source: Caselaw Access Project

license: Public Domain

text:
    Shawn TELLIGMAN, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication, Appellees.
    No. 93A02-1304-EX-303.
    Court of Appeals of Indiana.
    Oct. 29, 2013.

      Jill Doggett, Hart Bell, LLC, Vincennes, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
   OPINION

BROWN, Judge.

Shawn Telligman appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in favor of Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication (“IDWD”) on IDWD’s claim that Telligman failed to disclose or falsified information to IDWD in order to receive unemployment benefits, that he received certain benefits to which he was not entitled, and that he is liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest. Telligman raises two issues which we restate as whether the Board erred in finding that he knowingly failed to disclose or falsified any fact that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, and whether the Board abused its discretion in denying his request to submit additional evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

Telligman filed claims for unemployment benefits starting in October 2009 and received those benefits for certain weeks between December 2009 and December 2010. Following an investigation, an investigator with the IDWD issued three determinations of eligibility notifications on November 15, 2012, finding that Tellig-man knowingly failed to disclose or falsified material facts and that Telligman had filed vouchers for and received unemployment benefits for weeks during which he had been employed and had employment earnings. Telligman appealed the determinations. On January 16, 2013, a hearing was held before an administrative law judge (the “ALJ”) at which the parties presented documentary evidence, testimony, and arguments.

The ALJ issued a decision dated January 17, 2013, which provided in part:

FINDINGS OF FACT: The claimant filed an initial claim for unemployment benefits approximately October 6, 2009 which had a benefit year ending date of October 1, 2010. The claimant subsequently filed an extended unemployment claim with the same benefit year ending date on May 11, 2010. A second regular claim was filed on October 3, 2010, with a benefit year ending date of October 1, 2011. The claimant’s weekly benefit amount of unemployment benefits was $390.00 for the first regular claim and federal extended claim and $372.00 for the second regular claim. Vouchers requesting unemployment benefits were submitted electronically for the period from weeks ending December 10, 2009 through February 27, 2010. After a brief break, vouchers were then submitted again for the period from week ending May 15, 2010 through week ending October 2, 2010. Following the filing of the second claim, vouchers were then submitted from week ending October 9, 2010 through week ending December 18, 2010. The Administrative Law Judge finds that a debit card was issued to the claimant at his then correct address of record which had been submitted to the Department when he filed his claim. Unemployment benefits were deposited to the debit card for each of the weeks for which vouchers had been submitted. The debit card was used for purchases from various merchants and cash withdrawals were made from the debit card during such time period.
The Administrative Law Judge finds that the claimant opened his initial claim in the Vincennes Local WorkOne Office. The claimant was accompanied by his spouse at that time. The claimant created a user ID and unique password to enable vouchers to be submitted electronically thereafter. The claimant shared such information with his spouse who subsequently submitted vouchers on the claimant’s behalf with the claimant’s knowledge and consent. The claimant permitted his spouse to have possession and use of the debit card although the claimant regained possession of the card periodically. The Administrative Law Judge finds that the claimant personally had possession of the debit card in August of 2010. The claimant alleged that the debit card was removed from his wallet in August 2010 without his knowledge. The Administrative Law Judge finds that debit card usage records for August of 2010 reflected similar usage for purchases and withdrawals at the same merchants and ATM locations as prior debit card usage. The Administrative Law Judge further finds that the claimant’s spouse was incarcerated from approximately October 7 through October 26, 2010. The debit card was used for a cash withdrawal during such period of time on October 19, 2010 while the claimant’s spouse was incarcerated and unable to make a withdrawal.
The claimant returned to work on November 2, 2009 with Hetsco, Inc. The claimant had wages from such employer in excess of his weekly benefit amount during both of his regular claim periods and his federal extension claim period. No wages were ever reported on any of the vouchers submitted by or on behalf of the claimant and no information was provided on the vouchers indicating that the claimant had worked.
In order to apply for benefits the claimant had to read a computer screen which contained a statement “I understand that I must report all earnings from employment or self-employment regardless of source”. The claimant had to click a button indicating “Yes, I agree, file my claim”. In order to click such button, the claimant had to also read a screen advising him of the claimant handbook which stated “By clicking the button Yes I agree, file my claim’, you are agreeing to the responsibilities in the claimant handbook and indicating that you understand the penalties for falsification above.” Each voucher submitted for which the claimant received unemployment benefits contained a question inquiring “Did you work?” and “If you worked, how much did you earn for the week?”. Each of the vouchers submitted for which the claimant received unemployment benefits all are marked with a negative response to such questions. In order to submit each voucher, the claimant had to read a voucher certification screen which stated “I certify that I have entered any and all work, earnings and self-employment activity for this week — I certify that all answers given in the application for benefits are true and accurate. I am aware that if I knowingly fail to disclose information or give false statements to receive unemployment benefits I may lose my unemployment benefits, be required to repay benefits received improperly with interest and penalty, and may be subject to civil and criminal prosecution”. The claimant had to read such screen before clicking the button “Yes, I agree, file my claim” to submit the voucher.
When questioned by the Department Investigator, the claimant alleged that his spouse had continued to file vouchers without his knowledge and had continued to use the debit card without his knowledge after he had returned to work. The Administrative Law Judge finds that the claimant’s allegations lack credibility in light of the fact that the claimant had personal possession of the debit card several months after he had returned to work and debit card usage remained consistent during the entire time frame even when the claimant’s spouse was physically incarcerated. Further, the Administrative Law Judge finds that if the information concerning the claimant’s employment and earnings during such time frame had been properly reported then his benefits would have been reduced or the claimant would not have been eligible to receive unemployment benefits for substantially all of the weeks for which vouchers were submitted and benefits paid to the claimant.
CONCLUSIONS OF LAW:
The Administrative Law Judge concludes that the claimant knowingly provided his confidential user ID and password to his spouse and that his spouse submitted vouchers requesting unemployment benefits during the period of time in question with the claimant’s knowledge and consent. The claimant was placed on notice at the time of filing his claim that he was responsible for ensuring that all information submitted was honest and accurate and that he was responsible for all information submitted using his confidential user ID and password. Further, the Administrative Law Judge concludes that the claimant received benefits to which he would not have otherwise [] been entitled if his employment status and wage information had been properly reported to the Department. Further, the Administrative Law Judge concludes that the claimant benefited from the mutual use of the unemployment insurance debit card by his wife and had exclusive control over such card during a period of time when his wife could not have used the card during which the debit card was still used. The claimant was negligent in the supervision and control of his confidential user ID, password and debit card. Further, the Administrative Law Judge concludes that this information submitted on the claimant’s claim was knowingly done by an individual with the consent of and knowledge of the claimant. As such, the Administrative Law Judge concludes that the terms of Ind.Code 22-4-13-1.1 apply to the claimant in this case.
DECISION: The decision of the Investigator dated November 15, 2012, is affirmed. The claimant received benefits to which he was not entitled and is now liable to repay to the Department. A penalty amount of 25% is assessed for the first instance occurring during the regular claim with benefit year ending October 1, 2010, a 50% penalty is assessed with regard to the second instance occurring in the federal extended unemployment claim with the same benefit year ending date and 100% penalty is assessed with regard to the third instance occurring during the second regular claim with a benefit year ending date of October 2, 2011. All the claimant’s wages earned during the weeks of overpayment are cancelled for future use in establishing unemployment benefits. Interest will accrue on the overpayment balance until satisfied.

Exhibits at 248-250. Telligman appealed the ALJ’s decision and requested to submit additional evidence, and on March 4, 2018, the Board, after noting that no hearing was held by the Board and that no additional evidence was accepted, affirmed the ALJ’s decision. Telligman now appeals the Board’s decision.

