text:
    Steven DUNCAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A01-1201-CR-22.
    Court of Appeals of Indiana.
    Sept. 28, 2012.

      Ivan A. Arnaez, Arnaez Law Office, Evansville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Justin F. Robel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following a bench trial, Steven Duncan was convicted of six counts of cruelty to an animal, all Class A misdemeanors. He raises three issues for our review: 1) Whether he knowingly waived his right to a jury trial; 2) Whether Indiana’s animal cruelty statute is unconstitutionally vague; and 3) Whether there was sufficient evidence to overcome a defense of necessity.

Concluding that Duncan did not knowingly waive his right to a jury trial because the trial court did not fully advise him of his rights and obligations, that the statute is not vague as applied to him, and that there was sufficient evidence to overcome a defense of necessity, we affirm in part, reverse in part, and remand.

Facts and Procedural History

In March of 2010, Superintendent Monica Freeman of Evansville Animal Care and Control went to a property to investigate a complaint. At the property she found two horses in a paddock with no food or water. There were two barns on the property, and in each barn there were five horses in stalls that were filled with manure and urine and lacked any apparent food or water. Six more horses were in a pasture with access to hay and a ditch with water; one of those horses was a “mare with a halter grown into her face.” Transcript at 291. As Superintendent Freeman was inspecting the property, Duncan arrived and admitted to owning and being responsible for the animals. When asked why the animals were in such poor condition, Duncan offered no explanation. A veterinarian called to the property found the horses to be living in deplorable conditions. All of the horses were removed and taken to the county fairgrounds, and Duncan was arrested and charged with thirteen counts of animal cruelty under Indiana Code section 35-46-3-7(a).

At an initial hearing, Duncan appeared pro se, and in the advisement of rights the judge noted Duncan’s right to a jury trial, but did not mention the requirement to timely request a jury trial if one was desired, or the consequences of failing to do so. Duncan was represented by counsel by the time of a probable cause hearing, and well before a trial date was set. There is nothing in the record provided to suggest that Duncan was later informed of the requirements for requesting a jury trial or the consequences of failing to do so. There is also nothing in the record to indicate that he ever requested a jury trial, timely or otherwise.

Following a bench trial, Duncan was found guilty of six counts of neglecting a vertebrate animal. The conditions of the horses for which he was convicted of neglect are as follows — as explained by veterinarians who examined them, and identi-' fied by the fairground stall number in which they were placed:

Horse in stall six: A nineteen year old mare with rain scald over her back, fecal matted hair, and swollen and inflamed legs. Based on her progression the rain scald would have been the result of weeks or a month in damp conditions. The swollen and inflamed legs could have been caused by her matted and dirty state. Her body score was two, indicating malnourishment.

Horse in stall eight: A twenty-five year old mare with a body score of two to three, suffering from rain scald. She had injuries that appeared to be caused by a halter that was too tight, resulting in rubbing or pressure necrosis and leaving her with open wounds under the halter.

Horse in stall thirty-one: A two year old colt with a body score of 1.5, suffering from abdominal pain.

Two horses in stall thirty-three: Two yearling fillies, both of whom had to be euthanized on a veterinarian’s recommendation. Both suffered from epiphysitis, a bone growth plate inflammation that can be due to heredity, physical trauma, or poor nutrition. The epiphysitis resulted in pain and difficulty walking. Both suffered from rain scald. They both had body scores of one and were emaciated. At least one of them had metabolic bone disease, primarily caused by lack of nutrition. The bone disease made moving very painful, including moving the jaw while trying to eat.

Horse in stall thirty-six: A yearling who had severe rain scald with open wounds. He had pitting edema and a swollen head as a result of anemia. He had a body score of one, suffered from colic and resulting pain, and eventually had to be eu-thanized.

Additional facts will be supplied as necessary in the discussion.

Discussion and Decision

I. Waiver of Jury Trial in Misdemeanor Cases Under Rule 22

A. Standard of Review

The right of an accused to have a trial by jury is guaranteed by the Indiana and United States Constitutions. U.S. Const, amend. VI; Ind. Const. art. 1, § 18; Belazi v. State, 525 N.E.2d 351, 351 (Ind.Ct.App.1988), trans. denied. In criminal cases, the procedure for asserting the right is codified in Indiana Code section 35-37-1-2 (“The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. All other trials must be by jury.”). While the Constitution does not differentiate between felonies and misdemeanors, in Indiana the procedure for asserting the right to a jury trial in misdemeanor cases is controlled by Indiana Criminal Rule 22. Rule 22 states, in relevant part:

A defendant charged with a misdemean- or may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

While a defendant charged with a misdemeanor can therefore waive his right to a jury trial by inaction, the waiver must nonetheless be knowing, voluntary, and intelligent. Eldridge v. State, 627 N.E.2d 844, 846-47 (Ind.Ct.App.1994), trans. denied; see also Brown v. State, 495 N.E.2d 178, 179 (Ind.1986). On appeal, we consider the entire record to determine whether the defendant has made a voluntary, knowing, and intelligent waiver. Holtz v. State, 858 N.E.2d 1059, 1061 (Ind.Ct.App.2006), trans. denied.

B. Waiver of Jury Trial

The right to trial by jury is a fundamental right, and while the manner of preserving that right is altered by Criminal Rule 22, it is not diminished. Pryor v. State, 973 N.E.2d 629, 632 (Ind.Ct.App.2012); Stevens v. State, 689 N.E.2d 487, 489 (Ind.Ct.App.1997). There are three elements to a valid waiver of the right to a jury trial — knowing, voluntary, and intelligent. We have previously distinguished between these elements: “A voluntary waiver occurs if the conduct constituting the waiver is the product of a free will; a knowing waiver is the product of an informed will; an intelligent waiver is the product of a will that has the capacity to understand.... ” Eldridge, 627 N.E.2d at 846. Additionally, the waiver needs to be personal. Id. In a misdemeanor case, the personal nature of the waiver can be inferred where the defendant fails to assert the right to a jury trial and there is evidence that the waiver is knowing, voluntary, and intelligent. Id. In the present case, Duncan contends that his waiver was not knowing because he was not fully informed. We agree.

The State concedes that Duncan was not advised of the consequences of failing to ask for a jury trial. We note that he was also not advised of the requirement of a written demand for a jury trial ten days before his scheduled trial date. The State contends however that we can infer that Duncan was informed because he was represented and thus “counsel presumably discussed a jury trial.” Appellee’s Br. at 12. Because the right to a jury trial is a fundamental right, we cannot assume from a silent record that Duncan was informed by his counsel. In order to establish a valid waiver in a misdemeanor case, the record is sufficient if

1) it does not contain a request for a trial by jury; 2) it evidences that the defendant was fully advised of the right to a trial by jury and of the consequences for failing to timely request the right; and 3) it reflects that the defendant was able to understand the advice.

Eldridge, 627 N.E.2d at 848. A defendant may be advised of his rights in multiple ways. The court can orally inform him of his rights, Poore v. State, 681 N.E.2d 204, 208 (Ind.1997) (noting also that “[w]hile it is advantageous for a trial judge to engage a defendant in colloquy concerning the consequences of waiving trial by jury,” it is not required); the defendant can be given a written advisement, id; Jackson v. State, 644 N.E.2d 595 (Ind.Ct.App.1994); his counsel, on the record, can inform him of his rights and question his understanding of them, Reynolds v. State, 703 N.E.2d 701 (Ind.Ct.App.1999); or the defendant can sign a written waiver and file it in open court, Poore, 681 N.E.2d 204.

