author: RILEY, Judge.

text:
    David Daniel JOHNSON, Jr., By Next Friend, INDIANA DEPARTMENT OF CHILD SERVICES, Appellant-Plaintiff, v. The MARION COUNTY CORONER’S OFFICE and City of Indianapolis, Appellees-Defendants.
    No. 49A02-1111-CT-1070.
    Court of Appeals of Indiana.
    July 19, 2012.

      Robert D. King, Jr., David R. Thompson, Indianapolis, IN, Attorneys for Appellant.

      Beth A. Dale, Office of Corporation Counsel, Indianapolis, IN, Attorney for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, D.J., Jr., by next friend the Indiana Department of Child Services (D.J.), appeals the trial court’s grant of summary judgment in favor of Appellees-Defendants, the Marion County Coroner’s Office (the Coroner’s Office) and the City of Indianapolis (the City) (collectively, the Appellees), with respect to D.J.’s claim for negligent and intentional infliction of emotional distress resulting from the removal of his mother’s remains.

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

D.J. raises three issues on appeal, which we restate as:

(1) Whether the trial court correctly held, as a matter of law, that the Coroner’s Office is entitled to the law enforcement immunity pursuant to the Indiana Tort Claims Act;
(2) Whether summary judgment was appropriate with respect to D.J.’s claim for damages for negligent infliction of emotional distress arising out of the removal of his deceased mother’s remains; and
(3) Whether summary judgment was appropriate with respect to D.J.’s claim for damages for intentional infliction of emotional distress because the Appel-lees’ conduct was extreme and outrageous.

FACTS AND PROCEDURAL HISTORY

In May of 2009, thirteen-year-old D.J was living in an apartment in Indianapolis, Indiana, together with his mother, Teresa Smith (Smith), and his biological father, David Johnson, Sr. (Johnson). Smith and Johnson had never married. The last three to four years, Smith had been bedridden due to her weight and D.J. helped take care of her.-

On May 19, 2009, at approximately 6:30 a.m., Johnson woke up D.J. and asked him to call 911 because something was wrong with his mother. D.J. called 911 and told dispatch that his mother was asleep and would not wake up. While they waited for the paramedics to arrive, D.J. went into his mother’s bedroom and saw her body. Shortly thereafter, Indianapolis Metropolitan Police Officer Randall Denny (Officer Denny) arrived at the apartment. Officer Denny checked Smith’s vital signs and informed D.J. that his mother had died. Upset at hearing this news, D.J. walked out the apartment, told a neighbor that his mother had died, and then sat near the utility box on the sidewalk to cry. Officer Denny contacted the Coroner’s Office with the request to send a deputy coroner to the apartment.

Deputy Coroner Steven Kelly (Kelly) responded. Kelly had been with the Coroner’s Office for approximately one month and had not yet received any formal training. At the apartment, Kelly spoke with Johnson and the police officers who were present. He then went into Smith’s bedroom. Given Smith’s obesity, Kelly was unsure how to handle the situation. Three employees of Digger Mortuary Services, the Coroner’s Office contractor handling the removal of a decedent’s remains, arrived at the apartment. All three employees told Kelly that they did not have the equipment to transport Smith’s remains to the Coroner’s Office. Kelly contacted Michelle Willis (Willis), another Deputy Coroner, to get instructions. Willis was off duty at that time and she suggested that he contact the Chief Deputy Coroner Al-farería Ballew (Ballew). Because Kelly did not have Ballew’s direct phone number, he phoned the Coroner’s office and spoke with the office secretary. After Kelly apprised the secretary of the situation, the secretary placed Kelly on hold while she relayed a message to Ballew, who was in a meeting. The secretary told Ballew that “there is a need to remove an extremely obese female from a scene, who is on a mattress.” (Appellant’s App. p. 114). Bal-lew requested some follow-up information. A while later, the secretary returned and informed Ballew that

[t]he body was situated on a mattress, and the decedent was unable to be removed from the mattress, and that the removal service that [is normally contracted] [Digger Mortuary Services] did not have the appropriate equipment, cot and/or staff that could remove the decedent from the mattress, to any equipment that she could be transported from the scene to the Coroner’s Office.

(Appellant’s App. p. 115). The secretary then recalled a previous case where they had removed a decedent by using a towing service and asked Ballew if she wanted to use a tow truck. Ballew responded, “Well, I guess we can.” (Appellant’s App. p. 114). The secretary then called Zores Towing and instructed them to send a tow truck to the apartment.

After Kelly informed the police officers present that a tow truck was coming to transport Smith’s remains, a police officer contacted the Indianapolis Fire Department (IFD) for assistance. Upon arrival, the IFD started to drag Smith’s body out of the apartment on her mattress, covered with a sheet as the Coroner’s Office did not have any body bags that would fit. A maintenance crew of the apartment complex removed the back door of the apartment. D.J. saw men dragging his mother, on her mattress, through the living room and out the door. Outside, sheets were held up around the mattress in an attempt to block pedestrians, who had gathered around, from watching the removal of Smith’s remains. Smith’s body was dragged to the apartment complex’s courtyard, where the tow truck was parked. At Kelly’s direction, workers winched Smith’s body, secured on the mattress, onto the truck, pulled it up a ramp to the flat bed portion of the truck and then strapped it down. Once Smith’s remains were lashed down on the tow truck, workers tossed a dirty carpet on her before her body was transported to the Coroner’s Office. Later that day, Ballew received a phone call from Jason Stroup, the owner of Digger Mortuary Services, informing her that contrary to what Kelly was told at the apartment, Digger Mortuary Services did have the appropriate equipment to transport remains of obese individuals.

On March 2, 2010, D.J. and Johnson, individually and as D.J.’s next friend, filed their Complaint against Appellees seeking damages for negligent and intentional infliction of emotional distress for their removal and transportation of Smith’s remains. On July 22, 2010, on motion by Appellees, the trial court dismissed the claims brought by Johnson in his individual capacity. On May 16, 2011, D.J. moved for leave to file an amended complaint to add facts and to substitute the Indiana Department of Child Services as his next friend. The trial court granted D.J.’s motion. On July 18, 2011, Appellees filed a motion for summary judgment asserting (1) immunity under the Indiana Tort Claims Act and (2) the absence of any independent evidence indicating negligent or intentional infliction of emotional distress. On September 16, 2011, D.J. filed his reply to Appellees’ motion for summary judgment. On October 24, 2011, the trial court conducted a hearing on the motion. Four days later, on October 28, 2011, the trial court granted Appellees’ motion, summarily ordering the dismissal of D.J.’s claims with prejudice.

D.J. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its.judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its review and facilitate appellate review. Id.

II. The Indiana Tort Claims Act

D.J. contends that the trial court improperly granted summary judgment to Appellees as it incorrectly determined that the Coroner’s Office is immune to suit under the Indiana Tort Claims Act (ITCA). D.J. maintains that because the transportation of Smith’s remains did not amount to an enforcement of the statutory requirement that the Coroner’s Office must investigate the cause of death of a person who has been found dead, the governmental agency’s immunity did not come into play.

The ITCA was enacted after our supreme court in Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972) severely reduced the scope of the common law doctrine of sovereign immunity. See generally Peavler v. Bd. of Comm’rs of Monroe Co., 528 N.E.2d 40 (Ind.1988). In Campbell, our supreme court wrote that the arguments in favor of governmental immunity are “questions which properly belong to the legislature ...” Campbell, 284 N.E.2d at 736. In response to this, in 1974 the General Assembly passed the ITCA which lists a number of governmental activities that are immunized from tort liability. See King v. Northeast Security, Inc., 790 N.E.2d 474, 478 (Ind.2003).

As the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity. Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind.1994). The party seeking immunity has the burden of establishing that its conduct comes within the provisions of the ITCA. Id. Whether a particular governmental act is immune is a question of law for the court to decide, although the question may require extensive factual development. Barnes v. Antich, 700 N.E.2d 262, 265 (Ind.App.1998), trans. denied.

