author: FRIEDLANDER, Judge.

text:
    R.W., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1112-JV-1187.
    Court of Appeals of Indiana.
    Sept. 25, 2012.

      Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

R.W. appeals the true finding that he committed an act that would constitute the offense of Attempted Burglary, a class B felony, if committed by an adult. On appeal, R.W. presents the following issue for review: Did the juvenile court err in admitting the taped statement of a custodial interrogation of R.W.?

We reverse and remand with instructions.

The facts favorable to the true finding are that on July 20, 2011, Nikole White heard a window break in the living room of her home. When she entered that room, she saw R.W. reaching through a broken window attempting to lift that window, presumably so he could enter the house. R.W. was a friend of White’s son and had stayed at their house “a lot.” Transcript at 5. White asked R.W., “Are you gonna break in my house now?” Id. at 6. R.W. fled from the scene. After R.W. left, White called the police and Indianapolis Metropolitan Police Department (IMPD) Officer Christopher Dickerson responded. He interviewed White, who related the details of the incident and identified R.W. as the intruder. She also provided the officer with R.W.’s address.

Officer Dickerson contacted IMPD Officer Seth Ferrell and asked him to locate R.W. Officer Ferrell traveled to R.W.’s residence and knocked on the door. R.W. answered the door out of breath and sweating. The officer asked R.W. if he knew why the officer was there and R.W. responded, “Yes.” Id. at 26. Officer Ferrell contacted R.W.’s mother and then transported R.W. to a roll call location for an interview with police. R.W.’s mother soon joined them. IMPD Detective Brice Adams talked to R.W. and his mother together. He read a waiver-of-rights form (waiver form) to them and separately asked each whether they understood the rights. They both indicated that they did. He then provided them with a copy of the waiver form and left the room for several minutes, allowing them to converse privately. When the officer returned, R.W. and his mother each signed the waiver form.

Because it is relevant to the issue under review, we will describe the waiver form with some particularity. The top half of the form constitutes an acknowledgement of the advisement of rights and the bottom half of the form constitutes the actual waiver of rights. On the top half, there is a line for the juvenile’s signature and below that a line for a parent’s signature. The bottom half of the form, pertaining to the actual waiver of rights, also has separate lines for the juvenile’s and parent’s signatures, and also has a line for a witness’s signature. It appears that R.W. and his mother were either confused or misinformed about how the form should be completed. With respect to the top half, on the line marked “SIGNATURE”, presumably referring to the juvenile’s signature, R.W.’s mother printed her name. The Exhibits at 6. Below that, on the line marked “PARENT’S SIGNATURE”, R.W.’s mother signed her name. Id. The lower portion of the form stated, in relevant part: “I, with the consent of my parents, expressly waive the above rights and will answer any questions asked of me by the officer.” Id. In the line denominated, “SIGNATURE”, R.W. printed his name. Id. Below that, in the line denominated, “PARENT’S SIGNATURE”, R.W. signed his name. Id.

In the ensuing recorded interview, R.W. admitted that he attempted to break into White’s house in order to steal X-box games. The State filed a delinquency petition in conjunction with this incident alleging that R.W. had committed acts that would constitute the offenses of burglary as a class B felony and criminal mischief as a class B misdemeanor if committed by an adult. Following a hearing, the juvenile court entered a true finding that R.W. had committed an act that would constitute the offense of attempted burglary if committed by an adult.

At the fact-finding hearing, the State sought to introduce R.W.’s statements made during the taped interview, including the confession described above. R.W. objected on grounds that he “was not asked individually [ ] as to each individual right if he actually understood the consequences of giving those up nor was his mother [] asked.” Id. at 34. On appeal, R.W. challenges the admissibility of the confession, but on a different ground than he asserted at the hearing. On appeal, he claims the confession is inadmissible because the lower portion of the waiver form does not contain R.W.’s mother’s signature, and, in view of the fact that there is no other evidence reflecting R.W.’s mother’s waiver of R.W.’s rights, the evidence is insufficient to prove a knowing waiver on his mother’s part.

Ind.Code Ann. § 31-32-5-1 (West, Westlaw through legislation effective May 31, 2012) codifies the protections afforded to juveniles with respect to the waiver of constitutional rights. For unemancipated minors such as R.W., it provides that the rights can be waived by a parent if “(A) that person knowingly and voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that person and the child; and (D) the child knowingly and voluntarily joins with the waiver[.]” I.C. § 31-32-5-1(2). The State bears the burden of proving beyond a reasonable doubt that the juvenile received all of the protections of this provision “and that both the juvenile and his or her parent knowingly, intelligently, and voluntarily waived the juvenile’s rights[.]” DM. v. State, 949 N.E.2d 327, 334 (Ind.2011).

R.W. acknowledges that he objected to the admission of the confession on different grounds at trial than he does upon appeal. It is well-settled that a defendant may not raise one ground for objection at trial and argue a different ground on appeal. Howard v. State, 818 N.E.2d 469 (Ind.Ct.App.2004), trans. denied. The failure to raise an issue at trial waives the issue on appeal. Id. Therefore, because R.W. did not object to the admission of the recorded statement on the grounds he now asserts on appeal, he has waived this issue for appellate review. See id.

R.W. attempts to circumvent waiver by arguing that the admission of the confession constituted fundamental error. See Wilson v. State, 931 N.E.2d 914 (Ind.Ct.App.2010), trans. denied. “The ‘fundamental error’ exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). In other words, fundamental error is defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered impossible. Mathews v. State, 849 N.E.2d 578.

In the context of juvenile delinquency proceedings, our Supreme Court has stated that “[wjritten waiver forms are not required to satisfy the constitutional demands of Miranda or the statutory requirements of [I.C. § ] 31-32-5-1, but they are particularly strong evidence.” DM. v. State, 949 N.E.2d at 343. Moreover, when used, “they should be clear and unequivocal.” Id. In the present case, only Mother signed the top half of the waiver form pertaining to the acknowledgment of the advisement of R.W.’s rights, but only R.W. signed the bottom half, which is the portion of the waiver form that conveys the actual waiver of the rights. Based upon the way the form was completed, one may speculate as to how it came to pass that only one signed the top half and only the other signed the bottom half. Such speculation, however, cannot cure the fatal flaw in the document, i.e., that R.W.’s mother’s signature does not appear on the line denominated “PARENT’S SIGNATURE”, signifying that Mother acceded to the waiver of R.W.’s constitutional rights. Thus, we must look elsewhere to find evidence that Mother consented to the waiver. Mother did not testify at the denial hearing. Detective Brice Adams, the IMPD officer who advised Mother and R.W. of his rights and presented them with the waiver form, and who conducted R.W.’s questioning, offered no testimony on the subject of Mother’s consent to waiver. The videotape itself is similarly unhelpful. In short, we find no evidence indicating that Mother consented to the waiver of R.W.’s rights. Absent a valid waiver of rights, it was error to admit R.W.’s confession.

Having determined that the juvenile court erred in admitting the confession, we must now determine whether that error was fundamental. We note that statements obtained in violation of Miranda and erroneously admitted at trial or, in this case, a denial hearing, are subject to harmless error analysis. See Morales v. State, 749 N.E.2d 1260 (Ind.Ct.App.2001). “The improper admission of evidence is harmless error when the conviction [or, in a juvenile case, true finding] is supported by substantial independent evidence of guilt which satisfies the reviewing court that there is no substantial likelihood the challenged evidence contributed to the conviction [or true finding].” Id. at 1267.

The court entered a true finding that R.W. committed acts that would constitute the offense of attempted burglary if committed by an adult. “A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.” I.C. § 35-41-5-1. “Burglary is the breaking and entering of the building or structure of another person with the intent to commit a specific felony therein.” Baker v. State, 968 N.E.2d 227, 229 (Ind.2012). White testified that when she heard a living room window break in her house, she immediately went into the living room, where she saw R.W., whom she knew well, standing at the broken window and reaching through it “trying to lift it up.” Transcript at 7. This evidence was sufficient to establish the elements of attempted breaking and entry. The evidence pertaining to the element of intent to commit a felony once inside the house, however, is problematic.

As our Supreme Court has observed,

“[b]urglars rarely announce their intentions at the moment of entry,” [Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind.1987) ], and indeed many times there is no one around to hear them even if they were to do so. Hence, a burglar’s intent to commit a specific felony at the time of the breaking and entering “may be inferred from the circumstances.” Id.

