author: RILEY, Judge.

text:
    Debra A. ROOP, Appellant-Petitioner, v. Dean A. BUCHANAN, Appellee-Respondent.
    No. 88A01-1304-DR-171.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      Debra A. Roop, Louisville, KY, for Appellant pro se.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Debbie Roop (Roop), appeals the trial court's order to pay her child support arrearage to Tina Buchanan (Buchanan).

We affirm in part and reverse in part.

ISSUE

Roop raises one issue on appeal, which we restate as: Whether the trial court abused its discretion when it ordered Roop to pay her child support arrearage to her adult child, Buchanan, instead of to Appel-lee-Respondent, Dean Buchanan (Dean), who is deceased.

FACTS AND PROCEDURAL HISTORY

Roop and Dean dissolved their marriage in 1994. During the marriage, two children were born: Buchanan, now 28 years-old, and Jessi D. Buchanan, now 23 years-old. The two children resided with Dean, and Roop was ordered to make regular child support payments. Over time, Roop accrued a child support arrearage of approximately $22,000. For the last ten years, Roop has made regular child support payments as well as payments towards her arrearage. She currently pays $20 every two weeks towards her obligation and her arrearage has decreased to approximately $9,400.

Dean died on October 26, 2012. After his death, Roop contacted the trial court requesting relief for the remaining arrear-age of her child support obligation. On November 16, 2012, the State of Indiana, as an Intervenor, filed a motion to determine the amount of child support arrear-age and payment. On January 22, 2013, the trial court conducted a hearing on the motion. During the hearing, the State advised that the recipient of the child support, Dean, was deceased and requested guidance with respect to the distribution of child support payments which had been put on hold. Roop, in turn, requested relief of the arrearage as the recipient was deceased and no estate had been opened. Buchanan testified that she had assumed her father's funeral expenses in the amount of $8,026. She requested to be assigned the recipient of the child support arrearage, which she would apply towards the funeral expenses. She agreed with the trial court's suggestion that upon satisfaction of the funeral expenses, the remaining payments towards the arrearage should be divided between her sibling and herself.

On January 29, 2013, the trial court issued its Order, finding, in pertinent part:

3. Because the children are adults and the father is deceased, [Roop] had requested that the arrearage be forgiven.
4. The parties' daughter, [Buchanan] is now 28 years old and has assumed funeral expenses for [Dean] of $8,026.00 and is entitled to collect the arrearage for funeral expense purposes.
5. [Roop] shall continue to pay a minimum of ten ($10.00) per week toward the arrearage.
6. After all funeral expenses and actual interest and collection costs have been paid, payments on the arrearage shall be paid in equal amounts to the adult children [ ] until paid in full.
7. The Clerk shall release $140.00 being held in this case to [Buchanan] for the payment of funeral expenses as provided in this order.

(Appellant's Br. p. 12).

On February 19, 2013, Roop's sister contacted the trial court, notifying the court that Buchanan was not making payments to the funeral home as directed by the trial court's order. On March 26, 2018, the trial court conducted another hearing, and on April 2, 2013, the trial court issued the following Order, stating in pertinent part:

2. After entry of the [clourt's order, [Roop] notified the [clourt that [Buchanan] was not paying the funeral expenses as agreed and ordered.
3. Weathers Funeral Home has not been paid and has filed suit against [Buchanan].
4. [Buchanan] still has the uncashed support checks and has not activated the debt card containing support funds because she says that Weathers Funeral Home would not accept partial payments unless the debtor applied to Personal Finance Company for a structured promissory note.
5. [Buchanan] testified that [Dean] had life insurance but named his grandehil-dren as beneficiaries and the insurance proceeds are not available for payment of funeral expenses.
6. [Roop] does not want to pay back support at all, even at $10.00 per week toward [Buchanan's] funeral expenses.
7. The [clourt now reaffirms its prior Order of January 29, 2013 and directs [Buchanan] to promptly pay over support proceeds to Weathers Funeral Home, or if they will not accept payments now, to make payments to the Clerk after a judgment is entered against [Buchanan] for funeral expenses.

(Appellant's Br. p. 16).

Roop now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Roop contends that the trial court abused its discretion when it ordered her to continue to make payments towards her child support arrearage even though the recipient is deceased and no estate had been established. Specifically, she maintains that because child support arrearage is a "debt owed to the custodial parent for expenses accrued by the eustodial parent in rearing dependent children, [] in the absence of a formal estate process," the trial court improperly earmarked the support arrearage to pay for Dean's funeral expenses incurred by the adult child. (Appellant's Br. pp. 6, 8).

Initially, we note that no appellee's brief was filed. "When an appellee does not submit a brief, an appellant may prevail by making a prima facie case of error." Gibson v. Hand, 756 N.E.2d 544, 545 (Ind.Ct.App.2001). Such a rule protects this court and relieves it from the burden of controverting arguments advanced for reversal, a duty which properly remains with counsel for the appellee. Id. at 546.

I. Standard of Review

Decisions regarding child support matters are within the sound discretion of the trial court. Decker v. Decker, 829 N.E.2d 77, 79 (Ind.Ct.App.2005). We reverse a child support decision only if there has been an abuse of discretion or the decision is contrary to law. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and cireamstances before it. Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind.Ct.App.2005).

