author: MATHIAS, Judge. BAKER, Judge,

text:
    William CHAVERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1211-CR-580.
    Court of Appeals of Indiana.
    July 16, 2013.

      Timothy J. Burns, Indianapolis, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

William Chavers (“Chavers”) appeals his conviction for Class A misdemeanor invasion of privacy in Marion Superior Court. Chavers argues that the State’s evidence was insufficient to support his conviction because there was a mistake of fact as to the existence of the no contact order.

We affirm.

Facts and Procedural History

On July 16, 2012, Amber Cushenberry (“Cushenberry”) sought and received a civil protection order, against Chavers from Marion Superior Court 21 (“Court 21”). The order was set to expire on September 10, 2012. On September 10, 2012, Court 21 held a hearing to determine whether the protective order would be renewed. Cushenberry did not appear at the renewal hearing. Court 21 dismissed the protective order due to her failure to appear, and Chavers, who was in custody and present at the hearing, was made aware of the order’s dismissal.

Five days later, on September 17, 2012, Chavers entered a guilty, plea for Class D felony criminal confinement in Marion Superior Court 16 (“Court 16”). Cushenber-ry was identified . as the victim of this crime. Chavers was sentenced to 366 days, with 106 days executed and 269 days suspended to probation. As a condition of probation, Court 16 entered a no contact order protecting Cushenberry and two others, with instructions that the order could be vacated at the victims’ request.

On or about September 18 or 19, 2012, Cushenberry went to Court 21 and asked that the protective order be removed. Cushenberry was given paperwork indicating that the civil protective order had been dismissed at the September 10 hearing. Cushenberry did not go to Court 16 to request that the no contact order issued as a condition of Chavers’s probation be vacated.

A day or so later, on September 20, 2012, Chavers met with Andrew Kerr (“Kerr”), a probation officer, and was oriented as to the terms of his probation. Ken-reminded Chavers of all the conditions of his probation, including the no contact order from Court 16.

Later that same day, on September 20, Chavers had contact and conversations with Cushenberry, who indicated to Chav-ers that she had the dismissal paper and that Chavers could come to her home. Chavers was still on GPS monitoring, and the no contact order issued by Court 16 was still in effect when he went to Cushen-berry’s home that evening.

At or around 10:30 p.m. on September 20, Indianapolis Metropolitan Police Officer Tiffany Wren was called to Cushenber-ry’s residence to check on the welfare of Cushenberry, pursuant to the Court 16 no contact order, because a GPS signal indicated that Chavers was at the home. Although Cushenberry was not immediately cooperative with police when asked where Chavers was, she did allow the officers into the home, and the officers proceeded to look for Chavers. After announcing their presence loudly and asking Chavers to come out with no success, they eventually located Chavers in the back room of the home, seated in a chair. Despite his initial lack of cooperation, Chavers complied with police questioning regarding the Court 16 no contact order. Chavers indicated to the officers that he and - Cushenberry had paperwork to- confirm the dismissal of the order. Cushenberry then produced the dismissal paperwork that she had obtained from Court 21 regarding the civil protection order that had expired on September 10, 2012.

Upon seeing the dismissal papers, Officer Wren believed that the order for which she had been called to the residence might no longer be in effect. Thus, she contacted her control officer to determine whether the Court 16 order was still valid. The control officer informed her that it was. Officer Wren also attempted to contact the number listed on Court 2Ts dismissal paper, to no avail. Officer Wren then arrested Chavers for invasion of privacy.

On September 26, 2012, Chavers was charged by Information with Class A misdemeanor invasion of privacy for being found in Cushenberry’s home in violation of Court 16’s no contact order. On October 24, 2012, Chavers vras convicted of the offense at the conclusion of a bench trial. Immediately following the trial court’s judgment, a sentencing hearing was conducted. The trial court sentenced Chavers to 365 days, 183 days suspended to probation, 182 days to be served in home detention, with credit for two days of confinement served prior to sentencing. Chavers now appeals.

Discussion and Decision

In reviewing a trial court’s judgment for sufficiency of the evidence, this Court will affirm the decision of the trial court if the probative evidence and reasonable inferences drawn therefrom could allow a reasonable trier of fact to find' the defendant guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). On appeal, we do not reweigh the evidence or judge the credibility of the witnesses. Fields v. State, 679 N.E.2d 898, 900 (Ind.1997). We look only to evidence and reasonable inferences supporting the judgment to determine whether the trier of fact could reasonably reach the conclusion. Id. If there is substantial evidence 'of probative value supporting a conviction, this Court will not set the judgment aside.- Id.

Indiana Code section 35-46-1-15.1 codifies the offense of invasion of privacy. As elements of the offense, the State must show that a defendant knowingly or intentionally violated some form of protective order. In this case, Chavers was convicted of knowingly or intentionally violating a no contact order issued as a condition of release and a no contact order as a condition of probation.

Chavers argues, as he did at trial, that his violation of the Court 16 no contact order was a mistake of fact, negating his culpability under the offense. Mistake of fact is. codified as a defense to the charge of invasion of privacy at Indiana Code section 35-41-3-7, which states in relevant part, “It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense.” .When the State has made a prima facie case-of guilt, the burden is on the defendant to establish an evidentiary predicate of his. mistaken belief of fact. Saunders v. State, 848 N.E.2d 1117, 1121 (Ind.Ct.App.2006) (citing Hoskins v. State, 563 N.E.2d 571, 575 (Ind.1990)). Upon invoking mistake of fact as a defense, the burden shifts to-the defendant to satisfy three elements: “(1) that the mistake be honest and reasonable; (2) that the mistake be about a matter of fact; and (3) that the mistake negate the culpability required to commit the crime.” Potter v. State, 684 N.E.2d 1127, 1135 (Ind.1997) (citing Smith v. State, 477 N.E.2d 857, 863 (Ind.1985)).

The State, however, retains the ultimate burden of proving beyond a reasonable doubt every element of the charged crime, including culpability or intent, which would in turn entail proof that there was no reasonably held mistaken belief of fact. Saunders, 848 N.E.2d at 1121 (citing Hoskins, 563 N.E.2d at 575-76). “In other words, the State retains the ultimate burden of disproving the defense beyond a reasonable doubt.” Id. (citing Ringham v. State, 768 N.E.2d 893, 898 (Ind.2002)). The State may meet its burden by directly rebutting evidence, by affirmatively showing that the defendant made no such mistake, or by simply relying upon evidence from its case-in-chief. Id. (citing Bergmann v. State, 486 N.E.2d 653, 660 (Ind.Ct.App.1985)).

Chavers’s primary contention lies in his professed confusion regarding the validity of the protective orders filed against him. He was present for the dismissal of the Court 21 order, and was thus made aware that it was no longer in effect. Chavers states that he relied, in a manner he believed to be reasonable, on Cushenberry’s statement that she had gone to court and that the order had been vacated at her request. He argues that he could and did reasonably believe that the Court 16 order was vacated, and that his presence at Cushenberry’s home was not a knowing violation of the no contact order, but rather a mistaken belief that the order was no longer in effect. He argues that this belief constitutes a mistake of fact that negates the element of knowledge requisite for commission of the offense of invasion of privacy.

Officer Wren testified that she believed that Cushenberry and Chavers both believed that the order had been lifted when she arrived at the home. However, she also stated that their behavior in failing to initially cooperate with the officers was suspicious. While she was inclined to believe that Chavers might have been honest in his professed mistaken belief, she found it odd that someone who believed they were engaged in innocent conduct would attempt to hide from police. There may be some evidence to support Chav-ers’s assertion that his mistake was honest, but there is also evidence to support that it was not. On appeal, we look only to the evidence and the reasonable inferences supporting the judgment. McHenry, 820 N.E.2d at 126. Any conflict in the evidence was for the trier of fact, the trial judge in this case, to resolve, and we will not disturb the trial court’s credibility determinations on appeal. See id.

Further, even if the mistake was honest, it is not clear that Chavers’s mistake was reasonable. Cushenberry did not have paperwork or records to indicate that she had asked Court 16 to vacate its no contact order. Rather, Cushenberry was only able to produce the dismissal information regarding the Court 21 order when police arrived to arrest Chavers. There was no evidence to suggest that Chavers had asked to see the documentation that Cushenberry had obtained. And had he done so, he could have easily noticed the difference in the dismissed civil case caption and active criminal case caption. Instead, he relied only on Cushenberry’s assertion that the order had been vacated. However, Chavers had been informed by Kerr at his probation appointment earlier on the day of his arrest that the no contact order was still in effect, and Kerr believed there was no confusion about the order when they met. Therefore, Chavers had received conflicting information regarding the validity of the no contact order. In the face of such conflicting information, a reasonable person would attempt to verify the validity of the order, by looking at the dismissal papers personally, or by contacting the clerk of the issuing court. This is especially true of a man who had just been convicted and sentenced for D felony criminal confinement. Chavers failed to take any such action.

