 976, 978 (Ind.Ct.App.1982). We will not reweigh the evidence. Rather, we will examine the evidence most favorable to the trial court’s decision, together with reasonable inferences drawn therefrom, to determine whether sufficient evidence exists to sustain the decision. Id. A petitioner for adoption without parental consent has the burden of proof to establish, by clear and indubitable evidence, one of the statutory criteria for dispensing with consent. Id.

II. Termination of Parental Rights in an Intra-Family Adoption

Fiancée first argues that the trial court was mistaken in its construction of current Indiana law regarding termination of parental rights in intra-family adoptions. We agree. The trial court determined that, because Father and Fiancée were not mamed at the time of the hearing, if the adoption were granted then not only would Mother’s parental rights be severed, but Father’s rights would be severed as well. The trial court based this determination on a reading of Indiana Code sections 31-19-15-1 and -2. Section 31-19-15-1 provides, in relevant part:

(a) Except as provided in section 2 of this chapter or IC 31-19-16, if the biological parents of an adopted person are alive, the biological parents are:
(1) relieved of all legal duties and obligations to the adopted child; and
(2) divested of all rights with respect to the child;
and the parent-child relationship is terminated after the adoption....

And section 31-19-15-2 provides, in relevant part, an exception such that “(a) If the adoptive parent of a child is married to a biological parent of the child, the parent-child relationship of the biological parent is not affected by the adoption.” However, in determining that Father’s parental rights would be terminated under this statute because he was not married to Fian-cée, the court overlooked relevant case law.

In In re Adoption of K.S.P., we analyzed the above statutes and held that the biological mother’s two children could be adopted by her same-sex partner without divesting the biological mother of her parental rights. 804 N.E.2d 1253, 1260 (Ind.Ct.App.2004). We examined the policy behind the adoption statutes and determined that the overriding concern was the best interest of the child, and that for the divesting statute in particular, the purpose “is to shield the adoptive family from unnecessary instability and uncertainty arising from unwanted intrusions by the child’s biological family.” Id. at 1257. We noted that

[t]his objective, however, is not advanced by application of the divesting statute in situations involving stepparent adoptions or second-parent adoptions, where the biological parent and proposed adoptive parent are both integral members of the proposed adoptive family. In such instances, it would be absurd to fear that the biological parent, here Mother, could “intrude” into her own family. As an oft cited trial court in New York has emphasized regarding this issue, termination of parental rights in the circumstances of this case “would be an absurd outcome which would nullify the advantage sought by the proposed adoption: the creation of a legal family unit identical to the actual family setup.” Adoption of Evan, 153 Misc.2d 844, 583 N.Y.S.2d 997, 1000 (Sur.Ct.1992). It is clear that the divesting statute, designed as a shield to protect new adoptive families, was never intended as a sword to prohibit otherwise beneficial intrafamily adoptions by second parents.

Id. at 1258. And we concluded that where “the prospective adoptive parent and the biological parent are both in fact acting as parents, Indiana law does not require a destructive choice between the two parents.” Id. at 1260.

Here, it is clear that both Father and Fiancée were acting as parents to the Child, that this was an intra-family adoption, and that neither Fiancée nor Father wished to have Father’s parental rights terminated by the adoption. Mother argues that K.S.P. is not on point because unlike in that case, here Father and Fian-cée could have legally married but had simply not yet done so. We disagree, and believe that this is too narrow a reading of our opinion. It is clear from the policy underlying the divesting statute, and the overarching concern for the best interest of the child, that it would be absurd and contrary to the intent of the legislature to divest Father of his parental rights where he would continue to live in a family unit with the Child and parent the Child. Father’s parental rights would not have been terminated had the adoption been granted.

III. Mother’s Consent to the Adoption

A. Whether Mother’s Consent was Necessary

The next issue is whether Mother’s consent was required for the adoption. There are several grounds for concluding that consent to adoption is not required. See Ind.Code § 31-19-9-8. Fiancée argued below that Mother’s consent was not necessary because either Mother had abandoned the Child, under sub-section (a)(1) of the above statute, or Mother had failed to support the Child, under sub-section (a)(2)(B).

Abandonment is defined as “any conduct by the parent which evinces an intent or settled purpose to forgo all parental duties and to relinquish all parental claims to the child.” Childers, 441 N.E.2d at 979. The relevant time period is “at least six (6) months immediately preceding the date of the filing of the petition for adoption.” Ind.Code § 31-19-9-8(a)(l). Since determination of abandonment, as an ultimate fact, is in the province of the trial court, we will affirm that determination if the evidence most favorable to the determination clearly supports the decision. Childers, 441 N.E.2d at 979. Here, the trial court, in a conclusory sentence and without analysis of this relevant section of the statute, determined that Mother had not abandoned the Child. However, the evidence supports this determination, as the record indicates that Mother had regular contact with the Child in the six months prior to the filing of the adoption petition — during which Mother was living with her mother and saw the Child when he visited his grandmother — and the record does not indicate that Mother otherwise evinced an intent to relinquish all parental claims.

