author: BROWN, Judge.

text:
    Charles COLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1308-CR-680.
    Court of Appeals of Indiana.
    Nov. 13, 2013.

      Darren Bedwell, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Charles Cole appeals the trial court’s order increasing his bail to $10,000. Cole raises one issue, which we revise and restate as whether the court abused its discretion by increasing his bail. We reverse.

FACTS AND PROCEDURAL HISTORY

On July 31, 2013, Cole was arrested for possession of methamphetamine. He appeared before the court for an initial hearing at which bond was set in the amount of $2,500 surety. The State submitted a written motion which indicated in part that it was awaiting the results of laboratory examinations done on physical evidence recovered in the case and requested a continuance of the initial hearing. The court continued the initial hearing to August 5, 2013. On August 2, 2013, the State charged Cole with possession of methamphetamine as a class D felony.

On August 5, 2013, the initial hearing was resumed, at which the court informed Cole of the charges, advised him of his rights, and entered a plea of not guilty on his behalf. The court also swore Cole in and Cole gave the court his address in Indianapolis and his home phone number. When asked its position on bond, the State indicated at first that it would defer to the court, noting that Cole had multiple warrants issued in prior cases and had an extensive criminal history, of which the court was aware, and then requested that the court “leave bond as set.” Transcript at 7. The court again set bond at $2,500 surety, cited Cole’s “eight page criminal history,” told him he needed $250.00 to make his bond, and asked him if he could make his bond. Id. at 9. Cole responded that he didn’t know, and that he “hope[d] so.” Id. at 8. The court then appointed “the public defender,” gave Cole a card with the Public Defender’s Office information, and set Cole’s next court date for August 22. Id. Defense counsel, who was in the courtroom, requested a bond reduction. At first the trial court denied the request, but after defense counsel persisted, the court allowed counsel to proceed. Cole then testified that he was employed part time doing odd jobs working for himself, that he thought he could pay $150 toward a bond, and that he was not currently on probation or parole. The State declined to cross-examine Cole. Upon questioning by the court, and after the court gave him a copy of his criminal history, Cole stated that he had been convicted of public intoxication in 1987, resisting law enforcement in 1990, forgery in 1990 for which he received five years executed, public intoxication in 1992 and 1993, auto theft in 1993, operating vehicle while intoxicated in 1993, operating vehicle with no proof of insurance in 1995, driving while suspended in 1996, operating vehicle while suspended as habitual violator in 1998, operating vehicle after license forfeited for life in 1998, operating vehicle after license forfeited for life as a class C felony in 2010 for which he received three years executed, and burglary as a class C felony in 2010 for which he received three years executed. The State again declined to cross-examine Cole. Defense counsel then argued that Cole had never been convicted of a violent offense and had not failed to appear for a court date since 2004, and requested that bond be reduced to $1,500 surety. The State requested only that bond not be reduced. The court stated its disagreement with defense counsel’s characterization of some of Cole’s offenses as being non-violent, and noted that the purposes of bond are to satisfy the court that a defendant will likely return to court and to assure the safety of the community. Citing Cole’s two class C felony convictions in 2010 for which he received three years, and observing that he was facing three years in prison, the court increased his bond to “$10,000 surety.” Id. at 16.

ISSUE AND STANDARD OF REVIEW

The issue is whether the trial court abused its discretion by increasing Cole’s bail to $10,000. “The amount of bail is within the sound discretion of the trial court and will be reversed only for an abuse of discretion.” Sneed v. State, 946 N.E.2d 1255, 1257 (Ind.Ct.App.2011) (citing Perry v. State, 541 N.E.2d 913, 919 (Ind.1989)). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id.

DISCUSSION

Cole asserts that the court abused its discretion by increasing his bail to $10,000 sua sponte without a showing of good cause for the increase, that no new evidence supported the court’s decision, and that the bail amount for a class D felony is unusually high and twice as high as the maximum provided by the bail schedule under the Marion County local rules. The State maintains that the court did not abuse its discretion in setting Cole’s bail.

The Marion County local criminal rules provide under class D felony bail amount provisions, “Class D Felony — Own Recognizance (OR) up to $2,500 Surety, $2,500 10% PR, or $250 Cash Bond,” and “[t]he bail schedule amounts shall double, up to a maximum of $5,000, for each of the following circumstances: 1. The defendant is not a Marion County resident, 2. The defendant has one or more failures to appear, 3. The defendant has one or more prior felony convictions,.... ” Marion Superior Court Administrative Rule LR49-CR00-108.

The Indiana Constitution prohibits excessive bail. Ind. CONST, art. 1, § 16. The Indiana Supreme Court has stated that bail is excessive if set at an amount higher than reasonably calculated to ensure the accused party’s presence in court. Sneed, 946 N.E.2d at 1257 (citing Hobbs v. Lindsey, 240 Ind. 74, 79, 162 N.E.2d 85, 88 (1959)). Ind.Code § 35-33-8^(b) provides in part that “[b]ail may not be set higher than that amount reasonably required to assure the defendant’s appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community.” Ind.Code § 35-33-8-4(b) also provides that in setting bail the judicial officer shall take into account all facts relevant to the risk of nonappearance and includes a non-exhaustive list of factors to consider. The factors include:

(1) the length and character of the defendant’s residence in the community;
(2) the defendant’s employment status and history and his ability to give bail;
(8) the defendant’s family ties and relationships;
(4) the defendant’s character, reputation, habits, and mental condition;
(5) the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring him to trial;
(6) the defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance; and
(9) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.

Ind.Code § 35-33-8-5 governs the alteration or revocation of bail. Ind.Code § 35-33-8-5(a) provides in part: “Upon a showing of good cause, the state or the defendant may be granted an alteration or revocation of bail by application to the court before which the proceeding is pending.” Ind.Code § 35 — 33—8—5(b) provides:

When the state presents additional:
(1) evidence relevant to a high risk of nonappearance, based on the factors set forth in [Ind.Code § 35-33-8-4(b)]; or
(2) clear and convincing evidence:
(A) of the factors described in IC 35-40-6-6(l)(A) and IC 35-40-6-6(1)(B); or
(B) that the defendant otherwise poses a risk to the physical safety of another person or the community;
the court may increase bail.

Cole’s bail was initially set at an initial hearing on July 31, 2013 at $2,500 surety. At the hearing on August 5, 2013, the court and the State were aware of Cole’s extensive criminal history, and the State requested that the court “leave bond as set.” Transcript at 7. The court then set bond at $2,500 surety. Cole indicated he hoped he could make bond. After counsel was appointed to represent him, Cole testified as to his employment and that he thought he could come up with $150.00, and the State declined to cross-examine him. The court questioned Cole regarding his prior convictions, and counsel requested a reduction of bail. The State again declined to cross-examine Cole and requested only that his bail not be reduced.

The State did not make any request or application for an increase of Cole’s initial bail amount or present any additional evidence in support of such an increase under Ind.Code § 35 — 33—8—5(b). Thus the State did not make a “showing of good cause,” Ind.Code § 35-33-8-5(a), in support of an alteration of bail. Further, the court was aware of Cole’s criminal history when it affirmed the original setting of bail and again set bail at $2,500 surety. There was no additional evidence presented to the court to support an increase in bail, much less a quadruple increase. The State does not point to any other statutory authority which would support the trial court’s order increasing Cole’s bail. The requirements for increasing bail under Ind.Code § 35-33-8-5 were not satisfied, and the trial court abused its discretion in increasing Cole’s bail from $2,500 surety to $10,000 surety.

CONCLUSION

For the foregoing reasons, we conclude that the trial court abused its discretion in increasing Cole’s bail from $2,500 surety to $10,000 surety, and we therefore reverse the trial court.

Reversed.

NAJAM, J., and MATHIAS, J., concur.

      . On October 24, 2013, Cole provided notice to this Court that he was no longer a pre-trial detainee as he entered into a plea agreement in this cause and was sentenced on October 18, 2013. He also moved this Court to proceed with his appeal as a matter of great public interest. Through this opinion, we grant his motion.

      . We do not suggest that a bond set outside of a trial court’s bond schedule is presumably unreasonable. See Samm v. State, 893 N.E.2d 761, 765 (Ind.Ct.App.2008) (citing Mott v. State, 490 N.E.2d 1125, 1127 (Ind.Ct.App.1986)).

      3. Ind.Code § 35-40-6-6(l)(A) and (B) provide:
      (A) that an act or threat of physical violence or intimidation has been made against the victim or the immediate family of the victim; and
      (B) that the act or threat described in clause (A) has been made by the defendant or at the direction of the defendant. ...


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    STATE of Indiana, Appellant-Plaintiff, v. Molly GRAY, Appellee-Defendant.
    No. 62A01-1303-CR-108.
    Court of Appeals of Indiana.
    Nov. 13, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Michael H. Hagedorn, Hagedorn Law Office, Tell City, IN, Attorney for Appel-lee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

Cannelton Police Department Officer Micah Jackson initiated a traffic stop of Appellee-Defendant Molly Gray, during which he conducted a free-air canine sniff around Gray’s vehicle. After the canine alerted to the presence of contraband, Officer Jackson searched the vehicle and found a bag of methamphetamine. Appellant-Plaintiff the State of Indiana charged Gray with Class D felony possession of methamphetamine. (App. 1,10) Gray filed a motion to suppress the evidence, arguing that (1) the initial stop was pretextual and without cause and (2) that Officer Jackson lacked reasonable suspicion to delay the traffic stop in order to conduct a canine sniff, in violation of the Fourth Amendment. (App. 2, 25) The trial court granted the motion, and the State now appeals. Without addressing the validity of the initial stop, we conclude that the free-air canine sniff was not conducted incidental to the traffic stop and so required reasonable suspicion to justify increasing the duration of the stop. Finding that Officer Jackson lacked reasonable suspicion, we hold that the seizure was a violation of the Fourth Amendment and that the trial court did not err in suppressing the evidence. We affirm.