While Chavers’s reliance might have been reasonable absent other information, we believe that a reasonable person would have been alerted to the likely continued validity of the Court 16 no contact order after the probation appointment with Kerr. Further, even if Chavers’s reliance was reasonable when he arrived at Cushehber-ry’s home, he had already been in contact with Cushenberry before she indicated to him that the order was vacated, in violation of the order. As a matter of law, the order was between Chavers and the State, not between Chavers and Cushenberry. Until the order was formally vacated by Court 16, no statement or assertion by Cushenberry could have been effective to render the order invalid.

It is important to remember that cases involving protective orders do not occur in a vacuum. In many, if not most, cases, the parties have a substantial history with law enforcement and have been in and out of court because they cannot get along in any meaningful fashion for any appreciable amount of time. Here, for example, the trial court could rightfully recall Chavers’s civil and criminal history with regard to the victim as it made its determination as to his credibility. Specifically, it was for the court to determine whether Chavers relied at all or rather, saw an opportunity to try and skirt the law; or, if he did rely, whether his reliance was reasonable. In these cases, it is even, more important than usual to remember that on appeal, we do not reweigh the evidence, assess the credibility of witnesses, or substitute our judgment for that of the trial court.

For all these reasons, the trial court had sufficient evidence to convict Chavers. Chavers failed to show that he made an honest and reasonable mistake of fact that would have negated his culpability for this offense.

Affirmed.

MAY, J., concur.

BAKER, J., dissents with opinion.

BAKER, Judge,

dissenting.

Because I do not believe that Chavers possessed the requisite intent to support his conviction for invasion of privacy, I am compelled to part ways with the majority. More particularly, I cannot agree that the evidence shows that Chavers knowingly violated an order of protection.

Chavers was present at the September 10, 2010 hearing that resulted in the dismissal of the civil protection order because Cushenberry failed to appear. Then, less than one week later, Chavers appeared in a different superior court, Court 16, where as a condition of his probation, he was to abide by a no contact order protecting Cushenberry unless she vacated it. Cush-enberry attempted to do so, but she went to the wrong court — Court 21 — where she had obtained the first protection order. Cushenberry was given paperwork indicating that the protective order had been dismissed at the September 10 hearing. However, she did not go to Court 16 to request that the no contact order that had been imposed as a condition of Chavers’s probation be vacated.

A day or so passed before the two of them finally decided to meet after Cushen-berry explained that she had dismissal papers. Indeed, even Officer Wren believed that the protective order for which she had been called to investigate might no longer be in effect.

Under these circumstances, I cannot conclude that there was sufficient evidence to convict Chavers. He was not with Cushenberry when she tried to get the no contact order vacated, and an average person could be easily mistaken regarding the exact superior court number where he or she needed to go to get a no contact vacated, especially in a county as large as Marion. As for Chavers’s unwillingness to cooperate with police, it is apparent he is not exactly a law-abiding citizen. Nevertheless, I do not believe the evidence was sufficient in this case. Accordingly, I dissent.


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    Timothy S. ENDERS and Enders & Longway Builders, Inc., Appellants-Respondents, v. Debra Sue ENDERS as Personal Representative of the Estate of Randall Enders, Appellee-Petitioner.
    No. 71A03-1211-PL-494.
    Court of Appeals of Indiana.
    July 17, 2013.

      Brian R. Gates, Timothy W. Woods, Jones Obenehain, LLP, South Bend, IN, Attorneys for Appellant.
    Robert J. Palmer, May, Oberfell, Lor-ber, Mishawaka, IN, Attorney for Appel-lee.
   OPINION

BAKER, Judge.

While the old adage “blood is thicker than water” may be true for mány, unfortunately some people have their most bitter and enduring disputes with family members which may persist even beyond death. In this case, Randall, and Timothy Enders inherited equal shares in Enders & Longway Builders, Inc. (the “Company”), the business that their father had started. Randall and Timothy signed a Buy-Sell Agreement, which strictly limited their ability to transfer their shares of the Company and provided. that upon : the death of one brother, his shares passed automatically to the surviving brother, unless, among other occurrences, the corporation was dissolved.

Because of a disability, Timothy stopped actively working for. the Company, but still had some of his expenses, such as his utilities, paid by the Company. Randall continued running the business -and sharing the profits with his brother, until Randall became terminally ill sometime around the spring or early summer of 2012. Randall approached Timothy about dissolving the corporation because it was no longer profitable, insofar as the profits were strictly generated from the Company’s assets rather than from any work projects. Timothy was unsympathetic, accusing his'brother of simply needing to get out of bed.

Randall filed a petition for a judicial dissolution of the corporation, alleging that the directors and shareholders were deadlocked in the management of corporate affairs. The trial court granted the dissolution effective the date of the hearing; however, sometime during the weeks between the hearing and when the trial court issued its order dissolving the corporation, Randall passed away.

Timothy now appeals arguing that upon Randall’s passing, he became the sole owner of the Company’s shares under the Buy-Sell Agreement. We disagree. Randall was alive on the effective date of the trial court’s order dissolving the corporation; consequently, Timothy did not become the sole owner of the Company’s shares. Accordingly, we affirm.

FACTS

The Company is a general contracting firm that Timothy and Randall’s father started in 1981. Their father was the supervisor and worked with Timothy, who was a bricklayer and a carpenter, and Randall, who was a carpenter. After their father died in 1987, Randall and Timothy inherited the Company with each owning 500 shares of- stock or fifty percent of the Company. , . .

On June 24, 1988, Randall and Timothy entered into a Buy-Sell Agreement. On March 13, 1991, Randall and Timothy executed a First Amendment to the Buy-Sell Agreement (the “Agreement”). The Agreement provided that “no Stockholder shall ... in any manner encumber or otherwise dispose of the whole or any part of any interest of any kind in the whole or any part of the shares ... or the certificates.” Appellee’s App. p. 8. Additionally, the Agreement stated that all stocks in the Company “will be jointly held” and that upon the death of a stockholder, any shares of stock not jointly held “shall be sold and purchased by the remaining Stockholder for ONE AND NO/lOO ($1.00) DOLLAR per share.” Id. The Agreement also provided that before a stockholder could transfer any shares during his lifetime, he had to first offer them to the Company or the other stockholder “at a price of ONE AND NO/100 ($1.00) DOLLAR per share.” Id.

The duration of the Agreement was also explicitly described. More particularly, the Agreement would terminate upon:

(A) Cessation of the Corporation’s business.
(B) Bankruptcy, receivership or dissolution of the Corporation.
(C) Written agreement of the parties hereto or the remaining parties hereto.
(D) The death of -all Stockholders within a thirty (30) day period.
(E) By sale of all of the stock covered by this Agreement to third parties.

Appellee’s App. p. 10.

In 2004, Timothy became disabled, and the business began to wind down as Timothy ended his active participation in the Company. Timothy could have remained active in the Company, but it would have required him to bring in a manager, and he was unsure how Randall would react to a manager.

Despite Timothy’s decision to not be involved, he was critical of the way in which his brother ran the Company. More particularly, Timothy commented that the business would be more successful if Randall would “get out of the bed and go to work.” Tr. p. 86. Randall was in bed because he had been diagnosed with terminal cancer in 2012. However, this was not Timothy’s only complaint. He thought that Randall should have been hiring people and subcontractors and actively looking for projects for the Company during the busiest time of the year rather than working on home projects.

Because of Randall’s deteriorating health, the business had been winding down, and Randall had incurred significant medical biils; he tried to speak to Timothy about dissolving the Company’s corporate structure. The brothers, however, disagreed over the distribution of assets, including the certificates of deposit owed by the corporation, but over which Timothy had exclusive control:

On August 21, 2012, Randall filed a petition for judicial dissolution of the corporation. The petition alleged that Timothy had not been involved with the management of the Company in over a year and that Randall wanted to wrap up the affairs of the Company and dissolve it but Timothy would not agree. The petition also alleged that the shareholders were deadlocked in the management of the corporate affairs. The petition requested that the trial court enter an order dissolving the corporation and directing the shareholders to'wind up and liquidate its business and affairs or to appoint a receiver to windup and liquidate the business and affairs.

