author: ROBB, Chief Judge. BROWN, Judge,

text:
    In the Matter of M.S. (a Child Alleged in Need of Services), and K.S., (Mother), Appellant-Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee Petitioner.
    No. 67A04-1305-JC-212.
    Court of Appeals of Indiana.
    Dec. 27, 2013.

      Joel C. Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

K.S. ("Mother") appeals the trial court's dismissal of the Child in Need of Services ("CHINS") case regarding her son M.S. Mother raises two issues for our review: (1) whether the trial court's out-of-state placement of M.S. with his father ("Father") was error; and (2) whether the Indiana Department of Child Services ("DCS") request for dismissal of the CHINS proceedings violated Indiana Code section 31-34-21-5.5 by failing to make reasonable efforts to preserve a family. Concluding the trial court's placement of M.S. was not error and that Indiana Code section 31-834-21-5.5 was not violated, we affirm.

Facts and Procedural History

On February 4, 2013, DCS received a report that Mother was abusing drugs inside the home and leaving her five children with their sick grandmother while she went out seeking drugs. Two days later, on February 6th, a DCS case manager visited Mother's home and requested that Mother submit to a random drug sereen. Mother submitted to the drug test and admitted to the DCS officer that she would likely "test positive for Vicodin, marijuana and morphine." Transcript at 4. The case manager spoke with the children, but Mother would not allow them to leave earshot, and it was apparent to the case manager that the children had been coached or were afraid to speak.

On February 8th, DCS again visited the home and learned that Mother had been missing since DCS's prior visit. DCS was able to speak with the children, who confirmed they had not seen Mother for a few days. The children revealed several facts which were of concern to DCS, including: Mother had given one of the children a black eye the previous year; one of the children, who was two years old, was kept strapped into a car-seat constantly throughout the day and slept in the car-seat at night; the children's grandmother or low-functioning aunt are often left to take care of the children; grandmother takes a lot of medicine and often falls asleep while watching the children; and grandmother hits the children on the arms and legs with a wooden back-scratcher. DCS also observed that the children exhibited a foul odor, as if they had not bathed for a while. The children were removed from the home that afternoon.

DCS filed a CHINS petition on February 12th, alleging Mother was dependent on drugs, that she was unable to care for her children, and that proper caregivers had not been provided for the children. A detention and initial hearing was held on the same day, but Mother failed to appear because DCS was unablé to contact her or determine her whereabouts. DCS was also in the process of locating M.S.'s father, who was in the military and stationed in the State of Washington. Mother's drug test results came back positive for methamphetamine, amphetamine, cocaine, BZE, hydromorphone, and morphine. M.S. remained in foster care following the hearing.

On February 28, 2018, the trial court held an admission hearing at which both Mother and Father were present. Mother admitted to the allegations in the CHINS petition and that M.S. was a CHINS. The trial court then questioned Fathér regarding his willingness and ability to take care of M.S. Father indicated that he was willing and able to care for M.S.; he rented an apartment and lived by himself; and he would be honorably discharged from the military in three months and indicated that he planned to find employment in the private sector. Mother stated that she would rather see M.S. placed with Father than with a foster family but expressed concern about the long-distance situation the placement would create..

On March 4, 2018, the trial court issued a written Order on Initial/Detention and Custody Hearing, which provided for the placement of M.S. with Father over the objection of DCS. Specifically, the trial court found:

The placement is an emergency required to protect the health and welfare of the children for the following reasons: [M.S.] is eurrently in a foster home which is more restrictive than necessary. [Father] is fit, willing and able to care for him and it is in [M.S.'s] best interest to be in the care and eustody of his father.

Appellant's Appendix at 15. The trial court also ordered an inspection of Father's home to determine the safety and fitness of the home for the purpose of housing a child, which was to be completed by March 21, 2018.

A dispositional hearing was held on March 21, 2018. At that time, DCS had not yet arranged an inspection of Father's home in Washington. Mother's attorney said that Mother was living a "transient existence," tr. at 91; Mother had no permanent residence, vehicle, or phone at the time. Because of those cireumstances and Mother's drug-related issues, it was pointed out that administration of DCS services for Mother would be hindered and that there may be difficulties with arranging supervised visitation.

Father informed the court that his term in the military would be over at the end of May and that he planned to move to San Diego, California at that time. While Father was at work, his mother (M.S.'s paternal grandmother), who had gone up to Washington from her home in San Diego, had been watching M.S. The parties also discussed eustody of M.S. at the disposi-tional hearing. Father had obtained a default divorcee from Mother in 2009 from a court in San Diego County, California. However, that court declined jurisdiction over M.S., and thus, no custody determination had ever been made with respect to M.S.

DCS arranged for an inspection of Father's home to be conducted by the Community: and Family Services Foundation ("CFSF") of Port Orchard, Washington. The inspection was done on April 17, 2013. The inspector found no substantial safety concerns and reported that "[IM.S.] was a very happy and well adjusted boy." Appellant's App. at 28. The report also noted that "[M.S.] was emphatic that he wants to live with his father." Id. at 29.

On April 23, 2018, DCS filed a motion to dismiss the CHINS proceedings as to M.S., stating there was no good cause why the trial court should continue jurisdiction in the matter; DCS attached the CFSF report as an exhibit to its motion to dismiss. The trial court granted the DCS motion on April 24, 2013. This appeal followed.

Discussion and Decision

I. Out-of-State Placement of M.S. with Father

Mother contends that the trial court erred by placing M.S. with Father, who lives in the State of Washington, after M.S. was adjudicated a CHINS. Mother points to Indiana Code section 31-34-20-1, which regulates the out-of-state placement of a child in CHINS proceedings. The pertinent portion of that statute provides:

(b) A juvenile court may not place a child in a home or facility that is located outside. Indiana unless:
(1) the placement is recommended or approved by the director of the department or the director's designee; or
(2) the juvenile court makes written findings based on clear and convine-ing evidence that:
(A) the out-of-state placement is appropriate because there is not a comparable facility with adequate services located in Indiana; or
(B) the location of the home or facility is within a distance not greater than fifty (50) miles from the county of residence of the child.

Ind.Code § 31-34-20-1(b). Mother argues that the trial court's placement of M.S. violates the statute and is not supported by the evidence. Conversely, DCS contends that the child's placement with Father was not error.

Importantly, M.S.'s placement was not recommended or approved by the director of DCS, and the location of Father's home was more than fifty miles from M.S.'s previous residence. Thus, the trial court must have found "based on clear and convincing evidence that ... the out-of-state placement is appropriate because there is not a comparable facility with adequate services located in Indiana...." Id.

When reviewing a judgment requiring proof by clear and convincing evidence, an appellate court may not impose its own view as to whether the evidence meets that burden. A.J.L. v. D.A.L., 912 N.E.2d 866, 870 (Ind.Ct.App.2009). Rather, we ask whether a reasonable trier of fact could conclude that the evidence supports the judgment, considering only the probative evidence and reasonable inferences that support the judgment. Id. We will neither reweigh evidence nor judge witness credibility. Id.

We begin by recognizing that M.S. was not placed in an out-of-state facility arbitrarily chosen by the trial court. Rather, M.S. was placed with his natural father. Indeed, "Indiana law has long recognized that 'natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control, and education.'" In re Guardianship of B.H., 770 N.E.2d 283, 285 (Ind.2002) (quoting Gilmore v. Kitson, 165 Ind. 402, 406, 74 N.E. 1083, 1084 (1905)). We believe this presumption in favor of natural parents lends strong support to the trial court's decision to place M.S. with Father.

At the outset, the trial court's decision looks very different when the proposed out-of-state placement is with a natural parent. The court's inquiry is whether "out-of-state placement is appropriate because there is not a comparable facility with adequate services located in Indiana." Ind.Code § 31-34-20-1(b)(2)(A). Placement of a child with his natural parent is a unique situation, and no facility-inside or outside of Indiana-is equal to it. Here, M.S.'s previous living situation was with a foster family, and Father was willing and able to take custody of M.S. At the time of the placement, Father had a steady job as a military serviceman and intended to seek employment in the private sector upon his discharge, at which time he intended to move to San Diego, California, near M.S.'s paternal grandmother. An inspection of Father's home in Washington revealed that the home "met all safety requirements" and that "[M.S.] was a very happy and well adjusted boy." Appellant's App. at 28. The inspection report also noted that M.S. wished to continue living with Father.

Mother's argument on appeal points out that Father had not seen M.S. in four years and that the trial court had no independent knowledge of the condition of Father's home at the time of placement. Indeed, an inspection of the home was not conducted until after M.S. began living with Father in Washington. We believe more in-depth questioning of Father and a home inspection prior to placement would have certainly been prudent. A more cautious approach would be preferable when placing a child out-of-state in this seenario. Although, here, the end result was to the child's benefit, it is not difficult to imagine how this story could have had a not-so-happy ending.

We believe that the evidence in this case supported the continued out-of-state placement with M.S.'s natural father, which the trial court found to be in the child's best interest. Therefore, the trial court's decision to place M.S. with Father and eventually dismiss the CHINS proceedings was not error.

II. Preservation of Families

Mother also argues on appeal that DCS neglected its duty under Indiana Code section 31-84-21-5.5 to make "reasonable efforts to reunify or preserve a family." In seeking that end, "the child's health and safety are of paramount concern." Ind.Code § 31-34-21-5.5(g).

DCS maintains that its reunification efforts were reasonable in this case, pointing out that Mother was ill-equipped to care for M.S. and that the primary concerns for M.S.'s health and safety were satisfied through continued placement with Father. We agree. The health and safety of M.S. was served by his placement with Father, as evidenced by the CFSF report stating the same. Moreover, the placement of M.S. with Father was a familial reunification of sorts, albeit not of the kind Mother would have preferred. In light of the circumstances, we believe DCS's reunification efforts were reasonable.