STATEMENT OF THE FACTS

At approximately 3:00 a.m. on August 13, 2012, Officer Jackson witnessed a white van, operated by Gray, fail to signal while making a right-hand turn. (Tr. 7) Due to the early morning hour, Officer Jackson began to follow the van, watching for signs of impairment. (Tr. 7) After pacing the van for roughly a mile, Officer Jackson estimated Gray’s speed to be approximately sixty-three or sixty-four miles per hour. (Tr. 8, 10) Officer Jackson did not use a radar to determine Gray’s speed but had received certification to estimate speed by pacing vehicles. (Tr. 23) Upon entering a fifty-five-mile-per-hour zone, Officer Jackson noticed Gray was traveling faster than the posted speed limit and initiated a traffic stop. (Tr. 10, 24) Officer Jackson radioed dispatch at 3:04 a.m. to notify them of the stop. (Tr. 10, 28)

Officer Jackson approached the vehicle; informed Gray of the reason for the stop; and asked for her driver’s license, registration, and proof of insurance. (Tr. 11) Officer Jackson returned to his car, placed Gray’s information on the seat and began removing his canine, Erik, from the back of the car with the intention of conducting a free-air sniff of Gray’s vehicle. (Tr. 11) Officer Jackson explained in his testimony that he decided to use the drug-detection dog because he “actually received information from another officer, actually employed by the Tell City Police Department, just I believe it was the day before, night before ... that [Gray] had been involved in em the activity of illegal narcotics.” Tr. p. 12. Officer Jackson had no knowledge regarding the specifics or source of the information. (Tr. 12, 26)

Officer Jackson chose not to run the standard license/warrant check or report Gray’s information to dispatch prior to the free-air sniff because of Gray’s connection to local law enforcement. Specifically, Gray’s brother-in-law is a Perry County Sheriffs Deputy and Gray’s sister is employed as a dispatcher for the Tell City Police Department. Both siblings were working at the time of the stop and Officer Jackson feared the siblings might interfere in the investigation. (Tr. 12-13, 26)

After removing Erik from the patrol car, Officer Jackson allowed him to “use the bathroom for just a brief amount of time” before beginning the sniff of Gray’s vehicle. Tr. p. 14. Officer Jackson walked Erik around Gray’s vehicle twice and Erik alerted to the presence of narcotics on the driver’s side front window and the rear passenger side door. (Tr. 16-18) Officer Jackson then rewarded Erik by playing with him for a couple minutes before returning him to the squad car. (Tr. 32-33) Officer Jackson estimated that the canine sniff process lasted approximately one- and-a-half to two minutes. (Tr. 18) Officer Jackson reported to dispatch at 3:10 a.m. that Erik had alerted to drugs in Gray’s vehicle and that Jackson was going to search the vehicle. (Tr. 28) Officer Jackson then conducted a search of the vehicle and found a small clear plastic baggie located under a floor board containing a white substance which was later identified as methamphetamine. (Tr. 19) Officer Jackson ran the routine checks on Gray’s license and registration after the search of her vehicle was completed. (Tr. 29) The record is silent as to whether Officer Jackson cited Gray for a traffic violation.

DISCUSSION AND DECISION Standard of Review

In reviewing a trial court’s ruling on the admissibility of evidence resulting from an allegedly illegal search, we do not reweigh the evidence, we consider conflicting evidence in a light most favorable to the trial court’s ruling, and we defer to the trial court’s factual determinations unless clearly erroneous. Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009). However, we will “consider afresh any legal question of the constitutionality of a search or seizure.” Id.

Gray contends that both the initial stop and the subsequent search of her vehicle were invalid. We conclude that even assuming the initial stop was valid, the subsequent search was not. We focus our analysis solely on the search.

Reasonable Suspicion to Delay Traffic Stop

In Illinois v. Caballes, the United States Supreme Court addressed “whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). The Court held that articulable suspicion is not required when a dog sniff is conducted simultaneously to a traffic stop so long as the traffic stop is not extended beyond the time necessary to issue a warning ticket and to conduct ordinary inquiries incident to such a stop. Id. at 409, 125 S.Ct. 834.

We recently addressed the Caballes decision in Bush v. State, and the same course of analysis is appropriate in the present case. Bush v. State, 925 N.E.2d 787, decision clarified on reh’g, 929 N.E.2d 897 (Ind.Ct.App.2010). In Bush, we addressed when reasonable suspicion is required for a canine sniff:

Because the State failed to show that either the canine sniff was conducted while the purpose of the traffic stop was ongoing or the canine sniff did not materially increase the duration of the stop, we conclude the canine sniff was not justified as an incident of the stop. Therefore, we must determine whether the officers had reasonable suspicion.

Id at 791. In Bush, we summarized several Indiana dog sniff cases which are analogous to the present case and which we outline below for context.

Cases applying Caballes fall into two groups, neither of which is on all fours with the facts of this case. In one group of cases, facts in the record and reasonable inferences therefrom showed the canine sniff took place before the purpose of the traffic stop was complete. See State v. Gibson, 886 N.E.2d 639, 642 n. 4 (Ind.Ct.App.2008) (noting trial court’s unchallenged finding canine unit arrived on the scene while officer was writing defendant a traffic ticket); [Myers v. State, 839 N.E.2d 1146, 1150 (Ind.2005) ] (supreme court accepted trial court’s findings that canine sniff began thirteen minutes after vehicle was pulled over and “occurred while the traffic stop was ongoing,” that is, while defendant was having the traffic citation explained to him); see also United States v. Carpenter, 406 F.3d 915, 916 (7th Cir.2005) (canine unit took no more than five minutes to arrive and did arrive while officer was giving defendant a ticket for evading red light). In these cases, the canine sniff was a proper incident to a valid traffic stop and, as such,
was consistent with the Fourth Amendment absent reasonable suspicion. See 406 F.3d at 917, 886 N.E.2d at 642, 839 N.E.2d at 1150.
In two other cases, the record was clear that the purpose of the traffic stop was complete before the canine sniff began or that officers significantly prolonged the stop in order for the canine unit to arrive. See Wells v. State, 922 N.E.2d 697, 700 (Ind.Ct.App.2010) (canine unit summoned only after officer obtained all information needed to write traffic ticket, and canine unit arrived “nearly twenty minutes after [defendant's traffic stop could have been completed and almost forty minutes after it began”); Wilson v. State, 847 N.E.2d 1064, 1066 (Ind.Ct.App.2006) (warrant check was completed at 1:58 a.m., warning tickets were written at 2:06 a.m., and canine unit was summoned at 2:15 a.m., only after defendant declined consent to search car). In both cases, this court concluded the canine sniff significantly prolonged the defendants’ detention, which, because it was unsupported by reasonable suspicion of criminal activity, violated the Fourth Amendment. See Wells, 922 N.E.2d at 700 (“there does not appear to be any serious dispute that the length of [defendant's traffic stop was substantially lengthened by the call for the K-9 and subsequent dog sniff’); Wilson, 847 N.E.2d at 1067 (“As the warning tickets were written some time before the dog arrived, it is apparent that [the officer] could have completed the traffic stop sooner than he did”).

Id. at 790-791.

The facts of the present case are distinct from the aforementioned cases. Those cases involved an officer initiating a traffic stop and subsequently calling for a canine unit to assist and perform a dog sniff. Also, the dog sniffs in those cases were conducted either simultaneously to the traffic violation (by a second officer) or after the traffic stop was completed and the ticket had been issued. In the present case, Officer Jackson did not call a second officer to assist and chose to suspend the traffic stop in order to perform the canine sniff himself. Officer Jackson testified that he postponed the “normal traffic stop” procedure (performing checks on driver license, license plate and outstanding warrants) in order to conduct the canine sniff. Tr. p. 25-26.

The scope of a detention must be strictly tied to and justified by the circumstances which rendered its initiation permissible. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (citing Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The State has the burden to show that any detention was sufficiently limited in scope to its underlying justification. Id., 460 U.S. at 500,103 S.Ct. 1319. Once a justifiable stop is made, the scope of the officer’s investigation may be broadened beyond the purpose for which the person was stopped only if additional particularized and objective suspicions come to light. United States v. Finke, 85 F.3d 1275, 1280 (7th Cir.1996); United States v. Kitchell, 653 F.3d 1206, 1218-19 (10th Cir.2011), cert, denied; United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993). Although additional suspicion would not be required to perform free-air sniff search, Caballes, 543 U.S. at 409, 125 S.Ct. 834, suspicion would be required for any additional seizure that the dog sniff caused.