' The trial court set-the matter for a hearing on September 20, 2012. On September 11, 2012, Timothy filed a motion to continue the hearing to October 11, 2012. Randall filed an objection to the motion for a continuance on September 13, 2012, based on the urgency of the situation, namely Randall's deteriorating health. Despite Randall’s objections, the hearing was rescheduled for October 11, 2012.

At the October 11 hearing, Mark McNa-mee, a CPA who had acted as the brothers’ individual accountant and the Company’s accountant for the past ten to fifteen years testified. McNamee received the corporation’s check register and bank statements and reconciled and prepared financial statements. When the business began to wind down in 2004, McNamee started doing financial statements on a quarterly basis. McNamee prepared and filed the Company’s tax returns and, when appropriate, prepared W-2 forms. Over the past seven years or more, all of the Company’s income had been absorbed through expenses, and there was never any money to pay a wage.

Because of his position, McNamee was familiar with how the Company was managed. During the past two years, Randall had done everything for the Company, including writing checks, delivering books to McNamee, reconciling statements, paying insurance premiums, caring for the facility’s landscaping, and generating the Company’s income. To McNamee’s knowledge, Timothy had not performed any services for the Company since .2004. Likewise, McNamee was unaware of any capital contribution that Timothy had made to the Company during the time that McNamee had served as accountant.

McNamee had been advising Randall and Timothy to dissolve the corporation for several years because the corporation was a “one-man show,” and there was no legitimate reason to keep the complexity of the corporation, together with the related expenses, open. Tr. p. 22. Randall could have just as easily been a sole proprietor. Timothy disagreed with the recommendation because of the tax consequences of dissolution.'

Randall and Timothy disputed over whether the corporation should be dissolved. That disagreement created a deadlock in the corporate management. From McNamee’s experience as an accountant and from an accountant’s perspective, the business affairs of the corporation could not be conducted to the advantage of the shareholders and directors with the deadlock that existed. Specifically, McNamee opined that it was the “assets of the Corporation [such as] interest income that generates the revenue to pay [expenses].” Tr. p. 28. McNamee further observed that “because only 50 percent of that entity has been working, the other 50 percent has been deducting those items for business purposes that are questionable.” Id. These questionable expenses included Timothy’s gas and trash bill. Put another way, the Company was not sustaining itself with its operations, but rather with its existing assets such as certificates of deposit totaling $380,000 and forty acres of [and in Niles with access to the St. J.oe River.

Despite a financial statement ending on June 30, 2012, that indicated gross profits during the preceding three months and nine months, McNamee explained that the Company would continue to make money off of its assets rather than from “labor, and doing remodeling jobs[.]” Tr. p. 36. Indeed, even when directed to the fact that the financial statements reflected a time when Randall still had.the ability to perform labor for the company did not change McNamee’s opinion of the Company’s solvency — “The bottom line is, if this Company did not have those CDs, it would not be able to exist.” Id. at 41.

McNamée reiterated with more detail: “Randy was far better off being a sole proprietor, so when he billed those clients he got to keep whatever was' left over instead of having to share it ■ with his brother, which he did willingly for years. This is not rocket scientist [sic] here.” Id.

The trial court then explained that if the corporate structure is dissolved the process would be “paying any bills, and then dividing the assets, and that would go pursuant to the Buy/Sell Agreement.” Tr. p. 49. Timothy did not agree with this characterization because if the dissolution was granted, the Agreement would be “null and void.” Id. Thus, Timothy believed that Randall had only filed the petition for judicial ■ dissolution to circumvent the Agreement.

At the conclusion of the October 11 hearing, Timothy requested time to brief the issues. Although the court was reluctant, it gave the parties until October 18, 2012, to file post-hearing briefs.

Randall passed away on October 12, 2012. On October 18, 2012, Timothy suggested that Randall’s death be placed in the record and offered his' obituary as evidence. Timothy then sought to dismiss Randall’s petition on the grounds that his death rendered his petition moot. Both parties then briefed the issues.

On October 26, 2012, the trial court denied Timothy’s motion to dismiss and granted Randall’s dissolution petition retroactively to October 11, 2012, the date of the evidentiary hearing. The trial court ordered the parties to wind up the business and liquidate its assets and reserved the right to revisit the issue of appointing a receiver to carry out these duties.

On November 5, 2012, the Estate filed a motion asking the court to set a hearing to appoint a receiver. That hearing was held on December 3, 2012, and the trial court granted the request. On December 14, 2012, the trial court entered an order appointing a receiver. Timothy now appeals.

DISCUSSION AND DECISION I. Mootness

Timothy first argues that “[because Randall died on October 12, 2012, his petition became moot before the circuit court ordered dissolution.” Appellant’s Br. p. 10. This argument relies on the Agreement and its continued enforceability

Buy-sell agreements, also referred to as transfer restrictions, are treated as contracts. F.B.I. Farms, Inc. v. Moore, 798 N.E.2d 440, 445 (Ind.2003). “Apart from any statutory requirements, restrictions on transfer are to be read, like any other contract, to further the manifest intention of the parties.” Id. at 445-46.

As stated above, under its explicit terms, the Agreement terminated upon dissolution of the corporation. Appellee’s App. p. 10. And the effective date of the trial court’s order dissolving the corporation was October 11, 2012, the date of the hearing and one day before Randall passed away. Indiana Code section 23-1-47-4 provides that a court may enter a decree dissolving a corporation “and specifying the effective date of the dissolution.” Accordingly, Randall’s petition did not become moot when the circuit court ordered dissolution.

II. Judicial Dissolution of the Corporation

Next, Timothy argues that there was insufficient evidence for the trial court to dissolve the corporation pursuant to Indiana Code section 23-1-47-1. Both parties agree that Indiana Trial Rule 52 supplies the appropriate standard of the review. Rule 52 provides that “[o]n appeal of claims tried by the court without a jury ... the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.”

Indiana Code section 23-1-47-1 provides that a corporation may be judicially dissolved in a proceeding by a shareholder if it is established that:

(A) the directors are deadlocked in the management of the corporate affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered, or the business and affairs of the corporation can no longer be conducted to the advantage of the shareholders generally, because of the deadlock; or
(B) the shareholders are deadlocked in voting power and have failed, for a period that includes at least two (2) consecutive annual meeting dates, to elect successors to directors whose terms have expired.

In the instant case, McNamee, the Company accountant, testified that for years he had advised Randall and Timothy to dissolve the corporation. Tr. p. 20. McNamee explained that there was no reason to keep the complexity of the corporation when Randall was performing all the labor and services for the Company. Id. at 21-23. However, Timothy was not in favor of dissolving the corporation. Id. at 23. Thus, Randall and Timothy disagreed regarding whether the corporation should be dissolved.

Moreover, McNamee testified that based on his experience as an accountant, the business affairs of the corporation could not be conducted to the advantage of the shareholders and directors with the deadlock that existed between the shareholders. McNamee further explained that it was the assets of the corporation “that generates the revenue to pay medical insurance, and then gas bills, which is, principally, what this company is doing.” Tr. p. 28. Furthermore, McNamee stated that only fifty percent of the entity had been working while the other fifty percent had been deducting “items for business purposes that are questionable.” Id. In short, the Company was sustaining itself solely with assets. Id. at 29.

Further, even before Randall became terminally ill and was able to perform labor and services for the corporation, the profits were small. And although Timothy contends that he wanted to be active in the business since 2003 or 2004, he was not. But the contentious nature between the brothers is best illustrated by a comment made by Timothy about Randall’s terminal illness: “but you’ve got to get out of bed and go to work.” Tr. p. 66. Thus, the brother and shareholder who had chosen for years to not be active in the corporation thought that the corporation would be more profitable if the shareholder who had done everything for the corporation during that time would get out of his death bed and go to work.

In short, the evidence before the trial court established that the corporation was no longer profitable because of Timothy’s disability and Randall’s terminal illness. Consequently, the business of the corporation could no longer be conducted to the advantage of the shareholders, who were deadlocked as to whether to dissolve the corporation. Accordingly, under these circumstances, we cannot say that the trial court erred when it dissolved the corporation.