DISCUSSION

The first issue is whether the Board erred in concluding that Telligman knowingly failed to disclose or falsified any fact that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits. Telligman contends that “[t]here is much in the record to dispute the inference that [he] had knowledge of the claims at issue,” that his former spouse was the person “who subsequently filed vouchers for [him] using the computer at her parent’s [sic] home,” that he did not accompany her, that she “had access to and primary possession of [his] debit card,” and that he “had no reason to continue to monitor the ID, password, and debit card after returning to work because he believed his unemployment benefits stopped when he started working.” Appellant’s Brief at 6. Telligman further asserts that the Board applied Ind.Code § 22^1-13-1.1 in error, that “[t]he statute does not include a definition for what constitutes an ‘instance,’ ” and that “[n]o explanation was provided for why claims with the same benefit year would be assessed separately.” Id. at 6-7. As to the second issue, he argues that the Board abused its discretion in denying his request to submit additional documents which would rebut the inference that he must have been using the unemployment benefits debit card during a period his former spouse stated she was incarcerated and which would show that he did not submit certain vouchers.

The Board maintains that the statute was correctly applied and that Telligman had fraudulently applied for and received unemployment benefits. The Board argues that, with respect to each of three claims, vouchers were submitted and Tel-ligman received benefits while he was employed. The Board further argues that Telligman shared his user ID and password with his wife, that she submitted vouchers on his behalf and with his consent, and Telligman knowingly allowed his wife control and access to his unemployment account. The Board maintains there was substantial evidence to arrive at the conclusion that Telligman had actual knowledge that he was committing fraud by submitting electronic vouchers while he was employed. The Board also argues that IDWD “has consistently interpreted ‘instance’ to mean each time a new claim for benefits is opened rather than each time a fraudulent voucher is submitted on a particular claim” and that “Telligman filed three separate claims, which translates to three separate instances.” Appel-lee’s Brief at 13. The Board also argues that the ALJ found that Telligman knew his former wife was filing the vouchers, that he agreed pursuant to a “User Agreement” to accept responsibility “for all activities that occur at the site under [his] password,” and thus that, “when [he] knowingly shared his user ID and password with [his former spouse], he became responsible for all information submitted on vouchers.” Id. at 14. Finally, the Board argues that Telligman was not entitled to introduce additional evidence and that he failed to show that the evidence could not have been submitted at the initial hearing.

The standard of review on appeal of a decision of the Board is threefold: (1) findings of basic fact are reviewed for substantial evidence; (2) findings of mixed questions of law and fact — ultimate facts — are reviewed for reasonableness; and (3) legal propositions are reviewed for correctness. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind.2011) (citing McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind.1998), reh’g denied). Ultimate facts are facts that involve an inference or deduction based on the findings of basic fact. Id. (citing McClain, 693 N.E.2d at 1317). Where such facts are within the special competence of the Board, the Court will give greater deference to the Board’s conclusions, broadening the scope of what can be considered reasonable. Id. (citing McClain, 693 N.E.2d at 1318).

Ind.Code § 22-4-1-1 provides that the unemployment compensation system was established “to provide for payment of benefits to persons unemployed through no fault of their own, to encourage stabilization in employment, ... and to provide maximum job training and employment opportunities for the unemployed, underemployed, the economically disadvantaged, dislocated workers, and others with substantial barriers to employment....” At the time Telligman received the benefits at issue, Ind.Code § 22-4-13-1.1 provided in part:

(a) Notwithstanding any other provisions of this article, if an individual knowingly:
(1)fails to disclose amounts earned during any week in the individual’s waiting period, benefit period, or extended benefit period; or
(2)fails to disclose or has falsified any fact;
that would disqualify the individual for benefits, reduce the individual’s benefits, or render the individual ineligible for benefits or extended benefits, the individual forfeits any wage credits earned or any benefits or extended benefits that might otherwise be payable to the individual for the period in which the failure to disclose or falsification occurs.
(b) In addition to amounts forfeited under subsection (a), an individual is subject to the following civil penalties for each instance in which the individual knowingly fails to disclose or falsifies any fact that if accurately reported to the department would disqualify the individual for benefits, reduce the individual’s benefits, or render the individual ineligible for benefits or extended benefits:
(1) For the first instance, an amount equal to twenty-five percent (25%) of the benefit overpayment.
(2) For the second instance, an amount equal to fifty percent (50%) of the benefit overpayment.
(3) For the third and each subsequent instance, an amount equal to one hundred percent (100%) of the benefit overpayment.

(Subsequently amended by Pub.L. No. 154-2013, § 5 (eff. Jul. 1, 2013)).

To the extent Telligman challenges findings of basic fact, our review of the record reveals substantial evidence of the findings of basic fact of the ALJ and the Board. See Recker, 958 N.E.2d at 1139. The ALJ and Board found, and the documents introduced by the IDWD show, that Telligman filed his first claim for regular benefits on October 6, 2009, his second claim for extended benefits on May 11, 2010, and his third claim for regular benefits on October 3, 2010. Further, as found by the ALJ and Board, vouchers were submitted electronically with respect to a number of weekly benefit periods during the time periods associated with each of the three claims, unemployment benefits were deposited to a debit card sent to Telligman, and the card was used for purchases and cash withdrawals. Telligman opened his initial claim at a WorkOne Office, he created a user ID and unique password, and he shared the user ID and password with his wife at the time.

In addition, the ALJ and Board found and the evidence at the hearing shows that Telligman was placed on notice at the time he filed his claim that he was responsible for ensuring that all information submitted was accurate, and that he received benefits to which he would not have otherwise been entitled if his employment status and wage information had been properly reported. The User Agreement which Telligman accepted when he created his online account to file his claims provided in part that Telligman was “responsible for maintaining the confidentiality of [his] account and password” and that “[b]y establishing an account, [Telligman] agrees to accept responsibility for all activities that occur at the site under [Telligman’s] password.” Exhibits at 83. IDWD presented evidence that, in order to submit a claim online, a warning regarding penalties for falsification appears in the middle of the webpage which states: “I understand that I must report all earnings from employment or self-employment regardless of source.” Id. at 78.

Further, IDWD presented evidence that, for each of the vouchers submitted by or on behalf of Telligman, a number of questions required responses including whether the claimant worked during the weekly benefit period and, if so, how much the claimant earned. Each of the vouchers showed that he did not work and did not have earnings during the applicable benefit weeks. The evidence demonstrates that he earned wages in excess of his weekly benefit amount during weeks for which a voucher was submitted by or on his behalf during both of his regular claim periods and his extension claim period.

To the extent Telligman argues that his former wife submitted the weekly vouchers on his behalf and that he had no reason to monitor his user ID, password, and debit card after returning to work because he believed his unemployment benefits had ended, and that he did not knowingly fail to disclose income, we note that “[a] person engages in conduct ‘knowingly5 if, when he engages in the conduct, he is aware of a high probability that he is doing so,” see Ind.Code § 35-41-2-2(b), and this definition of knowingly is incorporated into Ind.Code §§ 22-4-11.5 by Ind.Code §§ 22-4-11.5-6. In Tiller v. Review Bd. of Ind. Dep’t of Workforce Dev., the ALJ and Board had found that the claimant’s wife “did the computer work for claimant, filing for unemployment benefits and filing weekly vouchers.” 974 N.E.2d 478, 480 (Ind.Ct.App.2012). The ALJ and Board found that the claimant failed to disclose or falsified a material fact and therefore was liable to repay to IDWD the total overpayment plus penalties pursuant to Ind.Code § 22-4-13-1.1. Id. The claimant argued that the Board did not resolve several issues including whether he was “computer illiterate,” whether “there was a reasonable explanation for [the claimant’s] wife’s sporadic disclosure of part[-]time wages,” and whether he knew that incorrect information was reported to IDWD. Id. at 481. This court noted that the undisputed evidence demonstrated that the claimant earned wages during his benefit and extended benefit periods and that his wife, acting on his behalf, knew of those wages but did not disclose them to IDWD. Id. at 482. We also stated that “it would be futile to require such disclosures if claimants could circumvent them by stating they were computer illiterate while their agents were ignorant of their actual income.” Id. Telligman provided his user ID and password to his spouse, who submitted vouchers on his behalf for numerous benefit weeks during which he had employment and earnings. As previously noted, the User Agreement which Tellig-man accepted provided that he was “responsible for maintaining the confidentiality of [his] account and password” and that “[b]y establishing an account, [Telligman] agrees to accept responsibility for all activities that occur at the site under [Tellig-man’s] password.” Exhibits at 83. The ALJ found that he permitted his spouse to have possession and use of the debit card, although he regained possession of the card periodically, that Telligman personally had possession of the debit card in August 2010, that he alleged it was removed from his wallet that month without his knowledge, and that the usage records for the card for that month reflected similar usage for purchases and withdrawals at the same merchants and locations as prior usage. The ultimate findings of the ALJ and the Board, including that the submission of the vouchers by Telligman’s former spouse on his behalf was performed with his knowledge and consent, are not unreasonable. -See Recker, 958 N.E.2d at 1139.