Here, as in Bush, the State failed to present sufficient evidence to support a finding “that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.” Bush, 925 N.E.2d at 791 (quoting Caballes, 543 U.S. at 408, 125 S.Ct. 834). Assuming that the seizure was lawful in its inception, it appears that, as Gray argues, the stop was sustained solely for the purpose of pursuing a narcotics investigation rather than a traffic violation. The ordinary inquiries incident to a traffic stop were suspended almost immediately, and there is no evidence that Officer Jackson ever wrote Gray a ticket for a traffic violation. Still, the constitutional reasonableness of a traffic stop does not depend on the actual motivations of the individual officers involved. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Regardless of the underlying purpose of the seizure, the traffic stop was delayed by the dog sniff. In each of the above-mentioned dog-sniff cases that found the search valid, the duration of the traffic stop was not extended at all by the dog sniff. The dog sniff of Gray’s vehicle is more analogous to Wells and Wilson because there was a separate seizure outside the scope of the traffic stop. As the court in Wilson mentioned, “it is apparent that [the officer] could have completed the traffic stop sooner than he did.” 847 N.E.2d at 1067. The same is true in this case. The free-air sniff of Gray’s vehicle lasted approximately two to six minutes. Even assuming the two minute estimate is accurate, the delay amounts to an increase in the duration of the seizure for purposes outside the scope of the traffic stop. To hold otherwise would fulfill Justice Guts-burg’s fears that “every traffic stop could become an occasion to call in the dogs,” so long as the dog sniff is performed quickly. Caballes, 543 U.S. at 422, 125 S.Ct. 834 (Ginsburg J., dissenting).

Upon deciding that the dog sniff was not incidental to the traffic stop, we must determine whether Officer Jackson had reasonable suspicion that Gray was engaged in criminal activity so as to justify prolonging Gray’s detention. Bush, 925 N.E.2d at 791.

“Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, but it still requires at least a minimal level of objective justification and more than an inchoate and unparticularized suspicion or ‘hunch’ of criminal activity.” State v. Schlechty, 926 N.E.2d 1, 7 (Ind.2010) (citing Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). “Thus, a reviewing court must examine the totality of circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” Bush, 925 N.E.2d at 791.

The tip Officer Jackson received from the Tell City police officer was the only purported reason to suspect Gray of criminal activity prior to the dog sniff.

Under the collective or imputed knowledge doctrine, an arrest or search is permissible where the actual arresting or searching officer lacks the specific information to form the basis for probable cause or reasonable suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation ... A primary focus in the imputed knowledge cases is whether the law enforcement officers initiating the search or arrest, on whose instructions or information the actual searching or arresting officers relied, had information that would provide reasonable suspicion or probable cause to search or arrest the suspect.

U.S. v. Colon, 250 F.3d 130, 135-36 (2d Cir.2001). This “collective knowledge” concept was endorsed by the United States Supreme Court in U.S. v. Hensley, 469 U.S. 221, 232-33,105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Officer Jackson did not need to know the particulars of the source of the tip to have reasonable suspicion to conduct a free-air sniff. Rather, the question is whether the Tell City police officer would have had reasonable suspicion in the same situation based on the tip information. United States v. Williams, 627 F.3d 247, 252 (7th Cir.2010) (“In order for the collective knowledge doctrine to apply ... the officer providing the information — or the agency for which he works — must have facts supporting the level of suspicion required.”)

The State offered no evidence as to the original source of the information. The State failed to call the Tell City police officer to testify or even identify that officer by name. Moreover, the tip itself lacked detail, providing only a vague indication that Gray was involved with illegal narcotics. Without more, there is no way to determine whether the officers had sufficient information to meet the reasonable suspicion standard.

Although we found no Indiana cases with similar factual circumstances, there are several such cases among other jurisdictions. In State v. Dukes, 279 Ga.App. 247, 630 S.E.2d 847 (2006), an anonymous tip to a patrol officer was relayed to the Georgia Drug Task Force, which conducted a search and seizure based on the information. The Court of Appeals of Georgia found that whether the Task Force had reasonable suspicion for the search was determined based on the reliability of the anonymous tip. Id. The court acknowledged that there was a “complete absence of evidence about the source of the report,” and that it had “no way of knowing whether it came from a concerned citizen, a confidential informant, or an anonymous tipster.” Id. at 250, 630 S.E.2d 847. As such, the court concluded that the tip was of “unknown reliability” and thus would not provide reasonable suspicion without additional corroborating evidence (essentially treating it as an anonymous tip). Id. See also State v. Matthews, 398 N.J.Super. 551, 942 A.2d 797 (2008) (concluding that a search was unlawful for lack of reasonable suspicion where officers conducted search of vehicle after receiving information from dispatch who had received anonymous tip).

Treating the information Officer Jackson received from the Tell City officer as an anonymous tip, we find that it was insufficient to provide reasonable suspicion. The United States Supreme Court distinguished between tips received from anonymous sources and those received from identified informants. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Anonymous tips are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability, such as evidence corroborating the accuracy of the tip or additional reasons to suspect criminal activity. Id. There was no corroborating evidence in this case which would lend more reliability to the tip. During the stop, Officer Jackson did not notice any suspicious signs or behavior about Gray or her vehicle (e.g., abnormal odors, indicators of impairment, nervousness, furtive movements). Moreover, there were no specific details about the tip which Officer Jackson could have used to verify its reliability. The State offered no reason why it did not call the Tell City police officer or why it could not provide more detailed information regarding the source of the tip.

Without reasonable suspicion, the canine sniff and subsequent search of Gray’s vehicle were violations of Gray’s Fourth Amendment rights. Accordingly, we affirm the decision of the trial court to suppress the evidence recovered during the search.

The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.

      . There was a factual issue regarding the length of the canine sniff. The dispatch report indicated that Officer Jackson initiated the traffic stop at 3:04 a.m. and notified dispatch of the canine alert at 3:10 a.m. Officer Jackson estimated that two minutes elapsed between the time he removed Erik from the car to the time he returned him to the car.


author: MATHIAS, Judge.

text:
    David WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 67A01-1302-CR-87.
    Court of Appeals of Indiana.
    Nov. 13, 2013.

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

MATHIAS, Judge.

David Williams (“Williams”) was convicted in Putnam Circuit court of eight counts of Class A felony child molesting and one count of Class B felony incest and was sentenced to an aggregate term of ninety-nine years. Williams appeals and presents four issues, which we restate as:

I. Whether the trial court abused its discretion in admitting into evidence Williams’s statement to the police;
II. Whether Williams’s convictions for child molesting and incest constitute double jeopardy;
III. Whether the trial court abused its discretion in sentencing Williams; and
IV. Whether Williams’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

Facts and Procedural History

Williams and his ex-girlfriend, A.B., had an eight-year relationship which ended in 2008. The two had a daughter, K.W., who was born in 2003. After Williams’s and A.B.’s relationship ended, K.W. would spend one week at her mother’s house and the next week at her father’s house. This arrangement lasted from 2009 until January 2012. During.the time K.W. was at Williams’s house, he repeatedly molested her. Williams would wait until everyone else in the house was asleep, then have K.W. sneak out of her room so that he could fondle her, perform oral sex on her, and have sexual intercourse with her. Williams told K.W. not to tell anyone what he was doing or else she would not be able to see him again.

Eventually, in January 2012, K.W. told her mother that she had a secret. When asked what this secret was, K.W. stated that Williams had put his “thingy” inside her. A.B. contacted the authorities, and K.W. was interviewed at a child advocacy center. During the interview, K.W. stated, “we’ve got to stop it before [Williams] does it to [E.B.],” who was Williams’s younger daughter with his current wife. Tr. p. 414. K.W. stated in more detail how Williams would molest her: Williams told her to wait until everyone was asleep and then sneak downstairs; then Williams would rub her genitalia, and force his penis into her vagina and have intercourse with K.W., often until ejaculation. If K.W. tried to resist, Williams would “jerk [K.W.] back.” Tr. p. 407. Afterward, Williams would give K.W. an ice cream treat. K.W. also explained that this occurred as many as five nights a week every time she was at her father’s house. Although there were brief periods where Williams would stop his molestations, K.W. explained, “then he would do it again. And again and again. He hasn’t stopped.” Tr. p. 393.

On January 25, 2012, the Indiana State Police (“ISP”) executed a search warrant at Williams’s home. They also asked Williams to go the police station for an interview. Williams agreed. On the way to the station, Williams sat in the front passenger seat of the police car and was not handcuffed. Still, the officer escorting Williams advised him of his Miranda rights. At the station, ISP Detective Jim Dungan (“Detective Dungan”) and another officer interviewed Williams. Detective Dungan too advised Williams of his rights by reading from an advisement-of-rights form. Williams indicated that he understood the standard Miranda rights, i.e., that he had the right to remain silent, that anything he said could be used against him, that he had a right to have an attorney present during questioning, that an attorney would be appointed for him if he could not afford one, and that he had the right to stop the questioning at any time. Tr. pp. 525-27. As Detective Dungan read these rights to Williams, he placed a check mark next to each right as Williams indicated that he understood that right.

Detective Dungan then asked Williams to read the waiver portion of the advisement form, which resulted in the following exchange:

Williams: I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure,
Dungan: Coercion.
Williams: Coercion?
Dungan: Do you know what that means?
Williams: No I don’t.
Dungan: Kind of coercion, you are being coerced into saying something. We are promising you things or pressuring you into saying things[.][A]nd you are talking on your own free will basically. Okay?
Williams: All right.

Tr. p. 527.

