text:
    In the Matter of Michael J. ALEXANDER, Respondent.
    No. 18S00-1301-DI-1.
    Supreme Court of Indiana.
    June 18, 2014.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Darrin M. Doleharty, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Count 1

Facts: In 2005, Respondent hired Bruce W. McLaren, an attorney who had resigned from the bar in 2003, to work in his law office. McLaren worked on several cases, including a dissolution case in which he performed law-related tasks, including legal research, client interviews, and assisting Respondent at counsel table during trial. When Respondent filed his affidavit for attorney fees in the divorce case, he included an itemized billing for the hours McLaren worked. On December 2, 2005, however, Respondent filed a “Waiver of Fees” withdrawing the part of the attorney fee affidavit related to McLaren’s participation. On the same date, Respondent self-reported his employment of McLaren to the then-Executive Secretary of the Disciplinary Commission. Respondent then terminated McLaren’s employment. In 2006, McLaren was found in contempt and fined $1,000 for continuing to practice after his resignation. See Matter of McLaren, 850 N.E.2d 400 (Ind.2006).

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

5.5(a): Assisting in the unauthorized practice of law.
8.4(a): Knowingly assisting another to violate the Rules of Professional Conduct.

Count 2

Discovery-related charges: In 1998, Respondent was retained to represent clients injured in an accident caused by an uninsured drunk driver. Respondent filed suit on behalf of the clients against Outback Steakhouse, alleging that the restaurant served the driver alcohol at a grand opening event when he was already obviously intoxicated. In an early meeting with a waitress at the restaurant, she told Respondent that the driver was visibly intoxicated when she served him alcohol at the grand opening.

As part of the discovery process, the restaurant served interrogatories to Respondent’s clients. “Interrogatory 12” asked the clients to disclose the facts upon which they were relying to support their claim that the restaurant had served alcohol to the driver knowing he was already intoxicated, including names and addresses of anyone knowledge of these facts. Respondent did not include the waitress’s name in response to Interrogatory 12, although he disclosed the name in another part of the discovery. During deposition in 2001 by the restaurant’s counsel, the waitress testified that the driver did not appear to be intoxicated when she served him.

In opening statements at trial in 2003, counsel for the restaurant told the jury that the waitress would testify that the driver was not visibly intoxicated at the grand opening and that no witness would testify to the contrary. On the Sunday following the first week of trial, the waitress came to Respondent’s office and told him that she had lied in the deposition and she planned on telling “the truth” at trial.

Indiana Trial Rule 26(E)(2)(b) provides:

A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which ... he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Respondent did not notify the restaurant’s counsel of his conversation with the waitress, nor did he update the response to Interrogatory 12 to render it accurate.

The next day, Respondent called the waitress as a witness, who testified that she served the driver alcohol more than once and that he was visibly intoxicated before leaving the event. She admitted that she had not told the truth in her deposition testimony.

This Court reversed the eventual verdict against the restaurant, finding that Respondent had committed misconduct that required remand for a new trial. See Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind.2006). “Indiana discovery rules are specifically designed to avoid surprise and ... trial by ambush .... We have consistently rejected a ‘gaming view* of the litigation process.” Id. at 76 (citation omitted). The case was later settled.

Charges relating to closing argument: Respondent made a number of inappropriate remarks during closing argument, including telling the jury that this would be “a perfect case for punitive damages,” even though his clients’ claim for punitive damages had been withdrawn in exchange for the restaurant not pursuing any comparative fault, alluding to facts that were not supported by admissible evidence, asserting personal knowledge of facts in issue, and stating his personal opinion as to the justness of his clients’ cause and the credibility of a witness.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(c): Knowingly disobeying an obligation under the rules of a tribunal (failure to supplement answer to interrogatory in violation Trial Rule 26(E)(2)(b)).
3.4(e): In trial, alluding to matters that the lawyer does not reasonably believe will be supported by admissible evidence, asserting personal knowledge of facts in issue, and stating a personal opinion as to the justness of a cause and the credibility of a witness.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Aggravating and mitigating facts

We find the following facts in mitigation: (1) Respondent took corrective steps regarding his misconduct in employing McLaren; and (2) Respondent has expressed regret and embarrassment regarding his misconduct. A substantial fact in aggravation is Respondent’s disciplinary history: Matter of Alexander, 504 N.E.2d 584 (Ind.1987) (agreed public reprimand); Matter of Alexander, 18S00-8606-DI-577 (Ind. Jan. 24, 1996) (agreed private reprimand); Matter of Alexander, 768 N.E.2d 892 (Ind.2002) (agreed public reprimand).

Discipline

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning August 5, 2014. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 28(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(e).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

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

All Justices concur.


source: Caselaw Access Project

author: RUSH, Justice.

license: Public Domain

text:
    Dexter BERRY, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 49S04-1406-CR-416.
    Supreme Court of Indiana.
    June 27, 2014.

      Dexter Berry, Pendleton, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. .49A04-1301-CR-34

RUSH, Justice.

In the absence of a plea agreement, trial courts have broad discretion to set conditions of probation, including “substantial punitive obligations” such as restrictive placements in work release. But when a trial court accepts a plea agreement with an executed time cap, its discretion to impose further punitive conditions of probation does not extend beyond what the plea agreement specifies. As we interpret Defendant’s plea agreement, it conferred discretion to determine the placement of his executed sentence, but not for any further restrictive placement as a condition of probation. Defendant’s one-year term in work release as a condition of probation, following the maximum executed term allowed under the agreement, thus exceeded the court’s authority. We therefore grant transfer and remand with instructions to accept or reject the plea agreement as written, and if accepted, to resentence Defendant consistent with its terms. In all other respects, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2).

Facts and Procedural History

Defendant was charged with C-felony burglary and D-felony theft, and later pleaded guilty to B-felony burglary and several lesser offenses as part of a combined plea agreement for this and three other cases. So far as relevant here, paragraph 5 of the plea agreement provided:

5. ... [T]he State of Indiana and the Defendant agrees [sic ] that the Court shall impose the following sentence:
Total combined sentence:
Set term of 10 years initial executed sentence, open to placement. The Court may impose an additional period of time beyond these 10 years and require the Defendant to serve a portion or all of that suspended time on probation.
Stay away from [the home where Defendant committed the B-felony burglary].... All other aspects of the Defendant’s sentence to be left to the discretion of the Court, after argument by the parties, including but not limited to, where the Defendant will serve any executed portion of his sentence. Should the Defendant violate the terms and conditions of his probation, the Court may order any or all of the suspended time to be executed.

(Emphases added). Thus, the agreement expressly confers discretion to determine the placement for the executed sentence, but it has no express provision for setting a restrictive placement for any additional suspended time.

At the guilty-plea hearing, the court questioned Defendant extensively about his understanding of the terms of the agreement, including a discussion with Defendant and both attorneys to clarify the intent of the agreement’s sentencing provisions as to both the duration and the placement of the executed sentence:

THE COURT: ... Set term of ten years initial executed sentence. Open to placement. Do you not ... if I understand this correctly I can give him a lot more. But everything above that ten years would have to be suspended, is that right?
[DEFENSE COUNSEL]: Yes, ma’am. That’s the way we discussed it.
THE COURT: Okay. Mr. Berry, tell me what’s your understanding of this. What ... kind of sentence can I give you?
DEFENDANT: From what my attorney explained to me, what you just said. Outside of ten ... the fixed term of ten, it can be suspended time probation[.]
THE COURT: Do I have to give you ten years executed?
DEFENDANT: This says, yes. Yes, ma’am. Ten years, open placement. It says the Department of Corrections (inaudible).
THE COURT: There you’re still confusing me. Initial executed sentence. Does that mean it is ten years executed?
[THE STATE]: Yes.
[DEFENSE COUNSEL]: That’s my understanding as well, Judge. But I do agree you can give him substantially more time suspended and basically have that suspended time hanging over his head during a probationary period.
THE COURT: Is that your understanding, Mr. Berry?
DEFENDANT: Yes, ma’am[.]
THE COURT: Okay. Now what does that mean, open to placement?
DEFENDANT: He explained Department of Corrections or Community ... Community Transitions, work release, house arrest, different things that he said.
THE COURT: Okay. Who ... who makes that decision?
DEFENDANT: Based on the plea, it’s the judge.
THE COURT: That’s right. Now, do I have to place you on probation?
DEFENDANT: No.
THE COURT: But I can if I want to, can’t I?
DEFENDANT: Yes, ma’am.
THE COURT: Okay. And it’s up to me to determine how long that suspended amount of time will be, is that correct?
DEFENDANT: Yes, ma’am.
THE COURT: Okay. And if I give you any suspended time I will be placing you on probation for some of that time or all of that time, is that your understanding?
DEFENDANT: Yes, ma’am.

