author: BARNES, Judge.

text:
    Eddie SPALDING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1210-CR-534.
    Court of Appeals of Indiana.
    Aug. 9, 2013.

      Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Eddie Spalding appeals the trial court’s denial of his motion to dismiss and discharge. We affirm.

Issue

Spalding raises one issue, which we restate as whether the trial court properly denied his motion to dismiss and discharge.

Facts

On March 7, 2011, Spalding was arrested and charged with Class A misdemeanor operating while intoxicated, Class A misdemeanor resisting law enforcement, and Class B misdemeanor public intoxication. On March 10, 2011, Spalding was released on bond. On April 1, 2011, Spalding was held in the Marion County Jail on a United States Marshal Service (“USMS”) hold. Although a hearing was scheduled for April 11, 2011, Spalding failed to appear. A re-arrest warrant was issued and served that same day. On April 12, 2011, Spald-ing appeared at a hearing and, according to jail records, was returned to the jail. On May 10, 2011, the State moved for a continuance of the June 30, 2011 trial date, which the trial court granted. On June 2, 2011, Spalding was released to the USMS.

A pretrial conference was held on June 30, 2011, at which Spalding failed to appear, and defense counsel informed the trial court that Spalding was apparently in federal custody but confirmation was needed. The trial was rescheduled for July 1, 2011, and Spalding again failed to appear.

On July 19, 2011, Spalding wrote a letter informing the trial court that he was in federal custody in Kentucky and awaiting transfer to a facility in Oklahoma. The trial court forwarded this letter to the State on July 25, 2011. On August 29, 2011, the State petitioned for a writ of habeas corpus ad prosequendum requesting that Spalding be transported for a September 28, 2011 hearing, which the trial court granted. Although the writ was issued, federal authorities did not transport Spalding to that hearing.

From October 21, 2011, through January 23, 2012, Spalding was incarcerated in the Marion County Jail on a federal hold. It is not clear from the record why Spalding was in the Marion County Jail during this time.

On March 13, 2012, Spalding filed a motion to dismiss and discharge alleging that 372 days had passed since his arrest and that all of the delay was attributable to the State. At a March 14, 2012 hearing, defense counsel informed the trial court that Spalding was still in federal custody awaiting the adjudication of an alleged probation violation. On March 28, 2012, another hearing was held, and the trial court ruled that the delays from July 1, 2011, through July 25, 2011, September 28, 2011, through October 21, 2011, and March 13, 2012, through March 28, 2012, were attributable to Spalding. The trial court informed the parties, “from the date defense filed the motion, March 13th of this year to today and any further proceedings will be charged to the defense.” Tr. p. 27. That same day, the trial court granted defense counsel’s request to certify the issue for interlocutory appeal.

On April 26, 2012, Spalding informed the trial court of his intent not to file an appeal at that time and requested that a bench trial be set before June 4, 2012. At an April 30, 2012 hearing, defense counsel informed the trial court that Spalding was in a federal facility in Illinois. Defense counsel objected to a proposed trial date of June 7, 2012, and requested that trial be set before June 4, 2012. A trial was scheduled for May 31, 2012.

Spalding was not transported to the May 31, 2012 trial, and defense counsel stated that Spalding was still in federal custody and that his earliest release date was “[ejarly 2013.” Id. at 41. The trial court indicated that Spalding would not be transported until he had executed his sentence. Defense counsel voiced his concerns about Spalding’s right to a speedy trial and stated that he believed the Indiana Criminal Rule 4 date had already passed and that, even based on the trial court’s calculations, the deadline would be June 5, 2012. Defense counsel objected to setting a trial date beyond that. The trial court set a status hearing for November 1, 2012.

On June 18, 2012, Spalding filed another motion to dismiss and discharge arguing that, based on the trial court’s March 28, 2012 calculations, 370 days of delay were attributable to the State. On August 23, 2012, after a hearing, the trial court denied the motion. On September 27, 2012, Spalding belatedly requested the certification of the order for interlocutory appeal, which the trial court granted. We accepted jurisdiction, and Spalding now appeals.

Analysis

Spalding argues that the trial court improperly denied his motion to dismiss and discharge because the time limit for trying him has passed. This issue is a question of law, which we review de novo. See Pelley v. State, 901 N.E.2d 494, 498 (Ind.2009).

Spalding contends that, of the 470 days from the date he was charged until the date he filed his second motion to dismiss and discharge, only seventy-five days were attributable to him. According to Spald-ing, the State failed to timely bring him to trial in violation of Indiana Criminal Rule 4(C), which provides:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.

The State responds by arguing, “because Defendant was in a foreign jurisdiction for several months following his arrest and the filing of charges against him in Indiana, Criminal Rule 4(C) does not apply to those time periods when he was outside the jurisdiction.” Appellee’s Br. p. 9. Effectively, however, the State asks us to apply Criminal Rule 4(C) and attribute the time Spalding was incarcerated out of state to him. According to the State, when considering the time Spalding was in federal custody outside of Indiana, only 181 days are attributable to the Criminal Rule 4(C) time limit and, therefore, the motion to dismiss and discharge was properly denied.

When a defendant is incarcerated in another jurisdiction, there are two methods for securing his or her presence in Indiana — the Interstate Agreement on Detainers (“IAD”), codified at Indiana Code Section 35-33-10-4, and a writ of habeas corpus ad prosequendum (“writ”), codified at Indiana Code Section 35-33-10-5. See Sweeney v. State, 704 N.E.2d 86, 95 (Ind.1998), cert. denied. “The decision of whether to use a detainer or a Writ to obtain custody of a prisoner only arises when the prisoner is confined in a federal prison; Writs are not available with respect to prisoners incarcerated or confined in other states.” Id. at 97. There is no statutory mandate obligating the State to file a detainer within a set time frame and, absent the filing of a detainer, the provisions of the IAD are not triggered. Fisher v. State, 933 N.E.2d 526, 529-30 (Ind.Ct.App.2010). Here, the State did not file a detainer. Thus, the IAD and its provisions for discharge do not apply. This does not necessarily mean, however, that Criminal Rule 4 does apply.

Our supreme court has observed:

While it may be reasonable to impose the time limit of Criminal Rule 4(B) when a criminal defendant is within the exclusive control of the State of Indiana, for purposes of certainty and ease of administration of the rule, it becomes irrational to extend its application to a defendant who is incarcerated in another jurisdiction which has an interest in retaining the defendant in its custody, either for trial or to serve a sentence.

Smith v. State, 267 Ind. 167, 171, 368 N.E.2d 1154, 1156 (1977) (restating a three-factor test for determining whether, upon demand, the State has satisfied its constitutional duty to make a diligent, good-faith effort to bring a defendant incarcerated out of state to trial). In other words, “Indiana has long held that Criminal Rule 4 does not apply when a person is incarcerated in a foreign jurisdiction.” Howard v. State, 755 N.E.2d 242, 245 (Ind.Ct.App.2001); see also Fisher, 933 N.E.2d at 529 (relying on Howard to conclude that Criminal Rule 4 did not provide a basis for Fisher’s discharge). Our supreme court has clarified, “the inapplicability of Criminal Rule 4 to defendants in foreign jurisdictions should not extend to defendants who are brought into Indiana under Writs or other forms of temporary custody.” Sweeney, 704 N.E.2d at 100.

In Howard, the defendant was arrested in Indiana on September 2, 1998, and formal charges were filed on September 9, 1998. We observed that, for purposes of Criminal Rule 4, the clock began to tick on September 9, 1998. Id. at 246. On September 15, 1998, at Howard’s initial hearing, defense counsel informed the State that Howard was incarcerated in Kentucky. Relying on Smith, we concluded, “At this point, Howard was not in the exclusive control of the State of Indiana. As a result, we find that Criminal Rule 4 was inapplicable for Howard’s period of incarceration in Kentucky.” Id. We determined that the date of Howard’s return to Indiana, September 3, 1999, was significant because that was when Howard was again within Indiana’s exclusive control so as to make Criminal Rule 4 applicable again. Id.

In rejecting Howard’s argument that Sweeney required the delay between his informing the State of his whereabouts in Kentucky and the State lodging the detain-er be attributed to the State, we explained:

Our supreme court merely carved out a very limited exception to the Smith line of cases in Sweeney, thereby leaving intact its earlier decisions in Smith, Hef-lin, and Brown. Specifically, our supreme court concluded that while generally Criminal Rule 4 will not apply to defendants incarcerated in foreign jurisdictions, it is proper to apply Criminal Rule 4 to such defendants in the single instance where the State brings a defendant into Indiana under a form of temporary custody, but then voluntarily relinquishes control of that defendant to a foreign jurisdiction. Sweeney, 704 N.E.2d at 100. Such was not the situation in Howard’s case. Thus, we follow the Smith line of cases and affirm the trial court’s decision to deny Howard’s Motion for Discharge.