Conclusion

Concluding the trial court's placement of M.S. with Father was not error and that DCS did not violate Indiana Code section 31-34-21-5.5, we affirm.

Affirmed.

BARNES, J., concurs.

BROWN, J., concurs with separate opinion. «

BROWN, Judge,

concurring.

The majority observes that the court did not have independent knowledge of the condition of Father's home at the time of M.S.'s placement, noting that the inspection was not conducted until after M.S. began living with Father in Washington, and states that "[a] more cautious approach would be preferable when placing a child out-of-state in this seenario." Op. at 1041. Although I concur with the majority, I write separately to note that not only do I agree it would have been prudent to perform the home inspection prior to placing M.S., but I am also concerned about the subsequent lack of supervision provided by the trial court prior to dismissing the CHINS proceedings. M.S. was placed with Father on March 4, 2013 at the initial detention hearing and allowed to go with Father to Washington. On April 4, 2013, the court entered a dispositional decree regarding Father which ordered him to perform a number of actions including contacting the family case manager weekly, notifying the family case manager of any household or employment changes and any arrest of any household member, enrolling in programs if recommended by the family case manager, keeping all appointments with any service providers, signing any releases necessary for the family case manager to monitor compliance with the terms of the court's order, maintaining suitable, safe, and stable housing, refraining from consuming or selling any controlled substances, obeying the law, submitting to random drug/alcohol screens, meeting all the medical and mental health needs of M.S. in a timely and complete manner, providing M.S. with a safe, secure, and nurturing environment and being an effective caregiver with the necessary skills, knowledge, and abilities to provide M.S. with this type of environment on a long term basis, ensuring that M.S. will become engaged in a home-based counseling program, and seeing that M.S. is properly fed, supervised, and enrolled in and attending school, The decree awarded DCS wardship of M.S. with the responsibility for supervision, care, and placement. The decree also scheduled a periodic case review hearing for June 27, 2013. On April 17, 2018, the CFSF in Washington conducted an inspection of Father's home, and on April 23, 2013, less than a week after the inspection, DCS filed its motion The court granted the motion the next day. to dismiss the CHINS proceedings.

Ind.Code § 31-34-21-11 provides that "[wlhen the juvenile court finds that the objectives of the dispositional decree have been met, the court shall discharge the child and the child's parent, guardian, or custodian." Clearly the statute contemplates achievement of the requirements of the dispositional decree. Here, in the short span of nineteen days between the entry of the decree and the filing of the motion to dismiss by DCS, there was no time to have the scheduled case review hearing and no showing whatsoever of Father's compliance with any of the terms of the decree.

Ind. Trial Rule 41(A)(2) allows for voluntary dismissals by order of the court and provides in part that "[elxeept as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." (Emphasis added).

Mother testified at the February 28, 2013 hearing that she was "floored" to see and speak to Father because she had not "seen him in almost four and a half years," he "has been an absent ... parent," and he was "a stranger" to M.S. Transcript at 65. Father did not dispute this. Father also indicated that although he had another child who was eight years old at the time of the hearing, he had not seen that child in about seven years. Further, Father indicated to the CFSF at the inspection of his Washington apartment that he was intending to move to San Diego "soon" and would be establishing a new residence there. Appellant's Appendix at 28. Under such cireumstances, despite the motion by DCS to dismiss the CHINS petition, I believe that M.S. would have been better served had the court denied the motion and ordered that DCS continue with services for a period of time to monitor Father's parenting and compliance with the terms of the decree.

      . There were five children involved in the CHINS proceedings; however, this appeal only concerns the placement of M.S.

      . DCS contends that both Father and Mother maintained custody over M.S., since no custody order had been made prior to this case. At the dispositional hearing, Father's attorney stated an intent to file a motion seeking a court order officially granting custody of M.S. to Father, and the ltrial court indicated a willingness to assume jurisdiction for the purpose of making a custody determination. However, the record does not indicate whether such a motion was ever filed.

      . The CFSF report indicated that CFSF's only concern was that M.S. did not have his own ' bed, which would reportedly be remedied when Father moved to San Diego at the end of the following month.

      . Mother argues on reply that DCS should be estopped from arguing in favor of M.S.'s out-of-state placement with Father because DCS objected to the placement at the hearing on February 28, 2013. "(Judicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one previously asserted.... The purpose of judicial es-toppel is to protect litigants from allegedly improper conduct by their adversaries." Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234-35 (Ind.Ct.App.2004), trans. denied. While DCS did initially object to the placement, DCS effectively recanted its objection during the dispositional hearing on March 21 and by seeking dismissal of the CHINS proceedings. Therefore, judicial estoppel is not applicable here. Moreover, the goal of DCS is to protect children and serve the best interest of a child; its position in certain proceedings can be expected to change as circumstances change or information is developed. The public interest is unlikely to be served by prohibiting DCS from changing its position throughout the course of CHINS proceedings.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Paul GILLOCK and Kathy Gillock, Appellants-Plaintiffs, v. CITY OF NEW CASTLE, Indiana, Appellee-Defendant.
    No. 33A01-1308-CT-338.
    Court of Appeals of Indiana.
    Dec. 31, 2013.

      Anthony J. Saunders, New Castle, IN, Attorney for Appellants.
    Caren L. Pollack, Katherine S. Straw-bridge, Pollack Law Firm, P.C., Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Paul and Kathy Gillock brought a negligence claim against the City of New Castle, Indiana ("the City"). After almost nine months, the City moved to dismiss the case for failure to prosecute and failure to obey an order to compel discovery. On the day that the hearing on the City's motion to dismiss was to be held, the Gillocks filed a motion to dismiss with prejudice, which the trial court granted. The City then moved for attorney's fees, asserting that the Gillocks' lawsuit was frivolous, unreasonable, and groundless, and litigated in bad faith. The trial court granted the City's motion for attorney's fees.

The Gillocks appeal the award of attorney's fees, arguing that it is contrary to law because their complaint was not frivolous, unreasonable, groundless, or made in bad faith. We conclude that the Gillocks' complete failure to take any action for almost a year in furtherance of their lawsuit, including their failures to respond to discovery requests and obey the trial court's order without any reasonable explanation, supports the trial court's implicit legal conclusion that their claim was unreasonable and groundless. Therefore, we affirm the award of attorney's fees. The City argues that it is entitled to reasonable attorney's fees and costs incurred in this appeal. We conclude that the Gil-locks' appeal was not utterly devoid of all plausibility, and therefore deny the City's request for appellate attorney's fees and costs. ©

Facts and Procedural History

On July 13, 2012, the Gillocks filed a complaint against the City, alleging that, due to the City's negligent design, construction, and maintenance of its storm water drainage system, the system flooded causing damages to the CGillocks' real and personal property. On August 29, 2012, the City filed its answer and affirmative defenses.

On August 30, 2012, the City served interrogatories and a request for production on the Gillocks. On March 18, 2013, the City filed a motion to compel the Gil-locks to respond to its interrogatories and request for production. That same day, the trial court granted the motion and ordered the Gillocks to answer the interrogatories and respond to the request for production within ten days (March 28, 2013) or face sanctions, including possible dismissal of their claim.

On April 1, 2018, the City filed a motion to dismiss based on Indiana Trial Rule 41(E) because the Gillocks had failed to take any action in pursuing the case for over sixty days and based on Trial Rule 37(B) because they had failed to obey the trial court's motion to compel discovery. On April 4, 2013, the trial court set a hearing on the City's motion to dismiss for May 24, 2013. On May 24, 2013, the Gil-locks filed a motion to dismiss their complaint because they no longer wished to pursue the matter. The same day, the trial court granted the Gillocks' motion to dismiss with prejudice.

On June 3, 2013, the City filed a motion for attorney's fees and costs "pursuant to 1.C. 34-13-38-21," alleging that the Gillocks failed (1) to respond to its requests for discovery, (2) to respond to its follow-up letter of February 7, 2013 regarding its discovery requests, (8) to respond to the motion to compel discovery, (4) to inform the City that they intended to file a motion to dismiss, and (5) to serve the City with a copy of their motion, and therefore "an award of attorneys' fees and costs incurred by [the City] as a result of having to defend against [the Gillocks'] frivolous and groundless claim is warranted." Appellants' App. at 15-16. The City requested that the trial court enter an order "granting its Motion for Award of Attorneys' Fees and Costs in connection with defending the suit brought by [the Gillocks], on the grounds that the suit was frivolous, not made in good faith, and was not prosecuted after the original filing." Id. at 16. On July 9, 2013, the trial court held a hearing on the City's motion for attorney's fees and costs and issued an order finding "the motion to be meritorious" and awarding the City $2144.05. Id. at 18.

Discussion and Decision

I. Trial Court's Award of Attorney's Fees

The Gillocks appeal from the trial court's grant of a motion for attorney's fees. In Indiana, litigants are typically required to pay their own attorney's fees (the "American Rule") unless there is an agreement between the parties, statutory authority, or other rule to the contrary. Smyth v. Hester, 901 N.E.2d 25, 32 (Ind.Ct.App.2009), trans. denied. Here, the City sought attorney's fees pursuant to Indiana Code Section 34-13-8-21, which provides in relevant part,

In any action brought against a governmental entity in tort, the court may allow attorney's fees as part of the costs to the governmental entity prevailing as defendant, if the court finds that plaintiff:
(1) brought the action on a claim that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action after plaintiff's claim clearly became frivolous, unreasonable, or groundless; or >
(3) litigated its action in bad faith.

This statute is essentially identical to the General Recovery Rule in Indiana Code Section 34-52-1-1(b), and therefore case law analyzing either statute is applicable to the Gillocks' claim.