Williams stated, “I don’t know like what or who is accusing me of stuff or anything,” and further stated, “I don’t know anything about lawyers. I’ve never had on[e] in my life. So I don’t know about [what] I should do to be safe for myself.” Id. at 528. The exchange then continued:

Dungan: Well I understand.
Williams: I mean I haven’t even talked to my wife.
Dungan: The way we operate is, the way we kind of operate is there are two sides to every story. Okay, there’s one side that somebody tells me and there is another side. We have heard, we got one side,
Williams: Right.
Dungan: of the story.
Williams: And I don’t even know what that story is.
Dungan: And that’s ... what we want to hear from you.
Williams: Okay.
Dungan: That’s the reason we are talking to you. We want to hear [y]our side of what’s going on.
Williams: Okay.
Dungan: And that’s basically it.
Williams: All right. Okay. Um, well if you’re just wanting to hear my side then I guess I don’t need a lawyer or anything I mean.
Dungan: Okay but we, this form here is just a standard form that everybody, [sic] I’m sure you’ve seen on CSI and on TV and everything.
Williams: Yeah.
Dungan: It’s just your rights. We have to read your rights to you.
Williams: Right.
Dungan: And so we just need you to sign right there basically saying that you are willing to ... sit there and' talk to us.
Williams: Yeah. Yeah. I’ll say that. Dungan: Yeah.
Williams: Yeah, you guys are not forcing me. You’ve, you’ve got to bear with me. I just,
Dungan: Oh yeah. I completely understand. If anytime during this you have a question for either one of us, feel free to ask.
Williams: Al[l] right.

Tr. pp. 528-30 (emphasis added).

As the questioning continued, Williams stated, “I’m just concerned that I, I don’t know what I’m supposed to do. I’ve never been in ... anything like this. I don’t know ... if I should have a lawyer present or what.” Tr. p. 538. Further yet into the interview, Williams stated:

I’m sorry, I mean, I don’t have a lawyer here or anything hut I don’t think it even matters. You guys seem like really nice guys. Uh, I just see it, I mean don’t matter what I say or tell you guy[s], my life is over. I know what happens next. You know ... I know if I go to prison they will beat me to death. I mean I’m not as ... I’m not a mean guy and I’m terrified. I don’t want to be near harden[ed] criminals and I don’t even want my parents to go through this.

Tr. pp. 539-40 (emphasis added).

As Williams confessed to molesting his daughter, he asked, “Without a lawyer present here I’m just talking to you and all this stuff is going to be worse for me? The same? I’ve never been through anything like this.” Tr. p. 550. Detective Dungan answered, “That ... I can’t an-

swer. You are looking in a crystal ball and I don’t have one.” Id. Detective Dun-gan also told Williams, “And we can’t for one, I don’t do promises,” “We can’t make you [a] promise. Just like we can’t threaten you.” Tr. pp. 550-51. To this, Williams stated, “Well I don’t [know] the point in having a lawyer here. It’s just here and we ■ are talking. Being honest.... But I am, like I said I am totally concerned and I’m not going to say it again[.] My life’s over man.” Tr. p. 551. Williams then continued to detail his sexual molestation of his daughter, even telling the police, “I’m going to tell you it’s the same as what [K.W.] told you. I’m sure she wouldn’t lie.” Tr. p. 576. After his confession was over, Williams stated that he did not “like what I did at all,” and explained that:

that’s why I didn’t say, oh yeah, get me a lawyer in here and all that. [Be]eause I don’t even understand all that stuff anyway because I have dealt with this stuff. So I didn’t want to have a lawyer here to try to get me out of something. What’s done is done and I just want to do, you know get it out there and really just disappear would be the best thing from me[.]

Tr. p. 649. When Williams telephoned his wife, she indicated that she was looking for a lawyer for Williams. Williams responded by telling her her, “there’s not much need to get a lawyer.... Because I screwed up. I did it.... I done [sic] inappropriate things to her.” Tr. pp. 655-56.

On January 27, 2012, the State charged Williams with nine counts of Class A felony child molesting, one count of Class B felony incest, and three counts of Class C felony child molesting. On October 31, 2012, Williams filed a motion to suppress his confession to the police. The trial court held a hearing on this motion on November 11, 2012, and denied the motion on November 30, 2012. A three-day jury trial began on December 14, 2012. At the conclusion of trial, the jury found Williams guilty of all counts save one count of Class A felony child molesting. The trial court held a sentencing hearing on January 31, 2012, at which it merged the three Class B felony child molesting convictions with three of the Class A felony convictions. The trial court then sentenced Williams to an aggregate term of ninety-nine years, with ninety years executed and nine years suspended. Williams now appeals.

I. Admission of Confession

Williams first claims that his confession to the police should not have been admitted because it was, he claims, coerced. Questions regarding the admission of evidence are within the sound discretion of the trial court, and we review the court’s decision only for an abuse of that discretion. A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Wells v. State, 904 N.E.2d 265, 269 (Ind.Ct.App.2009), trans. denied. With regard to the admission of a defendant’s statement, it is the State’s burden to prove by a preponderance of the evidence that a defendant’s statement was voluntary. Id. (citing Pruitt v. State, 834 N.E.2d 90, 114 (Ind.2005)).

In evaluating a claim that a statement was not given voluntarily, the trial court is to consider the totality of the circumstances, including the crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental health. Id. at 271. On review, we look to the totality of the circumstances surrounding the waiver or confession, and our focus is whether the waiver or confession was free and voluntary and not induced by any violence, threats, promises, or other improper influences. Atteberry v. State, 911 N.E.2d 601, 606 (Ind.Ct.App.2009) (citing Jackson v. State, 735 N.E.2d 1146, 1153 (Ind.2000)). Of course, on appeal, we will not reweigh the evidence but instead, we view the evidence most favorable to the State, together with the reasonable inferences that can be drawn therefrom, in order to determine if there is substantial, probative evidence of voluntariness. Id. If there is substantial evidence to support the trial court’s conclusion, we will affirm the trial court’s decision. Id.

Williams claims that the police coerced him into giving a statement and claims that he did not really understand what it meant to have a lawyer. He also claims that the police misled him into believing that his statements would not be used against him and that the police were there simply to help him. We disagree.

The police read Williams his Miranda rights twice: first when in the car on the way to the police station and again immediately before the interrogation began. Detective Dungan went over each of Williams’s rights and Williams signed the waiver-of-rights form. It is true that Williams seemed not to understand the meaning of the word “coerce.” But it is clear that Williams understood that the police could not force him to speak. Indeed, Williams even said to the police during the interrogation, “you guys are not forcing me.” Tr. p. 530. Williams notes that he had only a ninth grade education and never obtained his GED. Although Williams claims that, because he had no prior criminal history, he did not understand what it meant “to have a lawyer,” this is not a technical or difficult-to-comprehend term. It is clear that the police twice informed Williams of his right to have an attorney present during questioning. And there is evidence that Williams understood this right; indeed, he stated that he did not need a lawyer to “try to get me out of something.” Tr. p. 649.

Nor does the record support Williams’s claim that the police misled him into thinking that his statement would not be used against him. Again, the police twice informed Williams of his Miranda rights, which plainly stated that what Williams said could be used against him in court. And the police officers’ statements that they wished to “help” Williams and his daughter were not implied promises of leniency. In context, the references to “help” appear to refer to Williams’s need of help for his pedophilia, not help in the sense of lenience.

Our supreme court has long held that vague statements that the defendant benefits by cooperating and telling the truth do not constitute “promises” sufficient to render a statement involuntary. Giles v. State, 760 N.E.2d 248, 250 (Ind.Ct.App.2002) (citing Fields v. State, 679 N.E.2d 1315, 1320 (Ind.1997)). Moreover, here the detectives explicitly told Williams that they could not promise him anything. Under these facts and circumstances, the trial court did not abuse its discretion in concluding that Williams’s statement was voluntary, not coerced, and therefore admissible.

II. Double Jeopardy

Williams next contends that his convictions for incest and child molesting constitute impermissible double jeopardy. Our supreme court recently summarized the law on double jeopardy in Indiana:

[Article 1, Section 14 of the] Indiana Constitution ... provides “[n]o person shall be put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32 (Ind.1999), this Court concluded that two or more offenses are the same offense in violation of article 1, section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Under the actual evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To find a double jeopardy violation under this test, we must conclude that there is “a reasonable possibility that the evidentia-ry 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. The actual evidence test is applied to all the elements of both offenses. “In other words ... the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). Our precedents “instruct that a ‘reasonable possibility’ that the jury used the same facts to reach two convictions requires substantially more than a logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind.2008) (citing cases). The reasonable possibility standard “fairly implements the protections of the Indiana Double Jeopardy Clause and also permits convictions for multiple offenses committed in a protracted criminal episode when the case is prosecuted in a manner that insures that multiple guilty verdicts are not based on the same evidentiary facts.” Richardson, 717 N.E.2d at 53 n. 46. The existence of a “ ‘reasonable possibility’ turns on a practical assessment of whether the [fact finder] may have latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence from the jury’s perspective and may consider the charging information, jury instructions, and arguments of counsel. Id. at 1234.

Garrett v. State, 992 N.E.2d 710, 719-20 (Ind.2013).

Williams was convicted of incest based on evidence that he had sexual intercourse with his daughter during the period between January 1, 2010 and January 19, 2012. He was also convicted of Class A felony child molesting based on evidence that he had sexual intercourse with his daughter during the period between January 1, 2010 and January 20, 2012. Williams notes that, at trial, the State did not introduce any separate evidence to distinguish its proof of child molesting from its proof of incest. Nor did the State identify any separate acts of intercourse to support the incest conviction. Williams therefore claims that there was a reasonable possibility that the jury relied on the same evidence to convict him of both child molesting and incest.