However, the statute is written in the disjunctive, and thus each of the sub-sections provides an independent ground for dispensing with consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind.Ct.App.2006). The section regarding failure to support states that consent is not required from a parent where their child is “in the custody of another person if for a period of at least one (1) year the parent: ... (B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.” Ind.Code § 31-19-9-8(a)(2). The trial court’s findings of fact and conclusions of law indicate that the court mistakenly believed that the timeline relevant to a determination of a failure to support is the year preceding the hearing on the petition. While the abandonment ground requires that the abandonment have occurred in the time immediately preceding the filing of the petition for adoption, there is no such requirement for the failure to support ground.

In fact, the plain language of the statute indicates that the relevant time period is any one year period in which the parent was required and able to support the child but failed to do so. See Ind. Dep’t of Human Servs. v. Firth, 590 N.E.2d 154, 157 (Ind.Ct.App.1992) (“We presume words appearing in the statute were intended to have meaning and we endeavor to give those words their plain and ordinary meaning absent a clearly manifested purpose to do otherwise.”) (citation omitted), trans. denied. While subsection (a)(1) of the statute references the six months “immediately preceding the date of the filing of the petition,” subsection (a)(2) only references “a period of at least one (1) year.” Ind.Code § 31-19-9-8. Clearly, the legislature knows how to apply the requirements to only a limited time period, but chose not to do so for the failure to support ground. See In re Adoption of Augustyniak, 508 N.E.2d 1307, 1308-09 (Ind.Ct.App.1987) (referencing a 1969 version of the statute in which the wording of the support ground was broader than the current version in that it did not require a knowing failure to pay or an ability to pay, but was limited to “a period of one (1) year immediately prior to the filing of adoption proceedings”), trans. denied; In re Adoption of Ryan L., 435 N.E.2d 624, 626 (Ind.Ct.App.1982) (referencing an older version of the statute in which the current sub-sections (a)(2)(A) and (a)(2)(B) were combined, with language otherwise tracking that of our current version, and noting that “[i]t is not necessary that the period of non-communication be the year immediately prior to the filing of an adoption-termination petition”). Therefore, the relevant time period is not limited to either the year preceding the hearing or the year preceding the petition for adoption, but is any year in which the parent had an obligation and the ability to provide support, but failed to do so.

Here, Mother was ordered to pay support following determination of custody in 2004, and Mother failed to pay any support until after the petition for adoption was filed. There were therefore six years during which Mother was required to provide support and failed to do so. The record, however, is silent as to Mother’s ability to provide support during those years. While we agree with the trial court that it is likely that Mother was unable to provide support while she was incarcerated, see Matter of Snyder, 418 N.E.2d 1171, 1182 (Ind.Ct.App.1981) (“[S]he was unable to support her children because she was either incarcerated or unemployed.”), that sheds no light on Mother’s ability to pay during the six years prior to the filing of the adoption petition, during which Mother was not incarcerated and was working for at least some of those years. The burden, however, was on Fiancée to prove that the failure to support ground was met such that Mother’s consent was not required. Childers, 441 N.E.2d at 978. That necessitated proof that Mother was required to support, able to support, and failed to support the Child for any one year period. The record does not indicate that Mother’s ability to pay was ever investigated, much less determined, and consequently Fiancée failed to carry her burden of proof. We therefore conclude that Mother’s consent was required in order for the trial court to grant Fianeée’s petition to adopt the Child.

B. Whether Mother’s Consent was Implied

Fiancée next argues that, even if Mother’s consent was required, it was implied because she failed to contest the adoption within thirty days after she was notified of the adoption. However, it appears that Mother was never given the entirety of the notification as required by statute, and therefore her consent was not implied. We note at the outset that the adoption statute is a bit of a puzzle, particularly when applying it to the case at hand. Because the statute seems to have been written under the assumption that a mother would be giving her child up for adoption, and thus that notice would be given to the father, much of the statute is not gender-neutral and thus on the face of it appears not to apply to Mother. However, we do not believe that it could be the intent of the legislature to have numerous and detailed requirements for notice to fathers and putative fathers but few or no notice requirements for mothers.