Our review of an award of attorney's fees generally involves three steps: a review of the findings of fact under the clearly erroneous standard, a review of the legal conclusions de novo, and a review of the trial court's award under an abuse of discretion standard. Smyth, 901 N.E.2d at 33. Here, the trial court did not enter findings of fact or conclusions of law in granting the City's motion. In such cases the first step is unnecessary, and as for step two, "we look to the basis of the prevailing party's petition and view the court's order as an implicit legal conclusion consistent with the main thrust of the petition-that the claim or defense at issue was frivolous, unreasonable, groundless, or litigated in bad faith." R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 461 (Ind.2012).

A claim or defense is frivolous if (a) it is made primarily for the purpose of harassing or maliciously injuring a person, or (b) the lawyer does not make a good faith and rational argument on the merits of the action, or (c) the lawyer does not support the action taken by a good faith and rational argument for an extension, modification, or reversal of existing law. Wolfe v. Eagle Ridge Holding Co., 869 N.E.2d 521, 530 (Ind.Ct.App.2007). "A claim or defense is unreasonable if, based on a totality of the circumstances, including the law and facts known at the time of filing, no reasonable attorney would consider that the claim or defense was worthy of litigation or justified." Wyatt v. Wheeler, 936 N.E.2d 282, 241 (Ind.Ct.App.2010). A claim is groundless only if no facts exist . which support a legal claim presented by the losing party. Buschman v. ADS Corp., 782 N.E.2d 423, 432 (Ind.Ct.App.2003).

The Gillocks argue that their claim was not frivolous, unreasonable, or groundless or litigated in bad faith because their complaint alleged facts supporting a negligence claim, and they filed it on the last day of the two-year statute of limitations to preserve their rights and dismissed it when they determined that the costs of litigation would outweigh the benefits of any potential recovery. We agree with their contention that their complaint sufficiently pled a negligence claim, and we acknowledge that "(thorough representation will sometimes require a lawyer to proceed against some parties solely for the purpose of investigation through pre-trial discovery. In such cases, counsel is expected to determine expeditiously the propriety of continuing such action and to dismiss promptly claims found to be frivolous, unreasonable, or groundless." Kahn v. Cundiff, 543 N.E.2d 627, 629 (Ind.1989). The Gillocks' argument ignores the fact that they did absolutely nothing in furtherance of their lawsuit after filing it. They did not respond to the City's interrogatories or requests for production. Half a year passed. The City filed a motion to compel, which the trial court granted, and the Gil-locks still did nothing. Finally, the City filed a motion to dismiss, and it was not until the day of the hearing on the City's motion that the Gillocks, almost a year after filing their complaint, filed their motion to dismiss stating that they no longer wished to pursue their claim. The Gillocks fail to offer any explanation as to why they failed to respond to the City's discovery requests, obey the trial court's order, or take any action in furtherance of their claim.. The Gillocks' utter failure to act under these circumstances serves as evidence that their claim was not prosecuted in good faith after the original filing. Therefore, we conclude that the trial court's finding that the City's motion for attorney's fees was meritorious was not contrary to law. As such, we affirm the award of attorney's fees.

II. Appellate Attorney's Fees

The City requests attorney's fees and costs incurred in this appeal. Indiana Appellate Rule 66(E) provides that the court on appeal "may assess damages if an appeal ... is frivolous or in bad faith" and that such damages may include attorney's fees at the court's discretion.

Our discretion to award attorney fees under Appellate Rule 66(E) is limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Moreover, while we have discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal. A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious....
Indiana appellate courts have categorized claims for appellate attorney fees into substantive and procedural bad faith claims. To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility. Substantive bad faith implies the conscious doing of wrong because of dishonest purpose or moral obliquity.

Poulard v. Laporte Cnty. Election Bd., 922 N.E.2d 734, 737-38 (Ind.Ct.App.2010) (citations and quotation marks omitted).

The City contends that because the trial court found that the Gillocks' claim was frivolous, unreasonable, or made in bad faith, it follows that their appeal is likewise meritless. We cannot agree. That would essentially bar all appeals of attorney's fees awarded on such grounds. The City also argues that the attorney's fees awarded were so minimal that the Gillocks' decision to appeal the award reflects presumptive bad faith and harassment. Perhaps what appears minimal to the City is not so minimal to the Gillocks. In any event, we cannot conclude that the Gillocks' appeal was utterly devoid of all plausibility or in bad faith. Accordingly, we deny the City's request for appellate attorney's fees.

Affirmed.

BAKER, J., and NAJAM, J., concur.

      . This letter is not in the record before us.

      . The Gillocks do not argue that the trial court's award was an abuse of discretion.


author: BROWN, Judge.

text:
    Brad HASKIN, Appellant, v. CITY OF MADISON, Indiana, Appellee.
    No. 39A05-1308-CT-422.
    Court of Appeals of Indiana.
    Dec. 31, 2013.

      Fred Schultz, Greene & Schultz, Bloom-ington, IN, Attorney for Appellant.
    James S. Stephenson, Ian L. Stewart, Stephenson Morow & Semler, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Brad Haskin appeals the trial court's summary judgment ruling in favor of the City of Madison, Indiana (the "City"). Haskin raises one issue, which we revise and restate as whether the court erred in granting summary judgment in favor of the City. We affirm.

FACTS AND PROCEDURAL HISTORY

The Madison Regatta includes festivities, events, and boat races on the Ohio River, and thousands of people visit Madison for the event. Haskin was a member of a racing team crew and arrived in Madison on or about July 3, 2008, for the Regatta. Haskin and several others with the team stayed at a rental cottage on Jefferson Street within walking distance of the pit area. On the evening of July 5, 2008, after viewing a fireworks show from the pit area, Haskin and several others began to walk to the rental cottage. They walked east on Vaughn Drive and turned left to walk north on Jefferson Street. An Army PT Cruiser was parked on Jefferson Street very close to the corner and about four or five feet away from the curb. There was "a solid mass of people" leaving the area. Supplemental Appendix at 27. Haskin walked between the curb and the parked vehicle. A cement depression or trough existed as part of the design of the curb on Jefferson Street which sloped downward leading to the sewer. As Has-kin stepped onto the depression, the front end of his foot touched the higher portion of the cement, and his heel landed on the lower end of the depression. As a result, he ruptured his Achilles tendon. Additional facts as set forth in the designated evidence will be discussed below.

On June 22, 2009, Haskin filed a complaint for damages against the City which alleged in part that he stepped into a storm sewer drain that had a partial iron grate covering the center of the drain with large openings on either side. The complaint alleged that the City was negligent in designing, constructing, and maintaining the sewer drain, in failing to properly illuminate the drain and provide proper signage warning pedestrians of the condition around it, in the planning and coordination of the special event, and by failing to properly coordinate pedestrian pathways that were free of dangerous conditions. The complaint also alleged that the City knew or should have known that pedestrians would be walking in the streets due to the large crowds and had in fact closed off the streets from vehicular traffic for just this purpose, and that as a direct and proximate result Haskin ruptured his Achilles tendon.

On November 18, 2011, the City filed a motion for summary judgment together with designated evidence and a supporting memorandum. The City argued that it is immune from liability for Haskin's claims pursuant to Ind.Code § 34-13-3-3(18) because the gutter, sewer intake, and concrete trough all remained unchanged for twenty years prior to the accident; that it owed no duty to Haskin because the street where the accident occurred was not within its control at the time as it ceded control of the area to Madison Regatta, Inc. ("MRI") for the event; and that Haskin's claim against the City is barred because he was contributorily negligent. Haskin filed a response and designation of evidence in opposition to summary judgment on February 24, 2012, and argued that the City is not immune under Ind.Code § 34-13-3-3(18) and owed a duty of reasonable care, that the City retained control over its own improvements and did not transfer control of the area to MRI (and was not permitted to delegate its duty to maintain the area), and that his claim is not barred by contributory negligence as there is nothing in the evidence showing that as a matter of law his conduct was negligent or unreasonable. The City filed a reply on February 29, 2012.

The trial court held a summary judgment hearing on April 24, 2012, and on July 30, 2013, entered an order granting the City's motion. The court found that Haskin was injured while walking on Jefferson Street and stepping into a trough-shaped gutter abutting the curb, and that the storm water gutter system was designed more than twenty years prior to July 5, 2008 and therefore the City is immune from liability for Haskin's injuries pursuant to Ind.Code § 34-13-3-3(18). The court further found that the City owed no duty to Haskin because it had transferred control of Jefferson Street in the area where the injury occurred to MRI and thus there could be no negligence on the part of the City. The court also found that Haskin was not paying attention to his surroundings and chose not to remain on the pedestrian sidewalk, that his conduct fell below the standard to which he should conform for his own protection and safety, that therefore he was contributorily negligent, and that his claim against the City is barred. Haskin now appeals.

ISSUE AND STANDARD OF REVIEW

The issue is whether the trial court erred in granting summary judgment in favor of the City and against Haskin. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 978 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmov-ant. Mangold, 756 N.E.2d at 978. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Commr's of Knox Cnty. 779 N.E.2d 1, 3 (Ind.2002). The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

DISCUSSION

The trial court's summary judgment ruling in favor of the City was premised in part on the conclusions that the City was immune from liability under Ind.Code § 34-13-8-3(18) and that the City did not owe a duty to Haskin relating to Jefferson Street. The tort of negligence has three elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from the defendant's breach. Beta Steel v. Rust, 830 N.E.2d 62, 69 (Ind.Ct.App.2005) (citing Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind.2004)). Summary judgment is appropriate when the undisputed material evidence negates one element of a claim. Rhodes, 805 N.E.2d at 385. In the absence of the existence of a duty, there can be no negligence. Harris v. Traini, 759 N.E.2d 215, 222 (Ind.Ct.App.2001), reh'g denied, trams. denied.