Here, the record lacks any indication that Duncan was fully advised of the consequences of failing to timely request a jury trial. Our case law further confirms that even where a defendant is represented, having counsel is not itself a sufficient substitute for the defendant being expressly advised of his rights. Bex v. State, 952 N.E.2d 347, 349 (Ind.Ct.App.2011) (noting as an initial matter that a represented defendant was not fully informed), trans. denied; Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993) (noting that the defendant was not fully informed by the court and that there was also no indication that she was informed by her counsel); see also Belazi, 525 N.E.2d at 352 (“We do not believe that representation by counsel is essential in order for a defendant to waive the right to a jury trial under C.E. 22.”). This assessment is further cemented by the fact that many cases concluding that a defendant was not well informed fail to mention whether the defendant was represented. If the fact of representation led directly to the conclusion that a defendant was informed and thus that a waiver was knowing, we would have given more care to that point in past opinions.

The State also argues that we should not reverse because Duncan was not prejudiced. The relevant inquiry however is whether he was adequately informed as required by Criminal Rule 22. Levels v. State, 972 N.E.2d 972, 972 (Ind.Ct.App.2012); Hadley v. State, 636 N.E.2d 173, 174 (Ind.Ct.App.1994), trans. denied; Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988). Furthermore, we have previously held that a violation of the right to trial by jury is a fundamental error, and cannot be considered harmless. Eldridge, 627 N.E.2d at 849; see also Bonner v. State, 650 N.E.2d 1139, 1141 (Ind.1995) (defining “harmless” as error that does not prejudice the defendant’s substantial rights).

The State further contends that Duncan consented to his counsel’s trial strategy to proceed with a bench trial and cannot now object. If there had been a valid waiver by Duncan in the first place, we might be inclined to agree. For this proposition the State cites Bex, and that case is distinguishable from the present case. In Bex, the matter in question related to a trial strategy to accept fewer jury members than were required by statute; it was not about waiver of the right to a jury trial. Bex, 952 N.E.2d at 350. If Duncan had validly waived his right to a jury trial here, then he would have been bound by that waiver unless the trial court chose, within its discretion, to allow withdrawal of the waiver. Hutchins v. State, 493 N.E.2d 444, 445-46 (Ind.1986).

Finally, the State correctly argues that there is no indication that Duncan ever wanted, requested, or was denied a jury trial. But, we have previously noted that it does not matter whether the defendant requested a jury trial. Casselman v. State, 472 N.E.2d 1310, 1311 n. 1 (Ind.Ct.App.1985) (“The state urges that since Casselman failed to demand a jury as provided by the rule, no error was committed. The argument is specious.”). We agree with the State that because Duncan went along with a bench trial and never requested a jury trial, it is possible that he is only raising the issue now because he simply wants a new trial. Even so, we are obliged to find that he did not waive his right to a jury trial. He was not able to meet the “knowing” requirement of a valid waiver because he was not adequately informed of his rights and obligations as set out in Criminal Rule 22. See Levels, 972 N.E.2d 972; Vukadinovich, 529 N.E.2d 837.

While our conclusion in this issue alone requires us to remand the case for jury trial, because the other two issues that Duncan raises on appeal may impact that new trial or be brought up again during the trial, we must decide them here.

II. Constitutionality of the Statute

A. Standard of Review

When the validity of a statute is challenged our starting point is a presumption of constitutionality, and the challenger has the burden of overcoming this presumption. Price v. State, 911 N.E.2d 716, 719 (Ind.Ct.App.2009), trans. denied. We resolve all reasonable doubts in favor of the statute’s constitutionality, and the statute will only be found to be unconstitutionally vague if a person of ordinary intelligence would not be able to determine the generally prohibited conduct. Id. The statute need not meticulously list each item of prohibited conduct. Id. For vagueness challenges which do not involve First Amendment freedoms, we examine the challenge in light of the facts of that particular case. Id. The challenger may not present hypothetical situations in order to demonstrate potential vagueness. Id. at 720.

B. Vagueness

Duncan argues that Indiana’s animal neglect statute is unconstitutionally vague. See Ind.Code § 35-46-3-7. We disagree. Under the circumstances here, a person of ordinary intelligence would know that this behavior was prohibited under the statute. The horses under Duncan’s care were in terrible shape — they were malnourished, suffering from infections and diseases, and several of them had to be euthanized. “Neglect” under the statute in question is defined in part as “endangering an animal’s health by failing to provide or arrange to provide the animal with food or drink, if the animal is dependent on the person for the provision of food or drink_” Ind.Code § 35-46-3-0.5(4)(A). The majority of horses found on Duncan’s property did not have food or drink available to them when animal control investigated the property. And it is clear that their health was endangered as a result because all of the horses underlying Duncan’s convictions were found to be underweight, with most of them suffering from multiple health problems. Several were in such poor condition and suffering from such severe nutrition-related ailments that they had to be euthanized. The statute is not unconstitutionally vague as applied to Duncan, and contrary to his contention, it is “sufficiently definitive to ‘indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions ... will not occur.’” Tooley v. State, 911 N.E.2d 721, 724 (Ind.Ct.App.2009) (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind.2007)), trans. denied.

III. Necessity Defense

A. Standard of Review

The standard for reviewing sufficiency of the evidence claims is well settled. We do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 N.E.2d 173, 185 (Ind.2001). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable trier-of-fact could have found the defendant guilty beyond a reasonable doubt. Id.

B. Necessity Defense and Sufficiency of the Evidence

We believe the State presented sufficient probative evidence from which a reasonable trier-of-fact could have found Duncan guilty beyond a reasonable doubt. Duncan’s evidence of necessity as supplied in his brief relates only to the housing of horses in manure-filled stables without food or water, a situation that Duncan claims was temporary and spurred by necessity. He claims that a gate had been damaged the day before, allowing horses that should have been separated to co-mingle, and he had put the horses into the dirty stalls temporarily until he could fix the gate. We agree with the State that this is unrelated to the neglect for which Duncan was convicted, because “his convictions were based on long-term neglect, not short-term housing related to the alleged necessity.” Appellee’s Brief at 11. We also note that this court has in the past considered similar cases of neglect and has held evidence of inappropriately skinny and malnourished horses to have been sufficient to support a conviction under the statute. See Miller v. State, 952 N.E.2d 292 (Ind.Ct.App.2011), trans. denied; Baxter v. State, 891 N.E.2d 110 (Ind.Ct.App. 2008); Lykins v. State, 726 N.E.2d 1265 (Ind.Ct.App.2000).

Conclusion

Concluding that the statute is not vague as applied to Duncan and that there was sufficient evidence to overcome a defense of necessity, but that the trial court erred by insufficiently advising Duncan of his right to a jury trial, we affirm in part, reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and BRADFORD, J., concur.

      . Trial by jury in misdemeanor cases is controlled by Indiana Criminal Rule 22, see infra.

      . The information charged Duncan with "cruelty to an animal” under Indiana Code section 35-46-3-7, which is entitled "abandonment or neglect of vertebrate animals.”

      . Many of the other horses on the property suffered from problems similar to those seen in these six horses, but the severity seems not to have risen to the same level, and Duncan was not convicted of neglect for those animals.

      . Rain scald is a gram-positive actinomyces bacterial infection that usually infects horses on their backs, and is the result of the horse spending time in damp conditions. It is more common in the winter, and it is treatable if the animal is moved to drier shelter.

      . The horses’ body conditions were rated on a scale of one to ten, with one being emaciated and ten being fat. A normal horse would be scored at four to six.

      . We note that the decision of whether to waive a jury trial will often be more than mere trial strategy. It is a fundamental right, and is one of the areas where our Rules of Professional Conduct dictate that the client’s wishes shall control. Ind. Professional Conduct Rule 1.2. On the other hand, we have previously allowed a presumption that waiver of a jury trial was a strategic move in a misdemeanor case, without evidence to the contrary, and once the defendant had been informed of his rights under Criminal Rule 22. Stevens, 689 N.E.2d at 490.


source: Caselaw Access Project

author: ROBB, Chief Judge. BAKER, Judge,

license: Public Domain

text:
    Travis KOONTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A05-1202-CR-77.
    Court of Appeals of Indiana.
    Oct. 9, 2012.