Based upon the evidence recited above and in the record regarding Telligman’s three unemployment benefit claims, the vouchers submitted by his former wife with respect to each of the claims, and his employment and earnings, we conclude that the Board did not err in finding that Telligman knowingly failed to disclose or falsified facts related to his employment and earnings that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits.

With respect to Telligman’s argument that the Board erred in failing to accept the evidence he wished to present after the hearing, we note that the decision to accept additional evidence is a decision left to the discretion of the Board. Tiller, 974 N.E.2d at 481. “The rule requires a party offering additional evidence to show good cause why such evidence should be accepted and good reason why it was not introduced before the ALJ.” Id. (Smitty’s Painting, Inc. v. Review Bd. of Workforce Dev., 908 N.E.2d 244, 247 (Ind.Ct.App.2009)). Telligman’s argument is premised on his belief that the additional evidence, if considered by the ALJ and Board, would have negated the conclusion that he knowingly failed to disclose amounts earned during his benefit and extended benefit periods. In Tiller, the claimant similarly argued that, had the Board accepted additional evidence, the evidence would have negated the ALJ’s conclusion that he knowingly failed to disclose amounts earned during his benefit periods. Id. at 482. We noted that we had “no reason to assume the Board would have credited the additional evidence in the same way [the claimant] does” and that the undisputed evidence demonstrated that the claimant earned wages during his benefit and extended benefit periods, that his wife, acting on his behalf, knew of those wages but did not disclose them to IDWD, and that the Board did not abuse its discretion when it did not consider the claimant’s additional evidence. Id.

In this case, like in Tiller, we cannot say that the Board, if it had accepted and considered the additional evidence Tellig-man wished to present, would have credited the additional evidence in the same way Telligman does. See id. Telligman claims that his additional evidence of his debit card activity “would serve to rebut the inference that [he] must have been using the debit card during those dates” and “would also support [his] claim that he did not file the May 11, 2010 or October 3, 2010 claims or submit vouchers, as [his former spouse] was not incarcerated and free to take those actions.” Appellant’s Brief at 9. The evidence before the ALJ and Board included certain debit card usage records, and the ALJ expressly determined that the debit card which accessed the unemployment benefits released to Telligman “was used for purchases from various merchants[,] and cash withdrawals were made from the debit card during such time period” and that, while Tellig-man alleged that the card was removed from his wallet in August 2010 without his knowledge, “the usage records in August 2010 reflected similar usage for purchases and withdrawals at the same merchants and ATM locations as prior debit card usage.” Exhibits at 248-249. The ALJ and Board considered evidence of the nature and frequency of the usage of the debit card and the extent to which the usage records tended to show either that Telligman or his former wife were in possession of the debit card or that Telligman was aware that he or his former wife were using unemployment benefits while he was employed and earning wages.

Further, the additional evidence Tellig-man wished to present to the Board was available prior to the hearing before the ALJ, and he was aware of the dates his former spouse indicated she was incarcerated in her sworn statement made available to him prior to the hearing. Specifically, in her statement which was admitted as IDWD’s Exhibit E at the hearing, when asked if she received certain benefits using the debit card belonging to Telligman “for weeks ending 10/9/10 to 12/18/10,” Tellig-man’s former spouse stated: “No I did not use Shawn Debit card in that time Oct 7 to Oct 26 I was in jail.” Exhibits at 165. On another page of her statement, when asked if she had been incarcerated anywhere during any of the other dates of the claims, Telligman’s former spouse stated “yes oct 2010.” Id. at 167. At the hearing, Tellig-man indicated that he had an opportunity to review the pages of IDWD’s Exhibit E, and if he wished he could have presented, at the hearing, the additional evidence he later asked the Board to accept. Further, even if there was no usage of the debit card, Telligman’s former wife, on his behalf, used his user ID and password (which he had shared with her) to submit weekly vouchers indicating that Telligman did not have employment when that was not in fact the case. Pursuant to the User Agreement, Telligman remained responsible for the information provided when the vouchers were submitted on his behalf. We conclude that the Board did not err or abuse its discretion when it did not accept his additional evidence. See Tiller, 974 N.E.2d at 482 (concluding the Board did not abuse its discretion when it did not consider the claimant’s additional evidence).

Finally, with respect to Telligman’s assertion that the ALJ and Board incorrectly interpreted the term “instance” in Ind.Code § 22 — 4-13-1.1 and thus that the penalties assessed against him were improper, we find that the penalties assessed by the ALJ and Board were not improper or erroneously imposed. Subsection (b) of Ind.Code § 22-4-13-1.1 provides for penalty assessments of twenty-five percent, fifty percent, and one hundred percent of the benefit overpayment amounts for the first instance, second instance, and third and each subsequent instance, respectively, when an individual knowingly fails to disclose or falsifies any fact that would disqualify him for benefits. In Tiller, the claimant filed an initial claim for unemployment benefits in February 2010, another claim for extended benefits in August 2010, and a third claim for regular benefits in February 2011. 974 N.E.2d at 479-480. The ALJ and Board assessed penalties for the overpayments and this court affirmed the Board’s decision. Id. at 482. In Tiller, the claimant’s three claims (two claims for regular benefits and one for extended benefits) were not considered one “instance” under Ind.Code § 22-4-13-I.1(b). This interpretation of the statute is reasonable. Telligman filed his first claim for regular benefits on October 6, 2009, a second claim for extended benefits on May II, 2010, and a third claim for regular benefits on October 3, 2010. Vouchers indicating that he was not employed and did not earn wages were submitted during each of the applicable claims periods, and Telligman was employed and earned wages during each of the three claims periods. We find that the assessment of penalties set forth in the decision of the ALJ and adopted by the Board was proper.

CONCLUSION

Based upon the record, we conclude that the ALJ and Board did not err in finding that Telligman knowingly failed to disclose or falsified facts that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, in finding him liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest, and that the Board did not abuse its discretion in denying his request to submit additional evidence.

For the foregoing reasons, we affirm the decision of the Board.

Affirmed.

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

      . A decree of dissolution of marriage was entered on May 9, 2012.

      . 646 IAC 5-10-11(b) (2011) provides:
      Each hearing before the review board shall be confined to the evidence submitted before the administrative law judge unless it is an original hearing. Provided, however, the review board may hear or procure additional evidence upon its own motion,
      or upon written application of either party, and for good cause shown, together with a showing of good reason why the additional evidence was not procured and introduced at the hearing before the administrative law judge.


author: WENTWORTH, J.

text:
    ORANGE COUNTY ASSESSOR, Petitioner, v. James E. STOUT, Respondent.
    No. 49T10-1112-TA-94.
    Tax Court of Indiana.
    Oct. 2, 2013.

      Marilyn S. Meighen, Attorney At Law, Carmel, IN, Attorney for Petitioner.
    James E. Stout, West Baden Springs, IN, Respondent Appearing Pro Se.
   WENTWORTH, J.

The Orange County Assessor claims that the Indiana Board of Tax Review’s final determination regarding James E. Stout’s 2009 real property assessment is not in accordance with the law because the Indiana Board applied Indiana Code § 6-1.1-15-17, a burden-shifting statute, improperly. In the alternative, the Assessor argues that the Indiana Board’s final determination is not supported by the evidence. The Court, however, affirms the Indiana Board’s decision.

FACTS AND PROCEDURAL HISTORY

Stout owns 9.12 acres of land in West Baden Springs, Indiana. For the 2008 tax year, his land was assessed at $8,000. For the 2009 tax year, however, his land’s assessed value increased to $45,600 because the Assessor reclassified 8.12 acres of “agricultural” land to “residential excess” land.