Id. at 246-47.

Here, following Howard, the Criminal Rule 4(C) clock began to tick on March 7, 2011, when Spalding was arrested and charged, and Criminal Rule 4 became inapplicable in the Spring or Summer 2011. Although the State subsequently attempted to secure Spalding’s presence in Indiana with a writ, he was not returned to Indiana pursuant to the writ. Therefore, the Sweeney exception, which applied Criminal Rule 4 to defendants who are brought into Indiana under writs or other forms of temporary custody, was not triggered. See Sweeney, 704 N.E.2d at 100.

Further, although it appears that Spald-ing was in the Marion County Jail from October 21, 2011 through January 23, 2012, the record indicates that Spalding was there on a federal hold. The federal hold, taken with the State’s assertion that there is no evidence that the State or trial court knew Spalding had been transported, leads us to conclude that Spalding was not in the jurisdiction under the exclusive control of Indiana during this time. See id. at 100 n. 27 (noting “that defendant’s speedy trial rights in Indiana do not commence until he is within the jurisdiction and exclusive control of Indiana authorities.”). Accordingly, when Spalding filed his second motion to dismiss and discharge, he had not yet been returned to the jurisdiction and under the exclusive control of the State of Indiana, and Criminal Rule 4(C) was still inapplicable.

Spalding urges us to follow McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App.2011), trans. denied, which applied Criminal Rule 4(C) to a defendant who, after being arrested in Indiana, was incarcerated in a federal facility in Oklahoma for ten months before being returned to Indiana. In doing so, the McCloud court relied on Sweeney for the proposition that “where no detainer was filed and the IAD did not apply, the defendant was entitled to the protections of Criminal Rule 4.... ” McCloud, 959 N.E.2d at 884. The McCloud court recognized that Sweeney was brought into Indiana on a writ and noted, “we do not believe that the writ was significant or determinative of the Court’s decision that Sweeney was entitled to Criminal Rule 4 protections.” Id. at 884 n. 4.

We do not agree with McCloud’s reading of Sweeney. In Sweeney, the court addressed the State’s argument that, even though no detainer had been lodged, the IAD, not Criminal Rule 4(C), applied because the defendant was incarcerated in a foreign jurisdiction when the present charges were filed. Sweeney, 704 N.E.2d at 99. Sweeney clarified prior holdings and observed that the IAD is applicable for purposes of a speedy trial because a detainer has been lodged and not simply because the defendant is in a foreign jurisdiction. Id. at 100. The Sweeney court further explained:

Heflin stated that “it is irrational to extend the application of Criminal Rule 4(B) to a defendant who is incarcerated in another jurisdiction.” [Heflin v. State, 275 Ind. 197, 201, 416 N.E.2d 121, 124 (1981) ] (citing Smith v. State, 267 Ind. 167, 368 N.E.2d 1154 (1977)). How ever, the inapplicability of Criminal Rule I to defendants in foreign jurisdictions should not extend to defendants who are brought into Indiana under Writs or other forms of temporary custody. This court has determined that defendants in Indiana criminal prosecutions have certain speedy trial rights which we have embodied in Criminal Rule 4. Where the legislature has prescribed an alternate set of time deadlines as part of a broader statutory scheme as it has done in the IAD, we properly subordinate Criminal Rule 4 thereto. But where the state elects not to invoke the IAD for purposes of securing a defendant’s presence at trial, it cannot invoke selectively provisions of the IAD that it finds to its liking. Defendant here is entitled to the protections of Criminal Rule 4.

Id. (emphasis added).

We take from Sweeney that, if the State does not lodge a detainer, the IAD does not apply and the State cannot selectively invoke certain provisions of it. Further, if a defendant is brought into Indiana under a writ or other form of temporary custody, Criminal Rule 4 applies. As we read Sweeney, if a defendant who is incarcerated in another jurisdiction is not brought into Indiana’s exclusive control, Criminal Rule 4 does not apply even when the State does not lodge a detainer. To the extent McCloud reads Sweeney to hold that Criminal Rule 4 applies whenever the IAD does not, we respectfully disagree.

Even when the IAD and Criminal Rule 4 do not apply, a defendant is not without recourse — he or she may still raise a constitutional speedy trial argument. See Fisher, 933 N.E.2d at 530 (applying the four-part Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), test to determine whether constitutional right to a speedy trial was violated even though the IAD and Criminal Rule 4 did not apply). Spalding, however, does not make a Barker argument on appeal and, therefore, has not established that he was entitled to discharge under a constitutional analysis. Because Criminal Rule 4(C) did not apply while Spalding was not in the exclusive control of Indiana, he has not shown that the trial court erroneously denied his motion to dismiss and discharge.

Conclusion

The trial court properly denied Spald-ing’s motion to dismiss and discharge. We affirm.

Affirmed.

NAJAM and BAILEY, JJ., concur.

      . That same day, Spalding filed a petition for writ of habeas corpus ad testificandum and transport order. Although it is not clear whether a writ was issued, he was not transported to the May 31, 2012 trial.

        . Although the State had lodged a detainer against Howard, because Howard never requested a final disposition of those charges, we found that the 180-day period in which a defendant must be brought to trial under the IAD was never triggered. Howard, 755 N.E.2d at 246. Because the application of the IAD was not outcome determinative, it is not a basis for distinguishing Howard.

      . It is arguable that Criminal Rule 4(C) no longer applied on April 1, 2011, when Spald-ing was in the Marion County Jail under a USMS hold, on June 2, 2011, when he was released to the USMS, on June 30, 2011, when defense counsel informed the trial court and the State that Spalding was apparently incarcerated out of state, or on July 25, 2011 when the State received written notice of Spalding’s whereabouts. We decline to determine precisely when Criminal Rule 4(C) became inapplicable at this stage of the proceedings because, depending on what delays are attributable to Spalding after he is actually returned to Indiana’s exclusive control and when he is actually tried, the difference between April 1, 2011, June 2, 2011, June 30, 2011, and July 25, 2011 may be of no significance for purposes of Criminal Rule 4(C).

      . The Sweeney court noted that the United States Supreme Court has held that state courts lack jurisdiction to issue Writs to order the production, or otherwise interfere, with prisoners in federal custody and that the federal government may, based on principles of comity, honor state-issued writs. Sweeney, 704 N.E.2d at 97 n. 19. The federal government is not obligated to honor such writs, however, and they were not honored here.

      . Even if Spalding was in the jurisdiction under the exclusive control of Indiana when ha was released on bond and in the Marion County Jail under the federal holds (March 7, 2011, to June 2, 2011, and October 21, 2011, to January 23, 2012) and Criminal Rule 4 applied during those times, that only amounts to 181 days of the one-year period.

      .Because of our holding that Criminal Rule 4 did not apply, we need not determine whether the time that he was in federal custody was a delay attributable to him as the State asserts.

      . McCloud specifically declined to follow Fisher to the extent Fisher stands for the proposition that Criminal Rule 4 has no application to a defendant who is incarcerated in a foreign jurisdiction. McCloud, 959 N.E.2d at 884.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Gregory A. HARRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 39A05-1205-CR-239.
    Court of Appeals of Indiana.
    Aug. 13, 2013.

      R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Gregory A. Harris was charged with and tried on two counts, rape and sexual misconduct with a minor. The charging information for sexual misconduct with a minor alleged that Harris had “sexual intercourse with a child.” A jury acquitted Harris on the rape charge, but hung on the sexual misconduct charge, and the trial court declared a mistrial on that count. The State, seeking to retry Harris on the sexual misconduct charge, filed a motion to amend the charge by adding the language “or deviate sexual conduct.” Harris filed a motion to dismiss, arguing that double jeopardy bars a retrial on the sexual misconduct charge. The trial court denied both motions. Harris appealed, and the State cross-appealed. We find that double jeopardy does not bar Harris’s retrial on the sexual misconduct charge and that the statute of limitations precludes the State from amending the sexual misconduct charge. Accordingly, we affirm the trial court in all respects.