Baker v. State, 968 N.E.2d at 229-30. In the present case, R.W.’s erroneously admitted confession constituted the only evidence presented at the hearing concerning his intent upon entering White’s home, i.e., that he intended to take X-box games. Except for the confession, the evidence does not permit any inference whatsoever with respect to what R.W. intended to do after entering White’s home. The mere fact that R.W. broke a window and attempted to enter the home is not enough. See, e.g., Baker v. State, 968 N.E.2d at 230 (“[p]ermitting the felonious intent element to be inferred from the inference of breaking and entering would render the intent element meaningless and read it out of the statute”). This compels the conclusion that the error in admitting the confession contributed to the true finding with respect to the attempted burglary allegation and therefore clearly is not harmless. Accordingly, we conclude that the trial court committed fundamental error in admitting R.W.’s videotaped confession and the true finding must be reversed.

This, however, does not end the matter. “Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge.” Id. Freshwater v. State, 853 N.E.2d 941, 942 (Ind.2006). In the present proceeding, in addition to the allegation of burglary, R.W. was also alleged to have committed acts that would constitute the crime of criminal mischief as a class B misdemeanor if committed by an adult. Following the fact-finding hearing, the court took the matter under advisement. When the court reconvened to rule upon the delinquency petition, it made the following comments:

[s]um it up on whether or not the evidence on the record met the statutory definition of the act as charged, specifically Count 1 Burglary after the contemplation, I have concluded ... there is sufficient evidence to support an attempt, which in an included offense. There will be a TRUE FINDING as to Count 1, the included offense of Attempted Burglary, a Class B Felony if committed by an adult. Count 2, Criminal Mischief, I think the evidence was supported but (inaudible) Count 1, um also supports Count 2; so noting there is evidence to support Count 2[,] under merger, I find a NOT TRUE finding as to Count 2.

Transcript at 56-57. The order relating to the court’s determination concerning the criminal mischief allegation stated: “Count 2-Criminal Mischief (I.C.35-43-1-2MB), a Charge class B Misdemeanor; NOT TRUE, by reason of merger into count one.” Appellant’s Appendix at 49. The court’s comments clearly reflect that it found the criminal-mischief allegation to be true but, presumably for double-jeopardy purposes, the juvenile court elected not to enter a true finding on that count, and instead “merged” the criminal mischief count with the burglary count.

In Carter v. State, 750 N.E.2d 778 (Ind.2001), the defendant was found guilty of three alcohol-related driving offenses: Count 1, operating a vehicle with at least ten-hundredths percent (0.10%) of alcohol by weight in grams in one hundred (100) milliliters of the person’s blood, a class C misdemeanor; Count 2, operating a vehicle while intoxicated, a class A misdemeanor; and Count 3, operating a vehicle while intoxicated with a previous conviction of operating while intoxicated within the five immediately preceding years, a class D felony. The verdicts on Counts 1 and 2 stemmed from a jury trial. After those verdicts were announced, the defendant waived his right to jury trial and Count 3 was tried by the bench. The court found the defendant guilty of Count 3. For double jeopardy reasons, the trial court entered judgment of conviction only upon Count 3.

Upon direct appeal, this court remanded with instructions to vacate what it referred to as “convictions” on Counts 1 and 2. Carter v. State, 734 N.E.2d 600, 605 (Ind.Ct.App.2000) vacated, 750 N.E.2d 778. Our Supreme Court reversed the order to vacate the guilty verdicts on Counts 1 and 2, deeming it “unnecessary” to do so. Carter v. State, 750 N.E.2d at 778. Among other things, the Court noted that it may do more harm than good to vacate a jury verdict not reduced to judgment, especially if the greater offense is reversed “for reasons specific to the incremental elements between the greater and a lesser included offense.” Id. at n. 9. This, of course, refers to the prospect of reinstating the lesser offense upon reversal of the greater offense. In Carter, the Court specifically mentioned entering judgment upon a guilty verdict not reduced to judgment by the court, but in so doing indicated that even a vacated guilty verdict could be reinstated, citing Taflinger v. State, 698 N.E.2d 325 (Ind.Ct.App.1998).

In Taflinger, the defendant was found guilty of attempted murder and neglect of a dependent. Citing double jeopardy concerns, the trial court entered judgment of conviction only on the attempted murder count. The State then moved to dismiss the neglect conviction rather than merge it with the attempted murder conviction. The trial court granted that motion. Later, this court reversed the attempted murder conviction on grounds of instructional error. Upon remand, there was no attempt to retry the defendant for attempted murder. Rather, the State filed an information charging the defendant with neglect of a dependent. Thereafter, the State filed a motion to reinstate the previously dismissed neglect conviction, which the trial court granted. The defendant appealed, contending “the trial court violated the prohibition against double jeopardy by imposing sentence on a verdict that had been previously dismissed.” Id. at 326. This court identified the primary purpose of the Double Jeopardy Clause as addressing the threat of multiple prosecutions, i.e., to prevent multiple trials for the same allegedly criminal conduct. The court cited the following rationale from United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975):

The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Taflinger v. State, 698 N.E.2d at 327-28 (quoting State v. Monticello Developers, Inc., 527 N.E.2d 1111, 1112 (Ind.1988)). This concern would not be implicated by the reinstatement of a verdict or conviction that was vacated because it was a lesser included offense and judgment of conviction was entered on the greater offense. Rather, the defendant was merely resen-tenced on a jury verdict that had been previously dismissed. The court explained:

By reinstating the jury’s verdict of guilty and sentencing [the defendant] accordingly, the trial court was not affording the State another opportunity to prove its case. The State had already convicted [the defendant] in a jury trial of neglect of a dependent child causing serious bodily injury. He was merely resentenced on a jury verdict that had been previously dismissed. Because [the defendant] was not threatened with nor subject to a reprosecution there was no double jeopardy bar.

Id. at 328.

We understand that juvenile proceedings are civil in nature and that an act of juvenile delinquency is not a crime. See J.V. v. State, 766 N.E.2d 412 (Ind.Ct.App.2002). Nevertheless, generally speaking, we see no reason to regard a true finding as fundamentally different from a guilty verdict for purposes of the principles discussed and summarized above in Carter and Taflinger.

In the present case, the juvenile court entered a “not true” finding with respect to the criminal mischief allegation under Count 2, but not upon the basis that it found the evidence supporting that allegation to be lacking in some regard. In fact, we think it mischaracterizes the juvenile court’s finding on this count to focus simply upon the court’s use of the phrase “not true” when ruling on that count. The court explicitly found the allegation of criminal mischief to be true in that the evidence established all of the elements thereof, but it explicitly “merged” that count with the burglary allegation and entered a true finding only upon the latter. Therefore, preferring substance over form, we interpret the juvenile court’s comments and order as reflecting that the allegation of delinquency contained in Count 2 was established, but merged. We have vacated the true finding with respect to burglary upon our conclusion that the only element differentiating the two, i.e., the intent to commit a felony, was not supported by sufficient admissible evidence. As indicated, there was sufficient evidence to establish the remaining elements of burglary, which also constitute every element of the offense of criminal mischief. See Freshwater v. State, 853 N.E.2d 941. Therefore, consistent with the rationale espoused in Carter and Taflinger, as discussed above, we remand with instructions to reinstate the true finding on Count 2.

In summary, we conclude that the juvenile court committed fundamental error in admitting R.W.’s videotaped confession, which constituted the only evidence of the element of intent to commit a felony with respect to the allegation of burglary under Count 1. Therefore, the true finding under Count 1 must be reversed. We affirm the juvenile court’s finding that the State’s evidence established the allegation in Count 2 that R.W. committed acts that would constitute the offense of criminal mischief. Further, because we reversed the true finding on Count 1, with which the finding in Count 2 was “merged”, we remand with instructions to enter a true finding with respect to the merged Count 2.

Judgment reversed and remanded with instructions.

MAY, J., and BARNES, J., concur.

      . Ind.Code Ann. § 35-41-5-1 (West, Westlaw through legislation effective May 31, 2012) (attempt); Ind.Code Ann. § 35-43-2-1 (West, Westlaw through legislation effective May 31, 2012) (burglary).