Nevertheless Timothy contends that the trial court should not have dissolved the corporation insofar as Randall was simply attempting to circumvent the Agreement. In light of our analysis above, we agree with the Estate’s assertion, “when [the Agreement] was executed, both Timothy and Randall were active participants in the business, both contributing their knowledge, skill and labor for the benefit of the corporation.” Appellee’s Br. p. 26. But at this point, “there [is] no one left to operate the corporation and it could no longer be operated to the benefit of the shareholders.” Id. at 27. Therefore, this argument fails.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      .Debra Sue Enders as Personal Representative of the Estate of Randall Enders replaced Randall as the party of interest on April 4, 2013. We will refer to the Appellee-Petitioner as the Estate when speaking of it in the present. Otherwise, we will refer to the Ap-pellee as Randall when describing events before his passing. .

      . Although Timothy Enders and Enders & Longway Builders, Inc. are the Appellants-Respondents, we will simply refer to Timothy.

      . Neither party has provided this Court with a copy of the first agreement.

      . We received a Motion for an Expedited Appeal from the Appellants, dated May 29, 2013. This Panel was assigned this appeal along with this motion on June 11, 2013, and we have given it top priority. To that extent, we grant the motion. Although this may not have been what the Appellants had intended, we can only expedite appeals and rule on motions as we receive them, and as stated above, we received the appeal and the motion at the same time and began immediately deciding the appeal.


author: MAY, Judge.

text:
    James DENNING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1208-CR-394.
    Court of Appeals of Indiana.
    July 18, 2013.

      Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

James Denning was convicted after a bench trial of Class A felony attempted robbery and being an habitual offender. He raises two issues on appeal:

1. Whether the victim’s testimony was incredibly dubious; and
2. Whether Denning should have been convicted of battery resulting in serious bodily injury as a Class C felony instead of attempted robbery as a Class A felony.

As a preliminary matter, the State argues we do not have jurisdiction to consider Denning’s appeal because he filed his notice of appeal before the trial court decided the issue of restitution. We have jurisdiction, and we affirm.

FACTS AND PROCEDURAL HISTORY

On September 16, 2011, Denning and Derek Schaffer, who had been acquainted for about three months, went to a residence Schaffer was hoping to rent. Schaf-fer met with some prospective tenants, then he and Denning prepared to leave. As Schaffer checked to be sure the back door was locked, he heard a loud pop, “felt pressure,” (Tr. at 94), then passed out. He woke up, felt blood on the back of his head, and realized he had been shot. He and Denning struggled over Denning’s gun, and Denning said “give me your money and get back on the ground.” (Id. at 98.) During the struggle, Denning shot the wall. When he realized he was out of bullets he dropped the gun and fled.

The trial court found Denning guilty of attempted robbery and being an habitual offender, and sentenced him to fifty years. At the sentencing hearing the State said “we are asking for ... restitution to be determined at a hearing within 30 days or by agreement once the victim has provided me all of his medical bills.” (Id. at 272.) There was no other discussion of restitution, nor was evidence heard on that topic. At the end of the hearing the court said: “What I will do is I will leave restitution open, have it reduced to a civil judgment if there is an agreement on it. If not, let me know and we’ll have a hearing.” (Id. at 275.) The final written sentencing order did not mention restitution.

DISCUSSION AND DECISION

1. Jurisdiction

The State argues we do not have jurisdiction over this appeal “because the trial court had not resolved the issue of restitution prior to Denning’s filing of his notice of appeal.” (Br. of Appellee at 12.) We have jurisdiction, as the trial court found Denning guilty and entered a judgment of conviction. The trial court, despite its oral statement it would “leave restitution open,” entered a final sentencing order that did not impose restitution. Under those circumstances, we will not deprive Denning of his day in court based solely on a statement made diming a hearing. See Howell v. State, 684 N.E.2d 576, 577 n. 1 (Ind.Ct.App.1997) (noting our preference to decide a case on its merits and choosing not to dismiss appeal despite fact that appellant’s brief was filed late).

In urging us to dismiss Denning’s entire appeal, the State relies on Haste v. State, 967 N.E.2d 576 (Ind.Ct.App.2012). There, the State presented evidence at a sentencing hearing concerning the damage Haste’s methamphetamine manufacturing activity had caused to his landlord’s home. The State asked the trial court to enter a restitution order in the amount of $90,000. The trial court issued an order sentencing Haste to a ten-year executed sentence and indicating that the court was taking the issue of restitution under advisement. On August 23, 2011, before the trial court entered an order addressing restitution, Haste filed his notice of appeal.

We dismissed the appeal, noting we have jurisdiction in all appeals from final judgments; therefore, whether an order is a final judgment determines our subject matter jurisdiction. Id. at 576. In a criminal matter, sentencing is a final judgment, id., and a requirement that a defendant pay restitution is as much a part of a criminal sentence as any fine or other penalty. Id. “Because the trial court specifically stated in its August 17, 2011 sentencing order that it was taking the restitution issue under advisement, that order did not completely dispose of all sentencing issues.” Id. at 576-77 (emphasis added). Accordingly, the sentencing order Haste attempted to appeal was not a final judgment. Id. at 577.

Haste is distinguishable and does not require dismissal of Denning’s appeal. Denning’s final written sentencing order did not impose restitution or in any way indicate the question of restitution was still to be considered. In fact, the sentencing order explicitly noted Denning was “advised of his right to appeal and pauper counsel appointed.” (App. at 41.) The trial court would presumably not have so advised Denning and appointed appellate counsel had it not intended its sentencing order, which did not provide for restitution, to be final. Cf. Wilson v. State, 688 N.E.2d 1293, 1295 (Ind.Ct.App.1997) (explaining that a trial court should enter a restitution order at the time of sentencing and that the trial court lacked authority to enter a restitution order after sentencing where the trial court did not explicitly retain jurisdiction or continue the matter of restitution).

We recently noted

it is a common practice in trial courts throughout our state for a trial judge to impose a sentence upon a defendant while taking restitution under advisement for various reasons. This practice, however, can prove to be problematic as it has in this case — because it delays a defendant’s ability to begin an appeal due to the fact that a final order has not been entered. Consequently, this practice would affect a trial judge’s ability to advise a defendant of his appellate rights. Furthermore, when a trial court enters a sentence but takes restitution under advisement, the trial court is still subject to the ninety (90) day time limitation in Indiana Trial Rule 53.2 (“the lazy judge rule”), which is applicable to criminal proceedings pursuant to Indiana Criminal Rule 15. Therefore, the best practice would be for trial courts to enter an order of restitution at the same time as sentencing.

Alexander v. State, 987 N.E.2d 182, 185-86 (Ind.Ct.App.2013).

While it is apparent from Denning’s sentencing order that the trial court advised Denning of his appeal rights, entered a final order, and did not in fact “leave restitution open,” we agree with the Alexander reasoning. Entry of a restitution order at the time of Denning’s sentencing, had that been the court’s intent, would have left no doubt as to whether or when Denning could bring his appeal.

As the issue of restitution was not pending, as alleged by the State, Denning is not precluded from bringing this appeal of his conviction.

2. Incredible Dubiosity

Denning argues there was insufficient evidence to convict him because the victim’s testimony was incredibly dubious. Under the “incredible dubiosity” rule, a reviewing court will impinge on the jury’s responsibility to judge the credibility of witnesses only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Murray v. State, 761 N.E.2d 406, 408 (Ind.2002). Application of this rule is limited to cases where a sole witness presents inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the appellant’s guilt. Id. To interfere with the jury’s authority to judge witness credibility and evaluate evidence, we must be presented with testimony that “runs counter to human experience” and that reasonable persons could not believe. Edwards v. State, 753 N.E.2d 618, 622 (Ind.2001).

Schaffer’s statements were not incredibly dubious. Denning directs us to no specific testimony that runs counter to human experience or that reasonable persons could not believe. Instead, he asserts Schaffer was “not forthcoming.” with a detective who interviewed him, (Br. of Appellant at 10); was “reluctant” to give the detective details about his relationship with Denning, (id. at 11); was “evasive with the police about his relationship with Denning,” (id. at 12); and “Schaffer and Denning both testified to significantly different versions of the same incident'.” (Id. at 14.) He notes the trial court characterized Schaffer’s version of the events as “squirrely and evasive.” (Tr. at 248.)