Facts and Procedural History

Harris and his wife moved to Indiana in December 2005. Harris’s wife had a younger sister, A.M. On December 25, 2005, members of A.M.’s family and Harris were gathered for Christmas at the Hanover residence of A.M.’s uncle. Harris was eighteen at the time, and A.M. was fourteen. That evening, Harris and A.M. left the uncle’s residence together in Harris’s car and headed to A.M.’s mother’s residence in nearby Madison. On the way, Harris and A.M. stopped at the Madison Walmart and found it to be closed. The aforementioned facts are undisputed by the parties.

On December 23, 2009, the State charged Harris with two counts of sexual misconduct with a minor pursuant to Indiana Code Section 35-42-4-9. Count I alleged “sexual intercourse with a child,” and Count II alleged “deviate sexual conduct with a child.” Appellant’s App. at 20, 21. On January 3, 2011, the State filed a motion to amend the charges, which was granted on January 6, 2011. The new Count I charged Harris with rape as a class B felony. The new Count II charged Harris with sexual misconduct with a minor, specifically “sexual intercourse with a child,” the same as the original Count I, a class C felony. Id. at 29. The original Count II, which had charged Harris with sexual misconduct with a minor, specifically “deviate sexual conduct with a child,” was dismissed.

In September 2011, the case went to trial on the amended charges. At trial, Harris testified that upon discovering that Walmart was closed, he dropped A.M. off at her mother’s residence and returned to the uncle’s residence the night of December 25, 2005. A.M. testified that Harris parked the vehicle in the Walmart parking lot, exposed his penis, and compelled her to perform oral sex on him. A.M. further testified that Harris then exited his side of the vehicle, entered her side of the vehicle, and engaged in sexual intercourse with her. A.M. testified that she said “No” during the intercourse. Vol. II Tr. at 30. Harris denied that any inappropriate sexual contact occurred between him and A.M.

On September 16, 2011, the jury found Harris not guilty on Count I and was unable to reach a verdict on Count II. The trial court declared a mistrial on Count II. On September 20, 2011, the State moved to strike Count I and recaption Count II, sexual misconduct with a minor, as Count 1. The State also moved to add the words “or deviate sexual conduct” to the charge. Appellant’s App. at 33. The trial court granted the State’s request to recaption Count II as Count I, but denied the motion to add the words “or deviate sexual conduct” to the charge. On October 18, 2011, Harris filed a motion to dismiss the sexual misconduct charge on double jeopardy grounds, which was denied.

Harris now appeals the denial of his motion to dismiss, and the State cross-appeals the denial of its motion to amend the charging information. We will state additional facts in our discussion where necessary.

Discussion and Decision

I. Denial of Harris’s Motion to Dismiss

We review a trial court’s denial of a motion to dismiss for an abuse of discretion. Woods v. State, 980 N.E.2d 439, 442 (Ind.Ct.App.2012). We will find an abuse of discretion only if the trial court’s decision was clearly against the logic and effect of the facts and circumstances. Id.

Harris argues that a retrial on the hung charge, sexual misconduct with a minor alleging “sexual intercourse with a child,” would violate the double jeopardy provisions of the Indiana Constitution. See Ind. Const. Art. I, § 14 (“No person shall be put in jeopardy twice for the same offense.”). Harris contends that such a retrial would run afoul of the actual evidence test enunciated by our supreme court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). In that case, the court analyzed “the history of the Indiana Constitution’s Double Jeopardy Clause to ascertain and articulate a single comprehensive rule synthesizing and superseding previous formulations and exceptions.” Spivey v. State, 761 N.E.2d 831, 832 (Ind.2002) (citing and clarifying Richardson). The Richardson court developed two tests for double jeopardy analysis, the statutory elements test and the actual evidence test. 717 N.E.2d at 50, 52. In the statutory elements test, “the reviewing court must determine whether the elements of one of the challenged offenses could, hypothetically, be established by evidence that does not also establish the essential elements of the other charged offense.” Id. at 50.

Harris claims a violation of the Indiana double jeopardy clause under the actual evidence test. To show that two offenses constitute the same offense under the actual evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id. at 52-53. Harris argues that the same evidentiary facts, those concerning one act of noneon-sensual sexual intercourse, were used to try him for both charges, rape and sexual misconduct with a minor (alleging sexual intercourse with a child), and because he was acquitted of rape, retrial on sexual misconduct with a minor (alleging sexual intercourse with a child) would violate his double jeopardy rights under the Indiana Constitution.

We disagree. The actual evidence test does not apply to acquittals, mistrials, or the present situation of an acquittal and mistrial combination. The plain language from Richardson states that the actual evidence test applies only to convictions. See id. at 49-50 (“[W]e therefore conclude and hold that two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.”) (bold emphasis added).

With convictions, a jury or fact finder has clearly communicated by its decision that it has found the elements of the charged crimes to have been established via the presented evidentiary facts. Thus, a court can perform the actual evidence test only on convictions because only convictions lend themselves to examining the “reasonable possibility that the evidentiary facts used ... to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense” and allow a court to “identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury’s perspective.” Spivey, 761 N.E.2d at 832, 833 (expounding on actual evidence test) (emphasis added). The actual evidence test presupposes finality and retroactively analyzes which evidentiary facts were used by a jury for convictions. Naturally, such an analysis cannot be performed on acquittals or mistrials, due to the lack of finality and the lack of communication from a jury as to how it arrived at an acquittal or a mistrial. Indeed, the actual evidence test has never been applied to a situation involving acquittals, mistrials, or a combination of both.

Since this case does not involve multiple convictions, we cannot analyze ev-identiary facts pursuant to the actual evidence test. Rather, we can determine which issues the State is precluded from retrying by applying collateral estoppel. “Collateral estoppel is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy.” Segovia v. State, 666 N.E.2d 105, 107 (Ind.Ct.App.1996). Collateral estoppel “requires that when the State has received an adverse decision of a critical issue of fact in a trial, that adverse decision prevents later relitigation of the same issue in a later prosecution.” Townsend v. State, 632 N.E.2d 727, 731 (Ind.1994).

We reached a similar conclusion in Buggs v. State, 844 N.E.2d 195 (Ind.Ct.App.2006), trans. denied. In Buggs, we determined that the actual evidence test does not apply to acquittals, and in the unique situation of split verdicts involving acquittals and mistrials, the doctrine of collateral estoppel is better suited for adjudication. The Buggs court relied on Griffin v. State, 717 N.E.2d 73 (Ind.1999), for its similar facts and principles. Id. In Griffin, a jury acquitted the defendant of felony murder by robbery and hung on charges of robbery and conspiracy to commit robbery. The State retried Griffin on the hung charges and the jury found him guilty of both. On appeal, Griffin contended that retrial on the robbery charge violated the federal double jeopardy clause because the robbery was the underlying offense for his felony murder charge, so an acquittal on one charge was, in essence, an acquittal on both. Our supreme court determined that the felony murder by robbery charge and the robbery charge required proof of the same facts and constituted the “same offense.” Id. at 78. However, the court noted, while applying collateral estoppel, that in order to acquit Griffin of felony murder by robbery, the jury did not necessarily have to conclude that the State failed to prove the underlying felony of robbery. Id. at 83. The court held that collateral estoppel did not bar Griffin’s retrial. Id. at 87. Furthermore, the court explained that a hung jury is neither the equivalent of an acquittal, nor something that terminates jeopardy, but rather that “the concept of continuing jeopardy applies to a mistrial caused by a deadlocked jury.” Id. at 79; see also Young v. State, 482 N.E.2d 246, 249 (Ind.1985) (“It is well settled that a hung jury operates to discharge the operation of double jeopardy and a new trial is not barred in such a situation.”), cert. denied (2000).

In Buggs, the defendant committed one act of murder and was charged with both murder and felony murder for the death of one victim. 844 N.E.2d at 198. The jury acquitted Buggs of felony murder and hung on the murder charge. Buggs was retried on the murder charge and was convicted. Id. On appeal, Buggs argued that his retrial should have been barred by both state and federal double jeopardy clauses. Because the felony murder and murder charges were from the same offense, Buggs argued that his retrial violated the actual evidence test per Indiana’s double jeopardy jurisprudence. The Buggs court noted that no Indiana appellate court had applied the actual evidence test where there was an acquittal on one charge and retrial on another charge after a hung jury. Id. Therefore, the Buggs court concluded that the continuing jeopardy and collateral estoppel doctrines in accordance with Griffin are best suited in such circumstances.

To apply the doctrine of collateral estoppel, the court must engage in a two-step analysis as articulated by the Buggs court:

(1) determine what the first judgment decided and (2) examine how that determination bears on the second case. Determining what the first judgment decided generally involves an examination of the record of the prior proceedings including the pleadings, evidence, charge, and any other relevant matters. Then, the court must decide whether a reasonable jury could have based its verdict upon any factor other than the factor of which the defendant seeks to foreclose consideration. If the jury could have based its decision on another factor, collateral estoppel does not bar relitigation.