At issue in the present case is what has been referred to as the “law enforcement immunity,” codified at Indiana Code section 34-13-3-3(8) and which provides, in relevant part, as follows:

A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from the following:
(8) The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.

The Coroner’s Office now claims that Section 3(8) entitles it to immunity from the suit brought by D.J. as the alleged tort resulted from the enforcement of I.C. § 36-2-14-6. Indiana Code section 36-2-14-6 states, in pertinent part:

Investigation of death of person; certificate of death; autopsy

Whenever the coroner is notified that a person in the county:

(1) has died from violence;
(2) has died by casualty;
(3) has died when apparently in good health;
(4) has died in an apparently suspicious, unusual, or unnatural manner; or
(5) has been found dead;
The coroner shall, before the scene of the death is disturbed, notify a law enforcement agency having jurisdiction in that area. The agency shall assist the coroner in conducting an investigation of how the person died and a medical investigation of the cause of death. The coroner may hold the remains of the decedent until the investigation of how the person died and the medical investigation of the cause of death are concluded.

The scope of immunity afforded by Section 3(8) has gone through much change since its enactment. In Seymour Nat’l Bank v. State, 422 N.E.2d 1223, 1226 (Ind.1981), clarified upon reh’g, 428 N.E.2d 203, our supreme court interpreted the scope of Section 3(8) for the first time and determined that governmental entities were immune for all acts of enforcement save false arrest and imprisonment. This holding was later explicitly extended to any governmental entity, not just law enforcement officers. Ind. Dep’t. of Correction v. Stagg, 556 N.E.2d 1338, 1341 (Ind.Ct.App.1990), trans. denied. Ten years later, the supreme court went a different direction with Tittle v. Mahan, 582 N.E.2d 796 (Ind.1991), a consolidated case of two separate appeals concerning two inmates who had killed themselves while in jail. Rejecting Seymour, the Tittle court con-eluded that the plain meaning of “enforcement of the law” excluded activities associated with the administration of pre-trial detainees at a county jail. Id. at 801. The court announced that activities included within the term “law enforcement” were limited to those activities attendant to effecting the arrest of those who may have broken the law. Id.

However, two years later, in Quakenbush v. Lackey, 622 N.E.2d 1284 (Ind.1993), our supreme court changed direction again. In Quakenbush, the supreme court granted transfer to decide that a police officer travelling to the scene of a crime was not immune from civil liability for driving negligently. Id. at 1290. In its opening paragraph, the court stated that it was abandoning the dicta of Tittle and was overruling Seymour. Id. at 1285-86. After evaluating Section 3(8), the Quakenbush court concluded that the section “applies to the decision of any governmental entity and its employees about whether to adopt or enforce any statute, rule, or regulation.” Id. at 1287 n. 3. Although this seemingly broadened the definition of enforcement beyond that used in Tittle, the court also limited the availability of law enforcement immunity by employment of the public-private distinction. Id. at 1291. Most notably, the court stated that the dichotomy of the public-private test—in which the government and its employees are subject to liability for the breach of private duties owed to individuals, but are immune from liabilities for the breach of public duties owed to the public at large—comported with the Legislature’s intent in passing the ITCA. Id. at 1290-91. Under such analysis, the court determined that the officer’s conduct of driving in a negligent manner amounted to a private duty, which did not fall within the province of the ITCA. Id.

The following year, our supreme court further clarified its Quakenbush decision in Mullin v. Mun. City of South Bend, 639 N.E.2d 278 (Ind.1994). In Mullin, the city dispatcher failed to send an ambulance to the scene of a house fire despite warnings that people may have been in the house. Id. at 280. This failure was contrary to a departmental notice governing when ambulances were to be dispatched. Id. The Mullin court reasoned that “following governmental policy is not the same as enforcing it, at least in the context of the [ITCA].” Id. at 283. As such, the court concluded that “the scope of enforcement is limited to those activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules, or regulations, or sanction or attempt to sanction a violation thereof.” Id. Applying this interpretation to the facts, the Mullin court concluded that the city was not compelling obedience of another to its rules and held that the city owed no private duty to the victims of the fire. Id. at 285.

The public-private distinction, first pro-poned in Quakenbush, was abandoned in Benton v. City of Oakland City, 721 N.E.2d 224 (Ind.1999) and other cases decided since Benton have followed the definition of enforcement as used in Mullin. See Shumaker, 812 N.E.2d at 1148. More recently in King v. Northeast Security, Inc., 790 N.E.2d 474, 482 (Ind.2003), our supreme court noted that in light of Benton, courts are free to interpret Section 3(8) without referring to the public-private duty test. The King court further held that the language of Section 3(8) restricts immunity to the adoption and enforcement of laws (and a failure to do so) which are within the assignment of the governmental entity-and the legislature intended that a governmental entity be immune only for failing to adopt or enforce a law that falls within the scope of the entity’s purpose or operational power. Id. at 483.

In Shumaker, we reconciled the divergent interpretations of Section 8(8) since the ITCA’s inception and concluded:

that the enforcement spoken of which is now Section 3(8) of the ITCA means compelling or attempting to compel the obedience of another to laws, rules, or regulations, and the sanctioning or attempt to sanction a violation thereof. It would also, by the plain meaning of the statute, include the failure to do such. However, it does not include compliance with or following of laws, rules, or regulations by a governmental unit or its employees. Neither does it include failure to comply with such laws, rules, or regulations. Moreover, a governmental entity will be immune only for adopting or enforcing, or failure to adopt or enforce, a law, rule, or regulation within the scope of the entity’s purpose or operational power.

Shumaker, 812 N.E.2d at 1150. Last year, our supreme court approved our understanding of Section 3(8) in Davis v. Animal Control-City of Evansville, 948 N.E.2d 1161 (2011). The Davis court reiterated that “the critical determination is not whether a governmental entity or employee failed to follow procedures; it is whether a governmental entity or employee failed to enforce a law.” Id. at 1164.

We now turn to the task of applying this interpretation of Section 3(8) to the case at bar. D.J. contends that the trial court improperly granted immunity to the Coroner’s Office because it was not enforcing compliance with I.C. § 36-2-14-6; rather, it was merely attempting to follow the statute when it transported Smith’s remains to the Coroner’s Office. Indiana Code section 36-2-14-6 requires the coroner to notify a law enforcement agency and to conduct an investigation into the cause of death of the individual who was found dead. It also allows the coroner to hold the remains of the decedent until the medical investigation is concluded. The statute is silent with regard to the transportation of the decedent’s remains. Without deciding today whether the statute is applicable on the transportation of a decedent’s remains, we conclude that, based on the facts before us, the Coroner’s Office is not immune under ITCA.

In Mullin, the plaintiff sued the City of South Bend when an emergency dispatcher failed to send an ambulance to a house fire despite a department policy stating that medics would be dispatched to all fire calls where someone was thought to be inside. Mullin, 639 N.E.2d at 280. South Bend claimed statutory immunity under the law enforcement provision, claiming the policy of sending ambulances only to occupied house fires is a rule or regulation within the meaning of the statute and therefore, if the dispatcher failed to follow that policy, that was a failure to enforce a rule or regulation. Id. Our supreme court noted that “following governmental policy is not the same as enforcing it, at least in the context of the [ITCA].” Id. at 283. Because South Bend was neither compelling nor attempting to compel obedience of another to its rule or regulation nor sanctioning or attempting to sanction a violation thereof, it was not engaged in the enforcement within the meaning of the statute and had no statutory immunity. Id.

We are faced with a similar situation here. In order to pursue the directives of the statute and to complete a medical investigation into the cause of Smith’s death after she was found dead at home, Kelly had to transport her remains to the Coroner’s Office. To that end, a tow truck was summoned and her remains were winched onto the flat bed of the truck. By transporting the decedent to the Coroner’s Office, Kelly was not compelling enforcement of the law against another person, he was merely following the law to enable a more detailed investigation. The Coroner’s office conduct in following its own rules does not fall within the definition of enforcement for purposes of immunity under ITCA. Consequently, we reverse the trial court’s grant of immunity to the Coroner’s Office.