II. Nature of the Arrearage

One of the purposes of child support is to provide a child with regular and uninterrupted support. Rendon v. Rendon, 692 N.E2d 889, 897 (Ind.Ct.App.1998). It has long been held that "the right to support lies exclusively with the child, and that a parent holds the child support payments in trust for the child's benefit." Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind.Ct.App.1997), trans. denied. The custodial parent acts as a trustee of the payments and is to use them for the benefit of the child. Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind.1994). As the constructive trustee, the custodial parent may not contract away the benefits of the constructive trust, and neither the parents nor the child may informally effect a modification or annulment of the accrued benefits. In re Hambright, 762 N.E.2d 98, 101 (Ind.2002). In addition, onee funds have accrued to the child's benefit, the trial court lacks the power to reduce, annul, or vacate the child's support order retroactively. Whited v. Whited, 859 N.E.2d 657, 661 (Ind.2007).

Several cases have arisen over the years that have provided an opportunity to refine these general rules and adapt them to diverse situations. In Ligak v. Schultz, 496 N.E.2d 40 (Ind.1986), the mother, who was the custodial parent, died while the father owed a substantial arrearage on his child support obligation. Id. at 41. The mother's husband, as personal representative of her estate, pursued the arrearage which existed on the date of her death, and eventually a judgment was entered against the father and in favor of the estate. Id. The father appealed, arguing that because the mother was a fiduciary for the children, the arrearage was not an ordinary debt that could be collected by the personal representative. Id. The Ligak court noted that describing the child's custodian as a trustee has "distant origins in our law" to differentiate between alimony-paid to the former spouse for his or her benefit- and child support-paid to the child's eus-todian regardless of whether the custodian is also the child's parent. Id. at 42. Using the term "trustee" supports the obligation of the custodian to seek enforcement of a child support order but is not meant to provide the non-paying parent an avenue to avoid paying child support. Id. As such, the court clarified that the noncustodial parent has an ongoing obligation to pay child support and the custodian has an ongoing obligation to care for the child. Id. A custodial parent who has advanced his or her own funds to provide food, clothing, and shelter to the child has discharged the trusteeship and "is entitled to collect the arrears from the non-custodian." Id. Thus, rejecting the father's attempts to avoid his support obligation by forcing the custodian to prove the shortfall caused by arrearage had been made up by the custodian's own funds, the court concluded that the personal representative was entitled to collect the debt. Id. at 43.

In Haombright, our supreme court considered whether a child support arrearage is an asset of the custodial parent's bankruptcy estate. In re Hambright, 762 N.E.2d at 101. Relying on the basic principles that the right lies with the child and the custodial parent holds the support in trust for the child's benefit, the court concluded that arrearages are held for the children and the custodial parent has no individual property interest in them; therefore, the bankruptcy trustee has no interest in them either. Id. at 108-04. In so holding, our supreme court left open the issue of "whether the nature of the custodial parent's interest in an arrearage changes after a non-custodial parent's duty to support ends." Id. at 108 n. 4. Subsequently, this court applied the Hambright case in holding child support arrearages are not includable as marital property subject to division in a dissolution proceeding. Elkins v. Elkins, 763 N.E.2d 482, 486 (Ind.Ct. App.2002).

In Hicks v. Smith, 99 N.E.2d 1169 (Ind.Ct.App.2010), mother was the ecustodial parent of a minor child, with father being ordered to pay child support. Id. at 1170. Father absconded with the child and remained a fugitive until the child reached majority. Id. at 1171. Subsequently, after father was located and the child was emancipated, mother filed a petition for the payment of the acerued child support arrearage. Id. Father requested to pay the arrearage directly to his son. Id. at 1174. Referencing the established case law, we concluded: |

That a custodial parent holds child support payments in trust for the child makes sense during the child's minority because the minor child has an ongoing and regular need for support. Once the child is emancipated, however, the child has been supported. If there is an ar-rearage remaining, the custodial parent generally had to assume more than his or her share of supporting the child. Where there is clear evidence that because of the arrearage and the custodial parent's inability to make up the shortfall, the now-emancipated child had gone without something that is still relevant-for instance, a college education-the child may arguably be entitled to some of the arrearage. However, for the most part, the arrearage should be available to compensate the custodial parent for his or her expenses in assuming more than his or her share of the cost of supporting the child until his or her emancipation.

Id. at 1173-74. Applying these principles, the Hicks court acknowledged that mother did not provide support for the child due to father's absconcement. Id. However, "[plresumably, she maintained a home for [the child] should he be returned to her custody and made decisions for sixteen years based on the possibility of his return." Id. at 1174. Rejecting Father's request, we noted that, as the child did not support himself during the time he was absent from mother's household, the ar-rearage cannot be paid directly to him, distinguishing . Thacker v. Thacker, 710 N.E.2d 942 (Ind.Ct.App.1999) (the arrear-age should be paid to the son because the son advanced his own funds to care for himself during the two-year period he was not living with the custodial parent). Id. Accordingly, because father was not entitled to retain the arrearage, and, as "between these three parties and under these circumstances," the Hicks court affirmed the trial court's award of the arrearage to mother. Id. at 1175.