Tr. 9-11. Despite the extensive discussion of the court’s authority to decide the placement of Defendant’s executed sentence, there was no comparable discussion about any authority for the court to order any restrictive placement for time served on probation. At the conclusion of the hearing, the court accepted the plea agreement and scheduled a sentencing hearing. Tr. 20-21.

Similarly, the parties’ arguments at sentencing focused only on the trial court’s placement discretion for the executed sentence. In particular, the defense “recognize[d] ... that [Defendant’s] history could justify this entire ten years in” the Department of Corrections (“D.O.C.”), but requested “a split sentence of six years D.O.C., four years on a term of Community Corrections.” Tr. 30. And though the State sought “a ten year sentence in D.O.C. followed by a period of time on probation,” it only requested “that additional time [to help enforce] the restitution,” without advocating any further restrictive placement for the probation time. Tr. 32 (emphasis added).

The trial court then sentenced Defendant to a total of fifteen years for the B-felony burglary, with ten executed in prison and five suspended, with two of the suspended years served on probation — but further “order[ed] the first year of your probationary period be spent through work release to get yourself back into the attitude that a fulltime job is important and necessary.” Tr. 34. The Court of Appeals affirmed by memorandum decision, Berry v. State, No. 49A04-1301-CR-34, 2013 WL 5519964 (Ind.Ct.App. Oct. 4, 2013), and Defendant sought transfer.

Standard of Review

“As a general proposition trial courts have broad discretion in setting conditions of probation, subject to appellate review only for an abuse of discretion.” Freije v. State, 709 N.E.2d 323, 324 (Ind.1999). But “[i]f the court accepts a plea agreement, it shall be bound by its terms,” thus limiting the court’s otherwise-broad discretion in ordering conditions of probation. Id. (quoting Ind.Code § 35-35-3-3(e) (1998)) (substitution original to Frei-je ). In turn, a plea agreement’s terms “are in the nature of contracts entered into between the defendant and the State.” Lee v. State, 816 N.E.2d 35, 38 (Ind.2004). Because of the important due process rights involved, contract-law principles “are not necessarily determinative,” but they “can provide guidance in the consideration of the agreement.” Id.

Restrictive Placements as a Condition of Probation

This case requires us to apply principles we first announced in Freije. There, the defendant pleaded guilty pursuant to a plea agreement, which addressed sentencing in two paragraphs:

3. The Defendant shall receive sentence [sic] of 2190 days at the Indiana Department of Correction with 2188 days suspended and credit for 1 day actually served and the balance of the time to be suspended.
4. The Defendant shall be placed on probation for a period of 2188 days of which the first 365 days must be monitored by the Hendricks County Superior Courts Probation department. Thereafter, the Defendant may petition the Court to request a transfer of the probation to another county.

Freije, 709 N.E.2d at 324. Nothing in those paragraphs, nor elsewhere in the plea agreement, stated that the trial court retained any discretion to set conditions of probation. See id. Nevertheless, the trial court at sentencing ordered the defendant to serve two years of home detention and perform 650 hours of community service “as conditions of that probation.” Id.

On transfer, we held that even though trial courts ordinarily “have broad discretion in setting conditions of probation,” accepting a plea agreement “imposes limits on [that] discretion” because “ ‘[i]f the court accepts a plea agreement, it shall be bound by its terms.’” Id. (quoting I.C. § 35-35-3-3(e)) (substitution original to Freije). Relying on an earlier decision involving restitution as a condition of probation, we reiterated that any “condition of probation which imposes a substantial obligation of a punitive nature is indeed part of the sentence and penalty and must be specified in the plea agreement.” Id. (quoting Disney v. State, 441 N.E.2d 489, 494 (Ind.Ct.App.1982)) (internal quotation marks omitted). Freije held that home detention and community service were “substantial obligations of a punitive nature” and thus “may not be imposed in the absence of a plea agreement provision giving the trial court discretion to impose conditions of probation.” Id. at 325-26.

The issue here, then, is whether the terms of this particular plea agreement confer sufficient discretion to impose punitive conditions of probation — specifically, a restrictive placement — in excess of the executed-time cap. In construing the plea agreement, we are guided (though not strictly bound) by contract interpretation principles, Lee, 816 N.E.2d at 38, and therefore begin with its plain language and read its provisions as a harmonious whole if possible. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind.2012), reh’g denied. In this context, we harmonize three related provisions of the contract: that the ten-year initial executed sentence was “open to placement,” that the court could impose additional suspended time to be served on probation, and that “[a]ll other aspects of the Defendant’s sentence [were] to be left to the discretion of the Court, ... including but not limited to, where the Defendant will serve any executed portion of his sentence.”

On that point, two Court of Appeals cases, one before and one after Freije, are helpful in determining whether Defendant’s plea agreement extends the necessary discretion. First, in Antelijf v. State, a plea agreement set a six-year cap on executed time and specifically stated that “terms of probation, including restitution ..., will be left to the Court’s discretion.” 688 N.E.2d 166, 168 (Ind.Ct.App.1997) (emphasis added). The Court held that provision was sufficient to authorize home detention as a condition of probation, even beyond the full executed term of six years the agreement permitted. Id. at 169-70. (Indeed, Freije specifically distinguished the agreement in Antelijf as having extended discretion to set punitive conditions of probation. Freije, 709 N.E.2d at 325.)

By contrast, the agreement in Tubbs v. State provided in one paragraph that “the court may impose whatever sentences it deems appropriate except said sentences shall be served concurrently with each other and the executed portion, if any, shall not exceed nine years.” 888 N.E.2d 814, 817 (Ind.Ct.App.2008). Then a subsequent paragraph stated that “as a condition for any suspended sentence or probation, the defendant shall testify truthfully if called upon to do so.” Id. The Court of Appeals held that “the specific paragraph addressing the only imposed condition for probation or suspended sentence is at odds with any implied broad grant of discretion concerning the terms of probation” in the earlier paragraph, and so the more specific provision was controlling. Id. The Court of Appeals therefore held that imposing community corrections beyond the agreement’s nine-year maximum executed term violated the plea agreement. Id.

We see this plea agreement as comparable to Tubbs, with a specific provision that at least ambiguously controls over a more general one. This agreement stated that “[a]ll ... aspects of the Defendant’s sentence” except the mandatory ten-year executed term and restitution were “left to the discretion of the Court, after argument by the parties, including but not limited to[] where the Defendant will serve any executed portion of his sentence” (emphasis added). The first part of that sentence is akin to the general paragraph in Tubbs, purportedly leaving “all aspects” of the sentence “to the discretion of the Court.” Standing alone, that provision might be enough to authorize a punitive, restrictive placement for Defendant’s probation— though it certainly is not as clear as Ant-cliffs unambiguous provision that “terms of probation ... will be left to the Court’s discretion,” 688 N.E.2d at 168. (Better still would be to specify the court’s discretion to set “punitive terms of probation,” to place the issue beyond all doubt. An ounce of drafting is worth a pound of appeal.).

But the final clause of the same sentence goes on to restrict the court’s discretion as “including[,] but not limited to, where the Defendant will serve any executed portion of his sentence.” That provision specifically grants discretion to determine the placement of Defendant’s executed sentence, but it is silent as to any such discretion to impose any restrictive placement for probation — when Freije requires that any authority to set punitive conditions of probation “must be specified in the plea agreement,” 709 N.E.2d at 324 (emphasis added) (quoting Disney, 441 N.E.2d at 494). Thus, specifically granting discretion over the placement of Defendant’s ten-year executed sentence strongly implies a lack of comparable authority to set a similar restrictive placement during any subsequent probation time. See Tubbs, 888 N.E.2d at 817 (specific provision authorizing one condition of probation limited a more-general provision granting sentencing discretion).

Our conclusion is also consistent with the trial court’s excellent plain-English colloquy with Defendant and counsel about the parties’ understanding of the plea agreement. The court recognized that the sentencing provisions of this agreement were “confusing,” and asked the parties to explain what they intended. In response, the Defendant explained his recognition that the court had authority to determine the placement for his executed sentence, but expressed no recognition of similar authority for any probation time. Defense counsel’s explanation was similar, as was the deputy prosecutor’s. And at no time during that discussion did the court suggest that it understood its placement discretion to extend to Defendant’s probation time. With no clear grant of such authority in the agreement itself, no indication that any of the parties understood the plea agreement to confer such discretion, and a specific provision that implies the absence of discretion over the placement of Defendant’s probation, we must conclude that the trial court lacked authority to impose a punitive placement for Defendant’s probation.