Haskin argues that, even under Ind. Code § 34-13-3-3(18), a governmental entity has a duty to provide public roadways in a reasonably safe condition and that determination is a question of fact. Has-kin further contends that the City owed him a duty to maintain the storm sewer where he was injured and that the Lease Agreement between the City and MRI expressly stated that MRI did not have control over any improvements and could not make any changes to the improvements without express permission. The City maintains that Ind.Code § 34-13-3-3(18) applies to the gutter and storm sewer intake, that the design of the area remained unchanged for more than twenty years prior to the date of the accident, and that the purpose of the statute is to immunize governmental entities for design de-feets in older roadways. The City notes that Haskin's claim does not arise from any deterioration in the condition in Jefferson Street's gutter, sewer intake or concrete trough, that he was injured due to the slope of the concrete trough, and that the design and placement of the concrete trough and its inclusion into the design and construction of Jefferson Street is subject to immunity. The City also asserts that the street where the accident occurred was not within its control at the time of the accident, as evidenced by the terms of the designated Resolution passed by the City's Board of Public Works and the designated Lease Agreement between the City and MRI, that the location Haskin was injured was within the area that had been fenced off in order for MRI to assume control, and that as a result the City owed no duty to Haskin.

With respect to Haskin's claim that the City was negligent in designing or constructing the curb or sewer drain, Ind. Code § 34-183-3-3 provides:

A governmental entity or an employee acting within the seope of the employee's employment is not liable if a loss results from the following:
(18) Design of a highway (as defined in IC 9-13-2-78 ), toll road project (as defined in IC 8-15-2-4(4)), tollway (as defined in IC 8-15-38-7), or project (as defined in IC 8-15.7-2-14) if the claimed loss occurs at least twenty (20) years after the public highway, toll road project, tollway, or project was designed or substantially redesigned; except that this subdivision shall not be construed to relieve a responsible governmental entity from the continuing duty to provide and maintain public highways in a reasonably safe condition.

The designated evidence reveals that Haskin stepped onto the depressed portion of the concrete curb, which was part of the curb's design, sloping downward leading to the sewer, and that as a result he sustained injuries. The designated evidence includes an affidavit and portions of a deposition of Randy Eggenspiller, the City Engineer/Utility Manager for the City. Eggenspiller stated that the gutter, storm sewer intake, and concrete trough are part of the infrastructure of Jefferson Street, that the storm sewer grate at this location was installed in approximately the 1950s or 1960s, and that to his knowledge the streets and storm sewers in and around the intersection, including the street's gutter, storm sewer intake, and concrete trough that diverts water from the gutter to the storm sewer at that location, remained the same and had not been redesigned for a period of more than twenty years prior to July 5, 2008. In his deposition, Eggenspiller testified that storm sewer grates are designed differently today in that the gutter section and grate are flat such that the water will come across the top and drop in so as to prevent leaves and debris from stopping up the gutter see-tions. Eggenspiller also stated that Jefferson Street was resurfaced in 2002 and that the asphalt did not extend over the concrete gutter.

To the extent Haskin claims the City was negligent in the design of the sewer drain and the City had a duty with respect to that claim, we agree with the City that, pursuant to Ind.Code $ 34-13-3-3(18), the City was not required to ensure that the design of the curb and sewer drain, which were designed or redesigned at least twenty years prior to Haskin's injury and were not altered by any resurfacing in 2002, was consistent with current practice or safety standards. The City was not required to redesign the sewer drain in an effort to incorporate ever-evolving technology. See Hiland v. State, 879 N.E.2d 621 (Ind.Ct.App.2008) (finding that INDOT, under Ind.Code § 34-13-3-3(18), was not required to ensure that roads that were designed or redesigned twenty years prior to the loss meet current safety standards and was not required to redesign roads in an effort to incorporate ever-evolving technology). Haskin does not show that the curb or sewer drain were in a deteriorated condition. The designated evidence demonstrates that the curb and sewer drain were not unreasonably unsafe. The City was immune from liability under Ind.Code § 34-13-3-3(18) with respect to Haskin's claim that it negligently designed, constructed, or maintained the sewer drain.

Moreover, Haskin's other negli-genee allegations essentially relate to whether the grounds leased to MRI for the Regatta, including Jefferson Street, were properly managed and whether pedestrian. traffic was properly conducted. At the time of the accident, MRI and not the City controlled these matters.. An owner of property generally is under a duty to keep the property in a reasonably safe condition for invitees and has an affirmative duty to exercise ordinary care to keep the property in a reasonably safe condition eoextensive with the purpose and intent of the invitation. Beta Steel, 830 N.E.2d at 70; see Harris, 759 N.E.2d at 225 ("'The thread through the law imposing liability upon occupancy of premises is control. Only the party who controls the land can remedy the hazardous conditions which exist upon it and only the party who controls the land has the right to prevent others from coming onto it. Thus, the party in control of the land has the exclusive ability to prevent injury from occurring.") (citations, internal quotation marks, and brackets omitted). This court has stated: "In premises liability cases, whether a duty is owed depends primarily upon whether the defendant was in control of the premises when the accident occurred.... Generally, whether a duty exists is a question of law for the court to decide." Beta Steel, 830 N.E.2d at 70 (citing Rhodes, 805 N.E.2d at 385-386)(in-ternal quotation marks omitted).

As noted, at the time of the accident MRI and not the City controlled the matters of which Haskin complains. Further, the designated evidence shows the presence of a streetlight on Vaughn Drive directly across from the area in question and a sidewalk fore pedestrian traffic running alongside Jefferson Street. The designated evidence also includes a Resolution of the Board of Public Works and Safety of the City adopted on June 18, 2008, which resolved that certain streets including the location Haskin was injured "shall be closed from 12:00 p.m. on Tuesday July 1, 2008, to 7:00 a.m. on Monday, July 7, 2008" and that "said streets as closed shall be under the supervision and control of [MRI] at the times noted above for the year 2008." Appellee's Appendix at 17 (emphasis added). In addition, the designated evidence includes a Lease Agreement between the City and MRI entered into on June 4, 2008. The Lease Agreement provided in part that the City would "free from dirt, rubbish, and other obstructions or encumbrances," and that MRI would "take good care of the improvements located on the demised premises and keep them free from waste or nuisance of any kind." Appellant's Appendix at 32. The Lease Agreement also provided that MRI "shall not make any alterations, additions, or improvements to the demised premises without the prior written consent of the [City]" and that MRI would "maintain and pay for general liability insurance to afford protection" in the event of an accident, injury, or death. Id. at 32, 34.

The terms of the resolution and the Lease Agreement demonstrate that the City did not control the streets in the area elosed to vehicular traffic during the Regatta. The fact that the Lease Agreement required MRI to obtain the City's consent before making alterations, additions, or improvements does not mean that MRI did not control the condition of Jefferson Street, could not have taken the precautions necessary to protect pedestrians, or could not have obtained the City's consent to make alterations if necessary. The resolution and the Lease Agreement transferred supervision and control of the property, including the eurb and sewer drain on Jefferson Street where Haskin was injured, from the City to MRI for the term of the Regatta, and MRI was in the best position to control the pedestrian traffic and condition of the property it leased from the City. CL. Thayer v. James Whitcomb Riley Festival Ass'n Inc., 802 N.E.2d 7, 8-12 (Ind.Ct.App.2003) (noting that the Riley Festival leased booth space to vendors on certain city streets in the City of Greenfield to conduct festival activities and that no contract transferred the duty to maintain the sidewalks from the city to the Riley Festival); Mishler v. State, 780 N.E.2d 229, 231 (Ind.Ct.App.2000) (holding in part that the State had neither possession nor control of a roadway and was thus in no position to rectify any unsafe condition, that onee the roadway was relinquished to the city the State had no duty to the entrants on that roadway, and that summary judgment in favor of the State was proper).

CONCLUSION

With respect to Haskin's claim that the City was negligent in the design, construction or maintenance of the curb or sewer drain, we conclude that the designated evidence demonstrates that the City is immune from liability. With respect to Haskin's other negligence claims, the designated evidence demonstrates that the City did not owe a duty to Haskin as it did not possess or control the condition of Jefferson Street at the time of his injury nor did it manage the pedestrian traffic or other aspects of the Regatta.

For the foregoing reasons, we affirm the trial court's order granting the City's motion for summary judgment.

Affirmed.

ROBB, C.J., and BARNES, J., concur.

      . The transcript of the hearing is not included in the record on appeal.

      . In addition, the City argues that Haskin has waived all the issues he raises on appeal because he failed to include in his appellant's appendix the summary judgment motions and briefing as well as the City's designation of evidence. In his reply, Haskin argues that his appendix included all essential parts of the record and all of the facts upon which the trial court relied in entering its summary judgment order and that he read Ind. Appellate Rule 50(A)(1) to mean that this court does not want unnecessary materials submitted. Appellate Rule 50(A)(1) provides that "[the purpose of an Appendix in civil appeals and appeals from Administrative Agencies is to present the Court with copies of only those parts of the record on appeal that are necessary for the Court to decide the issues presented." However, as our review is limited to those materials designated to the trial court and we may affirm on any grounds supported by the designated evidence, it is important that the record on appeal include the parties' summary judgment materials, including the parties' designations of evidence. See Yoguelet v. Marshall Co., 811 N.E.2d 826, 829-830 (Ind.Ct.App.2004) (noting that "when appealing the grant or denial of a motion for summary judgment, the moving party must file with the appellate court those materials that were designated to the trial court for purposes of reviewing the motion for summary judgment"). However, we also note that Ind. Appellate Rule 49(B) provides that "[aluy party's failure to include any item in an Appendix shall not waive any issue or argument." The City provided the missing designations and summary judgment materials in its appellee's appendix. Haskin presents cogent argument regarding the trial court's summary judgment order and the summary judgment materials, and the appellant's appendix includes many or most of the designated documents and portions of depositions necessary to resolve the issues on appeal. Dismissal of Haskin's appeal on this basis is not warranted, and we do not find that Haskin has waived all issues.