IIL Trial Court's Award of Arrearage to Buchanan

Established precedent clarifies that, with some limited exceptions, the child support arrearage is typically considered a debt owed to the custodial parent for the amounts advanced to make up the non-custodial parent's financial shortfall in raising the children. This obligation to refund the custodial parent exists regardless whether the children. are emancipated. Should the custodial parent decease prior to the satisfaction of this debt, the representative of the estate is entitled to collect the arrearage.

With these principles in mind, we turn to the unique facts of this case. It is undisputed that, as of January 22, 2013, Roop's child support arrearage amounted to $9,464.27. It is equally undisputed that Dean is deceased and no estate has been opened. Both children are emancipated and Buchanan assumed Dean's funeral costs in the amount of $8,026.00. As Dean, the deceased custodial parent whose children are emancipated, is entitled to a presumption that he expended his own funds to offset any deficit caused by the unpaid child support during the children's minority, it is only reasonable to infer that these extra expenses cut short his own savings toward funeral costs. Because he was unable to save during his life, his emancipated child has now assumed these costs in lieu of her father. Under these cireum-stances, we cannot say that the trial court abused its discretion when it ordered Roop to continue paying the child support ar-rearage towards Dean's funeral costs. However, as the arrearage is a debt owed to the eustodial parent as trustee of the child, and in the absence of an estate, the trial court abused its discretion when it awarded the remainder of the arrearage-after payment of the funeral expenses-directly to the emancipated children. See Lizak, 496 N.E.2d at 42.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly ordered Roop to pay the accrued child support obligation to Buchanan for satisfaction of Dean's funeral expenses. However, the trial court abused its discretion when it awarded the remainder of the child support arrearage to the emancipated children.

Affirmed in part and reversed in part.

ROBB, C.J. and KIRSCH, J. concur.

      . Pursuant to Indiana Appellate Rule 49(A), Appellant "shall file its Appendix with its appellant's brief." The purpose of an Appendix is to present this court with "those parts of the record on appeal that are necessary to decide the issues presented." Ind. Appellate Rule 50(1). Roop failed to submit an Appendix with her appellate brief and consequently, also failed to include citations and references to the relevant materials that would otherwise have been included in the Appendix. As a result, we must necessarily rely on Roop's factual recitation in her brief without an opportunity to verify her statements.

      . There are two exceptions to the rule prohibiting retroactive modification of support already accrued, none of which is applicable to the case before us: 1) where the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the decree and 2) where the obligated parent, by agreement with the custodial parent, takes the child into his or her home, assumes custody, provides necessities, and exercises parental control for such a period of time that a permanent change of custody is effected. Whited, 859 N.E.2d at 662.


source: Caselaw Access Project

author: DARDEN, Senior Judge.

license: Public Domain

text:
    OLD NATIONAL BANCORP d/b/a Old National Trust Company, as Trustee of the Percy E. Goodrich Trust and the Hanover College Trust, Appellant-Respondent, v. HANOVER COLLEGE, Appellee-Petitioner.
    No. 68A05-1303-TR-111.
    Court of Appeals of Indiana.
    Dec. 5, 2013.

      Joshua D. Hague, Libby Y. Goodknight, Krieg DeVault LLP, Carmel, IN, Attorneys for Appellant.
    Brian J. Paul, Nathaniel M. Uhl, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Old National Trust Company ("Old National") served as the trustee for both the Perey E. Goodrich Trust and the Hanover College Trust. In 2012, Hanover College petitioned the trial court to terminate both trusts. Following a hearing, the trial court entered judgments terminating both trusts and ordering the transfer of the trusts' assets to Hanover College.

Old National, as Trustee, brought separate appeals from the trial court's orders terminating both trusts. The two appeals were consolidated into one, and Hanover College filed a motion to dismiss the appeal alleging that Old National lacked standing. As this issue is dispositive, we need not and cannot consider the appeal on its merits, and, therefore, we dismiss.

ISSUE

Whether Old National has standing to pursue an appeal of the trial court's judgments terminating the trusts.

FACTS AND PROCEDURAL HISTORY

In 2012, Hanover College filed petitions to terminate both the Hanover College Trust and the Goodrich Trust pursuant to Indiana Code section 30-4-3-24.4. At that time, Old National was the Trustee of both trusts. The trial court held a hearing on both petitions on September 27, 2012. On February 14, 2013, the trial court issued its findings of fact and conclusions of law granting Hanover College's petitions, approving immediate termination of both trusts, and ordering Old National to transfer the trust assets to Hanover College. Old National did not seek a stay of the trial court's judgment but rather transferred the assets of both trusts to Hanover College and subsequently brought appeals, in its capacity as Trustee, in both causes.

This Court granted Hanover College's unopposed motion to consolidate the appeals, and Hanover College subsequently filed a motion to dismiss on the ground that Old National lacked standing to bring the appeal. Old National filed a response, and Hanover College has filed a reply and a motion to accept its reply, which we grant under separate order.