On May 18, 2010, Stout filed an appeal with the Orange County Property Tax Assessment Board of Appeals (PTABOA). The PTABOA held a hearing on July 27, 2010. When, after 120 days the PTABOA still had not issued a decision on his appeal, Stout sought relief from the Indiana Board.

The Indiana Board conducted a hearing on Stout’s appeal on July 7, 2011. During that hearing, Stout argued that because his assessment increased by more than 5% from 2008 to 2009, Indiana Code § 6 — 1.1— 15-17 required the Assessor to prove that the assessment was correct. The Assessor asserted, on the other hand, that because Indiana Code § 6-1.1-15-17 was first effective July 1, 2011, it applied only to assessment appeals involving the March 1, 2012, assessments and forward. The Assessor explained that because Stout was appealing his 2009 assessment, Indiana Code § 6-1.1-15-17 did not apply, and Stout therefore bore the burden of proving that his assessment was incorrect.

On November 7, 2011, the Indiana Board issued a final determination finding that the Assessor bore the burden of proving that Stout’s land assessment was proper. The Indiana Board then concluded that the Assessor failed to meet that burden. (See Cert. Admin. R. at 17-18 ¶ 14(g) — (h).)

The Assessor initiated this original tax appeal on December 19, 2011. The Court heard oral argument on April 13, 2012. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct.2003). Accordingly, the Assessor must demonstrate to the Court that the Indiana Board’s final determination in this matter is not in accordance with law or that it is unsupported by substantial evidence. -See Ind.Code § 33 — 26—6—6(e)(1), (5) (2013).

LAW

Prior to 2009, a taxpayer who challenged his property tax assessment bore the burden of proof (i.e., the burden of persuading the fact-finder that the assessment was incorrect and the initial burden of producing evidence to demonstrate that the assessment was incorrect). See, e.g., Ind.Code § 6-l.l-15-l(m)(2) (2008) (indicating that a taxpayer that initiates a property tax appeal must “prosecute” the review) (footnote added). See also 2002 Real PropeRty Assessment Manual (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 5 (explaining that an assessment made pursuant to its guidelines is presumed accurate unless the taxpayer demonstrates otherwise). In 2009, however, the General Assembly established an exception to that rule by adding subsection (p) to Indiana Code § 6-1.1-15-1:

This subsection applies if the assessment for which a notice of review is filed increased the assessed value of the assessed property by more than five percent (5%) over the assessed value finally determined for the immediately preceding assessment date[,] [t]he county assessor or township assessor making the assessment has the burden of proving that the assessment is correct.

Ind.Code § 6-l.l-15-l(p) (eff. July 1, 2009) (repealed 2011). Then, in July of 2011, the General Assembly repealed Indiana Code § 6 — 1.1—15—1 (p), while enacting a similar provision, Indiana Code § 6-1.1-15-17, the same day. See Pub.L. No. 172-2011 §§ 30, 32 (eff. July 1, 2011); Ind. Code § 6-1.1-15-17 (2011) (repealed 2012). Indiana Code § 6-1.1-15-17 stated:

This section applies to any review or appeal of an assessment under this chapter if the assessment that is the subject of the review or appeal increased the assessed value of the assessed property by more than five percent (5%) over the assessed value determined by the county assessor or township assessor (if any) for the immediately preceding assessment date for the same property. The county assessor or township assessor making the assessment has the burden of proving that the assessment is correct in any review or appeal under this chapter and in any appeals taken to the Indiana board of tax review or to the Indiana tax court.

I.C. § 6-1.1-15-17. These statutes contain what is commonly referred to as “the burden-shifting rule.”

ANALYSIS

I.

On appeal, the Assessor first claims that the Indiana Board’s final determination is not in accordance with the law because it “incorrectly applies the new burden of proof statute, Indiana] Code § 6 — 1.1—15—17[.]” (Pet’r Br. at 1 (emphasis added).) More specifically, the Assessor argues that in applying Indiana Code § 6-1.1-15-17 to Stout’s 2009 assessment appeal, which was already pending before the statute’s effective date of July 1, 2011, the Indiana Board applied the new statute retroactively, in contravention of Indiana case law. {See Pet’r Br. at 7-8 (footnote added).) The Assessor’s argument fails, however, for the following interrelated reasons.

First, contrary to the Assessor’s argument, Indiana Code § 6-1.1-15-17 is not a “new” statute, as its content had already been codified at Indiana Code § 6-1.1 — 15—1(p). See supra at p. 4; Lake Cnty. Assessor v. Amoco Sulfur Recovery Corp., 930 N.E.2d 1248, 1254-55 (Ind. Tax Ct.2010) (stating that “[statutes related to the same general subject matter are in pari materia and should be construed together so as to produce a harmonious result”) (citation omitted), review denied. The General Assembly repealed Indiana Code § 6-l.l-15-l(p) and enacted § 6-1.1-15-17 to clarify its original intent in enacting Indiana Code § 6 — 1.1—15—l(p): that the 5% burden-shifting rule was to be applied not solely at the preliminary level of the administrative process (ie., the PTABOA level), but throughout the entire appeals process. This clarification makes particular sense considering the overall structure of the property tax appeal process: PTABOA hearings are informal, non-record proceedings; whereas, hearings before the Indiana Board are more formalistic proceedings where a record is created for subsequent review. Accordingly, in originally enacting Indiana Code § 6 — 1.1—15—1 (p), the General Assembly could not have intended the illogical result of shifting the burden of proof to the Assessor in the preliminary stages of an appeal only to shift it back to the taxpayer thereafter. See Uniden Am. Corp. v. Indiana Dep’t of State Revenue, 718 N.E.2d 821, 828 (Ind. Tax Ct.1999) (explaining that statutes must be read in such a way that prevents an illogical or absurd result). See also Indiana Dep’t of State Revenue v. Kitchin Hospitality, LLC, 907 N.E.2d 997, 1002 (Ind.2009) (stating that “[w]here it appears that the Legislature amends a statute to express its original intention more clearly, the normal presumption that an amendment changes a statute’s meaning does not apply”) (citation omitted). Thus, as early as 2009, the General Assembly deemed an annual increase in the assessed value of property in excess of 5% to automatically shift the burden of proof from the taxpayer (to demonstrate that the assessment was incorrect) to the assessing official (to demonstrate that the assessment was correct). See Johnson Cnty. Farm Bureau Coop. Ass’n v. Indiana Dep’t of State Revenue, 568 N.E.2d 578, 580-81 (Ind. Tax Ct.1991) (explaining that in construing a statute, a court’s primary goal is to determine and implement the legislature’s intent in enacting the statute and the actual language of the statute itself is the best evidence of that intent), aff'd by 585 N.E.2d 1336 (Ind.1992).

Second, the Assessor’s argument fails because it is premised on the belief that the statutory “trigger” for shifting the burden of proof from the taxpayer to an assessing official is the assessment date. In other words, the Assessor believes that for Indiana Code § 6-1.1-15-17 to apply, the assessment — as well as the subsequent appeal thereon — must have occurred after the statute’s effective date. (See, e.g., Oral Arg. Tr. at 20-22.) Neither the plain language of Indiana Code § 6-1.1-15-17, nor the plain language of its predecessor, Indiana Code § 6-l.l-15-l(p), supports this interpretation. Both statutes similarly indicate that the burden of proof shifts from the taxpayer to an assessing official when a taxpayer files an appeal on an assessment that increased by more than 5% from one year to the next. See supra at p. 4. This shift in the burden of proof applies to the process and procedure of appeals alone, not to the mechanics of valuing property as of a certain assessment date. Accordingly, the statutes apply to all pending appeals regardless of assessment dates. Moreover, it would be impractical to find that the statute’s trigger is the assessment date because an assessment that increases by more than 5% from one year to the next matters little if the taxpayer chooses not to challenge the increase. See City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007) (stating that courts will not presume that the Legislature intended statutory language to be applied illogieally or in a way that would bring about an absurd result).

Between 2008 and 2009, the Assessor increased Stout’s land assessment by more than 5%. When Stout appealed that assessment to the PTABOA on May 18, 2010, Indiana Code § 6-l.l-15-l(p) was in effect, placing the burden of proof on the Assessor to establish the propriety of the assessment increase. Consequently, the Indiana Board’s final determination that the Assessor bore the burden of proof in this case is in accordance with the law.