General notice requirements dictate that notice be given to a person whose consent is required, but do not detail what the notice must include. Ind.Code § 31-19-2.5-3. However, Indiana Code chapter 31-19-4 specifies the notice of adoption that is to be given after the birth of the child. While nothing in this chapter appears to directly apply to mothers, we believe it is unlikely that the legislature intended to provide boilerplate forms detailing the notice to be given to fathers while omitting any such guidance regarding notice to mothers; it is much more likely that the legislature intended this chapter to apply to parents in general— mothers and fathers — where appropriate. Several example forms are provided in this and other chapters regarding the content of the notice; the section that appears to most closely be related to the situation at hand is Indiana Code section 31-19-4-5, which provides the form of notice to be given to a named father. While there is no one form of notice that appears to apply, on its face, to Mother, and there is scant case law regarding the form of notice, all of the forms provided as examples have several things in common, regardless of their intended audience. Each requires notification regarding, among other things, that an adoption petition has been filed, and where it was filed or who filed it; that the recipient has a right to contest the adoption within thirty days after service of the notice; and that failure to so contest the adoption will result in the recipient’s consent being irrevocably implied. See, e.g., Ind.Code § 31-19-4-5. It appears then that notice to Mother should have included at least these elements.

We have acknowledged that substantial compliance with the notice provision “will be sufficient if the party receives notice which achieves that purpose for which the statute was intended.” Baby Girl, 661 N.E.2d at 877. However, while the record shows that Mother was served with notice that, and by whom, petition for adoption had been filed, and may have also been informed that it was alleged that her consent was not required, there is no indication that Mother was ever notified that she needed to contest the adoption within thirty days of the notification or her consent would be implied. Therefore, without proper or complete notice, the clock never began ticking on any requirement for Mother to contest the adoption, and her consent was never implied.

Conclusion

Because Mother’s consent was required but never affirmatively given nor implied, the trial court could not grant the petition. We therefore affirm the trial court’s denial of Fiancée’s petition to adopt the Child, but note that nothing in this decision prevents Fiancée from filing another petition to adopt the Child in the future.

Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.

      . It appears that, once the trial court informed Father of its belief that his parental rights would be terminated by the adoption, Father and Fiancée decided to move forward with the adoption. Father planned then to petition to adopt the Child himself once he and Fiancée were married. This is an unnecessarily circuitous route to have the Child legally parented by both Fiancée and Father.

      . It seems that Father and Fiancee may have been married after the proceedings below took place, or at any rate may be married by the time a second petition to adopt is filed, if they chose to re-file the petition. In that case, this issue will then be moot.

      . Mother does not argue that the Child was not in the custody of another person. See Ind.Code § 31-9-2-31 (defining "custodian").

      . This is an area of the Indiana Code that would benefit from some re-wording by our legislature, so that relevant sections apply explicitly to both mothers and fathers.

      . Where consent is not required, Indiana Code section 31-19-2.5-2 governs, and provides that where consent of a parent has not been obtained and is unnecessary, notice must be given under Indiana Code chapter 31-19-4.5. However, chapter 31-19-4.5 by its terms applies only to fathers. Ind.Code §31-19-4.5-1. It appears that the wording of this applicability section is an oversight on the part of the legislature, and that if Mother’s consent had not been required, she would nonetheless have been entitled to notice under chapter 31-19-4.5.

      .We have stated before that because statutes governing adoption are in derogation of the common law, they should be strictly construed. In re Gray, 425 N.E.2d 728, 730 (Ind.Ct.App.1981). However, we have also stated that adoption statutes should not be so strictly construed as to defeat their purpose. In re Paternity of Baby Girl, 661 N.E.2d 873, 877 (Ind.Ct.App.1996). Here, the purpose of the notice requirement is to advise the biological parent of his or her rights so that they may be protected. Hunter v. Bradshaw, 209 Ind. 71, 73, 198 N.E. 73 (1935). We do not believe the legislature intended to deny this notice to a mother where she was not inherently notified by the nature of the proceedings (e.g., where she was giving the child up for adoption).


text:
    Maurice FRAZIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1210-CR-526.
    Court of Appeals of Indiana.
    June 10, 2013.

      Kimmerly A. Klee Greenwood, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Former corrections officer Maurice Frazier appeals the sufficiency of evidence for his convictions of two counts of sexual battery committed while he was on duty at the Marion County Jail. A sexual-battery conviction requires the State to prove that a defendant, with intent to arouse or satisfy his sexual desires or the sexual desires of the victim, touched the victim when she was compelled to submit to the touching by force or the imminent threat of force. Here, Frazier grabbed the victim’s hand and placed it on his crotch, and we find that to be sufficient evidence to affirm one of the two sexual-battery convictions. But we find that the State failed to prove compulsion by force or imminent threat of force on the other sexual-battery conviction, and we therefore remand that count with instructions to enter a judgment of conviction for Class A misdemeanor battery.

Frazier also contends that his convictions violate double-jeopardy principles. A conviction for official misconduct requires proof that a public servant knowingly or intentionally committed an offense in the performance of his official duties. Frazier argues that the underlying offense used for his official-misconduct conviction was his sexual-battery conviction; therefore, he claims the same evidence was used to find him guilty of both crimes. We conclude that there is no double-jeopardy violation, despite the same evidence being used for both offenses, because each crime has a different victim — a female sheriff’s deputy was the victim of sexual battery and the public was the victim of Frazier’s official misconduct. We also conclude that there is no double-jeopardy violation with respect to Frazier’s other convictions. We reverse in part, affirm in part, and remand.