We decline to hold a witness’ statements are necessarily “incredibly dubious” just because the witness is “evasive,” “not forthcoming,” or “reluctant” to reveal information, especially where, as here, the challenged information has no apparent relevance to the elements of the offense with which the defendant was charged. Nor will we hold a statement is, regardless of its content, “incredibly dubious” just because it is “squirrely.” And see Murray v. State, 761 N.E.2d 406, 409 (Ind.2002) (noting that conflict between trial testimony and pre-trial statement does not make trial testimony incredibly dubious).

3. Lesser Included Offense

Denning argues he should have been convicted of, at most, battery resulting in serious bodily injury as a Class C felony instead of attempted robbery as a Class A felony, because the Class C felony is a lesser-included offense of the Class A felony. He relies on Porter v. State, 671 N.E.2d 152, 153 (Ind.Ct.App.1996), trans. denied, where we stated a three-pronged analysis a trial court must perform when called upon to instruct a jury on a lesser included offense. ■

We presume that a trial court knows the law in Indiana, Palmer Dodge, Inc. v. Long, 791 N.E.2d 788, 792 (Ind.Ct.App.2003), and as Denning’s was a bench trial, we decline to apply a jury instruction analysis. The State chose to charge Den-ning with Class A felony attempted robbery, and it provided ample evidence to support a conviction of that offense. See Dixey v. State, 956 N.E.2d 776, 778 (Ind.Ct.App.2011) (State has the discretion to charge criminal defendant's under the statute it choosés), trans. denied. There was no error in convicting Denning of the Class A felony with which he was charged.

CONCLUSION

Denning is appealing a final order, as he was not subject to a pending restitution order; his victim’s testimony was not incredibly dubious; and the trial court was not obliged to enter a conviction of a lesser-included offense. We therefore have jurisdiction over this appeal and affirm the trial court.

Affirmed.

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

      . Ind.Code § 35-41-5-1 (attempt); Ind.Code § 35-42-5-1 (robbery).

      . Ind.Code § 35-50-2-8.

      .Denning does not list this in his Statement of the Issues, but he argues it at length in his brief.

      . The State asserts: "If, at some point, the trial court did order restitution, Denning could appeal from that order.” (Br. of Appel-lee at 11-12.) But the record does not reflect the court retained continuing jurisdiction over restitution or any other matter; having sentenced Denning in a final order that did not require, or even mention restitution, the trial court could not "at some point” subsequently order restitution. After a final judgment a court retains only such continuing jurisdiction as is permitted by the judgment itself, or as is given the court by statute or rule. Wilson v. State, 688 N.E.2d 1293, 1295 (Ind.Ct.App.1997). A trial court does not have inherent power to modify a sentence. Id.

      . The trial court explicitly stated Schaffer’s account, though "squirrely,” was "a credible account.” (Tr. at 248.)


text:
    Frederick HERRON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A02-1203-CR-224.
    Court of Appeals of Indiana.
    July 18, 2013.

      Derick W. Steele, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Frederick Herron appeals his convictions of two counts of Class A felony dealing in cocaine, one count of Class B felony dealing in cocaine, and a finding that he is an habitual substance offender. He asserts the court abused its discretion when it admitted evidence seized during and after a traffic stop. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 22, 2011, the Howard County Drug Task Force used a confidential informant, J.G., to make a controlled purchase of cocaine. About 4:30 p.m., Detective Brad Reed recorded a phone call between J.G. and Mike Ingle. J.G. told Ingle she wanted fifty dollars worth of crack cocaine, and Ingle told her to come to a house on East Fischer Street in Kokomo. Police searched J.G., wired her with recording devices, recorded serial numbers of the money they gave her to buy the drugs, and dropped her off near Ingle’s location.

J.G. rode a bicycle to the arranged meeting place. When she arrived, Ingle was smoking crack with several other people. J.G. gave Ingle $50, and he placed a phone call. After ending the call, Ingle told J.G. his supplier was on the way. Moments later, a white Chrysler Pacifica parked in the alley next to the house where J.G. and Ingle were. Ingle sat briefly in the passenger seat of the Pacifi-ca, then returned to the house. He gave J.G. a rock of cocaine,' she broke off a small piece for him, and she left. Police followed the Pacifica a short distance to record the license plate number and then circled back to pick up J.G., who turned over the cocaine. A search confirmed J.G. did not have the purchase money or other drugs.

Shortly before that controlled purchase, the Task Force had received information that a person named Frederick Herron was selling cocaine in Kokomo from a white Chrysler Pacifica. Because Ingle’s supplier had arrived in a car matching that description, police decided to attempt a second purchase from Ingle that day, to see if the white Chrysler Pacifica would arrive again after Ingle called his supplier. J.G. again called Ingle, who agreed to help her buy another $80 worth of cocaine. In-gle told J.G. to come to his house on Webster Street.

Officers once again searched J.G., placed a wire on her, gave her money, and sent her. to meet Ingle. When J.G. arrived, Ingle was outside his house. J.G. gave Ingle the buy money, Ingle made a phone call, and Ingle told J.G. his supplier was on the way. A short time later, a white Chrysler Pacifica arrived. An officer determined the Pacifica was registered to Herron. Herron exited the Pacifica, talked to Ingle and to a man seated inside a blue vehicle, adjusted the Pacifica’s headlight with Ingle’s assistance, and then left. Ingle gave the cocaine to J.G., who broke off a piece for Ingle, kept the rest for herself, and left.

Before Herron travelled two blocks, police stopped Herron because the window tinting on Herron’s car was too dark to permit officers to identify the gender or ethnicity of the driver. As Officer Chad VanCamp approached the driver’s window of Herron’s vehicle, Sergeant Tonda Cock-rell approached the passenger window. Because of the window tint, the officers could not determine how many people were in the car, so they ordered Herron to roll down his windows. In plain view on the middle console of the car, Sergeant Cockrell saw some $20-dollar bills, which she believed was the money from the just completed purchase.

Officer VanCamp ordered Herron to exit the vehicle. After “at least ten” requests, (Tr. at 248), Herron exited his car, and Officer VanCamp placed him in handcuffs and “read him the Miranda Warning.” (Id. at 26.) Officer VanCamp then conducted a pat-down search of Herron and found a “large amount” of money in his right front pocket and “a smaller bundle” in his left pocket. (Id. at 249.) Herron said he was not employed and said his brother gave him $2000 to use as down-payment on a house. Officer VanCamp then walked his drug-sniffing dog around Herron’s car. The dog indicated there were drugs near the passenger door of Herron’s car.

Detectives used the dog’s response, along with the controlled-buy evidence to obtain a search warrant for Herron’s car. After the warrant was procured, police found a secret compartment in the back of the passenger seat that contained crack cocaine packaged for sale.

The State charged Herron with two counts of Class A felony dealing in cocaine, one count of Class B felony dealing in cocaine, and being an habitual substance offender. Herron moved to suppress the evidence collected pursuant to the traffic stop. The trial court denied his motion and his request for interlocutory appeal. In a bifurcated trial, a jury found Herron guilty of all three dealing counts and then found he was an habitual substance offender. The court imposed concurrent sentences for the three felonies — forty years for each Class A felony and twenty years for the Class B felony — and imposed an eight-year habitual substance offender enhancement, for a cumulative sentence of forty-eight years.

DISCUSSION AND DECISION

Herron asserts the police search of him and his vehicle was unconstitutional. Because the trial court denied Herron’s request for interlocutory appeal of the denial of his motion to suppress and his trial proceeded to completion, we review whether the trial court’s admission of evidence was an abuse of discretion. See Graham v. State, 971 N.E.2d 713, 716 (Ind.Ct.App.2012) (interlocutory orders appealed after trial are reviewed for abuse of discretion), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

Herron argues the seizure of evidence violated both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Although the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution contain textually similar language, each must be separately analyzed. State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind.2008), reh’g denied.

Herron acknowledges the police could pull over his car because the officer believed his window tint- was darker than permitted by law. (Appellant’s Br. at 7.) He claims, however, the police unreasonably extended a valid traffic stop by removing him from his car and searching him because they did not have reasonable suspicion to conduct an investigatory stop or probable cause to arrest him. As the police had probable cause at the time he was removed from the car to arrest Her-ron for dealing cocaine, we need not address his other two arguments.

