author: PYLE, Judge.

text:
    In the Matter of the Termination of the Parent-Child Relationship of A.P. & Au.P. (Minor Children). M.H. & T.P. (Mother & Father), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioner.
    No. 77A01-1202-JT-59.
    Court of Appeals of Indiana.
    Nov. 15, 2012.

      Paul Jungers, Terre Haute, IN, Deborah K. Shepler, Sullivan, IN, Attorneys for Appellants.
    Rita Paulette Stagg Sullivan, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

M.H. (“Mother”) and T.P. (“Father”) appeal the termination of their parental rights as to their minor children, A.P. and Au.P. (collectively, “the children”).

We affirm.

ISSUES

1. Whether the trial court erred in concluding that there was clear and convincing evidence to support the termination of Mother’s parental rights.

2. Whether the trial court erred in concluding that there was clear and convincing evidence to support the termination of Father’s parental rights.

FACTS

A.P. was born on July 11, 2007, and Au.P. was born on November 19, 2008. Mother and Father were not married at the time either child was born; however, Father’s paternity was established for both children. Mother and Father’s relationship was sporadic, with Father frequently living apart from Mother and the children. Indeed, during most of the CHINS proceeding, Father did not live with Mother.

In 2007, while pregnant with A.P., Mother used methamphetamine. A.P. was found to be a child in need of services (“CHINS”) when he tested positive for methamphetamine. The case was closed on February 26, 2009, after Mother complied with services.

In 2010, Mother, who was then living in Sullivan County but on probation in Knox County, again tested positive for methamphetamine. Knox County officials informed the Sullivan County Department of Child Services (“SDCS”) of the positive test, and SDCS investigated on February 1, 2010. Mother admitted to using methamphetamine, and SDCS determined that she was unable to adequately supervise the children. SDCS removed the children from Mother’s care, filed a CHINS petition, and placed the children in the care and custody of M.G., the children’s maternal grandmother, and J.G., the children’s step-grandfather (“the children’s grandparents”). At the time, SDCS could not locate Father.

In a predispositional report filed with the trial court on February 19, 2010, SDCS stated that the children were living in the home with Mother and the children’s grandparents. The children’s grandparents were designated “the relative placements.” (Petitioner’s Ex. 4). The report stated that Mother and Father would initially participate in supervised visitation with the children, with a goal of participating in unsupervised visitation.

The trial court adjudicated the children as CHINS as to both Mother and Father. On March 3, 2010, the court ordered Mother to (1) become and remain drug free; (2) complete intensive outpatient program (“IOP”) classes with Reverend Carl Beadle; (3) comply with random drug screens; (4) sign all necessary releases; and (5) participate in individual and/or family therapy. The court ordered Father to contact SDCS. The court also ordered both parents to (1) cooperate with all SDCS requests; (2) notify SDCS prior to address, employment, or household changes; and (3) “participate in visitation schedule set by [SDCS], starting out with supervised and moving to unsupervised as he/she participates in services.” (Mother’s App. 58). The order further stated that the children were to remain in their current home or placement “with supervision by [SDCS]” and that SDCS was awarded wardship of the children, “with responsibility for supervision, care and placement.” (Mother’s App. 58-59). On the same date, but in a separate order, the trial court ordered Mother to pay $25.00 per week in child support.

Under the SDCS permanency plan for reunification, Mother was required to participate in therapy at her home with Chris Parr (“Parr”) of Lifeline Youth and Family Services. Mother participated in approximately thirty-eight therapy sessions with Parr during a period beginning in April 2010 and ending April 2011. Parr concluded that although Mother gained limited insight into her drug problem, her “behaviors suggested that she would use.” (Tr. 101). Parr noted that Mother failed drug screens from the beginning to the end date of the services provided by Lifeline.

During the course of the CHINS case, Mother completed fifty-three drug screens. Of these screens, only four were clean. Mother tested positive six times for methamphetamine and one time for THC. She tested positive numerous times for prescription-type substances, including for hy-drocodone, oxycodone, and oxymorphone. Mother failed to participate in seventeen screens, which were considered to be positive. Mother took prescription medication during this time period, but she consistently failed to list that information on her consent forms. She also exhibited a wide variety of drug levels, and on one occasion, Parr caught her snorting crushed prescription medicine. After testing positive for methamphetamine, Mother was found to be in contempt of the trial court’s order in August of 2010 and February of 2011. Mother argued that one of the tests was a false positive because she was using bath salts, not methamphetamine, to obtain a high.

Mother requested and was granted permission to transfer from a drug program at the Sullivan Hamilton Center to a similar, but shorter program at the Terre Haute Hamilton Center. However, she refused to sign a release to allow the Terre Haute program’s physician to consult with Mother’s other physicians about her prescription drug use. The Terre Haute Hamilton Center declined to treat Mother because, without the release, its physician could not determine whether Mother was “med seeking.” (Tr. 18).

Mother completed Reverend Beadle’s twelve-step program during the summer of 2011; however, she had previously completed the same program and continued to use methamphetamine. Mother went to the Luke House, a sober living environment, but by the time of the termination hearing, she had been asked to leave when she informed a Luke House employee that she would fail a drug screen. Mother also had one positive drug screen for opiates while at Luke House.

Mother was incarcerated three times during the CHINS case for habitual driving violations, and two of the sentences were served concurrently with contempt sentences for continued drug use during the CHINS case. Mother was convicted as a habitual violator of traffic laws for continuing to drive with a suspended license, which led to forfeiture of her driving privileges for life. She was subsequently convicted of operating a motor vehicle while privileges are forfeited for life, a class C felony. Mother’s lack of an operator’s license resulted in numerous problems related to services provided through SDCS; however, she did not ask SDCS for help with transportation.

Father participated in home-based counseling on approximately two occasions. He failed to stay in contact with SDCS, service providers, and the guardian ad li-tem, Jennifer Hawkins. Before the termination hearings, Father failed to attend many of the CHINS-related hearings. He voluntarily appeared in court on one occasion, and he appeared on other occasions while in custody of police officers. A contempt action was initiated against Father after he failed to visit with the children in the manner ordered by the trial court. After Father indicated that he was not interested in SDCS services or assistance and failed to participate in offered services, SDCS focused its full attention on Mother.

On May 4, 2011, the trial court conducted a permanency hearing, and SDCS filed a verified petition for termination of Mother’s and Father’s parental rights. On June 5, 2011, SDCS changed the permanency plan from reunification to termination of parental rights and adoption, a change that the trial court approved on July 6, 2011.

On October 21, December 21, and December 28, 2011, the trial court held evi-dentiary hearings on the termination petition. On January 18, 2012, the trial court terminated both parents’ rights.

Additional facts are discussed below as necessary.

DECISION

The traditional right of parents to establish a home and raise their child is protected by the Fourteenth Amendment to the United States Constitution. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). Parental rights may be terminated when parents are unable or unwilling to meet their parental responsibilities. Id. The purpose of terminating parental rights is not to punish a parent but to protect the child. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trans. denied, cert. denied.

When DCS seeks to terminate parental rights pursuant to Indiana Code § 31-35-2-4(b)(2), it must plead and prove in relevant part:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
⅜ ⅜ ⅜ ⅜:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied;
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child;
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services.
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

These allegations must be established by clear and convincing evidence. In re I.A., 934 N.E.2d 1127,1133 (Ind.2010).

1. Termination of Mother’s Rights

a. Threat to Well-Being of Children

Mother contends that the trial court’s findings are insufficient to support its conclusion that continuation of her parental relationship with A.P. and Au.P. poses a threat to the well-being of the children. When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester, 839 N.E.2d at 147. We will only consider the evidence and reasonable inferences therefrom that are most favorable to the judgment. Id. When reviewing findings of fact and conclusions thereon entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. Id. First, we determine whether the evidence supports the findings. Id. Then, we determine whether the findings support the judgment. Id. The trial court’s judgment will be set aside only if it is clearly erroneous. Id. “A judgment is clearly erroneous if the findings do not support the trial court’s conclusions or the conclusions do not support the judgment.” Id. (quoting In re R.J., 829 N.E.2d 1032, 1035 (Ind.Ct.App.2005)).

In determining whether the continuation of a parent-child relationship poses a threat to the children, a trial court should consider a parent’s habitual pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation. Bester, 839 N.E.2d at 152. At the same time, however, a trial court should judge a parent’s fitness to care for her child as of the time of the termination proceedings, taking into consideration evidence of changed conditions. Id.

Here, Mother tested positive for methamphetamine on three occasions in the summer of 2010; missed three drug screens in July of 2010; and tested positive on two occasions for methamphetamine in February of 2011. Indeed, Mother submitted to fifty-three drug screens in a period ranging from February 1, 2010, to March 28, 2011. Of these screens, six were positive for methamphetamine, one was positive for THC, and forty-nine were positive for prescription controlled substances.

The court inferred from the fluctuation in levels of the prescription drugs that Mother was abusing the drugs. This inference is bolstered by Parr’s observation that Mother snorted prescription drugs through a straw.

The trial court found that Parr was not convinced that Mother “was successful with his services.” (Mother’s App. 16). Mother had made no changes in other aspects of her life, including the chaos in her home life that temporarily convinced her on more than one occasion that she should voluntarily terminate her parental rights. In addition, as the trial court found, Mother “would verbalize her problems, [but] she did not act upon correcting them and continued to blame those around her for her difficulties.” Id. Mother’s failure to take responsibility for her problems extended to the permanent suspension of her driver’s license and to her inability to admit that her disregard for the law resulted in “serious felony charges and further incarceration.” Id. In addition, Mother blamed SDCS for her continued drug use.

Mother emphasizes that she sought out Reverend Beadle’s twelve-step program while incarcerated and took a parenting program while incarcerated. The trial court is not required to believe or assess the same weight to evidence as Mother. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004). Certainly, the trial court could have concluded that Mother’s successes while in a regimented setting would not be duplicated in a world where she had no job, no transportation, free access to drugs, and much chaos.