To remedy that breach of the plea agreement, Defendant urges us to instruct the trial court on remand to make the one-year work release placement part of his ten-year executed sentence. But that position begs the question of whether the trial court would have accepted the plea agreement in the first place, had it realized that it would lack authority to impose a restrictive placement on Defendant’s probation time. Nor do we have any indication of whether the court would have considered it more important to impose all ten years of the executed sentence in prison, or to provide the one year in work release “to get [Defendant] back into the attitude that a fulltime job is important and necessary.” Tr. 34. Such “sentencing decisions rest within the sound discretion of the trial court,” subject only to our authority to “review and revise” sentences under Article VII, Sections 4 and 6 of the Indiana Constitution and implemented through Indiana Appellate Rule 7(B). Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.2007). We must therefore give the trial court the first opportunity to exercise its discretion as to both approving or rejecting the plea agreement and determining an appropriate sentence under its provisions. Therefore, as in Freije, the appropriate remedy is simply to “remand[] to the trial court with instructions to accept or reject the plea agreement as written,” 709 N.E.2d at 326—and then, if it accepts the agreement, to impose “a sentence in accord with the terms of the plea agreement,” Tubbs, 888 N.E.2d at 818.

Conclusion

When a plea agreement sets a fixed or capped executed sentence, the court retains discretion to impose punitive conditions of probation only to the extent the agreement specifically says so. Under these circumstances, the generic recital that “[a]ll other aspects of the Defendant’s sentence [were] to be left to the discretion of the Court” might have been sufficient— though certainly less than ideal — to confer that discretion. But because the agreement’s additional terms implicitly limit the court’s placement discretion to the executed portion of the sentence, it does not “specifically” confer similar discretion over probation as Freije requires. We therefore grant transfer; reverse and remand with instructions to accept or reject the plea agreement as written and, if accepted, resentence Defendant consistent with its terms; and otherwise summarily affirm the Court of Appeals.

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

RUCKER, J. concurs in result.

      . The only copy of the plea agreement Defendant has provided on appeal is an unauthenticated copy included in his Appellant’s Brief, instead of his Appendix as the Appellate Rules require. But the provided copy is consistent with the Transcript, and the State does not challenge its authenticity, so we accept it as accurate.

      . For the other offenses, the court imposed shorter terms concurrent with the B-felony sentence.

      . Our conclusion does not disregard the agreement’s "including but not limited to” provision. While specifying discretion over the executed-sentence placement does indeed imply a lack of discretion over a probationary placement, the provision preserves the trial court’s discretion as to punitive, non-placement conditions of probation, such as community service or road crew.


author: Dickson, Chief Justice.

text:
    Keion GADDIE, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 49S02-1312-CR-789.
    Supreme Court of Indiana.
    June 27, 2014.

      Suzy D. St. John, Ruth A. Johnson, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika P. Talbot, Ellen H. Mei-laender, Stephen R. Creason, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 49A02-1212-CR-953

Dickson, Chief Justice.

Following a bench trial, Keion Gaddie was convicted of Resisting Law Enforcement as a Class A misdemeanor. His appeal argues that the evidence is insufficient to sustain his conviction. The Court of Appeals reversed. Gaddie v. State, 991 N.E.2d 137 (Ind.Ct.App.2013). We reach the same result but granted transfer to put to rest a conflict among various decisions in the Court of Appeals.

On August 4, 2012, around 10:30 p.m., Indianapolis Metropolitan Police Officer Jeffery Newlin responded to a report of a “disturbance” at a residence in Indianapolis. Tr. at 7. When he arrived, he saw about eight people standing on the front porch and in the front yard “screaming and yelling.” Id. He saw several other people, one of whom was the defendant, walking along a side yard toward the back. Officer Newlin told the group to return to the front yard with the purpose of watching everyone until back-up arrived. Everyone but the defendant complied. Backup then arrived. Officer Newlin, who was in full police uniform, headed toward the back, identified himself as a police officer, and told the defendant to stop. See id. at 10 (“stop, police. Stop, police.”). The defendant continued walking along the curti-lage of the residence toward an alley. Officer Newlin followed him and, “screaming extremely loud,” repeated his order to stop. See id. at 9-10 (“Police Department, stop walking. Stop”). The defendant looked back at Officer Newlin two or three times but continued walking. Officer Newlin then radioed for help, and another officer intercepted the defendant at the next street over about 45 seconds later.

The defendant was charged with Resisting Law Enforcement by fleeing after being ordered to stop by a law enforcement officer. At the bench trial, Officer Newlin testified that, upon responding to a report of a disturbance at a residence, he was corralling people in the front yard for everyone’s safety when the defendant disregarded the officer’s order to stop by walking away. The officer testified that the defendant only walked, that he had not seen the defendant or anyone else commit a crime prior to ordering the defendant to stop, and that the defendant was not under arrest when ordered to stop. The defendant testified that he lived at the residence where the incident occurred, that a disturbance had indeed occurred that night but had broken up by the time the police arrived, and that he was in the process of leaving before Officer Newlin arrived. The trial court found the defendant guilty as charged.

The defendant’s appeal is predicated upon a claim of insufficient evidence, but the defendant does not specify the element of the offense for which the proof is allegedly lacking. In relevant part, the Resisting Law Enforcement statute provides: “A person who knowingly or intentionally ... (3) flees from a law enforcement officer after the officer has, by visible or audible means ... identified himself or herself and ordered the person to stop; commits resisting law enforcement, a Class A misdemeanor....” Ind.Code § 35-44.1-3 — 1(a)(3) (2012). In the appellate review of an insufficient evidence claim, we determine whether the probative evidence and reasonable inferences drawn from it— without regard to weight or credibility— could have allowed a reasonable trier of fact to find each of the elements of the charged offense proven beyond a reasonable doubt. Joslyn v. State, 942 N.E.2d 809, 811 (Ind.2011). We note that the evidence clearly establishes that the defendant disregarded and walked away from a law enforcement officer who had adequately identified himself. Because the defendant’s argument focuses on whether the defendant had a duty to stop, we view his claim as alleging insufficient evidence to prove the element “after the officer has ... ordered the person to stop.”

1. The “Ordered the Person to Stop” Element

The defendant relies upon cases applying the Fourth Amendment to hold that an individual has a duty to stop only if the encounter with police is an arrest or detention based upon probable cause or an investigatory stop based upon a reasonable and articulable suspicion that criminal activity may be afoot. See Briggs v. State, 873 N.E.2d 129, 132 (Ind.Ct.App.2007), trans. denied; Bovie v. State, 760 N.E.2d 1195, 1197 (Ind.Ct.App.2002), trans. not sought. The State, in turn, cites to a line of cases which largely trace back to Corbin v. State, 568 N.E.2d 1064, 1065 (Ind.Ct.App.1991), trans. not sought, for the proposition that the lawfulness of the order is irrelevant because the statute defining the offense does not expressly condition the offense upon a lawful order.

The Fourth Amendment to the United States Constitution provides that the right of the people to be secure in their persons against unreasonable search and seizure shall not be violated. U.S. Const. amend. IV. At minimum, the government’s seizure of a citizen must rest on specific, articulable facts that lead an officer to reasonably suspect that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). The Supreme Court in Terry stressed that it had “always recognized” that:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

392 U.S. at 9, 88 S.Ct. at 1873, 20 L.Ed.2d at 898 (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737 (1891)). Recognizing “the practical and constitutional arguments pressed with great vigor on both sides,” Terry, 392 U.S. at 10, 88 S.Ct. 1868, and the “incredibly rich” diversity in street encounters between citizens and police officers, id. at 13, 88 S.Ct. 1868, the United States Supreme Court rejected a “rigid all- or-nothing model of justification and regulation under the Amendment,” id. at 17, 88 S.Ct. 1868, and adopted a reasonableness-under-the-circumstances approach. Id. at 19-20, 88 S.Ct. 1868. The Court concluded in part that, a police officer could stop and frisk a citizen only if the officer had a reasonable suspicion based on his experience and specific, articulable facts “that criminal activity may be afoot.” Id. at 30, 88 S.Ct. 1868.

The State cites California v. Ho-dari D. for the proposition that a person who flees an order to stop has not been “seized” because a seizure under the Fourth Amendment requires either physical force or submission to an assertion of authority. 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690, 697 (1991). Under the State’s view, it is irrelevant that the Resisting Law Enforcement statute makes it a criminal act for a citizen to refuse to submit to a police officer’s assertion of authority and order to stop. The Court in Hodari D. was not presented with such a statute. In fact, the United States Supreme Court has recognized that a person is seized when his freedom to terminate an encounter is restrained:

In [a situation where freedom of movement is restricted by a factor independent of police conduct], the appropriate-inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. ... As we have explained, no seizure occurs ... so long as the officers do not convey a message that compliance with their requests is required.

Florida v. Bostick, 501 U.S. 429, 436-37, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389, 400 (1991) (emphasis added); see Terry, 392 U.S. at 16, 88 S.Ct. at 1877, 20 L.Ed.2d at 903 (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”). If a citizen’s freedom to walk away is deemed a criminal offense merely because it follows an officer’s command to halt— even in the absence of probable cause or reasonable suspicion — then the citizen’s freedom is restrained contrary to the protections of the Fourth Amendment. A person approached by police “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so....” Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (citations omitted), cited with approval in Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 577 (2000) (“[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.”).