In support of his claim, Williams relies on Schaefer v. State, 750 N.E.2d 787 (Ind.Ct.App.2001). In that case, the defendant was charged with and convicted of both child molesting and incest based upon his acts of molesting his daughter, which occurred between February 1, 1996 and May 27, 1996, when the defendant had custody of his daughter. Both charges alleged that the defendant performed or submitted to sexual intercourse or deviate sexual conduct with his daughter during the period he had custody of her. On appeal, this court held that it was “extremely likely that the jury used the same evidentiary facts to establish the essential elements of both child molesting and incest.” Id. at 795.

We think, however, that Schaefer is distinguishable on its facts. In that case, the court noted that “the molestation” occurred from February to May of 1996. Id. at 791. It is therefore unclear from the discussion in that case whether there was any evidence of multiple or repeated acts of molestation by the defendant. But based on the court’s conclusion that it was “extremely likely” that the same evidence was used to support both convictions, it is unlikely that there were numerous, repeated acts of sexual intercourse and/or deviate sexual conduct.

Here, however, the State did present evidence of numerous, repeated acts of molestation that took place over a period of years, up to five times per week when K.W. was with her father. If the jury credited K.W.’s testimony, which it obviously did, then there were numerous acts of sexual intercourse, any one of which could support a conviction for incest or child molesting. Given these numerous instances of child molesting, we do not think that there was a reasonable possibility that the jury used the same instance of sexual intercourse to support Williams’s conviction for incest and his convictions for Class A felony child molesting.

III. Sentencing Discretion

Williams also claims that the trial court abused its discretion in sentencing him. At the sentencing hearing, Williams proffered as mitigating that he had no prior criminal history, that he was a good candidate for therapeutic intervention, and that the crime was unlikely to reoccur. The State asked the trial court to impose an aggregate sentence of ninety years, with ten suspended to probation. The trial court found as aggravating K.W.’s young age, the repeated nature of Williams’s molestation, and that he was at a high risk to reoffend based upon his score on the Indiana Risk Assessment System (“IRAS”).

The trial court grouped Williams’s convictions based upon the period in which they were committed: on the first group, consisting of Counts I, II, and III, the trial court imposed concurrent sentences of thirty-three years with three years suspended to probation; on the second group, consisting of Counts IV, V, and VI, the trial court imposed concurrent sentences of thirty-three years with three years suspended to probation; and on the third group, consisting of Counts VII and IX, the trial court also imposed concurrent sentences of thirty-three years with three years suspended to probation. The trial court ordered the sentences on each of these groups of concurrent sentences to be served consecutively. The trial court also imposed a ten-year sentence on Count X and ordered it to be served concurrent with the other sentences. Thus, the trial court sentenced Williams to an aggregate of ninety-nine years, with nine years thereof suspended.

Williams claims that the trial court abused its discretion by failing to find certain mitigating factors he claims were clearly supported by the record and by using the IRAS score as an aggravating factor. Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007). So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 491. A trial court may abuse its sentencing discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.

First, Williams claims that the trial court improperly failed to consider his lack of criminal history as a mitigating factor. The finding of mitigating factors is not mandatory and rests within the discretion of the trial court, and the trial court is not required to accept the defendant’s arguments as to what constitutes a mitigating factor. Fliekner v. State, 908 N.E.2d 270, 273 (Ind.Ct.App.2009). Further, the trial court is not required to give the same weight to proffered mitigating factors as the defendant does, nor is it obligated to explain why it did not find a factor to be significantly mitigating. Id.

Historically, the lack of a criminal history has been considered to be a mitigating factor. See, e.g., Powell v. State, 769 N.E.2d 1128, 1136 (Ind.2002) (noting generally that the lack of criminal history should be given substantial mitigating weight, but that the lack of criminal history does not automatically outweigh any valid aggravating circumstances), abrogated on other grounds by Beattie v. State, 924 N.E.2d 643 (Ind.2010). However, it appears that our supreme court has retreated from this position.

In Kimbrough v. State, 979 N.E.2d 625 (Ind.2012), our supreme court granted transfer in a case this court had decided in a memorandum decision. In our decision in that case, the majority concluded, sua sponte, that the trial court had abused its sentencing discretion by failing to consider as a significant mitigating factor that the defendant had no prior criminal history. See id. at 629 (citing Kimbrough v. State, No. 45A04-1106-CR-328, 2012 WL 983147 (Ind.Ct.App. March 21, 2012)). On transfer, our supreme court concluded that the trial court did not overlook the defendant’s lack of criminal history. Id. The court further wrote:

Second, by describing Kimbrough’s lack of criminal history as a “substantial mitigating factor,” and remanding this case with instructions to impose a reduced sentence, the Court of Appeals majority implicitly suggested the trial court should have given greater weight to this factor. But Anglemyer makes clear that when imposing a sentence a trial court “no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other” and thus “a trial court can not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491. Here, the trial court did in fact weigh aggravating and mitigating factors giving more weight to three aggravators than the sole miti-gator. And the trial court cannot be said to have abused its discretion in so doing. See id. Thus on this ground the trial court also did not abuse its discretion in imposing Kimbrough’s sentence.

Id.

We understand this language to mean that a defendant’s lack of criminal history can no longer be said to always be a significant mitigating factor. This is so because, under Anglemyer, trial courts have no duty to weigh aggravating and mitigating factors. To hold that a particular factor is always significant suggests that the trial court has an obligation to give certain weight to that factor. Yet Anglemyer clearly holds that a trial court cannot now be said to have abused its discretion in how it weighed the aggravating and mitigating factors. 868 N.E.2d at 491. Accordingly, the trial court did not err in failing to consider as mitigating Williams’s lack of criminal history.

Williams also claims that the trial court abused its discretion by failing to consider as mitigating the fact that Williams was amenable to therapeutic counseling. He refers to a report by a forensic psychologist, which Williams filed with his sentencing memorandum, in which the psychologist was of the opinion that Williams was a good candidate for psycho-therapeutic intervention. According to Williams, this recommendation, combined with the restrictions placed on sex offenders, means that he will be unlikely to reoffend. The trial court did not have to credit this report or give it any mitigating value. Thus, we cannot say that this particular proffered mitigating factor was clearly supported by the record, yet overlooked by the trial court.

Williams next contends that the trial court abused its discretion by considering William’s IRAS score to be an aggravating factor. The trial court did not directly state that Williams’s IRAS score was an aggravating factor; instead, it noted that his score “shows that [Williams] ha[s] a high risk to reoffend.” Tr. p. 881. Evidence-based offender assessment scores are not to be considered aggravating or mitigating factors or determine the gross length of a sentence. Malenchik v. State, 928 N.E.2d 564, 575 (Ind.2010). But such evaluations and their scores may be employed in formulating the manner in which a sentence is to be served. Id.

Thus, to the extent that the trial court may have relied on Williams’s IRAS score as a separate aggravating factor, this was improper. See id. However, if the trial court has abused its discretion in sentencing a defendant, we need not remand for resentencing if we conclude that the sentence imposed is not inappropriate. Chappell v. State, 966 N.E.2d 124, 134 n. 10 (Ind.Ct.App.2012), trans. denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007), trans. denied; Felder v. State, 870 N.E.2d 554, 558 (Ind.Ct.App.2007); see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind.2007) (noting that when trial court errs in sentencing defendant, court on appeal may exercise authority to review and revise sentence, instead of remanding for resentencing). As discussed below, we conclude that Williams’s sentence is not inappropriate.

IV. Appellate Rule 7(B)

Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise authorized by statute if, “after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In our review of sentences under this rule, “we must and should exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355 (Ind.Ct.App.2011), trans. denied.

Although we have the power to review and revise sentences, the principal role of our review should be to attempt to level the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve what we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.Ct.App.2011), trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008)). Our review under Appellate Rule 7(B) should focus on “the forest — the aggregate sentence — rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Id. The appropriate question is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind.Ct.App.2007). And it is the defendant’s burden on appeal to persuade us that the sentence imposed by the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Williams was convicted of eight counts of Class A felony child molesting. The sentencing range for a Class A felony is twenty to fifty years, with the advisory sentence being thirty years. Ind.Code § 35-50-2-4. And the sentencing range for a Class B felony, such as William’s incest conviction, is six to twenty years, with ten years being the advisory sentence. Ind.Code § 35-50-2-5. Thus, the statutory maximum sentence for Williams would have been four hundred and twenty years. The trial court sentenced Williams to an aggregate of ninety years executed and nine years suspended. As a credit-restricted felon, Williams will be required to serve at least eighty-five percent of his executed time. See Boling v. State, 982 N.E.2d 1055, 1058-59 (Ind.Ct.App.2013). “[E]valuation of a defendant’s sentence may include consideration of the defendant’s credit time status because this penal consequence was within the contemplation of the trial court when it was determining the defendant’s sentence.” Sharp v. State, 970 N.E.2d 647, 651 (Ind.2012). With this in mind, we consider whether the sentence imposed by the trial court was improper.