Even with the permanent presence of the children’s grandparents in Mother’s home, Mother could not avoid drugs that impaired her ability to parent and put her children at risk. We cannot say that the trial court abused its discretion in concluding that Mother posed a threat to the well-being of the children.

b. Best Interests

Mother contends that the termination of the parent-child relationship was not in the children’s best interests. She argues that she has a loving bond with the children. She also points to the evidence discussed in our analysis of the previous issue, such as the programs she attended while incarcerated.

A determination of the best interests of the children should be based on the totality of the circumstances. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 373 (Ind.Ct.App.2007), trans. denied. In making this determination, the trial court must subordinate the interests of the parent to those of the children involved. In re A.K, 924 N.E.2d 212, 224 (Ind.Ct.App.2010). “A parent’s historical inability to provide a suitable environment along with the parent’s current inability to do the same supports a finding that termination of parental rights is in the best interests of the children.” Lang, 861 N.E.2d at 373.

Here, the trial court found that the guardian ad litem reported that Mother “has no proven record of sobriety or accepting responsibility for her actions. Consequently, and "without a drastic change in attitude, actions and lifestyle ... it is in the children’s best interest for [Mother’s] parental rights to be terminated.” (Mother’s App. 27). The trial court also found that it is in the children’s best interests to terminate Mother’s parental rights because of Mother’s (1) continued drug use over a period of four years, beginning with the prior CHINS proceeding; (2) “failure to complete and, indeed, barely begin, drug treatment”; (3) “lack of progress with home-based counseling”; and (4) failure to pay ordered child support to the children’s grandparents. Id.

Nathan Noel, the SDCS family case manager, testified that Mother’s past behavior has proven to be the best predictor of her future behavior. Thus, he concluded that it was in the best interests of the children to terminate Mother’s parental rights. The guardian ad litem testified that termination was warranted “short of a change in attitude and a change in responsibility. ...” (Tr. 129).

Mother’s strong bond with the children does not eradicate the effects that her continued behavior has and will have upon them. Based upon the family case manager’s and the guardian ad litem’s testimonies, and upon the totality of circumstances as documented by the trial court and described in our analysis of the previous issue, we cannot conclude that the trial court erred in determining that termination is in the children’s best interests.

2. Termination of Father’s Rights

a. Threat to Well-Being of the Children

Father contends that the trial court’s findings are insufficient to support its conclusion that continuation of his parental relationship with A.P. and Au.P. poses a threat to the well-being of the children. Specifically, Father argues that “the trial court recited findings, but none with a nexus to the well-being of the children and their continued relationship with Father.” Father’s Br. at 6.

As we note above, a trial court’s judgment pertaining to termination of parental rights is clearly erroneous “if the findings do not support the trial court’s conclusions or the conclusions do not support the judgment.” Bester, 839 N.E.2d at 147. We look to both the parent’s habitual pattern of conduct and his fitness at the time of the termination hearing to determine whether there is a substantial probability of future neglect or deprivation. Id. at 152. Moreover, we “can reasonably consider the services offered by [SDCS] to the parent and the parent’s response to those services.” McBride v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 199 (Ind.Ct.App.2003). We are ever mindful that parental rights, while constitutionally protected, are not absolute and must be subordinated to the best interests of the child when evaluating the circumstances surrounding termination. Id. Indeed, a court need not wait until children are irreversibly harmed such that their physical, mental, and social development are permanently impaired before terminating the parent-child relationship. Id.

Here, the trial court found the following with regard to Father:

10. Father was ... held in contempt on April 6, 2011 for failure to maintain contact with [SDCS] and for failure to visit the children.... The contempt action had been initiated on July 12, 2010, but could not proceed to hearing until nine (9) months later because of the inability of [SDCS] to obtain service earlier on [F]ather. Two different publication efforts based upon Affidavits of Diligent inquiry were necessary as [F]ather could not be served at his last known address and [F]ather failed to maintain contact with [SDCS] or [to] notify [SDCS] of any address change.
11. Father attended only three hearings during the CHINS proceedings; each of those times he was in the custody of the Sullivan County Sheriffs Department. He failed to voluntarily attend any CHINS hearing. He did attend all four termination hearings, including the initial hearing. However, he was one and one-half hours late to the December 21, 2011 session. Father has shown a pattern of failure to attend court proceedings concerning his children in the CHINS actions and in the paternity cases.
12. Father, in essence, did nothing during the CHINS case.
27. The Guardian ad litem, Jennifer Hawkins, attempted to reach [F]ather as preparation for her report, but, consistent with his behavior throughout the CHINS cases, he was unavailable in that his telephone did not work and Mrs. Hawkins’ attempts to reach [F]ather by mail were also unsuccessful. The GAL was left with the conviction that father lacked interest in the CHINS and termination proceedings. Consequently, his parental rights should be terminated.

(Mother’s App. 24-27).

The evidence presented and described by the trial court in its findings shows that Father put forth little or no effort to become a responsible parent through the services provided by SDCS. Furthermore, he showed no interest in participating in hearings pertaining to the children’s welfare or in maintaining contact with the children’s court appointed guardian. In short, there is no evidentiary basis to allow the trial court to conclude that Father’s neglect would not continue and that the continued neglect did not pose a threat to the well-being of the children. The trial court’s findings support its conclusion that there was a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of both A.P. and Au.P.

b. Best Interests

Father contends that the trial court erred in determining that the termination of the parent-child relationship was in the children’s best interests. He argues that he and the children developed a loving bond when he allegedly engaged in unauthorized visits with them. In support of his contention, Father points to the maternal grandmother’s testimony that he did engage in unauthorized visits and that “he’s wonderful with the kids” and that the children “love him” and “he loves them just as much.” (Tr. 246). Father also points to Mother’s testimony that termination of the parent-child relationship would be hard on the children. Father further points to testimony indicating that Nathan Noel, the SDCS family case manager, did not know that Father maintained a relationship with the children.

As we noted in our discussion of Issue 1(b), a determination of the best interests of the children should be based on the totality of the circumstances. Lang, 861 N.E.2d at 373. In making this determination, the trial court must subordinate the interests of the parent to those of the children involved. In re A.K., 924 N.E.2d at 224.

Here, both the guardian ad litem and the family case manager concluded that termination of Father’s parental rights was in the best interests of the children. Given the trial court’s discretion to determine the credibility of evidence, including evidence regarding Father’s continuing pattern of neglect towards the children, we cannot say that the trial court erred in giving credence to the guardian ad litem’s and family case manager’s professional opinions regarding the best interests of the children.

With regard to the positive testimony of Mother and the maternal grandmother at the termination hearing, we again note that the trial court is not required to believe or assess the same weight to evidence as the person citing the evidence. See Thompson, 804 N.E.2d at 1149.

Affirmed.

FRIEDLANDER, J. and BROWN, J., concur.

      . SDCS argues that Mother has failed to address the issue of whether there is sufficient evidence to support the trial court's finding that Mother poses a threat to the well-being of the children under Indiana Code § 31-35-2-4(b)(2)(B)(ii). Thus, SDCS maintains that Mother has waived the issue. We note, however, that Mother specifically references the trial court’s conclusion in her statement of the issues portion of her brief and in the corresponding argument heading. Although Mother’s argument mixes the issue with that of the best interests of the children, we cannot say that waiver is warranted. Because subsection (b)(2)(B) is written in the disjunctive, SDCS need prove only one of the elements by clear and convincing evidence. See I.A., 934 N.E.2d at 1133. Thus, if we hold that the evidence sufficiently shows that there is reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child, we need not address whether conditions resulting in removal or the reasons for placement outside the home of the parents will not be remedied or whether the children, on two separate occasions, have been adjudicated children in need of services. See I.C. § 31-35-2-4(b)(2)(B).

      . Some screens showed levels of multiple drugs.

      . This is especially true given the guardian ad litem’s official report, in which Grandmother is reported to have stated that Father was a bad influence on Mother; was possibly still married to someone else; and had inappropriately touched one of the children during an unauthorized visitation. (Mother’s App. 110).


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    The MARLING FAMILY TRUST, Appellant-Plaintiff, v. ALLSTATE INSURANCE COMPANY, Appellee-Defendant.
    No. 49A02-1203-CT-186.
    Court of Appeals of Indiana.
    Nov. 16, 2012.

      Kent M. Frandsen, Parr Richey Obremskey Frandsen & Patterson, LLP, Lebanon, IN, Michael L. Schultz, Travis W. Montgomery, Parr Richey Obremskey Frandsen & Patterson, LLP, Indianapolis, IN, Attorneys for Appellant.
    Andrew B. Janutolo, Jon C. Abernathy, Goodin Abernathy, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

The Marling Family Trust (“the Trust”) appeals the trial court’s grant of summary judgment in favor of Allstate Insurance Company. Upon review of the designated evidence, we conclude that the Trust acquired an equitable lien on insurance proceeds available under Thomas M. Pipes’ Allstate insurance policy. We further conclude that the Trust protected its equitable interest in the policy proceeds by giving Allstate notice of its interest before it distributed any policy proceeds. For this reason, the trial court erred in granting summary judgment for Allstate. We reverse and remand.

Facts and Procedural History

In January 2006, as security for a promissory note in favor of the Trust, Pipes granted the Trust a second mortgage on his home (“the property”) on West Henry Street in Indianapolis. The mortgage agreement required Pipes to insure the property against loss or damage from fire, lightning, flood, and other common casualties, for the benefit of the Trust. Pipes obtained a “deluxe homeowners” insurance policy through Allstate. Appellant’s App. p. 28. The policy period began May 20, 2007, and ended on May 20, 2008. In the event of a loss, the policy required the policyholder — or mortgagee, if the policyholder did not file a claim — to “promptly give [Allstate] or our agent notice.” Id. at 61, 65. The policy also provided that any suit or action against Allstate must be brought “within one year after the inception of loss or damage.” Id. at 65. Notably, Pipes failed to name the Trust as a mortgagee in the Allstate policy.