A person’s well-established freedom to walk away is thus violated when that person is subjected to a statute that makes it a criminal offense to decline a police order to stop. To hold that a citizen may be criminally prosecuted for fleeing after being ordered to stop by a law enforcement officer lacking reasonable suspicion or probable cause to command such an involuntary detention would undermine longstanding search and seizure precedent that establishes the principle that an individual has a right to ignore police and go about his business.

The State argues that persons whose Fourth Amendment rights are violated by an unlawful police order to stop may seek redress through civil liability, the exclusionary rule, or both. We reject this argument for two reasons. First, in cases such as this where the only alleged crime is the act of fleeing itself — versus, for example, the possession of an illegal substance like that in Hodari D., the exclusion of the fruits of such unlawful seizure would be of no benefit to the defendant. Second, we remain unpersuaded that it would be better policy to empower law enforcement to stop anyone on a whim and require aggrieved citizens to undergo the time and expense of civil litigation than to require law enforcement to have a reason for interference.

We agree with the State that the language of the Resisting Law Enforcement statute, on its face, does not expressly require that the order to stop be lawful. Literally applied, however, the “after the officer has ... ordered the person to stop” element of the statute, if applied in the absence of probable cause or reasonable suspicion, constitutes an unreasonable detention and impairs a citizen’s “right to ignore the police and go about his business,” Wardlow, 528 U.S. at 125, 120 S.Ct. at 676, 145 L.Ed.2d at 577, contrary to the Fourth Amendment.

Rather than invalidate the statute as unconstitutional, however, we prefer to construe it in a manner so that it does not violate the Constitution. “If there is more than one reasonable interpretation of a statute, at least one of which is constitutional, we will choose that path which permits upholding the act.” Baldwin v. Reagan, 715 N.E.2d 332, 338 (Ind.1999). In Baldwin, we interpreted the Indiana Seat-belt Enforcement Act (which literally authorized law enforcement officers to stop a vehicle “to determine compliance” with the Act) to prohibit a police officer from stopping a motorist in Indiana for a possible seat belt violation “unless that officer reasonably suspects that the driver or a passenger in the vehicle is not wearing a seat belt as required by law.” Id. at 337.

For these reasons, in order to interpret the statute as constitutional, we hold that the statutory element “after the officer has ... ordered the person to stop” must be understood to require that such order to stop rest on probable cause or reasonable suspicion, that is, specific, artic-ulable facts that would lead the officer to reasonably suspect that criminal activity is afoot. Absent proof that an officer’s order to stop meets such requirements, the evidence will be insufficient to establish the offense of Resisting Law Enforcement by fleeing.

2. Evidence of Reasonable Suspicion

The State argues that in responding to a reported disturbance, Officer Newlin had reasonable suspicion to believe that criminal activity had occurred and had the authority to stop the defendant to stabilize the situation and ensure everyone’s safety. It urges that the officer was dispatched to investigate a disturbance and thereby had reasonable suspicion to conduct an investigatory stop and to command the defendant to stop.

Officer Newlin testified that he had responded to “just a disturbance” and that he had not seen the defendant or anyone else commit a crime prior to ordering the defendant to stop. Tr. at 15. Our legislature has not defined a “disturbance” as a crime, and thus a report of a disturbance, without more, is not a sufficient basis upon which to conduct an investigatory stop. See State v. Atkins, 834 N.E.2d 1028, 1033-34 (Ind.Ct.App.2005) (holding that the investigatory stop lacked reasonable suspicion that criminal activity was afoot but adding that “[t]his case might have been different if [the defendant] had fled, engaged in furtive activity, and was uncooperative, or if [the officer] had a description of the suspect that was corroborated upon seeing [the defendant].”), trans, denied. Further, refusal to cooperate with police must be distinguished from unprovoked flight. Wardlow, 528 U.S. at 125, 120 S.Ct. at 676, 145 L.Ed.2d at 577; see Bostick, 501 U.S. at 437, 111 S.Ct. at 2387, 115 L.Ed.2d at 400 (“We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”). “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S. at 124, 120 S.Ct. at 676, 145 L.Ed.2d at 576. Here, however, the defendant did not change his behavior when Officer Newlin appeared and ordered him to stop; he looked back two or three times but continued walking. See, e.g., Atkins, 834 N.E.2d at 1033 (finding no reasonable suspicion where the defendant did not change his behavior but continued walking in the police officer’s direction). And the mere existence of a disturbance, standing alone, does not identify specific, articulable facts that lead an officer to reasonably suspect that criminal activity is afoot, as is required for a valid investigatory stop. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911. Thus, the circumstances of the disturbance and Officer Newlin’s presence do not provide sufficient evidence to prove the element that the order to stop was supported by probable cause or reasonable suspicion.

Conclusion

To avoid conflict with the Fourth Amendment, Indiana Code section 35-44.1-3-l(a)(3), the statute defining the offense of Resisting Law Enforcement by fleeing after being ordered to stop must be construed to require that a law enforcement officer’s order to stop be based on reasonable suspicion or probable cause. Under the facts and circumstances of this case, a reasonable trier of fact could not have found that the officer’s order to stop was based on such probable cause or reasonable suspicion. The evidence was thus insufficient to convict the defendant of the crime of Resisting Law Enforcement by fleeing a police order to stop. We reverse the judgment of the trial court.

RUCKER, DAVID, MASSA, RUSH, JJ., concur.

      . This statute has been recodified. It was previously listed under Indiana Code section 35-44-3-3(a)(3) (2011) and amended in ways immaterial to this opinion.

      . Yowler v. State, 894 N.E.2d 1000, 1004 (Ind.Ct.App.2008), trans. not sought; Cole v. State, 878 N.E.2d 882, 886 (Ind.Ct.App.2007), trans. not sought; Dandridge v. State, 810 N.E.2d 746, 749 (Ind.Ct.App.2004), trans. denied; State v. Howell, 782 N.E.2d 1066, 1067 (Ind.Ct.App.2003), trans. not sought; Lashley v. State, 745 N.E.2d 254, 261 (Ind.Ct.App.2001), trans. denied; see also Alspach v. State, 755 N.E.2d 209, 211 (Ind.Ct.App.2001) (addressing the right to resist with reasonable force an unlawful arrest by police), trans. denied. To the extent reasonable suspicion may be required for an investigatory stop, the State also relies on Williams v. State, 959 N.E.2d 357, 359 (Ind.Ct.App.2011), trans. denied.

      . Our decision today, holding that the offense of Resisting Law Enforcement by fleeing after being ordered to stop requires that an officer’s order to stop be based on probable cause or reasonable suspicion of criminal activity, should not be understood to necessarily apply to other statutes related to police authority to impinge on individual conduct as part of their community caretaking function. See, e.g„ Ind.Code § 9-21-8-1 (2012) ("It is unlawful for a person to knowingly fail to comply with a lawful order or direction of a law enforcement officer invested by law with authority to direct, control, or regulate traffic.”) (emphasis added) and Ind.Code § 12-26-4-1 (2013) ("A law enforcement officer, having reasonable grounds to believe that an individual has a mental illness, is either dangerous or gravely disabled, and is in immediate need of hospitalization and treatment, may ... [ajpprehend and transport the individual to the nearest appropriate facility.”) (emphasis added). In the present case, the State does not contend that the officer’s command to stop was made pursuant to the officer’s community caretaking function.

      . Although not argued by the State, we observe that a citizen’s conduct, after being commanded to stop, cannot retroactively justify the officer’s command. The order to stop must itself be supported by probable cause or reasonable suspicion preceding or concurring with the stop order to support a conviction for fleeing law enforcement. While not shown by the facts of this case, we also acknowledge that a person’s conduct after receiving an order to stop from police may provide a new basis for reasonable suspicion or probable cause to support a subsequent order to stop, from which Resisting Law Enforcement by fleeing could be successfully prosecuted.


author: DICKSON, Chief Justice. DAVID, Justice,

text:
    TIN THANG, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 49S04-1402-CR-72.
    Supreme Court of Indiana.
    June 27, 2014.

      Patricia C. McMath, Ruth A. Johnson, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine M. Cooper, Andrew A. Kobe, Stephen R. Creason, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 49A04-1303-CR-110

DICKSON, Chief Justice.

Following a bench trial, defendant Tin Thang was convicted for Public Intoxication, a class B misdemeanor. He appeals his conviction, arguing that the State failed to present sufficient evidence to prove one of the statutory elements for Public Intoxication — that he had endangered himself or others. The Court of Appeals agreed and reversed Thang’s conviction. Thang v. State, 2 N.E.3d 702 (Ind.Ct.App.2013). We granted transfer and now affirm the trial court.