844 N.E.2d at 202 (citing Segovia, 666 N.E.2d at 107).

Applying collateral estoppel to this case, we find that acquittal on the rape charge does not preclude relitigation of the sexual misconduct with a minor charge. Harris was charged with rape as a class B felony pursuant to Indiana Code Section 35-42-4-l(a), which states:

[A] person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when: (1) the other person is compelled by force or imminent threat of force; (2) the other person is unaware that the sexual intercourse is occurring; or (3) the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given; commits rape, a Class B felony.

Harris was also charged with sexual misconduct with a minor as a class C felony pursuant to Indiana Code Section 35-42-4-9(a), which states:

A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony.

The rape charge alleged that A.M. was compelled to have sexual intercourse with Harris “by force or imminent threat of force.” Appellant’s App. at 29. The sexual misconduct with a minor charge alleged that Harris “did perform or submit to sexual intercourse with a child.” Id. The evidence concerning force was not overwhelming. A.M. testified that she did not know what to do, that she was scared, and felt paralyzed. Vol. II Tr. at 31-32. The jury may have acquitted Harris of rape because it found a lack of force; the acquittal does not necessarily mean that the jury found that sexual intercourse did not occur. Had it done so, the jury would have acquitted Harris on the sexual misconduct charge. Therefore, we cannot say that retrial for sexual misconduct with a minor would require proof of a factor necessarily found in Harris’s favor by virtue of the rape acquittal. Consequently, collateral estoppel does not bar relitigation of whether Harris had sexual intercourse with A.M.

The jeopardy which attached to the sexual misconduct with a minor charge did not terminate due to juror deadlock, but continues, just as it would have if Harris was originally charged and tried solely on that charge. Griffin, 717 N.E.2d at 78. Double jeopardy does not preclude the State from completing its initial prosecution, nor is the State prohibited from pursuing relitigation on principles of collateral estoppel. As such, we conclude that the trial court did not abuse its discretion in denying Harris’s motion to dismiss.

II. Denial of State’s Motion to Amend Charging Information

The State argues that the trial court erred in denying the State’s motion to amend the charging information to add “or deviate sexual conduct.” In their briefs, the parties have characterized the matter as an issue of the trial court’s discretion or abuse thereof, prosecutorial vindictiveness, double jeopardy, and the statute of limitations. We find the disposi-tive issue to be the statute of limitations.

The period of limitations begins with the “commission of the offense.” Ind.Code § 35-41-4-2(a)(Z). The alleged crime occurred on December 25, 2005. A class C felony has a period of limitations of five years. Id. Thus, the period of limitations regarding the alleged deviate sexual conduct ended on December 25, 2010. After the first trial, the State moved to amend its remaining count against Harris by adding “or deviate sexual conduct” on September 20, 2011, nearly a year after the period of limitations for the alleged deviate sexual conduct expired.

The proposed amendment here is not merely a correction of information or an alternate theory of culpability, as the State suggests. Appellee’s Br. at 9. Rather, the proposed amendment constitutes a matter of substance and includes a new and additional offense. Thus the amendment carries the weight and practical effect of a new or refiled charge. Just as the State would be barred from bringing a new or refiled charge of deviate sexual conduct, it is barred from bringing the charge through an amendment. The statute of limitations cannot be circumvented because of the procedural availability of amending informations or the happenstance of mistrial.

The State’s motion to amend by adding “or deviate sexual conduct” to the charge is untimely. As such, we conclude that the trial court did not abuse its discretion in denying the State’s motion to amend the information prior to retrial on the hung count.

Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.

      . Indiana Code Section 35-31.5-2-94 (formerly 35-41-1-9) defines deviate sexual conduct as “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” Sexual intercourse is defined as "an act that includes any penetration of the female sex organ by the male sex organ.” Ind.Code § 35-31.5-2-302 (formerly 35-41-1-26).

      . Harris malees no federal double jeopardy claim.

      . The statutory elements test is the same as the analysis required by federal double jeopardy jurisprudence. See Brown v. State, 912 N.E.2d 881, 896 (Ind.Ct.App.2009) (explaining that statutory elements test is identical to standard set forth in Blockburger v. United States, 284 U.S. 299, 301, 52 S.Ct. 180, 76 L.Ed. 306 (1932)), trans. denied.

      . Harris analogizes from a line of cases stating that multiple convictions for rape and child molestation arising from one act of sexual intercourse violate Indiana’s double jeopardy clause. See, e.g., Roberts v. State, 712 N.E.2d 23, 31 (Ind.Ct.App.1999) (holding that convictions for rape and child molestation violated defendant’s double jeopardy rights because both offenses served to punish the defendant for one act of nonconsensual sexual intercourse), trans. denied. We do not find these cited authorities persuasive because they involved multiple convictions, not combinations of acquittals and mistrials.

      . We note that had the amendment been allowed by the trial court, it would be subject to a motion to dismiss from Harris. See Greichunos v. State, 457 N.E.2d 615, 617 (Ind.Ct.App.1983) ("An information alleging a time outside the statute of limitations which does not allege facts sufficient to constitute an exception to the statute is subject to a motion to dismiss.”).


author: PYLE, Judge.

text:
    Richard LITTKE, Appellant-Respondent, v. Laurie LITTKE, Appellee-Petitioner.
    No. 64A03-1211-DR-509.
    Court of Appeals of Indiana.
    Aug. 13, 2013.

      Claudia Traficante, Portage, IN, Attorney for Appellant.
    Steven R. Pribyl, Langer ■ & Langer, Valparaiso, IN, Attorney for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

The post-dissolution proceedings resulting in this appeal arose between the legislature’s 2012 and 2013 amendments to Indiana Code § 31-16-6-6. In response to the 2012 amendment — which changed the presumptive age for termination of child support from twenty-one to nineteen — Laurie Littke (“Mother”) filed a motion to terminate child support for the parties’ nineteen-year-old child. Immediately thereafter, Richard Littke (“Father”) filed a petition for postsecondary educational expenses for the nineteen-year-old child. Mother then filed a motion to dismiss Father’s petition as untimely pursuant to the legislature’s 2012 amendment to Indiana Code § 31-16-6-6, which the trial court granted.

.After Father commenced this appeal of the trial court’s post-dissolution order, the legislature again amended Indiana Code § 31-16-6-6. In the 2013 amendment— which had an emergency retroactive effective date of July 1, 2012 — the legislature added subsections to the statute to address a parent’s or child’s ability and the time restrictions for filing a petition for educational needs following the changes enacted in the 2012 Amendment. Because the provisions contained in the 2013 amendment to Indiana Code § 31-16-6-6 specifically allow a parent, who had a child support order issued before July 1, 2012, to file a petition for educational needs until the child becomes twenty-one years old, we reverse the trial court’s order granting Mother’s motion to dismiss Father’s petition for postsecondary educational expenses.

We reverse and remand.

ISSUE

Whether the trial court abused its discretion by granting Mother’s motion to dismiss Father’s petition for postsecond-ary educational expenses for their emancipated child as untimely.

FACTS

Father and Mother were married and had two daughters: Amanda, born in January 1984; and Alexandra (“Daughter”), born in March 1993. In September 2001, upon Mother’s petition for dissolution, the trial court entered a dissolution order that incorporated the parties’ settlement agreement regarding child custody and support and property distribution. The parties agreed to joint custody of both children, with Father having primary physical custody of Amanda and Mother having primary physical custody of Daughter. Neither the dissolution order nor the settlement agreement contained a provision regarding postsecondary educational expenses.

In January 2005, the parties entered into an agreed order, in which they agreed to joint legal and physical custody of Daughter. The parties also agreed that Mother would provide health insurance for Daughter. The settlement agreement did not contain a provision regarding postsec-ondary educational expenses.

In June 2008, Father and Mother entered an agreed modification of the custody order, in which they agreed to continue joint legal custody of Daughter and for Father to have physical custody of Daughter. They also agreed that Mother would pay $125.00 per week in child support and that she would continue to maintain health coverage for Daughter. The agreed order did not contain a provision regarding post-secondary educational expenses.