1. Fourth Amendment

The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures. U.S. Const. Amend. IV. The Fourteenth Amendment extended to state governments the Fourth Amendment’s requirements for constitutionally valid searches and seizures. Figert v. State, 686 N.E.2d 827, 830 (Ind.1997). A search conducted without a warrant is presumed unreasonable unless the State can demonstrate the search was pérmitted by one of the exceptions to the warrant requirement. Van-Pelt v. State, 760 N.E.2d 218, 221 [Ind.Ct.App.2001), trans. denied. One exception to the warrant requirement is a search incident to a lawful arrest. White v. State, 772 N.E.2d 408, 411 (Ind.2002). An arrest is lawful without a warrant when an officer has probable cause to support the arrest. Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003). Probable cause for an arrest exists when the officer has knowledge of facts and circumstances that would warrant a person of reasonable caution to believe the suspect committed a criminal act. Id.

On an unknown date prior to June 22, 2011, the Howard County Drug Task Force received anonymous information that a person named Frederick Herron, who drove a White Chrysler Pacifica with dark-tinted windows, was distributing crack cocaine in the Kokomo area. Her-ron challenges the use of that tip for establishing probable cause for his arrest on the grounds the tip was not associated with any “indicia of reliability” and it “may have been stale” by June 22, 2011. (Appellant’s Reply at 2.) However, this is not a situation where police took action based on a tip. See, e.g., Washington v. State, 740 N.E.2d 1241, (Ind.Ct.App.2000) (traffic stop based on uncorroborated anonymous tip is unconstitutional), trans. denied. Instead, the Task Force was investigating Ingle when the Pacifica arrived to deliver cocaine for the controlled buy. The Pacifi-ca appeared at the first buy location just after Ingle’s call to his supplier and just before Ingle delivered the crack to J.G. The Pacifica arrived at the second buy location and was registered to Herron. Those events demonstrate the tip was from a credible source and the information was not stale. See Moultry v. State, 808 N.E.2d 168, 172 (Ind.Ct.App.2004) (“When significant aspects of the anonymous informant’s prediction are verified, there is reason to believe not only that the anonymous informant was honest, but also that the anonymous informant’s information is sufficiently credible.... ”). Accordingly, the tip is one of the facts on which the police could rely when determining whether they had probable cause to arrest Herron. See id.

Herron asserts the “mere presence” of a white Pacifica at two locations where police were conducting a controlled buy cannot support probable cause. (Appellant’s Br. at 10.) Herron was not, however, “merely present” at those locations during the controlled purchases. Herron arrived at both locations shortly after In-gle called his supplier and ordered the cocaine J.G. requested. During the first buy, Ingle sat in the Pacifica and then returned to the house to give J.G. the cocaine. Soon after Herron left the location of the second buy, police saw what appeared to be the buy money in plain view in Herron’s car. These facts, when combined with the anonymous tip, gave the police probable cause to arrest Herron for dealing cocaine. See Jackson v. State, 597 N.E.2d 950, 957 (Ind.1992) (circumstantial evidence, much of which involved location of defendant’s car in relation to car involved in crime, sufficient to support probable cause to arrest for bank robbery by masked men who could not be identified visually), reh’g denied, cert. denied 507 U.S. 976, 113 S.Ct. 1424, 122 L.Ed.2d 793 (1993).

Upon proper arrest, police may search the arrestee and the area within the arrestee’s immediate control. White, 772 N.E.2d at 411. Thus, after removing Herron from the car, Officer VanCamp was authorized to remove the money from Herron’s pockets and to detain him while police obtained a search warrant for Her-ron’s car. The court therefore did not abuse its discretion when it admitted the evidence collected after Herron was removed from his car. See Fentress v. State, 863 N.E.2d 420, 424 (Ind.Ct.App.2007) (no error in admission of evidence collected where police had probable cause for arrest before they collected challenged evidence).

b. Article 1, Section 11

The language of Article 1, Section 11, the search and seizure provision of the Indiana Constitution, is virtually identical to its Fourth Amendment counterpart. Section 11 provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

This provision must receive a liberal construction in its application to protect the people from unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind.1995).

As we resolve challenges asserting this Section, we consider the circumstances presented in each case to determine whether the police behavior was reasonable. Saffold v. State, 938 N.E.2d 837, 840 (Ind.Ct.App.2010), trans. denied. The State has the burden of showing the intrusion was reasonable under the totality of the circumstances. Id. In determining reasonableness under Section 11, we recognize Indiana citizens are concerned not only with personal privacy but also with safety, security, and protection from crime. Id. When government intrusion is challenged under Section 11, therefore, the determination of reasonableness under the totality of circumstances may include consideration of police officer safety. Id.

Officers are permitted to stop a vehicle when they observe a traffic violation, Black v. State, 621 N.E.2d 368, 370 (Ind.Ct.App.1993), even if the officer may have an ulterior motive of furthering an unrelated criminal investigation. Mitchell v. State, 745 N.E.2d 775, 787 (Ind.2001). The officers could stop Herron’s car based on their belief the tint on his windows was illegal. Once stopped, we believe the totality of the circumstances known to police demonstrate the reasonableness of the police officers’ decision to arrest Herron for dealing crack cocaine. The two controlled purchases made by the confidential informant corroborated the anonymous tip, and an officer saw in plain view what appeared to be the buy money in Herron’s car. That evidence gave police reasonable belief Herron should be arrested for dealing cocaine, and it was reasonable under our State Constitution for police to search Herron incident to that arrest. See Winebrenner v. State, 790 N.E.2d 1037, 1041 (Ind.Ct.App.2003) (search reasonable under Art. 1, Sect. 11 where incident to arrest supported by probable cause).

CONCLUSION

Because the police officers had probable cause to believe Herron was delivering cocaine, his arrest on being removed from the car was permissible. The trial court therefore did not abuse its discretion in admitting evidence seized from that point forward. Accordingly, we affirm the trial court’s judgment.

Affirmed.

NAJAM, J., and KIRSCH, J., concur.

      .One was based on the sale occurring within 1000 feet of a public park, see Ind.Code §§ 35 — 48—4—1 (a)(1) & 35-48-4-l(b)(3), while the other was based on Herron possessing more than three grams of cocaine with an intent to deliver, see Ind.Code §§ 35-48-4-1(a)(2) & 35-48-4-l(b)(l).

      . Ind.Code § 35-48-4-l(a)(l).

      . Ind.Code § 35-50-2-10.

      . Officer VanCamp testified that, later in the traffic stop, he used a "tint meter” to check the tinting on Herron’s windows, determined the tint was darker than permitted by law, and issued a citation for that violation. (Tr. at 27.)

      . Officer VanCamp testified that he asked Herron to exit the car because other officers had "already determined that he was going to be detained.” (Tr. at 248.)

      . The Fourth Amendment to the United States Constitution provides:
      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.


author: VAIDIK, Judge.

text:
    Thomas DEXTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A04-1212-CR-611.
    Court of Appeals of Indiana.
    July 22, 2013.

      Bruce W. Graham, Graham Law Firm, P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Following remand from the Indiana Supreme Court, Thomas Dexter had a second habitual-offender hearing. The jury again found Dexter to be a habitual offender, and the trial court again enhanced Dexter’s sentence by thirty years. Dexter now appeals arguing — for the second time — that the evidence is insufficient to support his thirty-year habitual-offender enhancement. Because we find that the certified transcript from Dexter’s guilty-plea and sentencing hearing is sufficient to prove one of his underlying felony convictions and that his habitual-offender retrial was not barred by res judicata, we affirm.

Facts and Procedural History

The underlying facts in this case, taken from the Indiana Supreme Court’s opinion, are as follows:

The defendant, Thomas Dexter, lived in a Lafayette apartment with his girlfriend A.H. and her three daughters, including three-year-old K.S. On April 30, 2009, A.H. went to a morning appointment and left K.S. in Dexter’s care, asking him to have her dressed by the time A.H. returned. Dexter proceeded to give K.S. a bath and then tossed her in the air. Dexter was unable to catch K.S., who was wet from her bath, and K.S. fell, striking both her head and her back on the tub. Dexter wrapped her in a towel and called 911. K.S. was rushed to a local hospital but soon was transferred to Riley Children’s Hospital in Indianapolis due to an increase in her intracranial pressure. Sadly, K.S. died on May 5, 2009.

Dexter v. State, 959 N.E.2d 235, 236 (Ind.2012).