On December 2, 2012, police officer Michael Agresta was on patrol on the southwest side of Indianapolis. Officer Agresta was exiting the restroom of a local gas station, when the gas station attendant drew his attention to the defendant and told him that the defendant seemed intoxicated. Officer Agresta approached the defendant, who had entered the gas station while he was in the restroom, and observed that the defendant “was standing very unsteady, swaying back and forth,” had “eyes [that] were red and bloodshot,” and “smelled of an odor of alcoholic beverage.” Tr. at 7. Officer Agresta also observed that a car was now in the gas station parking lot that had not been there prior to his entering the restroom. Other than the gas station attendant and Officer Agresta, the defendant was the only other person at the gas station. Suspecting that the car belonged to the defendant, the officer ran' a vehicle license plate check, which verified that the defendant was the car owner. Officer Agresta also found the keys to the car on the defendant’s person. “Believing that [the defendant] had endangered the lives of others, including himself,” Officer Agresta placed the defendant under arrest for Public Intoxication and had the car towed because no one else was present to whom the car could be released. Id. at 8.

The defendant was convicted of Public Intoxication, a class B misdemeanor, which, in relevant part, is defined as follows:

[I]t is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol ... if the person:
(1) endangers the person’s life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.

Ind.Code § 7.1-5-l-3(a) (2012). On appeal, the parties do not dispute that the defendant was intoxicated in a public place. The defendant argues, however, that the evidence was insufficient to “prove beyond a reasonable doubt that he endangered himself or anyone else.” Appellant’s Br. at 3. The State argues that evidence establishes that the defendant endangered his own life and another person’s life and also alarmed another person, any of which would support the conviction.

The Court of Appeals found the evidence insufficient to establish that defendant had endangered himself, endangered others, or alarmed another person. As to the “alarms another person” element, we summarily affirm the Court of Appeals. We granted transfer, however, to address whether the proof of the endangerment element can be established by reasonable inferences drawn from the evidence.

When an appellate court reviews the sufficiency of the evidence needed to support a criminal conviction, it neither reweighs evidence nor judges the credibility of witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009). The appellate court only considers “the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.2008)). A conviction will be affirmed if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A verdict of guilt may be based upon an inference if reasonably drawn from the evidence. See Drane v. State, 867 N.E.2d 144, 147 (Ind.2007).

In a rare departure from this general rule allowing fact-finders to draw reasonable inferences, we have, however, recognized an exception in cases involving the element of “endangerment” in the offense of Operating a Vehicle While Intoxicated [OWI] as a class A misdemeanor. Outlaw v. State, 929 N.E.2d 196, 196 (Ind.2010), expressly adopting Outlaw v. State, 918 N.E.2d 379 (Ind.Ct.App.2009). In Outlaw, we acknowledged that prior decisions had found that a showing of intoxicated driving, without more, was adequate to prove endangerment. 918 N.E.2d at 382, expressly adopted by 929 N.E.2d at 196. Responding to a 2001 statutory amendment that had expanded the penal alternatives for OWI to create a class C misdemeanor level of the offense that excluded the “endangerment” element, while retaining this element for the offense as a class A misdemeanor, Outlaw held that, to support a conviction for OWI as a class A misdemeanor, “the State was required to submit proof of ‘endangerment’ that went beyond mere intoxication.” Id. at 382. This unique holding was necessary to give separate effect and meaning to the legislative changes that created independent penal consequences for OWI depending on whether it involved “endangerment” (a class A misdemeanor) or not (a class C misdemeanor). Outlaw pointed out that the State cannot claim that the same evidence that proves the class C misdemean- or also proves the additional element of endangerment for the class A misdemean- or. Id. at 381. Construing the OWI statute in this way expanded the ability of law enforcement to deter and prosecute driving while intoxicated. An intoxicated driver could thus be apprehended for a class C misdemeanor if he or she simply operated a vehicle, but an intoxicated driver would be subject to conviction for a class A misdemeanor if the manner of operation endangered a person. Nothing in Outlaw, however, suggests that the Court intended a general retreat from the deeply entrenched rule of law permitting fact-finders to draw reasonable inferences from the evidence.

The factors discussed in Outlaw are inapplicable to the Public Intoxication statute. In 2012, the General Assembly amended the Public Intoxication statute to add an element of “endangerment,” but for reasons different and distinguishable from those that motivated the 2001 changes in the OWI statute. The legislature’s modifications to the Public Intoxication statute were in apparent response to this Court’s decision in 2011 that affirmed the conviction of an automobile passenger for Public Intoxication. See Moore v. State, 949 N.E.2d 343 (Ind.2011). As explained in Stephens v. State:

Notably, the General Assembly added these elements to the public intoxication statute in 2012, making it no longer a crime to simply be intoxicated in public. The addition of these elements promotes public policy encouraging inebriated persons to avoid creating dangerous situations by walking, catching a cab, or riding home with a designated driver rather than driving while intoxicated.

992 N.E.2d 935, 938 (Ind.Ct.App.2013) (emphasis added), trans. not sought. Thus the legislature’s purpose in adding the “endangerment” element to the Public Intoxication statute in 2012 was wholly distinguishable from its particularized objectives in modifying the OWI statute in 2001. The propriety of the fact-finder to draw reasonable inferences from the evidence remains generally applicable, including the determination of proof of endangerment for the offense of Public Intoxication at issue in this case.

In the present case, the evidence shows that Officer Agresta was at the gas station, that the defendant and the defendant’s car were present at the gas station when Officer Agresta exited the gas station restroom, that neither the defendant nor his car were there moments earlier, that the defendant was “very unsteady, swaying back and forth,” had “red and bloodshot” eyes, and smelled like alcohol, that no one else was present except the gas station attendant, and that the defendant had the keys to his car on his person. Tr. at 7. The defendant recognizes that the trial court probably reasoned and inferred that he “had driven on the public street, thereby endangering himself or others,” Appellant’s Br. at 4, but he argues that this inference is not permissible because “no evidence was presented that he was observed on the street.” Id. He argues that Moore v. State, 634 N.E.2d 825 (Ind.Ct.App.1994), trans. not sought, prohibits a fact-finder from drawing an inference from circumstantial evidence that a defendant was on a public street. The defendant argues that absent direct evidence that he was driving on the public street, the trial court cannot find that he endangered himself or others because no evidence exists to suggest that he “endangered himself or anyone else” while at the gas station. Appellant’s Br. at 3.

We understand Moore differently. Rather than prohibiting an inference that a defendant’s misconduct occurred on public property, Moore only requires that such an inference be based on supporting evidence of probative value. In Moore, the defendant had been convicted for Public Intoxication among other offenses. 684 N.E.2d at 826. The Court of Appeals noted that the charging information only stated that the defendant “was in a state of intoxication at [a private residence], not on the public roads going to the residence.” Id. at 827. Also, the Court of Appeals found that the uncontroverted evidence was that the defendant “was only observed” in the driveway and backyard. Id. Based on those facts, the court held that it would be improper to “broaden the charging information and infer evidence which was not actually presented at trial.” Id. Moore does not preclude the inference of a defendant’s presence on a public street if it reasonably derives from circumstantial evidence before the finder of fact.

As explained above, when determining whether the elements of an offense are proven beyond a reasonable doubt, a fact-finder may consider both the evidence and the resulting reasonable inferences. In reviewing claims of insufficient evidence, appellate courts then consider whether a reasonable fact-finder could find guilt beyond a reasonable doubt based on the evidence and the reasonable inferences drawn therefrom. See Bailey, 907 N.E.2d at 1005; Henley, 881 N.E.2d at 652; Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997); Brewer v. State, 646 N.E.2d 1382, 1386 (Ind.1995); Holder v. State, 571 N.E.2d 1250, 1253 (Ind.1991). Moore does not undermine this longstanding principle.

In the present case, the undisputed evidence established the sudden presence of the defendant and his vehicle at a gas station, his intoxication, his possession of the car keys, and the absence of any other person, thus necessitating removal of the car by towing. From these facts, it is a reasonable inference that the defendant had arrived at the gas station by driving his automobile on the public streets while intoxicated, thereby endangering his or another person’s life.

The trial court could reasonably conclude beyond a reasonable doubt that the defendant had been intoxicated in a public place while endangering the life of himself or others. We reject the defendant’s claim of insufficient evidence and affirm the judgment of the trial court.

RUSH and MASSA, JJ., concur.

DAVID, J., dissents with separate opinion in which RUCKER, J., joins.

DAVID, Justice,

dissenting.

It is undisputed that the evidence presented at Thang’s trial was sufficient to show that he was intoxicated. And I can agree with my colleagues that reasonable inferences drawn from the evidence could lead a reasonable fact-finder to conclude that Thang drove his vehicle to the gas station — and, presumably, drove on a public street in doing so. For that matter, I concur in the majority’s interpretation of Moore. But because I believe the relevant criminal statute requires the State to prove more than just this, and because I feel it failed to do so, I cannot join the majority.