III. Negligent Infliction of Emotional Distress

Relying on the bystander rule established in Groves v. Taylor, 729 N.E.2d 569 (Ind.2000), D.J. contends that there is a genuine issue of material fact whether he is entitled to damages for negligent infliction of emotional distress resulting from the trauma he experienced in witnessing the Appellees “defile his mother’s remains.” (Appellant’s Br. p. 11). Therefore, he maintains that the trial court erred when it granted summary judgment to the Appellees.

Traditionally, Indiana courts analyzed claims for negligent infliction of emotional distress under the impact rule, which required a physical injury caused by an impact to the plaintiff. See Ryan v. Brown, 827 N.E.2d 112, 119 (Ind.Ct.App.2005). The underlying rationale for Indiana’s impact rule was that “absent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims, and often so unforeseeable that there is no rational basis for rewarding damages.” Cullison v. Medley, 570 N.E.2d 27, 29 (Ind.1991). In Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind.1991), however, our supreme court modified the impact rule, holding that when:

A plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person[,] ... such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff.

However, following Shuamber, courts continued to interpret the modified impact rule as requiring a direct physical impact. See, e.g., Lachenman, 838 N.E.2d at 457.

On June 7, 2000, our supreme court signaled a new significant development in the law of negligent infliction of emotional distress when it decided Groves v. Taylor, 729 N.E.2d 569 (Ind.2000) in which the court retreated from the physical impact requirement by adopting the bystander rule where recovery is based on direct involvement with the accident. In Groves, the court held that:

Where the direct impact test is not met, a bystander may nevertheless establish direct involvement by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, grandparent, child, or sibling caused by the defendant’s negligent or otherwise tortious conduct.

Id. at 573. The Groves’ holding recognizes that the emotional claim does not arise from the death or severe injury of another, but rather from the direct involvement of the individual bringing the claim in the event which has caused the emotional distress. In other words, the claim is not based upon harm suffered by another; it is based upon harm which is personal to the individual bringing the claim.

Although the facts in the instant case appear unique at first glance, we have previously been called upon in two different instances to decide claims for negligent infliction of emotional distress involving human remains, both cases reaching opposite outcomes. In Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692, 694 (Ind.Ct.App.2002), the Blackwells were the parents of a young man who committed suicide in 1987. They had their son’s body cremated and directed a funeral home to arrange for the transportation of the urn containing his ashes to a glass niche in a cemetery chapel. Id. Twelve years after it was placed in the niche, the mother asked the chapel to move the urn closer to the glass so that she could have a better view. Id. However, several days later the vice-president of the company that owned the chapel informed the Blackwells that his employees had discovered that the urn was empty. Id. After receiving this information, the Blackwells brought claims for, inter alia, negligent infliction of emotional distress against both the funeral home and the cemetery. Id.

On appeal, we noted that the Blackwells sought emotional damages under Groves as bystanders. We pointed out that although Groves’ bystander rule may be in-apposite, the supreme court’s reasoning in Groves was still persuasive and compelling. Id. at 697. We stated that “while there was no physical impact, the Blackwells have alleged serious emotional trauma and it is of a kind that a reasonable person would experience.” Id. We clarified that:

[i]n our view, this is the type of claim that our supreme court spoke of in Groves, where the plaintiff is sufficiently and directly involved in the incident giving rise to the emotional trauma. The rationale underlying the impact rule that prevents concocted claims of mental anguish is not implicated here. We are satisfied that the evidence designated to the trial court in this case is such that the alleged mental anguish suffered by the Blackwells is not likely speculative, exaggerated, fictitious, or foreseeable.

Id. We determined that, provided the Blackwells could prevail on their negligence claim, there was no reason why they should not be allowed to claim damages for emotional distress. Id. Therefore, we reversed the trial court in denying the Blackwells’ claim. Id.

Just recently, we decided York v. Fredrick, 947 N.E.2d 969, 972 (Ind.Ct.App.2011), trans. denied, where the decedent’s daughter and grandchildren filed a claim for negligent infliction of emotional distress against Fredrick, the funeral home, who directed the funeral arrangements. Following the funeral and graveside service, the family left the cemetery, leaving the internment of the remains, in the hands of Fredrick. Id. When the funeral home lowered the casket into the vault, it was discovéred that the casket was too large and would not fit. Id. Employees of the funeral home applied pressure to the corners of the casket. Id. Once the casket was in the vault, the vault was bulging and a seal was difficult to obtain. Id. Ultimately, the vault was interred without being completely sealed. Id. Approximately two weeks later, the Yorks were notified by an anonymous caller that there had been a problem during the interment of them relative and they obtained an exhumation of the remains. Id. The Yorks were present at the exhumation and although they did notice damage to the casket and vault, they did not see any damage to the decedent’s remains. Id. At the Yorks’ request, a video recording and photographs were taken for the exhumation process, vault, casket, and remains. Id. The photographs were stored on a laptop which was taken to a York family reunion, and set up to play the photographs in a slideshow for other family members to view. Id.

In their argument, the Yorks alleged that “the bystander rule was expanded by this court in [Blackwell ] and the facts of this case squarely fit within this expansion.” Id. at 973. We disagreed and found the situation in York to be readily distinguishable from Blackwell. Id. at 975. Referencing Blackwell, we noted that:

[t]hat case involved a truly egregious situation where the funeral home permanently lost the remains of the son of the plaintiffs, who had been directly involved with the funeral arrangements, and which loss was not discovered for over eleven years.... The upset experienced by the Yorks upon learning that [their relative’s] casket and vault had been damaged during burial does not rise to the same level of egregiousness as the situation in Blackwell. As all of the Yorks testified, the remains were not lost and there was no damage to [the decedent’s] remains. Further, as previously stated, they were not present during the burial, and they voluntarily exposed themselves to the exhumation by either being present when it occurred or by later viewing pictures and video taken when it occurred.

Id.

Here, D.J. does not claim any sort of physical injury from the incident that gave rise to the suit. Rather, his claim is based on his emotional distress regarding the Coroner’s Office handling of his mother’s remains. As such, this cause squarely falls within the Groves line of cases that use the bystander test. Turning to the facts before us, we find the nature of the circumstances faced by D.J. to be closer to York than to Blackwell and we conclude that the evidence designated to the trial court in this case establishes that D.J. was not sufficiently and directly involved in the removal of his mother’s remains by the Coroner’s Office.

On May 19, 2009, thirteen-year-old D.J. was informed that his mother, whom he had helped take care of for the past four years, had died. He saw his mother’s body in her bedroom before leaving the apartment. When D.J. returned, the IFD had arrived to render assistance in the transportation of Smith’s remains. They started to drag Smith’s body out of the apartment on her mattress, covered with only a sheet as her remains did not fit in a body bag. D.J. “saw them bringing her into the hallway.” (Appellant’s App. p. 58). D.J. noticed that “[t]hey took her out on her bed ... [,] dragging the bed out” and then his father told him to go over to the neighbor’s apartment. (Appellant’s App. p. 60). While D.J. was at the neighbor’s house, he tried to take a peek out of the window and saw “that she was on some—I thought it was like a back of a truck or something.” (Appellant’s App. p. 61). In his deposition, he clarified “I just saw a truck. I thought they were bringing her out onto the truck, but I didn’t know what they were doing.” (Appellant’s App. p. 62). D.J. later learned on CNN News that his inference that they transported his mother’s remains on a flat bed truck was correct.

We conclude that these circumstances fall within the York rationale because D.J. did not witness any disturbing facts at the time the acts occurred and any exposure which did occur took place later as the result of D.J. voluntarily watching media reports. As to D.J.’s reaction when witnessing his mother’s body initially being moved through the apartment, this reaction is more akin to that normally encountered by grieving relatives who witness the removal of their deceased loved ones. Moreover, D.J. witnessed his mother’s body being moved on the bed only because he voluntarily exposed himself to these actions because he returned to the apartment after having left it upon the paramedics’ arrival. Although the designated facts of this case may paint an egregious picture of an ill-advised transport of a decedent’s remains by the Coroner’s Office, the evidence does not show that D.J. was sufficiently and directly involved in the removal of his mother’s body to justify a claim for negligent infliction of emotional distress. Therefore, we conclude that the trial court did not err when it granted summary judgment for the Appellees.