Facts and Procedural History

In 2011, Frazier was a corrections officer at the Marion County Jail. S.R., a female Marion County Sheriffs Department Deputy, was on duty when Frazier instructed her to accompany him to inspect the cell blocks. When they approached one of the block doors, Frazier grabbed Deputy S.R.’s shoulder from behind and ground his pelvis against her buttocks. Deputy S.R. pulled away and continued the inspection.

Several weeks later, Deputy S.R. had another encounter with Frazier. While Deputy S.R. was working in the control center, Frazier knocked on the door. Deputy S.R. opened the door for him, and Frazier sat down beside her at the control-center desk. He began talking to Deputy S.R. and asked her why they never “messed around.” Tr. p. 24. Deputy S.R. told Frazier that she did not date coworkers or married men like Frazier. Undeterred, Frazier told Deputy S.R. that they could “go where the cameras won’t see us.... ” Id. at 25. Deputy S.R. refused. Frazier persisted, pointing out a specific spot in the control tower without cameras saying, “They can’t see us over there.” Id. When Deputy S.R. again refused, Frazier grabbed her breast. Deputy S.R. stood up and walked away from Frazier, pretending she was retrieving something. Frazier followed her and grabbed her arm. Id. at 26. Deputy S.R. told him to stop. Deputy S.R. moved behind a pillar to avoid Frazier, but Frazier followed her and grabbed her arm a second time. Id. Again, Deputy S.R. told Frazier to stop. She then moved away and sat down at the control-center desk.

Frazier sat down next to her again and grabbed her hand, placing it on his crotch. Deputy S.R. pulled her arm away and told him to stop for the third time. Frazier responded by grabbing her breast with one hand and her crotch with the other. Deputy S.R. pushed him away and heard a knock at the control-center door. Another employee entered the room, and Frazier acted as if nothing had happened. Deputy S.R. reported the incident the next day.

In May 2011, the State charged Frazier with seven felony counts, only four of which pertain to Deputy S.R. and are relevant to our analysis: Count I, sexual battery of Deputy S.R. as a Class D felony; Count II, sexual battery of Deputy S.R. as a Class D felony; Count III, criminal confinement of Deputy S.R. as a Class D felony; and Count IV, official misconduct as a Class D felony. At the close of Frazier’s bench trial, the State specified the conduct underlying the sexual-battery charges:

Count II is the-one[,] that was where he forced [Deputy S.R.] to grab his crotch and ... he grabbed hers. As to Count I we would ask that that be based upon the incident where he grinded [sic] on her as she was trying to ... do the [cell-block inspection]. We acknowledge that there wasn’t the force necessary for the sexual battery for [Count I] from her testimony today. We would ask however, that you not dismiss that count and that you find the lesser[-]included misdemeanor battery on that count.

Id. at 56. The State also explained that the criminal-confinement charge was based on the incident in the control center where Frazier “grabbed [Deputy S.R.] on a couple of occasions[,] stopping her from moving. ...” Id.

The trial court found Frazier guilty of Counts I, II, III, and IV. The trial court set forth the evidence underlying each conviction:

With regard to Count I ... Frazier ... did touch the breast and or buttocks of [Deputy S.R.] ... finding of guilty.
I find that [ ] Frazier did take his hand and force [Deputy S.R.] to move her hand to his crotch and that ... meets in the court’s mind the element of force [as to Count II].
And ... Count III ... [Frazier] did knowingly confine [Deputy S.R.] by preventing her from moving out of the corner and or an area of the [control center] ....
As to Count IV, [ ] Frazier ... while being a public servant, that is an employee of the Marion County Sheriffs Department^] did knowingly or intentionally perform an act that a public servant is forbidden by law to perform, and that is [sexual battery]....

Id. at 82-83. Frazier was sentenced to concurrent terms on the four convictions for a total of 545 days, with 180 days to be served in Community Corrections and 365 days suspended to probation.

Frazier now appeals.

Discussion and Decision

On appeal, Frazier contends that there is insufficient evidence to support his two convictions for sexual battery. He also argues that his convictions violate two double-jeopardy theories, the actual-evidence test and the continuing-crime doctrine.

I. Sufficiency of Evidence

Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency claim, this Court does not reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind.Ct.App.2010), reh’g denied, trans. denied. We consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom and affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be able to form inferences as to each material element of the offense. Id.