      John D. Fierek, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Travis Koontz appeals the trial court’s denial of his motion to correct erroneous sentence. He raises one issue for our review, which we restate as whether the trial court erred in denying his motion when his sentence is, on its face, erroneous for exceeding statutory authority. Concluding that Koontz waived any error in his sentence by consenting to the sentence as part of a plea agreement, we affirm.

Facts and Procedural History

The State charged Koontz with driving while suspended, a Class A misdemeanor, false informing, a Class B misdemeanor, operating a vehicle while intoxicated, a Class C misdemeanor, and operating a vehicle with an alcohol concentration equivalent (“ACE”) of .08 or more, a Class C misdemeanor. The State and Koontz entered into a plea agreement whereby Koontz agreed to plead guilty to driving while suspended and operating with an ACE of .08 or more, and .the State agreed to dismiss the remaining charges. In addition, the parties agreed to the following sentence: 365 days in jail with eighteen days to be executed and 365 days of probation for the driving while suspended conviction, and sixty days in jail with eighteen days to be executed and 365 days of probation for the operating a vehicle with an ACE of .08 or more conviction, with the sentences to run concurrently. On April 4, 2011, the trial court accepted the plea agreement and sentenced Koontz pursuant to its terms. Koontz signed the plea agreement and acknowledged in open court during his guilty plea hearing that he understood the terms of the plea agreement and wished the court to accept them and sentence him accordingly. Koontz also signed the resulting order of probation, indicating that he understood he would be placed under the supervision of the county probation department for 365 days.

In July 2011, the State filed the first of three informations of violation of probation. The first information was dismissed; a second was filed in December 2011 and a third was filed in January 2012. In February 2012, before fact-finding hearings on the second or third informations could be held, Koontz filed a motion to correct erroneous sentence. In his motion, he alleged his sentence was erroneous on its face because by statute, the combined term of imprisonment and period of probation for a misdemeanor cannot exceed one year and his sentence exceeds that limitation. Following a hearing, the trial court denied Koontz’s motion, and at the same hearing, found he had violated his probation and ordered him to serve 270 days in jail. Koontz now appeals the trial court’s denial of his motion to correct erroneous sentence.

Discussion and Decision

I. Standard of Review

Indiana Code section 35-38-1-15 provides that an erroneous sentence is not void but shall be corrected, providing “prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence.” Davis v. State, 937 N.E.2d 8, 10 (Ind.Ct.App.2010), trans. denied. However, the process is only available to correct a sentence that is erroneous on its face. Neff v. State, 888 N.E.2d 1249, 1251 (Ind.2008).

In reviewing a trial court’s decision on a motion to correct erroneous sentence, we defer to the trial court’s factual findings and review the decision for an abuse of discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind.Ct.App.2007). An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it. Id.

II. Erroneous Sentence

Koontz pleaded guilty to a Class A misdemeanor, for which the maximum sentence is one year, and a Class B misdemeanor, for which the maximum sentence is 180 days. See Ind.Code § 35-50-3-2 and -3. He was sentenced to one year with eighteen days executed and 347 days suspended, plus 365 days of probation for the Class A misdemeanor; and sixty days with eighteen days executed, forty-two days suspended plus 365 days of probation for the Class B misdemeanor, to be served concurrently. Indiana Code section 35-50-3-1 provides, in pertinent part-

la) The court may suspend any part of a sentence for a misdemeanor.
(b) Except as provided in subsection (c), whenever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.

Koontz contends that because his term of imprisonment plus his period of probation as stated in the sentencing order exceeds one year, his sentence is erroneous on its face and must be corrected.

The State first responds that Koontz has waived any error in his sentence by agreeing to a plea from which he benefitted. Koontz counters that the State has waived its waiver argument by failing to raise it in the trial court. During the hearing on Koontz’s motion, however, the State began: “The State would first argue that due to the fact that the Defendant did sign the plea agreement that that counteracts any erroneous sentence with regards to probation.” Transcript at 31. Although this is not an extensive argument, it clearly indicates the State’s reliance on Koontz’s agreeing to the sentence and that is sufficient for the State to avoid waiver of its argument.

The decision to accept or reject a plea agreement is a matter left to a trial court’s discretion. Allen v. State, 865 N.E.2d 686, 689 (Ind.Ct.App.2007). Once a plea agreement is accepted by the trial court, the plea agreement, like a contract, is binding upon both parties and the trial court. Id. Further, if the trial court accepts the plea agreement, it is strictly bound by the sentencing provisions of the plea agreement and is precluded from imposing any sentence other than that required by the agreement. Id.; see also Ind.Code § 35-35-3-S(e). Our supreme court has held that “a defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.” Collins v. State, 509 N.E.2d 827, 833 (Ind.1987). The court has further explained as follows:

[Defendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.

Davis v. State, 771 N.E.2d 647, 649 n. 4 (Ind.2002) (citation and quotation omitted). Whether a defendant has benefitted from a plea agreement with an illegal sentencing provision generally is measured by whether the plea reduced the defendant’s penal exposure. Hacker v. State, 906 N.E.2d 924, 927 (Ind.Ct.App.2009), trans. denied.

Here, Koontz signed the fixed plea agreement that specifically set forth the sentence to be imposed, which included a combined term of incarceration and probation longer than that allowed by Indiana Code section 35-50-3-l(b). The trial court was bound by the terms of the plea agreement negotiated by Koontz and the State. Koontz received a benefit from the plea in that the Class B and one of the Class C misdemeanor offenses charged against him were dismissed, and he was ordered to serve just eighteen days of a one-year sentence, with one year on probation. We acknowledge that one of the charges the State dismissed was operating while intoxicated, and Koontz could not have been convicted of that offense as well as operating with an ACE of .08 or more based on the same evidence. However, being convicted of the per se offense rather than operating while intoxicated reduces Koontz’s exposure if he were to be arrested again for operating while intoxicated. See Ind.Code § 9-30-5-3 (stating that a person violating the operating while intoxicated or operating with an ACE of .08 or more commits a Class D felony if the person has a previous conviction of operating while intoxicated within five years). Moreover, had the trial court had discretion in sentencing Koontz, he could have received a sentence of up to one year imprisonment, and by virtue of the plea, he was to serve only eighteen days. The dissent believes that “where the offenses are misdemeanors or minor felonies,” op. at 851, the potential for abuse is too great and the benefit too small to justify allowing an illegal sentence to stand because it was the result of a plea bargain. We do not believe it is our place to categorically declare the supreme court’s position inapplicable to misdemeanors. We might agree if Koontz had been charged "with felonies and misdemeanors that dismissal of a misdemeanor and avoidance of the penal consequences thereof offered him no relative benefit, or if, because of double jeopardy, he could not have been convicted at all. But Koontz was charged only with misdemeanors, and he did receive a benefit from the plea dismissing two of the charges. Only now that he has violated his probation does Koontz challenge his sentence claiming that it is illegal. The trial court did not err by denying Koontz’s motion. See, e.g., Lee v. State, 816 N.E.2d 35, 40 (Ind.2004) (defendant serving consecutive sentences provided for by plea agreement but otherwise not authorized by statute was entitled to no relief).

Conclusion

The trial court did not abuse its discretion in denying Koontz’s motion to correct erroneous sentence because Koontz consented to the sentence as part of a plea agreement. The judgment of the trial court is affirmed.

Affirmed.

BRADFORD, J., concurs.

BAKER, J., dissents with opinion.

BAKER, Judge,

dissenting.

I respectfully dissent. I acknowledge that our Supreme Court has made it clear that “[a] defendant ‘may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.’ ” Lee v. State, 816 N.E.2d 35, 40 (Ind.2004) (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind.1987)).