IV. Intentional Infliction of Emotional Distress

Lastly, D.J. contends that the trial court erred by granting summary judgment to Appellees on his claim for damages for intentional infliction of emotional distress because the conduct displayed by the Coroner’s Office in the removal and transportation of Smith’s body was extreme and outrageous and recklessly caused severe emotional distress to him.

The tort of intentional infliction of emotional distress was first recognized as a separate cause of action without the need for an accompanying tort in Cullison v. Medley, 570 N.E.2d 27 (Ind.1991). In Cullison, our supreme court defined the tort of intentional infliction of emotional distress as: “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.” Id. at 31. It is the intent to harm the plaintiff emotionally which constitutes the basis for the tort. Id. The elements of the tort are that the defendant (1) engages in extreme and outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe emotional distress to another. Id. The requirements to prove this tort are rigorous. Id. We have cited with approval the comment of Restatement (Second) of Torts § 46, cmt. D that:

The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or by a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

See, e.g., York, 947 N.E.2d at 977; Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind.Ct.App.1999). What constitutes extreme and outrageous conduct depends, in part, upon prevailing cultural norms and values. Bradley, 720 N.E.2d at 753. Typically, intentional infliction of emotional distress is found where conduct exceeds all bounds usually tolerated by a decent society and causes mental distress of a very serious kind. Lachenman v. Stice, 838 N.E.2d 451, 457 (Ind.Ct.App.2005), trans. denied. In the appropriate case, the question can be decided as a matter of law. Id.

Construing the designated evidence in favor of D.J., and mindful of Kelly’s denial of any intentional infliction of emotional distress to D.J., we find that there is a genuine issue of material fact whether the Appellees’ conduct is so outrageous that it satisfies the reckless element of the tort. Faced with a difficult situation, Kelly requested advice from Ballew on how to transport Smith’s remains. Although Ballew was informed of Smith’s obesity and the fact that Digger Mortuary Services’ employees had, albeit incorrectly, opined that they were not equipped to handle the remains, Ballew did not further investigate what other resources might be available. Rather, she followed the secretary’s suggestion to call a tow truck. D.J.’s designated evidence reflects that the Coroner’s Office had other resources at its disposal that could have been employed to transport Smith’s remains in a more dignified manner.

The Coroner’s Office dragged Smith’s body outside on a mattress, only covered by a sheet. While an attempt was made to shield her remains from the gathering pedestrians when winching the mattress onto the truck’s flatbed, designated evidence shows media footage of Smith’s remains being moved onto the flat bed and covered by a dirty carpet. Interviewed witnesses expressed their indignation and outrage over the Coroner’s Office treatment of Smith. “Today the print and electronic media openly discuss bodily functions and dysfunctions as a matter of course, but these can be personal and private topics when they concern the health or physical condition of a particular individual.” Bradley, 720 N.E.2d at 753. The Coroner’s Office conduct may have been reckless, disrespectful, and offensive but reasonable persons may differ on whether this conduct reaches the level of extreme and outrageous necessary to satisfy the tort. Accordingly, as there is a genuine issue of material fact, Appellees were not entitled to summary judgment on D.J.’s claim for intentional infliction of emotional distress. We reverse the trial court and remand for further proceedings.

CONCLUSION

Based on the foregoing, we conclude that (1) the Coroner’s Office is not entitled to immunity under the ITCA; (2) summary judgment was appropriate with respect to D.J.’s claim for damages for negligent infliction of emotional distress; and (3) a genuine issue of material fact exists whether the Coroner’s Office conduct amounted to intentional infliction of emotional distress.

Affirmed in part, reversed in part, and remanded for further proceedings.

NAJAM, J. and DARDEN, J., concur.

      . During the course of the proceedings, Johnson's parental rights to D.J. were terminated.

      . It should be noted that Appellees on appeal only argue immunity pursuant to ITCA for the Coroner's Office. Thus, even if we were to hold that the Coroner's Office is immune from suit, which we do not, the City was not acting pursuant to any statutory duty and is not entitled to immunity under ITCA.

      . For a comprehensive review of the Section's history, we refer to Judge Sullivan’s excellent opinion in St. Joseph Co. Police Dept. v. Shumaker, 812 N.E.2d 1143 (Ind.Ct.App.2004), trans. denied. For purposes of this opinion, we will condense our historical explanation.

      . Because the Coroner’s Office did not advance a claim of governmental immunity pursuant to common law, we will not analyze the cause under common law immunity.


source: Caselaw Access Project

author: SULLIVAN, Senior Judge.

license: Public Domain

text:
    Bobby A. HARLAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A01-1110-CR-474.
    Court of Appeals of Indiana.
    July 19, 2012.

      William S. Frankel, IV, Wilkinson, Goel-ler, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SULLIVAN, Senior Judge.

Bobby A. Harlan appeals the sentence imposed upon his two convictions of child molesting, both Class B felonies. Ind. Code § 35-42-4-3 (1981). Harlan also appeals the trial court’s order that he register as a sexually violent predator (SVP). We affirm.

The relevant facts are not in dispute. Harlan and his wife frequently babysat sisters L.G. and A.C. from 1986 through 1994. Once, when Harlan was babysitting L.G. and no one else was present, Harlan watched a pornographic movie with L.G. and induced her to put her mouth on his penis. In addition, he put his penis in L.G.’s vagina on more than ten occasions. These incidents began when L.G. was four or five and ended when she was eleven or twelve. L.G. viewed Harlan as a father figure, and he told her not to tell anyone about his molestations because she could get in trouble and he could go to jail.

In 2009, A.C. told the police about Harlan’s molestations of L.G. A.C. also told the officers that Harlan had induced her to engage in sexual conduct when she was a child, but the State ultimately chose not to file charges in relation to any acts Harlan committed involving A.C. A.C. agreed to talk with Harlan while wearing a “wire,” which consisted of a hidden microphone and a recorder. Sentencing Tr. p. 9. On May 18, 2009, A.C. went to Harlan’s home while wearing the wire. The recorder malfunctioned, but the microphone worked properly, and the police listened in on A.C. and Harlan’s conversation. During the conversation, Harlan admitted to molesting L.G. by having her kiss his penis on one occasion and by inserting his penis into L.G.’s vagina on another occasion. Later, an officer interviewed Harlan, and after the officer told Harlan that he had overheard Harlan’s conversation with A.C., Harlan again admitted to having L.G. place her mouth on his penis and to placing his penis in L.G.’s vagina.

The State charged Harlan with one count of child molesting as a Class A felony. Subsequently, the State amended the information to reduce the count to a Class B felony and to add a second count of child molesting as a Class B felony. The parties executed a plea agreement, pursuant to which Harlan agreed to plead guilty to the two counts of child molesting as Class B felonies. The parties further agreed that the executed portion of Harlan’s sentence would not exceed fourteen years. At the guilty plea hearing, the following discussion occurred:

STATE: Between January One (1), Nineteen-Eighty-Six (1986), through and including December Thirty-First (31st), Nineteen-Ninety-Two (1992), in Vigo County, State of Indiana, Bobby A. Harlan was a person who, with a child under twelve (12) years of age, to-wit, [L.G.], who was between the ages of four (4) and ten (10), performed or submitted to sexual intercourse or deviate sexual conduct with the said [L.G.], in violation of the Indiana Code.
COURT: And you admit that Mr. Harlan?
HARLAN: Yes.
STATE: Count Two (2), between January First (1st), Nineteen-Ninety-Two (1992), through and including December Thirty-First (31st), Nineteen-Ninety-Four (1994), in Vigo County, State of Indiana, Bobby A. Harlan was a person who, with a child under fourteen years of age, to-wit, [L.G.], who was between the ages of ten (10) and eleven (11), performed or submitted to sexual intercourse or deviate sexual conduct with the said [L.G.], in violation of the Indiana Code.
COURT: And you admit that Mr. Harlan?
HARLAN: Yes.