      . In fact, the record in that case reflected that these were guilty verdicts rendered by the jury, but it appears judgment of conviction was not entered upon those verdicts.


source: Caselaw Access Project

author: BARTEAU, Senior Judge.

license: Public Domain

text:
    Willie BIGSBEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A02-1201-CR-60.
    Court of Appeals of Indiana.
    Oct. 2, 2012.

      Donald E.C. Leicht, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Willie Bigsbee appeals his two convictions of dealing in cocaine, both as Class A felonies. Ind.Code § 35-48-4-1 (2006). We affirm.

ISSUES

Bigsbee raises two issues, which we restate as:

I. Whether the trial court erred in overruling his objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State’s peremptory strikes of two prospective jurors.
II. Whether the evidence is sufficient to sustain his convictions.

FACTS AND PROCEDURAL HISTORY

In 2010, William Estep worked for Ko-komo Police Detective Shane Melton as a confidential informant. On December 17, 2010, Estep contacted Bigsbee at Melton’s request, and the two men met later that day. Next, on December 28, 2010, and January 6, 2011, Estep arranged cocaine purchases with Bigsbee by phone, went to Bigsbee’s apartment, and exchanged cocaine for money while Melton monitored the phone calls and the transactions. The State arrested Bigsbee and charged him with three counts of dealing in cocaine as Class A felonies.

At trial, the parties questioned potential jurors. After the second round of questioning, the parties submitted peremptory strikes to the court. Bigsbee objected to the State’s striking of two African-American panelists, citing Batson. The court noted that the objection would be addressed later, excused the stricken potential jurors, and continued with voir dire. Bigsbee moved for a mistrial, which the court denied. After the jury had been selected and was released for the day, the court heard further argument on Bigsbee’s Batson objection and overruled it.

The jury could not reach a verdict on the first count of dealing in cocaine, which addressed Estep’s interaction with Bigsbee on December 17, 2010, but convicted Bigs-bee on counts two and three, which were related to Estep’s purchases of cocaine from Bigsbee on December 28, 2010, and January 6, 2011, respectively. The State dismissed count one, and the court sentenced Bigsbee on counts two and three. This appeal followed.

DISCUSSION AND DECISION

I. BATSON CHALLENGE

Bigsbee argues that the trial court erred by upholding the prosecutor’s peremptory strikes of two African-American potential jurors because the strikes violated the holdings in Batson and its progeny. The State responds that the prosecutor’s reasons for the peremptory strikes were race-neutral and did not contravene Batson.

The Supreme Court of the United States has determined that “[pjurposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Batson, 106 S.Ct. at 1717. Subsequent cases have established that the exclusion of even a sole prospective juror based on race, ethnicity, or gender violates the Fourteenth Amendment’s Equal Protection Clause. Addison v. State, 962 N.E.2d 1202, 1208 (Ind.2012).

Under Batson and its progeny, a trial court must engage in a three-step process in evaluating a claim that a peremptory challenge was based on race. Cartwright v. State, 962 N.E.2d 1217, 1220 (Ind.2012). First, a defendant must make a prima facie showing that a peremptory challenge was exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the panelist in question; and third, in light of the parties’ arguments, the court must determine whether the defendant has shown purposeful discrimination. Id. at 1220-21.

The prosecutor must present more than a mere denial of improper motive. Highler v. State, 854 N.E.2d 823, 827 (Ind.2006). The prosecution’s explanation is considered race-neutral if, on its face, it is based on something other than race. Cartwright, 962 N.E.2d at 1221. Although the ultimate burden of persuasion for a Batson challenge rests with the party opposing the strike, the third step is the duty of the trial judge. Id. Accordingly, a trial court’s decision concerning whether a peremptory challenge is discriminatory is given deference on appellate review and will be set aside only if found to be clearly erroneous. Id.

Here, Bigsbee challenged the State’s striking of an African-American man and an African-American woman from the venire panel. The trial court noted that the State had stricken two of four African-Americans from the panel and asked the State to justify its strikes. The State contended that the African-American man seemed to be confused and also seemed to be asleep at one point. The State also disapproved of the man’s statement that he did not think there was a drug problem in the area. Next, the State asserted that it struck the African-American woman from the panel because of her age (eighteen) and because she also did not agree that there was a drug problem in the area. Finally, the State noted that it had also stricken two Caucasian members of the panel due to their relatively young ages. These justifications are race-neutral and required the court to proceed to the third step and determine whether the defendant established purposeful discrimination. See Highler, 854 N.E.2d at 827-28 (determining that the prosecutor’s explanation that he struck an African-American potential juror from the panel because he was a pastor and more apt to be forgiving was race-neutral). In response to the prosecutor’s explanations, Bigsbee did not elaborate upon his claim of racial discrimination. Instead, he argued that age is also an impermissible basis for striking potential jurors.

In light of the State’s explanations and Bigsbee’s failure to support his claim of purposeful racial bias, we cannot conclude that the court clearly erred in overruling Bigsbee’s Batson objection. See Forrest v. State, 757 N.E.2d 1003, 1005 (Ind.2001) (determining that the trial court properly overruled Forrest’s objection to the State’s peremptory strike where the prosecutor stated that he struck the juror from the panel because she had received only forty-five minutes of rest that night and appeared during voir dire to favor the defense).

Next, Bigsbee argues that the constitutional protections set forth in Batson and its progeny should be extended to bar parties from using peremptory strikes to remove potential jurors on the basis of age. Our Supreme Court has explicitly held that “age is not an impermissible basis for using a peremptory challenge” and challenging a juror due to his or her young age does not violate the Equal Protection Clause of the United States Constitution. Price v. State, 725 N.E.2d 82, 87 (Ind.2000). Bigsbee acknowledges the holding in Price but argues that it should be reconsidered. We are not free to disregard our Supreme Court’s precedent and must reject his argument.

Bigsbee further claims that the State’s use of peremptory challenges to strike potential jurors on the basis of age violates article I, section 19 of the Indiana Constitution. However, Bigsbee did not argue that specific constitutional provision to the trial court, so we find his claim to be waived for appellate review. See Orta v. State, 940 N.E.2d 370, 377 (Ind.Ct.App.2011) (determining that Orta’s argument against a jury instruction was waived on appeal because it was not presented to the trial court), trans. denied.

In summary, we find no error in the trial court’s overruling of Bigsbee’s objection to the State’s peremptory strikes.

II. SUFFICIENCY OF THE EVIDENCE

Bigsbee argues that the evidence is insufficient to sustain his convictions because he contends that the State failed to prove that the controlled buys followed proper procedures. The State responds that sufficient evidence was presented to establish that Bigsbee sold cocaine to Estep on two occasions.

When an appellant challenges the sufficiency of the evidence supporting a conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind.2011). We affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. In order to convict Bigsbee as charged of two counts of dealing in cocaine as Class A felonies, the State was required to prove beyond a reasonable doubt that: (1) Bigsbee (2) knowingly or intentionally (3) delivered (4) cocaine or a narcotic drug (5) within 1000 feet of a family housing complex. Ind. Code § 35-48-4-1.

Here, the evidence presented at trial establishes that Estep met Bigsbee in mid-2010. Bigsbee gave Estep his telephone number and offered to sell cocaine to him. On December 28, 2010, Estep called Bigsbee while working as a confidential informant. As Melton listened in on the conversation, Estep and Bigsbee arranged a cocaine transaction. Bigsbee instructed Estep to come to his apartment for the deal. Before Estep went to Bigs-bee’s residence, Melton and another officer searched Estep’s person and car for contraband. The officers did not find any contraband. Next, Melton activated an audio/video surveillance device, which was disguised as a key fob, and gave it to Estep. Melton also gave Estep $100 for the purchase. After these preparations, Estep drove to Bigsbee’s residence, and Melton followed him.

Bigsbee leased an apartment from the Kokomo Housing Authority. The apartment was located in a family housing project. Estep parked outside Bigsbee’s apartment. Melton parked nearby, where he could see the front of the apartment. Estep went into Bigsbee’s residence and gave him $100. Another person arrived a few minutes later and gave cocaine to Bigsbee, who put it on a table for Estep to pick up. Estep left the apartment with the cocaine and met the officers at a prearranged location. He handed the cocaine to Melton. Next, Melton and another officer searched Estep and his car and found no additional contraband. Melton took the surveillance device from Estep and turned it off. Later, Melton downloaded data from the surveillance device and captured an image of Bigsbee in his apartment and an image of the cocaine that Estep purchased. Melton also listened to the audio recording and recognized Bigsbee’s voice.