To prove sexual battery as a Class D felony, the State was required to show beyond a reasonable doubt that Frazier, with intent to arouse or satisfy his own sexual desires or the sexual desires of Deputy S.R., touched Deputy S.R. w hen she ivas compelled to submit to the touching by force or the imminent threat of force. See Ind.Code § 35-42-4-8(a)(l)(A). “[I]t is the victim’s perspective, not the assailant’s, from which the presence or absence of forceful compulsion is to be determined. This is a subjective test that looks to the victim’s perception of the circumstances surrounding the incident in question.” McCarter v. State, 961 N.E.2d 43, 46 (Ind.Ct.App.2012) (citing Tobias v. State, 666 N.E.2d 68, 72 (Ind.1996), trans. denied), trans. denied. Force “may be implied from the circumstances.” Id. (citing Bailey v. State, 764 N.E.2d 728, 731 (Ind.Ct.App.2002), trans. denied.). Evidence that a victim did not voluntarily consent to a touching does not, in itself, support the conclusion that the defendant compelled the victim to submit to the touching by force or threat of force. Id. (citations omitted). “Not all touchings intended to arouse or satisfy sexual desires constitute sexual battery; only those in which the person touched is compelled to submit by force or imminent threat of force violate Indiana Code section 35-42-4-8.” Id.

Frazier contends that the State did not prove compulsion by force or imminent threat of force. We agree as to Count I — arising from the incident where Frazier grabbed Deputy S.R.’s shoulder and ground his pelvis against her buttocks — which the State conceded at trial it had not proven. While some level of force facilitated the touching, the evidence does not show that she was “compelled to submit to it by force or threat of force.” Id. (citing Smith v. State, 678 N.E.2d 1152, 1155 (Ind.Ct.App.1997)) (emphasis in original). However, we reach a different conclusion with respect to Count II. Count II arose from the incident in the control center, where Frazier forcefully grabbed Deputy S.R.’s hand and placed it on his crotch. This is sufficient evidence of forceful compulsion to sustain Count II.

Because we conclude that the State did not prove sexual battery as alleged in Count I, we must reverse that conviction. When we reverse a conviction for insufficient evidence, we may remand and order the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense. Id. at 47 (citation omitted). Indiana Code section S5-42-2-l(a)(l)(C) provides that an individual commits Class A misdemeanor battery if they knowingly or intentionally touch a penal-facility employee in a rude, insolent, or angry manner while the penal-facility employee is engaged in the execution of his official duties. At trial, the State showed that Frazier grabbed Deputy S.R., a penal-facility employee, from behind and ground his pelvis against her buttocks while she was engaged in her official duties. We remand with instructions to enter judgment for battery as a Class A misdemean- or and to sentence Frazier accordingly.

II. Double Jeopardy

Frazier also contends that his convictions violate the Double Jeopardy Clause of the Indiana Constitution. He argues that his convictions violate two double-jeopardy theories — the actual-evidence test and the continuing-crime doctrine. Whether convictions violate double jeopardy is a question of law which we review de novo. Vermillion v. State, 978 N.E.2d 459, 464 (Ind.Ct.App.2012) (citing Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind.Ct.App.2002)).

Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32 (Ind.1999), our Supreme Court concluded that two or more offenses are the same offense in violation of Article 1, Section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Under the actual-evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To find a double-jeopardy violation under this test, we must conclude that there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id.

Frazier also contends that his convictions violate the continuous-crime doctrine, which is “a category of Indiana’s prohibition against double jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind.Ct.App.2010) (citing Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App.2002), reh’g denied). “The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. (citing Riehle v. State, 823 N.E.2d 287, 296 (Ind.Ct.App.2005), trans. denied). We have explained, however, that the doctrine “does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant’s conduct amounts only to a single chargeable crime.” Id. at 736 (citing Boyd, 766 N.E.2d at 400).

We have reversed Frazier’s conviction on Count I, the first sexual-battery charge, and ordered the trial court to enter a judgment of conviction for battery as a Class A misdemeanor. But Frazier’s argument is that any conviction on Count I would violate double-jeopardy principles. We disagree. The record shows that Count I was based on Frazier’s interaction with Deputy S.R. during a cell-block inspection where he grabbed the deputy’s shoulder and ground his pelvis against her buttocks. Count I is the only charge based upon this incident, and the incident occurred weeks before the control-center incident. There is no double-jeopardy violation here.

Nor is there a double-jeopardy violation on Count II, the second sexual-battery charge. In order to prove Frazier guilty of Count II, the State was required to show beyond a reasonable doubt that Frazier, with intent to arouse or satisfy his own sexual desires or the sexual desires of Deputy S.R., touched Deputy S.R. when she was compelled to submit to the touching by force or the imminent threat of force. See Ind.Code § 35-42-4-8(a)(l)(A). At trial, the State argued that Frazier committed Count II of sexual battery in the control center when he “forced [Deputy S.R.] to grab his crotch....” Tr. p. 56. And this was the evidence the trial court relied upon when pronouncing judgment. Id. at 82 (“I find that Mr. Frazier did take his hand and force [Deputy S.R.] to move her hand to his crotch and that ... meets in the court’s mind the element of force [as to Count II].”). This evidence is separate and distinct from the evidence for Count I, and the control-center incident occurred weeks after the incident underlying Count I. Frazier’s conviction on Count II does not violate double-jeopardy principles.