When Pipes lost the property in foreclosure, the Trust bought it in a Sheriffs sale on January 16, 2008. Shortly after the Trust took possession of the property, it discovered significant interior water damage. On February 25, 2008, counsel for the Trust sent Allstate a letter notifying it that the Trust had purchased the property and discovered water damage. The letter also informed Allstate of the following: the Trust held a second mortgage on the property when the damage occurred, the Allstate policy was in effect when the damage occurred, the first mortgagee on the property, Washington Mutual, was named as an additional insured on the policy, and the Trust had reimbursed Washington Mutual for their interest in the property. As a result, the Trust asserted a claim under Pipes’ policy for payment to cover the loss caused by the water damage. It was subsequently confirmed that the damage had occurred before the Sheriffs sale and that the Trust had not been aware of the damage when it purchased the property.

Three months later, an Allstate claims adjuster notified the Trust that the claim was being reviewed. The adjuster also noted that Allstate’s policyholder was Pipes, with no additional insured listed on the policy. Allstate ultimately refused to distribute policy proceeds to the Trust.

The Trust brought suit against Allstate in November 2008. In November 2011, Allstate moved for summary judgment, contending, in relevant part, that the Trust had not acquired an equitable lien on the policy proceeds as it claimed. Allstate argued that this Court’s rehearing opinion in Lakeshore Bank & Trust Company v. United Farm Bureau Mutual Insurance Company, Inc. — where this Court set forth the criteria for establishing an equitable lien in this context — was distinguishable from this case. 474 N.E.2d 1024, 1026 (Ind.Ct.App.1985). The Trust, however, maintained that it was entitled to the policy proceeds under Lake shore’s, equitable-lien theory. After taking the matter under advisement, the trial court granted Allstate’s summary-judgment motion without issuing findings of fact or conclusions of law.

The Trust now appeals.

Discussion and Decision

On appeal, the Trust contends that the trial court erred in granting summary judgment in favor of Allstate. The Trust argues that the court failed to recognize that Pipes’ duty to insure the property for the Trust’s benefit gave rise to an equitable lien in the Trust’s favor, thereby entitling it to insurance proceeds under Pipes’ Allstate policy.

“In reviewing an appeal of a motion for summary judgment ruling, we apply the same standard applicable to the trial court.” Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012), reh’g denied. We will affirm a grant of summary judgment where the designated evidence “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “Review is limited to those facts designated to the trial court, T.R. 56(H), and [a]ll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party.” Presbytery of Ohio Valley, 973 N.E.2d at 1110 (quotation omitted). Questions regarding the interpretation of an insurance policy are especially appropriate for summary judgment, as they are primarily legal issues for the trial court. Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind.Ct.App.2011), trans. denied. Indeed, our review of the parties’ arguments reveals that the disputed issues are issues of law. Where the dispute is one of law, not fact, our standard of review is de novo. State Farm Fire and Cas. Co. v. C.F., 812 N.E.2d 181, 184 (Ind.Ct.App.2004), trans. denied.

Specifically, the parties dispute the applicability of this Court’s holding in Lake-shore based upon the facts of this case. In Lakeshore, Lakeshore Bank held a mortgage on a married couple’s home. The mortgage agreement required the couple to maintain homeowner’s insurance with a loss-payable clause in favor of Lakeshore. The couple did secure an insurance policy through Farm Bureau, but failed to name Lakeshore as a mortgagee. The couple ultimately defaulted on the mortgage, and Lakeshore initiated foreclosure proceedings. During foreclosure proceedings, a fire destroyed the home. Lakeshore obtained a default judgment against the couple and attached the insurance-policy proceeds. When Lakeshore attempted to collect the policy proceeds from Farm Bureau through proceedings supplemental, Farm Bureau informed Lakeshore that it had already distributed the proceeds to the couple. Lakeshore dismissed its claim against Farm Bureau with prejudice but later sued Farm Bureau a second time after learning that it had distributed the policy proceeds despite actual knowledge of Lakeshore’s interest. Although the trial court granted Farm Bureau’s summary-judgment motion on grounds of res judicata, and another panel of this Court affirmed, this Court later granted rehearing to address Lakeshore’s equitable-lien claim. Lakeshore, 474 N.E.2d at 1026.

On rehearing, this Court explained that in this context, a mortgagee generally has no interest in an insurance policy on mortgaged property unless the mortgagee is given such interest by a covenant or condition in the policy or in the mortgage. Id. However,

Where a positive duty is imposed upon the mortgagor to insure for the benefit of the mortgagee, the mere existence of the duty is sufficient to impress upon the proceeds of any policy taken out by the mortgagor an equitable lien in favor of the mortgagee. Once the insurer has notice of the mortgagee’s rights it is considered to have a duty to treat the proceeds of the policy as though the provision that the proceeds should be payable to the mortgagee were written into the policy. The principle is that equity will treat as done that which should have been done. The mortgagee must protect his rights under the policy, however, by giving notice to the insurer.

Id. (citations omitted).

Here, the Trust’s mortgage agreement with Pipes required Pipes to insure the property for the benefit of the Trust as mortgagee. As stated in Lakeshore, “the mere existence of the duty [to insure for the benefit of the mortgagee] is sufficient to impress upon the proceeds of any policy taken out by the mortgagor an equitable lien in favor of the mortgagee.” Id. (emphasis added). Thus, under Lakeshore, the Trust acquired an equitable lien on the policy proceeds. Allstate, however, makes two arguments that this cannot be so.

First, Allstate argues that at the time it received notice of the Trust’s mortgagee status and the loss, the property had been foreclosed upon and the Trust had purchased it; thus, the Trust was no longer mortgagee and cannot invoke the equitable-lien theory. This argument is not persuasive. “It is well established that the rights of the mortgagee to the insurance proceeds are determined as of the time of the loss. Therefore, a foreclosure action brought after the loss will not necessarily affect the insurer’s liability to the mortgagee.” Fifth Third Bank v. Ind. Ins. Co., 771 N.E.2d 1218,1223-24 (Ind.Ct.App.2002) (citing Loving v. Ponderosa Sys., Inc., 444 N.E.2d 896, 906-07 (Ind.Ct.App.1983), vacated on other grounds, 479 N.E.2d 531 (Ind.1985)). Thus, for purposes of our analysis, we consider the Trust’s status at the time the loss occurred, when it was a mortgagee.

Second, Allstate attempts to confine Lakeshore’s holding to its facts, arguing that an equitable lien can only be held if an insurer has actual knowledge of the mortgagee’s interest but nonetheless distributes the proceeds to an improper party. Appellee’s Br. p. 9-10. Because Allstate did not distribute policy proceeds, it claims that there can be no equitable lien. Id. Allstate’s argument that the equitable-lien theory may only be invoked if an insurer distributes policy proceeds fails to recognize the theory’s broad, equitable nature — that is, “equity will treat as done that which should have been done.” Lakeshore, 474 N.E.2d at 1026. Just as Lake-shore recognized the inequity that arose when an insurer distributed policy proceeds to an improper party after notice of the mortgagee’s interest, we recognize the inequity that may arise when an insurer, with knowledge of a party’s right to policy proceeds, refuses to distribute those proceeds.

Having concluded that the Trust acquired an equitable lien, we now consider whether the Trust protected its equitable interest by giving proper notice to Allstate. The Trust was required to give notice of its interest to Allstate before Allstate distributed the policy proceeds. This requirement of Lakeshore is necessary to protect insurers from the possibility of double payments — one payment to an improper party and another to a previously unknown mortgagee. Here, there is no danger that Allstate will have to dig into its pocket twice for the same claim. In February 2008, the Trust gave Allstate notice of its interest before Allstate distributed any policy proceeds; indeed Allstate has never paid anyone any amount on this claim. Allstate seemingly concedes that proper notice was given, stating “[A]n equitable lien can only be held if the insurer has notice of the mortgagee’s rights when the insurer distributes the 'policy proceeds.” Appellee’s Br. p. 9 (emphasis added).

Although Lakeshore speaks generally of notice, it clearly contemplates notice before policy proceeds are distributed: “Once the insurer has notice of the mortgagee’s rights it is considered to have a duty to treat the proceeds of the policy as though the provision that the proceeds should be payable to the mortgagee were written into the policy.” 474 N.E.2d at 1026. After notice is given, Lakeshore explains, an insurance company becomes “accountable to [the mortgagee] for the disposition of the proceeds.” Id. at 1027. Thus, the insurer becomes “a stakeholder without authority to transfer the funds until the rights of the parties” are settled. Id. Here, the Trust, the only party making a claim under the policy, gave Allstate notice of its rights before any proceeds were distributed. When Allstate received this notice, it became accountable to the Trust for disposition of the policy proceeds. Upon a showing that the water damage to the property is covered by the policy, Allstate must transfer the policy proceeds to the Trust.

Based on the foregoing, we conclude that the trial court erred in granting summary judgment in favor of Allstate. The Trust’s mortgage agreement with Pipes required Pipes to insure the property for the benefit of the Trust as mortgagee. Under Lakeshore, this is sufficient to give rise to an equitable lien in the Trust’s favor. Id. at 1026. The Trust protected its equitable interest in the policy proceeds by informing Allstate of its mortgagee status before any policy proceeds were distributed. Thus, to the extent that the loss here is otherwise covered under the terms of Pipes’ insurance policy, the Trust may recover policy proceeds. We reverse the judgment of the trial court and remand for a determination of whether the loss is covered under the policy.

Reversed and remanded.

MATHIAS, J., and BARNES, J., concur.

      . A trial court is not required to make such findings and conclusions when ruling on a motion for summary judgment. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App.2000), trans. denied. However, in the absence of such findings and conclusions, our review of the basis for the trial court’s grant or denial of summary judgment is limited.

      . Because we find the equitable-lien issue dis-positive, we need not address the other arguments raised by the parties.