On January 6, 2011, Estep called Bigs-bee again, with Melton listening in on the conversation, and asked to purchase cocaine. Bigsbee told Estep to come to his apartment. Before Estep went to Bigs-bee’s residence, Melton and another officer searched Estep’s person and car for contraband and found none. Next, Melton gave Estep $100. He also activated a surveillance device and gave it to Estep.

Estep subsequently drove to Bigsbee’s apartment, and the officers followed him and parked nearby. Bigsbee met Estep at the door and gave him a baggie of cocaine in exchange for $100. After Estep left Bigsbee’s apartment, he met the officers at a prearranged spot. He gave Melton the cocaine, and the officers searched his person and car for additional contraband. They found none. Melton took the surveillance device from Estep and turned it off. He later downloaded the data and captured an image of Estep reaching for a baggie of cocaine and an image of Bigsbee with money in his hand. Melton and Es-tep also listened to the audio recording and recognized Bigsbee’s voice.

The evidence recounted above is sufficient to sustain both of Bigsbee’s convictions for dealing in cocaine. See Hale v. State, 875 N.E.2d 438, 445 (Ind.Ct.App.2007) (finding sufficient evidence to uphold a conviction for dealing in cocaine where the police searched informants prior to the buy, gave them buy money and a recording device, followed them to the buy, watched the house where the buy occurred, subsequently searched the informants at a prearranged location, and recovered cocaine), trans. denied. Bigsbee characterizes Melton’s and Estep’s descriptions of the transactions as “concluso-ry” and argues that the procedures for the controlled purchases were inadequate. Adequacy of control for a controlled buy goes to the weight and credibility of the evidence, which we will not reweigh. Heyen v. State, 936 N.E.2d 294, 302 (Ind.Ct.App.2010), trans. denied.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

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

      . Bigsbee asserts that because the evidence focuses on controlled buys, which he believes is a "judicially-defined” term, we should apply the standard of review for a determination of probable cause and consider uncontested evidence favorable to him. Appellant’s Br. pp. 10-11. We reject Bigsbee's assertion because we may not disregard our Supreme Court’s well-established standard of review for appeals following a final judgment.


author: BRADFORD, Judge.

text:
    Moise JOSEPH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A05-1108-CR-387.
    Court of Appeals of Indiana.
    Oct. 2, 2012.

      John Andrew Goodridge, Evansville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

In the instant matter we are faced with the troublesome situation of reviewing an individual’s convictions relating to an unspeakable crime in light of an apparent violation of the convicted individual’s Fourth Amendment rights. In reviewing this matter, we must consider to what extent certain statements made by the convicted individual must be suppressed following an episode of police misconduct.

Appellant-Defendant Moise Joseph appeals following his convictions for Class A felony burglary resulting in serious bodily injury, Class B felony attempted armed robbery, and Class B felony criminal confinement. In appealing his convictions, Joseph argues that the trial court abused its discretion in admitting certain statements that he made to a police detective during an interview that occurred following the illegal and warrantless entry into and search of his apartment by police officers. Concluding that the trial court abused its discretion in admitting Joseph’s statements to the police detective, we reverse.

FACTS AND PROCEDURAL HISTORY

At approximately 9:30 a.m. on July 16, 2010, police were called to a Sonic Drive-In in Evansville to investigate two suspicious vehicles. The vehicles were parked, with their license plates pointing away from the restaurant, in the area of the Sonic parking lot commonly used by restaurant staff. Evansville Police Officer Gerald Collins responded to the call. After arriving at the Sonic, Officer Collins ran the license plates on the vehicles and learned that neither vehicle had been reported stolen. During the course of running the vehicles’ license plates, Officer Collins learned that one of the vehicles was registered to Joseph, and he was provided with Joseph’s address. The vehicles remained in the Sonic parking lot until approximately 11:00 a.m., when three men returned and hurriedly drove them away.

Earlier that day, at approximately 7:30 a.m., Larry Matthew Moore and Heather Reeves left the residence Moore shared with his girlfriend, Megan Darr. Moore’s home was located in Evansville near the Sonic. At some point during the morning, Darr was awakened when someone jumped on her in bed, wrapped a blanket around her head, and asked, “[Wjhere’s he money at?”. Tr. p. 372. When Darr attempted to break free, the person struck her on the head with a gun. Darr, who had recently learned that she was pregnant, became scared and had trouble breathing. At some point, Darr noticed that there were other people in the home. She also saw that the person on top of her was a black male and that he was, in fact, wielding a gun. Darr continued to struggle with the man who struck her several more times with the gun. The man told Darr that she should not struggle because his gun had “a hairy f ing trigger.” Tr. p. 376. Eventually, the man threw Darr on the floor, and after Darr pleaded with him to stop because she was pregnant, kicked her in the ribs, tied her up, and placed her in a closet with a blanket over her head.

Moore returned home, again with Reeves, at approximately 9:30 a.m. When Moore and Reeves returned to Moore’s home, they encountered the three men who had invaded the home. One of the men grabbed Reeves and pulled her into the home. Moore escaped and ran to a nearby business to call the police. After pulling Reeves inside, the three men fled the home. Police officers arrived at the home shortly thereafter. Darr was transported to the hospital for treatment. The home had been completely ransacked, and various items were missing.

Because of the timing of the invasion of Moore’s home, the close proximity of the home to the Sonic, and his knowledge that Joseph had a gun permit, Evansville Police Officer Raymond Michael Winters went to the apartment complex where Joseph lived. Officer Winters acknowledged that, at the time, he did not know anything about the home invasion, except that there had been one. Officer Winters was joined at the apartment complex by other officers, including Officer Dan Hoehn. Officer Winters located the apartment complex manager, who let Officers Winters and Hoehn into Joseph’s apartment. The officers handcuffed Joseph, read him his Miranda advisements, and asked him about his whereabouts earlier that morning. After being told by the officers that they knew that his vehicle had been at the Sonic, Joseph indicated that he had been approached by two men about purchasing an X-Box gaming system for five dollars. During a search of Joseph’s apartment, officers recovered guns and other items of interest relating to their investigation into the home invasion. However, it is unclear from the record whether any of these items were found to have any connection to the home invasion.

After arriving on the scene, Evansville Police Detective Ron Brown asked Joseph, who was still handcuffed, whether he would be willing to go to the police station to answer a few questions. Joseph answered in the affirmative. Joseph was then transported to the police station by Officer Winters. Upon arriving at the police station, Detective Brown again read Joseph his Miranda advisements before questioning him about the evidence recovered from his home and his knowledge of the home invasion. Joseph repeated his earlier statement about the X-Box gaming system, but denied being involved in the home invasion.

On June 20, 2010, the State charged Joseph with Class A felony burglary resulting in bodily injury, Class B felony attempted armed robbery, and Class B felony criminal confinement. Joseph filed a motion to suppress all evidence recovered during the search of his apartment as well as his statements to Officers Winters and Hoehn and Detective Brown. Following a hearing, the trial court suppressed all evidence recovered from Joseph’s apartment as well as his statements to Officers Winters and Hoehn. The trial court denied the motion with respect to Joseph’s statements to Detective Brown. A jury trial commenced on April 11, 2011, after which the jury found Joseph guilty as charged. On July 1, 2011, the trial court sentenced Joseph to an aggregate term of twenty-six years of incarceration. This appeal follows.

DISCUSSION AND DECISION

Joseph contends that the trial court abused its discretion in admitting the statements that he made to Detective Brown following the warrantless entry into and search of his apartment by Officers Winters and Hoehn. Specifically, Joseph argues that his statements to Detective Brown constitute “fruit of the poisonous tree” and, therefore, were inadmissible at trial.

A. Standard of Review

Our standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App.2002), reh’g denied, trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. We also consider uncontroverted evidence in the defendant’s favor. Id.

Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007).

A trial court has broad discretion in ruling on the admissibility of evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003) (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.Ct.App.2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind.Ct.App.2000)).

B. Analysis

1. The Fourth Amendment

On appeal, Joseph claims that the warrantless entry into and search of his apartment by Officers Winters and Hoehn violated the Fourth Amendment to the United States Constitution.