Guilty Plea Hearing Tr. pp. 13-14. The trial court sentenced Harlan to ten years on each count, to be served concurrently. The trial court further ordered Harlan to register as a SVP. This appeal followed.

Harlan raises three issues, which we restate as:

I. Whether the trial court’s order requiring Harlan to register as a SVP violates the ex post facto clause of the Indiana Constitution.
II. Whether the trial court abused its discretion in the course of identifying aggravating and mitigating factors at sentencing.
III. Whether Harlan’s sentence is manifestly unreasonable.

I. INDIANA’S EX POST FACTO CLAUSE

Harlan argues that the trial court should not have required him to register as a SVP because the statutes defining sex offenders and requiring them to register had not yet been enacted when he committed his crimes. He concludes that the SVP requirement, as applied to him, violates Article 1, Section 24 of the Indiana Constitution, also known as the ex post facto clause.

The ex post facto clause provides, in relevant part: “No ex post facto law ... shall ever be passed.” In general, the ex post facto clause forbids laws imposing punishment for an act that was not otherwise punishable at the time it was committed or imposing additional punishment for an act then proscribed. Lemmon v. Harris, 949 N.E.2d 803, 809 (Ind.2011). When a party presents a claim under the ex post facto clause, our inquiry focuses on whether a legislative change alters the definition of criminal conduct or increases a penalty by which a crime is punishable, not on whether a legislative change produces some sort of disadvantage. Simmons v. State, 962 N.E.2d 86, 90 (Ind.Ct.App.2011). The party challenging the constitutionality of a statute bears the burden of proof. Vickery v. State, 932 N.E.2d 678, 680 (Ind.Ct.App.2010).

Our Supreme Court’s decision in Lem-mon is pertinent to this case. In Lem-mon, Harris pleaded guilty in 1999 to child molesting as a Class B felony for acts that he committed in 1997. Prior to Harris’ release on parole, the Indiana Department of Correction informed him that he was required to register as a SVP. Harris conceded that he was required to register as a sex offender for ten years pursuant to the laws in effect when he committed his crimes. However, he argued that SVP requirements did not apply to him because the SVP status was not created until 1998, and therefore those requirements, as applied to him, violated Indiana’s ex post facto clause.

Our Supreme Court determined that the “intent-effects” test applied to Harris’ claim. 949 N.E.2d at 810. Under that test, the Court first decided whether the General Assembly intended for SVP status and the accompanying registration requirements to constitute a punishment, or whether the legislature intended to establish a nonpunitive regulatory scheme. The Court noted that Harris had not provided any evidence of a punitive intent on the part of the General Assembly with respect to the SVP statute. In the lack of evidence to the contrary, the Court presumed that the legislature’s intent was civil and regulatory rather than punitive.

Next, the Court was required to determine whether, even though the legislature did not intend to establish a punitive regime, the effects of the SVP regulatory scheme, as applied to Harris, were nonetheless punitive and' constituted an ex post facto punishment. Seven factors are relevant to the determination:

1. whether the sanction involves an affirmative disability or restraint;
2. whether it has historically been regarded as punishment;
3. whether it comes into play only on a finding of scienter;
4. whether its operation will promote the traditional aims of punishment— retribution and deterrence;
5. whether the behavior to which it applies is already a crime;
6. whether an alternative purpose to which it may rationally be connected is assignable for it; and
7. whether it appears excessive in relation to the alternative purpose assigned.

Id. Applying these factors to Harris’ case, our Supreme Court concluded: the SVP requirements impose affirmative obligations upon Harris; the registration requirements include a shaming component that has historically been regarded as punishment; the registration requirement for Harris’ crime of child molesting as a Class B felony does not include a scienter requirement; application of the SVP registration requirements promotes retribution and deterrence, but Harris was in no worse of a position than if he were only required to register for ten years under the sex offender statutes in effect when he committed his crimes; the SVP requirement applies to criminal behavior, but in this regard Harris was in the same position as if he was required to register for ten years under the previous sex offender laws; the SVP designation and registration requirements promote a legitimate, alternative purpose; and the SVP designation and registration requirements are not excessive in relation to the legitimate regulatory purpose because: (a) Harris was already subject to registration requirements in any event; and (b) the SVP statute provides a process by which Harris may ask to be no longer considered a SVP. Weighing these factors, our Supreme Court determined that designating Harris as a SVP and subjecting him to the associated registration requirements did not violate the ex post facto clause.

Here, Harlan argues that Lemmon is distinguishable from his case. Harlan notes that Harris conceded in Lemmon that he was subject to the sex offender registration requirements that were in effect when he committed his crimes, but Harris argued that he was not subject to the SVP requirements, which were enacted after he committed his crimes. By contrast, Harlan contends that he committed his offenses before the General Assembly enacted any sex offender registration requirements, so he has no obligation to register at all, much less as a SVP. We disagree. The statutes collectively referred to as the Indiana Sex Offender Registry Act first took effect on July 1, 1994. See 1994 Ind. Acts 11, § 7; see also Wallace v. State, 905 N.E.2d 371, 374-75 (Ind.2009) (noting that sex offender registry requirements took effect in July 1994). In this case, when Harlan pleaded guilty to the second count of child molesting as a Class B felony, he admitted that he committed his crime between January 1, 1992, “through and including” December 31, 1994. Guilty Plea Hearing Tr. pp. 13-14. Thus, Harlan committed one of his child molestation offenses during the period when the sex offender registry requirements were in effect, and his attempt to distinguish Lemmon is not availing for him.

Next, we apply the analysis set forth in Lemmon to this case. We first consider whether the General Assembly intended for SVP status and the accompanying registration requirements to constitute a punishment, or whether the legislature intended to establish a nonpunitive regulatory scheme. As was the case in Lemmon, Harlan has failed to provide any evidence or argument as to the General Assembly’s intent, so we may presume that the legislature’s intent was “civil and regulatory.” Lemmon, 949 N.E.2d at 810.

For the second step of the analysis, we consider whether the effects of the SVP determination and registration requirements upon Harlan are “in fact so punitive as to transform the regulatory schedule into a criminal penalty” by applying the seven factors identified in Lemmon. Id. If so, then retroactive application of the law to Harlan violates the ex post facto clause.

Although in Healey v. State, 969 N.E.2d 607 (Ind.Ct.App.2012), a different panel of this Court very recently adopted the rationale followed in Lemmon and in Jensen v. State, 905 N.E.2d 384 (Ind.2009), a reasonable view might understand the merits of the contrary position. One might legitimately question whether the extended period for registration was not, in fact, an increase in the punitive impact of the registration for life requirement. See Jensen, 905 N.E.2d at 396 (Boehm, J., dissenting, with then-Justice Dickson); Lemmon, 949 N.E.2d at 816 (Dickson, J., dissenting). However, we are bound by the cases as decided by our Supreme Court.

The current case resembles Lemmon in that Harlan is, by statute, a sex offender and would be subject to registration requirements even if he were not a SVP. Consequently, application of the seven factors results indicates the same outcome as in Lemmon. While several of the factors lean toward treating SVP status as punitive as applied to Harlan, our determination must be governed by the majority opinions in Lemmon and Jensen.

Harlan asserts that his designation as a SVP contravenes our Supreme Court’s holding in Wallace. That case is factually distinguishable. In Wallace, our Supreme Court determined that requiring Wallace to register as a sex offender violated Indiana’s ex post facto clause because he “was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted.” 905 N.E.2d at 384. In this case, Harlan committed one of his crimes after the sex offender registration requirements took effect. Therefore, Wallace does not compel reversal of the trial court’s judgment. For these reasons, Harlan’s claim under the Indiana ex post facto clause is to be rejected.