      . Although the cited authority did not consider unnamed mortgagees, we see no reason to differ in our treatment of the Trust' based upon its unnamed status.

      . Although Allstate goes on to argue that no proceeds have been distributed in this case, unlike Lakeshore, we have already declined to confine Lakeshore to its facts.

      . Allstate's summary-judgment motion makes reference to a possible coverage issue. See Appellant’s App. p. 12 n. 1 ("There is a question of fact as to whether Pipes had complied with his obligations under the policy regarding the proper care to winterize and protect the abandoned house. For purposes of this motion only, Allstate does not assert the coverage exclusions found in the Policy at p. 7 pertaining to losses resulting from freezing pipes in an unoccupied home.").


author: BAKER, Judge.

text:
    A.M., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 67A01-1205-JV-211.
    Court of Appeals of Indiana.
    Nov. 20, 2012.
    Ordered Published Jan. 7, 2013.
    Joel C. Wieneke, Wieneke Law Office, LLC, Greencastle, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

A.M., a minor, was found in possession of a pipe at school that he told school officials that he had used to smoke “spice.” After confiscating the pipe and having A.M. provide a written statement, the school reported A.M. to the local police. Thereafter, the State filed a petition alleging that A.M. was a delinquent child because he had possessed a pipe with the intent to smoke marijuana from it.

A.M. appeals from the juvenile court’s order adjudicating him as a delinquent child for Possession of Paraphernalia, an offense that would have been a class A misdemeanor if committed by an adult. Specifically, A.M. contends that there was insufficient evidence supporting the adjudication because the State failed to prove beyond a reasonable doubt that he intended to use the pipe to introduce a controlled substance, namely marijuana, into his body. Concluding that the State failed to present sufficient evidence, we reverse the judgment of the juvenile court.

FACTS

On January 11, 2012, Assistant Principal Richard Scott Weltz of Greencastle Middle School learned that one of A.M.’s classmates had observed a pipe sticking out of A.M.’s pants pocket. After learning this, Weltz called A.M. out of the classroom and escorted him to the assistant principal’s office, where Principal Tamera Walker joined them. Weltz and Walker told A.M. that they “were aware that there could be a situation where he was in possession of something that should not be brought to school and that [they] were interested in knowing more about that.” Tr. p. 22. Without saying anything, A.M. retrieved a pipe from his sock and laid it on Weltz’s desk.

After seeing the pipe, Weltz and Walker asked A.M. where he had acquired the pipe and why he had brought it to school. A.M. answered these questions. The school officials also asked if A.M. had any other prohibited items at school. A.M. emptied his pants pockets, turned them inside out, and pulled up his pants legs, indicating he had no further contraband in his pockets or his socks.

In addition to questioning A.M., Weltz and Walker “had [A.M.] write out a statement that explained having the pipe at school and why he came about bringing it to school.” Id. at 28. This statement read:

I got in trobel [sic] today because I had a pipe on me and what a pipe is is ... smothing [sic] were [sic] you smoke drug’s [sic] out of it. The last thing I smoked out of it was spice[.] Spice is like weed but it has different flavor than weed and spice can kill you aloot [sic] faster than weed can. The pipe I have I got it from my cousin [A.J.] and I gave him mine[.] I got my pipe from someone named [J.Y.] like 3 or 4 mount’s [sic] ago.

Petitioner’s Ex. 1.

After A.M. provided this statement, Weltz notified the Greencastle Police Department. Greencastle Middle School has a policy of always notifying the police when it discovers evidence of drug use or paraphernalia within the school. When Officer Jeff Modlin arrived, he went directly to Weltz’s office. Weltz apprised Officer Modlin that A.M. had brought a pipe to school, and Officer Modlin asked to speak to AM.’s mother.

Assistant Principal Weltz called A.M.’s mother, and Officer Modlin informed her of the situation and obtained her consent to speak to A.M. During this conversation, A.M.’s mother was never permitted to speak directly to A.M. nor was she asked whether she would want to speak to A.M. After hanging up with A.M.’s mother, Officer Modlin asked A.M. whether the pipe that he had been handed by the school officials was the pipe that A.M. had placed on Weltz’s desk. A.M. stated that it was.

The State filed a petition alleging that A.M. was a delinquent child. More particularly, the petition alleged that A.M. was a delinquent child because:

On or about January 11, 2012, in Putnam County, Indiana, [A.M.] did knowingly or intentionally possess a raw material, instrument, device, or object, to-wit: marijuana pipe; that the defendant intended to use for introducing into the defendant’s body of a controlled substance, to-wit: marijuana, contrary to the form and statue [sic] in such case made and provided, the offense being Possession of Paraphernalia, I.C. 35-48-4-8.3(a)(3), an offense which would be ... a Class A Misdemeanor if committed by an adult.

Appellant’s App. p. 7.

A.M. moved to suppress all of his statements made on January 11, 2012, because the school did not call his mother until after he had already produced the pipe, made statements about the pipe, and given his written statement, and because Officer Modlin questioned him without providing his mother with an opportunity to speak with him. On April 9, 2012, the trial court heard evidence on this motion. The assistant principal testified that it would not have been an inconvenience to call A.M.’s mother at work before questioning A.M. about the pipe, and when he did call her at work, there was only a short delay before he spoke to her.

Also during this hearing, Officer Modlin testified that his professional opinion was that the pipe had been used for smoking marijuana and nothing else. He acknowledged that the pipe could be used for smoking other substances as well, such as “spice,” which Officer Modlin testified was another name for “synthetic marijuana.” Tr. p. 33. Officer Modlin further testified that he detected marijuana residue in the pipe when he first handled it, and he believed the residue was that of marijuana because it had the “odor of’ marijuana. Id. at 34. However, on cross-examination, Officer Modlin admitted that the odors of burnt marijuana and burnt “spice” are “pretty close to the same thing.” Id. at 35. When pressed further about his ability to distinguish between the two odors, Officer Modlin stated, “There’s probably not going to be much difference at all. You would have to look at the chemical makeup between the two.” Id. at 36. He stated that to decisively determine whether the residue was that of marijuana or “spice,” “that’s going to have to be something that a laboratory is going to have to come back on.” Id. In conclusion, Officer Modlin testified that “it smelled more like marijuana” to him, but he admitted he “could be wrong.” Id.

The juvenile court suppressed the statement A.M. made to Officer Modlin but denied A.M.’s motion to suppress his oral statements to the school officials as well as his written statement. The juvenile court then moved directly to the fact-finding hearing, incorporating the testimony heard and the exhibits presented during the suppression hearing into the record. Additional testimony was heard from A.M.’s mother, and at the conclusion of the evidence, the juvenile court found that the State had met its burden on its petition alleging delinquency possession of paraphernalia,

DISCUSSION AND DECISION

A.M.’s sole contention on appeal is that the evidence presented by the State was insufficient to support his adjudication as a delinquent child. More particularly, A.M. asserts that Officer Modlin’s testimony was inadequate to prove that he intended to use the pipe to smoke marijuana. Additionally, A.M. claims that because the State failed to introduce any evidence that “spice” was a controlled substance, the State’s evidence was also insufficient to prove that A.M.’s adjudication as a delinquent child was proper on the basis that he intended to use the pipe to smoke “spice.” Appellant’s Br. p. 5-6.

In resolving a claim that the evidence supporting an adjudication of juvenile delinquency is insufficient, we apply the standard of review that applies to all sufficiency matters. Johnson v. State, 719 N.E.2d 445, 448 (Ind.Ct.App.1999). Accordingly, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not reweigh the evidence or assess the credibility of witnesses, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. We will affirm if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Dabner v. State, 258 Ind. 179, 182, 279 N.E.2d 797, 798 (1972). But we will reverse if no reasonable trier of fact could find the elements of the offense proven beyond a reasonable doubt. Drane, 867 N.E.2d at 146.

In juvenile delinquency proceedings, the State must prove every element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind.2008). It is generally not necessary that the evidence overcomes “every reasonable hypothesis of innocence.” Drane, 867 N.E.2d at 147. However, evidence that merely tends to establish suspicion of guilt, rather than proof of it, is insufficient to sustain a guilty verdict. Easton v. State, 248 Ind. 338, 344, 228 N.E.2d 6, 10-11 (1967).

In the instant case, A.M. was accused of knowingly or intentionally violating Indiana Code section 35-48-4-8.3(a), which provides:

A person who possesses a raw material, an instrument, a device, or other object that the person intends to use for:
(1) introducing into the person’s body a controlled substance;
(2) testing the strength, effectiveness, or purity of a controlled substance; or
(3) enhancing the effect of a controlled substance;
in violation of this chapter commits ... possessing paraphernalia.

See Appellant’s App. p. 7.

Under Indiana law, a controlled substance for the purpose of the possession of paraphernalia statute is defined as “a drug, substance, or immediate precursor in schedule I, II, III, IV, or V.” Ind. Code § 35-48-1-9. At all times relevant to this case, marijuana has been classified as a schedule I drug. I.C. § 35-48-2^(d)(22). On the other hand, synthetic marijuana, sometimes called “spice,” was only added as a schedule I drug last year. Pub.L. No. 138-2011, § 12 (S.E.A. No. 57); Pub.L. No. 182-2011, § 12 (H.E.A. No. 2011). On January 11, 2012, the date of the instant offense, the listing for schedule I drugs included “synthetic cannabinoids, including a substance containing one (1) or more of [twenty-five explicitly named] chemical compounds.” IdL

Here, because the State’s petition for delinquency alleged that the controlled substance that A.M. intended to smoke in the pipe was marijuana, the State was required to prove beyond a reasonable doubt that A.M. in fact intended to use the pipe to smoke marijuana and not some other controlled substance. See Atkinson v. State, 810 N.E.2d 1190, 1194 (Ind.Ct.App.2004) (reversing the defendant’s possession of paraphernalia conviction when the State’s evidence failed to prove that he intended to use items of paraphernalia in the particular way alleged in the charging information). We have found no relevant cases, and the State has directed us to none, where proof beyond a reasonable doubt of a substance’s identity was adequately founded solely on a person’s sense of smell. And even if a conclusive identification of a controlled substance were possible on smell alone, we sincerely doubt that the evidence presented here would suffice. See Clifton v. State, 499 N.E.2d 256, 258 (Ind.1986) (stating that even a visual identification is insufficient to prove a drug’s identity beyond a reasonable doubt when the substance has no distinctive appearance).