Nevertheless, while this may be acceptable for someone who reaps a “significant benefit” such as avoiding a thirty-year sentence or the death penalty, such a benefit was not gained by Koontz in this case. Stites v. State, 829 N.E.2d 527, 529 (Ind.2005) (reasoning that “Stites received a significant benefit from her plea agreement [when] she received less than the maximum possible sentence of sixty years, and the State agreed not to seek the death penalty”); see also Lee v. State, 816 N.E.2d 35, 37 (Ind.2004) (holding that Lee could not complain of illegal consecutive sentences that were part of a plea agreement in which the State dismissed the habitual offender allegation, allowing Lee to avoid an additional thirty-year term); Games v. State, 743 N.E.2d 1132, 1134-35 (Ind.2001) (noting that “Games bargained for a sentence between sixty and 118 years in order to avoid the death penalty” and, accordingly, had “waived his right to chai-lenge his sentence on double jeopardy grounds”); Collins, 509 N.E.2d at 832-33 (observing that Collins agreed to plead to guilty to voluntary manslaughter, received credit for time served, and had his remaining time suspended and, therefore, could not challenge the conviction because the suspended portion of his sentence was illegal).

Indeed, even in Davis v. State, a case in which the defendant seemed to reap the least benefit, Davis still pleaded guilty to class C felony robbery. 771 N.E.2d 647, 647-48 (Ind.2002). In exchange, Davis was sentenced to five years, with three years suspended and two years to run consecutively to a sentence imposed in a separate proceeding. Id. at 648.

By contrast, in this case, Koontz pleaded guilty to two misdemeanors. Although the State dismissed two of the charges, Koontz did not have the benefit of having two charges dismissed. More particularly, had the case proceeded to trial, Koontz could not have been convicted of operating a vehicle while intoxicated and operating a vehicle with an ACE of .08 or more. Hornback v. State, 693 N.E.2d 81, 85 (Ind.Ct.App.1998). Thus, the practical effect is that only the charge of class B misdemean- or false informing was dismissed pursuant to the plea agreement. Nevertheless, Koontz was exposed to a combined term of imprisonment and probation that exceeded statutory limits. Accordingly, in cases where the offenses are misdemeanors or minor felonies, the potential for abuse could be too great to justify permitting the imposition of illegal sentences through plea agreements. Therefore, I would reverse.

      . The judgment and sentence for the probation violation has been stayed by order of this court pending resolution of this appeal. See Appellant’s Appendix at 93 (March 2, 2012 Order).

      . Koontz cites Jennings v. State, 956 N.E.2d 203 (Ind.Ct.App.2011). trans. granted, in which a panel of this court held that, for purposes of Indiana Code section 35-50-3-1(b), the “term of imprisonment” includes both the executed and the suspended portions of a sentence. Id. at 208. Our supreme court granted transfer in Jennings after briefing in this case was complete but has not yet issued an opinion. Regardless of the outcome of the transfer proceedings, Jennings is not directly applicable here. In Jennings, the defendant was convicted following a jury trial of a Class B misdemeanor and sentenced at the trial court’s discretion to 180 days, with thirty days executed and 150 days suspended, plus 360 days of probation. 956 N.E.2d at 205. The case was remanded to the trial court to impose a period of probation not to exceed 185 days so the 180 day sentence plus probation would not exceed one year. Id. at 208. However, given our resolution below, the difference between the defendant in Jennings having a trial and Koontz pleading guilty is dispositive.


author: RUCKER, Justice.

text:
    AN-HUNG YAO and Yu-Ting Lin, Appellants-(Defendants below), v. STATE of Indiana, Appellee-(Plaintiff below).
    No. 35S02-1112-CR-704.
    Supreme Court of Indiana.
    Sept. 13, 2012.

      James H. Voyles, Tyler D. Helmond, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, Alan D. Burke, Burke Law Office, Rochester, IN, Jeremy N. Gayed, Michael H. Michmerhuizen, Barrett & McNagny LLP, Port Wayne, IN, R.P. Fisher, Fisher & Ireland, Wabash, IN, Attorneys for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

Case Summary

Associated with a toy gun business, Defendants were charged with counterfeiting, theft, and corrupt business influence arising out of their conduct concerning toy semi-automatic weapons that were lookalikes of real weapons for which a gun manufacturer allegedly owned a federally protected trademark. Defendants moved to dismiss the charges; the trial court granted their motion with respect to counterfeiting on grounds that the facts alleged did not constitute an offense. On interlocutory review the Court of Appeals concluded that all charges should be dismissed on grounds that Indiana lacked jurisdiction. Disagreeing with our colleagues on this point, we affirm in part and reverse in part the judgment of the trial court.

Facts and Procedural History

Yu-Ting Lin operates Generation Guns, a Houston, Texas based business, which imports from Taiwan and sells in this country certain products it labels as “air-soft guns.” An-Hung Yao, vice-president of a bank in Houston, is a friend of Lin’s and has helped her by setting up bookkeeping and computer systems for Lin’s business, and by attending trade shows with her. As part of an investigation into potential trademark infringements, firearms manufacturer Heckler & Koch, Inc. (“H & K”), through a private consulting firm and in cooperation with the Indiana State Police, ordered airsoft guns from Generation Guns. H & K directed that the toy guns be shipped to an address in Huntington County, Indiana. Lin, Yao, or both were allegedly involved in the process of receiving the order, accepting payment, and effecting shipment of the airsoft guns. On the basis of H & K’s verification that the toys delivered to Huntington County were replicas of H & K’s real weapons, the Huntington County Prosecutor charged Lin and Yao with three counts each of Class D felony theft and Class D felony counterfeiting, and one count each of Class C felony corrupt business influence.

Lin and Yao (collectively, the “Defendants”) moved to dismiss all charges against them. Defendants contended the facts cannot constitute the offense of theft because one cannot exert unauthorized control over a trademark. Because the corrupt business influence charges were predicated on the theft counts, the Defendants argued for their dismissal on the same basis. With respect to the charge of counterfeiting the Defendants contended the facts alleged cannot constitute the crime of counterfeiting because an airsoft gun is not a written instrument within the meaning of the counterfeiting statute. As to all charges Lin, but not Yao, also argued dismissal was required because Indiana lacked jurisdiction over the alleged offenses. The trial court entered an order granting the Defendants’ motions to dismiss the counterfeiting charges but denied the Defendants’ motions to dismiss the theft and corrupt business influence charges. The trial court made no express ruling concerning Lin’s jurisdictional argument. See Appellant Lin’s App. at A090-091. The trial court also certified its order for interlocutory appeal; the Defendants separately appealed and the State cross-appealed.

After accepting jurisdiction and consolidating the Defendants’ appeals, the Court of Appeals concluded that all charges should have been dismissed on grounds “the trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana.” Yao v. State, 958 N.E.2d 1236, 1237 (Ind.Ct.App.2011). The State sought transfer, which we granted. See App. Rule 58(A). Additional facts are set forth below where necessary.

Standard of Review

We review a trial court’s ruling on a motion to dismiss a charging information for an abuse of discretion. State v. Davis, 898 N.E.2d 281, 285 (Ind.2008). “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.” Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.2012). A trial court also abuses its discretion when it misinterprets the law. State v. Econ. Freedom Fund, 959 N.E.2d 794, 800 (Ind.2011).

Discussion

On motion by a defendant Indiana law permits dismissal of a charging information on a number of grounds. See I.C. § 35-34-1-4. The Defendants here set forth two grounds for dismissal of the charges: one, dismissal is proper because “[t]he facts stated do not constitute an offense,” I.C. § 35-34-l-4(a)(5) and two, “[t]here exists some jurisdictional impediment to conviction of the defendant for the offense charged.” I.C. § 35-34-l-4(a)(10). We address the jurisdictional claim first.

A. Territorial Jurisdiction

Indiana Code section 35-41-l-l(b) provides “[a] person may be convicted under Indiana law of an offense if: (1) either the conduct that is an element of the offense, the result that is an element, or both, occur in Indiana.” (emphasis added). The Defendants argue the trial court lacks jurisdiction over this prosecution because neither the “conduct that is an element of’ nor “the result that is an element” of the charged offenses occurred in Indiana. Br. in Opposition to Trans, at 10-11.