DISCUSSION AND DECISION

Hanover College contends that Old National lacks standing to pursue this appeal. Standing is defined as having a sufficient stake in an otherwise justiciable controversy. Ind. Civil Rights Comm'n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind.1999). The point of the standing requirement is to insure that the party before the court has a substantive right to enforce the claim that is being made in the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind.1995). The standing requirement is a limit on the court's jurisdiction that restrains the judiciary to resolving real controversies in which there is a demonstrable injury to the complainant. Id. at 488. Accordingly, in order to have standing, the complaining party must show adequate injury or the immediate danger of sustaining some injury. Id.

In the present case, the trial court terminated the trusts in its judgment of February 14, 2013. In granting Hanover College's petitions to terminate the trusts, the trial court stated that it approved termination of the trusts "effective immediately," and ordered the parties to do all things necessary to effectuate the termination of the trusts, including transfer of the trusts' assets from Old National to Hanover College. Appellant's App. pp. 17, 24. The parties agree that the trusts terminated and the assets were transferred.

Generally, upon the termination of a trust, the powers and office of the trustee terminate. 90 C.J.S. Trusts § 114 (2010); see also Clifford v. Helvering, 105 F.2d 586, 590 (8th Cir.1939) (stating that when trust ceases, powers and office of trustee terminate), rev'd on other grounds, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940). An exception to this general rule is the continuation of the powers of the trustee for a reasonable time in a restrict, ed manner in order to wind up the trust and distribute trust property. 90 C.J.S. Trusts § 114. However, even in such a case, upon: completion of the winding up of the trust, the trustee's remaining limited powers terminate.

We find Union Savings & Trust Co. v. Eddingfield, 78 Ind.App. 286, 134 N.E. 497 (1922), instructive. In that case, a trust company was appointed administrator of an estate. Later, the trial court issued an order revoking the trust company's letters of administration. The trust company appealed in its representative capacity, and this Court stated that the order of revocation was self-executing and took effect immediately. The order completely stripped the trust company of its representative capacity and authority such that its prior connection with the estate was completely severed and that "(thereafter it had no more standing as an administrator than a dead man." Id. at 498.

More recently, a panel of this Court discussed standing in Simon v. Simon, 957 N.E.2d 980 (Ind.Ct.App.2011). There, after having been removed as personal rep—l resentative and trustee of her late husband's estate and trust, Bren Simon brought an appeal of an order of the trial court in her representative capacities. This Court noted that the trial court's removal order had not been stayed and held that Bren lacked standing to maintain the appeal because when she was removed as personal representative and trustee, she lost her authority to pursue the appeal in a representative capacity.

Similarly here, the trial court's termination orders took effect immediately and Old National did not request a stay of those orders. Once the trusts terminated, Old National's representative capacity was terminated and, along with it, any power or ability to act on behalf of the trusts. Therefore, Old National cannot maintain this appeal in its representative capacity.

Just short of outright concession of this point, Old National responds that it is not bringing this appeal in its representative capacity. Rather, it states that it is appealing in its individual capacity. See Appellant's Response to Motion to Dismiss, pp. 6-7. In support of this argument, Old National claims that it is an aggrieved party pursuant to Indiana Code section 30-4-6-11(a). Under the Trust Code, "[alny person considering himself aggrieved by any decision of a court having jurisdiction in proceedings under this article may prosecute an appeal to the court having jurisdiction of such an appeal." Ind.Code § 30-4-6-11(a). Old National asserts that it is personally aggrieved by the trial court's orders terminating the trusts because the orders terminated its position as trustee and ended its administration of the trusts' assets. Therefore, it maintains it has standing to pursue this appeal.

We again turn to this Court's decision in Simon. Bren, like Old National, argued that she had standing as an aggrieved party under Indiana Code section 30-4-6-11(a) and the corresponding statute in the Probate Code, Indiana Code section 29-1-1-22. The Court noted, however, that just as Indiana Appellate Rule 17(A) provides that "[a] party of record in the trial court . shall be a party on appeal," the converse is also true: a person who is not a party of record in the trial court cannot become a party for the first time on appeal. Simon, 957 N.E.2d at 989. Accordingly, to prosecute an appeal, the entity considering itself aggrieved must have first been a party before the trial court. Id. at 988-89. Additionally, there are no appellate rules providing for intervention in an appeal. Id. at 989.

The Court then noted that after her removal as personal representative and trustee, Bren did not move to intervene in her individual capacity in the trial court. Further, the Court stated that the fact that Bren was personal representative and trustee at the moment she filed her request for certification of an interlocutory appeal did not mean she retained her standing to maintain the appeal after she lost her fiduciary status. Consequently, the Court concluded that Bren, who brought the appeal in her representative capacity and did not intervene in the trial court in her individual capacity, could not establish standing as an aggrieved party for the first time on appeal. Id.

Here, Old National, in its individual capacity, was not a party in the trial court. Further, after the trial court ordered the trusts terminated, Old National did not move to intervene in its individual capacity. Merely because Old National is aggrieved by losing the business and corresponding revenue 'that is involved in holding the position of trustee and administering trust assets does not automatically confer standing. As the Court found with Bren in the Simon case, the fact that Old National is aggrieved is insufficient in itself to confer standing where Old National no longer occupies its representative capacity and did not intervene in its individual capacity. Standing is a jurisdictional prerequisite, and one with standing can lose it. Id.