The nature of Williams’s offenses is particularly heinous. He used his own young daughter, K.W., who was between the ages of seven and nine at the times of his crimes, to satisfy his deviate sexual desires. Over a period of years, he repeatedly had sexual intercourse with K.W., at times up to five times per week. If K.W. attempted to resist, Williams forced her to submit. He also bribed her to remain silent by giving her treats after he had molested her, and threatened her that he could not see her again if she told what had happened. There was ample evidence presented that Williams molested K.W. dozens of times. The nature of Williams’s offenses alone justify the trial court’s sentencing decision.

And our consideration of Williams’s character does not alter this conclusion. Although Williams had yet to be convicted of any crimes, for years he repeatedly had incestuous sexual intercourse with his young daughter. He abused one of, if not the, most sacred positions of trust — that of a parent to his or her child. In addition, there was evidence that Williams molested his daughter because she reminded him of her mother, Williams’s ex-girlfriend. None of this speaks well for Williams’s character.

In short, Williams has not persuaded us that his sentence of ninety years executed and nine suspended is inappropriate in light of the nature of the offense and the character of the offender. Therefore, even if the trial court had abused its discretion in sentencing Williams, there is no need to remand for resentencing. See Chappell, 966 N.E.2d at 134.

Conclusion

The trial court did not abuse its discretion in admitting Williams’s statement to the police into evidence because his statement was not coerced. Williams’s convictions for Class A felony child molesting and Class B felony incest do not constitute double jeopardy because there was no reasonable possibility that these convictions were based upon the same actual evidence. Lastly, even if the trial court did abuse its discretion in its consideration of certain aggravating factors in sentencing Williams, we need not remand for resentencing because the sentence imposed by the trial court is not inappropriate.

Affirmed.

NAJAM, J., and BROWN, J., concur.

      . Our supreme court has held that the Indiana Constitution requires the State to prove beyond a reasonable doubt that the defendant voluntarily waived his rights and that his confession was voluntarily given. Id. at 271 n. 2 (citing Pruitt, 834 N.E.2d at 114— 15). Williams does not develop a separate argument based on the Indiana Constitution, and we therefore only address his argument under the federal Constitution. See id. Furthermore, the State presented evidence that met even this more stringent standard.

      . We also note that, during sentencing, Williams himself presented evidence of his psychological evaluation, which noted that Williams was of average intelligence and had the ability to read and comprehend what was presented to him.

      . We agree with the State that the police statement that “that’s not going to happen,” was a reply to Williams’s fear that he would be "beat to death in front of my family,” and not a specific promise of protection. Tr. p. 544.

      . As noted above, the trial court "merged” the convictions on Counts XI, XII and XIII, which were the Class C felony child molesting convictions, into the convictions for Class A felony child molesting.

      . This conclusion was also contradicted by other evidence, discussed below, that indicated that Williams had a high risk to reoffend.

      . We find Williams’s citation to Akard v. State, 937 N.E.2d 811 (Ind.2010), to be unavailing. In that case, our supreme court noted that the sentence imposed by the trial court was the same as that requested by the State at trial and argued as appropriate by the State on appeal. Id. at 813. Williams notes that here, the State requested a sentence of only eighty years executed. But Akard does not stand for the proposition that the trial court is in any way bound to the sentence requested by the State. Instead, at issue in Akard was whether the court on appeal should increase the defendant’s sentence under Appellate Rule 7(B). The Akard court concluded that "the State's request for no greater sentence at trial and its assertion on appeal that such is an appropriate sentence ... [were] strong indicators that the trial court sentence is not inappropriately lenient." Id. at 814. Here, the question is not whether the trial court's sentence was inappropriately lenient, but whether it was inappropriately harsh. Akard is therefore in-apposite.


author: VAIDIK, Judge.

text:
    Darliss WERT and Gary Wert, Appellants/Plaintiffs, v. MERIDIAN SECURITY INSURANCE COMPANY, Appellee/Defendant.
    No. 15A01-1306-CT-252.
    Court of Appeals of Indiana.
    Nov. 14, 2013.
    Rehearing Denied Jan. 16, 2014.

      David W. Craig, Scott A. Faultless, Craig Kelley & Faultless LLC, Indianapolis, IN, Attorneys for Appellants.
    Andrew T. Glier, State Auto Insurance House Counsel, Carmel, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Gary and Darliss Wert (collectively “the Werts”) were involved in a car accident with Barbara Offill. After settling with Offill for $100,000, the limit of her liability insurance, the Werts sued them insurance company, Meridian Security Insurance Company (“Meridian”), for an underin-sured-motorist claim more than two years after the accident. Meridian filed a motion for summary judgment, claiming that the contract barred the Werts from filing a lawsuit against them more than two years after the accident. The Werts appeal from the trial court’s order granting summary judgment to Meridian. They argue that the contract is ambiguous because the two-year contractual limitation provision conflicts with another provision in the contract requiring full compliance with the contract. To comply with the full-compliance provision of the contract, the Werts were required to settle or obtain a judgment before filing a lawsuit against Meridian. Finding that these provisions, when read together, make it unclear when the Werts should have filed a lawsuit to preserve their underinsured-motorist claim and may completely foreclose their ability to file a lawsuit, we reverse.

Facts and Procedural History

Meridian issued a car insurance policy to Gary, effective from December 20, 2008 to June 20, 2009. Appellants’ App. p. 27. On January 16, 2009, Darliss was injured in a car accident caused by Offill’s negligent driving. In February 2009, the Werts’ attorney, Deborah McKenery notified Meridian that the Werts might file an under-insured-motorist claim under them policy. In March 2010, after learning that Offill had only $100,000 of liability insurance, McKenery informed Meridian that the Werts had an underinsured-motorist claim and told Meridian that she was ordering records and reports to submit to the insurance company. Id. at 98.

In December 2010, Offill’s insurance company, Auto-Owners Insurance Company (“Auto-Owners”), offered the Werts $100,000, the full amount of Offill’s insurance policy. Auto-Owners also included proof-of-insurance coverage because Auto-Owners knew the Werts would be making an underinsured-motorist claim against Meridian. In exchange for Auto-Owner’s extension of the full amount of coverage, Auto-Owners requested that McKenery obtain a waiver of subrogation rights from Meridian for Darliss’s medical payments and underinsured-motorist claims. McKenery then submitted to Meridian a demand of $400,000 for underinsured bodily injury benefits.

In January 2011, a Meridian representative, Brandi Giger, directly informed Dar-liss that Meridian was processing them insurance claim and that Meridian required Medicare information, which Dar-liss later provided. The next day, Giger sent McKenery a letter stating that McKenery must either “reach a settlement agreement with us or file a lawsuit against our insured.” Id. at 109. McKenery thought the letter was erroneously sent because she knew she could not file a lawsuit against her own client. Id. at 91. Instead, she believed that the letter was intended to confirm the conversation she had the previous day with the Meridian representative of the need to file suit to protect the Werts’ third-party claim from being barred by the statute of limitation. Id.

The same day, McKenery filed a lawsuit in Dearborn Superior Court against Offill to prevent the Werts’ claim from being time-barred by the statute of limitation. Id. at 136-338. A few days later, Meridian informed McKenery that it was waiving its subrogation rights against Auto-Owners and authorized the Werts to accept the $100,000 offer to resolve their third-party tort claim against Offill. Id. at 110.

On January 18, 2011, McKenery sent a letter to Auto-Owners confirming that Meridian was waiving its subrogation rights. She enclosed a copy of the lawsuit filed against Offill and requested the $100,000 settlement check. Id. at 139. McKenery also sent this letter to Giger, who was assisting with the underinsured-motorist claim. According to McKenery, the settlement money from Auto-Owners was not available to the Werts until early February 2011. Id. at 92. In February 2011, McKenery gave Meridian a copy of the release executed by the Werts, and McKenery filed a motion to dismiss the lawsuit against Offill the next day. Id. at 92,112,142^3.

In March 2011, Penni Nixon, another representative at Meridian, informed McKenery that she was assigned to review the Werts’ underinsured-motorist claim and would contact her once she finished reviewing the claim. Id. at 113. In June 2011, McKenery told Nixon that she was getting an update from Darliss’s doctor and would like to settle the case.

In August 2011, Meridian set its reserves on the Werts’ underinsured-motorist claim. Id. at 133. McKenery gave Meridian more medical information in support of their claim in both August and November. In November, McKenery also told Meridian that she wanted to resolve the Werts’ underinsured-motorist claim either through settlement, mediation, or arbitration. Id. at 119. In December 2011, Meridian offered $5000 to McKenery to settle the Werts’ underinsured-motorist claim. Id. at 134.

On February 24, 2012, more than two years after the date of the accident, the Werts filed a complaint in Dearborn Superior Court seeking underinsured-motorist benefits under Meridian’s policy. Id. at 5-10. Meridian filed its answer and affirmative defenses in May 2012. Id. at 11-16. The same day, Meridian also filed a motion for summary judgment, arguing that it was entitled to summary judgment because the claim was filed after the expiration of the contractual limitation period. Id. at 17-18. In May 2013, the trial court granted Meridian’s motion for summary judgment. Id. at 4.

The Werts now appeal.

Discussion and Decision

The Werts claim that the contractual limitation provision is ambiguous,Meridian is estopped from asserting the contractual limitation provision, and the contractual, limitation provision is unenforceable. We consider only the ambiguity of the contractual limitation provision because we find it dispositive.