We first observe that Indiana statutes do not list jurisdiction as an element of the offenses for which these Defendants are charged. Nonetheless “[t]he plain, ordinary, and usual meaning of [I.C. § 35-41-1-1] clearly establishes ‘in Indiana’ as a prerequisite for Indiana criminal prosecutions and thus restricts the power to exercise criminal jurisdiction to Indiana’s actual territorial boundaries.” Benham v. State, 637 N.E.2d 133, 137 (Ind.1994). Consequently, this Court treats territorial jurisdiction as though it were an element of an offense and has held that the State must prove this element “beyond a reasonable doubt.” Ortiz v. State, 766 N.E.2d 370, 375 (Ind.2002). Precisely because this is so “the issue must be submitted to the jury unless the court determines no reasonable jury could fail to find territorial jurisdiction beyond a reasonable doubt.” Id. (quoting McKinney v. State, 553 N.E.2d 860, 863-64 (Ind.Ct.App.1990)). If the court makes such a determination then no jury instruction on the issue is required and the question of jurisdiction is decided by the court as a matter of law. However, at this preliminary stage of the proceedings with only arguments of counsel informing the trial court’s decision, the basis of finding a lack of jurisdiction is necessarily constrained. And appellate review is limited to whether the trial court abused its discretion.

With respect to the charge of theft, the conduct prohibited by statute is “ex-ertfion of] unauthorized control.” I.C. § 35-43-4-2. The Defendants argue “[t]he only 'exertion of control’ alleged by the State is the sale of airsoft guns.” Br. of Lin at 18. We first note that the charging informations — which the Defendants seek to dismiss on jurisdictional grounds — make no allegation concerning sale. Rather they simply track the language of the statute and declare in relevant part:

Sometime from June 2009 to August 2009, in Huntington County, Indiana, Yu-Ting Lin a/k/a Lin Yu Ting knowingly or intentionally exerted unauthorized control over property belonging to Heckler & Koch, Inc., with the intent to deprive the owner of any part of its value or use, namely: trademarks and/or markings or symbols of identification.

Appellant Lin’s App. at A-018-020; see Appellant Yao’s App. at 62-64 (identically-worded information charging Yao with theft). Second, contrary to the Defendants’ apparent claim, “exertion of control” is not limited to sale. Instead to “exert control” means to “obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.” I.C. § 35-43-4-1. If at trial the State fails to prove beyond a reasonable doubt that the Defendants, in Indiana, engaged in any one or more of these several forms of exerting control over the property of Heckler & Koch then the Defendants will be entitled to acquittal, or perhaps judgment on the evidence. But this is a sufficiency of the evidence determination. At this stage of the proceedings we cannot say as a matter of law that the charging information is jurisdictionally infirm. See, e.g., Benham, 637 N.E.2d at 138 (“[U]pon a motion to dismiss [under I.C. § 35-34-1-4(a)(10) ] the defendant is required to prove by a preponderance of the evidence every fact essential to support the motion.”) (internal quotation marks omitted).

With respect to the charge of counterfeiting, the conduct prohibited by statute is “mak[ing] or utter[ing]” a written instrument. I.C. § 35-43-5-2(a)(l) (now I.C. § 35-31.5-2-345). Neither defendant makes a specific claim concerning this particular charge. Instead both generally insist that all relevant conduct in this case took place in either Taiwan or the state of Texas, and ground their argument on the meaning of the sale of goods as used in the Uniform Commercial Code. First, similar to “exert control” under the theft statute, “mak[ing] or utterfing]” under the counterfeiting statute is not limited to the sale of goods. Rather, to “utter” means “to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use.” I.C. § 35-41-1-27. Second, even if the evidence later shows that the Defendants did not “sell” in Indiana property belonging to Heckler & Koch (within the meaning of the criminal statutes), this says nothing about whether the Defendants engaged in other forms of “making or uttering” a written instrument in Indiana.

Consistent with the approach taken by the Court of Appeals in this case, the Defendants also claim there cannot be a more expansive understanding of jurisdiction under the criminal law than under the civil law. See Br. in Opposition to Trans, at 12. We disagree. Writing for a unanimous Supreme Court, Justice Holmes laid down a broad basis for criminal territorial jurisdiction: “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect....” Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911). Further, “the scope of a state’s jurisdiction over defendants in criminal cases is bound up with the scope of its substantive criminal law” and criminal jurisdictional doctrine evolved quite independently from the doctrine of civil jurisdiction. Allan Erb-sen, Impersonal Jurisdiction, 60 Emory L.J. 1, 37 (2010) (listing reasons for analyzing questions of criminal jurisdiction separately from questions of civil jurisdiction). Cf. In re Vasquez, 428 Mass. 842, 705 N.E.2d 606, 609 (1999) (“The jurisprudence of personal jurisdiction has no bearing on the question whether a person may be brought to a State and tried there for crimes under that State’s laws.”) Today, criminal jurisdiction is for the most part a creature of expansive state statutes designed in part to permit prosecution for consequences felt within a state resulting from criminal acts occurring outside a state. See Wayne R. LaFave, et al., 4 Criminal Procedure § 16.4(c) at 847-49 (3d ed.2007).

In sum, we cannot conclude that as a matter of law the Defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge. The trial court did not abuse its discretion in denying sub silentio Lin’s motion to dismiss for lack of jurisdiction.

B. Do the Facts Alleged Constitute the Offense of Counterfeiting?

The Informations charging the Defendants with counterfeiting allege in relevant part:

Sometime from June 2009 to August 2009, in Huntington County, Indiana, An-Hung Yao, a/k/a Andy An-Hung Yao, knowingly or intentionally uttered a written instrument, namely: an airsoft gun, in such a manner that it purported to have been made by another person or by authority of one who did not give authority, namely: Heckler & Koch, Inc.

Appellant Yao’s App. at 65; see also Appellant Lin’s App. A-015-017. Generally contending the State is attempting to criminalize civil trademark infringement, and that an airsoft gun cannot constitute a written instrument, the Defendants moved to dismiss the counterfeiting charges. The trial court granted the motions.

To convict the Defendants of counterfeiting, the State must show they knowingly or intentionally made or uttered a written instrument in such a manner that it purports to have been made by authority of one who did not give authority. See I.C. § 35-43-5-2(a). For purposes of the Indiana counterfeiting statute, “written instrument” is defined as follows:

“Written instrument” means a paper, a document, or other instrument containing written matter and includes money, coins, tokens, stamps, seals, credit cards, badges, trademarks, medals, retail sales receipts, labels or markings (including a universal product code (UPC) or another product identification code), or other objects or symbols of value, right, privilege, or identification.

I.C. § 35-43-5-1(t).

The Defendants’ claim that their airsoft guns cannot constitute a written instrument is premised on their reading of the foregoing statute. In short, according to the Defendants, a written instrument must consist of a “paper, a document, or other instrument containing written matter.” As the Defendants see it, the remainder of the statute merely provides examples of instruments containing written matter. In other words, the Defendants contend the “instrument” must contain “written matter” — which could be merely a marking or stamping of some kind — in order to qualify as an object of the counterfeiting statute. And the Defendants appear to argue that because the toy guns obviously are not pieces of paper or documents and contain no written matter, they cannot be counterfeited.

On the other hand the State views the definition of “written instrument” as “a paper, a document, or other instrument containing written matter ... or other objects or symbols of value, right, privilege, or identification.” According to the State-the phrase “and includes money, coins, ... labels or markings ... etc.” modifies the term “instrument containing written matter.” In other words, a written instrument could be an instrument containing written matter or it could be an object or symbol of value, right, privilege, or identification— whether or not such object or symbol contains any writings or markings.