II.

As an alternative argument, the Assessor contends that the Indiana Board’s final determination is not supported by the evidence because she clearly met her burden of proof in this case: she provided a reasonable basis for reclassifying Stout’s land. (See Pet’r Br. at 3.) This alternative argument also fails.

Land is classified and assessed as agricultural land when it is devoted to an agricultural use. Ind.Code § 6-1.1-4-13(a) (2009) (amended 2012). Devoting land to an agricultural use involves, among other things, the cultivation of income-producing crops. See Real Property Assessment Guidelines For 2002 — Version A (2004 Reprint) (incorporated by reference at 50 I.A.C. 2.3-1-2), Bk. 1, Ch. 2 at 99 (explaining that in valuing agricultural land, assessing officials typically use the income approach to determine “the residual or net income that will accrue to the land from [the] agricultural production”). One type of agricultural classification is “woodland,” which is defined as

land supporting trees capable of producing timber or other wood products. This land has 50% or more canopy cover or is a permanently planted reforested area. This land use type includes land accepted and certified by the Indiana Department of Natural Resources as forest plantation under guidelines established to minimize soil erosion.

Id. at 102,104 (footnote added).

During the Indiana Board hearing, the Assessor submitted an aerial map that not only demonstrated that the tree canopy covered more than 50% of Stout’s property, but also that Stout’s tree canopy was similar to the neighboring properties. (See Cert. Admin. R. at 63,149-52.) When asked to clarify why some of those neighboring properties were classified as “agricultural” while others were classified as “residential excess,” the Assessor stated:

What the County has attempted to do ... is any property that is ... classified as ag, it ... would need to be either actively farmed or in the case of wooded, it would need to be harvestable timber[.] ... The State has asked, recommended [to] the counties if it is wooded ground that the [property owner] provide a forest management plan and/or a timber harvesting plan for it to qualify as agricultural property. And what the County is doing ... [is] reviewing all parcels that have been classified as agricultural to see if they actually would [meet] the State’s mandate or the DLGF’s mandate for agricultural property.

(Cert. Admin. R. at 152-53.) In other words, the Assessor explained that she changed the classification on Stout’s land from “agricultural” to “residential excess” solely on the basis that she did not have a forest management plan or a timber harvesting plan for the property. (See Cert. Admin. R. at 152-53 (footnote added).)

A final determination is not supported by the evidence if, upon reviewing the record in its entirety, a reasonable person cannot find enough relevant evidence to support the determination. See Amax, Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct.1990). Here, a reasonable mind would not accept the lack of a forest management plan or a timber harvesting plan alone as adequate support for the conclusion that Stout’s property was not being used for agricultural purposes. For example, the Department of Natural Resources only prescribes forest management plans for parcels that are a minimum of ten contiguous acres. See Ind.Code §§ 6-1.1-6-5, -16(b) (2009). The land at issue, however, is only 8.12 acres.

Moreover, the fact that the Assessor did not have in her possession a timber harvesting plan for the property does not mean that one does not exist. (See generally Cert. Admin. R. (failing to indicate that the Assessor actually requested or provided Stout with an opportunity to present such a plan at the time she began her investigation).) Similarly, the lack of a timber harvesting plan does not mean that Stout has not harvested, or is harvesting, timber from the property. Because the Assessor failed to provide any evidence that demonstrated that Stout was not using his 8.12 acre property for an agricultural purpose, the Court cannot say that the Indiana Board’s final determination is not supported by substantial evidence.

CONCLUSION

For the above-stated reasons, the final determination of the Indiana Board is AFFIRMED.

      . The remaining acre of Stout's land was classified as "residential homesite” land. That classification, the assessed values assigned to Stout’s residence, and the assessed values assigned to the two small utility buildings on the property are not at issue in this case.

      . In the alternative, Stout asserted that his land’s agricultural classification was proper because: 1) the tree canopy cover on seven acres was 100%; 2) he purchased another 1,000 trees for replanting on the eighth acre; and 3) similarly wooded neighboring properties were classified as agricultural. (Cert. Admin. R. at 3, 51-53, 139-42.)

      . The term “burden of proof” incorporates both the burden of persuasion and the burden of production. See Porter Mem'l Hasp. v. Malak, 484 N.E.2d 54, 58 (Ind.Ct.App.1985), trans. denied. The burden of persuasion is “[a] party’s duty to convince the fact-finder to view the facts in a way that favors that party.” Black’s Law Dictionary 223 (9th ed. 2009). The burden of production, however, is "[a] party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against [it] in a peremptory ruling[.]” Id. While the burden of production may shift between parties during the course of litigation, the burden of persuasion does not. See, e.g., Peabody Coal Co. v. Ralston, 578 N.E.2d 751, 753-54 (Ind.Ct.App.1991).

      . On February 22, 2012, the General Assembly repealed Indiana Code § 6-1.1-15-17 and enacted Indiana Code § 6-1.1-15-17.2, which contains the identical language provided in Indiana Code § 6-1.1-15-17. Compare Ind. Code § 6-1.1-15-17 (2011) (repealed 2012) with Ind.Code § 6-1.1-15-17.2 (2012).

      . Statutes are to be given prospective effect only, unless the Legislature has unambiguously and unequivocally intended retroactive ef-feet as well. Indiana Dep’t of State Revenue, Inheritance Tax Div. v. Estate of Riggs, 735 N.E.2d 340, 344 (Ind. Tax Ct.2000).

      . In contrast, land designated as "residential excess” is land “dedicated to a non-agricultural use normally associated with the home-site. Areas containing a large manicured yard over and above the accepted one acre homesite would qualify for the [residential] excess” classification. See, e.g., Real Property Assessment Guidelines For 2002 — Version A (2004 Reprint) (Guidelines) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2), Bk. 1, Ch. 2 at 105-06.

      . In any event, the Assessor claimed that her overall assessment of the property for $108,400 was supported by the fact that when Stout listed the property for sale in September of 2009 — improvements and all — he was asking $127,000. (Cert. Admin. R. at 148-49.) The Indiana Board rejected this argu-mem on three grounds: 1) the Assessor failed to provide any evidence relating the September 2009 ask price to the January 2008 valuation date; 2) Stout testified without contradiction that his ask price included personal property; and 3) Stout testified without contradiction that he never got any offers at that price. (Cert. Admin. R. at 17 ¶ 14(d).) The Assessor does not challenge the Indiana Board’s ruling on this claim.

      . In essence, the Assessor complains that the Indiana Board required her — impossibly—to prove a negative (i.e., that Stout was not using his property for an agricultural purpose). (Oral Arg. Tr. at 19-20; Pet'r Br. at 15-16.) The Assessor’s complaint ignores the fact that while she was conducting her investigation, she could have asked Stout for evidence of a farm number as assigned by the United States Department of Agriculture, crop sales, or tax returns reporting farm income.


text:
    In the Matter of Michael L. LIPSKY, Respondent.
    No. 71S00-1308-DI-550.
    Supreme Court of Indiana.
    Oct. 24, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On August 29, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $524.44 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of James C. KOTZ, Respondent.
    No. 45S00-1308-DI-509.
    Supreme Court of Indiana.
    Oct. 24, 2013.
   PUBLISHED ORDER IMPOSING RECIPROCAL DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause,” advising that Respondent was disciplined by the States of Illinois and Wisconsin and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On August 14, 2013, this Court issued an “Order to Show Cause,” to which Respondent has not responded.

Respondent was admitted to practice law in Indiana, Illinois, and Wisconsin. On September 20, 2011, the Supreme Court of Illinois found Respondent’s conduct violated that jurisdiction’s rules of professional conduct. For this misconduct, the Supreme Court of Illinois ordered Respondent’s name stricken from that state’s role of attorneys. On September 25, 2012, the Supreme Court of Wisconsin entered reciprocal discipline against Respondent and revoked his license in that state.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in Illinois and Wisconsin, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect. The Court notes that Respondent is currently under an order of interim suspension entered on September 12, 2013, in Cause No. 45S00-1308-DI-510.