Thang was charged under Indiana Code § 7.1-5-l-3(a), which makes it a class B misdemeanor to “be in a public place ... in a state of intoxication caused by the person’s use of alcohol ... if the person: (1) endangers the person’s life; [or] (2) endangers the life of another person.” And the majority concludes:

In the present case, the undisputed evidence established the sudden presence of the defendant and his vehicle at a gas station, his intoxication, his possession of the car keys, and the absence of any other person, thus necessitating removal of the car by towing. From these facts, it is a reasonable inference that the defendant had arrived at the gas station by driving his automobile on the public streets while intoxicated, thereby endangering his or another person’s life.

Thang, slip op. at 6 (emphasis added). I can agree with all but the last seven words. But those last seven words establish an evidentiary presumption that we have specifically rejected in a closely related — and frequently overlapping — context.

Indiana Code § 9-30-5-2 provides that “a person who operates a vehicle while intoxicated” has committed the offense of Operating While Intoxicated, a class C misdemeanor. Ind.Code § 9-30-5-2(a). However, the offense is a class A misdemeanor “if the person operates a vehicle in a manner that endangers a person.” Ind. Code § 9-30-5-2(b). As the Court of Appeals first recognized, the intent of this two-part statute — the product of a 2001 amendment — “was to remove the ‘endangerment’ requirement from the general definition of intoxication and create the new offense of Class C misdemeanor OWI without an endangerment requirement.” Vanderlinden v. State, 918 N.E.2d 642, 645 (Ind.Ct.App.2009), trans. denied; see also Sesay v. State, 5 N.E.3d 478, 484 (Ind.Ct.App.2014). “By definition the statute requires more than intoxication to prove endangerment.” Vanderlinden, 918 N.E.2d at 645.

Another panel of the Court of Appeals, in Outlaw v. State, looked at this same question and reached the same conclusion. 918 N.E.2d 379 (Ind.Ct.App.2009). To prove the elements required for class A misdemeanor OWI, “[t]he element of endangerment can be established by evidence showing that the defendant’s condition or operating manner could have endangered any person, including the public, the police, or the defendant.” Id. at 381. “Endangerment does not require that a person other than the defendant be in the path of the defendant’s vehicle or in the same area to obtain a conviction,” but “[b]y definition, the current statute requires more than intoxication to prove endangerment.” Id. at 381-82 (citing Vanderlinden, 918 N.E.2d at 642). Outlaw then expressly notes that prior case law — equating intoxication with endangerment — had been abrogated by the current statutory scheme. Id. at 382.

Thus, we hold that the State was required to submit proof of “endangerment” that went beyond mere intoxication in order for the defendant to be convicted of operating while intoxicated, as a Class A misdemeanor. Here, the traffic stop of Outlaw’s vehicle was based on a non-illuminated license plate rather than erratic or unlawful driving, and no evidence other than the intoxication suggests that Outlaw was operating his motor vehicle in a manner that would endanger himself, his three passengers, or any other person. Indeed, the State concedes that “there is no evidence that [Outlaw] operated his vehicle in an unsafe manner ...”

Id. at 382 (internal footnote omitted).

We then granted transfer and adopted the Court of Appeals opinion in Outlaw, concluding that the Court of Appeals was correct in rejecting the State’s argument “that evidence of ‘intoxication’ should be sufficient to prove ‘endangerment’ ” under the current version of the OWI statutes. Outlaw v. State, 929 N.E.2d 196, 196 (Ind.2010). Thus, the rule that the State must show something additional — on top of intoxicated driving — to prove endangerment in the case of an OWI conviction is part of this Court’s very recent jurisprudence.

I am not certain that we can reconcile that with the Court’s holding today. Because it appears, at least somewhat, that the majority has implicitly adopted the very presumption that we rejected in Outlaw: it permits the evidence of Thang’s intoxication, coupled with circumstantial evidence of driving, to also satisfy the proof requirement for the element of endangerment. In other words, it seems as though the majority holds that for purposes of the public intoxication statute, drunk driving is endangerment in and of itself — even though that would not be true if Thang were actually charged with drunk driving.

The explanation is that the General Assembly’s intent in modifying the public intoxication statute was different than the objectives it had in mind when amending the OWI statutes. I cannot agree.

The General Assembly modified the OWI statutes by separating them into two offenses, adding a specific element of endangerment to the higher level of charge and indicating that, at the lower level, a person could drive while intoxicated without endangering others. And when it amended the public intoxication statute in 2012 it likewise added a specific element of endangerment. If anything, I believe this reflects the same intent for both statutory provisions: to make the fact of endangerment a separate and distinct element from intoxication, that the State must prove beyond a reasonable doubt.

This intent is also reflected in the General Assembly’s 2001 amendment of the definition of “intoxication,” which previously said that a person was intoxicated when he or she was under the influence of alcohol “so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties to an extent that endangers a person.” Ind. Code § 9-13-2-86 (1991) (emphasis added). But after 2001, the endangerment portion of the definition of intoxication was removed. See Ind.Code § 9-13-2-86 (Supp.2001); Act of May 9, 2001, P.L. 175-2001, § 1, 2001 Ind. Acts 1131; see also Ind.Code § 35-46-9-2 (Supp.2013).

So before 2001, intoxication presumed— or, rather, required — endangerment. Af-terwards, by statutory definition the two terms became separate and distinct. Under today’s holding, however, they are one and the same again — but only in the precise factual context (drunk driving) which caused the General Assembly to separate them in the first place.

The alternative take-away from today’s opinion is that if the endangerment element remains an independent element to be proven beyond a reasonable doubt, i.e., that intoxicated driving is not per se endangerment, then the majority sustains Thang’s conviction on its belief that the fact-finder could draw a reasonable inference from Thang’s intoxicated appearance at the gas station, to his act of driving, to a distinct endangerment element. However, I do not believe there is any evidence in the record to sustain this leap of faith.

It is at most a reasonable inference that Thang drove to the gas station drunk, as there is no direct evidence of his doing so. Certainly he arrived at the gas station somehow, and with the keys in his possession and no other apparent driver, a jury could probably infer that Thang was the vehicle’s driver.

But by the same token there certainly is no evidence in the record as to the manner in which he drove: Did he drive safely and obedient to the traffic laws? Did he swerve across the fog line? Did he nearly drive into a telephone pole? Was the road upon which he drove winding or dangerous? Did he nearly strike a pedestrian or bicyclist? Did he speed or act erratically? Were there even any other cars on the road? If Thang had to do something apart from simply drive drunk to endanger himself or another, then what did he do? We simply do not know, because there was no evidence introduced at trial that would tend to show any of those things.

The decision today effectively vitiates the endangerment element from the public intoxication statute under these circumstances, as the State need no longer present any evidence beyond the fact of the defendant’s intoxicated driving of a vehicle. Thang v. State will be the guidepost that affirms all such convictions on sufficiency review.

Today’s result also muddies the judicial water and will create unusual possibilities for the State, defendants, judges, and juries. By way of example, imagine a hypothetical police officer pulling over a driver on an Indiana highway for a non-driving related reason, such as a tail light being out. See Outlaw, 918 N.E.2d at 380 (defendant stopped for improperly illuminated license plate). And on approaching, the officer discovers that the driver is intoxicated. But the driver had committed no driving errors. He or she had not swerved, changed lanes without signaling, and was travelling below the speed limit. Under the OWI statutes, the State could charge that driver with class C misdemeanor OWI but not class A misdemeanor OWI, because the proof of intoxication while driving is not sufficient to show endangerment and the General Assembly has clearly reserved that higher level of offense for circumstances involving additional conduct beyond intoxication. But based on the majority’s decision today, the State could charge that driver with class B misdemeanor public intoxication and use the evidence of intoxication to also prove endangerment. In essence, today’s holding also vitiates the class C misdemeanor OWI statute under these facts as the State can always seek a higher penalty by using a different criminal statute.

Or in another example, imagine if Thang had walked out of the gas station, gotten in his car, and driven away before being arrested. He drove without violating any apparent traffic regulations or laws (other than being intoxicated), but because there might be some gray area as to that question, the State charges Thang with public intoxication as a class B misdemeanor and OWI as both a class C and class A misdemeanor. The fact of Thang’s intoxication could be used to prove endangerment for the public intoxication charge, but could not be used to prove endangerment for the class A misdemeanor OWI. I pity the judge who must explain that to a jury in his or her final instructions, and I feel for the jurors who must sort out the distinction.

Even under the facts today, the blurriness is apparent. The State could have charged Thang with class C misdemeanor OWI, using the circumstantial evidence of his driving and the direct evidence of his intoxication as proof. And it probably should have done so, as Thang likely committed that offense. It could not, however, have succeeded in convicting Thang of class A misdemeanor OWI as there is no evidence of his manner of driving that would prove the element of endangerment. But today the majority affirms Thang’s conviction for class B misdemeanor public intoxication, using the very same circumstantial evidence of driving that would have sustained the class C misdemeanor OWI, and then inferring from it sufficient evidence to prove the endangerment in a way that would be impermissible under the class A misdemeanor OWI. It simply does not pass the common-sense test.