When reviewing summary judgment, we apply the same standard of review as the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012). Summary judgment is appropriate where the designated evidence “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). When a party appeals the denial of summary judgment, the appealing party “carries the burden of persuading this court that the trial court’s decision was erroneous.” III. Bulk Carrier, Inc. v. Jackson, 908 N.E.2d 248, 253 (Ind.Ct.App.2009), trans. denied. If the issue presented is purely a question of law, the Court’s review is de novo. Buchanan v. HSBC Mortg. Sens., Inc., 993 N.E.2d 275, 278 (Ind.Ct.App.2013).

In general, “[i]nsurance policies are governed by the same rules of construction as other contracts.... ” Peabody Energy Corp. v. Roark, 973 N.E.2d 636, 640 (Ind.Ct.App.2012), affd on reh’g, 978 N.E.2d 503 (Ind.Ct.App.2012), trans. denied. However, because of the disparity in bargaining power between insurance companies and insureds, courts have developed distinct rules for those contracts. Auto-Owners Ins. Co. v. Haney, 842 N.E.2d 1279,1283 (Ind.2006). When interpreting an insurance contract, “if an insurance contract is clear and unambiguous, the language therein must be given its plain and ordinary meaning.” Castillo v. Prudential Prop, and Cas. Ins. Co., 834 N.E.2d 204, 206 (Ind.Ct.App.2005). The mere fact that a controversy exists and the insured asserts an interpretation contrary to that asserted by the insurer is insufficient to establish an ambiguity. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151,1155 (Ind.Ct.App.2001), trans. denied.

If an ambiguity exists, “insurance policies are to be construed strictly against the insurer and the policy language is viewed from the standpoint of the insured.” Id. This is especially important “where the language in question purports to exclude coverage.” State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 848 (Ind.2012). Insurers may limit coverage, “but such limitations must be clearly expressed to be enforceable.” Id.

This Court “must accept an interpretation of the contract language that harmonizes the provisions rather than one which supports a conflicting version of the provisions.” Castillo, 834 N.E.2d at 206 (citing Burkett v. Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind.Ct.App.2000)). A court should construe the language of an insurance policy so as not to render any words, phrases, or terms ineffective or meaningless. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1174 (Ind.Ct.App.2012), trans. denied.

The Werts argue that the contractual limitation provision is ambiguous when read with the full-compliance provision of the contract. Relevant portions of the contract state:

PART F — GENERAL PROVISIONS
LEGAL ACTION AGAINST US
No legal action may be brought against us until there has been full compliance with the terms of this policy.
Appellants’ App. p. 46.
AMENDMENT OF POLICY PROVISIONS
The Provision or Condition titled Legal Action Against Us is amended by the addition of the following:
Under Uninsured or Underinsured Motorist Coverage of this policy, if provided, no legal action or arbitration proceeding may be brought against us unless the action or proceeding is begun within two years of the date of the accident.

Id. at 57.

ENDORSEMENT UNDERINSURED MOTORIST COVERAGE — INDIANA
With respect to coverage provided by this endorsement, the provisions of the policy apply unless modified by the endorsement.
INSURING AGREEMENT
A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of “bodily injury”:
1. Sustained by an “insured”; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “underinsured motor vehicle.” We will pay damages under this coverage caused by an accident with an “under-insured motor vehicle” only if 1. or 2. below applies:
1. The limits of liability under any bodily injury liability bonds or policies applicable to the “underinsured motor vehicle” have been exhausted by payments of judgments or settlements; or
2. A tentative settlement has been made between an “insured” and the insurer of the “underinsured motor vehicle” and we:
a. Have been given prompt written notice of both the tentative settlement and certification of the liability coverage limits of the owner or operator of the “underinsured motor vehicle”; and
b. Advance payment to the “insured” in an amount equal to the tentative settlement within 30 days after receipt of notification.

Id. at 68.

The insurance contract in this case explicitly states that no legal action will be permitted against the insurance company unless there has been “full compliance with the terms of this policy.” Id. at 46. The restriction is amended by only allowing a lawsuit to be brought against the insurance company as long as it is brought within two years of the date of the accident.

The two-year restriction is in direct conflict with the endorsement amending the requirements of the underinsured-motorist coverage. There, the policy states that damages will be paid only if the limits of liability “have been exhausted by payments of judgments or settlements” or if there has been a tentative settlement made between the policyholder and the underinsured motorist. Id. at 68. In other words, Meridian will not pay underin-sured-motorist benefits to its policyholder until the claim has either been resolved or settled with the underinsured motorist.

Meridian’s policy prohibits the Werts from filing any lawsuit against it for an underinsured-motorist claim until the limits of Offill’s liability coverage have been exhausted. At the same time, Meridian attempts to prevent the Werts from filing more than two years after the date of the accident, potentially requiring them to file a lawsuit before they are in full compliance with the policy. Unless a policyholder settles with an underinsured motorist within two years of the collision, these provisions are in direct conflict and therefore ambiguous.

That is exactly what happened in this case. Offill’s settlement was not available to the Werts until February 2011. Id. at 92. The two-year anniversary of the collision, however, was on January 16, 2011. In December 2010, Auto-Owners extended a settlement offer to the Werts. On January 18, 2011, two days after the two-year anniversary of the collision, McKenery sent a letter to Auto-Owners, accepting the settlement.

Neither party argues that there was a tentative settlement between Auto-Owners and the Werts. Even under the requirements of a tentative settlement, the Werts would have been unable to comply with the requirements of the contract. In addition to agreeing to a tentative settlement, Meridian requires prompt written notice of the tentative settlement and certification of the liability coverage limits. Meridian also requires payment to the insured, the Werts in this case, of the amount equal to the tentative settlement within thirty days after receipt of the notification. Meridian did not receive notification from McKenery until January 18, two days after the two-year anniversary of the collision. Thus, whether the settlement was considered tentative or not, it would have been impossible for the Werts to comply with the full-compliance provision before the two-year anniversary of the collision.

This Court cited with approval a decision by the Iowa Supi'eme Court describing the same problem faced by the Werts in Clevenger v. Progressive Northwestern Insurance Co. In that case, the Iowa Supreme Court stated that the .contract was ambiguous “as to whether an insured must first pursue a claim to recover the limits of the tortfeasor’s liability coverage prior to filing suit against the insurer for UIM benefits.” 838 N.E.2d 1111, 1117 (Ind.Ct. App.2005) (quoting Hamm v. Allied Mut. Ins. Co., 612 N.W.2d 775 (Iowa 2000)). In Clevenger, the contract did not specify when the contractual limitation period would begin, yet it required the parties to exhaust coverage held by the tortfeasor before filing their underinsured-motorist claim. Although Clevenger is distinguishable from this case, we find footnote seven in the opinion to be instructive:

Progressive urges that it is incumbent upon the insureds to file suit against Progressive ... prior to the end of the contractually truncated period for bringing such a claim whether or not the insured knows of the existence of an actual claim because the insured is forever foreclosed from bringing the suit two years after the collision. While we are unprepared to find an ambiguity based upon the “unfairness” of foreclosing a lawsuit before it could be known, neither will we countenance such a strained reading of the contract to require a lawsuit based upon speculation that one could arise. Moreover, we fail to see the wisdom in urging insureds to bring wholly unsupported legal actions .... Further, Indiana Professional Code Rule 3.1 mandates that lawyers “shall not bring ... a proceeding ... unless there is a basis for doing so that is not frivolous.... ” See also Ind. Trial Rule 11 (requiring counsel to verify “that to the best of his knowledge, information and belief, there is good ground to support” the pleading or motion filed). Here, in order to file suit before the expiration of the limitations period advocated by Progressive the Cleven-gers’s counsel would have had to forecast Sherry Clevenger’s return to medical treatment after the expiration of the limitations period and speculate that the treatment would cause Sherry’s claim to increase dramatically to the point of outstripping Brandenburg’s insurance policy limits, thereby supporting a UIM claim against Progressive. The bridge to a non-frivolous claim would have been week indeed. Progressive’s solution is neither good practice nor allowed under our statutes and rules.

838 N.E.2d at 1117 n. 7.

Similarly, the contractual limitation in Meridian’s policy prevented the Werts from filing a lawsuit before they exhausted Offill’s policy. Once they exhausted Of-fill’s policy, thereby complying with the full-compliance provision of the contract, the insurance contract barred them from suing because it was beyond the two-year limitation period. In this case, the Werts could not have known that they had a valid claim against Meridian until after the two-year contractual limitation period. The terms of these two provisions are in direct conflict and are thus ambiguous.

Accordingly, the trial court’s entry of summary judgment for Meridian is reversed, and the cause is remanded to the trial court for further proceedings.

Reversed.

BAKER, J., and FRIEDLANDER, J., concur.

      . Meridian is also known as State Auto Insur-anee. Appellants' App. p. 35.

      . In Hamm, the issue was that the contract did not explicitly state when the statute of limitations would begin to run. In this case, the contract does clearly state that Meridian cannot be sued more than two years after the accident. However, because the contract required the Werts to satisfy their claim with Auto-Owners while prohibiting them from suing within two years of the collision, the rationale for finding the contract ambiguous is the same.


author: BAILEY, Judge.

text:
    The NOVOGRODER COMPANIES, INC., Appellant, v. Michael J. MASSARO, Appellee.
    No. 45A03-1303-PL-98.
    Court of Appeals of Indiana.
    Nov. 14, 2013.