The fundamental purpose of the Fourth Amendment to the United States Constitution is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings. Taylor v. State, 842 N.E.2d 327, 330 (Ind.2006) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). The principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment and, therefore, searches and seizures inside a home without a warrant are presumptively unreasonable. Alspach v. State, 755 N.E.2d 209, 212 (Ind.Ct.App.2001), trans. denied. The State bears the burden of proving that a warrantless search falls within an exception to the warrant requirement. Taylor, 842 N.E.2d at 330. Whether a particular warrantless search violates the guarantees of the Fourth Amendment depends on the facts and circumstances of each case. Rush v. State, 881 N.E.2d 46, 50 (Ind.Ct.App.2008).

Trotter v. State, 933 N.E.2d 572, 579 (Ind.Ct.App.2010).

The existence of exigent circumstances falls within an exception to the warrant requirement. Id. (citing Holder v. State, 847 N.E.2d 930, 936 (Ind.2006)). In other words, the warrant requirement becomes inapplicable when the exigencies of the situation make the needs of law enforcement so compelling that the warrant-less search is objectively reasonable under the Fourth Amendment. Id. (quotations omitted). Under the exigent circumstances exception, police may enter a residence without a warrant if the situation suggests a reasonable belief that someone inside the residence is in need of aid. Id. (citing Smock v. State, 766 N.E.2d 401, 404 (Ind.Ct.App.2002)). However, an officer’s subjective belief that exigent circumstances exist is insufficient to justify a warrantless entry. Id. (citing Cudworth v. State, 818 N.E.2d 133, 137 (Ind.Ct.App.2004)). Rather, the test is objective, and the government must establish that the circumstances as they appear at the moment of entry would lead a reasonable, experienced law enforcement officer to believe that someone inside the house required immediate assistance. Id. (citing Cudworth, 818 N.E.2d at 137).

“Moreover, “while exigent circumstances justify dispensing with a search warrant, they do not eliminate the need for probable cause.’ ” Id. (quoting Cudworth, 818 N.E.2d at 137). The probable cause element may be satisfied where the officers reasonably believe that a person is in danger. Id. (citing Cudworth, 818 N.E.2d at 137). “‘The burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.’ ” Id. at 579-80 (quoting McDermott v. State, 877 N.E.2d 467, 474 (Ind.Ct.App.2007)).

Here, the State concedes that the warrantless entry into and search of Joseph’s apartment by Officers Winters and Hoehn “may well have been without probable cause and therefore in violation of [Joseph’s] rights under the Fourth Amendment.” Appellee’s Br. p. 8. Moreover, the State does not point to any exigent circumstances that it asserts would overcome the presumption of unreasonableness attached to Officer Winters’s and Hoehn’s warrant-less entry into and search of Joseph’s apartment. Thus, in light of the State’s concession that Officers Winters and Hoehn lacked probable cause to search Joseph’s apartment, together with its failure to point to any exigent circumstances sufficient to overcome the presumption of unreasonableness attached to the warrant-less entry into and search of Joseph’s apartment, we conclude that the warrant-less entry into and search of Joseph’s apartment violated Joseph’s rights under the Fourth Amendment.

2. The Exclusionary Rule and the Doctrine of Attenuation

Having concluded that the search of Joseph’s apartment violated Joseph’s rights under the Fourth Amendment, we must next consider whether Joseph’s comments to Detective Brown were sufficiently attenuated to dissipate any taint of the illegal search. “The exclusionary rule is a judicially created remedy designed to safeguard the right of the people to be free from ‘unreasonable searches and seizures.’ ” Trotter, 933 N.E.2d at 581 (quoting US. v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). “The main purpose of the exclusionary rule ‘is to deter future unlawful police conduct’ and, thus, evidence obtained through an illegal search and seizure is inadmissible at trial.” Id. (quoting Calandra, 414 U.S. at 347, 94 S.Ct. 613). While it is true that evidence stemming from an illegal arrest or entry may be excluded upon proper motion by the defendant, see Snellgrove v. State, 569 N.E.2d 337, 341 (Ind.1991), this court has recognized that “[n]ot all evidence is fruit of the poisonous tree and subject to suppress simply because it would not have come to light but for illegal police activity.” State v. Foster, 950 N.E.2d 760, 763 (Ind.Ct.App.2011), trans. denied.

Fourth Amendment jurisprudence has recognized an exception to the exclusionary rule in cases where the connection between the illegal police conduct and the subsequent discovery of evidence “become[s] so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring). Specifically, “[i]n some situations, the causal chain is sufficiently attenuated to dissipate any taint of [the illegal police activity], allowing the evidence seized during a search to be admitted.” Cole v. State, 878 N.E.2d 882, 887 (Ind.Ct.App.2007). This is known as the attenuation doctrine. See Quinn v. State, 792 N.E.2d 597, 601 (Ind.Ct.App.2003) (citing Brown, 422 U.S. 590, 603-04, 95 S.Ct. 2254), trans. denied.

Trotter, 933 N.E.2d at 581. Put another way, attenuation simply means that the connection between the illegal police conduct and Joseph’s statements has become so weakened in force, intensity, and effect that the taint of the illegal police conduct has been dissipated. See Foster, 950 N.E.2d at 762.

The State argues that despite the unconstitutional nature of Officers Winters’s and Hoehn’s entry into and search of Joseph’s apartment, the trial court properly admitted Joseph’s statements to Detective Brown pursuant to the doctrine of attenuation.

Cases have established that three factors should be considered in determining whether the connection has become too weak: (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. See, e.g., Turner v. State, 862 N.E.2d 695, 701 (Ind.Ct.App.2007). The important consideration in the third factor is whether the evidence came from the “ ‘exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” [Quinn, 792 N.E.2d at 600] (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)).

Foster, 950 N.E.2d at 763. It is also important to consider whether officers have given Miranda warnings to a defendant when determining whether the statement or confession was the product of an illegal arrest. Snellgrove, 569 N.E.2d at 341-42.

In Snellgrove, following a wave of armed robberies, police detectives entered Snell-grove’s home without a warrant and arrested him and his fiancee. Id. at 339. Snellgrove was read his Miranda advise-ments and taken to the police station. Id. At the stationhouse, Snellgrove was again read his Miranda advisements. Id. Snell-grove indicated that he understood his rights and that he did not wish to speak to the detectives. Id. Eventually, Snellgrove was informed that his fiancee was cooperating with the detectives and was told what she had said to the detectives concerning the robberies. Id. Snellgrove subsequently told the detectives about his involvement in the robberies. Id. Snellgrove was charged with and convicted of four counts of Class B felony armed robbery. Id. at 338. Snellgrove challenged the admissibility of his confession, claiming that it was derived from his illegal arrest. Id. at 339.

Upon review, the Indiana Supreme Court held that Snellgrove was correct in his assertion that his arrest was carried out in an unlawful manner. Id. at 340. In determining whether Snellgrove’s subsequent confession was “fruit[ ] of such illegality^]” the Court noted that prior to giving his confession, Snellgrove was read his Miranda advisements three times. Id. at 342. The Court determined that, based on the facts at issue, the illegal police activity did not rise to the level of purposeful or flagrant police misconduct because the police had probable cause to obtain a warrant for Snellgrove’s arrest in connection to the robberies. Id.

As to the temporal proximity, the Court noted that this factor could be an ambiguous one. Id. The Court determined that the approximately four hours that elapsed between Snellgrove’s arrest and his confession were such that “carries some small weight, certainly not decisive, tending to dissipate the taint of the illegality” and could be considered with the other factors. Id. The Court further determined that the record did not disclose the presence of significant intervening circumstances. Id. After balancing these factors, the Court concluded that Snellgrove’s decision to confess was an act of his free will and not the product of his illegal arrest. Id. at 343.

In Foster, police detectives entered Foster’s apartment without a warrant and handcuffed him. 950 N.E.2d at 761. One of the detectives read Foster his Miranda advisements and transported him to the police station. Id. While en route to the police station, Foster made inculpatory statements. Id. At the station, he was again read his Miranda advisements. Id. Foster signed a waiver of his rights and submitted to questioning by the detectives, during which time he made additional in-culpatory statements. Id. After questioning Foster, the detectives sought and obtained a warrant for his arrest. Id. Foster was charged with Class A felony dealing in cocaine. Id. Foster sought to suppress his statements as evidence that stemmed from his illegal arrest following the detectives’ illegal entry into his apartment. Id.