Four years later, on July 13, 2012, Mother filed a motion to emancipate Daughter and terminate child support for then nineteen-year-old Daughter. Mother asserted that her obligation to pay child support for Daughter terminated as a matter of law on July 1, 2012 due to the 2012 amendment to Indiana Code § 31-16-6-6, which decreased the age for termination of child support from twenty-one to nineteen years of age. In her petition, Mother also asserted that her obligation to pay uninsured healthcare expenses should be terminated as a result of Daughter’s emancipation.

On August 10, 2012, Father filed a motion for college expenses and for past due uninsured medical expenses (“petition for postsecondary educational expenses”). In his petition, Father asserted that Daughter was under the age of twenty-one and was a full-time college student. Father acknowledged that there was no existing order for postsecondary educational expenses, but he requested that the trial court enter an order requiring Mother to contribute to Daughter’s postsecondary educational expenses.

On August 16, 2012, Father and Mother entered an “Agreed Order on Emancipation and Insurance!),]” in which they agreed that Daughter was “emancipated pursuant to I.C. § 31-16-6-6 effective July 1, 2012, because she [was] nineteen (19) years of age and [was] not incapacitated” and that “Mother’s obligations to pay periodic child support for [Daughter] shall be and hereby is permanently terminated.” (Father’s App. 14). The agreed order did not contain a provision regarding postsec-ondary educational expenses.

On November 7, 2012, Mother filed a motion to dismiss Father’s petition for postsecondary educational expenses. In her motion, Mother alleged that “[a] parent may assert emancipation of a child as a defense to a petition seeking an order for educational needs where no order providing for educational needs was entered pri- or to emancipation.” (Father’s App. 19). Mother argued that Father’s petition for postsecondary educational expenses should be dismissed as untimely because he filed it after Daughter was emancipated.

The trial court held a hearing on Mother’s motion to dismiss on November 8, 2012. Thereafter, the trial court granted Mother’s motion to dismiss Father’s petition for postsecondary educational expenses. Father now appeals.

DECISION

Father argues that the trial court abused its discretion by granting Mother’s motion to dismiss Father’s petition for postsecondary educational expenses for nineteen-year-old emancipated Daughter.

We review a trial court’s decision regarding payment of post-secondary educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d 651, 662 (Ind.2012) (citing Carr v. Carr, 600 N.E.2d 943, 945 (Ind.1992)). Thus, we will affirm the trial court unless the decision is against the logic and effect of the facts and circumstances before the trial court. Id.

At issue in this appeal is Indiana Code § 81-16-6-6, which “governs the termination of child support and emancipation of a child.” Sexton v. Sexton, 970 N.E.2d 707, 710 (Ind.Ct.App.2012), reh’g denied, trans. denied. The purpose of Indiana Code § 31-16-6-6 “ ‘is to require that parents provide protection and support for the welfare of their children until the children reach the specified age or no longer require such care and support.’ ” Hirsch v. 970 N.E.2d at 655 (quoting Dunson v. Dunson, 769 N.E.2d 1120, 1124 (Ind.2002)).

The legislature has amended Indiana Code § 31-16-6-6 during the past two legislative sessions. In 2012, the legislature amended Indiana Code § 31-16-6-6 (“2012 Amendment”) — with an effective date of July 1, 2012 — which “change[d] the presumptive age for termination of child support from twenty-one to nineteen[.]” Sexton, 970 N.E.2d at 712. In 2013, the legislature again amended Indiana Code § 31-16-6-6 (“2013 Amendment”) — with an emergency retroactive effective date of July 1, 2012 — and added subjections (c) through (e) that address a parent’s or child’s ability and the timing to file a petition for educational needs following the 2012 Amendment.

The current version of Indiana Code § 31-16-6-6 provides:

(a) The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming nineteen (19) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and
(C) is or is capable of supporting himself or herself through employment.
In this case the child support terminates upon the court’s finding that the conditions prescribed in this subdivision exist. However, if the court finds that the conditions set forth in clauses (A) through (C) are met but that the child is only partially supporting or is capable of only partially supporting himself or herself, the court may order that support be modified instead of terminated.
(b) For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:
(1) is on active duty in the United States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.
(c) If a court has established a duty to support a child in a court order issued before July 1, 2012, the:
(1) parent or guardian of the child; or
(2) child; may file a petition for educational needs until the child becomes twenty-one (21) years of age.
(d) If a court has established a duty to support a child in a court order issued after June 30, 2012, the:
(1) parent or guardian of the child; or
(2) child;
may file a petition for educational needs until the child becomes nineteen (19) years of age.
(e) If:
(1) an order was issued after June 30, 2012, that denied support for educational needs to a child who was less than twenty-one (21) years of age at the time the petition for educational needs was filed; and
(2) support for educational needs was denied based on the fact that the child was older than eighteen (18) years of age;
notwithstanding any other law, a parent or guardian of the child or the child may file with the court a subsequent petition for educational needs. The court shall consider the petition on the merits in accordance with this section and may not consider the absence of subsection (c) from law at the time of the initial filing.

(Emphasis added).

This appeal first came to our Court in a state of legislative limbo. When the trial court entered its order granting Mother’s motion to dismiss Father’s petition for postsecondary educational expenses, only the 2012 Amendment to Indiana Code § 31-16-6-6 had been enacted. However, during the pendency of this appeal, the legislature passed SB 0006 and then enacted the 2013 Amendment to Indiana Code § 31-16-6-6. In other words, the trial court entered its order granting Mother’s motion to dismiss Father’s petition for postsecondary educational expenses before the legislature had enacted the 2013 Amendment to Indiana Code § 31-16-6-6 that added subsections (c) through (e). However, now, subsection (c) of that statute clearly allows a parent, who had a child support order issued before July 1, 2012, to file a petition for educational needs until the child becomes twenty-one years old. The 2013 Amendment has a retroactive effective date of July, 2012. Thus, subsection (c) is applicable to this appeal.

The record before us reveals that there was a child support order issued before July 1, 2012 and that Daughter was less than twenty-one years old at the time Father filed the petition for postsecondary educational expenses. Thus, under the applicable version of Indiana Code § 31-16-6-6, Father’s petition for postsecondary educational expenses was not untimely. See Indiana Code § 31-16-6-6(c). Given the 2013 Amendment to Indiana Code § 31-16-6-6 and the specific facts of this case, we reverse the order dismissing Father’s petition for postsecondary educational expenses as untimely and remand to the trial court to make a determination on the merits of Father’s petition.

Reversed and remanded.

KIRSCH, J., and VAIDIK, J., concur.

      . Both Father and Mother filed an appellate appendix but neither one of them has included a copy of the chronological case summary ("CCS”). We direct both parties' attention to Indiana Appellate Rule 50(A)(2)(a), which provides that an appendix "shall contain” a copy of the CCS.

      . There is no issue in this appeal regarding Amanda, who was emancipated at the time of the current proceeding.

      . SB 0006 became S.E.A. No. 6, and the 2013 Amendment was enacted through P.L. 207-2013 § 45.


text:
    Gabriel ATKINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 12A02-1302-CR-149.
    Court of Appeals of Indiana.
    Aug. 13, 2013.

      Mark Small, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

In February 2012, a sheriffs deputy observed and followed Gabriel Atkinson as he drove along a highway in Clinton County. The deputy eventually stopped Atkinson based on Atkinson’s repeated drifting from the far right side over the fog line and back to the center line. During the stop, Atkinson told the deputy that he was a habitual traffic violator (“HTV”). The State charged Atkinson with class D felony operating a vehicle as an HTV. Atkinson filed a pretrial motion- to suppress the evidence obtained as a result of the traffic stop, which the trial court denied. At the ensuing bench trial, Atkinson renewed his objection when the evidence was introduced and admitted, and the trial court found him guilty as charged.

Atkinson now appeals, claiming that the traffic stop was illegal and that the trial court erred in denying his motion to suppress the evidence obtained during the stop. Finding that the totality of the circumstances supports the trial court’s finding of reasonable suspicion for the investigatory traffic stop, we conclude that the evidence was admissible and therefore affirm.

Facts and Procedural History

Around 10:00 p.m. on February 12, 2012, Clinton County Sheriffs Deputy Dennis Tillman was traveling northbound on U.S. Highway 421. As he patrolled the highway, he observed Atkinson approaching from the north. Atkinson was driving with about one quarter of his vehicle over the fog line on the right side of the roadway. He corrected and drove toward the centerline. When the deputy passed him, he observed him in the rearview mirror, drifting back to the right and over the fog line. Deputy Tillman immediately turned around and began following Atkinson. During the next three to four minutes, the deputy noticed that Atkinson rode with his right tires on the fog line for a few prolonged periods. When he got close enough to read Atkinson’s license plate, he radioed the information to his department. Meanwhile, he observed Atkinson drift left to the centerline and back to the right and over the fog line as oncoming traffic approached. When Atkinson went past the fog line a couple more times, Deputy Tillman conducted a traffic stop.