      . Ind.Code § 9-13-2-73 provides: " 'Highway' or 'street' means the entire width between the boundary lines of every publicly maintained way when any part of the way is open to the use of the public for purposes of vehicular travel. The term includes an alley in a city or town."

      . Ind.Code § 8-23-6-3(d) provides that "[uJpon the completion of a street, the department shall maintain the roadway of the street, including the curbs and gutters, catch basins, and inlets within the limits of the street or highway that form integral parts of the street or highway" and that "[t]he city or town shall maintain the sidewalks, grass plats, and the connecting drainage facilities." To the extent Haskins points to this statute to support his argument that the City owed him a duty, we have concluded above that the City is immune from liability for his claim related to the design and construction of the road and noted that Haskin does not show that the curb or sewer drain were in a deteriorated condition or otherwise not maintained.

      . The court's summary judgment ruling was also based on the conclusion that Haskin cannot recover from the City because he was contributorily negligent. Because we affirm the court's summary judgment ruling on the bases that the City was immune from liability for Haskin's negligent design and construction claims and did not owe a duty to Haskin with respect to his other claims, we need not discuss whether the City was entitled to summary judgment on the ground that Haskin was contributorily negligent.


author: MAY, Judge. KIRSCH, Judge,

text:
    Winston K. WOOD, Appellant, Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 53A05-1208-CR-423.
    Court of Appeals of Indiana.
    Dec. 31, 2013.

      Katharine C. Liell, Liell & McNeil Attorneys, Bloomington, IN, Stacy R. Uliana, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian MelLean, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Winston K. Wood appeals his convictions of two counts of Class C felony leaving the scene of a boating accident resulting in the death of a person and one count of Class D felony leaving the scene of a boating accident resulting in serious bodily injury to a person. On appeal, Wood raises the following restated issues:

1. Whether the trial court should have granted Wood's motion for discharge under Indiana Criminal Rule 4(C);
2. Whether the State presented sufficient evidence that Wood did not comply with the duties required of a boater in an accident pursuant to Indiana Code section 14-15-4-1; ~- and
3. Whether Wood's three convictions subjected him to double jeopardy because each conviction arose out of the same act of leaving the scene following a boating accident resulting in injury to or death of a person.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On the evening of June 28, 2010, nineteen-year-old Wood was operating his father's Cobalt ski boat on Lake Monroe, near Bloomington, Indiana. Two of his friends, Matthew Holmberg and Michael Marietta, were taking turns wakeboarding. At the same time, James Collier was on his Ranger fishing boat with his wife, Susan, and their three grandsons, Gage, J.T., and Dillon. Wood and Collier were each driving their boats at about twenty miles per hour, and neither saw the other until the boats collided. The Department of Natural Resources determined the accident was "the result of inattention by both operators." (Tr. at 709.).

Wood's boat went over the top of Collier's boat, damaging Collier's boat and rendering the engine inoperable. J.T. and Dillon were not injured and remained in the boat. Susan was killed and thrown from the boat. Gage was also killed, but his body remained in the boat. Collier suffered a severe cut to his leg and was thrown from the boat.

Holmberg had been wakeboarding behind Wood's boat but had let go of the tow rope, so he was not near the boats when they crashed. Marietta, who was acting as Holmberg's spotter, was thrown from the boat. No one on Wood's boat was physically injured in the crash.

The accident occurred near Harbor Pointe, a private condominium complex. Terry Bawel, who was on the deck of a condominium at Harbor Pointe, saw the boats collide. She testified the collision was so loud that it woke up her eighteen-year-old daughter, Erika. Erika ran out onto the deck while her mother told a neighbor, GiGi Stowe, to call 911. GiGH's call was the first of six received by various 911 operators.

In the aftermath of the accident, Terry and Erika heard erying and shouting and saw debris in the water. Terry heard a voice saying "we have to save her, we have to save her." (Id. at 441.) Wood dove into the water and swam toward Susan Collier, but she was a "mangled person" with a "torn up face," and Wood "realized it was way beyond anything [he] could do." (State's Ex. OOO at 29.) Wood quickly returned to his boat and joined his friends, who had already climbed back onto Wood's boat.

Wood then drove his boat at top speed to the Fourwinds Marina, which was about two-and-a-half miles away from the seene of the accident. When asked later, Wood said he thought his boat was sinking because there was water in his boat following -the accident. During the trip to the Marina, Wood used Marietta's cell phone to call his father. When Wood could not get through, he gave the cell phone to Marietta, who called 911 about six minutes after the accident. Marietta testified he believed it was his idea to call 911, and he could not remember any discussion with Wood about the 911 call. Marietta told the 911 operator he did not know whether anyone had been injured.

A recording of Marietta's 911 call was played for the jury. Loud voices, including Wood's, can be heard in the background. Marietta gave his name to the operator, then told the operator that "we just got hit by a boat," "we started taking on water," and "we're going back to the Fourwinds and the [other] boat, the boat is, the boat is stranded over by, by the dam." (State's Ex. T (audio); State's Ex. W (transeript) at 3-4.) In his brief, Wood describes the 911 call as follows:

Marietta yells at least four times that their boat is taking on water. State's Ex. W p. 3-5. He tells the operator that there is still a family on the boat in the water, he was unsure whether they all are accounted for and that they were shouting. The operator instructs the boys to stay at the marina until "they come get you," to which Marietta responds that Wood is pulling into the dock and that "we're tying up and we're going to go get help from the marina." ~ State's Ex. W, p. 5. The operator again instructs him to "stay at the Fourwinds when you get there," "we have people on ' the way down there already." State's Ex. W, p. 5. Wood's voice, as identified by Detective Goldman, can be heard in the background instructing Marietta to report "the other boat by the dam," and Marietta responding by reassuring Wood that help was on the way for the other boat. State's Ex T (audio); State's Ex. 000, p. 42.

(Appellant's Br. at 3). Wood, Marietta, and Holmberg stayed at the Fourwinds Marina, as instructed by the 911 operator, and waited one-and-a-half hours for the authorities to arrive.

During the investigation, Officer Angela Goldman, the Indiana Conservation Officer on duty that night, learned that Wood jumped into the water after the collision and swam close to Susan. (Tr. at 587.) When Officer Goldman observed Susan's body, she saw Susan was "[njearly decapitated. The skull cap was completely removed from the head." (Id. at 529.) Wood told police that he was horrified, panicked and "really freaked out," and swam back to his boat "as fast as possible and called 911" believing "the most help we could do was to call professional help." (State's Ex. OOO at 29, 82, 83.)

Collier testified that he yelled for help a couple of times, but received no response. Erika and Marietta each testified that they did not hear Collier call for help. Collier, whose leg was injured, swam to his boat, and learned that one of his grandsons was dead in the boat. Collier then swam over to his wife and determined that she too was dead and "there was nothing [he] could do to help her." (Tr. at 362.) When Collier got onto his boat, he covered his grandson's body with one raincoat, and covered the surviving boys with another so "they couldn't see any more than they had to." (Id. at 8638.) He then yelled at Wood's boat, asking them to save his wife. (Id. at 364.) In his call to 911, Collier claimed that, prior to leaving the scene, Wood said "you've got to try to save her." (State's Ex. V (audio), State's Ex. W (transeript) at 18.) At trial, Collier testified Wood said, "[Y¥]ou save her yourself." (Tr. at 398.) .

After Wood's boat left for the marina, Collier was able to pull his wife's body into the boat, and then using his trolling motor, Collier made it to the Harbor Pointe dock. It took Collier about five to ten minutes to get to Harbor Pointe, where he borrowed a cell phone and called 911. The dispatcher with whom he spoke did not know Marietta had also called 911. An ambulance arrived while Collier was still on the phone and took him to the hospital He was released later that night. Collier later had reconstructive surgery on his injured leg.

During Marietta's 911 call, the operator repeatedly told Marietta, "I need you to stay at the Fourwinds when you get there, okay? And stay at the Fourwinds when you get there." (State's Ex. W at 5.) Because of the lack of communication between the 911 operators, most of the investigators, including the one who interviewed Wood after the accident, did not know Wood and his companions had called 911 or that they had waited at the marina for one-and-a-half hours.

About a month later, on August 3, 2010, the State charged Wood with Count I, leaving the seene of a boating accident resulting in Susan's death; Count II, leaving the seene of a boating accident resulting in Gage's death; and Count III, leaving the scene of a boating accident resulting in serious bodily injury to Collier.

Wood filed a motion to dismiss, arguing that Indiana Code section 14-15-4-1, which imposes a number of legal obligations on an operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property, was unconstitutionally vague as applied to him. Specifically, he argued: >

At the time [the State] filed the information, the prosecution had all of the facts that demonstrated Wood had attempted to render assistance, that his party had timely notified law enforcement of the accident and thereafter complied with law enforcement instructions. Unfortunately, the prosecution apparently responded to pressure from the media coverage by charging Wood. _

(App. at 46.) Monroe Cireuit Judge Kenneth Todd held a hearing on the motion but after thirty days still had not ruled. Wood filed a "Praecipe for Failure to Rule on Motion," asking the case be withdrawn from Judge Todd and transferred to the Indiana Supreme Court for appointment of a special judge. (Id. at 99.) About four months later, the Supreme Court appointed the Honorable Jane Spencer Craney as Special Judge. On August 1, 2011, she denied Wood's motion to dismiss.

On January 18, 2012, Wood filed a motion for discharge pursuant to Criminal Rule 4(C). The State contended the 119 days that it took to appoint a new judge (from February 16, 2011 to June 15, 2011) should be charged to Wood. Judge Craney denied the motion for discharge, determining: "The time delay caused by Defendant's change of judge motion is charged against him and defense counsel failed to timely object to the Court's jury setting of March 12 to 16, 2012." (App. at 129.) Wood requested two continuances and his trial commenced on June 4, 2012.