In summary, we hold that Old National lacks standing to pursue this appeal. Old National did not obtain a stay of the trial court's order terminating the trusts. Therefore, the trusts, as well as Old National's position as trustee, terminated. As Old National is no longer the trustee of the trusts, it can no longer litigate in its representative capacity on behalf of the trusts.

In addition, Old National did not intervene in its individual capacity in the trial court. Thus, Old National was not a party in the trial court, and, consequently, it cannot be an aggrieved party on appeal.

CONCLUSION

For the reasons stated, we are without jurisdiction to consider this appeal on the merits, and we dismiss.

Dismissed.

BAKER, J., and NAJAM, J., concur.


author: RUSH, J.,

text:
    In the Matter of the PATERNITY AND MATERNITY OF INFANT T.
    No. 67A05-1301-JP-36.
    Supreme Court of Indiana.
    Nov. 1, 2013.
   PUBLISHED ORDER DENYING PETITION TO TRANSFER

This matter is before the Indiana Supreme Court on a petition to transfer jurisdiction filed by Appellant pursuant to Appellate Rule 57, following the Court of Appeals opinion issued on July 11, 2013. See In re Paternity & Maternity of Infant T., 991 N.E.2d 596, 601 (Ind.Ct.App.2013). The Court has reviewed the decision of the Court of Appeals. Any record on appeal that was submitted has been made available to the Court, along with all briefs that may have been filed in the Court of Appeals and all the materials filed in connection with the request to transfer jurisdietion. Each participating member of the Court has voted on the petition. Each member of the Court has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each has voted on the petition.

Being duly advised, the Court now DENIES Appellant's petition to transfer jurisdiction. This appeal is at an end.

The Clerk is directed to send a copy of this order to all counsel of record. The Clerk is also directed to post this order to the court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur, except RUSH, J., who dissents with separate opinion.

RUSH, J.,

dissenting from the denial of transfer.

I respectfully dissent from the denial of transfer. The relief the petitioner seeks would result in the court enforcing what amounts to a surrogacy agreement. Here the parties agreed that a surrogate will earry to term an anonymously-donated egg fertilized in vitro and will effectively "[wlaive parental rights [and] duties to [the] child" upon birth Ind.Code § 31-20-1-1(6) (2008). The General Assembly has stated that such agreements are void and unenforceable. Id.; I.C. § 31-20-1-2 (2008). Though current parentage legislation does not contemplate assisted reproductive technologies, it is clear about not recognizing surrogacy agreements-and the Court of Appeals need not have made the issue more complicated than that.

Facts and Procedural History |

In this case, a surrogate mother agreed to carry to term an embryo conceived from the sperm of the biological father and the egg of an unknown donor. Before the birth, however, the biological father, along with the surrogate and her husband, petitioned to establish the biological father's paternity and "disestablish" the surrogate's maternity. The trial court denied both requests, ruling that a father could not establish his paternity pre-birth and that it had no‘authority to disestablish maternity.

On interlocutory appeal, the Court of Appeals reversed the trial court on the paternity issue, but agreed that a birth mother could not directly "disestablish" maternity. In re Paternity & Maternity of Infant T., 991 N.E.2d 596, 601 (Ind.Ct.App.2013). In doing so, the Court of Appeals considered the "paternity statutes as a template," and found that "[i]t would not be in the best interests of the child, and would be contrary to public policy, to allow the birth mother to have the child declared a child without a mother." Id. at 600.

Analysis

The Court of Appeals reached the correct result, but made the question unnecessarily complicated. There would be much to commend the Court of Appeals' thoughtful analysis if there were no controlling law on this matter. But the General Assembly has clearly directed that no Indiana court may enforce a surrogacy agreement "that requires a surrogate to ... [wlaive parental rights or duties to a child," or "[tlerminate care, custody, or control of a child." IC. § 31-20-1-1(6)-(7). This is what the petitioner seeks to do here. Such agreements are "void" as a matter of public policy. I.C. § 31-20-1-2. And with the paternity statutes providing no explicit assistance in this matter, the General Assembly's clear disapproval of surrogacy agreements should foreclose any equitable experimentation in the courts and, thus, leave the birth mother as the legal mother unless and until another parent adopts the child.

Complex innovations like assisted reproduction are best addressed by legislatures-which can enact comprehensive, cohesive regulations, unlike courts' piecemeal decisions made through particular cases. Indeed, many jurisdictions now regulate alternative means of reproduction, eg., 750 Ill. Comp. Stat, Ann. 47 (West 2009); Tex. Fam.Code Ann. §§ 160.754-.757 (West 2008), and we have recognized the wisdom of such "formalities and protections" that safeguard not only the prospective parents but also the children that are created. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 601 (Ind.1994); cf. In re Adoption of Infants H., 904 N.E.2d 203, 207-08 (Ind.2009) (holding the prospective adoptive father of surrogate children did not comply with the Interstate Compact on the Placement of Children). But this particular case makes it unnecessary to wade into those broader questions.