The State charged Dexter with Class A felony neglect of a dependent resulting in death. The State also sought to have him sentenced as a habitual offender pursuant to Indiana Code section 35-50-2-8. In order to prove that Dexter was a habitual offender, the State alleged that Dexter had been convicted of felony theft in 2000 for an offense committed in 1999 and convicted of felony residential entry and felony theft in 2005 for offenses committed in 2004. To carry its burden of proving the 2000 fefony theft conviction, the State used a copy of the order entering judgment of conviction that was not signed by the trial judge. The State also used a “rules of probation” form, the presentence investigation (PSI) from the 2005 convictions, and the testimony of a probation officer. Id. at 237.

A jury convicted Dexter as charged and also found him to be a habitual offender. The trial court sentenced him. to thirty years for his Class A felony conviction and enhanced it by thirty years based on his habitual-offender status. The court suspended five years to probation, for an aggregate sentence of fifty-five years.

Dexter appealed, arguing, among other things, that the evidence was insufficient to support his habitual-offender enhancement. This Court affirmed, Dexter v. State, 945 N.E.2d 220 (Ind.Ct.App.2011), trans. granted, vacated in part, and summarily ajfd in part, and Dexter sought transfer arguing that the unsigned order entering judgment of conviction for felony theft was insufficient to prove beyond a reasonable doubt the fact of a prior conviction. Our Supreme Court granted transfer and held that “a judgment must be signed by the trial judge to constitute substantial evidence of probative value sufficient to sustain a habitual-offender enhancement” and that the “unsigned order of judgment was not probative of the fact of Dexter’s alleged theft conviction in 2000.” Dexter, 959 N.E.2d at 239. Although this Court had held that the record contained other evidence of probative value sufficient to support the jury’s habitual-offender finding, the Supreme Court concluded otherwise. Specifically, the Supreme Court found that the rules-of-probation form that was signed by both Dexter and the trial judge, the PSI from Dexter’s 2005 convictions which showed that he had been convicted of felony theft in 2000, and the probation officer’s testimony were not probative of Dexter’s alleged 2000 theft conviction. Id. at 239-40. Accordingly, the Supreme Court held that Dexter’s habitual-offender enhancement could not “stand on this record.” Id. at 240. Nevertheless, the Supreme Court held that’the State could retry Dexter on the habitual-offender enhancement. The Court noted that sentencing enhancements are treated differently than convictions and can be retried even where the enhancement is reversed because of insufficient evidence. Id. (citing Monge v. California, 524 U.S. 721, 727-34, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998)).

On retrial in November 2012, the State acknowledged that the unsigned sentencing order from the 2000 theft, conviction had been found inadequate and, instead, admitted the certified transcript from Dexter’s May 31, 2000, guilty-plea and sentencing hearing for felony theft. Tr. p. 2. At the May 2000 hearing, Dexter was advised of the nature of the theft charge, his constitutional rights, and the possible penalties. The trial court found “a factual basis :and enter[ed] judgment of conviction on ... class D felonfy] [theft] and accepted] the plea agreement.” State’s Ex. 1, p. 9. The court then sentenced him. Id. A “Certificate” is attached to the end of the transcript from Dexter’s May 2000 guilty-plea and sentencing hearing. The Certificate says that the transcript of the hearing is a “full, true, complete and correct transcript” of the hearing held on May 31, 2000, “all of which was recorded in open Court by Lanier Recording Device and later transcribed by” the court reporter, Jennifer K. Prange. State’s Ex. l(end). It was the State’s position on retrial that the certified transcript was “enough” to show “proof of the judgment and conviction.” Tr. p. 3.

The jury again found Dexter to be habitual offender, and the trial court again imposed a thirty-year enhancement.

Dexter now appeals.

Discussion and Decision

Dexter makes two arguments on appeal. First, he contends that the transcript of his May 2000 guilty-plea and sentencing hearing is insufficient to support his 2000 felony theft conviction; therefore, his habitual-offender sentencing enhancement cannot stand. Second, he contends that his habitual-offender retrial was barred by the doctrine of res judicata.

I. Habitual-Offender Enhancement

Dexter contends that the transcript of his May 2000 guilty-plea and sentencing hearing is insufficient to support his 2000 felony theft conviction; therefore, his habitual-offender sentencing enhancement cannot stand. The sentence of a person convicted of a felony may be enhanced by up to thirty years if he is a habitual offender. Ind.Code § 35-50-2-8(h). The habitual-offender sentencing enhancement is available where the State proves beyond a reasonable doubt that the defendant has been convicted of two prior unrelated felonies. I.C. § 35-50-2-8(a), (g); Dexter, 959 N.E.2d at 237.

Here, it is apparent that the State did not present a proper judgment of conviction for Dexter’s 2000 felony theft conviction at the November 2012 habitual-offender retrial because the judgment of conviction was not signed by the judge. In lieu of a signed judgment of conviction, the State presented the certified transcript from Dexter’s May 2000 guilty-plea and sentencing hearing. Although our Supreme Court held that the unsigned order entering judgment of conviction was not sufficient to prove the existence of Dexter’s 2000 felony theft conviction, it did not rule out other methods of proving the existence of this conviction. In fact, our Supreme Court evaluated the other evidence that the State used in the first trial — the rules-of-probation form, the 2005 PSI, and the probation officer’s testimony — but found that this evidence was not probative of Dexter’s 2000 felony theft conviction.

As our Supreme Court held in the previous appeal in this case, “For almost 30 years, this Court has held that the State must introduce into evidence proper certified and authenticated records of the defendant’s prior felony convictions in order to prove beyond a reasonable doubt the existence of those prior convictions.” Dexter, 959 N.E.2d at 238. At Dexter’s habitual-offender retrial, the State admitted into evidence the certified transcript from Dexter’s May 2000 guilty-plea and sentencing hearing, which it did not present at Dexter’s first trial and therefore the Supreme Court did not evaluate in the prior appeal in this case. At Dexter’s May 2000 guilty-plea and sentencing hearing, a factual basis for felony theft was estab: lished and then the trial court accepted Dexter’s guilty plea, entered judgment of conviction, and sentenced him. State’s Ex. 1, p. 9. Accordingly, we find that the certified transcript from Dexter’s May 2000 guilty-plea and sentencing hearing is sufficient to establish the fact of his 2000 felony theft conviction. See Woods v. State, 939 N.E.2d 676 (Ind.Ct.App.2010), tram, denied.

II. Res Judicata

Dexter next contends that his habitual-offender retrial was barred by the doctrine of res judicata. “Res judicata bars relitigation of a claim after a final judgment has been rendered, when the subsequent action involves the same claim between the same parties.” Shumate v. State, 718 N.E.2d 1133, 1135 (Ind.Ct.App.1999). In order to prove that relitigation is barred by res judicata, four elements must be satisfied: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was or could have been determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the same parties to the present suit or their privies. Id.

In its opinion, our Supreme Court held that the “State may retry Dexter on the habitual-offender enhancement” because retrial on a sentencing enhancement did not violate double-jeopardy principles. Dexter, 959 N.E.2d at 240. But Dexter points out that our Supreme Court did not mention anything about res judicata. In support of his argument that res judicata barred retrial in this case, Dexter relies on Shumate, 718 N.E.2d 1133, a probation-revocation case which in turn relied on a South Carolina Court of Appeals case, Jimmy Martin Realty Group, Inc. v. Fameco Distributors, Inc., 300 S.C. 192, 386 S.E.2d 803 (Ct.App.1989).

We first dispute whether Shumate applies to this case, a habitual-offender case. But even if it does, Dexter argues that “all four factors seemingly apply to Dexter’s retrial of the habitual offender enhancement.” Appellant’s Br. p. 13. As for the second element, Dexter argues that a judgment was rendered on the merits “when the Indiana Supreme Court concluded that insufficient evidence supported the habitual offender count.” Id. In the original judgment, the jury found that Dexter had been found guilty of felony theft in 2000 and therefore was a habitual offender. On appeal, however, our Supreme Court reversed Dexter’s habitual-offender enhancement because it found that the evidence used to prove the 2000 theft conviction was inadequate. The Court did not reach any legal conclusion that would preclude Dexter from being found a habitual offender if the State proved the existence of the theft conviction; therefore, it expressly remanded the case for resentencing proceedings. Because our Supreme Court’s decision was not a final judgment on the merits, the State was not barred from retrying Dexter under the doctrine of res judicata.

Affirmed.

KIRSCH, J., and PYLE, J., concur.

      . Dexter does not challenge the 2005 convictions used to support his habitual-offender enhancement or the sequencing of his convictions.