Upon review, we noted that very little time lapsed between the arrest and the admissions made in the police car and at the police station, and that there is “little doubt that [defendant’s] statements came from the exploitation of the unlawful arrest.” Id. at 76B. The State argued that the giving of Miranda advisements constituted a valid intervening circumstance. Id. We disagreed and concluded that, like in Turner, “ ‘[g]iven the near-constant interaction between [the defendant] and the police that evening, we cannot say that the connection between the illegal [police activity] and [defendant’s] confession had been attenuated sufficiently.’ ” Id. (quoting Turner, 862 N.E.2d at 702). We concluded that because the connection between the arrest and the securing of statements disclosed near constant interaction and exploitation of the arrest, a finding of attenuation was precluded, and as such, the trial court properly excluded Foster’s statements to police. Id.

Here, the State concedes that Officers Winters and Hoehn entered into and searched Joseph’s apartment without a warrant in violation of the Fourth Amendment. The State further concedes that unlike in Snellgrove, Officers Winters and Hoehn did not have probable cause to believe that Joseph was involved in the home invasion when they entered into and searched his apartment. The record demonstrates that upon entering Joseph’s apartment, Officers Winters and Hoehn read Joseph his Miranda advisements before speaking to Joseph. Officers Winters and Hoehn claim that Joseph agreed to go to the police station for questioning after he made an inculpatory statement regarding his whereabouts earlier that morning. Upon arriving at the police station, Joseph was again read his Miranda advisements. Joseph gave a statement to Detective Brown regarding his actions that morning and denied any involvement in the home invasion. Joseph did not express any reluctance to speak with Officers Winters and Hoehn or Detective Brown.

Joseph claims that his statements to Detective Brown should be excluded because the statements were tainted by the illegal entry into and search of his apartment by Officers Winters and Hoehn. Specifically, Joseph claims that he remained handcuffed continuously from the first moment Officers Winters and Hoehn entered his home (with the exception of the few minutes that he was taken outside for a potential witness identification) and was soon thereafter transported to the police station. Detection Brown questioned Joseph about his prior statements to Officers Winters and Hoehn as well as certain pieces of evidence found in Joseph’s apartment. By this time, Joseph argues that the “cat was already out of the bag.” Appellant’s App. p. 19. Joseph argues that the record is “woefully lacking” of any intervening circumstances upon which the trial court could have properly determined that his decision to submit to an interrogation was an act of free will rather than the product of his illegal arrest. Thus, Joseph claims that the trial court abused its discretion in admitting his statement to Detective Brown into evidence at trial.

For its part, the State claims that Joseph’s statements to Detective Brown were sufficiently attenuated to dissipate any taint of the illegal police activity. In support, the State points out that like in Snellgrove, Joseph was read his Miranda advisements on multiple occasions following the illegal police entry into his apartment and before questioning by Detective Brown. The State cites to Snellgrove and asserts that, while not the only factor, the fact that Joseph was given his Miranda advisements is an important factor demonstrating that his statements were not the product of the illegal police conduct.

The State also points to the fact that approximately four hours had elapsed between the initial illegal entry and Joseph’s statements to Detective Brown. The State acknowledges that the temporal proximity factor may be of minor significance, but notes that in Snellgrove, the Indiana Supreme Court held that while the temporal proximity factor is somewhat ambiguous and insignificant, the fact that the search occurred within four hours of the illegal conduct did not render the attenuation doctrine inapplicable. See 569 N.E.2d at 342. Further, while the State acknowledges that the warrantless entry into and search of Joseph’s home by Officers Winters and Hoehn was illegal as it was in violation of the Fourth Amendment, the State claims that the fact that Joseph’s statements were made at the police station rather than at his home is an additional intervening circumstance that would tend to indicate that his statements were sufficiently attenuated from the illegal police conduct.

The record indicates that while Joseph was given his Miranda advise-ments at least two times and was transported to the police station prior to making his statements to Detective Brown, it also indicates that Joseph was in constant police custody from the time that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware that their search had resulted in the discovery of potentially relevant evidence. Joseph was questioned about this evidence by both the officers at the scene and Detective Brown at the police station. In addition, nothing in the record indicates that Joseph had any way of knowing that the potential evidence found in his apartment and his statements to Officers Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown. Based on these facts, especially the fact that Joseph was in constant police custody from the time of their illegal entry into and search of his apartment, knew what potential evidence had been discovered in his apartment, and had made prior potentially incriminating statements to Officers Winters and Hoehn, we cannot conclude that Joseph’s comments to Detective Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any taint of the illegal police conduct. As such, we conclude that the trial court abused its discretion in admitting Joseph’s statements to Detective Brown at trial.

The judgment of the trial court is reversed.

FRIEDLANDER, J., and BARNES, J., concur.

      . Ind.Code § 35-43-2-1 (2010).

      . Ind.Code § 35-42-5-1(1) (2010).

      .Ind.Code §§ 35-42-3-3(a)(l) and 35-42-3-3(b)(2)(A) (2010).

      . We heard oral argument in this matter on August 21, 2012, and wish to thank counsel for the high quality of their presentations.

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

      . On appeal, Joseph frames his argument as a challenge to the constitutionality of the war-rantless entry of his apartment under the Fourth Amendment to the United States Constitution. Joseph does not make a separate argument under Article 1, Section 11 of the Indiana Constitution. As such, any claim of error under the Indiana Constitution is consequently waived. See Davis v. State, 907 N.E.2d 1043, 1048 n. 10 (Ind.Ct.App.2009).

      . Again, this statement, like the evidence recovered from Joseph’s apartment, was suppressed by the trial court and not admitted into evidence at trial.

      . The State has not argued that the admission of Joseph’s statements to Detective Brown was harmless.


author: CRONE, Judge.

text:
    Steven B. STEELE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1202-CR-54.
    Court of Appeals of Indiana.
    Oct. 3, 2012.
    John D. Fierek, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Steven B. Steele appeals the trial court’s denial of his motion to suppress. We affirm.

The relevant facts are undisputed. Around 3:30 a.m. on April 17, 2011, Indianapolis Metropolitan Police Department Officer Steven Ferklic was alerted to a Jeep Cherokee parked in the middle of the road near the intersection of 34th Street and Dandy Trail with its lights and engine off and three flat tires. Steele was slumped unconscious in the front seat. Officer Ferklic was unable to wake Steele, so he had firefighters break the Jeep’s rear window. Steele awoke, and Officer Ferklic asked him to exit the Jeep. The dazed Steele staggered unsteadily toward the rear of the Jeep, and Officer Ferklic noticed that he had bloodshot eyes, slurred speech, and the odor of an alcoholic beverage on his breath. Officer Ferklic had the Jeep towed, arrested Steele for misdemeanor public intoxication, and transported him to a nearby gas station with the intent to administer field sobriety tests on a more level surface away from the intersection. While at the gas station, Officer Ferklic read Steele his Miranda rights and asked if anyone else had been in his vehicle. Steele admitted that he had been alone and had driven the vehicle to that location. Because of the cold weather, Officer Ferklic decided to transport Steele to a police station approximately ten minutes away to administer a horizontal gaze nys-tagmus test, which Steele failed, as well as a breath test.

The State charged Steele with two counts of class A misdemeanor operating a vehicle while intoxicated (“OWI”) (one for OWI in a manner that endangers a person pursuant to Indiana Code Section 9-30-5-2(b) and one for operating with an alcohol concentration equivalent of at least 0.15 pursuant to Indiana Code Section 9-30-5-1(b)); one count of class B misdemeanor public intoxication pursuant to Indiana Code Section 7.1 — 5—1—3; and two counts of class D felony OWI pursuant to Indiana Code Section 9-30-5-3 (enhancements of the first two counts based on a prior OWI conviction).