Consequently, Officer Modlin’s testimony purporting to identify the residue in the pipe as marijuana residue is insufficient circumstantial evidence to leave a reasonable trier of fact firmly convinced that A.M. intended to use the pipe to smoke marijuana. First, although Officer Modlin testified that he believed the residue was that of marijuana based on smell, he also acknowledged that the odors of burnt marijuana and burnt “spice” are “pretty close to the same thing” and that “[t]here’s probably not going to be much difference at all.” Tr. p. 35-86. Second, he repeatedly discredited the accuracy of his identification by stating that he “could be wrong” and that, to truly distinguish between marijuana and “spice,” one “would just have to look at the chemical makeup between the two.” Id. at 36.

Moreover, A.M.’s statements that “[t]he last thing I smoked out of it was spice” or that “[s]pice is like weed” do not supply a reasonable inference sufficient to meet the State’s burden of proving beyond a reasonable doubt that A.M. intended to use the pipe to smoke marijuana. Petitioner’s Ex. 1. While it is possible, as the State contends, that A.M. implied that he had smoked other substances such as marijuana with the pipe by referring to “spice” as the “last thing” he smoked in it and comparing the “flavor[s]” of the two, A.M. never directly admitted to smoking marijuana or any substance other than “spice” with this or any other pipe. Id. This evidence, even coupled with the equivocal testimony of Officer Modlin, “merely tends to arouse suspicion of guilt” and thus cannot sustain A.M.’s adjudication. Bradley v. State, 153 Ind.App. 421, 427, 287 N.E.2d 759, 762 (1972).

We note that there is no evidence in the record that the State sought to have the pipe tested for the presence of drugs. If the State wishes to forego this step, which is routine in drug cases, it must be prepared to face the consequences. In sum, there is simply no probative evidence that proves beyond a reasonable doubt that A.M. intended to use this pipe to smoke marijuana.

Furthermore, there is no indication in the record that the juvenile court based its determination that A.M. was a delinquent child on A.M.’s intent to smoke “spice,” which the State contends was also a controlled substance at the time. Appellee’s Br. p. 6-7. The State’s petition specifically alleged that A.M. had violated the possession of paraphernalia statute because he intended to use the pipe to smoke marijuana, not “spice.” Appellant’s App. p. 7. And although it is entirely possible that the “spice” A.M. had smoked last in the pipe was within the definition of synthetic cannabinoids prohibited under Indiana law as of January 11, 2012, the State presented no evidence that the “spice” referred to by A.M. had a chemical makeup placing it within that definition.

Nevertheless, even if the juvenile court had determined that the residue in the pipe was a synthetic cannabinoid based on an inference gleaned from Officer Modlin’s statement that he was aware that “spice” can refer to synthetic marijuana or A.M.’s statement that “[sjpice is like weed,” such an inference could not sustain A.M.’s adjudication as a delinquent child. More particularly, this would have constituted a material variance between the charging information and the proof presented at the fact-finding hearing such that A.M.’s adjudication here must be reversed. See Broude v. State, 956 N.E.2d 130, 135-136 (Ind.Ct.App.2011), trans. denied (setting out the test for when material variances require reversal).

In conclusion, the State presented insufficient evidence by which a reasonable trier of fact could have found that A.M. intended to use the pipe he possessed to introduce marijuana into his body, and any inference that A.M. intended to use the pipe to ingest a synthetic cannabinoid nevertheless fails to support the offense specifically alleged in the delinquency petition filed by the State. Accordingly, A.M.’s adjudication as a delinquent child cannot stand.

The judgment of the juvenile court is reversed.

ROBB, C.J., and BRADFORD, J., concur.

      . Ind. Code § 35-48-4-8.3.

      . Although the petition specifically referenced subsection (a)(3) of Indiana Code section 35-48-4-8.3, which prohibits the possession of paraphernalia intended to enhance the effects of a controlled substance, the text of this delinquency charge alleges that A.M. intended to use the pipe to introduce a controlled substance into his body, which is prohibited under subsection (a)(1) of the same statute. In the underlying proceedings, the court advised A.M. that it was alleged that he intended to use the pipe to introduce marijuana into his body, not to enhance the effects of marijuana. Because the parties do not address this discrepancy in their briefs, and more importantly, because we find the evidence to be insufficient to support the juvenile court's judgment under either subsection, we decline to address the issue sua sponte.

      . This definition became effective on July 1, 2011, and remained in effect until February 22, 2012. Pub. L. No. 138-2011, § 12 (S.E.A. No. 57); Pub. L. No. 182-2011, § 12 (H.E.A. No. 2011); Pub. L. No 6-2012, § 233 (making minor edits to two of the named compounds). On March 15, 2012, schedule I was reworked to include "synthetic drugs,” which were defined at Indiana Code 35-41-1-26.3 and included all of the formerly defined synthetic cannabinoid substances as well as numerous other chemical compounds. Pub. L. No. 78-2012, §§ 11, 12. On July 1, 2012, the section defining synthetic drugs was recodified into its current form at Indiana Code section 35-31.5-2-321. Pub. L. No. 114-2012, § 321.


text:
    Kirstan HAUB, d/b/a American Handyman Service, Appellant-Defendant v. Jenny ELDRIDGE, Appellee-Plaintiff.
    No. 10A01-1203-PL-107.
    Court of Appeals of Indiana.
    Nov. 27, 2012.

      Richard A. Bierly, New Albany, IN, Attorney for Appellant.
    Mickey K. Weber, Jeffersonville, IN, Attorney for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Kirstan Haub (“Haub”), d/b/a American Handyman Service (“AHS”), appeals the trial court’s denial of his motion for summary judgment against Jenny Eldridge (“Eldridge”). Eldridge cross-appeals.

We reverse and remand.

ISSUES

Haub raises one issue: Whether the trial court erred in denying his motion for summary judgment.

Eldridge raises one issue: Whether the trial court erred in not granting her summary judgment upon the issues raised by Haub’s motion for summary judgment.

FACTS

Haub, the sole proprietor of AHS, had done various home remodeling and renovation projects for Eldridge since at least 2007. In December of 2007, Haub severed a gas line on Eldridge’s property while performing some of the work.

In 2008, Eldridge hired Haub to do additional home remodeling and renovations, including refinishing hardwood floors. Haub commenced the work and submitted invoices to Eldridge. On or about September 29, 2008, Eldridge informed Haub that she had hired another contractor to redo the floors at a cost of $8,000.00 because the finish applied by Haub had peeled.

On or about October 10, 2008, Haub contacted Indiana Farm Bureau Insurance (“IFBI”), through which Haub had a commercial general liability policy (the “Policy”), and reported that Eldridge may assert a claim against him for the work done on the floors. Patrick Mihm (“Mihm”), a claims representative for IFBI, opened a claim, showing the date of loss as September 29, 2008. However, after reviewing the Policy, Mihm informed Haub that the Policy excluded coverage for defects in workmanship.

Eldridge later retained Mickey Weber (“Weber”) as her counsel. On May 1, 2009, Weber sent a letter to IFBI, advising IFBI that Eldridge had paid Haub approximately $87,000 “to perform a number of repairs, refurbishments, and improvements ...” (App. 34). Weber asserted that “[a] significant portion of the work performed by Mr. Haub was performed in a negligent and unworkmanlike manner” and that, as a result, Eldridge had incurred additional costs in the amount of $3,850 to redo the floors and approximately $10,000 for electrical work. (App. 34). Weber also asserted that Eldridge had “suffered significant inconvenience by being unable to enjoy her home and incurred expenses in housing herself and other members of her household during Mr. Haub’s protracted repairs.” (App. 34). Weber therefore requested that IFBI contact him to “discuss the possibility of settlement. ...” (App. 34).

After receiving Weber’s letter, Mihm reopened the claim. In a letter dated July 30, 2009, Mihm informed Weber that the Policy did not “apply to the claim with the exception of the Vectren Utilities service repairs of $766.59,” a cost that Eldridge had incurred after Haub ruptured a gas line on Eldridge’s property in December of 2007, as the Policy covered only “the work of the insured and not ... the work itself. ...” (App. 62). Referring to an appellate court decision, Mihm reiterated that the Policy “does not apply to the insured’s work.” (App. 62).

On February 25, 2010, Mihm sent Weber a letter, offering Eldridge “$3,500.00 to conclude her claim,” in return for which Eldridge would sign a full and final release of all claims against Haub and AHS. (App. 36). Reiterating that the Policy “does not provide coverage for defective or incomplete work,” Mihm based the offer “on the estimated costs associated with obtaining court approval of the coverage denial.” (App. 80). Mihm enclosed a full and final release of all claims (the “Release”) for Eldridge’s signature.

Later that year, Mihm retired from IFBI. On November 10, 2010, Eldridge telephoned IFBI claims representative Robert Moser (“Moser”) and told him that she had signed the Release a month earlier but had not received a check. Moser contacted Weber’s office regarding Eldridge’s telephone call.

On November 10, 2010, Weber’s office sent Moser the signed and notarized Release, to which no changes or amendments had been made. The Release provided that Eldridge agreed to

RELEASE AND FOREVER DISCHARGE [Haub, d/b/a AHS,] ... from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature, in law or in equity, however arising, up to the date of this FULL AND FINAL RELEASE OF ALL CLAIMS and specifically for any injuries, known or unknown, to the person or to property, ... resulting or to result from an accident which occurred on or about the 29 day of September, 2008 at or near [Eldridge’s home].