We think the State has the better of the argument. It is true that criminal statutes must be strictly construed against the State, and “may not be enlarged beyond ■ the fair meaning of the language used and ... held to include offenses other than those clearly defined.” Bond v. State, 515 N.E.2d 856, 857-58 (Ind.1987). However, when the language is susceptible to more than one construction, we must construe the statute in accord with the apparent legislative intent. This is done by “giving effect to the ordinary and plain meaning of the language used in the statute.” Clifft v. Ind. Dept. of State Revenue, 660 N.E.2d 310, 316 (Ind.1995) (citing Helton v. State, 624 N.E.2d 499, 506 (Ind.Ct.App.1993)). Also, penal statutes are not to be read so narrowly as to exclude instances the statute fairly covers or in a manner that disregards legislative purposes and intent. Merritt v. State, 829 N.E.2d 472, 475 (Ind.2005).

The case of Jacobs v. State, 640 N.E.2d 61 (Ind.Ct.App.1994), trans. denied, is instructive. In that case the defendant was charged with Class C felony forgery for selling t-shirts displaying the federally registered trademarks of Guess, Nike, and Polo. Like the counterfeiting statute, Indiana’s forgery statute applies to the making or uttering of a “written instrument” as defined in Indiana Code section 35-43-5-1. The Court of Appeals reviewed the legislative history and purpose of the “written instrument” definition and concluded that in revising the statute in 1976 the General Assembly intended to broaden the definition of the term. See id. at 65. The result of this, the court concluded, was that the statute “encompass[ed] a wide range of prohibited conduct” including “the forgery of a registered trademark on a t-shirt.” Id. at 64-65.

At first blush it seems intuitive that “written instrument” must at least consist of a document of some kind. But we agree with the Jacobs court that the Legislature broadened the scope and definition of “written instrument” to include more than just documents, paper, and other instruments containing written matter. Instead the definition includes “other objects or symbols of value, right, privilege, or identification.” It seems clear enough to us that a handgun or rifle — just as an unsigned Monet painting, Frederick Remington sculpture, or Tiffany vase — could be subject to counterfeiting. To require actual writing or markings on a replica in order to bring it within the reach of the counterfeiting statute would defeat the purpose of the statute and eliminate a very wide range of items. We are not convinced the Legislature intended such a result.

We conclude that Defendants’ airsoft gun is a written instrument within the meaning of the statute and therefore reverse the trial court’s dismissal of the counterfeiting charges.

C. Do the Facts Alleged Constitute the Offense of Theft?

The Informations charging the Defendants with theft allege in relevant part:

Sometime from June 2009 to August 2009, in Huntington County, Indiana, Yu-Ting Lin a/k/a Lin Yu Ting knowingly or intentionally exerted unauthorized control over property belonging to Heckler & Koch, Inc., with the intent to deprive the owner of any part of its value or use, namely: trademarks and/or markings or symbols of identification.

Appellant Lin’s App. at A-018-020; see also Appellant Yao’s App. 62-64. The trial court denied the Defendants’ motions to dismiss the theft charges and the related corrupt business influence charges. The Defendants contend this was error because the facts alleged do not constitute the offense of theft. See I.C. § 35-34-l-4(a)(5).

Indiana Code section 35-43^4-2 provides in relevant part: “A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.” In advancing their arguments the Defendants make two claims. First, “trademarks and/or markings or symbols” as alleged in the State’s charging informations cannot constitute “property” under the theft statute. Second, “it is not theoretically possible ... to ‘exert unauthorized control’ over the trademarks and/or markings or symbols.” Appellant Lin’s App. at A-040; See Appellant Yao’s App. at 40.

1. Trademarks, markings, and symbols as property

Indiana Code section 35-41-1-23(a) (now I.C. § 35-31.5-2-253(a)) defines “property” as “anything of value.” The statute specifies that property includes, among other things, “a gain or advantage,” “real property, personal property, money, labor, and services,” “intangibles,” and “trade secrets.” I.C. § 35-41-l-23(a)(l), (2), (3), (9) (now I.C. § 35-31.5-2-253(a)(l), (2), (3), (9)). The definition of property as “anything of value” including “intangibles” is extremely broad and we see no reason it could not encompass the charged “trademarks and/or markings or symbols of identification.” See State v. McGraw, 480 N.E.2d 552, 554 (Ind.1985) (recognizing that the information derived from use of a computer constitutes property under the theft statute). Cf. Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 818 (Ind.2009) (Boehm, J. concurring in result) (agreeing with the majority’s implication “that a website design is personal property and is subject to a conversion claim, whether or not it is ‘goods’ subject to the Uniform Commercial Code”). We hasten to add that we do not declare that the “trademarks and/or markings or symbols of identification” at issue in this case actually have any value. Rather this is an evidentiary matter that is subject to proof at trial. At this stage of the proceedings we reach the narrow conclusion that the charged items may constitute property depending on the evidence.

2. Exertion of control over trademarks, markings, and symbols

As discussed earlier, Indiana Code tells us what it means to “exert control” for purposes of the theft statute. “ ‘[E]x-ert control over property’ means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.” I.C. § 35-43-4-l(a). The Defendants contend that it is “not theoretically possible” to “ ‘exert unauthorized control’ over a third party’s trademark right.” Appellant Lin’s Br. at 9. And this is so, according to the Defendants, because a trademark is merely the right to use an “identifier” to designate origin or aid in the sale of goods. Appellant Lin’s Br. at 9. Thus, the argument continues, the property over which the Defendants are alleged to have exerted unauthorized control is H & K’s right to sell products with a distinctive appearance. This, according to Defendants, may constitute trademark infringement but it cannot amount to the exertion of unauthorized control. The Defendants also cite an unpublished federal district court opinion that concluded: “[Njeither the Defendants’ copying of the distinct look of the [H & K] weapon nor the use of [H & K’s registered trademark] itself constitutes obtaining, taking, carrying, driving, leading away, concealing, abandoning, selling, conveying, encumbering, or possessing [H & K’s] intangible property.” Heckler & Koch, Inc. v. German Sport Guns GmbH, No. 09-cv-00039-WTL-JMS, 2009 WL 3200587, at *1 (S.D.Ind. Sept. 25, 2009). The court’s rationale is not readily apparent. In any event we disagree with the court’s conclusion. First, we are examining a statute which clearly prohibits a very wide range of activity. See Nash v. State, 433 N.E.2d 807, 813 (Ind.Ct.App.1982) (“It is well established in Indiana that subsection (a) of the theft statute, which makes it an offense to knowingly exert unauthorized control over property of another, comprehends a broad field of conduct....”). Second, we see no reason a trademark right cannot at least be “encumbered.” See, e.g., Black’s Law Dictionary 607 (9th ed. 2009) (defining “encumbrance” as “[a] claim or liability that is attached to property or some other right and that may lessen its value ... ”); see also TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 20, 33 Int’l Legal Materials 90 (“The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.”).

At the heart of and woven throughout the Defendants’ argument is the insistence that this case should be resolved under civil trademark infringement law, not criminal law. Lin argues for example, “[b]y taking sides in this commercial dispute and trying to force a resolution in H [&] K’s favor under the coercive power of the criminal law, the State has subverted the process of rights-determination that trademark law is intended to embody.” Appellant Lin’s Br. at 8. But whether a theft prosecution is “the ‘wrong tool for the job’ when it comes to defining intellectual property interests,” Appellant Yao’s Br. at 15 (quoting 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 25:9:50 (4th ed. 2008)), is not our decision to make. Rather, our job is to apply the Indiana criminal statutes as drafted by the Legislature. And under those statutes, the questions in this case include whether the Defendants, did beyond a reasonable doubt: 1) knowingly or intentionally; 2) obtain, take, carry, sell, convey, encumber, or possess property, or secure, transfer, or extend a right to property; 3) which property belonged to H & K; 4) without H & K’s consent; 5) with intent to deprive H & K of any part of the property’s value or use? And these are all questions of fact that cannot be determined on a motion to dismiss. Cf. McGraw, 480 N.E.2d at 553 (recognizing in prosecuting a person for unauthorized use of a computer as theft that dismissal may have been improper but judgment on the evidence was properly granted because the evidence did not support all the elements required by the theft statute). In this case, the trial court did not abuse its discretion in denying Defendants’ motions to dismiss the theft and corrupt business influence charges.