Following a five-day jury trial, Wood was convicted of two counts of Class C felony leaving the seene of a boating accident resulting in death and one count of Class D felony leaving the seene of a boating accident resulting in serious bodily injury. The trial court fined Wood $1,000 and sentenced him to six years for each Class C felony, to be served concurrently. For the Class D felony, the trial court fined Wood $1,000 and sentenced him to three years to be served concurrently with the sentences for the Class C felonies.

DISCUSSION AND DECISION

The statutes applicable to the case before us are Indiana Code sections 14-15-4-1 and 14-15-4-4. The former in pertinent part provides:

The operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property shall do the following:
(1) Stop the boat immediately and as close as possible to the scene of the accident.
(2) Return to the scene of the accident and remain there until the operator has complied with this section.
(8) Give:
(A) the operator's name and address;
(B) a full identification of the boat operated; and
(C) the name and address of the owner;
to the operator of each other boat and each person injured.
(5) Provide reasonable assistance to each person injured, including carrying or arranging for carrying each injured person to a physician, surgeon, or hospital for medical or surgical treatment if:
(A) it is apparent that treatment is necessary; or
(B) the injured person so requests.

Ind.Code § 14-15-4-1. The latter sets forth the penalty for such a violation:

A person who violates this chapter commits a Class C misdemeanor. However, the offense is:
(1) a Class A misdemeanor if the accident or collision results in an injury to a person;
(2) a Class D felony if:
(A) the accident or collision results in serious bodily injury to a person; or
(3) a Class C felony if the accident or collision results in the death of a person.

Ind.Code § 14-15-4-4.

1. Criminal Rule 4(C)

Wood was charged and arrested on August 3, 2010. Under Indiana Criminal Rule 4(C), Wood's trial had to begin by August 3, 2011, unless that date was extended due to "a continuance ... had on his motion," a delay "caused by his act," or if there "was not sufficient time to try him during such period because of congestion of the court calendar." Wood filed a motion for discharge pursuant to Rule 4(C), which the trial court denied.

In deciding whether to grant or deny a motion for discharge, a trial court must sometimes resolve disputed facts, but on other occasions it simply applies the law to undisputed facts. Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011). Factual findings made by the trial court are entitled to deference, but legal conclusions are reviewed de novo. Id. Criminal Rule 4 implements the defendant's constitutional right to a speedy trial. Id. at 547. Under this rule, the State has an affirmative duty to bring the defendant to trial within one year of being charged or arrested, subject to the listed exceptions. Id. at 547-48. The defendant has no obligation to remind the court of the State's duty, nor is he required to take any affirmative action to see that he is brought to trial within the statutory time period. Id. at 548. When a defendant moves for discharge, the burden is on the defendant to show that he has not been timely brought to trial and that he is not responsible for the delay. Id.

The following dates are relevant to our analysis. Wood's initial Criminal Rule 4(C) deadline was August 83, 2011. On November 3, 2010, Wood filed a motion to dismiss, arguing the statute defining the crimes with which he was charged was unconstitutionally vague as applied to him. Judge Todd held a hearing on the motion on January 12, 2011, and thirty days later had still not ruled. On February 16, 2011, pursuant to Indiana Criminal Rule 15 and Indiana Trial Rule 58.1, Wood filed a "Praecipe for Failure to Rule on Motion," requesting the Clerk of the Monroe Cireuit Court "withdraw submission of this cause from [Judge] Todd and transfer this cause to the Indiana Supreme Court for the appointment of a special judge." (App. at 99.) About 119 days later, on June 15, 2011, the Indiana Supreme Court appointed Judge Craney as Special Judge. She denied Wood's motion to dismiss on August 1, 2011.

On August 26, 2011, Judge Craney set trial to commenee on October 24, 2011, as a first choice jury trial. About a week later, on September 6, 2011, defense attorneys James Voyles and Frederick Vaiana each filed an appearance to replace Wood's prior counsel.

On September 27, 2011, Judge Craney, pursuant to an agreement reached by the parties at Wood's final pretrial hearing, entered an order that provided in pertinent part, "[dJefense will be filing a continuance of the jury trial now set for October 24 through 28, 2011," and that "[if a continuance is filed by the defense, it will be granted by the Court and the jury trial will be reset on March 12 through 16, 2012 as a first choice setting." (Id. at 115.) Wood filed the aforementioned motion to continue on October 5, 2011, and as promised, Judge Craney entered an order on October 7, 2011, granting Wood's motion to continue and resetting the jury trial for March 12 through March 16, 2012. (Id. at 116, 120.)

On January 18, 2012, Wood filed a motion for discharge pursuant to Criminal Rule 4(C), but he did not file a memorandum in support thereof. The State filed a response to Wood's motion contending the 119 days that it took to appoint the special judge should be charged to Wood. (Id. at 125.) Judge Craney, agreeing with the State's reasoning, denied Wood's motion for discharge on February 1, 2012, finding Wood's change of judge motion was charged against him and Wood did not timely object to setting the jury trial for March 12, 2012. Wood filed a motion to reconsider, which was denied.

On February 17, 2012, Wood filed a motion to continue the trial from March 12, 2012 to June 4, 2012, which the trial court granted. Wood was convicted following a five-day jury trial, which commenced on June 4, 2012.

"[The foeus of Criminal Rule 4 is not fault; it is to ensure early trials." Curtis v. State, 948 N.E.2d 1143, 1150 (Ind.2011). Criminal Rule 4(C) places an affirmative duty on the State to bring a defendant to trial within one year, and the defendant is under no obligation to remind either the State or the trial court of the State's duty. Gibson v. State, 910 N.E.2d 263, 266 (Ind.Ct.App.2009). Although a defendant has no duty to object to the setting of a belated trial date if the setting occurs after the year has expired, a defendant waives the right to be brought to trial within one year by failing to raise a timely objection if the trial court, acting during the one-year period, schedules the trial beyond the limit. Id. at 267.

Wood's motion for discharge stated only "Defendant, by counsel, hereby moves for discharge pursuant to Ind. Criminal Rule 4(C)." (App. at 123.) This motion was not accompanied by a memorandum in support, and it did not in any other way provide guidance as to which dates should be attributed to him and which should be attributed to the State.

In response to the motion to discharge, the State argued there was no Criminal Rule 4(C) violation because the August 3, 2011, deadline for bringing Wood to trial could be extended by 119 days to November 30, 2011, to account for the period between Wood's February 16, 2011, filing of the praecipe pursuant to Trial Rule 53.1, and the Supreme Court's June 15, 2011, appointment of the special judge. The State further explained that on October 5, 2011, prior to the November 30 deadline, Wood requested a continuance and agreed to have the trial commence on March 12, 2012, which is outside the Criminal Rule 4(C) deadline.

The trial court determined there was no violation of Criminal Rule 4(C), because the time delay caused by the change of judge motion was chargeable to Wood and because Wood's counsel did not object when, within the Rule 4(C) deadline, the court set the trial to commence on a date past the Rule 4(C) deadline.

The trial court did not err in denying Wood's motion for discharge. Our Indiana Supreme Court recently recognized that "Rule 4(C)'s one-year limitation does not include the time during which trial proceedings have been stayed pending interlocutory appeal." Pelley v. State, 901 N.E.2d 494, 499-500 (Ind.2009), reh'g denied. The Court reasoned as follows:

This Court has previously examined the effect of the State's interlocutory appeal on the period in which a defendant must be brought to trial. In Martin v. State, 245 Ind. 224, 228, 194 N.E.2d 721, 723 (1963), the State filed a mandamus proceeding following the trial court's denial of the State's motion for a change of judge. During the course of the mandamus action, the statutory time limit ... expired. The defendant moved for discharge, arguing that the time for the State's mandamus proceeding could not be attributed to him. We upheld the trial court's denial of the discharge motion, in part because the defendant was the real party in interest in the change of judge, and his attorneys represented the respondent judge in the original action. We also stated that the [time limit] did not apply "where the delay was caused by proceedings in this court." We explained that neither the prosecutor nor the trial judge could control the time required for an appeal, and most appeals would trigger a dismissal, a result that the legislature could not have intended. Following the adoption of our criminal rules, we quoted Martin with approval in State ex rel. Cox v. Super. Ct. of Madison County, 445 N.E.2d 1367, 1368 (Ind.1983), in holding that Rule 4(B)'s early trial requirement was tolled pending the State's interlocutory appeal of the trial court's ruling on defendant's motion in limine.
We believe that Martin's rationale controls here. When trial court proceedings have been stayed pending resolution of the State's interlocutory appeal, the trial court loses jurisdiction to try the defendant and has no ability to . speed the appellate process. As a practical matter, applying the Criminal Rule 4(C) one-year requirement to interlocutory appeals would render an appeal by the State impossible because it would in all likelihood trigger a mandatory discharge of the defendant. Accordingly, we conclude that Rule 4(C)'s one-year limitation does not include the time during which trial proceedings have been stayed pending interlocutory. appeal.
We note that the time for an interlocutory appeal is exeluded from Rule 4(C)'s limitation only when trial court proceedings have been stayed. The trial court and Court of Appeals have discretion to deny a motion to stay if it appears that the State is seeking a stay for improper purposes, or if the appeal presents issues that are not critical to the case.

Pelley, 901 N.E.2d at 499-500.