(App. 26). The Release further provided:

The terms of this FULL AND FINAL RELEASE OF ALL CLAIMS have been completely read and are fully understood by the undersigned(s), and is/ are voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of all claims, disputed or otherwise, and for the express purpose of precluding the commencement or continuation of any litigation by the undersigned(s) against any party RELEASED.
This FULL AND FINAL RELEASE OF ALL CLAIMS is the ENTIRE AGREEMENT between the parties and the terms of this RELEASE are contractual and not a mere recital.

(App. 26).

Upon receipt of the signed Release, IFBI issued a check to Eldridge in the amount of $3,500.00. Eldridge subsequently endorsed and negotiated the check.

On December 6, 2010, Eldridge, by Weber, filed a complaint against Haub, d/b/a AHS. Eldridge asserted that Haub was “negligent in performing the work contracted for, and as a result,” Eldridge’s property sustained damage. (App. 9). El-dridge also asserted a breach of contract claim, claiming that Haub’s “failure to perform the work in question in a good and workmanlike manner” constituted a breach of the parties’ contract. (App. 9). El-dridge also alleged unjust enrichment.

Haub filed his answer and affirmative defenses on January 28, 2011. Among other things, he asserted that Eldridge’s claim had “been liquidated and released by a written Full and Final Release of All Claims executed by [Eldridge] on October 8, 2010[.]” (App. 12). On July 14, 2011, Haub filed a motion for summary judgment “based upon the undisputed material fact that [Eldridge] has previously fully and finally released ... all of her claims,” (App. 19), “including all claims alleged in th[e] action,” against Haub. (App. 54).

Eldridge filed her response on August 15, 2011. Eldridge designated as evidence a letter, dated March 28, 2010, purportedly sent from Weber to Mihm. In the letter, Weber advised Mihm that Eldridge wished to accept IFBI’s “offer to settle for the amount of $3,500.00 for the damage insured by [IFBI] (i.e. damage caused by the accident that occurred on or about September 29, 2008).” (App. 81). Weber further advised that Eldridge’s “acceptance of this settlement would not preclude her claim against [Haub] for defective or incomplete work” and asked that any release required by IFBI reflect this condition. (App. 81).

Subsequently, Haub designated Moser’s affidavit as supplemental evidence. Moser averred that IFBI’s files did not “contain the letter from Attorney Weber to Patrick Mihm dated March 28, 2010, and the notes of Patrick Mihm, which record all contacts with the claimant or Attorney Weber do not contain reference to the letter of March 23, 2010, or any qualification to the Full and Final Release of All Claims.” (App. 94).

The trial court held a hearing on the motion for summary judgment on November 7, 2011. On January 4, 2012, the trial court entered its order, finding that a genuine issue of material fact existed regarding the following:

1. Whether the “accident” to which the release refers' is AHS’s negligence in severing the gas lines in December 2007, or whether it includes damages arising from defective or unworkmanlike improvements by AHS.
2. Whether [IFBI]’s previously denied coverage for defective or unworkmanlike improvements was nevertheless intended to be included in the $3,500 settlement.
3. Whether the March 23, 2010 letter sent by Counsel Weber, yet never received by [IFBI], limited the intent of any settlement.
4. The content and intent of the conversations between the Claims Representative and Counsel Weber and their effect as to any interpretation of the Release.

(App. 106-07). The trial court denied Haub’s motion for summary judgment.

Haub filed a petition for interlocutory appeal on March 12, 2012. This court accepted jurisdiction of the interlocutory appeal pursuant to Indiana Appellate Rule 14(B) on April 13,2012.

DECISION

Haub asserts that the trial court erred in denying his motion for summary judgment. Specifically, Haub argues that the Release is unambiguous in its release of Haub and AHS from any and all claims asserted by Eldridge and that the trial court erred in considering parol evidence to find the existence of an issue of fact.

Eldridge cross-appeals, asserting that the trial court erred by not granting her summary judgment upon the issues raised by Haub’s motion. See Ind. Trial Rule 56(B) (“When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.”). Eldridge contends that the Release “did not purport to release Haub individually for the defective and faulty work performed” by him, “and the correspondence between Eldridge and [IFBI] reflect[s] that claims arising from such defective or faulty work were clearly not contemplated in the settlement agreement that was reached.” Eldridge’s Br. at 8. In the alternative, Eldridge argues that the Release “is ambiguous on its face,” and therefore, the trial court properly denied Haub’s motion. Eldridge’s Br. at 12.

When reviewing a grant or denial of summary judgment, our well-settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Landmark Health Care Assocs., L.P. v. Bradbury, 671 N.E.2d 113, 116 (Ind.1996). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Ind. T.R. 56(C); Blake v. Calumet Const. Corp., 674 N.E.2d 167, 169 (Ind.1996). “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.” Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct.App.1991).

All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996). However, once the movant has carried its initial burden of going forward under Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues, which should be resolved at trial. Otto v. Park Garden Assocs., 612 N.E.2d 135, 138 (Ind.Ct.App.1993), trans. denied. If the non-movant fails to meet his burden, and the law is with the movant, summary judgment should be granted. Id.

Generally, appellate courts uphold releases as releases serve the important public policy of facilitating the orderly settlement of disputes. Prall v. Indiana Nat. Bank, 627 N.E.2d 1374, 1377 (Ind.Ct.App.1994). “Releases are not merely to pay the releasor the first installment on what he should have, leaving the matter open for the releasor to come back for more later. On the contrary, a settlement is made, and a general release taken for the purpose of foreclosing further claims.” Id.

Releases are contracts, and as with any contract, should be interpreted according to the standard rules of contract law. Cummins v. McIntosh, 845 N.E.2d 1097, 1103 (Ind.Ct.App.2006), trans. denied.

In general, if the language of a contract is unambiguous, the intent of the parties is determined from the four corners of the document. However, when the language in a contract is ambiguous or uncertain, its meaning is to be determined by the consideration of extrinsic evidence. A contract is ambiguous only where a reasonable person could find its terms susceptible to more than one interpretation.

Id. at 1104 (internal citations omitted).

“Courts should interpret a contract so as to harmonize its provisions, rather than place then in conflict.” Haire v. Parker, 957 N.E.2d 190, 196 (Ind.Ct.App.2011), trans. denied. Thus, all attempts to construe the language of a contract shall be done so as to avoid rendering any words, phrases, or terms ineffective or meaningless. Id. Where the terms of a release are unambiguous, “courts must give those terms their clear and ordinary meaning.” Id.

The parties dispute whether the Release functioned to release only IFBI from Eldridge’s claims or whether it functioned to release Haub. Here, the Release specifically provided that Eldridge released and forever discharged Haub, d/b/a AHS. There is no ambiguity as to the release of Haub, where the Release specifically named Haub, and only Haub, as the released party. Cf. Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264, 1267 (Ind.1992) (stating that, in determining whether a release applies to joint tort-feasors, a release shall be interpreted as releasing only those persons clearly identified by its provisions with no “contradictory references”).

The parties also dispute the extent of the claims barred by the Release. Haub asserts that by executing the Release, Eldridge “surrender[ed] her right to prosecute any claim against Haub and AHS existing up to the date of execution.” Haub’s Br. at 16. Eldridge, however, asserts that the Release only applies to “damages resulting from an ‘accident’ or ‘occurrence’ as defined by [the Policy].” Eldridge’s Br. at 8. Thus, Eldridge maintains that the Release does not cover claims arising from Haub’s defective work.

The Release provides for the release of Haub “from any and all claims, ... however arising, up to the date of’ the Release “and specifically for any injuries ... resulting or to result from an accident which occurred on or about” September 29, 2008, at Eldridge’s home. (App. 26) (emphases added). The word “and” is conjunctive and defined “as a function word to indicate connection or addition especially of items within the same class or type.... ” Merriam—Webster Dictionary, available at http://www.merriam-webster. com/dictionary/and (last visited Oct. 15, 2012).

The plain language of the Release covers all claims Eldridge may have against Haub for faulty or defective work, arising up to and including October 8, 2010, the date Eldridge signed the Release, including, but not limited to, any claim that arose on or about September 29, 2008. Given that the Release makes no reference to the Policy or IFBI’s coverage under the Policy, we cannot say that the language in the Release limits it to only “claims arising from an ‘accident’ or ‘occurrence’ as defined by” the Policy. Eldridge’s Br. at 7.

The clear and plain language of the Release continues, providing that the terms of the Release “have been completely read and are fully understood by [Eldridge] ... for the purpose of making a full and final compromise adjustment and settlement of all claims, disputed or otherwise, ... against [Haub].” (App. 26) (emphasis added). In addition, the Release unambiguously provides that “it is the ENTIRE AGREEMENT between the parties.... ” (App. 26). There is no contradictory language in the Release regarding its coverage that necessitates a factual determination. Accordingly, we find that the trial court erred in considering parol evidence, where the Release unambiguously releases Haub from any and all claims that El-dridge may have had against him on or before October 8, 2010. See Prall, 627 N.E.2d at 1378 (finding claims to be barred by a mutual release where the release did not contain limiting language and the “clear language of the release states it applies to all and any claims or actions”); but of., e.g., Cummins, 845 N.E.2d at 1107 (finding that contradictory references necessitated a factual determination regarding the scope and effect of the release).

We therefore find that the trial court erred in denying Haub’s motion for summary judgment and that Eldridge is not entitled to summary judgment. We reverse and remand with instructions that the trial court enter summary judgment in favor of Haub.

Reversed and remanded.

FRIEDLANDER, J. and BROWN, J., concur.

      . Mihm attached this court’s opinion, Sheehan Constr. Co., Inc. v. Cont'l Cas. Co., 908 N.E.2d 305 (Ind.Ct.App.2009), which held that damage to the class members’ homes due to faulty workmanship or defective materials was not “property damage” for purposes of commercial general liability coverage. This opinion, however, was vacated when the Indiana Supreme Court granted transfer. Subsequently, in Sheehan Constr. Co., Inc. v. Cont’l Cas. Co., 935 N.E.2d 160, reh’g granted (Dec. 17, 2010), opinion adhered to as modified on reh’g, 938 N.E.2d 685 (Ind.2010) and reh’g denied, the Indiana Supreme Court held that a contractor’s commercial general liability policy could provide coverage for subcontractors’ faulty workmanship, depending on the facts. Specifically, faulty workmanship could constitute an accident under a commercial general liability policy if the faulty workmanship was a product of unintentional conduct.