Conclusion

We affirm the trial court’s denial of the motions to dismiss the charging informa-tions on jurisdictional grounds, and its denial of Defendants’ motions to dismiss the charging informations alleging theft and corrupt business influence. We reverse the trial court’s grant of the Defendants’ motion to dismiss the charging informa-tions alleging counterfeiting.

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

      . "Airsoft” guns are described as toy replicas that look like real guns, but shoot lightweight plastic pellets instead of metal BBs or live ammunition. See, e.g., State v. Jasso, 248 Or.App. 347, 273 P.3d 309, 309 n. 1 (2012); People v. Glenn, 295 Mich.App. 529, 814 N.W.2d 686, 688 n. 1 (2012).

      . As applicable to the Defendants in this case the statute provides in relevant part:
      A person ... who is employed by or associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity; commits corrupt business influence, a Class C felony.
      Ind.Code § 35-45-6-2(3). As charged here "Racketeering activity” means “to commit” or "to attempt to commit” theft. See I.C. § 35-45-6-l(e)(14).

      . Although he did not raise it before the trial court, Yao adopted this argument on appeal. As did the Court of Appeals, we decline to find waiver. We summarily affirm this aspect of the court’s opinion.

      . Pursuant to Senate Enrolled Act 26 enacted by the Indiana General Assembly in 2012, several Indiana Code criminal law definitions were moved into a new section of the Code. For convenience and clarity, we provide both citations.

      . The record is not entirely clear as to whether the airsoft guns "contain[ed] written matter.” At the hearing on the Defendants' motions to dismiss, the State argued that no such marking or inscription was necessary because the guns themselves, in their design, constituted "written instruments” under the counterfeiting statute. See Lin’s Tr. of Hrg. on Mot. to Dismiss at 31-32. Alternatively, the State argued that the guns did contain such a marking and therefore the guns were “written instruments” if such marking was necessary to make them so. See Lin’s Tr. of Hrg. on Mot. to Dismiss at 31-32.

      . The statute in Jacobs was essentially the same as it is today. Written instrument was defined as “a paper, document, or other instrument containing written matter and includes money, coins, tokens, stamps, seals, credit cards, badges, trademarks, medals, or other objects or symbols of value, right, privilege, or identification.” I.C. § 35-43-5-1 (1994 supp.).

      . Although the Jacobs holding applied to the printing on a t-shirt, the Jacobs court did not foreclose the possibility that the physical object (the t-shirt itself) could constitute a written instrument.

      . More specifically, TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 20, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 33 I.L.M. 90.


author: David, Justice.

text:
    J.M., Appellant (Petitioner below), v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and T.C., Appellees (Respondents below).
    No. 93S02-1203-EX-138.
    Supreme Court of Indiana.
    Oct. 17, 2012.

      Ronald E. Weldy, Indianapolis, IN, Attorney for Appellant.
    Review Board, Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
    Douglas J. Masson, Lafayette, IN, Attorney for Appellee T.C.
   David, Justice.

This case involves an employee who was fired from his job for his failure to follow the instructions of his supervisor regarding missed work time. The employee wanted to take a college class during normal work hours and make up those hours later in the day or otherwise at his discretion. His employer allowed him to take the class, but informed him that he would have to use his vacation, compensation, or unpaid time rather than take shorter lunches, come in early, or stay late. J.M. subsequently enrolled in the class, but did not follow his employer’s instructions and failed to properly account for his time off. Consequently, he was fired and denied unemployment benefits. An Administrative Law Judge overturned that decision and granted J.M. unemployment benefits. The Review Board upheld the original denial of unemployment benefits. We affirm the Board’s determination that the termination was for just cause.

Facts and Procedural History

J.M. was an employee of the Surveyor’s Office of T.C. from July 6, 2009, to September 1, 2010. Around May 13, 2010, J.M. asked to take a class during work hours and make up the missed time by working during his lunch break or coming in before the normal workday began. Normal work hours for J.M. were from 8:00 a.m. to 4:30 p.m. with a floating one-hour unpaid lunch. The class J.M. signed up for was offered from 7:30 a.m. to 9:30 a.m. on Mondays and Wednesdays. J.M. believed he could be at work by 10:00 a.m. on those days. A few days later, J.M.’s Supervisor, Z.B., emailed J.M. that office policy would allow time off for educational classes but that missed time could not be “made up.” Z.B. informed J.M. he would have to use vacation time instead. Z.B. also stated, “I understand if this isn’t the answer you were hoping or looking for but that has been [the surveyor’s] policy on this issue historically.” Z.B. explained the issue had come up before and the county surveyor was opposed to employees making up time due to the difficulty in supervision and tracking the made up time. Essentially, the employer’s position was that J.M. could take the time off for his classes, but he would have to use his accrued compensation, personal, or vacation time. The employer would not allow J.M. to work through a lunch break or outside of the normal hours to make up his missed time.

T.C. maintains an employee handbook. According to rule 33 of the handbook, an employee can face discipline for “[disobeying a reasonable order of supervisor to perform assigned work or to comply with written or verbal instructions.”

J.M. began class on August 23, 2010. J.M. went to the classes and subsequently violated his supervisor’s instruction when he admitted that for the four hours missed that week, he reported 2.25 hours as vacation or compensation time, did not take a lunch on one of the days, and came in 15 minutes early three days that week. This conduct violated the directive given to him by his supervisor and, thus, violated the handbook. As a result, on September 1, 2010, J.M.’s employment was terminated.

At the hearing, J.M. gave conflicting testimony. J.M. initially stated he had forgotten the directive to use vacation, personal, or compensation time to cover the missed time. However, J.M. also stated he did not report all the time missed as vacation, compensation, or personal time, because he believed he would need the time later in the semester.

On September 24, 2010, a claims deputy of the Indiana Department of Workforce Development determined that J.M. was discharged for just cause and was ineligible for unemployment benefits. J.M. filed an appeal from the determination. An Administrative Law Judge (ALJ) reversed the decision, finding that J.M. was eligible for unemployment benefits. The ALJ concluded that the discipline was too severe for only a small amount of misreported time. T.C. filed an appeal with the Review Board challenging the ALJ’s decision. The Review Board reversed the ALJ’s decision and found that J.M. was discharged for just cause and ineligible for unemployment benefits. Specifically, the Review Board noted that J.M. had violated the direction from his supervisor as well as the policy found in the employee handbook. The Court of Appeals reversed the Review Board. We granted transfer.

Discussion

The Indiana Unemployment Compensation Act (UCA) provides that any decision of the Review Board shall be conclusive and binding as to all questions of fact. Ind.Code § 22-4-17-12(a) (2007). When the decision of the Review Board is challenged, an appellate court makes a two-part inquiry into (1) “the sufficiency of the facts found to sustain the decision” and (2)“the sufficiency of the evidence to sustain the findings of fact.” Id. § 22-4-17-12(f). This Court provided an extensive analysis of the standard of review for these cases in McClain v. Review Board of Indiana Department of Workforce Development, 693 N.E.2d 1314 (Ind.1998). Simply stated, an appellate court reviews “(1) determinations of specific or ‘basic’ underlying facts; (2) conclusions or inferences from those facts, sometimes called ‘ultimate facts,’ and (3) conclusions of law.” Id. at 1317.

The Review Board’s “findings of basic facts are subject to a ‘substantial evidence’ standard of review.” Id. We neither reweigh evidence nor judge the credibility of witnesses; rather, we consider only the evidence most favorable to the Review Board’s findings. Id. We will reverse the decision only if there is no substantial evidence to support the Review Board’s findings. Id.