Here, Trial Rule 53.1 resulted in a similar loss of jurisdiction in the trial court. Pursuant to Trial Rule 53.1, when a trial court unreasonably delays in ruling on a matter before it, a party may withdraw the case from the judge and have the matter transferred to the Indiana Supreme Court for appointment of a special judge. Wood filed his Trial Rule 58.1 motion in 2011. At that time, the filing of such motion "automatically divested the trial court of jurisdiction to decide the motion or case." 3A Ind. Prac., Rules of Procedure Annotated R. 53.1 (3d ed.) (emphasis added).

On February 16, 2011, Wood filed a praecipe to withdraw the submission of the case from Judge Todd pursuant to Criminal Rule 15 and Trial Rule 58.1. Our Supreme Court did not appoint a special judge until June 15, 2011, 119 days later. Neither the prosecutor nor the trial judge could control the time required to appoint a special judge; the delay in the appointment of Wood's special judge was caused by proceedings in our Supreme Court. Following our Supreme Court's reasoning in Martin and Pelley, in the absence of jurisdiction in the trial court, the Criminal Rule 4(C) one-year trial date was tolled for 119 days during the time period between Wood's filing of the praecipe and our Supreme Court's appointment of a special judge. This pushed the Criminal Rule 4(C) deadline from August 3, 2011 to November 30, 2011. >

On October 5, 2011, well before the November 30 deadline, Wood moved to continue the jury trial, citing his new counsel's court schedule and the need for additional time to prepare for trial. Wood's request was granted, and the trial was continued to March 12, 2012. At that time, Wood did not object; instead, he agreed the trial could commence on March 12, 2012, a date outside the Criminal Rule 4(C) deadline. As Wood: did not assert a timely objection, he waived his right to be brought to trial within the deadline set by Criminal Rule 4(C). See Pelley, 901 N.E.2d at 498-99 (defendant waives his right to be brought to trial within 4(C) period by failing to raise timely objection if, during period, trial court schedules trial beyond limit). The trial court did not err in denying. Wood's motion for discharge.

2. Sufficiency of Evidence

When reviewing a claim the evidence is insufficient, we do not reweigh evidence or judge witness credibility; rather, we consider only the evidence and reasonable inferences most favorable to the verdict. Hyche v. State, 984 N.E.2d 1176, 1178 (Ind.Ct.App.2010), reh'g denied, trans. denied. This review "respects the jury's exclusive province to weigh conflicting evidence." Allen v. State, 844 N.E.2d 534, 536 (Ind.Ct.App.2006), trams. denied. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. The factfin-der is obliged to determine not only whom to believe, but also what portions of conflicting testimony to believe, Atwood v. State, 905 N.E.2d 479, 484 (Ind.Ct.App.2009), trans. denied, and is not required to believe a witness' testimony even when it is uncontradicted. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004).

The Indiana General Assembly has made it a criminal offense for the operator of a boat involved in an accident to leave the seene of the accident before exchanging information and providing reasonable assistance to the injured. Ind. Code § 14-15-4-4. Specifically, to convict Wood, the State had to prove Wood did not stop his boat "immediately and as close as possible to the scene of the accident," Ind.Code § 14-15-4-1 (emphasis added), and did not "return to the scene of the accident and remain there," id. (emphasis added), until he gave the information required to identify himself, the boat, and the boat's owner; and provided "reasonable assistance to each person injured, including carrying or arranging for carrying each injured person to a physician, surgeon, or hospital for medical or surgical treatment" if it is apparent that treatment is necessary or the injured person so requests. Id. The legislature has also made it a criminal offense for the boat operator not to:

(1) Give notice of the accident to:
(A) the office of the sheriff of the county; -
(B) the nearest state police post; or
(C) the nearest conservation office;
immediately and by the quickest means of communication.

Ind.Code § 14-15-4-2 (emphasis added). Both of these statutes require an operator to take "immediate" action.

When someone flees an accident scene, injured persons might be left without help and without any means to identify the driver of the other vehicle. The intent behind a statute that prohibits leaving the seene of an accident is to provide prompt aid for persons who are injured and to sufficiently establish the identity of the parties so that they and police authorities may know with whom to deal in matters growing out of the accident. See Armstrong v. State, 848 N.E.2d 1088, 1095 (Ind.2006) (addressing Ind.Code § 9-26-1-1, which imposes a number of duties on the driver of a motor vehicle involved in an accident that results in the injury or death of a person or the entrapment of a person in a vehicle), cert. denied sub nom. Armstrong v. Indiana, 549 U.S. 996, 127 S.Ct. 513, 166 L.Ed.2d 370 (2006).

Wood contends his "decision to get help by going to the marina while calling 911, when considered in the totality of the emergency, satisfied his duties as a boater in an accident." (Appellant's Br. at 10.) Our legislature did not include consideration of the "totality of the emergency" in the definition of this offense or as a defense to the specific statutory obligations it imposed. Thus, we must reject Wood's suggestion that we consider the evidence within that framework, and we must decline Wood's invitation to reweigh the evidence or to consider evidence other than that most favorable to the judgment.

The facts most favorable to the verdict would permit the jury to conclude Wood did not comply with the duties statutorily imposed on a boat operator after an accident because he did not "[pJrovide reasonable assistance to each person injured, including carrying or arranging for carrying each injured person to a physician, surgeon, or hospital for medical or surgical treatment if ... it is apparent that treatment is necessary." Ind.Code § 14-15-4-1. There was evidence Wood called only his father after the collision, and that the 911 call was made by Marietta. Marietta testified he believed it was his idea to call 911, and he could not remember any dis-eussion with Wood about the 911 call. That would permit the jury to infer Wood did not instruct Marietta to make the call and the 911 call cannot be attributed to Wood. There was evidence Collier yelled to the people in Wood's boat, asking them to save his wife, and in his call to 911, Collier claimed that, prior to leaving the scene, Wood said "you've got to try to save her." (State's Ex. V (audio), State's Ex. W (transcript) at 18.) At trial, Collier testified Wood said, "[YJou save her yourself." (Tr. at 398.)

The 911 dispatcher stated that help was on its way and repeatedly ordered Wood and his passengers to remain at the Four-winds, i.e., to not return to the open water where the accident had occurred. We acknowledge Wood and his passengers complied with the instructions of the 911 dispatcher and waited at the Fourwinds for an hour and a half before the authorities arrived, but there was no evidence Wood satisfied the statutory requirements to remain at the seene and give to "the operator of each other boat and each person injured," Ind.Code § 14-15-4-1, the information required to identify himself, the boat, and the boat's owner. There was sufficient evidence presented: at trial to permit Wood's convictions.

3. Double Jeopardy

We review de novo whether a defendant's convictions subjected him to double jeopardy. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind.Ct.App.2005). "A defendant's right to not be put twice in jeopardy for the same offense arises from the United States Constitution and the Indiana Constitution." Davis v. State, 691 N.E.2d 1285, 1287-88 (Ind.Ct.App.1998). Prohibitions against double jeopardy protect against multiple punishments for the same offense in a single trial. Richardson v. State, 717 N.E.2d 32, 37 n. 3 (Ind.1999). While there was sufficient evidence Wood violated Indiana Code section 14-15-4-1, Wood's three convictions of leaving the seene of a boating accident subjected him to double jeopardy, as he was punished three times for an act-leaving the scene of an-accident he committed only onee. Accordingly, only one count of Class C felony leaving the seene of a boating accident can stand, and the other two convie-tions must be vacated.

In Nield v. State, 677 N.E.2d 79 (Ind.Ct.App.1997), Nield struck and seriously injured two motorcyclists while driving her car. She was convicted of two counts of failing to stop after an accident involving injury or death, as defined by Indiana Code section 9-26-1-1. Nield argued her two convictions subjected her to double jeopardy because both convictions stemmed from one accident and therefore violated the prohibition against multiple punishments for the same offense.

Indiana Code section 9-26-1-1, like Indiana Code section 14-15-4-1, imposes certain enumerated duties on an operator who is involved in an accident, including immediately notifying law enforcement authorities that the accident occurred; providing information regarding the driver's identity, license and vehicle; and rendering assistance to persons injured. Id. Furthermore, like section 14-15-4-1, the statute in Nield was framed in terms of ° "an accident" rather than injury to a person or damage to a vehicle. We concluded that had the legislature chosen to impose separate duties for each vehicle or person injured, it could have done so. Id. Therefore, even though Nield struck two motorcycles and injured two persons, she was involved in only one accident and could not be convicted twice for leaving the seene of that accident. Id.

Nield controls here. Even though two people died and another was injured, Wood's act of leaving the scene of the boating accident can support only one conviction under Indiana Code section 14-15-4-1. We therefore remand for the trial court to dismiss one Class C felony conviction and one Class D felony conviction and to accordingly resentence Wood and reimburse the fines it imposed for those additional convictions.

4. Problems with Indiana Code chapter 1h-15-4

The evidence, when viewed in a light most favorable to the judgment, requires us to uphold Wood's conviction. However, this prosecution has brought to light serious concerns about the statute that criminalizes Wood's behavior. The tragic events on Monroe Reservoir on June 28, 2010, led to two deaths, a serious injury, and traumatic effects on all parties involved. In the course of Wood's trial and this appeal, four judges have examined the facts of the case and the statute defining the charged crimes. While those judges have reached differing conclusions about the proper way to resolve the issues that arise in this case, all have agreed that the statute is problematic.

Observing the requirements of Ind.Code section 14-15-4-1 will, in many emergency situations, require behavior that defies logic, and engaging in innocent, and even advisable, behavior can leave one in violation of the statute. This statute permits no consideration of what is reasonable in any given emergency situation; nor does it permit citizens to engage in any balancing of considerations that arise in typical emergencies and are likely required by other statutes.