Deputy Tillman approached Atkinson’s vehicle and asked to see his license and registration. Atkinson identified himself and informed the deputy that he was an HTV. When asked about his drifting over the fog line, Atkinson shook the steering wheel and claimed that he was having an issue with his vehicle that was causing him to cross the fog line.

The State charged Atkinson with class D felony operating a vehicle as an HTV. Atkinson filed a motion to suppress the evidence concerning his identity and his status as an HTV, which was obtained during the traffic stop. The trial court conducted a hearing and subsequently denied Atkinson’s motion. During the ensuing bench trial, Atkinson renewed his objection to the admission of the evidence, claiming that it had been obtained during an illegal traffic stop. Deputy Tillman testified extensively regarding his training in traffic safety and his experience with impaired drivers. He characterized Atkinson’s driving as “erratic” and testified that he pulled him over because he showed signs of possible impairment. Tr. at 38. The trial court overruled Atkinson’s continuing objection and found him guilty as charged. Atkinson now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Atkinson challenges the trial court’s denial of his motion to suppress the evidence concerning his identity and HTV status obtained as a result of the investigatory traffic stop. Because he is appealing after a completed trial, the issue is “properly framed as whether the trial court abused its discretion by admitting the challenged evidence at trial.” Lindsey v. State, 916 N.E.2d 230, 238 (Ind.Ct.App.2009), trans. denied (2010). When reviewing for an abuse of discretion, we reverse only if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id. We do not reweigh evidence, and we consider any conflicting evidence in the light most favorable to the trial court’s ruling. Id. We consider any uncontested evidence favorable to the appellant and apply a de novo standard when reviewing the trial court’s ultimate determination of reasonable suspicion. Id.

The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures. In order to justify a traffic stop, which is a seizure for purposes of the Fourth Amendment, a law enforcement officer must have reasonable suspicion of criminal conduct. Clarke v. State, 868 N.E.2d 1114, 1117 (Ind.2007) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This means that to justify an intrusion upon a private citizen’s constitutionally protected interests, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. The facts must be judged against an objective standard, namely, “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id. at 21-22, 88 S.Ct. 1868 (citation omitted).

Reasonable suspicion is determined on a case-by-case basis by looking at the totality of the circumstances, but is generally satisfied when the facts known to the officer at the moment of the stop, along with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur.

Coleman v. State, 847 N.E.2d 259, 262 (Ind.Ct.App.2006), trans. denied (2006) (emphasis added).

Atkinson asserts that because he did not actually cross over the center line and because crossing the fog line is not a traffic infraction, Deputy Tillman lacked reasonable suspicion to conduct an investigatory stop. In Wells v. State, 772 N.E.2d 487 (Ind.Ct.App.2002), another panel of this Court emphasized the difference between reasonable suspicion and probable cause for an arrest, noting that the former requires “something more than an inchoate and unparticularized suspicion or hunch, but considerably something less than proof of wrongdoing by a preponderance of the evidence.” Id. at 489 (citation omitted). Thus, the Wells court found the investigatory stop to be valid even though the defendant had not broken any traffic laws, where he had driven “in a manner consistent with that of intoxicated drivers,” i.e., swerved within his lane toward the fog line and sidewalk. Id. at 490. Likewise, in Barrett v. State, 837 N.E.2d 1022 (Ind.Ct.App.2005), trans. denied (2006), we found the investigatory stop to be valid under the Fourth Amendment, noting that although the driver had not broken any traffic laws before being pulled over, the officer observed signs of impaired driving, i.e., drifting to the right, traveling on top of the fog line for thirty to fifty yards, and drifting back into the lane. Id. at 1026-27. Thus, both Barrett and Wells illustrate that the commission of an actual infraction is not a prerequisite to a determination of reasonable suspicion to conduct a stop. Rather, in each case, the officer’s observation of erratic driving was considered along with all other circumstances in determining whether the officer had reasonable suspicion to conduct an investigatory stop.

In arguing that the traffic stop was illegal, Atkinson relies heavily on our recent case of Robinson v. State, in which we held that “brief contact with the fog line or swerving within a lane ordinarily is not sufficient to establish reasonable suspicion of impaired driving.” 985 N.E.2d 1141, 1146 (Ind.Ct.App.2013), trans. granted. Notably, in Robinson, we refrained from drawing a bright-line rule with respect to whether swerving within a lane or onto the fog line amounts to reasonable suspicion to conduct a traffic stop. Instead, we reiterated that “the emphasis must remain on the totality of the circumstances,” and we outlined factors to consider when assessing whether such driving behavior gives rise to reasonable suspicion sufficient to support an officer’s decision to conduct an investigatory stop. Id. at 1147. These include:

whether there is repeated swerving, whether there is swerving over an extended distance or period of time, whether the driver narrowly avoids hitting an object or causing an accident, whether road or weather conditions might explain the driver’s conduct, and whether the driver overcorrects when returning to the proper lane of travel.

Id.

In Robinson, the totality of circumstances showed that while driving late at night on a curvy road, the defendant twice made brief contact with the fog line. Id. at 1148. Finding that such conduct was insufficient to establish reasonable suspicion for police to conduct an investigatory stop, we reversed her convictions for marijuana possession and operating while intoxicated, both of which were dependent on evidence obtained during the stop. Id.

Here, the circumstances prompting Deputy Tillman’s decision to stop Atkinson, while similarly involving a driver’s contact with a fog line on a dark road, are distinguishable from those in Robinson in that Deputy Tillman observed more pronounced conduct over a protracted period of time under different road conditions. The deputy testified that when he first observed Atkinson approaching from the opposite direction, Atkinson went over the fog line to the extent that about one quarter of his vehicle was outside the line. Tr. at 16. He described Atkinson as drifting from one quarter over the fog line all the way to the far left portion of the lane, nearing the center line. After the deputy passed him, Atkinson drifted back across the fog line, with one quarter of the vehicle on the berm. Consequently, the deputy turned around and followed Atkinson for about three to four minutes. During that time, Atkinson drove for extended periods with his right wheels on the fog line, drifted toward the center line, and then drifted back on top of the fog line when traffic approached. Deputy Tillman testified that shortly before he pulled Atkinson over, Atkinson crossed “right of the fog line a couple more times.” Id. at 17. The deputy’s dashboard video footage shows that, unlike Robinson’s curvy road, Atkinson was traversing a straight stretch of highway. State’s Ex. 2. Also, here, the berm consisted of about one foot of pavement, with grass and some ditches past its edges. Although Deputy Tillman never saw Atkinson’s vehicle go past the paved portion of the berm and into the grass, his National Institute of Traffic Safety training and past experience with impaired drivers enabled him to evaluate the potential that Atkinson was impaired and could therefore pose a safety risk. Simply put, the deputy’s testimony concerning his extended observation of Atkinson’s driving behavior indicates that he had reasonable suspicion to believe that Atkinson was impaired and not merely experiencing a “momentary distraction” as Robinson did. Robinson, 985 N.E.2d at 1148.

In sum, the State presented articulable facts and observations by Deputy Tillman, the totality of which are sufficient to support a finding of reasonable suspicion to conduct an investigatory stop of Atkinson. As such, we find no abuse of discretion in the trial court’s admission of Atkinson’s identity and statements made during the stop concerning his HTV status. Accordingly, we affirm.

Affirmed.

BARNES, J., and PYLE, J., concur.

      . Atkinson correctly points out that in its order denying his motion to suppress, the trial court stated that he had committed an infraction, which served as a valid basis for the traffic stop. However, the trial court addressed the issue and corrected its error before pronouncing judgment during the bench trial. The court stated that, having far more detailed evidence before it at the time of trial, it determined that Deputy Tillman had an independent reason for conducting a valid stop: that Atkinson twice drove right of the fog line within a distance of a quarter of a mile, leading the deputy to believe he had encountered an impaired driver who might have been intoxicated, distracted, or falling asleep. Tr. at 89.

      . We note that the Indiana Supreme Court recently granted transfer in Robinson, so we anticipate further clarification of the law in this area in the foreseeable future.