The Clerk of this Court is directed to forward notice of this Order to Respondent or Respondent’s attorney, to the Indiana Supreme Court Disciplinary Commission, to the Supreme Courts of Illinois and Wisconsin to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: BRADFORB, Judge.

text:
    Michael E. LYONS, Individually; Denita L. Lyons, Individually; Michael E. Lyons and Denita L. Lyons, as Co-personal Representatives of the Estate of Megan Renee Lyons, Deceased, Appellants/Plaintiffs, v. RICHMOND COMMUNITY SCHOOL CORPORATION d/b/a Richmond High School; Joe Spicer; Jeffrey Thorne; and Maggie Larue, in their individual and official capacities, Appellees/Defendants, Indiana Insurance Company, Appellee/Non-Party-Respondent.
    No. 89A04-1204-PL-159.
    Court of Appeals of Indiana.
    July 31, 2013.
    Gary P. Price, Indianapolis, IN, Attorney for Appellants.
    Rick D. Meils, John W. Mervilde, Meils Thompson Bietz & Berish, Indianapolis, IN, Attorneys for Appellees Richmond Community School Corporation et al.
    James S. Stephenson, Stephenson Mo-row & Semler, Indianapolis, IN, Attorney for Appellee Indiana Insurance Company.
   OPINION ON REHEARING

BRADFORB, Judge.

Appellees/Defendants Richmond Community School Corporation and certain school administrators (“RCSC”) petition this court for rehearing. We grant RCSC’s petition, in part, for the limited purpose of concluding that, “[although there may be factual issues to be determined, whether there has been compliance with the [Indiana Tort Claims] Act’s notice requirement is a question of law for the court.” Gregor v. Szarmach, 706 N.E.2d 240, 241 (Ind.Ct.App.1999); accord City of Indpls. v. Satz, 268 Ind. 581, 377 N.E.2d 623, 625 (1978). In our original opinion, we stated that the issue should be presented to the jury.

On remand, the trial court that should determine whether, in the exercise of ordinary diligence, Appellants/Plaintiffs Michael and Benita Lyons could have learned of RCSC’s alleged “tortious acts” prior to July 15, 2009. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind.1992). July 15, 2009, was 180 days before the Lyonses filed notice of their claims on January 11, 2010. In all other respects, we reaffirm our original disposition.

ROBB, C.J., and BAKER, J., concur.


author: BROWN, Judge.

text:
    Jason Lee SOWERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 08A02-1208-CR-640.
    Court of Appeals of Indiana.
    Oct. 25, 2013.

      Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

BROWN, Judge.

Jason Lee Sowers petitions for rehearing following our published opinion in Sowers v. State, 988 N.E.2d 360 (Ind.Ct.App.2013), in which we held that the communication between the bailiff and the foreperson resulted in fundamental error and reversed Sowers’s convictions for criminal recklessness as a class D felony, resisting law enforcement as a class D felony, and his adjudication as an habitual offender, and remanded for proceedings. On rehearing, Sowers raises one issue, which we revise and restate as whether this court should address an insufficient evidence claim. For the following reasons, we grant Sowers’s petition for rehearing.

Sowers argues on rehearing that he raised a claim of insufficient evidence of sanity on appeal, the State responded, and the claim was addressed in Sowers’s reply brief, but this court did not address the insufficient evidence of sanity claim. Sowers contends that this court should address his “insufficient of evidence of sanity claim to ensure that the double jeopardy clause of the federal constitution will not be violated by retrial.” Petition for Rehearing at 2. Sowers also argues that “[w]hen considering the totality of the circumstances including the undisputed evidence that Sowers was in the midst of a severe psychotic episode that resulted in his emergency detention in a mental facility immediately after the alleged crimes concluded, his demeanor, along with the fact that he could see the police, are not evidence of sanity.” Id. at 3.

Initially, we observe that Sowers raised two issues in his statement of issues. One issue related to the communication between the bailiff and the jury foreperson. The other issue was “[w]hether the jury erroneously rejected [his] insanity defense on the charges of Criminal Recklessness and Resisting Law Enforcement while finding him not responsible by reason of insanity on the charge of Battery by Means of a Deadly Weapon that was a part of the same criminal episode.” Appellant’s Brief at 1. In his dissent in this case, Judge Bradford stated that “Sowers’s claim should instead be framed as whether the evidence was sufficient to sustain the jury’s determination that Sowers was able to appreciate the wrongfulness of his conduct.” 988 N.E.2d at 372. While Sowers did not phrase the issue as one of sufficiency of evidence, we will address his arguments to the extent that he raised the issue in his appellant’s brief and petition for rehearing and to the extent that we must determine whether the evidence was sufficient to permit retrial. See Hernandez v. State, 785 N.E.2d 294, 301 (Ind.Ct.App.2003) (reversing the defendant’s convictions in light of the erroneous admission of evidence, holding that double jeopardy forbids a retrial if the reviewing court concludes that the evidence is legally insufficient to support the conviction, and addressing whether the evidence of the charges was sufficient to permit retrial), trans. denied.

In his dissent, Judge Bradford addressed the sufficiency of evidence, stated that it was for the jury to weigh the evidence including the reports submitted by Drs. Little and Rogers as well as Detective Blackwell’s testimony, and concluded that the evidence was sufficient to support the jury’s determination regarding Sowers’s mental state. 988 N.E.2d at 372-373. We adopt Judge Bradford’s analysis on this issue and conclude that the evidence is sufficient to permit retrial.

For the foregoing reasons, we grant Sowers’s petition for rehearing and remand for proceedings consistent with this opinion.

BRADFORD, J., concurs.

RILEY, J., would deny petition for rehearing.


text:
    Gerald CLEMONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1210-CR-587.
    Court of Appeals of Indiana.
    Oct. 29, 2013.
   OPINION

BROWN, Judge.

Gerald Clemons appeals his conviction for possession of cocaine. Clemons raises one issue, which we restate as whether the evidence is sufficient to sustain his conviction. We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of March 3, 2012, Indianapolis Metropolitan Police Officer Brad Alford responded to a dispatch regarding a domestic disturbance at an apartment complex in Marion County. When Officer Alford arrived, he heard muffled screaming and banging coming from an upstairs apartment. He opened the exterior building door, entered the narrow common hallway of the apartment building, and heard noise coming from the apartment up the stairs and to the left. Officer Alford shined his flashlight in the hallway and noticed blood splatter on the walls and on the handrail leading up to the door from which the noise was coming. He went up the stairs, stopped just outside the closed door to the apartment unit occupied by Clemons and his girlfriend, Kayla Conner, and heard “belligerent yelling and screaming” coming from inside the apartment. Transcript at 24. Clemons said, “I’m going to f— you up, b — , I’m going to f--kill you.” Id. Officer Alford kicked the door loudly in an attempt to attract the attention of someone inside the apartment. The yelling and banging ceased, and about five to ten seconds later, Officer Alford heard footsteps coming toward the door. As no one answered the door, Officer Alford again knocked very loudly and announced, “police officer, open the door.” Id. at 25. In response, he heard a muffled female voice very clearly say, “help me, please help me.” Id. Clemons asked “who is it” from inside the apartment, and Officer Alford stated that he was a police officer and to open the door. Id.

Clemons opened the door about six inches, and Officer Alford noticed that he was not wearing a shirt, was sweating, and that the room was disheveled with “stuff thrown everywhere” and “broken items and blood on the ceiling, floor, and walls.” Id. at 26. Officer Alford entered the apartment, ordered Clemons at gunpoint to move to the ground on his stomach and show his hands, and noticed that Clemons had blood all over his pants and that there was blood splatter on all four walls of the room. Clemons went to his knees but did not show his hands. Officer Ryan Archer arrived at the scene and also ordered Clemons to show his hands, but he still did not comply. Officer Archer deployed his taser, but Clemons still refused to show his hands. Officer Archer used his taser again, Clemons rolled over to his stomach and put his hands behind his back, and Officer Alford handcuffed him. Clemons had blood on his hands, and Officer Archer asked Clemons what had happened. Clemons stated “she cut me.” Id. at 87. Officer Archer asked him to be more specific but Clemons did not wish to say anything else.