Steele filed a motion to suppress, arguing in pertinent part that the statements that he made to Officer Ferklic at the gas station should be suppressed pursuant to Indiana Evidence Rule 617, which reads as follows:

(a) In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:
(1) The statement was part of a routine processing or “booking” of the person; or
(2) Before or during a Custodial Interrogation, the person agreed to respond to questions only if his or her Statements were not Electronically Recorded, provided that such agreement and its surrounding colloquy is Electronically Recorded or documented in writing; or
(3) The law enforcement officers conducting the Custodial Interrogation in good faith failed to make an Electronic Recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of said officers the recording equipment malfunctioned or stopped operating; or
(4) The statement was made during a custodial interrogation that both occurred in, and was conducted by officers of, a jurisdiction outside Indiana; or
(5) The law enforcement officers conducting or observing the Custodial Interrogation reasonably believed that the crime for which the person was being investigated was not a felony under Indiana law; or
(6) The statement was spontaneous and not made in response to a question; or
(7) Substantial exigent circumstances existed which prevented the making of, or rendered it not feasible to make, an Electronic Recording of the Custodial Interrogation, or prevent its preservation and availability at trial.
(b) For purposes of this rule, “Electronic Recording” means an audio-video recording that includes at least not only the visible images of the person being interviewed but also the voices of said person and the interrogating officers; “Custodial Interrogation” means an interview conducted by law enforcement during which a reasonable person would consider himself or herself to be in custody; “Place of Detention” means a jail, law enforcement agency station house, or any other stationary or mobile building owned or operated by a law enforcement agency at which persons are detained in connection with criminal investigations.
(c) The Electronic Recording must be a complete, authentic, accurate, unaltered, and continuous record of a Custodial Interrogation.
(d) This Rule is in addition to, and does not diminish, any other requirement of law regarding the admissibility of a person’s statements.

At the hearing on his motion to suppress, Steele argued that Officer Ferklic violated the rule by failing to transport him to a “Place of Detention” to record his statement. The trial court denied Steele’s motion, and this interlocutory appeal ensued.

Steele frames the issue as whether Evidence Rule 617 “should be interpreted to require law enforcement to transport a suspect to a Place of Detention when a custodial interrogation is going to occur and circumstances make the transport reasonable?” Appellant’s Br. at 1. Two observations are in order. One, Evidence Rule 617 does not apply in this case because Officer Ferklic’s interrogation of Steele did not occur in a Place of Detention. And two, the rule does not, either explicitly or implicitly, impose an affirmative duty on law enforcement officers to transport a person to a Place of Detention before conducting a Custodial Interrogation. Steele’s policy arguments for imposing such a duty should be directed to the Evidence Rules Review Committee, which may recommend to the Indiana Supreme Court that the rule be amended accordingly. See Ind. Evidence Rule 1101. In sum, we affirm the denial of Steele’s motion to suppress.

Affirmed.

RILEY, J., and BAILEY, J., concur.

      . Citing the probable cause affidavit, Steele says that the breath test indicated an alcohol concentration equivalent of 0.17. Appellant's Br. at 3. We note, however, that the affidavit was not admitted into evidence at the suppression hearing. We also note that Steele’s brief is missing the table of contents and table of authorities required by Indiana Appellate Rule 46(A).


author: MASSA, Justice. Justice, RUCKER,

text:
    INDIANA DEPARTMENT OF REVENUE, Petitioner, v. MILLER BREWING COMPANY, Respondent.
    No. 49S10-1203-TA-136.
    Supreme Court of Indiana.
    July 26, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Andrew W. Swain, John D. Snethen, Timothy A. Schultz, Jessica E. Reagan, Deputy Attorneys General, Indianapolis, IN, Attorneys for Petitioner.
    Stephen H. Paul, Jon Laramore, Brent A. Auberry, Indianapolis, IN, Attorneys for Respondent.
   MASSA, Justice.

This appeal is the latest iteration of a decade-long dispute between the Miller Brewing Company and the Indiana Department of Revenue over Miller’s Indiana adjusted gross income tax liability. The Department here appeals the Tax Court’s determination that Miller owes no tax on certain sales to Indiana customers. We reverse.

Facts and Procedural History

Miller Brewing Company is a Wisconsin corporation engaged in the production and sale of malt beverage products. It is headquartered in Milwaukee and operates breweries in various other states. Under Indiana law, corporations like Miller are liable to Indiana for income tax on the proportion of their total income that was earned from Indiana sales. This case concerns the percentage of Miller’s total income that is subject to Indiana income tax in tax years 1997, 1998, and 1999; specifically, whether Miller’s income from sales to Indiana distributors should be allocated to Indiana if common carriers transported the products from Miller’s out-of-state brewery to the distributors in Indiana.

The sales in question generally proceeded as follows: after an Indiana distributor submitted a product order to Miller headquarters in Milwaukee, Miller arranged for the ordered products to be prepared for transport at one of its breweries. The distributor then determined how to transport the products to Indiana; it could 1) pick up the products from the Ohio brewery and bring them back to Indiana itself (customer pick-up sales), 2) hire a third-party common carrier to pick up the products and deliver them to it in Indiana (customer-arranged carrier pickup sales), or 3) request that Miller hire a third-party common carrier to pick up the products and deliver them to it in Indiana, later reimbursing Miller for the delivery charge (Miller-arranged carrier pick-up sales).

When Miller prepared and filed its Indiana corporate income tax returns for 1994 through 1996, it allocated to Indiana all of the income it received from sales to Indiana distributors, regardless of which transportation method the distributor used. After paying the entire tax, however, Miller requested a refund for tax paid on all pick-up sales. The Department granted Miller’s request as to the customer pick-up sales, but denied it as to both types of carrier pick-up sales.

Miller filed an original tax appeal petition, and the Tax Court determined that Miller was entitled to a refund of the taxes it had paid on the carrier pick-up sales because those sales were not “Indiana sales” for the purposes of the allocation statute. Miller Brewing Co. v. Ind. Dep’t of Revenue (“Miller I”), 831 N.E.2d 859, 863 (Ind. Tax Ct.2005). The Tax Court denied the Department’s subsequent motion to correct error, Miller I, 836 N.E.2d 498, 501 (Ind. Tax Ct.2005), and we declined to review the Tax Court’s decision. Miller I, 855 N.E.2d 998 (Ind.2006) (table).

When Miller prepared and filed its Indiana corporate income tax returns for 1997 through 1999, it only reported Miller-arranged carrier pick-up sales, and then only for tax year 1997. In 2001, however, the Department audited Miller’s 1997-99 tax returns and issued proposed assessments for gross income tax and supplemental net income tax (collectively, “adjusted gross income tax”) in the amount of $806,366.23, based on Miller’s income from all carrier pick-up sales to Indiana customers. To satisfy this debt, the Department retained Miller’s “overpayments” from 1994-96, which it otherwise would have had to refund to Miller pursuant to the Tax Court’s 2005 ruling. Miller initiated an administrative appeal of the proposed assessment and requested a refund. On June 12, 2006, the Department issued a letter of findings denying both requests.

On July 24, 2006, Miller filed an original tax appeal petition in the Indiana Tax Court, arguing that Miller I precluded the Department from assessing Indiana tax on carrier pick-up sales. Both parties moved for summary judgment, and the Tax Court denied Miller’s motion, holding that “while issue preclusion may be appropriate in certain property tax cases, it is generally not applicable in revenue cases.” Miller Brewing Co. v. Ind. Dep’t of Revenue (‘Miller II”), No. 49T10-0607-TA-69, slip op. at 7, 2007 WL 1667128 (Ind. Tax Ct. June 8, 2007). We accepted Miller’s request for interlocutory review and affirmed the Tax Court, holding “that the Department’s new arguments ... are not precluded by Miller I.” Miller II, 903 N.E.2d at 70.

As to the merits of the case, the Tax Court reversed the Department’s proposed assessment and granted Miller’s request for a refund. Miller II, 955 N.E.2d 865, 872 (Ind. Tax Ct.2011). It held that Miller’s carrier pick-up sales to Indiana customers were not “Indiana sales” as defined by Indiana tax law and thus granted summary judgment in favor of Miller and against the Department. Id. (citing Ind. Code § 6-3-2-2(e)(l) (2010); 45 Ind. Admin. Code 3.1-1-53 (2008) (Example 7)).

We granted review. 963 N.E.2d 1120 (Ind.2012) (table); see also Ind. Appellate Rule 63(A).

Standard of Review

Summary judgment is appropriate when the record shows that no genuine issues of material fact remain for trial and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We are sensitive to the Tax Court’s unique function and specialized expertise, and we review its decisions on matters of Indiana tax law with cautious deference. Ind. Dep’t of Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 176 (Ind.2010), modified on reh’g, 942 N.E.2d 796 (Ind.2011). Therefore, we will set aside the Tax Court’s decision “only if we are definitely and firmly convinced that an error was made.” Id. at 177.