      . The parties did not have a written contract.


author: MAY, Judge.

text:
    Kenneth S. TIPTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 47A01-1201-CR-4.
    Court of Appeals of Indiana.
    Dec. 21, 2012.

      Lorinda Meier Youngcourt, Lawrence County Public Defender Agency, Bedford, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Kenneth Tipton was convicted of Class C felony criminal recklessness; Class D felony dealing in marijuana; and being an habitual offender after he shot at a house during a standoff with police. He argues on appeal the evidence was insufficient to convict him of criminal recklessness because that offense requires proof there was a risk of injury to a person, but nobody was in the house when he shot at it. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 16, 2009, two Bedford police officers went to Tipton’s house to arrest him after his wife reported a domestic battery. Tipton’s brother Donnie allowed the officers to enter the house, and he told the officers he was there alone. As one officer walked toward the hallway, he saw Tipton coming toward him with a gun. The officer yelled “gun” and both officers tried to exit through the front door. (Tr. at 1639.) Tipton fired a shot while the officers were still in the house.

The officers ran in different directions when they left the house, and they sought cover behind trucks. Tipton fired at one of the officers, and then retreated into the house. The other officer called for reinforcements. Tipton allowed his brother to leave the house, but then he fired another shot. After additional officers arrived, Tipton fired more shots, two of which hit a police car. Some shots hit the house across the street. The residents, Adam Mullís and his wife, were not home at the time.

Poliee spoke to Tipton on the telephone, and Tipton agreed he would surrender if he were charged with only a minor offense. An officer at the police station wrote a letter saying Tipton would be charged only with criminal recklessness if he surrendered, and the officer read the letter to Tipton over the telephone. Tipton surrendered, but then was charged with criminal recklessness along with three other charges: attempted murder, dealing in marijuana, and being an habitual offender.

A jury acquitted Tipton of attempted murder but found him guilty of the other charges. The court sentenced him to a total of twenty-three years.

DISCUSSION AND DECISION

A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury, to another person commits criminal recklessness. Ind.Code § 35-42-2-2. The offense is a Class C felony if it is committed “by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather.” Id. Tipton argues the State did not prove the element “substantial risk of bodily injury to another person” because nobody was in the dwelling when Tipton shot at it.

The State initially notes, correctly, that the plain language of the statute does not require that the person who faces the risk of injury be an inhabitant of the house, nor does it explicitly require “any person be physically inside of the building at the exact moment of the defendant’s reckless action.” (Br. of Appellee at 13.) As there were a number of other persons who were at risk, specifically all the police officers, the State argues the statutory requirements are satisfied.

We decline to affirm on that ground, as that is not the way the State charged Tipton or prosecuted him. The charging information stated Tipton performed “an act that created a substantial risk of bodily injury to another person by shooting a firearm into an inhabited dwelling, to wit [the Mullís residence].” (App. at 19.) It did not allege the police officers were at risk. In its opening statement, the State told the jury “the evidence is going to show you and you’re going to be firmly convinced that he committed criminal recklessness. When he’s shootin [sic] in the inhabited house behind him, the place where his neighbors live gets shot up.” (Tr. at 601.) In closing argument, the State argued to the jury that:

[Tipton] surrendered, but not before the damage was done, not before ... the home of Adam Mullís, the place where Adam Mullís slept, the place where Adam Mullís, [sic] had food in his refrigerator, a TV to watch, a couch to sit on in the living room. [Tipton] surrendered but not before he had shot that house.... Adam Mullís lived there. He inhabited that house and Kenny Tipton’s shooting was reckless.

(Id. at 1882-83) (footnote added).

We must therefore determine whether Tipton’s acts created “substantial risk of bodily injury” to the Mullises. They did. We reviewed our decisions on the object of “substantial risk” in Smith v. State, 688 N.E.2d 1289 (Ind.Ct.App.1997). Smith test fired his pistol at an old car parked in his backyard. Several homes were located within a fifty-yard radius of the old car. Inside one home that was in Smith’s direct line of fire, a light and a television were on, but a police officer could not get anyone inside that house to come to the door. There was a “large mass of people,” id. at 1290, walking on the street near Smith’s home. They were leaving a festival at a nearby park and were in range of Smith’s gunfire. Smith contended the State presented insufficient evidence his conduct created a substantial risk of bodily injury.

Distinguishing decisions that found no such risk, we disagreed:

“Substantial” risk is risk that has “substance or actual existence.” Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind.Ct.App.1995) [, reh’g denied, trans. denied] (citing Elliott v. State, 560 N.E.2d 1266, 1267 (Ind.Ct.App.1990)). Smith points to our opinions in Boushehry and Elliott in support of his argument that the State relied on mere speculation that his actions posed a substantial risk of bodily injury to another person. However, both cases relied upon by Smith are distinguishable from the instant case.
In Elliott, the defendant fired five pistol shots from his place of business over uninhabited fields and woodlands which bordered his business. Elliott, 560 N.E.2d at 1267. Some of Elliott’s employees were present at the time; however, none of the employees were in his line of fire. Id. Moreover, although hunters were known to hunt in the adjacent fields and woodlands, no evidence was presented that anyone was present in the woodlands or fields. Id. Accordingly, we reversed Elliot’s criminal recklessness conviction concluding that his conduct did not create a substantial risk of bodily injury to another person “because there were no people in or near his line of fire.” Id.
Similarly, in Boushehry, the defendant went to a vacant lot and fired two or three shots from his .22 caliber rifle at some geese. Boushehry, 648 N.E.2d at 1176. The defendant’s shots were fired in the direction of Shelbyville Road, which bordered the vacant lot. Id. As with the “nonexistent hunters in Elliott,” we concluded that the possibility of a motorist passing by on Shelby-ville Road at the time the defendant fired his gun presented “only a remote risk of bodily injury.” Id. at 1177. Because the record contained no evidence that anyone was in or near the defendant’s line of fire, we held that the State failed to prove the actual existence of substantial risk of bodily injury to another person. Id.
Unlike in Boushehry and Elliott, the evidence and reasonable inferences to be drawn therefrom indicate that there were individuals in or near Smith’s line of fire. Here, the State presented evidence that Smith test fired his gun at least six times in his backyard by shooting at an old car. Officer Baldwin testified that there were approximately ten residential homes located within fifty yards of the car, and that one of the homes was in the direct line of Smith’s gunfire. Although nobody answered the door of that home upon Officer Baldwin’s investigation, Officer Baldwin stated that he noticed both a light and a television on in the home, creating a reasonable inference that a person was in the home at the time of the Smith’s activity. Moreover, the record shows that a large mass of people inhabited the street near Smith’s backyard at the time of his test firing because a festival had just ended at a park nearby. Indeed, Officer Baldwin testified that Smith’s test firing activity occurred within a “stone’s throw” of these people.
Based upon this evidence, the jury could reasonably infer that Smith’s conduct created an actual and substantial risk of bodily injury to another person. There was sufficient evidence to support his conviction for [sic] criminal recklessness.

Id. at 1291. In the case before us, as in Smith, a reasonable inference could have been drawn that a person might have been in the Mullís home when Tipton shot at it.

The statute under which Tipton was charged requires there be an inhabited dwelling: “criminal recklessness is a Class C felony if it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather.” Ind.Code § 35-42-2-2. Tipton argues the house was not the “inhabited dwelling” the statute requires because nobody was home. He notes a statutory definition of “dwelling” as “a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person’s home or place of lodging,” Ind.Code § 85-31.5-2-107, and claims: “If the Legislature intended to elevate criminal reckless [sic] to a class C felony simply upon a showing that the building or structure shot into was a ‘person’s home or place of lodging,’ then the word dwelling would have sufficed.” (Reply Br. of Appellant at 4.) Compare Ind. Code § 35-43-2-1 (burglary is a Class B felony if it is committed while armed with a deadly weapon or the building or structure is a dwelling).

While we recognize our obligation when reviewing a statute to, “if possible, give effect to every word and clause therein,” Indiana State Bd. of Health v. Journal-Gazette Co., 608 N.E.2d 989, 992 (Ind.Ct.App.1993), opinion adopted sub nom. Indiana State Bd. of Health v. State Journal-Gazette Co., 619 N.E.2d 273 (Ind.1993), we decline to hold a dwelling is necessarily “uninhabited” for criminal recklessness purposes when its residents are briefly away.

Our Supreme Court has addressed the burglary statute, which refers only to a “dwelling,” and not an “inhabited” dwelling. It is clear in that context that a place may be a “dwelling” even when the residents are temporarily away. In Phillips v. State, 514 N.E.2d 1073 (Ind.1987), Phillips claimed the residences he broke into were not dwellings, so he could not be found guilty of Class B felony burglary. The buildings burglarized were places of residence, but at the time of the burglaries the residents were spending some of the winter months out-of-state. Phillips cited Smart v. State, 244 Ind. 69, 190 N.E.2d 650 (1963), which was based on an earlier version of the burglary statute. Before its 1982 amendment, the statute defined first-degree burglary as breaking and entering a dwelling or other place of human habitation. Smart and other decisions held the statute required a showing the building was a dwelling and that persons were dwelling in it at the time of the break-in. Phillips, 514 N.E.2d at 1075. The amended statute, now Ind.Code § 35-43-2-1, provided the offense of breaking into a structure was a class B felony if the building or structure was a dwelling:

We agree that the present statute does not require the occupier of the residence to be in the home at the time of the burglary. Here, the evidence revealed the structures were the permanent places of residence of the Perkins’s and Ellis’s. The fact they were temporarily out of the homes on vacation at the times of the break-ins does not remove the homes from the definition of dwellings. We therefore find no reversible error on the issue of sufficiency of the evidence to support the convictions.