Officer Alford then went to the back bathroom and found Conner covered in blood and in the fetal position in the bathtub. He noticed blood on every wall, the ceiling, and the floor of the bathroom. He told Conner, who “was in and out of consciousness” and had blood in her hair, that the medics were on the way to help her. Id. at 35. Medics took her out of the apartment on a stretcher. Officers followed a trail of blood and discovered a kitchen knife, about six inches long, with blood on it underneath the kitchen sink. Clemons was arrested and transported to the arresting processing center (the “APC”), and a search at the APC revealed a substance in Clemons’s sock which was later determined to be 0.6963 grams of cocaine.

The State charged Clemons, as amended, with battery as a class C felony, possession of cocaine as a class D felony, and resisting law enforcement as a class A misdemeanor. A jury trial was conducted during which the jury heard testimony from, among others, Officer Alford, Officer Archer, Conner, and Clemons. During her testimony, Conner indicated that she had been drinking the night of the incident, that she was highly intoxicated, that part of the subject of her argument with Clemons was cocaine, that she wanted to use the cocaine, that Clemons took it from her, and that the argument became heated. Conner indicated that she wanted the cocaine and that Clemons would not give it back. The State also presented photographic evidence of the blood splatter in the hallway and throughout the apartment, including on the walls, in the bathtub, and in other areas, the knife, and Conner’s injuries.

Following the presentation of the State’s case, Clemons moved for a directed verdict, and the court granted the motion as to the charges for battery and resisting law enforcement. The jury found Clemons guilty as charged of possession of cocaine as a class D felony. The court noted that Clemons had no pri- or criminal history, that the circumstances of the crime were unlikely to reoccur, and that the mitigating circumstances outweighed any aggravating circumstances, entered judgment of conviction as a class A misdemeanor, and sentenced Clemons to one year suspended to probation with a condition that he perform forty hours of community service.

ISSUE AND STANDARD OF REVIEW

The issue is whether the evidence is sufficient to sustain Clemons’s conviction for possession of cocaine. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1008, 1005 (Ind.2009). ‘We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

DISCUSSION

Ind. Code § 35-48-4-6 provides in part that a person who “knowingly or intentionally possesses cocaine (pure or adulterated) ... commits possession of cocaine ..., a Class D felony, except as provided in subsection (b).” Clemons contends that, while he was in possession of the cocaine discovered in his sock, the State failed to prove beyond a reasonable doubt that his possession of cocaine was not justified by reason of necessity.

In Dozier v. State, this court stated:

In order to prevail on a claim of necessity, the defendant must show (1) the act charged as criminal must have been done to prevent a significant evil, (2) there must have been no adequate alternative to the commission of the act, (3) the harm caused by the act must not be disproportionate to the harm avoided, (4) the accused must entertain a good faith belief that his act was necessary to prevent greater harm, (5) such belief must be objectively reasonable under all the circumstances, and (6) the accused must not have substantially contributed to the creation of the emergency.

709 N.E.2d 27, 29 (Ind.Ct.App.1999) (citing Toops v. State, 643 N.E.2d 387, 390 (Ind.Ct.App.1994)). In order to negate a claim of necessity, the State must disprove at least one element of the defense beyond a reasonable doubt. Id. (citation omitted). The State may refute a claim of the defense of necessity by direct rebuttal, or by relying upon the sufficiency of the evidence in its case-in-chief. Id. The decision whether a claim of necessity has been disproved is entrusted to the fact-finder. Id. Where a defendant is convicted despite his claim of necessity, this court will reverse the conviction only if no reasonable person could say that the defense was negated by the State beyond a reasonable doubt. Id. The Indiana Supreme Court has noted that necessity is an affirmative defense and that an affirmative defense “admits all the elements of the crime but proves circumstances which excuse the defendant from culpability.” Melendez v. State, 511 N.E.2d 454, 457 (Ind.1987). Indiana Trial Procedure Rule 8(C) provides in part that “[a] responsive pleading shall set forth affirmatively and carry the burden of proving ... any other matter constituting an ... affirmative defense.” In Custer v. Plan Comm’n of City of Garrett, this court noted that Indiana Trial Procedure Rule 15(B) “provides an escape hatch. If the issue is tried by the implied consent of the parties it is treated as if raised by the pleadings.” 699 N.E.2d 793, 795 (Ind.Ct.App.1998) (citing Puckett v. McKinney, 175 Ind.App. 673, 676, 373 N.E.2d 909, 911 (1978) (holding that the defendant had not waived an affirmative defense even though he did not assert it in the pleadings as evidence which tended to establish the defense was elicited at trial and admitted without objection and thus that “it may fairly be assumed the issue was tried with the implied consent of the parties”)).

Clemons specifically argues that “[t]he reason the situation escalated into such a bloody conflict is because [he] wanted to prevent [Conner] from using the cocaine,” that he “possessed the cocaine to avoid a greater harm — [Conner’s] use of it,” that he “was presented with the choice of two evils — 1) allowing [Conner] to use the cocaine and harm herself, or 2) possessing the cocaine to prevent her from using the cocaine,” and that his “possession of the cocaine was the lesser of the two evils, and that he made the right choice in taking it away from [Conner].” Appellant’s Brief at 8. Clemons further asserts that there “was no adequate alternative to the commission of the act — if [he] had not taken the cocaine from her, [Conner] was intent on using it,” that the “bloody situation the police walked into upon their arrival shows that [he] did not have the time to do anything else with the cocaine yet,” that the harm caused was not disproportionate to the harm avoided of Conner’s use of it, and that he “did not substantially contribute to the creation of the emergency — he did not help buy the cocaine or pick it up for her.” Id. at 9.

The State maintains that Clemons failed to the plead the defense of necessity as an affirmative defense prior to trial, that he did not tender, request, or receive any instructions on the defense of necessity, that it is not clear that he argued the defense of necessity at trial, and that, as a result, he forfeited the defense. The State further argues that Clemons failed to establish the elements of a defense of necessity as set forth in Dozier v. State, 709 N.E.2d 27 (Ind.Ct.App.1999), that Clemons did not tell the police that he had been attempting to take cocaine from Conner to prevent her from using it, that he fails to show that less confrontational and violent means could have prevented Conner from using the cocaine, and that Conner’s condition of “lapsing in and out of consciousness while lying in a pool of blood in the bathtub” presented a question regarding whether Clemons’s confiscation of the cocaine was not “disproportionate to the harm avoided.” Id. at 10-11. Additionally, the State notes that Clemons threatened Conner by stating that he was going to “f— you up, b — ” and “I’m going to f-kill you,” and that, to the extent that Conner’s use of cocaine was a significant evil, “it would appear that it was such an evil because it caused the horrific fight” between Conner and Clemons and thus that Clemons substantially contributed to the creation of an emergency. Id. at 11. In his reply brief, Clemons asserts that he did not forfeit his necessity defense because it was tried with the implied consent of the parties, that, through Conner’s testimony, he raised the defense of necessity, and that his closing argument shows he intended to raise the defense of necessity.

We first observe that Clemons does not point to the record to show that he raised a defense of necessity as an affirmative defense prior to trial. To the extent that the defense of necessity was tried with the implied consent of the parties, we conclude that, based upon the evidence, a reasonable person could say that the defense was negated by the State beyond a reasonable doubt and thus that reversal of Clemons’s conviction is not warranted.

The record reveals that Conner had been drinking the night of March 3, 2012, that she was highly intoxicated, that part of the subject of her argument with Clemons was cocaine, that she wanted to use the cocaine, that Clemons took it from her and would not give it back, and that the argument became heated. The jury heard Officer Alford testify that, upon his arrival at the apartment building, he heard muffled screaming and banging coming from the apartment, that he noticed blood splatter on the walls and on the handrail leading up to the apartment door, that he heard “belligerent yelling and screaming” coming from inside the apartment, and that he heard Clemons say “I’m going to f— you up, b — , I’m going to f-- kill you.” Transcript at 24. Officer Alford also heard Conner say “help me, please help me.” Id. at 25. The evidence shows that Clemons was sweating, had blood on his pants, and was not compliant with the officers’ orders to show his hands. The evidence further reveals that the living room of the apartment was disheveled and that blood splatter was on all four walls, that there was blood on every wall, the ceiling, and the floor of the bathroom, that Conner was discovered covered in blood and with blood in her hair in the fetal position in the bathtub, and that she was “in and out of consciousness.” Id. at 35. The evidence also reveals that officers followed a trail of blood to discover a six-inch kitchen knife with blood on it underneath the kitchen sink. The police first learned of the cocaine when Clemons was searched at the APC.