To establish Count III, the criminal-confinement charge, the State had to show that Frazier knowingly or intentionally confined Deputy S.R. without her consent. Ind.Code § 85-42-8-3. Count III, like Count II, stemmed from Frazier’s conduct in the control center. For this reason, Frazier argues that his conviction on this count violates the actual-evidence test and the continuing-crime doctrine. Specifically, he argues that the evidence that he grabbed Deputy S.R.’s arm was used to establish both this charge and the sexual-battery charge. This is incorrect. Before the sexual battery, Frazier grabbed Deputy S.R.’s arm twice during the time when she was trying to get away from him, Tr. p. 26, and this evidence was used to convict him of criminal confinement. After the confinement, when she had returned to sit at the control-center desk, he grabbed Deputy S.R.’s hand and forced her to touch his crotch, and this evidence was used to convict him of sexual battery. Frazier’s actions that gave rise to the confinement and sexual-battery charges were not coextensive. See Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (citing Richardson, 717 N.E.2d at 55) (giving the example of a confinement conviction vacated because it was coextensive with the behavior necessary to establish an element of a robbery conviction). There is also no continuing-crime violation. The continuing-crime doctrine does not apply where there are two distinct chargeable crimes, which is the case here. Frazier committed criminal confinement when he grabbed Deputy S.R.’s arm twice and blocked her movement in the control center. The criminal confinement ended when Deputy S.R. moved past him and returned to her seat at the control-center desk. After Frazier also sat down, he committed a new crime by forcefully grabbing Deputy S.R.’s hand and putting it on his crotch. Thus, the continuing-crime doctrine has no application here.

Finally, we reach Frazier’s challenge to Count IV, his official-misconduct conviction. To establish Count IV, the State had to show that Frazier, as a public servant, knowingly or intentionally committed an offense in the performance of his official duties. Ind.Code § 35-44.1 — 1—1(1). Frazier argues that this conviction violates the actual-evidence test because the same actual evidence of sexual battery was used to convict him of sexual battery and official misconduct. He also argues that his conviction on Count IV violates the continuing-crime doctrine because, as with Counts II and III, it stems from his actions in the control center. In response, the State argues that an official-misconduct conviction is not subject to double-jeopardy principles, but notes that this issue “appears to be unresolved[.]” Appellee’s Br. p. 11.

In Richardson, our Supreme Court acknowledged that double jeopardy is not implicated where different victims are involved. 717 N.E.2d at 50, n. 40. And our Courts have repeatedly upheld this principle, finding no double-jeopardy violation where there are multiple victims of the same crime. See Bald v. State, 766 N.E.2d 1170, 1172 n. 4 (Ind.2002) (no double-jeopardy violation where defendant was convicted of one count of arson and three counts of felony murder based upon three deaths and one bodily injury that arose out of one fire); see also Whaley v. State, 843 N.E.2d 1, 15 (Ind.Ct.App.2006) (two convictions for resisting law enforcement did not violate double jeopardy even though defendant’s actions involved a single incident of resisting because defendant injured two people as a result of his resistance), trans. denied; Williamson v. State, 798 N.E.2d 450, 456-57 (Ind.Ct.App.2003) (defendant’s five arson convictions, each of which pertained to a different arson victim, did not violate double jeopardy), trans. denied. Here, too, there are separate victims: Deputy S.R., the victim of sexual battery, and the public, the victim of Frazier’s official misconduct. We therefore conclude that there is no double-jeopardy violation under either theory claimed by Frazier.

Reversed in part, affirmed in part, and remanded.

KIRSCH, J., and PYLE, J., concur.

      . Similarly, Section 35-42-2-l(a)(l)(B) provides that an individual commits Class A misdemeanor battery if they knowingly or intentionally touch a law-enforcement officer ("or a person summoned and directed by the officer”) in a rude, insolent, or angry manner while the officer is engaged in the execution of the officer’s official duty.

      . Frazier does not argue that his convictions violate federal double-jeopardy principles.


author: BAKER, Judge.

text:
    In re the Name Change of Jane DOE, Petitioner, Mary Doe, a minor, and Baby Doe, a minor, Appellants-Petitioners.
    No. 49A02-1211-MI-894.
    Court of Appeals of Indiana.
    June 13, 2013.

      Rosanne Judith Grissmer, Indianapolis, IN, Attorney for Appellant.
   OPINION

BAKER, Judge.

Here, we are presented with a tragic set of circumstances. A mother of two young children (Mother) fled Missouri to escape horrible physical and sexual abuse from the father of her youngest child. Mother traveled to Indiana where she secured an order of protection. Unfortunately, Father was persistent in his pursuit of Mother, and he violated the order of protection. Father was placed on probation for violating the protective order, and his conditions included GPS monitoring.