Conclusion

I would therefore grant transfer and decide this case on the narrow basis of Indiana Code section 31-20-1-1, and leave it to the General Assembly to consider broader legislation to guide and protect future children and families through the still-uncharted waters of assisted reproductive technologies.


text:
    In the Matter of Timothy D. FREEMAN, Respondent.
    Nos. 49S00-1103-DI-168, 49S00-1105-DI-287, 49S00-1106-DI-345.
    Supreme Court of Indiana.
    Dec. 12, 2013.
   PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT, IMPOSING FINE, ORDERING DISGORGEMENT OF FEES, AND DIRECTING IMPRISONMENT

Underlying suspension. Since November 2010, Respondent has been the subject of five show cause proceedings for noncooperation with the Commission. In Cause No. 49S00-1103-DI-168, he was suspended for noncooperation on July 19, 2011, and his noneooperation suspension was converted to indefinite suspension on March 8, 2012. The noneooperation cases that were still pending were dismissed as moot. In brief, Respondent has been suspended from the practice of law in this state continually since July 19, 2011.

Prior contempt proceeding. The Commission filed a "Verified Motion for Rule to Show Cause" in January 2012, alleging the Respondent continued to practice law after he was suspended. His actions included sending correspondence to opposing counsel, serving discovery requests, appearing in court, filing documents in pending cases, filing an appearance and a complaint in a new case, and accepting a retainer of $500 from an existing client for new work.

On April 3, 2012, the Court entered an "Order Finding Contempt," finding "compelling evidence that Respondent continued to practice law unabated in multiple cases in heedless disregard of this Court's suspension orders." For these "egregious violations," the Court ordered Respondent to pay a fine of $2,500, disgorge the $500 retainer he received while suspended, and be imprisoned for 30 days unless he paid the fine and disgorged the retainer within ten days from the date of service of the order. The Court warned Respondent that it would take his contempt into consideration in any future disciplinary actions.

On April 18, 2012, Respondent filed a verified "Report of Compliance," and on May 15, 2012, the Court entered an order directing that the record show that Respondent had complied with the Court's Order Finding Contempt, thus avoiding imprisonment.

The Commission's second charge of contempt. The Commission filed a "Verified Motion for Rule to Show Cause" on September 18, 2013, alleging that Respondent engaged in acts in violation of his suspension even after his April 18, 2012, Report of Compliance by giving legal advice to clients E.P. and J.P. in an ongoing eminent domain case. In support, the Commission attached emails, dating from April 26, 2012, in which Respondent advised the clients regarding a tax issue in the eminent domain case. Finally, in an email dated July 20, 2012, E.P. told Respondent:

Based on information I received today I am demanding all the money I have deposited with you; Approximately $4,000.
You did not show for the June 6, 2012 hearing and fight for my position. The state made a judgment for the lower amount resulting in over $12,000 in reduction. You have not answered my recent e-mail and have left yourself open for a complaint from me to the bar and possibly thru the courts. Also, it was brought to my attention that you still have your license suspended. You were giving me legal advice and had no license.

(Irregularities in original.) Respondent responded with a brief email on July 25, 2012, saying that he would retrieve the clients' file materials and ship them to the clients. ‘

The Court entered an Order to Show Cause on September 28, 2013, directing Respondent to show cause why he should not be held in contempt for disobedience to the Court's order suspending him from practice. Respondent filed a "Verified Response" on October 10, 2013, admitting that he communicated via email with the clients as represented by the Commission. He states:

I did not intend to mislead them or cause them harm. I simply did not want to let them down. In retrospect, my actions were unprofessional and improper. I am truly sorry and offer my sincere, humble apologies to the [clients] and to this Honorable Court.

Imposition of punishment for contempt. This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id.

It is difficult to imagine contempt more culpable than that displayed by Respondent. The Court's Order Finding Contempt already found him guilty of egregious violations of his suspension. Respondent avoided imprisonment only by promptly paying a substantial fine and disgorging an improper fee. Within days, he was violating his suspension order again. His acknowledgment that his actions were unprofessional and improper "in retrospect" shows a profound lack of insight into his duties as an attorney and of respect for this Court's authority. The Court therefore imposes the following sanctions for Respondent's contempt of this Court:

1. The Court ORDERS that Respondent be fined the sum of $3,000. Respondent shall remit this amount within ninety (90) days of service of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.

2. Because of Respondent's dishonest and unethical dealings with clients E.P. and J.P., the Court further ORDERS that Respondent disgorge all legal fees he received from E.P. and J.P. in connection with the eminent domain case, as well as any deposits of funds not properly used on their behalf, within ninety (90) days of service of this order, and that Respondent file and serve a verified accounting and report that these amounts have been refunded to the clients within five (5) days of making the refund.

3. For his continued egregious violation of his suspension, the Court further ORDERS that Respondent be sentenced to a term of imprisonment for a period of ten (10) days, beginning January 2, 2014, without the benefit of good time. The Sheriff of the Supreme Court of Indiana is directed to take Respondent into eustody and turn him over to the Indiana Department of Correction on that date. In carrying out this order, the Sheriff of the Supreme Court of- Indiana may seek the assistance of the Indiana State Police and any other law enforcement officer, and any such law enforcement officer shall provide the requested assistance.

4. Finally, if Respondent does not comply with the payment, accounting, and reporting deadlines set forth in paragraphs 1 and 2 above, this Court shall order that Respondent be sentenced to an additional term of imprisonment for a period of thirty (30) days.