This cannot be what the General Assembly intended in amending the public intoxication statute — which it did after Outlaw’s determination of the relationship between “intoxication” and “endangerment” — and as such should not be how we interpret or apply it. See Bailey v. State, 979 N.E.2d 133, 141 (Ind.2012) (“Certainly, had the General Assembly disapproved of our approach ... it could have done so. In the absence of such a change, we think it fair to infer a persuasive degree of legislative acquiescence with respect to our approach.”); Sales v. State, 723 N.E.2d 416, 420 (Ind.2000) (“The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result.”); Sanders v. State, 466 N.E.2d 424, 428 (Ind.1984) (“[SJtatutes relating to the same general subject matter are in pan materia and should be construed together so as to produce a harmonious statutory scheme.”). The better way forward, I think, would be to use the same approach for both statutes: evidence of intoxication, standing alone, cannot also serve as the evidence that the defendant charged with public intoxication endangered himself or herself, or another person.

This is not how we have chosen to interpret our OWI statutes and I see no reason to interpret identical terms in the public intoxication statute — particularly in this factual context — any differently. The majority opinion does not give us clear guidance going forward. And because I believe the State failed to show that Thang endangered himself or another person— beyond its at-best circumstantial showing of intoxicated driving — I therefore vote to reverse the trial court.

RUCKER, J., joins.

      . The offense of Operating a Vehicle While Intoxicated as a class A misdemeanor is committed when an intoxicated person "operates a vehicle in a manner that endangers a person.” Ind.Code § 9-30-5-2(b) (2012) (emphasis added).

      . The amendments to the statute defining Public Intoxication as a class B misdemeanor added the requirements that the intoxicated person "(1) endangers the person's life; (2) endangers the life of another person; (3) breaches the peace or is in imminent danger of breaching the peace; or (4) harasses, annoys, or alarms another person.” Ind.Code § 7.1 — 5—1—3(a) (2012).

      . I agree with the majority’s decision to summarily affirm the Court of Appeals with respect to its analysis of Ind.Code § 7.1 — 5—1— 3(a)(4).

      . In Vanderlinden, the Court of Appeals rejected the State's argument that the defendant’s intoxication alone was sufficient to show endangerment, Vanderlinden, 918 N.E.2d at 645, but nevertheless affirmed the defendant’s conviction for class A misdemean- or OWI because the defendant had been speeding, id. at 646 (declining to determine precise extent of speeding required to show endangerment, but concluding "that driving fifty-one miles per hour in a thirty-five mile per hour zone is sufficient”).

      . It is true that in the context of an OWI, ”[t]he element of endangerment can be established by evidence showing that the defendant’s condition or operating manner could have endangered any person, including the public, the police, or the defendant.” Outlaw, 918 N.E.2d at 381 (emphasis added); Thang v. State, 2 N.E.3d 702, 705 n. 3 (Ind.Ct.App.2013). And reasonable persons might say that ”[t]he argument could be made that driving a vehicle while intoxicated always endangers someone.” Vanderlinden, 918 N.E.2d at 645 (quoting Wells v. State, 848 N.E.2d 1133, 1147 (Ind.Ct.App.2006), trans. denied, cert, denied ). But that could be said about any number of activities, and that is not how the General Assembly has delineated the elements of this crime. The public intoxication statute does not speak in terms of "might” endanger or “could have” endangered — it says "endangers.” See Sesay, 5 N.E.3d at 485 ("[Sjpeculation regarding things that could happen in the future is not sufficient to prove the present crime of public intoxication.”). "If it is sufficient to speculate about all the various things that might befall a person,” then the General Assembly’s addition of the endangerment prongs to the public intoxication statute would have no meaning "because there is virtually no scenario in which a person in a public place would not be found guilty of public intoxication for simply being intoxicated.” Id. at 486. "Such a construction would stretch the statute to an absurdity.” Id.

      . This, in fact, is what the Court of Appeals seems to already be doing. See Sesay v. State, 5 N.E.3d 478, 484-85 (Ind.Ct.App.2014) (applying rationale from Vanderlinden and Outlaw to Ind.Code § 7.1 — 5—1—3(a)(1)). "Here, too, something more than mere intoxication is now required to prove a person has committed the crime of public intoxication. The State conceded as much at oral argument.” Id. at 485; see also id. at 487 (Bradford, J., concurring in result). ("Intoxication alone is insufficient to sustain a finding of endangerment.”). The majority’s decision today thus overrules Sesay without mentioning it.


author: DICKSON, Chief Justice.

text:
    Donald MURDOCK, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 48S02-1406-CR-415.
    Supreme Court of Indiana.
    June 27, 2014.

      Anthony C. Lawrence, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 48A02-1306-CR-565

DICKSON, Chief Justice.

Donald Murdock was found to have violated the terms of his probation when he committed a new offense: Resisting Law Enforcement, a Class A misdemeanor. His appeal argues that the evidence was insufficient to support the revocation of his probation. The Court of Appeals affirmed the revocation. Murdock v. State, 5 N.E.3d 792 (Ind.Ct.App.2014). We grant transfer and likewise find the evidence sufficient to prove the elements of Resisting Law Enforcement-but we do so based on the reasoning used in our decision today in Gaddie v. State, 10 N.E.3d 1249 (Ind.2014), where we found the evidence insufficient.

On May 9, 2013, the State filed a notice of probation violation, alleging in part that the defendant violated the terms of his probation by committing Resisting Law Enforcement as a Class A misdemeanor. The notice did not specify the subsection of the statute alleged to have been committed. An evidentiary hearing was held on June 10, 2013, during which Indianapolis Metropolitan Police Officer Vincent Stewart testified,that he came into contact with the defendant at approximately 10:00 p.m. on April 3, 2013 in Marion County after another officer, Officer Richard Weaver, radioed that a white male wearing a white t-shirt was running from him. Officer Stewart did not know the nature of the contact between Officer Weaver and the defendant. Officer Stewart was in uniform and in a marked car. Officer Stewart testified that after Weaver’s call, he and several other officers set up a perimeter in the apartment complex, which he described as ten to fifteen percent occupied and located in a high-crime area. He and the other officers began canvassing the area and checking vacant apartments. While in a vacant apartment, Stewart heard a noise and then saw the defendant — matching the physical description of the suspect — run out the back of the apartment. Officer Stewart gave chase, identifying himself as a police officer and ordering the defendant to stop, but the defendant continued running. After about fifteen to twenty feet, Stewart caught up with the defendant in a creek and tried to grab him. The defendant pushed Stewart away, causing injury and pain to Stewart’s left knee. The defendant continued to resist, so Officer Stewart sprayed him with pepper spray and took him into custody.

The trial court found by a preponderance of evidence that the defendant violated the conditions of his probation by committing Resisting Law Enforcement as a class A misdemeanor by fleeing. The court ordered that the defendant serve three-and-one-half years of his previously suspended sentence. On appeal, the defendant claims that the evidence was insufficient to support the trial court’s decision to revoke his probation.

“Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007) (explaining that: “Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants”). A probation hearing is civil in nature, and the State must prove an alleged probation violation by a preponderance of the evidence. Braxton v. State, 651 N.E.2d 268, 270 (Ind.1995); see Ind.Code § 35-38-2-3(f) (2012). When the sufficiency of evidence is at issue, we consider only the evidence most favorable to the judgment— without regard to weight or credibility— and will affirm if “there is substantial evidence of probative value to support the trial court’s conclusion that a probationer has violated any condition of probation.” Braxton, 651 N.E.2d at 270.

In relevant part, the resisting statute provides: “A person who knowingly or intentionally ... (3) flees from a law enforcement officer after the officer has, by visible or audible means ... identified himself or herself and ordered the person to stop; commits resisting law enforcement, a Class A misdemeanor_” Ind. Code § 35-44.1-3-l(a)(3) (2013). In Gad-die, we held that this statute must be construed to require that a law enforcement officer’s order to stop be based on reasonable suspicion or probable cause of criminal activity. Gaddie, 10 N.E.3d at 1256. The defendant does not dispute that he fled after Officer Stewart identified himself and ordered the defendant stop; rather, he contends that the State failed to prove that Officer Stewart had either a warrant for the defendant’s arrest or the requisite reasonable suspicion of criminal activity. We disagree.