Mother and her children lived in a domestic violence shelter, but Father found her, and the domestic violence shelter obtained an order of protection to keep Father away from the premises. Father still managed to abduct Mother twice; however, she escaped both times. At this point, the Department of Child Services (DCS) intervened and determined that the children would be placed with Mother permanently. Father’s whereabouts are currently unknown.

Mother filed a petition to have her name and the names of her children anonymously changed because she is terrified that Father will find them. Indiana Code section 34-28-2-3 requires that all petitions for a name change be published in a nearby newspaper, which Mother does not want so that she can maintain anonymity and safety. During a hearing on the petition, the trial court suggested utilizing Indiana Administrative Rule 9 to admit important evidence into the record while still protecting the identities of Mother and her children. Nevertheless, Rule 9 was not used, and the petition was denied.

We conclude that given these facts and the current state of the law, Mother’s best option would have been to utilize Rule 9, specifically Rules 9(G) and (H) to try to admit essential evidence into the record and perhaps effectuate the name changes anonymously. Although we sympathize with Mother’s difficult situation, because Mother did not employ this strategy, and we do not know what its outcome would have been, we affirm the decision of the trial court.

FACTS

Because of the desire to maintain anonymity, the record is fairly sparse; however, Mother appears to be the victim of serious domestic abuse. Indeed, according to Mother, she was subjected to physical and sexual abuse so extreme that she had to be hospitalized. Although Mother met Father in Missouri, she relocated with her two children, Mary Doe and Baby Doe, to Indiana and obtained an ex parte order of protection. Father was the legal father of Baby Doe “by way of Paternity.” Appellant’s Br. p. 2.

Father violated the protective order and was convicted of class D felony intimidation and class A misdemeanor domestic battery and sentenced to 450 days of probation, including GPS monitoring. A no-contact order was issued against Father as a condition of his probation.

Mother and her children resided in a domestic violence shelter. Father attempted to contact Mother on several occasions and tried to visit the domestic violence shelter where Mother resided. Consequently, the domestic violence shelter obtained a no-contact order against Father to prevent him from approaching the premises.

Mother obtained housing through the shelter’s Permanent Supportive Housing Program. Notwithstanding these measures, Father found and abducted Mother from her new residence. Mother eventually managed to escape with the assistance from law enforcement, but by the time Mother was found, her lease was in process of eviction due to abandonment.

Mother and presumably the children sought refuge in another domestic violence protection shelter and relocated to another residence for a brief period of time until Father removed his GPS anklet while still on probation. Father found Mother again, but fortunately, she was able to escape. Father’s whereabouts are currently unknown.

Because of the extensive amount of abuse that Mother suffered and the children’s exposure to it, the DCS intervened. The DCS determined that Mary and Baby Doe would be placed with Mother permanently and requested termination of Father’s parental rights.

Mother has sought numerous remedies, including requesting a new social security number and placement on the Attorney General’s Address Confidentiality Program. Nevertheless, Father managed to locate her. Although it is not clear from the record, Father somehow has access to various methods of locating individuals, including methods used by credit reporting agencies to locate debtors.

Mother is terrified that Father will locate her and cause grave harm to her and her children again. To this end, on May 80, 2012, Mother and her children (collectively, “the Appellants”) filed a joint petition for anonymous name change, requesting to anonymously change their names, or in the alternative, to change their names by way of a sealed record and to waive the statutory requirement of publication under Indiana Code section 34-28-2-8.

A hearing on the name change petition was held on September 5, 2012, whereby the Appellants submitted their memorandum of law. The trial court denied the petition.

The trial court held a status hearing on September 19, 2012, to determine how the Appellants wanted to preserve the record on appeal. The Appellants’ counsel maintained that Father was acquiring information regarding Mother through family and contacts at Wells Fargo and perhaps other agencies. At that point the following colloquy occurred between the Appellants’ counsel and the trial court:

THE COURT: And how would that change if her name was changed?
MS. GRISSMER: If her name were changed, he would not be able to track her at all through any credit bureau reporting agencies. She would be able to obtain a new Social Security number and essentially a new identity, so it would totally ...
THE COURT: But he can still track— or try to track her through her family, right?
MS. GRISSMER: He can try. But she would be able to relocate much easier and obtain a new address and a completely new identity.
MS. GRISSMER: ... I do know that under the CHINS proceedings, his rights were terminated. I think there were some issues regarding service of process on the father .... I would respectfully like to refrain from entering the documentation into the record, if that may serve as clarification for the Court.
THE COURT: Well I don’t — if you’re not going to admit them as exhibits, I don’t know how I can base any decision that I have on them.
MS. GRISSMER: Alright.
THE COURT: There are obviously provisions under Administrative Rule 9, to admit them in the proper manner, but absent that I can’t consider them, so ... Do you have anything else you want to present ma’am?
MS. GRISSMER: If I may present the documentation under Administrative Rule 9G and have those records sealed, I — I would be willing to do that, if I may Your Honor.