Indiana Code § 6-3-2-2(e)

Is Unambiguous

Our settled procedure of statutory construction begins with a determination as to “ “whether the legislature has spoken clearly and unambiguously on the point in question.’ ” Sloan v. State, 947 N.E.2d 917, 922 (Ind.2011) (quoting Rheem Mf'g Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind.2001)). If so, our task is relatively simple: we need not “delve into legislative intent” but must give effect to “the plain and ordinary meaning of the language.” Id.

According to Indiana Code § 6-3-2-2(e), a sale “of tangible personal property” is deemed to have taken place in Indiana if “the property is delivered or shipped to a purchaser that is within Indiana, other than the United States government.” Ind.Code § 6-3-2-2(e). This is true “[rjegardless of ... other conditions of the sale.” Id. (emphasis added).

Here, quite clearly, the malt beverage products were taken from Miller’s brewery and “delivered or shipped” to purchasers in Indiana. The statute does not differentiate between goods that were “delivered or shipped” by Miller and goods that were “delivered or shipped” by third-party carriers; rather, it states that all goods “delivered or shipped” to an Indiana customer constitute Indiana sales, and that this rule applies “regardless” of the particular arrangements of the sale. Because the statute is unambiguous, we decline parties’ invitations to consider extraneous evidence of legislative intent, including — but not limited to — legislative history and administrative interpretations of the statute.

Example 7 Does Not Have the Force of Law

Miller argues not only that the statute is ambiguous, but that the ambiguity is clarified by an “example” accompanying a related administrative rule. (Resp.’s Br. at 11-16.) According to that example, “[sjales are not ‘in this state’ if the purchaser picks up the goods at an out-of-state location and brings them back into Indiana in his own conveyance.” 45 Ind. Admin. Code 3.1-1-53 (Example 7). Miller contends that the term “in his own conveyance” includes not only vehicles owned by the purchaser himself, but also vehicles owned by common carriers hired by either the purchaser or the seller to transport the goods to Indiana. (Resp.’s Br. at 15.)

That interpretation is plainly inconsistent with the language of the example; the ordinary reader would understand “his own conveyance” to mean a conveyance owned by the purchaser, not a conveyance owned by anyone else, such as a third-party common carrier. It is also inconsistent with the way that the Department has used the term in other contexts. The Department has consistently distinguished between a seller’s or buyer’s “own conveyance” and a conveyance belonging to a common or contract carrier. See, e.g., 28 Ind. Reg. 3748 (July 26, 2005) (stating that there is no tax on furniture delivered outside Indiana “by either the taxpayer’s own conveyance or common carrier”); 27 Ind. Reg. 3380 (May 7, 2004) (differentiating between freight charges for delivery “in the seller’s own conveyance” and those “made by common carrier”); 25 Ind. Reg. 575 (Nov. 1, 2001) (stating that there is no tax on sales to goods delivered outside of Indiana regardless of “whether shipment is made by the seller in his own conveyance, by his contract carrier or by common carrier”). Thus, Example 7 does not apply to carrier pickup sales at all.

Even if Miller’s reading of Example 7 were correct and applicable, it would make no difference. The Department has unequivocally stated that examples are “included in” rules “for illustrative purposes only,” meaning that they are not themselves rules. 45 Ind. Admin. Code 15-3-2(g) (2008). Such illustrations “specifically designated as examples” of how rules apply “are not to be considered as an official part of such rules.” Id. Example 7 appears, along with six other paragraphs, after the text of the rule itself and under the separate heading “Examples.” 45 Ind. Admin. Code 3.1-1-58. Thus, it is “specifically designated” as an example and not a rule, and it does not have the force of law.

The Tax Court Applied the Proper Standard of Review

Finally, we acknowledge the Department’s contention that the Tax Court applied the wrong standard of review in this case, reviewing the case de novo when it should have granted deference to the Department’s administrative expertise. (Pet.’s Br. at 1.) The Tax Court did not explicitly identify a standard of review in its opinion. See Miller II, 955 N.E.2d at 867. Nevertheless, we note that where, as here, the taxpayer appeals a proposed assessment and a denied refund, the Tax Court has the authority — indeed, the obligation — to review the Department’s ruling de novo. Ind.Code §§ 6 — 8.1—5—1 (i) (2010) (mandating de novo review for appeals of proposed assessments), 6-8.1-9-l(d) (2010) (mandating de novo review for appeals of denied refund claims).

Conclusion

The Tax Court determined that Example 7 was an administrative rule with the force of law and that it operated to exempt Miller from liability for Indiana tax on income from sales of goods delivered by common carrier to Indiana customers. We find that this determination was clearly erroneous and hold that Example 7 does not have the force of law. Accordingly, we reverse the decision- of the Tax Court.

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

RUCKER, J., dissents with separate opinion.

Justice, RUCKER,

dissenting.

The Tax Court determined that Indiana Code section 6-3-2-2(e)(l) is ambiguous. And I agree. Acknowledging Miller’s argument in this regard the court had this to say:

Under one construction, Miller explains, the statutory language can be construed to mean that a sale is an Indiana sale if the property’s purchaser is domiciled or has a business situs in Indiana, no matter where the merchandise is shipped or delivered; under the other construction, however, the statutory language can be construed to mean that a sale is an Indiana sale if the property is delivered or shipped to this state whether or not the purchaser has an Indiana domicile or business situs.

Miller Brewing Co. v. Ind. Dep’t of State Revenue, 955 N.E.2d 865, 868-69 (Ind. Tax Ct.2011). To resolve this ambiguity the court looked to the Department’s own clarifying regulations. Since 1979 the Department has provided guidance on when a sale of goods is “in this state” or not and has provided useful examples. One of which is Example 7, which provides in relevant part, “Sales are not ‘in this state’ if the purchaser picks up the goods at an out-of-state location and brings them back into Indiana in his own conveyance.” 45 Ind. Admin. Code 3.1-1-58 ex. 7. In granting summary judgment in favor of Miller the Tax Court found persuasive “the Department’s interpretation — as embodied in its own regulation....” Miller Brewing Co., 955 N.E.2d at 870.

“When a summary judgment involves a question of law within the particular purview of the Tax Court, cautious deference is appropriate.” Ind. Dep’t of State Revenue v. Bethlehem Steel Corp., 639 N.E.2d 264, 266 (Ind.1994). This Court will set aside the Tax Court’s determinations of tax law on summary judgment only if it is definitely and firmly convinced that an error was made. Id. I am not convinced an error was made here. Applying our cautious deference standard of review I would affirm the judgment of the Tax Court. Therefore I respectfully dissent.

      . As we noted in Miller Brewing Co. v. Indiana Department of Revenue (“Miller II"), 903 N.E.2d 64, 66 n. 1 (Ind.2009), Indiana assesses an adjusted gross income tax and a supplemental net income tax on income "derived from" our state by corporations engaged in interstate commerce. During the tax years at issue in this case, Indiana law allocated a corporation’s income by considering three equally weighted factors: the percentage of the corporation's payroll, property, and sales attributed to Indiana. Ind.Code § 6-3-2-2(b) (1998). On January 1, 2007, Indiana began transitioning from the three-factor approach to an allocation based solely on sales. See Act of Mar. 24, 2006, P.L. 162-2006, § 25, 2006 Ind. Acts 3262-69.

      . Miller later filed an amended return for tax year 1997, in which it requested a refund of $13,391 (plus statutory interest) for taxes paid on Miller-arranged carrier pick-up sales. (App. at 48.)

      . As the Tax Court did, we cite the current version of the relevant statutes in our opinion, as the applicable provisions have not been substantively amended since the tax years at issue.

      . We do note that the Department has the authority to clarify Example 7 if it wishes to Ado so. See Ind.Code § 6-8.1-3-3(a) (2010) ■(authorizing the Department to adopt rules). the extent that such clarification could iBprestall future litigation on this contentious ^fcsue, this Court encourages it.

      . The Department cites State Bd. of Tax Commmissioners v. Jewell Grain Co., Inc., 556 N.E.2d 920, 921 (Ind.1990), for the proposi-ijBrfjn that the tax court should have applied deferential review in this case. Jewell Grain, however, was decided in 1990 — three years before the legislature changed the standard of review for appeals of proposed assessments to de novo. See Act of May 12, 1993, P.L. 71-1993 § 17, 1993 Ind. Acts 3313 (adding the text of subsection (i) to Ind.Code § 6-8.1-5-1). Thus, the standard of review applied in that case is inconsistent with our current statutory scheme and does not apply here.