      . Dexter does not argue that the transcript is not from proceedings involving him. Instead, he argues that the issue is whether the State "must introduce into evidence a properly certified and authenticated record of the defendant’s prior felony conviction, or whether a transcript of a hearing of the guilty plea and sentencing is acceptable.” Appellant’s Br. p. 8.


author: MASSA, Justice.

text:
    Ann L. MILLER and Richard A. Miller, Appellants (Plaintiffs below), v. Glenn L. DOBBS, D.O. and Partners in Health, Appellees (Defendants below).
    No. 15S05-1302-CT-91.
    Supreme Court of Indiana.
    July 30, 2013.
    F. Harrison Green, Cincinnati, OH, Attorneys for Appellant.

      Karl L. Mulvaney, Nana Quay-Smith, Mary H. Watts, Indianapolis, IN, Attorneys for Appellee.
    Mark J. Crandley, Paul L. Jefferson, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Department of Insurance.
   MASSA, Justice.

In this case, the parties have spent five years disputing an issue which boils down to a seven-dollar fee paid three days late. The trial court found this delinquency fatal to the plaintiffs’ claim. We reverse.

Facts and Procedural History

On April 3, 2006, two weeks after her obstetrician, Dr. Glenn Dobbs, performed a cesarean section and tubal ligation on her, Ann Miller suffered a massive stroke that left her with permanent injuries. Nearly two years later, on March 18, 2008, the Millers’ attorney sent a proposed medical malpractice complaint to the Indiana Department of Insurance by certified mail. The $7.00 in statutory filing and processing fees were omitted from this mailing, but the proposed complaint was nevertheless file-stamped March 18. On March 31, 2008, the Millers filed their complaint against Dr. Dobbs and his medical group in the Dearborn Superior Court.

Meanwhile, the Department discovered the fee omission and sent the Millers’ attorney a letter on March 31 stating that the mandatory fees needed to be sent within 30 days and that the complaint would “not be considered filed with the Department until the filing fees ... [were] received.” Appellants’ App. at 234. Similar warnings appear in the Department’s proposed complaint procedures (a copy of which the processor enclosed with the letter) and on the Department’s website. Ind. Dep’t of Ins., “Consumer Services: Medical Malpractice,” at http://www.in.gov/ idoi/2614.htm. The Millers’ attorney received the letter on Friday, April 4, 2008 and sent a check to the Department by first-class mail that same day. On Monday, April 7, the Department received the check and re-file-stamped the proposed complaint April 7.

The proceedings in the trial court were stayed pending completion of the Medical Review Panel opinion, which was issued in July 2010. The defendants subsequently raised an affirmative defense of the statute of limitations and moved for summary judgment on that basis. In May 2011, the Millers moved to strike that motion, arguing the defendants waived it by failing to raise it before the Medical Review Panel issued its opinion. The trial court granted the defendants’ motion for summary judgment and denied the Millers’ motion to strike.

On appeal, a divided panel of the Court of Appeals reversed, finding the Millers’ proposed complaint was timely filed. Miller v. Dobbs, 976 N.E.2d 91, 99 (Ind.Ct.App.2012). We granted transfer. Miller v. Dobbs, 982 N.E.2d 298 (Ind.2013) (table); Ind. Appellate Rule 58(A).

Standard of Review

We review a trial court’s grant of summary judgment de novo, City of Indianapolis v. Buschman, 988 N.E.2d 791, 793 (Ind.2013), and we will affirm “only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.2008); see also Ind. Trial Rule 56(C). Like the trial court, we construe all evidence and resolve all doubts in favor of the non-moving party, Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011), so as to avoid improperly denying him his day in court. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993).

The Defendants Did Not Waive Their Affirmative Defense.

As a threshold matter, the Millers argue the defendants should have raised their statute of limitations defense by moving for a preliminary determination of law during the pendency of the proceedings before the Medical Review Panel, and that because they did not, they waived the right to raise it as an affirmative defense in the trial court. We disagree.

The General Assembly has provided that the trial court, upon motion of a party to a medical malpractice action, may “preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure.” Ind.Code § 34 — 18—11— 1(a)(1). The same section makes clear, however, that “failure of any party to move for a preliminary determination ... before the medical review panel gives the panel’s written opinion under IC 34-18-10-22 does not constitute the waiver of any affirmative defense or issue of law or fact.” Ind.Code § 34-18-ll-l(d).

The statute of limitations unquestionably is an affirmative defense. Ind. Trial Rule 8(C) (listing many affirmative defenses, including statute of limitations). Thus, according to Ind.Code § 34-18-ll-l(d), the defendants did not waive it by choosing not to move for a preliminary determination. We proceed to consider the defense on its merits.

The Millers’ Proposed Complaint Was Timely Filed.

The defendants contend the Millers’ proposed complaint was untimely because, although the Department received the complaint itself before the end of the statutory period, it did not receive the requisite filing and processing fees until April 7, three days after the statutory period ended. Our reading of the relevant statute, however, leads us to the opposite conclusion.

According to the “Statute of Limitations” chapter of our Medical Malpractice Act, “a proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Ind.Code § 34-18-7-3(b). The Millers’ proposed complaint was mailed by certified mail on March 18, 2008. According to the statute, it is considered filed on that date. The statutory period did not expire until April 4, 2008. Thus, the Millers’ proposed complaint was timely filed with the Department.

Both the overall structure of the MMA and public policy considerations support our conclusion today. First, the filing and processing fees are located in a different chapter of the statute entitled “Commencement of a Medical Malpractice Action.” See Ind.Code § 34-18-8-2 (“The following fees must accompany each proposed complaint filed: (1) A filing fee of five dollars ($5). (2) A processing fee of two dollars ($2) for each additional defendant after the first defendant”). The language of that provision also suggests that a proposed complaint is considered filed regardless of whether the required fees are submitted with it; the fees “accompany” the filed complaint, but they are not actually part of it. Second, Indiana law has long incorporated a strong preference for deciding cases on their merits rather than disposing of them via procedural technicalities. Deckard v. Adams, 246 Ind. 123, 125, 203 N.E.2d 303, 305 (1965). Accordingly, we have stated that our appellate rules, including filing fees, “exist to facilitate the orderly presentation and disposition of appeals and prevent the confusing and awkward situation of having the trial and appellate courts simultaneously review the correctness of a judgment,” in contrast to the statute of limitations, which is intended “to spare courts from stale claims ... [and] to insure that parties are given formal and seasonable notice that a claim is being asserted against them.” Boostrom v. Bach, 622 N.E.2d 175, 176 (Ind.1993) (internal citation and quotations omitted). The Millers’ claim was not stale; the actual filing of the lawsuit in the Dear-born Superior Court on March 31, 2008, was within the statute of limitations. And as we have said before, “there are numerous methods by which to enforce effectively the payment of filing fees other than by couching such enforcement in jurisdictional terms.” Id. (citing Brady v. E. Ind. Prod. Credit Ass’n, 396 N.E.2d 335, 335 (Ind.1978)). Therefore, the trial court’s decision to dismiss the Millers’ claims as untimely is inconsistent with the structure of the Act and with our public policy.

Finally, we have resolved the issue on this-straightforward statutory ground, so we need not consider the Millers’ alternative arguments that their proposed complaint was filed timely because they (1) mailed the fees on the last day of the statutory period, or (2) mailed the fees within the thirty-day window the Department provided them in its letter.

Conclusion

Ultimately, as we read the statute, it does not mandate that the Millers’ claim is lost for want of this seven-dollar horseshoe nail. We therefore reverse the trial court’s grant of summary judgment and remand this case for further proceedings consistent with our opinion.

DICKSON, C. J., RUCKER, DAVID, and RUSH, JJ., concur.

      . This case brings to mind Poor Richard’s well-known admonition: "For want of a Nail the Shoe was lost; for want of a Shoe the Horse was lost; and for want of a Horse the Rider was lost, being overtaken and slain by the Enemy, all for want of Care about a Horse-shoe Nail.” Benjamin Franklin, Poor Richard's Almanac (U.S. Gov't Printing Office, facsimile ed. 2006) (1758).

      . Both parties seem to agree that April 4, 2008 was the final day of the statutory limitation period of the Millers’ claim.

      . Ind.Code § 34-18-7-1 ("A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect.”).

      . We note that prudent counsel will avoid this issue entirely by complying scrupulously with all procedural rules and requirements. As Poor Richard put it, "he adviseth to Circumspection and Care, even in the smallest Matters, because sometimes a little Neglect may breed Great Mischief.” Franklin, supra note 1.