The Clerk of this Court is directed to serve a certified copy of this Order upon Respondent or his counsel by deliifering a certified copy personally, or by sending a certified copy of it by registered or certified mail, return receipt requested. The Clerk is directed to forward a copy of this Order to the Indiana Supreme Court Disciplinary Commission. The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of Stephen P. WOLFE, Respondent.
    No. 27S00-1106-DI-324.
    Supreme Court of Indiana.
    Dec. 12, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

The Indiana Supreme Court Disciplinary Commission filed a "Notice of Guilty Finding and Request for Suspension" against Respondent on June 2, 2011. The Court entered an order of interim suspension effective July 20, 2011, which is still in effect. The Commission filed a "Verified Complaint for Disciplinary Action" against Respondent on April 9, 2018. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 28(17), which requires an ac-knowledgement that the material facts alleged are true and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately, The Clerk of this Court is directed to record Respondent's resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent's resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). The egregious misconduct charged in the verified complaint may have resulted in permanent disbarment had Respondent not chosen voluntary resignation from the bar. If Respondent seeks reinstatement, the misconduct admitted in Respondent's affidavit of resignation, as well as any other allegations of misconduct, will be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and may be granted only if Respondent could meet the most stringent burden of proving by clear and convincing evidence all the requirements of Admission and Discipline Rule 23(4)(b), including without limitation that he can safely be recommended to the legal profession, the courts and the public as a person fit to represent them and otherwise act in matters of trust and confidence; and that he is genuinely remorseful for his misconduct. Acceptance of Respondent's resignation from the bar serves only to remove him from the practice of law and does not relieve him from any liability he might have for his misconduct under civil or eriminal law.

'The costs of this proceeding are assessed against Respondent. With the acceptance of this resignation, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur, except RUSH, J., who would reject the resignation and seek disbarment.


text:
    In the Matter of Octavia E. SNULLIGAN, Respondent.
    No. 49S00-1107-DI-462.
    Supreme Court of Indiana.
    Dec. 12, 2013.
   PUBLISHED ORDER GRANTING PETITION FOR IMMEDIATE REINSTATEMENT

On May 18, 2018, the Court entered an order suspending Respondent for 30 days without automatic reinstatement, effective on the date of the order, for violations relating to a fee collected from a family ("Family") in connection with a criminal case. The order continued: "Notwithstanding the above, however, at the conclusion of the 30-day minimum period of suspension, Respondent may petition this Court for immediate reinstatement to the practice of law in this state on the filing of proof that she has refunded to the Family the $5,000 in unearned fees she received, provided there are no other suspensions then in effect." The order also stated: "The costs of this proceeding are assessed against Respondent." On September 6, 2013, the Court entered an order specifying the amount of costs assessed.

On November 7, 2018, Respondent filed a "Verified Petition for Immediate Reinstatement," asserting that she had paid all amounts owing in this disciplinary action, including the $5,000 payment to the Family (as well as the costs ordered in the two show cause cases, Cause Nos. 49800-1210-DI-601 and 49800-1801-D1I-55). The Commission has confirmed all such payments have been made and has no objection to restoring Respondent's license to practice.

The Court therefore GRANTS the petition for reinstatement and REINSTATES Respondent as a member of the Indiana bar as of the date of this order.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of Jon A. CRISS, Respondent.
    No. 71S00-1209-DI-521.
    Supreme Court of Indiana.
    Dec. 12, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Daniel J. Molter, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: The Commission filed a "Verified Complaint for Disciplinary Action" against Respondent on April 23, 2018. Respondent was served and did not respond. Accordingly, the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c). Neither party filed a petition for review of the hearing officer's report. When neither party challenges the findings of the hearing officer, "we accept and adopt those findings but reserve final judgment as to misconduct and sanction" Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000).

Count 1. In June 2011, Respondent entered his appearance for a criminal defendant. After Respondent failed to appear at three scheduled hearings, the trial court issued an order to show cause why he had failed to appear. Respondent failed to appear at the show cause hearing. After a grievance was served on him, the Commission received a hand-written response in which Respondent stated that admitted he violated the Rules of Professional Conduct, that he had no excuse for his misconduct, that he was addicted to drugs, especially methamphetamine, and that he was incarcerated at the time for the erimes described in Count 2.

Count 2. On August 28, 2012, Respondent was convicted on a guilty plea to the following offenses under Indiana law: possession of methamphetamine, a class D felony; maintaining a common nuisance, a class D felony; and three class A misdemeanors. He received two-year sentences for each felony, with one year suspended and one year of probation, and one-year sentences for each misdemeanor, all to run concurrently.

Based on Respondent's felony convie-tions, the Commission filed a "Notice of Guilty Finding and Request for Suspension" on September 18, 2012, and the Court entered an order of interim suspension on January 10, 2013, which is still in effect. (Respondent is also under a continuing legal education noncompliance suspension, which took effect on June 1, 2012.)

Aggrovating and mitigating facts. The hearing officer found the following facts in aggravation: (1) Respondent engaged in a pattern of misconduct, including completely abandoning a client; (2) Respondent has substantial experience in the practice of law; (8) Respondent engaged in illegal conduct; (4) Respondent engaged in bad faith obstruction of this disciplinary proceeding by failing to comply with rules and orders of this Court; and (5) aside from his initial response to the grievance of Count 1, Respondent has failed to engage in the disciplinary process throughout this proceeding.