      . We also note that Deputy Tillman was in the process of running a license check on Atkinson’s vehicle during the four-minute pursuit. When the deputy conducted the traffic stop, Atkinson immediately volunteered his status as an HTV, an independently discoverable fact. The "fruit of the poisonous tree” doctrine does not apply when the derivative evidence has an "independent source” or when the challenged evidence would have inevitably been properly obtained. Hanna v. State, 726 N.E.2d 384, 389 (Ind.Ct.App.2000).


author: BAKER, Judge.

text:
    Nick McILQUHAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1212-CR-631.
    Court of Appeals of Indiana.
    Aug. 14, 2013.

      Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

      . R.’s last name does not appear in the transcript of the proceedings.

   OPINION

BAKER, Judge.

The appellant-defendant Nick Mcllqu-ham is appealing his convictions for the Unlawful Possession of a Firearm by a Serious Violent felon, a class B felony, Neglect of a Dependent, a class D felony, Possession of Marijuana, a class A misdemeanor, and Possession of Paraphernalia, a class A misdemeanor. Mcllquham challenges the police officers’ search of the apartment where he occasionally resided and the discovery of a handgun, marijuana, and a scale in the residence. As a result, Mcllquham argues that these items should not have been admitted into evidence at trial. Finally, Mcllquham maintains that his conviction for possession of paraphernalia cannot stand because the State failed to present sufficient evidence with regard to that offense.

The State counters that the seizure of these items and their admission into evidence did not violate Mcllquham’s Fourth Amendment rights under the United States Constitution because the search of the apartment was consensual and contends that the community caretaking exception to the warrant requirement justified the warrantless search.

We conclude that Mcllquham’s Fourth Amendment rights were not violated and the evidence was properly admitted into evidence. Similarly, we find that the evidence was sufficient to support Mcllqu-ham’s conviction for possession of paraphernalia. Thus, we affirm Mcllquham’s convictions.

FACTS

On July 5, 2011, around 9:00 a.m., Mcll-quham was sleeping in Amber Rolland’s apartment in the Stone Lake Lodge Apartments (Stone Lake) on the south side of Indianapolis. Around that time, Indianapolis Metropolitan Police Department (IMPD) Officers Matthew McFadden and Daniel Disney responded to a call regarding a young child standing near a pond at Stone Lake. When Officer McFadden arrived, he noticed the little girl, later identified as “R.,” who appeared to be about three years old, and a woman, standing next to the pond. Officer McFadden later recalled that R. was not wearing a diaper. R. was naked from the waist down and was attempting “to eat Cheerios off the ground.” Tr. p. 36. At some point, when the officers were talking to R. and Catherine Meyer, who was at the scene, Mcllqu-ham appeared and stated that he was R.’s father. Mcllquham stated that he had fallen asleep and that R. “must have gotten out of the apartment.” Id. at 38. Officer McFadden informed Mcllquham that he “needed to come back to [the] apartment and make sure that the living conditions were [safe] for the child ... and that we would probably end up getting ahold of CPS (Child Protective Services).” Id. at 39, 42, 85, 96. Officer Disney later recalled that Mcllquham “said it was okay” for the officers to follow him back to the apartment. Tr. p. 96. Mcllquham then picked up R. and started walking back to the apartment with Officer McFadden.

When Officer McFadden and Mcllqu-ham arrived at the apartment, Mcllquham opened the door, where Officer McFadden saw Mcllquham make a “bee line” for the “kitchen ... and walk ... at a very fast pace to the kitchen.” Id. at 39. Officer McFadden then saw Mcllquham make “furtive movements” from the counter to his pockets. Id. at 42. Officer McFadden explained that “not knowing whether [Mcllquham] grabbed any weapons ... or anything that could have harmed me,” he placed Mcllquham’s hands behind him. Id. A patdown search disclosed that Mcll-quham “had stuffed a bunch of some marijuana into his pockets.” Id.

After restraining Mcllquham, Officer McFadden noticed some scissors, cut baggies, and marijuana on the kitchen counter. Id. at 43. After Officer McFadden told Mcllquham to sit down in the living room, Officer McFadden saw “a bunch of marijuana [residue] all over the carpet” and on a child’s table. Id.

Officer McFadden advised Mcllquham of his Miranda: rights. Thereafter, Officer McFadden asked Mcllquham if he lived at the apartment, to which Mcllqu-ham replied, “sometimes.” Id. at 44. In response to Officer McFadden’s questions, Mcllquham acknowledged that his name was not on the lease and informed them that Rolland had rented the apartment.

When Rolland arrived at the apartment and talked with the officers, they told her that they had been summoned to check on R.’s welfare and explained to Rolland what they had found in the residence. Officer McFadden explained to Rolland that because drugs had been found in the apartment, CPS would be notified and a determination would be made as to whether R. would be allowed to remain at the apartment. Thereafter, Rolland read and signed a consent-to-search form for the officers to search the residence.

In addition to the marijuana that the police saw on the kitchen counter, the living room floor, and the child’s table, they discovered additional marijuana in the apartment’s bedroom. They also found a loaded .22 caliber handgun in a case under the bed. Mcllquham admitted that the marijuana and the gun belonged to him.

Mcllquham was later interviewed at the police station by IMPD Detectives. Mcll-quham stated that the officers who found R. had “wanted to come back to my house and make sure everything’s fit.” Ex. 19. Mcllquham recounted: “I walked in the door and I knew I had stuff laying out.... I tried to put it in my pocket so he didn’t see it ‘cause I knew he was gonna arrest me ... he didn’t see me put it in my pocket ... he saw me reachin’ in my pocket.” Id. Mcllquham again repeated that the drugs and the handgun were his and that Rolland did not know about the items.

On July 7, 2011, the State charged Mcll-quham with Count I, unlawful possession of a firearm by a serious violent felon, a class B felony, Count II, neglect of a dependent, a class D felony, Count III, dealing in marijuana, a class A misdemeanor, Count IV, possession of marijuana, a class A misdemeanor, and Count V, possession of paraphernalia, a class A misdemeanor.

Mcllquham subsequently entered an “open plea” to Count II, neglect, and to Count IV, possession of marijuana. Tr. p. 15-22. The trial court took those pleas under advisement. Thereafter, the matter proceeded to a bench trial. Mcllquham objected to the items that were recovered during the search of the apartment and moved to suppress the admission of those items. The trial court denied Mcllqu-ham’s motion to suppress, and found him guilty of the remaining counts, except for the dealing in marijuana charge. Mcllqu-ham was sentenced to an aggregate term of six years on all counts and he now appeals.

DISCUSSION AND DECISION

I. Search of Apartment

Mcllquham argues that the search of the apartment was improper and the police officers’ discovery and seizure of the evidence should have been excluded from the evidence at trial pursuant to his right to be free from unlawful search and seizure under the Fourth Amendment. Specifically, Mcllquham maintains that because neither he nor Rolland validly consented to the search of the residence, the evidence should not have been admitted.

We initially observe that a trial court has broad discretion in ruling on the admissibility or exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App.2009). The trial court’s ruling will be disturbed only upon a showing of an abuse of that discretion. Id. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id.

The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated-” In general, warrantless searches are “per se unreasonable under the Fourth Amendment, subject to a few specifically established and well-delineated exceptions.” Holder v. State, 847 N.E.2d 930, 935 (Ind.2006). A search conducted without a warrant requires the State to prove that an exception to the warrant requirement is “applicable at the time of the search.” Id.

Although Mcllquham maintains that the evidence should have been excluded because neither he nor Rolland validly consented to the search of the apartment, we need not address that contention because the police officers were entitled to enter the apartment under the community care-taking exception to the warrant requirement.

Indeed, Mcllquham discusses the various exceptions to the warrant requirement in light of exigent circumstances, which include emergency situations. For instance, in the case of exigent circumstances, the evaluation focuses on the needs of law enforcement to apprehend criminals, stop crimes in progress, render aid to victims, or seize evidence that may be destroyed. Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In other words, this exception focuses on situations that make the needs of law enforcement ‘“so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.’ ” Id. (quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948)).

The community-caretaking function also recognizes that “police are expected not only to enforce the criminal laws but also to aid those in distress, abate hazards, prevent potential hazards from materializing, and perform an infinite variety of other tasks calculated to enhance and maintain the safety of communities.” Fair v. State, 627 N.E.2d 427, 431 (Ind.1993). The police may discharge such a caretaking function whenever circumstances compel it, even in the absence of specific statutes authorizing such conduct. Id.

That said, the State acknowledges that Indiana has specifically applied the community caretaking exception in instances where police officers have standard criteria for exercising the function with respect to immobilized automobiles. Id. at 432-83. However, we note that the welfare of a child was not involved in prior eases when construing this exception. Id.