II. SENTENCING DISCRETION

Our standard for reviewing a sentence is well established. Sentencing is conducted within the discretion of the trial court and will be reversed only upon a showing of abuse of that discretion. Sims v. State, 585 N.E.2d 271, 272 (Ind.1992). It is within the discretion of the trial court to determine whether a presumptive sentence will be increased or decreased because of aggravating or mitigating circumstances. Id.

Here, Harlan claims that the trial court erred by citing his molestation of A.C. as an aggravating circumstance because it is uncharged conduct and the statute of limitations has expired on any criminal charges that could have been filed for that conduct. Allegations of prior criminal activity need not be reduced to conviction before they may be properly considered as aggravating circumstances by a sentencing court. Beason v. State, 690 N.E.2d 277, 281 (Ind.1998).

In this case, the trial court identified as a statutory aggravator that Harlan “occupied a position of trust and had the care, custody, and control of the victim in this case at the time the offense occurred.” Sentencing Tr. p. 110. The trial court did not find any other statutory aggravating factors, such as criminal history. Instead, the trial court discussed “other aggravating circumstances that the Court may consider [to] exist.” Id. at 111. These factors included “that not only did Mr. Harlan molest L.G., that he also ... engaged in inappropriate conduct with and molested ... the victim’s sister in this case.” ■ Id. at 111-12. The trial court’s identification of Harlan’s acts against A.C. as an aggravating circumstance follows precedent, as the trial court did not identify those acts as part of a criminal history, but rather as a nonstatutory aggravating factor. See Singer v. State, 674 N.E.2d 11, 14-15 (Ind.Ct.App.1996) (concluding that the trial court did not abuse its discretion during sentencing by citing as an aggravating factor Singer’s uncharged acts of violence against his children).

With respect to the statute of limitations, Harlan states that “to consider as an aggravating factor evidence of a crime whose statute of limitation has expired is tantamount to allowing prosecution of the crime.” Appellant’s Br. p. 13. He cites no authority to support this claim. The primary purpose of statutes of limitation is to protect defendants from the prejudice that a delay in prosecution could bring, such as fading memories and stale evidence. Sloan v. State, 947 N.E.2d 917, 920 (Ind.2011). Here, Harlan was not subjected to a delayed prosecution for molesting A.C. Instead, the trial court merely noted his acts against A.C. in the course of sentencing Harlan for his crimes involving L.G. We conclude that the trial court did not abuse its discretion by citing his conduct with A.C. as an aggravating factor.

Next, Harlan argues that the trial court overlooked several mitigating factors. A trial court must consider the mitigating factors presented by a defendant, but a finding of mitigating circumstances is discretionary, not mandatory. Cook v. State, 612 N.E.2d 1085, 1090 (Ind.Ct.App.1993). An abuse of discretion occurs in this context when the trial court issues a sentencing statement that omits mitigating factors that are clearly supported by the record and advanced for consideration. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007).

Harlan asserts that the trial court failed to properly consider his lack of a criminal history and his remorse. To the contrary, the trial court identified Harlan’s lack of a criminal history as a mitigating factor, but “in light of the other uncharged criminal conduct, I’m not certain that it’s much of ... a mitigating factor.” Sentencing Tr. p. 113. In addition, the trial court determined that Harlan’s remorse was a mitigating factor, but “I don’t find it particularly compelling to grant significant weight to [it].” Id. at 114. A sentencing court is not obligated to weigh or credit facts proffered as mitigating by the defendant in the way that the defendant suggests they should be weighed or credited. Heyen v. State, 936 N.E.2d 294, 304-05 (Ind.Ct.App.2010), trans. denied. We find no abuse of discretion here.

Harlan also claims that the trial court should have found as mitigating circumstances that his crimes were the result of circumstances unlikely to recur and that his character and attitude are such that he is unlikely to commit another crime. We cannot conclude that these mitigating circumstances are supported by the record. Harlan molested L.G. repeatedly over a span of years despite having ample opportunity to end his abusive behavior. Furthermore, L.G. spoke with Harlan over the phone once several years after the molestations had ended, and she perceived that he was asking her to continue to conceal his crimes. Finally, Harlan initially denied molesting L.G. when he was approached by A.C. and the police. Harlan’s attempts to avoid responsibility for his crimes indicate that he has not necessarily changed his behavior and would not necessarily refrain from committing similar crimes if presented with another opportunity.

Finally, Harlan argues that the trial court should have determined that his cooperation with law enforcement was a mitigating factor. We cannot conclude that this factor is supported by the record. When a police officer spoke with Harlan about A.C.’s allegations, Harlan denied any wrongdoing until the officer told Harlan that he had listened in on Harlan’s conversation with A.C. At that point, Harlan may have concluded that he was caught and chose to cooperate with the police out of pragmatism.

We conclude that the trial court did not abuse its discretion in the course of identifying and weighing aggravating and mitigating factors.

III. REASONABLENESS OF SENTENCE

A sentence authorized by statute will not be revised except where the sentence is manifestly unreasonable. Sims, 585 N.E.2d at 272. A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed. Id.

To assess the sentence, we look first to the statutory range established for the class of the offenses. Here, during the period in which Harlan committed his crimes, the fixed sentence for a Class B felony was ten years, with not more than ten years added for aggravating factors or not more than four years subtracted for mitigating factors. Ind.Code § 35-50-2-5 (1977). Harlan received the presumptive sentence of ten years for each conviction, to be served concurrently.

Next, we look to the nature of the offenses and the character of the offender. Regarding the nature of the offenses, Harlan repeatedly molested L.G. over a period of years while she was in his care. L.G. considered Harlan to be a father figure. In addition, Harlan groomed L.G. for sexual conduct by showing her pornographic movies and magazines. Harlan notes that none of the incidents involved violence, but Harlan told L.G. several times not to tell others what he had done or she could get in trouble and he could go to jail.

Regarding the character of the offender, Harlan notes that he has no criminal history. However, his lack of criminal convictions is offset by his repeated molestations of L.G. over a lengthy period of time. Harlan also asserts that he was “forthright” with the police. Appellant’s Br. p. 22. We note that Harlan only admitted his crimes to the police once the officer told Harlan that the police had heard Harlan’s conversation with A.C. Furthermore, when A.C. initially confronted Harlan about his molestation of her and L.G., he tried to place the blame upon her, alleging that she “came onto” him. Sentencing Tr. p. 38. Harlan has failed to convince us that his presumptive concurrent sentence is manifestly unreasonable.

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

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . We note that the volumes of the transcript are not consecutively paginated, in violation of Indiana Appellate Rule 28(A)(2).

      . Harlan does not present an ex post facto claim under the United States Constitution.

      . If Harlan had committed his crimes more recently, his challenge to the propriety of his sentence would be governed by Indiana Appellate Rule 7(B), which requires the reviewing court to determine if a sentence is inappropriate in light of the nature of the offense and the character of the offender. However, Harlan’s sentence must be judged by the standards that were in effect when he committed his crimes. See Collins v. State, 911 N.E.2d 700, 708 (Ind.Ct.App.2009) ("The law [that] is in effect at the time that the crime was committed is controlling.”), trans. denied.

      . At sentencing, the trial court stated that the parties "stipulated” that "the presumptive sentence was ten years and the range is six to fourteen.” Sentencing Tr. pp. 109-10. However, the State had agreed only that "the Court is allowed to take off up to six [years] for mitigating factors.” Id. at 94.


author: DARDEN, Judge.

text:
    James Lee PAUL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A05-1111-CR-634.
    Court of Appeals of Indiana.
    July 20, 2012.

      John Andrew Goodridge, Esq., Evansville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

James Lee Paul appeals his conviction of and sentence for murder, a felony.

We affirm.

ISSUES

1. Whether the trial court abused its discretion in denying Paul’s objection to the admission of evidence obtained pursuant to a search warrant after his warrantless arrest inside his apartment.