The statute does not include a specific intent element, and our appellate courts have had no occasion to articulate fair warning and ascertainable enforcement standards. That, in some fact situations, will raise due process concerns. Seq, eg., State v. Schriver, 207 Conn. 456, 542 A.2d 686, 688-89 (1988) (presence of a specific intent element may purge a potentially vague criminal statute of constitutional infirmity, and a facially vague law may comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards). n

Indiana Code section 14-15-4-1 requires "[the operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property shall do" a number of things. As Wood correctly notes, there are no exceptions for emergencies that are likely to arise during the aftermath of an accident on a body of water. Wood asks that we find this statute unconstitutionally vague because "it encourages arbitrary and discriminatory enforcement by erimi-nalizing reasonable choices made in stressful, emergency situations," and it fails "to inform an ordinary person of what conduct is prohibited." (Appellant's Br. at 19, 20.) Wood argues that a strict reading of Indiana Code section 14-15-4-1 will erimi-nalize activities that most would consider innocent, even advisable, responses to an emergency. While we do not find the statute unconstitutionally vague, the facts in the case before us highlight the problems that can arise under the section 14-15-4-1 definition of actions that are erimi-nal when someone subject to the statute is faced with an emergency.

The likelihood there will be an emergency of some kind at the seene of a boating accident triggers a second concern about a conviction under Indiana Code section 14-15-4-1. Our Supreme Court has held that a boat operator owes a duty of reasonable care to all persons, including passengers on his or her boat. Clipp v. Weaver, 451 N.E.2d 1092, 1094 (Ind.1983). Indiana Code section 14-15-3-3 provides:

[a] person operating a boat shall operate the boat in a careful and prudent manner, having due regard for the following: (1) the rights, safety, and property of other persons; (2) the conditions and hazards, actual and potential, then existing, including weather and density of traffic; and (8) the possible injury to the person or property of other persons.

Yet, Indiana Code section 14-15-4-1 requires, without exception, a boat operator who is involved in an accident to stop at the seene of the accident, immediately, and to provide information and requested assistance. That wording likely inhibits an operator of a boat from balancing the duty he owes to keep his own passengers safe under Indiana Code section 14-15-3-3 with the duty he owes to provide information and assistance to others pursuant to Indiana Code section 14-15-4-1.

Boating accidents give rise to inherently serious and dangerous conditions. Most states have recognized that the operator of a boat involved in an accident owes a dual and sometimes competing duty to his own passengers as well as to those in another boat. Indiana has not. The need to balance these dual considerations is, in general, expressed as follows:

The operator of a vessel involved in a collision, accident, or other casualty, so far as he can without serious danger to his own vessel, crew, passengers, and guests, if any, shall render to other persons affected by the collision, accident, or other casualty assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, and also shall give his name, address, and identification of his vessel to any person injured and to the owner of the property damaged in the collision, accident, or other casualty.

625 III. Comp. Stat. Ann. 45/6-1 (emphasis added); see also Ala.Code § 38-5-25; Ark. Code Ann. § 27-101-205; Cal. Harbor & Naval Code § 656, Colo.Rev.Stat. § 33-13-109; Fla. Stat. Ann. § 327.30; Ga.Code Ann. § 527-14; Idaho Code Ann. § 67-7027, Towa Code Ann. § 462A.7; Kan. Stat. Ann. § 82-1177; Ky.Rev.Stat. Ann. § 235.250; La.Rev.Stat. Ann. § 34:851.10; Mich. Comp. Laws Ann. § 324.801833; Mont.Code Ann. § 28-2-527; Neb.Rev. Stat. Ann. § 37-1255; Nev.Rev.Stat. § 488.550; N.H.Rev.Stat. Aun. § 270:1-2; N.J. Stat. Ann. § 12:7-34.46; NM. Stat. Ann. § 66-12-12; N.C. Gen.Stat. Ann. § 7T5A-11; ND. Cent.Code Ann. § 20.1-13-08; Ohio Rev.Code Ann. § 1547.59; RI. Gen. Laws Ann. § 46-22-10; S.C.Code Ann. § 50-21-1380; S.D. Codified Laws § 42-8-56; Tenn.Code Ann. § 69-9-210; Texas Parks and Wildlife Code Ann. § 31.104; Utah Code Ann. § 73-18-13; Va.Code Ann. § 29.1-739; Vt. Stat. Aun. tit. 23, § 3313; Wash. Rev.Code Ann. § 79A.60.200; W.Va.Code Ann. § 20-7-18; Wyo. Stat. Ann. § 41-183-105.

In most other states, the operator of the vessel is obliged to provide assistance only "so far as he can without serious danger to his own vessel, crew, passengers, and guests" and "must render to other persons affected by the collision, accident, or other casualty assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty." E.9., 625 IIL Comp. Stat. Ann. 45/61. These guidelines enable the boat operator to appropriately balance his conflicting duties. More importantly, this language allows a jury to consider emergency conditions as an element of the crime, and not merely as a defense. The Indiana statute does not permit that balancing and those considerations, and Wood's conviction must therefore be affirmed.

CONCLUSION

Denial of Wood's motion for discharge pursuant to Indiana Criminal Rule 4(C) was not error. There was sufficient evidence Wood violated Indiana Code section 14-15-4-1, but Wood's three convictions, arising as they did from one incident of leaving the scene, subjected him to double jeopardy. We accordingly vacate two of his convictions, one of the Class C felonies and the Class D felony, and remand to the trial court with instructions to refund, the fines imposed for the vacated convictions.

Affirmed in part, reversed in part, and remanded.

BAKER, J., concurs.

KIRSCH, J., dissents with separate opinion.

KIRSCH, Judge,

dissenting.

I respectfully dissent.

As my colleagues note in Judge May's majority opinion, the tragic events on Monroe Reservoir on June 28, 2010 led to two deaths, a serious injury, and traumatic effects on all parties involved. In the course of the trial of the underlying cause and this appeal, four judges have examined the facts of the case and statute upon which it turns. All four judges have agreed that the statute is problematic, but they have reached different conclusions as to the result.

My colleagues note this case "has brought to light serious concerns about the statute that criminalizes Wood's behavior," that "observing the requirements will, in many emergency situations, require behavior that defies logic," and that "engaging in innocent, and even advisable, behavior can leave one in violation of the statute." Op., p. 1066. The opinion continues noting that the statute "permits no consideration of what is reasonable in any given emergency," nor "does it permit citizens to engage in any balancing of considerations that are pertinent in emergencies." Id.

The trial court recognized that the statute failed to set forth an exception for the situation in which compliance with the statute's provisions would be excused where such compliance was impossible or risked serious safety concerns and attempted to remedy the statutory omission by giving an instruction on necessity, but the trial court's necessity instruction was illusory. Indiana Code section 14-15-4-1 provides that the "operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property shall do the following...." For the necessity defense to apply under the instruction given by the trial court, the accused must not have substantially contributed to the creation of the emergency. Here, it is unchallenged that both Wood and Collier substantially contributed to the creation of the emergency by their failure to maintain a proper lookout for other boats in the vicinity. As a result, the necessity defense as outlined in the jury instruction provided no defense for Wood and was illusory.

I believe that our legislature intended the language in the statute to be applied logically and not to bring about an unjust or absurd result. It is unquestioned that Wood claimed that he and his passengers were subject to significant peril and that he acted reasonably in moving his boat and its passengers to the marina. The statute did not give Wood fair notice that it was forbidden conduct to leave the seene of the accident even if Wood feared for his safety or that of his passengers and that necessity demanded that he leave the immediate accident seene. As our appellate courts have repeatedly said, "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Lock v. State, 971 N.E.2d 71, 74 (Ind.2012); Brown v. State, 868 N.E.2d 464, 467 (Ind.2007); Lee v. State, 973 N.E.2d 1207, 1209 (Ind.Ct.App.2012), trans. denied. As a result of such omission, Indiana Code section 14-15-4-1 is unconstitutional as applied.

      . Ind.Code § 14-15-4-4(3).

      , Ind.Code § 14-15-4-4(2)(A).

      . We heard oral argument June 18, 2013, at Trine University, the host site of Hoosier Boys State. We commend counsel for the quality of their oral and written advocacy and thank Trine University and Hoosier Boys State for their hospitality.

      . In the order they were received, the remaining calls were made by Marietta, two more by GiGi, one by another Harbor Pointe resident, Jeff Reynolds and a final call by Collier.

      . A reconstruction of the accident indicated the Cobalt struck Collier's Ranger just behind the mid-point and traveled over the left rear of the boat where Susan and Gage were sitting. On impact, Wood's boat "rotated over on its right side somewhat." (Tr. at 684.) At trial, Officer Angela Goldman, an Indiana Conservation Officer, testified that, from what she had learned from the reconstruction, "the Wood boat very well could have ... taken on water given its positioning and movement as a result of impact." (Id. at 587.)

      . Of those six years, Wood was ordered to serve two years in the Department of Correction, two years on home detention, and two years on probation.

      . Of those three years, Wood was ordered to serve two years in the Department of Correction and one year on home detention.

      . Effective January 1, 2012, the Indiana Supreme Court substantially rewrote the procedure for withdrawing a matter from the trial judge under Trial Rule 53.1. The new procedure requires the determination whether there has been a delay to first be put before the Executive Director of the Division of State Court Administration.

      . As required under Indiana Code section 14-154-1, Wood stopped at an accident scene that all agree was chaotic. Delaying assistance to victims in order to provide Collier the statutorily-required information about the operator's name and address, a full identification of the boat operated, and the name and address of the owner would presumably have been ill-advised in light of the emergency situation in the aftermath of the collision.

      . We share the concerns articulated in Judge Kirsch's well-reasoned dissent that application of this statute will in some cases likely render illusory the common-law defense of necessity. However, as we cannot know how the jurors applied the elements of the necessity defense to the facts of Wood's case, we must decline to reverse Wood's conviction on that ground.

      . Violation of either section exposes an operator to criminal sanctions; violation of section 14-15-3-3 is a Class C infraction. Ind. Code § 14-15-3-31.