      Greg A. Bouwer, Koranksy, Bouwer, and Poracky, P.C., Dyer, IN, Attorney for Appellant.
    David E. Woodward, Woodward & Blas-kovich, LLP, Merrillville, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

The Novogroder Companies, Ine. (“No-vogroder”) brought a nuisance and ejectment action against its commercial tenant Michael Massaro (“Massaro”). Novogro-der also sought a preliminary injunction to enjoin Massaro from cooking foods at the leased premises. Denied preliminary in-junctive relief, Novogroder pursues an appeal of right pursuant to Indiana Appellate Rule 14(A)(5). We affirm.

Issue

Novogroder presents a single restated issue for review: whether the denial of injunctive relief is an abuse of discretion.

Facts and Procedural History

On May 29, 2009, Massaro leased commercial space from Novogroder, located at Dyer Plaza in Dyer, Indiana. Massaro and his wife, Rose, opened The Produce Depot, a fruit and vegetable market. They offered produce and spices for sale, and also baked bread and served soups on the premises.

In 2011, Michael Sena (“Sena”) opened Pro Fit, an exercise studio, in Dyer Plaza. In 2012, Christie Gill (“Gill”) opened a pet grooming business known as Posh Paws, also in Dyer Plaza. According to George Novogroder (“George”), who managed Dyer Plaza, Sena and Gill had complained to him that the cooking smells from The Produce Depot were offensive. He and Massaro discussed the installation of ventilation, with each apparently agreeing to its desirability and offering to pay a portion of the cost, but asserting that the other had primary responsibility for obtaining a contractor.

On June 12, 2012, Novogroder filed its “Complaint for Injunctive Relief.” (App. 231.) The Complaint alleged that Massaro cooked foods without having proper ventilation, and that ensuing smells “create[ ] a nuisance and unreasonably annoy[] the neighboring tenants of Dyer Plaza.” (App. 232.) Count I sought to enjoin Massaro from cooking until he added ventilation. Count II sought Massaro’s ejectment for breach of the lease.

On March 6, 2013, the parties appeared for a hearing on preliminary injunctive relief. Sena testified that his customers could detect food smells from The Produce Depot, particularly in the women’s locker room, and that food smells can cause nausea during exercise. By affidavit, Gill averred that the cooking smells had “irritated” her and her employees and customers. (Pl.Ex.2.) Massaro, Rose, and several Pro Fit customers also testified, each denying that intrusive or foul smells were emanating from The Produce Depot. Massaro testified that he had been able to detect food smells from The White Rhino, a bar in Dyer Plaza, and also that the smell of animal urine from Posh Paws had been offensive. More particularly, he recounted instances when Posh Paws employees had stored trash bags of dog waste at one of the vacant Dyer Plaza units. George testified to his dual desires for the success of Massaro’s business and tenant harmony; he believed the solution to be additional ventilation installed by Massaro with some financial contribution from No-vogroder. By contrast, Rose expressed fear that installing ventilation would subject her and her husband to liability for damage to an already-leaky roof.

At the conclusion of the hearing, the trial court denied preliminary injunctive relief to Novogroder, stating in pertinent part:

My finding, by the greater weight of the evidence, is that the those [sic] kinds of activities do not create a nuisance [n]or do they unreasonably annoy owners or occupants of neighboring property. I base that determination on the credibility of the witnesses that I was able to observe testify here today. I — I am not convinced by the greater weight of the evidence, as I must be, that there is a nuisance here, or an unreasonable use on the part of the Massaros that would impact the other tenants. I find it very difficult to believe that the presence of a dog grooming salon, with the testimony I received, credible testimony, of dog ' waste and urine being present at the premises immediately [next] to Mr. — to the Pro Fitness, and a bar on the other side, to me, it just pales in comparison to what Mr. Massaro was doing on the leased premises. So, the request for injunction is denied.

(Tr. 170-71.) This appeal ensued.

Discussion and Decision

To obtain a preliminary injunction, the moving party must demonstrate by a preponderance of the evidence: a reasonable likelihood of success at trial; the remedies at law are inadequate; the threatened injury to the movant outweighs the potential harm to the nonmoving party from the granting of an injunction; and the public interest would not be disserved by granting the requested injunction. Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 727 (Ind.2008). A trial court’s grant or denial of a preliminary injunction is reviewed for an abuse of discretion. Id. Injunctive relief is not available where the breach of an agreement can be adequately satisfied by money damages. Id. at 732.

Novogroder claims that it can succeed at trial and in this instance, its threatened injury is significant and breach of contract damages at the conclusion of a trial would be inadequate because tenants are so affected by the nuisance that one has left Dyer Plaza and another has threatened to leave. The trial court’s order addressed only the reasonable likelihood of success at trial, essentially finding that Novogroder’s witnesses lacked credibility in claiming that, located in the midst of animals and bar smells, they were so adversely affected by the cooking of bread and soups that they were subjected to a nuisance.

In Indiana, nuisances are defined by statute. Indiana Code Section 32-30-6-6 defines an actionable nuisance as: “Whatever is (1) injurious to health; (2) indecent; (3) offensive to the senses: or (4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or property!.]” A public nuisance is that which affects an entire neighborhood or community while a private nuisance affects only one individual or a determinate number of people. Wernke v. Halas, 600 N.E.2d 117, 120 (Ind.Ct.App.1992). A private nuisance arises when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property. Id.

A nuisance may be a nuisance per se, something which cannot be lawfully conducted or maintained (such as a house of prostitution or an obstruction encroaching upon a public highway) or may be a nuisance per accidens, where an otherwise lawful use may become a nuisance by virtue of the circumstances surrounding the use. Id. Whether something is a nuisance per se is a question of law, and whether something is a nuisance per accidens is a question for the trier of fact. Id. A panel of this Court has previously concluded that cooking is not a nuisance per se. Shroyer v. Campbell, 31 Ind.App. 83, 67 N.E. 193, 195 (1903).

Here, Novogroder’s complaint concerned a legal use of premises that affected a finite number of people; thus, it alleged a private, per accidens nuisance. “[T]he relevant inquiry is whether the thing complained of produces such a condition as in the judgment of reasonable persons is naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.” Wendt v. Kerkhof, 594 N.E.2d 795, 797 (Ind.Ct.App.1992), trans. denied.

The trial court heard evidence that The Produce Depot opened in 2009, offering fresh-baked bread and soup in addition to produce and spices. A commercial sink had been installed with George’s approval, and he had complimented the smells arising from the cooking. No witness claimed to have perceived a foul odor emanating from The Produce Depot. At most, it was claimed that a food odor emanated, which could produce nausea during exercise. Notably, however, Sena had opened the gym in Dyer Plaza while The Produce Depot was already open for business. And, despite Sena’s claim of food smells hindering exercise, Pro Fit had originally engaged with The Produce Depot in joint customer promotions.

George testified that he was aware that The Produce Depot had a food preparation area and he had smelled food smells, but not foul smells. His primary concern was tenant harmony and he lacked “independent evidence apart from Sena where smells were coming from.” (Tr. 67.) In context, the testimony of George and Mas-saro reveals the actual dispute, something more properly sounding in contract than in nuisance: who should bear the primary responsibility for installing ventilation. In light of the evidence before the trial court, we find no abuse of discretion in its denial of preliminary injunctive relief.

Conclusion

The trial court did not abuse its discretion in refusing to grant preliminary in-junctive relief to abate a nuisance.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . We re-frame the issue to comport with the order of the trial court presented for interlocutory review. Novogroder suggests that the trial court advanced and consolidated a trial on the merits with the preliminary injunction hearing, pursuant to Indiana Trial Rule 65(A)(2) and thus this Court "may review the merits of the case.” Appellant's Br. at 6. Trial Rule 65(A)(2) provides that "[b]efore or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.”
      Novogroder then claims that the trial court improperly considered evidence extrinsic to the lease in resolving a contract dispute. In making this claim, Novogroder cites Indiana law despite the fact that the lease specifies that the laws of Illinois are applicable to enforcement actions. Nonetheless, our review of the record of proceedings indicates that the trial court did not explicitly determine that cooking was a permitted activity under the lease. Rather, the trial court resolved the pre-trial issue presented, namely, whether Novogroder was entitled to a preliminary injunction to abate a nuisance.
      The parties agreed at the outset of the preliminary injunction hearing that they were "not here on the ejectment complaint” and the matter of breach "is going to be reserved.” (Tr. 5, 12.) The trial court did not provide notice of any intention to consolidate and its preliminary injunction order did not include a finding as to whether Massaro’s culinary conduct was within the contemplated use of the leased property. Rather, the trial court expressly found "those kinds of activities do not create a nuisance [n]or do they unreasonably annoy owners or occupants of neighboring property.” (Tr. 170.) The trial court stated: "We will not re-litigate these matters all over again. To the extent they are issues in the complaint, the trial of those [issues] is advanced and is made part of this injunction hearing.” (Tr. 171.) We do not find this equivalent to the consolidation of an application for a preliminary injunction and trial on the merits of the multiple-count complaint. See generally Roberts v. Cmty. Hosps. of Ind.., Inc., 897 N.E.2d 458, 460 (Ind.2008) (observing that a trial court must ordinarily provide notice to the parties when it intends to exercise authority under Trial Rule 65(A)(2)). The closing argument references to the lease made by Novogroder's counsel did not serve to unilaterally convert the preliminary injunction hearing to a consolidated hearing.

      . This testimony was not contradicted by any other witness.