Tr. p. 6-8.

The trial court then explained that Administrative Rule 9G required a hearing on whether the hearing at which the documentation would be introduced could be closed and the records sealed. Counsel again stated that she declined to submit documentation at that time, and the trial court responded that “you can look at Rule 9 and decide whether or not it would fit your circumstances or whether you wanted to proceed under that but, given what is before me now, I’m certainly going to have to deny your petition for name change.” Id. at 8. This appeal ensues.

DISCUSSION AND DECISION

The Appellants argue that the trial court abused its discretion by refusing to grant their petition to change their names because they failed to give notice of their name change by publication. More particularly, the Appellants contend that the publication requirement should be waived when the preponderance of the evidence indicates the presence of domestic violence, and the purpose of the name change is protection from the perpetrator.

Indiana Code chapter 84-28-2 establishes the procedure for a civil name change. Section 3 provides that notice of the petition for change of name must be given by three weekly publications in a newspaper in the county where the petition is filed, and if no newspaper is published in that county, then notice must be given in a newspaper that is published closest to that county. The purpose of the publication requirement is to ensure that the decision is not motivated by a fraud. See Matter of J.N.H., 659 N.E.2d 644, 646 (Ind.Ct.App.1995) (recognizing that a person may generally change his or her name in the absence of a fraudulent purpose).

To the majority of individuals wanting to change their name, the publication requirement is probably, at most, a minor inconvenience. However, to the Appellants and others similarly situated, it is a mischievous impediment in their pursuit to stay out of harm’s way.

At the September 19th hearing, the trial court suggested that the Appellants investigate the use of Administrative Rule 9 to admit the necessary documentation to support their position while prohibiting the general public from having access to the documentation. The general rule in Indiana is that information submitted to state government entities, including the courts, is accessible by the public. Travelers Cas. & Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114, 115 (Ind.2008). Nevertheless, our Supreme Court “has adopted rules on public access to court records, ‘taking into account public policy interests that are not always fully compatible with unrestricted access.’” Id. (quoting Administrative Rule 9(A) (Commentary)).

Rule 9(G) specifies the exceptions to the general policy of public access. Some of these exceptions include records of juvenile proceedings, “[information relating to protection from abuse orders, no-contact orders and workplace violence restraining orders,” addresses, phone numbers, and dates of birth which explicitly identifies persons who are witnesses or victims in criminal, domestic violence, stalking, sexual assault, juvenile, or civil protection order proceedings, and information excluded “by specific court order.” The procedure for excluding information under the last category is in Rule 9(H). Travelers, 895 N.E.2d at 116.

To obtain a specific court order pursuant to Rule 9(H), there are several procedures that litigants must follow. Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405, 408 (Ind.Ct.App.2008). More particularly, the party seeking to prohibit public access has the burden of providing notice to the parties and any other person that the court may direct. Id. Further, if the party declines to give notice, he or she must demonstrate the reasons for prohibiting access to the information. Id. And, relevant to the circumstances in the instant case, the request to prohibit public access to information in a court record must demonstrate that “[ajccess or dissemination of the information will create a significant risk of substantial harm to the requestor, other persons or the general public.” Admin. R. 9(H)(b).

Here, as stated above, the trial court suggested that the Appellants introduce their evidence through Rule 9. Although the trial court would have needed to conduct a hearing to determine what could be shielded from public access pursuant to Rule 9, it is fairly clear that the documentation regarding any DCS involvement and Father’s legal rights to Baby Doe would be excluded from public view. Admin. R. 9(G)(vi). Likewise, Mother could introduce evidence of protective orders against Father, and that evidence would be shielded from public access. Admin. R. 9(G)(xiii).

Because the Appellants did not utilize the procedures outlined in Rule 9, the outcome of such proceedings is conjecture. Nevertheless, it is fairly likely that some, if not much of their evidence concerning the protective orders, domestic violence, and DCS proceedings, would have been protected from public access under Rule 9. And while Mother’s desire to change her and her children’s name would have indeed proved more difficult in the absence of publication, Rule 9(H) may have provided the relief and protection that Mother so desperately seeks. To be sure, the Commentary to Rule 9(A) speaks volumes: “there are times when access to information may lead to, or increase the risk of, harm to individuals.” However, that said, in light of the record with which we are presented and the current state of the law, we are compelled to uphold the trial court’s denial of the Appellants’ petition for name change.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . To prevent such service of process problems in the future, we might suggest that a rule be promulgated directing that service of process be served upon the Indiana Attorney General in cases such as the instant one. Such a rule would ensure that the public’s interest is protected.