514 N.E.2d at 1075.

We reached the same conclusion where arson was involved, but like the burglary statute, the arson statute requires only a “dwelling,” not an “occupied” or “inhabited” dwelling. See White v. State, 846 N.E.2d 1026, 1030 (Ind.Ct.App.2006) (noting arson is committed when a person, “by means of fire, knowingly damages a dwelling of another person without the other person’s consent”) (quoting Ind.Code § 35-43-l-l(a)(l)), trans. denied. And see generally T.T.F. Huang, Annotation, Vacancy or nonoccupancy of building as affecting its character as “dwelling” as regards arson, 44 A.L.R.2d 1456 (1955):

Whether or not the vacancy or nonoc-cupancy of a particular building will affect its status as a “dwelling” in connotations pertaining to the crime of arson depends upon the circumstances giving rise to such vacancy or nonoccupancy. Speaking generally, an unfinished or incomplete building which has not yet been occupied will not be regarded as a “dwelling” even though designed as a dwelling house and destined to be so used on completion. Conversely, where a building originally used as a dwelling house has been abandoned for such purposes or where such a building has been without a tenant or occupant for a prolonged period, it will not be regarded as a “dwelling.”
On the other hand, the mere temporary absence of occupants, at the time of the fire, from a building in general use as a dwelling house will not, in the view of most courts, alter the status of the structure as a “dwelling” for purposes pertinent to arson prosecutions.

(Footnotes omitted.)

It does not appear our appellate courts have addressed whether a dwelling remains “inhabited” when the people who live there are temporarily away from home, but decisions from other courts are instructive. In Carthern v. State, 272 Ga. 378, 529 S.E.2d 617 (2000), a jury found Carthern guilty of criminal damage to property in the first degree for shooting a gun into the house of a neighbor. Carth-ern fired his gun as he walked down his street at four o’clock in the morning. The family that lived in the house was on vacation, but the Court noted there was no evidence Carthern knew no one was home. Id. at 618.

The issue in Carthern’s appeal was whether the act of firing a gun into a residence when no one is physically present interferes with property in a manner so as to endanger human life. “Construing the phrase ‘endanger human life’ to mean reckless endangerment of another, we hold that a person who fires gunshots into an inhabited dwelling where people are likely to be present endangers human life within the meaning of the statute.” Id. (footnote added). The Court noted Carth-ern “fired a gun at night into an inhabited dwelling where residents were likely to be present, thus recklessly endangering the life of another. The fact that the occupants of the house were not physically present does not lessen the risk of danger to others or the recklessness of his behavior.” Id. at 620. That Court apparently believed a residence was “inhabited” as long as someone was “likely” to be inside.

The California Supreme Court surveyed decisions addressing what it means for a dwelling to be “inhabited.” People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1027 (1994), reh’g denied, overruled on other grounds by People v. Sarun Chun, 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425 (2009):

The discharge of a firearm at an inhabited dwelling house — by definition, a dwelling “currently being used for dwelling purposes, whether occupied or not” [citing Cal.Penal Code § 246, which establishes the offense of “shooting at inhabited dwelling house”] — is a felony whose commission inherently involves a danger to human life. An inhabited dwelling house is one in which persons reside (People v. Rodriguez (1986) 42 Cal.3d 1005, 1018, 232 Cal.Rptr. 132, 728 P.2d 202) and where occupants “are generally in or around the premises.” (People v. White (1992) 4 Cal.App.4th 1299, 1303, 6 Cal.Rptr.2d 259, italics in original.) In firing a gun at such a structure, there always will exist a significant likelihood that an occupant may be present. Although it is true that a defendant may be guilty of this felony even if, at the time of the shooting, the residents of the inhabited dwelling happen to be absent (People v. Rodriguez, supra, 42 Cal.3d at p. 1018, 232 Cal. Rptr. 132, 728 P.2d 202), the offense nonetheless is one that, viewed in the abstract — as shooting at a structure that currently is used for dwelling purposes — poses a great risk or “high probability” of death within the meaning of Patterson. The nature of the other acts proscribed by section 246 reinforces the conclusion that the Legislature viewed the offense of discharging a firearm at an inhabited dwelling as posing a risk of death comparable to that involved in shooting at an occupied building or motor vehicle.

Similarly, in Matter of Mario Y, 75 A.D.2d 954, 428 N.Y.S.2d 71, 74 (1980), a juvenile argued shooting at a house that was normally occupied as a residence was not reckless endangerment because the occupants worked during the day and he believed that it was unoccupied at the time. The court rejected that argument: “Appellant’s total disregard of the possibility that someone might be home constituted such a gross disregard of the risk and such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute reckless endangerment.” Id.

We adopt the reasoning of those courts that have held the fact the occupants of a house were not physically present does not lessen the risk of danger to others or the recklessness of his behavior and that shooting at a structure currently used as a dwelling poses a great risk or “high probability” of death. We accordingly hold a residence may be “inhabited” for criminal recklessness purposes if someone is likely to be inside.

While the weight of authority suggests the resident need not be at home for there to be an “inhabited dwelling,” Tipton notes the State tried him on the premise that the only persons placed at “substantial risk of bodily injury,” Ind.Code § 35-42-2-2, were the Mullises, and they were not home. He makes a due process argument based on Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), where the Supreme Court said:

To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused.

This is not a situation where a variance between the charging information and the evidence presented at trial raises a due process concern. A charging information must allege the elements of the crime such that the accused is sufficiently apprised of the nature of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial. Bayes v. State, 779 N.E.2d 77, 80 (Ind.Ct.App.2002), trans. denied. The State is not required to include detailed factual allegations in the charging instrument. Id. “A variance is an essential difference between the charging instrument and the proof presented at trial.” Id.

Tipton’s charging information alleges he shot into the “inhabited dwelling” at 2419 J Street, (App. at 19), and that act created “a substantial risk of bodily injury to another person.” Id. (emphasis added). The charging information therefore does not necessarily seem to be inconsistent with the argument the State makes on appeal that the statute is satisfied if any “other person” is at risk of injury. Nor does there appear to be a “variance” between the general charging information and the more specific argument and evidence offered at trial.

Instead, it appears Tipton is arguing the evidence was insufficient to support his conviction because the only persons the State argued Tipton placed at substantial risk of bodily injury, the Mullises, could not in fact have been at any such risk— they were not present at the time of the shooting. As explained above, we believe someone shooting a gun at a residence may, for purposes of a criminal recklessness prosecution, create a substantial risk of bodily injury to another person even if the resident is away from home at the moment of the shooting. We must accordingly affirm Tipton’s conviction.

Affirmed.

BAKER, J., and SHEPARD, Sr. J., concur.

      . Ind.Code § 35-42-2-2.

      . Ind.Code § 35-48-4-10.

      .Ind.Code § 35-50-2-8.

      .Tipton also argues the trial court erred because it did not designate which conviction was to be enhanced by the habitual offender finding. When a defendant is convicted of multiple offenses and found to be an habitual offender, the trial court must impose the resulting penalty enhancement on only one of the convictions, and it must specify the conviction to be enhanced. McIntire v. State, 717 N.E.2d 96, 102 (Ind.1999). Failure to specify requires remand to correct the sentence as it regards the habitual offender status. Id. The State acknowledges the trial court did not designate the conviction to which the habitual offender enhancement was to be attached.
      Remand is not required in light of the facts before us. The court ordered a twelve-year habitual offender sentence enhancement, and a twelve-year enhancement could be imposed only if the enhancement was attached to Tip-ton’s Class C felony conviction. "The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense.” Ind.Code § 35-50-2-8(h). The sentence enhancement available for Tipton’s criminal recklessness conviction was four to twelve years: "A person who commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years.” Ind.Code § 35-50-2-6. The sentence enhancement possible for Tipton’s dealing in marijuana conviction was 18 months to 4.5 years: "A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1 ½) years.” Ind.Code § 35-50-2-7. Thus, the court could have been attaching the sentence enhancement only to Tipton’s sentence for Class C felony criminal recklessness.

      . We heard oral argument in Indianapolis on October 23, 2012. We commend counsel on the quality of their oral advocacy.

      . Ind.Code § 35-41-5-1 (attempt); 35-42-1-1 (murder).

      . After Tipton surrendered, police searched his house ánd found what they called a "marijuana grow operation.” (Tr. at 1611.)

      . During trial, Tipton's counsel asked for a directed verdict on the criminal recklessness count on the ground the State did not name the "other person” who was allegedly placed at risk of injury. (Tr. at 1681.) The State responded it was not necessary that the "other person” be named, but then went on to say:
      The State has proved the other person though. The State has met its burden. The person came in, testified, Your Honor, Adam Mullís came in and testified that he, it was common, likely for him to be at home on a Sunday in an evening at that residence. So I, I’ve met beyond, or I mean I’ve met the threshold to survive a directive [sic] verdict.

        (Id. at 1689.) The court denied the motion for directed verdict on the criminal recklessness count.

      . In its charging information the State alleged only that Tipton shot into an inhabited dwelling. It did not allege he shot into some other building or place where people are likely to gather.

      . There does not appear to be a statutory definition of "inhabited” or “inhabited dwelling.”

      .At that time, a "dwelling” was defined as "a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person's home or place of lodging.” Ind.Code § 35-41-1-10.

      . That offense is committed when a person ‘‘[k]nowingly and without authority interferes with any property in a manner so as to endanger human life.” Ga.Code § 16-7-22.

      . The Carthem court followed “the Model Penal Code’s formulation that the ‘actual risk of danger’ must exist and the defendant must at least act recklessly. This interpretation is consistent with the purpose of the statute in seeking to protect human life and recognizes the heightened punishment for criminal damage to property when human safety is threatened.” 529 S.E.2d at 620.