The evidence most favorable to the trial court’s judgment shows the police officer had the requisite reasonable suspicion that criminal activity was afoot. The State presented the following evidence: A police officer responded to a report of a suspect running away from another officer at nighttime. The officer then helped establish a perimeter around a largely unoccupied apartment complex in a high-crime area. While inspecting a vacant apartment, the officer saw the defendant, who matched the description of the fleeing suspect, run out the back of the apartment. When the officer caught up with the defendant, the defendant resisted arrest and caused injury to the officer. In contrast, the police officer in Gaddie responded to a disturbance report. When the officer arrived, a number of people were standing in the front area of a private residence, but the defendant was walking away from the scene, towards the backyard, and continued walking away after the officer’s order to stop. The officer in Gaddie testified that he had not seen the defendant or anyone else commit a crime prior to ordering the defendant to stop. While a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Gaddie, 10 N.E.3d at 1256 (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576 (2000)); see State v. Atkins, 834 N.E.2d 1028, 1033-34 (Ind.Ct.App.2005) (holding that the investigatory stop lacked reasonable suspicion that criminal activity was afoot but adding that “[t]his case might have been different if [the defendant] had fled, engaged in furtive activity, and was uncooperative, or if [the officer] had a description of the suspect that was corroborated upon seeing [the defendant].”).

In this case, the defendant ran when the officer appeared, engaged in furtive and evasive activity in a high-crime area, was uncooperative, and matched the description of the suspect. Cf. Wardlow, 528 U.S. at 124-25, 120 S.Ct. at 676, 145 L.Ed.2d at 576-77 (concluding that a suspect’s unprovoked flight upon noticing the police in an area known to have a high incidence of drug trafficking supported a finding of reasonable suspicion). As a condition of probation, the defendant was, by statute, required not to commit any crimes. The evidence and its reasonable inferences clearly established that the defendant knowingly or intentionally fled from a law enforcement officer’s order to stop that was based on reasonable suspicion of criminal activity and thus committed the offense of Resisting Law Enforcement. Substantial evidence of probative value supports the trial court’s decision that the defendant violated the terms of his probation.

Conclusion

Accordingly, we now grant transfer and affirm the trial court’s revocation of the defendant’s probation.

RUCKER, DAVID, MASSA, RUSH, JJ., concur.

      . This statute has been recodified. It was previously listed under Indiana Code section 35-44-3-3(a)(3) (2011) and amended in ways immaterial to this opinion.


text:
    Phillip GRIFFIN, Appellant, v. STATE of Indiana, Appellee.
    No. 49S02-1401-CR-50.
    Supreme Court of Indiana.
    June 27, 2014.
   Published Order

By order dated January 24, 2014, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals, and heard oral argument on April 3, 2014. After further consideration and discussion at conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion, Griffin v. State, 997 N.E.2d 375 (Ind.Ct.App.2013), should be REINSTATED as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end. The Court extends its appreciation to the attorneys for their presentations at the argument.

The Court directs the Clerk to certify this appeal as final and to send copies of this order to the Hon. Nancy H. Vaidik, Chief Judge of the Court of Appeals and all counsel of record. The Court further directs the Clerk to post a copy of this order to the Court’s website and to send a copy of this order to LexisNexis and Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Jeffrey D. HECK, Respondent.
    No. 29S00-1311-DI-736.
    Supreme Court of Indiana.
    June 30, 2014.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Respondent maintained an account for client funds (“Trust Account”). At least as early as December 2005, Respondent had a negative balance in the Trust Account. The Commission sent him a request for an explanation on March 31, 2006. From that date through 2013, Respondent failed to respond to or made incomplete responses to 25 demands for information by the Commission. On three occasions, the Commission filed petitions to show cause why Respondent should not be suspended for noncooperation. In two cases, Respondent cooperated before entry of a suspension order. In the third case, the Court suspended him before he cooperated sufficiently with the Commission to be reinstated.

Respondent made disbursements from the Trust Account using a check-by-phone system. He made disbursements from the Trust Account for personal purposes; for example, paying for his child’s private school tuition. From December 16, 2006, through March 3, 2010, Respondent made approximately 47 transfers from the Trust Account that were not based on written withdrawal authorization or that were made payable to “cash.” He failed to create and maintain sufficient records and a contemporaneous ledger for his Trust Account. In addition, Respondent held money on behalf of clients in a PayPal account, which was not an IOLTA account.

The parties cite the following facts in aggravation: (1) Respondent’s actions were part of a pattern of misconduct; (2) Respondent committed multiple offenses; (3) Respondent obstructed the disciplinary investigation by intentionally failing to comply with rules and orders of the Commission; (4) Respondent has substantial experience in the practice of law.

Violations: The parties agree that Respondent violated these rules prohibiting the following misconduct:

Ind. Professional Conduct Rules:

1.15(f): Holding client funds in an account that was not an IOLTA account.
8.1(b): Knowingly failing to respond to a lawful demand for information from a disciplinary authority.

Ind. Admission and Discipline Rule:

23(29)(a)(l): Failure to keep clients’ funds in clearly identified trust account.
28(29)(a)(2): Failure to create or retain sufficiently complete trust account records.
23(29)(a)(3): Failure to maintain a contemporaneous ledger for a trust account.
23(29)(a)(5): Making withdrawals from a trust account without written withdrawal authorization and making disbursements from a trust account by checks payable to “cash.”

Discipline: The parties agree that the appropriate discipline is a one-year suspension without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, beginning August 8, 2014. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

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

All Justices concur.


author: RILEY, Judge.

text:
    In the Matter of the Petition Temporary Protective Order A.N., Appellant-Respondent, v. K.G., Appellee-Petitioner.
    No. 49A04-1212-PO-649.
    Court of Appeals of Indiana.
    June 11, 2014.

      Suzy St. John, Indianapolis, IN, Attorney for Appellant.
   OPINION ON REHEARING

RILEY, Judge.

In the instant case, appellant-respondent, A.N. appealed the trial court’s order of contempt, asserting that the trial court improperly acted as advocate for the ap-pellee-petitioner, K.G., thereby violating her due process right to a fair trial before an impartial tribunal. Affirming the trial court, we concluded that A.N.’s due process rights had not been violated. Additionally, in a footnote, we noted that A.N. had waived her challenge to the twenty-eight year extension of K.G.’s protective order because the record indicated that she had expressly agreed to “an extension of the protective order.” A.N. v. K.G., 3 N.E.3d 989 (Ind.Ct.App.2014).

Now, A.N. petitions for rehearing, arguing that, while she had “no objection to the extension” of the protective order because of a new sentence she had incurred, she did not agree to the specific term imposed by the trial court. (Transcript p. 80). We grant A.N.’s petition for rehearing for the limited purpose to review the trial court’s decision to extend the protective order for twenty-eight years.

Our Legislature has dictated that the Civil Protection Order Act (CPOA) shall be construed to promote the: (1) protection and safety of all victims of domestic or family violence in a fair, prompt and effective manner; and (2) prevention of future domestic and family violence. Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind.Ct.App.2003) (citing Ind.Code § 34-26-5-1). Generally, a trial court has discretion to grant protective relief according to the terms of the CPOA. See I.C. § 34-26-5-9. Thus, a finding by the trial court that domestic or family violence has occurred sufficient to justify the issuance of an order for protection means that the respondent represents a credible threat to the safety of the petitioner. See I.C. § 34-26-5-9(f). Therefore, upon a showing of domestic or family violence by a preponderance of the evidence, the trial court “shall grant relief necessary to bring about a cessation of the violence or the threat of violence.” I.C § 34-26-5-9(f). Although the CPOA provides that the modification of an order for protection is “effective for two (2) years after the date of issuance unless another date is ordered by the court,” the Act does not provide us with any guidelines for reviewing a trial court’s discretionary relief which extends beyond the statutory two-year term nor have we had an occasion to formulate appropriate standards.

The trial court, foregoing the Legislature’s suggested two-year term, imposed a twenty-eight year extension on the protective order, set to expire November 29, 2040. In Barger v. Barger, 887 N.E.2d 990, 993-94 (Ind.Ct.App.2008) (internal citations omitted), we addressed the significant ramifications of an improperly granted protective order:

For example, at the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or a fine. Furthermore, after the trial court has issued a protective order, it is a federal offense for a respondent to purchase, receive, or possess a firearm if the protected person is his current or former spouse, a current or former significant other, or a person with whom the respondent has a child. Thus, an improperly granted protective order may pose a considerable threat to the respondent’s liberty.

The same concerns pertain to an improperly granted extension of an existing protective order.

Mindful of the purpose of the statute, we find that granting an extension in which there is no finding of domestic violence is at odds with the concerns underlying the statute, namely “the prevention of future domestic and family violence.” See I.C. § 34-26-5-1. Moreover, because an extension is necessarily derived from the original protective order, the trial court’s determination must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance. As an order for protection can impose significant restrictions on a respondent’s freedom of movement and other rights, the extension must be equally supported by a court’s conclusion that such additional time, in excess of the statutorily two-year approved extension, is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence. Absent findings in the present case, we find that the twenty-eight year extension of the protective order is unreasonable. However, because A.N. agreed to an extension, we remand to the trial court to determine a reasonable extension of K.G.’s protective order in accordance with the instructions in this opinion.

The petition for rehearing is granted for the purpose of reviewing the extension to a protective order. Otherwise, we stand by our previous opinion.

KIRSCH, J. and ROBB, J., concur.