Even if the jury believed that Clemons’s act of possession of the cocaine was to prevent Conner from using or abusing the drug, a reasonable jury could find, based upon the testimony and evidence presented, that there was an adequate alternative to Clemons’s actions, that the harm caused by his actions was disproportionate to the harm avoided, that Clemons did not have a good faith belief that his actions were necessary to prevent greater harm, that his belief that his actions were necessary was not objectively reasonable under all the circumstances, or that Clemons substantially contributed to the creation of the emergency. See Dozier, 709 N.E.2d at 29. Based upon the evidence, we find, to the extent that the defense of necessity was tried with the implied consent of the parties, that there is substantial evidence of probative value such that a reasonable trier of fact could have concluded beyond a reasonable doubt that the State disproved at least one element of the defense of necessity and that Clemons was guilty of possession of cocaine.

CONCLUSION

For the foregoing reasons, we affirm Clemons’s conviction for possession of cocaine.

Affirmed.

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

      . The State originally charged Clemons with two counts of battery as class C felonies, criminal confinement as a class D felony, and possession of cocaine as a class D felony.

      . Specifically, the trial court noted, with respect to the charge for resisting law enforcement, that both officers testified that Clemons was never aggressive towards them and did not come towards or touch them, and as a result there was no evidence that “would qualify as being forcibly resisting.” Transcript at 140. With respect to the charge for battery, the court stated: "the only evidence that the State has presented in it’s [sic] case in chief is that two people, both of them injured were in an apartment when the police got there. There is no evidence of who struck who except the defendant saying she stabbed me. So there's absolutely no evidence as to what happened in that apartment to Kayla Conner.” Id.

      . Ind. Trial Rule 15(B) provides:
      Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.


author: MAY, Judge.

text:
    Gary TIBBS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1210-CR-517.
    Court of Appeals of Indiana.
    Oct. 31, 2013.
    Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Gary Tibbs appeals his convictions of two counts of Class A felony child molesting, three counts of Class B felony child molesting, one count of Class D felony intimidation, and one count of Class D felony child solicitation. He claims the State committed prosecutorial misconduct when it commented during closing argument on the truthfulness of his testimony. We affirm.

FACTS AND PROCEDURAL HISTORY

Between 2002 and 2011, Tibbs molested D.J. and his sister J.J., and solicited oral sex from a third child, T.W. In early 2011, D.J., J.J., and T.W. told T.W.’s grandmother of various sexual acts Tibbs had forced, or attempted to force, the children to commit. The next day the children were interviewed by police and examined by a pediatrician.

Based on those interviews and a search of Tibbs’ home, the State charged Tibbs with three counts of Class A felony child molesting; four counts of Class B felony child molesting; one count of Class D felony intimidation, for allegedly threatening to kill J.J. if she reported the molestation; one count of Class D felony child solicitation, and one count of Class D felony dissemination of matter harmful to minors, for allegedly exposing his genitalia to T.W. Tibbs waived his right to a jury trial and the court heard evidence on August 10, 2012.

During trial, Tibbs claimed he could not have committed two counts of Class B felony child molesting against D.J. because he was “incarcerated at South Bend Correctional Facility[,]” (Tr. at 168), for the entire time alleged in those two counts, specifically between “November 21, 2002, and November 20, 2003[.]” (App. at 33.) On cross-examination, the State asked Tibbs if his juvenile record would indicate he was serving time at the South Bend Correctional Facility on the dates he alleged, and Tibbs indicated it would. The State introduced Tibbs’ juvenile record into evidence, which record did not show Tibbs was incarcerated in South Bend. The State attempted to locate, but could not find in the Department of Correction online offender database, any information regarding Tibbs’ alleged incarceration in South Bend.

During closing argument, the State said:

Can you take what the Defendant and his mother say to the bank? Absolutely not. The records that the Defendant agrees with contradict his own testimony. And even if you believe his testimony that he was in South Bend for a period of time, he was back in Indianapolis in 2003 and that’s what he testified to. And he’s provided this court with no documentation to show he was sent to the Department of Corrections [sic]. And his juvenile record does not show him being sent to the Department of Corrections [sic].

(Tr. at 186-87.) Tibbs did not object, but during his closing argument he asked the trial court to “hold up on [its] opinion until I go to South Bend and render — give us (unintelligible) and see if he in fact was in South Bend incarcerated.” (Id. at 189.) The trial court denied Tibbs’ request because Tibbs had rested his case. However, the trial court indicated it would entertain a motion to consider new evidence if the documentation was found. The trial court then found Tibbs guilty to of two counts of Class A felony child molesting, three counts of Class B felony child molesting, one count of Class D felony intimidation, and one count of Class D felony child solicitation.

Tibbs did not file a motion to consider new evidence. His pre-sentence investigation (PSI) report indicated Tibbs was incarcerated from August 15, 2002, until approximately August 25, 2003, when Tibbs began a portion of his sentence on home detention. During sentencing, Tibbs argued the information in the PSI proved he could not have committed an offense between November 21, 2002, and November 20, 2003. However, the State noted Tibbs was released prior to the end of the charged date range and the date of the crime was not an element of the crime. The trial court sentenced Tibbs to an aggregate term of 83.5 years incarcerated.

DISCUSSION AND DECISION

Tibbs argues the State committed prosecutorial misconduct when “the deputy prosecutor created the false impression that Tibbs was lying when he testified truthfully that he had been incarcerated during part of the time he was alleged to have molested D.J.[.]” (Br. of Appellant at 1.) In reviewing a claim of prosecutorial misconduct, we determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Schmidt v. State, 816 N.E.2d 925, 944 (Ind.Ct.App.2004), trans. denied.

Tibbs’ trial counsel did not object to the statements Tibbs now argues were prosecutorial misconduct. A claim of pros-ecutorial misconduct presented on appeal without a contemporaneous trial objection will not succeed unless the defendant establishes not only prosecutorial misconduct but also the additional grounds for fundamental error. Id. For prosecutorial misconduct to be fundamental error, it must make a fair trial impossible or amount to clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm. Id.

The mere fact that an alleged error implicates constitutional issues does not establish it was fundamental. Id. at 945. Our Indiana Supreme Court has emphasized the “extremely narrow” application of the fundamental error doctrine:

To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. To be fundamental error, the error must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.

Benson v. State, 762 N.E.2d 748, 755 (Ind.2002) (citations and quotations omitted).

However, this case was not tried before a jury, but instead was tried before the bench. “[I]n criminal bench trials, we presume that the court disregard[s] inadmissible testimony and render[s] its decision solely on the basis of relevant and probative evidence.” Griffin v. State, 698 N.E.2d 1261, 1267 (Ind.Ct.App.1998), trans. denied. Further, generally valid issues with regard to fundamental error such as “unfair prejudice, confusion of the issues, or potential to mislead the jury” are relevant only in jury trials. Ruiz v. State, 926 N.E.2d 532, 535 (Ind.Ct.App.2010), reh’g denied.

We cannot say that the prosecutor’s actions amounted to fundamental error. The comment was merely a comment upon the evidence, which is permitted during closing argument. See Lopez v. State, 527 N.E.2d 1119, 1127 (Ind.1988) (“a prosecutor may comment on the credibility of witnesses as long as the assertions are based on reasons which arise from the evidence.”) cordingly, we affirm. . Ac-

Affirmed.

BAILEY, J., and BRADFORD, J., concur.

      . Ind.Code § 35-42-4-3(b).

      . Ind.Code § 35-42-4-3(a).

      . Ind.Code § 35-45-2-l(b)(l).

      . Ind.Code § 35-42-4 — 6(b).

      . Ind.Code § 35-49-3-3(a).