Some courts have applied the community caretaking exception to permit warrant-less entry into homes for limited purposes. See United States v. Rohrig, 98 F.3d 1506, 1523-24 (6th Cir.1996) (holding that police may enter a home to abate a nuisance when the occupants have not responded to police inquiries); United States v. Quezada, 448 F.3d 1005, 1008 (8th Cir.2006) (holding that police may enter a home to investigate an outside door that is open when there is no response to the officers’ inquiries); cf. Montgomery v. State, 904 N.E.2d 374, 382 (Ind.Ct.App.2009) (applying exigent circumstances and caretaking rationales to justify a warrantless entry into a hotel room).

Notwithstanding the above, we embrace the notion that there are certainly instances that threaten the well-being of a small child that do not necessarily involve the commission of a criminal offense. In our view, such circumstances are present here. As discussed above, the responding police officers discovered R., a partially naked toddler, wandering near the retention pond in the apartment complex. Tr. p. 35-36. Officer McFadden testified that he wanted to check the apartment where R. lived to “see [whether the apartment was] dirty, clean, if there is any food, [or] if there is a bed for the child to sleep in.” Id. at 79. The officers acknowledged that the “whole purpose is for the safety of this child.” Id. In our view, there were certainly objectively reasonable concerns about Mcllquham’s right to retain custody of R. in light of the conditions and circumstances in which she was discovered. Moreover, not allowing the police to conduct a community-caretaking function to operate in a case such as this one — at least to the extent of allowing a non-violent entry into a home to conduct a cursory visual inspection of the interior of the residence and its occupants — would result in the unreasonableness that Fourth Amendment jurisprudence seeks to avoid. See Rohrig, 98 F.3d 1506, 1523-24 (6th Cir.1996) (noting that one factor that weighs in favor of the community-caretaking function is that insistence on the police officers’ obtaining a warrant would, in some circumstances, be tantamount to an unreasonable permission of harm). Put another way, the officers’ inability to arrest Mcll-quham, or requiring a warrant or a search of the apartment under the circumstances, would have required the police officers to either abandon their responsibilities to protect R. or placing R. in the custody of CPS without additional inquiry or investigation. See Ind.Code § 31-34-2-3(a) (providing for placing a child in need of services into immediate custody when arrest of a ‘perpetrator’ is not possible or will not alleviate the child’s condition). In short, the adoption of a limited community-care-taking authority for police officers to enter a residence under such circumstances does not offend Fourth Amendment concerns. Rohrig. 98 F.3d at 1523-24.

Finally, we note that while Mcll-quham asserts in his appellate brief that the police officers’ actions violated the provisions of Article 1, Section 11 of the Indiana Constitution, he did not present that argument at trial. Thus, the issue is waived. See, e.g., Grace v. State, 731 N.E.2d 442, 444 (Ind.2000) (observing that grounds for objection must be specific and any grounds not raised in the trial court are not available on appeal). Moreover, a “generic challenge” to a search or seizure is insufficient to present a claim under the Indiana Constitution. See Dye v. State, 717 N.E.2d 5, 24 (Ind.1999) (holding that a defendant cannot invoke the provisions of the Indiana Constitution against a search or seizure without a separate and independent analysis of the claim).

Waiver notwithstanding, even if Mcllquham had properly challenged the propriety of the search under Article 1, Section, 11, his argument would fail. As this Court noted in Montgomery v. State:

Although we give a liberal construction to Article I, section 11 to favor protection of individuals from unreasonable intrusions on privacy, “Indiana citizens have been concerned not only with personal privacy but also with safety, security, and protection from crime.” State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002). It is because of concerns among citizens about safety, security, and protection that some intrusions upon privacy are tolerated, so long as they are reasonably aimed toward those concerns. Holder v. State, 847 N.E.2d 930, 940 (Ind.2006). Police officers have a caretaking as well as an investigatory function. See Wilson v. State, 247 Ind. 454, 458, 217 N.E.2d 147, 150 (1966) (observing that any police officer who sees or is informed of such [an emergency] has not only the right, but the duty, to make an instant and prompt investigation).

904 N.E.2d at 382.

As our Supreme Court observed in Litchfield v. State, police intrusion is lawful under Article I, Section 11 of the Indiana Constitution, provided that it remains reasonable in view of (1) the degree of concern or suspicion that a violation of the law has occurred; (2) the degree to which the intrusion imposed on the citizen’s ordinary activities; and (3) the extent of law enforcement needs. 824 N.E.2d 356, 359 (Ind.2005).

In this case, the extent of concern over R.’s well-being was significant in light of the circumstances where the police officers found her. Tr. p. 35-37. The degree of intrusion into Mcllquham’s ordinary activities was negligible, in that he appeared to have been outside only to locate R. Mcll-quham intended to return to his home, and there is no showing that a cursory visual inspection of the premises would have interfered with Mcllquham’s ordinary activities. Id. at 35-37. Finally, as discussed above, the extent of law enforcement needs to ensure the well-being of small children without unnecessarily separating them from their parents through automatic placement with CPS weighs in favor of permitting the officers’ cursory entry into the residence like what occurred here. In short, the police officers’ performance of a limited community-caretaking inspection of the apartment does not establish that they acted unreasonably under Article I, Section 11 of the Indiana Constitution. Id. Thus, for all of these reasons, Mcllquham’s claims fail, and we conclude that the trial court properly admitted the items into evidence that the police officers seized from the apartment.

II. Sufficiency of the Evidence

Mcllquham also argues that the evidence was insufficient to support his conviction for possession of paraphernalia. Specifically, Mcllquham argues that the State only proved that Mcllquham possessed the scale and failed to establish that he intended to use it to “test the strength, effectiveness, or purity of a controlled substance.” Appellant’s Br. p. 7.

When reviewing sufficiency of evidence claims, we will not reweigh the evidence or re-evaluate the credibility of witnesses. Kiplinger v. State, 922 N.E.2d 1261, 1266 (Ind.2010). We will defer to the fact-finder’s exclusive province to weigh conflicting evidence. Delarosa v. State, 938 N.E.2d 690, 697 (Ind.2010). We will only overturn a verdict if it finds that, after considering the evidence and inferences that support the conviction and resolving all discrepancies and conflicts in favor of the verdict, a rational person could not have found the defendant guilty. Williams v. State, 873 N.E.2d 144, 147 (Ind.Ct.App.2007).

To convict Mcllquham of possession of paraphernalia, the State was required to prove that he knowingly possessed the scale and that he intended to use the device to test the “strength, effectiveness or purity of ... marijuana.” Ind.Code § 35-48-4-8.3(a)(2). Moreover, a “controlled substance” includes marijuana. Ind.Code § 35-48-1-9; I.C. § 35-48-2-4(d)(22).

In this case, during a post-arrest interview, Mcllquham admitted that he used the scales to measure the weight of the marijuana that he purchased to ensure that it was the quantity for which he had bargained. Tr. p. 113. Mcllquham erroneously asserts that “[ujsing a scale to simply learn the weight of the marijuana is not proscribed” by the paraphernalia statute. Appellant’s Br. p. 19. However, as noted above, the relevant statute embraces any device that is used to test the strength, effectiveness, or purity of a controlled substance without limitation. I.C. § 35-48-4-8.3(a)(2). Although a scale cannot perform a chemical analysis of a sample or measure the sample’s ability to provide a particular ‘dose’ of the drug with the desired effectiveness, the definition of paraphernalia is not limited to devices that can perform such complex, specific functions. Id. Rather, the statute proscribes the possession of devices with the intent to measure any aspect of the strength, effectiveness or purity of any controlled substance. Id.

Indeed, we are aware that absent Mcll-quham’s explicit confession that he used the scales for weighing the marijuana or without the circumstantial evidence of drug packaging, handling, or weighing or portioning, the State’s case for possession of paraphernalia may likely have failed. See Harrison v. State, 469 N.E.2d 22, 24 (Ind.Ct.App.1984) (holding that a conviction for possessing paraphernalia is unsound absent specific evidence showing that a device was intended to be used for a proscribed purpose).

In this case, however, the evidence shows that the factfinder could reasonably conclude that Mcllquham possessed the scales with the intent of testing the strength, effectiveness, or purity of marijuana. As a result, we affirm Mcllquham’s conviction for possession of paraphernalia.

The judgment of the trial court is affirmed.

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

      . Ind.Code § 35-47-4-5.

      . Ind.Code § 35-46-1-4.

      . Ind.Code§ 35-48-4-11.

      . I.C. § 35-48-4-8.3.

        . Miranda v.Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).