An individual is disqualified for unemployment benefits if he is discharged for “just cause.” Ind.Code § 22-4-15-l(a) (Supp.2012). “Discharge for just cause” includes but is not limited to

(1) separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge;
(2) knowing violation of a reasonable and uniformly enforced rule of an employer, including a rule regarding attendance;
(3) if an employer does not have a rule regarding attendance, an individual’s unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness;
(4) damaging the employer’s property through willful negligence;
(5) refusing to obey instructions;
(6) reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer’s premises during working hours;
(7) conduct endangering safety of self or coworkers;
(8) incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction; or
(9) any breach of duty in connection with work which is reasonably owed an employer by an employee.

Ind.Code § 22-4-15-l(d) (emphasis added). The Review Board found that J.M. was discharged for just cause based on subsection (d)(2).

In overturning the Review Board’s decision, the Court of Appeals relied on the Review Board’s holding that J.M. violated Indiana Code section 22-4-15-l(d)(2) and held that J.M. did not in fact violate subsection (d)(2). However, the Court of Appeals did not consider subsection (d)(5) because it was not named in the conclusions of law by the Review Board. Indiana Code section 22-4-15-l(d)(5) mirrors rule 33 of the employee handbook, which the Review Board discussed. As mentioned previously, rule 33 provides for dismissal for “disobeying a reasonable order of supervisor to perform assigned work or to comply with written or verbal instructions.”

The Court of Appeals found it could not affirm a just cause finding on different grounds than the one cited by the Review Board. The Court of Appeals relied on the proposition that “[wjhile the Board’s task is to use any applicable definition in the statute to determine whether an employee was discharged for just cause, our review is limited to determining whether the Board made sufficient findings to support the definition it selected to apply.” Ryan v. Review Bd., 560 N.E.2d 112, 114 (Ind.Ct.App.1990) (citing Trigg v. Review Bd., 445 N.E.2d 1010, 1013 (Ind.Ct.App.1983)). If we were confined to considering only the unwritten policy of the surveyor’s office, the Court of Appeals would have been correct. However, we are not so confined. We agree with Judge Garrard’s concurrence in Trigg when he stated,

It may appear at first blush that the majority opinion has merely taken the view that where the review board has premised its decision upon one of the grounds of discharge for good cause enumerated in IC 22-4-15-1, we may not look to a different statutory ground even though the review board’s findings clearly establish its applicability. If that were the case I would feel constrained to dissent. It is not.

Trigg, 445 N.E.2d at 1014-15 (Garrard, J., concurring). Furthermore, Ryan is distinguishable because the employer in Ryan argued to sustain the dismissal on the theory that the employee’s conduct amounted to a breach of a duty that she owed her employer, a factor enunciated in Indiana Code section 22 — 4—15—1(d)(8). Ryan, 560 N.E.2d at 115. In Ryan, the employer did not appear at the hearing and did not provide the referee any evidence to sustain the employer’s burden of establishing a just-cause discharge. Id. That is in marked contrast to the present case, where both J.M. and Z.B. appeared at the hearing and presented their evidence, which included J.M. not obeying the instructions given to him regarding taking time off of work.

The findings of a Review Board need to be only specific enough to permit us to intelligently review the Review Board’s decision. Fort Wayne Comm. Schools v. Review Bd. Of Indiana Employment Sec. Div., 428 N.E.2d 1379, 1382 (Ind.Ct.App.1981). Agency findings are specific enough when they are given with “sufficient particularity and specificity” such that the reviewing court can “adequately and competently review” the agency’s decision. Capital Improvement Bd. of Managers of Marion County v. Pub. Serv. Comm’n, 176 Ind.App. 240, 260, 375 N.E.2d 616, 631 (1978).

The Review Board correctly framed the issue as “whether the Employer met its burden of proof that it discharged the Claimant for just cause.”

In the findings of fact, the Review Board noted,

One such behavior that can warrant discipline is found in Rule 38: “Disobeying a reasonable order of supervisor to perform assigned work or to comply with written or verbal instructions.” Employer’s Ex. 4, p. 2. The Claimant acknowledged receiving the handbook and his responsibility to read and comply with the handbook’s terms. Employer’s Ex. 3. The Project Manager testified that the Employer uniformly enforces its rules. The Claimant disagreed, but he was unable to provide any evidence of non-uniform rule enforcement. The Review Board finds that the surveyor’s office uniformly enforces the Employer’s Work Rules.

The findings of fact also state that the project manager told J.M. that “although he was approved to miss work to attend the class, the current surveyor’s policy was to not allow employees to try to ‘make up’ hours they missed.” However, the conclusions of law solely focus on subsection (d)(2) that J.M. knowingly violated a reasonably and uniformly enforced rule of an employer and do not focus on subsection (d)(5), that J.M. disobeyed his supervisor’s instructions.

We conclude the findings of basic fact are within the scope of our substantial-evidence standard of review. The substantial-evidence test is met when the findings of the Review Board are conclusive and binding unless they meet certain exceptions, including but not limited to

(1) The evidence on which the Review Board based its findings was devoid of probative value;
(2) The quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding does not rest upon a rational basis;
(3) The result of the hearing before the Review Board was substantially influenced by improper considerations;
(4) There was not substantial evidence supporting the findings of the Review Board;
(5) The order of the Review Board, its judgment or finding, is fraudulent, unreasonable or arbitrary.

McClain, 693 N.E.2d at 1317 n. 2 (citing General Motors Corp. v. Review Bd. of the Ind. Dep’t of Workforce Dev., 671 N.E.2d 493, 496 (Ind.Ct.App.1996)). The basic facts here are not in dispute. None of the enumerated exceptions are met.

We then turn to what we refer to as ultimate facts, or “mixed questions,” or alternatively described as “questions of law.” We review to ensure the Board’s inference is “reasonable.” Id. at 1317-18. The ultimate order of the Review Board, that “[J.M.] is not entitled to unemployment benefits,” was reasonable. At issue is J.M.’s violation of his boss’s orders. J.M. was told he could not “make up” time, and instead must use vacation, personal, or compensation time. It is uncontroverted that J.M. disobeyed this instruction.

J.M. made two inconsistent statements defending his actions at his ALJ review hearing. He first said he forgot the project manager’s directive to use vacation time to cover time missed. Second, he stated he did not report all the time missed as vacation because he believed he would need the time to use later in the semester. It is uncontroverted that J.M. did not obey the instructions previously given to him. He did not report his missed work as vacation, compensation, or personal time.

We may rely on a different statutory ground of a just cause finding than the one relied upon by the Review Board when, as here, the Review Board’s findings of fact clearly establish the alternate subsection’s applicability. As such, we affirm the Review Board under Indiana Code section 22-4 — 15—1(d)(5), that J.M. refused to obey instructions, and was thus fired for just cause.

This analysis comports with the deferential standard given to the trial courts of this state: “on appellate review the trial court’s judgment will be affirmed if sustainable on any theory or basis found in the record.” Havert v. Caldwell, 452 N.E.2d 154, 157 (Ind.1988). “Moreover it is well established that a decision of the trial court will be sustained if a valid ground exists to support it, whether or not the trial court considered those grounds.” Bruce v. State, 268 Ind. 180, 200, 375 N.E.2d 1042, 1054 (1978). To state it yet another way, we “may affirm a trial court’s judgment on any theory supported by the evidence.” Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind.1999).

Conclusion

J.M. refused to obey instructions that were given to him on how to fill out his time sheet to incorporate his missed time. When the facts of the case support more than one statutory ground for discharge, we are not confined to narrowly review the Review Board’s decision when the facts point to the Review Board’s ultimately correct conclusion. Here, the findings of fact by the Review Board clearly showed J.M. violated his supervisor’s instructions and the employee handbook, which is also a just-cause discharge under Indiana Code section 22 — 4—15—1(d)(5). Accordingly, we affirm the Review Board’s denial of unemployment benefits.

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

      . Although in this case we kept the claimant and employing unit confidential, our practice going forward will be to keep these parties confidential only if they make an affirmative request as outlined in Recker v. Review Board, 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). As discussed in Recker, an affirmative request must be made for confidentiality.