2. Whether the imposed sentence is inappropriate.

FACTS

Shortly after midnight on May 27, 2009, Paul and Richard Wroten entered 36 West Iowa Street in Evansville, a residence owned by Charles Burns, Sr., and killed Charles Burns, Jr. as he lay sleeping. Paul struck Burns on the head with a crow bar between thirty and sixty times as if he was “chopping wood.” (Tr. 402). Burns suffered massive head injuries, and he died during Paul’s attack. Paul killed Burns because he had a previous feud with Burns, Sr. over possession of some of Paul’s personal property and because Paul had recently seen Burns riding what Paul believed to be Paul’s bicycle.

At Paul’s insistence, Wroten also struck Burns’ body at least one time with a flat pry bar. Paul threatened to kill Wroten if he told anyone about the murder.

Paul and Wroten briefly parted ways, and Wroten returned to a residence where he lived with his girlfriend. His clothes and body were covered in blood, so he washed himself and then tried to burn his clothing. About ten minutes later, Paul appeared and extinguished the flaming clothes. Paul told Wroten that he would kill both Wroten and his girlfriend if they told anyone about the murder.

Paul took Wroten to a water hose behind an abandoned building, where the two washed themselves and changed clothes, an action that took about ten to fifteen minutes. Paul put his and Wroten’s soiled clothing into a backpack, but accidently left a red shirt on a metal rack located behind the abandoned building. The two then went to Paul’s apartment in an old house located at 30 East Virginia, which was about two blocks from the murder scene. Again, Paul told Wroten that he would kill him if he told anyone about the murder. Wroten left about five minutes later and returned home. At 1:18 a.m., Wroten called 911 and reported the murder.

At 1:22 a.m., Evansville Police Officers Jeff Kingery and Keith Smith met Wroten near the murder scene. Officer Smith knew Wroten from three or four previous runs. Wroten explained that he had witnessed the murder, and he both pointed out the 36 West Iowa Street murder scene and stated that Bums’ body could be found in the middle room. At 1:29 a.m., Officer Smith briefly entered the residence and found Bums’ body, which had been beaten so badly that his face was unrecognizable. Detective Michael Jolly was immediately notified.

Wroten told the officers that Paul had committed the murder and that Paul lived at 30 East Virginia. Officer Kingery placed Wroten in his police vehicle and asked Wroten to show him where Paul lived. Officer Jonathan Oakley followed. Wroten took them to Paul’s residence at 30 East Virginia and pointed out the building. Officer Kingery then returned Wroten to Detective Jolly at the murder scene for a statement, while Officer Oakley remained at 30 East Virginia.

Within minutes thereafter, Officer Dan Deeg and Sergeant David Barron arrived at the 30 East Virginia address to attempt to secure the building and to locate Paul, whose appearance was established by a computer search prior to entry into the building. Officers Deeg and Oakley, with Seargent Barron following, entered the multiple-apartment building through an unlocked common door and proceeded up what appeared to be common-area stairs. Their goal was to determine in which apartment unit Paul lived. At the top of the stairs, the officers saw an open door, and they observed Paul inside using a wrench on Burns’ bicycle. Because of loud music emanating from the apartment, Paul did not hear the officers approaching. However, because Paul’s door was opened wide directly above the common stairs, the officers were concerned that Paul would turn and see them.

Not knowing what Paul might do, the officers announced themselves, entered the apartment unit with weapons drawn, and arrested Paul. At the time, no arrest warrant had been issued. The officers escorted Paul out of the building, and then secured his apartment unit to obtain a search warrant. A subsequent search pursuant to the warrant produced Burns’ bicycle and the backpack containing the bloody clothes and the murder weapon. The charred clothing still smelled of an acceler-ant, and a plaid shirt worn by Paul at the time of the murder contained Burns’ blood. The murder weapon also contained Burns’ blood.

A search of the area behind the abandoned building where Paul and Wroten used the hose revealed the red shirt that contained both Paul’s DNA and Burns’ blood. A window pane from the door of 36 West Iowa, which had been removed by Paul to allow entrance into the building where Burns was staying and then handed to Wroten for disposal, was discovered, and it contained Wroten’s partial latent print. The flat pry bar that Wroten had possessed during the murder also contained Burns’ blood and skin cells.

The State charged Paul with murder, and he responded by filing a motion to suppress all evidence seized from his apartment on the basis that “entry into the residence was without a warrant for arrest or search and without exigent circumstances.” (App. 66). The trial court denied the motion to suppress, and Paul raised a continuing objection at trial based upon the motion.

The jury found Paul guilty of murder. After a sentencing hearing, the trial court imposed a sixty-five year sentence.

DECISION

1. Admissibility of Evidence

Paul contends that the trial court erred in denying his objection to the admission of the bicycle, backpack, bloody clothes, and murder weapon found inside his apartment. Paul cites Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) in support of his contention, noting that the case holds that the Fourth Amendment to the United States Constitution prohibits police officers, absent exigent circumstances, from making a war-rantless entry into a private residence in order to make a felony arrest.

A trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct.App.2000). An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the trial court. Redding v. State, 844 N.E.2d 1067, 1069 (Ind.Ct.App.2006). In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence in the appellant’s favor. Id.

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter a residence for purposes of search or arrest. State v. Straub, 749 N.E.2d 593, 597 (Ind.Ct.App.2001) (citing Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). Thus, “[w]arrantless searches and seizures inside the home are presumptively unreasonable.” Woodson v. State, 966 N.E.2d 780, 787 (Ind.Ct.App.2012) (quoting Krise v. State, 746 N.E.2d 957, 961 (Ind.2001)).

“The warrantless arrest of a person in his or her home requires both probable cause and ‘exigent circumstances ... that make it impracticable to obtain a warrant first.’ ” Sapen v. State, 869 N.E.2d 1273, 1277 (Ind.Ct.App.2007) (quoting Adkisson v. State, 728 N.E.2d 175, 177 (Ind.Ct.App.2000)), trams, denied. Exigent circumstances have been found where (1) a suspect is fleeing or likely to take flight in order to avoid arrest; (2) incriminating evidence is in jeopardy of being destroyed or removed unless an immediate arrest is made; (3) a violent crime has occurred and entry by police can be justified as a means to prevent further injury or to aid those who have been injured; and (4) hot pursuit or movable vehicles are involved. Straub, 749 N.E.2d at 597-98. The validity of a warrantless arrest is determined by the facts and circumstances of each case. Id. at 598. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made; however, no exigency is created simply because there is probable cause to believe that a serious offense has been committed. Welsh, 466 U.S. at 753, 104 S.Ct. 2091.

Here, police officers learned from Wroten within a short time after the murder and subsequent attempted cleanup that Paul lived in the 30 East Virginia apartment building. This knowledge allowed Officers Deeg and Oakley, along with Sergeant Barron, to find Paul within a short time after Wroten reported the murder but prohibited them from ascertaining specific knowledge about the location of Paul’s apartment within the building or the number and specific location of other tenants in the building. Thus, the officers found themselves in a situation where they observed Paul, whom they had probable cause to believe had just committed a vicious murder and who had threatened to commit at least two more murders, while they were standing on an exposed stairway. Not knowing whether Paul had a weapon and could cause them or tenants harm if they tried to retreat down the exposed stairway, the officers made the arrest. Furthermore, at the time the officers observed Paul from the stairs, he appeared to be tampering with Burns’ bicycle, which was a major piece of evidence in the case. We cannot say that the trial court abused its discretion as the danger to the officers and tenants, coupled with the tampering of evidence, was an exigent circumstance that made it impracticable for the officers to obtain an arrest warrant before making the arrest. Furthermore, we cannot say that the officers contrived the urgent situation that necessitated Paul’s warrantless arrest. We affirm the trial court’s denial of Paul’s objection to the admission of items later found in the apartment pursuant to a search warrant.

2. Inappropriate Sentence

Paul contends that the sixty-five year sentence imposed by the trial court is inappropriate. He argues that this maximum sentence “in essence, gives no weight to the mitigating circumstances found by the trial court and designates [Paul] as the worst of the worst.” Paul’s Br. at 14. Paul cites the trial court’s finding that Paul had little formal education and that he had a history of mental health referrals and substance abuse.

The revision of a sentence is authorized by the Indiana Constitution through Indiana Appellate Rule 7(B), which provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In determining the appropriateness of a sentence, a court of review may consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497 (Ind.Ct.App.2009). The “nature of the offense” portion of the appropriateness review begins with the advisory sentence. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007); Richardson v. State, 906 N.E.2d 241, 247 (Ind.Ct.App.2009). The “character of the offender” portion of the sentence review refers to general sentencing considerations and the relevant aggravating and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1130 (Ind.Ct.App.2007), trans. denied. A defendant bears the burden of persuading us that his sentence is inappropriate in light of both the nature of his offense and his character. Williams v. State, 891 N.E.2d 621, 633 (Ind.Ct.App.2008).

Regarding the nature of the offense, the trial court found that Paul’s act constituted “senseless violence” as at least twenty blows with a heavy crow bar caused the breaking of every bone in Burns’ face, multiple injuries to the head, and skull fractures that allowed the expulsion of brain matter. (Tr. 884). Paul’s gory act of repeatedly beating a sleeping victim is significantly more brutal than other murderous acts contemplated by the murder statute, and we therefore conclude that the nature of the act does not provide a persuasive reason to revise Paul’s sentence.

Regarding the character of the offender, the trial court noted the mitigators listed above. In addition, however, it also noted Paul’s “alarming” criminal record, which includes the 1983 mutilation of a human body where Paul and his father reputedly cut up a man’s body and placed it in a box. (Tr. 883). Paul’s record also includes a voluntary manslaughter conviction for the killing of his own father. In addition, Paul has two misdemeanor battery convictions; a class C felony battery conviction; a battery by bodily waste conviction; a class D felony confinement conviction; and, other felony convictions for non-violent offenses. Paul has served several sentences in the Department of Correction, and he violated a community corrections program in 2007. This conviction is his eighth felony conviction, causing the trial court to find that he is likely to commit more offenses in the future. Even in light of the mitigating factors found by the trial court, we find nothing about Paul’s extremely violent character which merits a downward revision of his maximum sentence.

CONCLUSION

The trial court did not abuse its discretion in admitting evidence obtained from Paul’s apartment after his warrantless arrest. In addition, in light of the nature of the offense and the character of the offender, we cannot conclude that Paul’s sentence is inappropriate.

Affirmed.

NA-JAM, J., and RILEY, J., concur.

      . Ind.Code § 35-42-1-1.

      . Paul does not separately address the propriety of the officers’ conduct under Article I, section 11 of the Indiana Constitution.


author: MAY, Judge.

text:
    Devon D. DOKES, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A03-1111-CR-503.
    Court of Appeals of Indiana.
    July 20, 2012.

      Gary L. Griner, Mishawaka, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Devon Dokes appeals the revocation of his probation for being a felon in possession of a handgun. Finding the evidence sufficient to support the court’s decision, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 3, 2007, Dokes pled guilty to Class B felony burglary and Class A misdemeanor resisting law enforcement. The court sentenced him to ten years in the Department of Correction with six years suspended to probation. Thereafter, Dokes was released from prison and began probation. The terms of Dokes’ probation included, among other things, a prohibition against possessing a firearm, a prohibition against committing additional crimes, and a requirement he pay probation fees.

On April 27, 2011, the State charged Dokes with possession of a handgun by a serious violent felon, a Class B felony. The State also petitioned to revoke Dokes’ probation based on his commission of a new criminal offense and his failure to pay probation fees.

The trial court, with agreement from the parties, held the probation revocation hearing simultaneously with the bench trial on the criminal charge. Dokes stipulated to his prior felony conviction. Two witnesses testified to having seen Dokes handle or possess a small handgun that later was found next to the dead body of Dokes’ cousin, Ramon Hamilton. The court found Dokes not guilty of being a felon in possession of a handgun. Nevertheless, the court found Dokes violated his probation, citing his commission of the new offense.

DISCUSSION AND DECISION

“The court may revoke a person’s probation if: (1) the person has violated a condition of probation during the probationary period_” Ind.Code § 35-38-2-3(a). The State must prove a violation of probation by a preponderance of the evidence. Ind.Code § 35—38—2—3(e); Braxton v. State, 651 N.E.2d 268, 270 (Ind.1995). On review, we will look to the evidence most favorable to the State and neither reweigh the evidence nor judge the credibility of witnesses. Id. at 271. If substantial evidence of probative value exists to support the trial court’s finding that a violation occurred, we will affirm the revocation of probation. Id.; Menifee v. State, 600 N.E.2d 967, 970 (Ind.Ct.App.1992), decision clarified on denial ofreh’g.

Dokes argues two insufficiencies in the State’s evidence. He first alleges the State did not meet its evidentiary burden to prove he was on probation. Second, because the trial judge found Dokes not guilty of the criminal offense of being in possession of a weapon, Dokes alleges the testimony he possessed the gun was' incredibly dubious and thus insufficient to support probation revocation.

As for whether the State proved Dokes was on probation, the record indicates Dokes and the State agreed the probation revocation hearing would occur simultaneous with the bench trial on the new criminal charge. See, e.g., State ex rel. Randall v. Long, 237 Ind. 389, 392, 146 N.E.2d 243, 245 (1957) (parties may not appeal from a procedural stipulation not objected to at trial); Viccaro v. City of Ft. Wayne, 449 N.E.2d 1161, 1163 (Ind.Ct.App.1983) (parties were bound by stipulations made at trial). At no time during the combined hearing did Dokes or his counsel allege he was not on probation, and two witnesses testified Dokes was on probation. This evidence was sufficient.

Dokes also asserts the testimony that he possessed the weapon is incredibly dubious under the rule re-announced in Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.2007). The rule of incredibly dubious testimony states:

If a sole .witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.

Love v. State, 761 N.E.2d 806, 810 (Ind.2002).

That rule does not apply in the present case. While only one witness testified that Dokes possessed the gun on or near April 21, 2011, there was nothing inherently improbable in that testimony. The standard in Love requires that no reasonable person could believe the sole witness’s testimony, and there is no indication that Ms. Taylor’s testimony was inherently improbable, coerced, or equivocal. Neither was that testimony wholly uncorroborated as a second witness testified she saw Dokes in possession of the gun a few weeks earlier.

Finally, Dokes claims because the trial judge found him not guilty beyond a reasonable doubt of possessing the weapon in the criminal trial the evidence is not sufficient to convict him of the probation violation. We cannot agree. Because of the difference between the burden of proof required to convict someone of a crime and the burden of proof required to revoke probation, the court could revoke probation after finding Dokes not guilty based on the same evidence. See, e.g., Hoffa v. State, 267 Ind. 133, 368 N.E.2d 250, 252 (1977) (a conviction need not precede revocation of probation for commission of a new offense); Thornton v. State, 792 N.E.2d 94, 97 (Ind.Ct.App.2003) (court revoked probation on preponderance of the evidence after jury acquittal); Jackson v. State, 420 N.E.2d 1239 (Ind.Ct.App.1981) (evidence from trial ending in acquittal was sufficient to revoke defendant’s probation).

Because his arguments fail, we affirm the revocation of Dokes’ probation.

Affirmed.

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

      . Ind.Code§ 35-43-2-1.

      . Ind.Code § 35-44-3-3.

      .Ind.Code § 35-47-4-5.

      . We note Ind. Evidence Rule 201 permitted the trial court to take judicial notice of its own records regarding Dokes’ conviction and sentence, which would have demonstrated Dokes was on probation. While Dokes and the State appear to agree the trial court did not take judicial notice of those documents and the Prosecutor did not introduce them into evidence, Dokes nevertheless included those documents in his Appendix, which should not contain items that were not made part of the record at trial. See Ind. Appellate Rule 50 (requiring counsel to verily the documents in the Appendix are accurate copies of the trial record).