The hearing officer found the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent accepted responsibility for his misconduct in his response to the Count 1 grievance; and (8) the facts do not support a finding that Respondent's misconduct was due to a dishonest or selfish motive.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.16(c): Failure to comply with applicable law requiring notice to or permission from tribunal when terminating a representation.
3.2: Failure to expedite litigation consistent with the interests of a client.
3.4(c): Disobeying a court order.
84(b): Committing a eriminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.
Engaging in conduct prejudicial to the administration of justice. 8.4A(d):

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state without automatic reinstatement effective as of the date of this order. Respondent shall fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). Respondent may petition for reinstatement to the practice of law in this state five years after the date of this order or the date he successfully completes his incarceration and criminal probation, whichever is later, provided that no other suspension is in effect and Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 28(4)(b). Reinstatement would be granted only with the condition that Respondent be subject to 18 months of probation with monitoring by the Indiana Judges and Lawyers Assistance Program.

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices coneur, except DICKSON, C.J., and DAVID, J., who dissent regarding the discipline imposed, believing that Respondent should be disbarred.


author: RUCKER, Justice.

text:
    Scott SPEERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 55S01-1312-CR-841.
    Supreme Court of Indiana.
    Dec. 19, 2013.

      William Van Der Pol, Jr., McCalla, AL, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Eric Parker Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

In this case we examine whether a laboratory technician involved in the chain of custody of DNA evidence must testify at trial in order to satisfy the demands of a defendant's Sixth Amendment right of confrontation. We conclude the Constitution does not so require.

Facts and Procedural History

During the evening hours of October 25, 2010 a gun store in downtown Martinsville was burglarized. The store's alarm was activated and the Martinsville police promptly responded to the seene. They found the front door of the store had been forced open, a large glass display case had been broken, and eight guns were missing. The store's surveillance video did not capture the face of the perpetrator. Police found small spots of what appeared to be blood on two pieces of broken glass from the display case. Officer Jim Bradley, the evidence technician, processed the scene. In doing so Officer Bradley placed each piece of glass into separate boxes, sealed the boxes with red evidence tape, and affixed his initials. He then took this evidence to the Indiana State Police Laboratory for testing. Although the record does not reveal the details, at some point Scott Speers was identified as a suspect as a result of a CODIS database search. Thereafter, pursuant to a search warrant, police obtained a cheek swab from Speers and this sample was. also submitted to the Indiana State Police Laboratory. A forensic analyst examined the evidence and concluded that Speers' DNA matched the DNA from the pieces of glass.

On February 22, 2011, the State charged Speers with burglary as a class C felony and theft as a class D felony. After a jury trial that began on July 17, 2012, Speers was convicted as charged. Thereafter the trial court sentenced Speers to eight years for burglary and three years for theft, and ordered the sentences to run concurrently for a total executed term of eight years.

Speers appealed raising the following restated claims: (1) the trial court erred in denying his Indiana Criminal Rule 4(C) motion for discharge, (2) the trial court erred in denying his motion for mistrial, and (3) the trial court erred by admitting DNA evidence in violation of his Sixth Amendment right of confrontation. The Court of Appeals rejected all three claims and affirmed the judgment of the trial court. See Speers v. State, 988 N.E.2d 1238 (Ind.Ct.App.2013). Speers seeks transfer which we now grant to address his Sixth Amendment argument. In all other respects we summarily affirm the opinion of Court of Appeals See Ind. Appellate Rule 58(A). And although we also affirm the judgment of the trial court, we do so on grounds slightly different from those of our colleagues. Additional relevant facts are set forth below.

Standard of Review

Generally, "[al trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its rulings only where it is shown that the court abused that discretion." Turner v. State, 953 N.E.2d 1039, 1045 (Ind.2011). But where, as here, a constitutional violation is alleged, the proper standard of appellate review is de novo. See Jones v. State, 982 N.E.2d 417, 421-22 (Ind.Ct.App.2013), trans. denied (citing United States v. Aguilo-Urbay, 480 Fed.Appx. 564, 566 (11th Cir.2012)) ("We review evidentiary rulings for an abuse of discretion.... However, we review de novo the question of whether hearsay statements are testimonial for purposes of the Confrontation Clause." (internal quotation omitted)); see also United States v. Nettles, 476 F.3d 508, 517 (7th Cir.2007) ("We review de novo a district court ruling that affects a defendant's Sixth Amendment rights." (citation omitted)).

Discussion

The Confrontation Clause of the Sixth Amendment provides in relevant part "[in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. "[TJhis bedrock procedural guarantee applies to both federal and state prosecutions." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause applies to an out-of-court statement if it is testimonial in nature, the declarant is not unavailable, and the defendant has had no opportunity to cross-examine the declarant. See id. at 59, 124 S.Ct. 1854.

Characterizing as a "crucial step" the transferring of blood from a piece of glass to a swab for testing, Speers contends his right of confrontation was violated because the technician who performed this function "never testified nor was subject to cross examination." Br. of Appellant at 8. The facts are these. As indicated earlier a Martinsville police evidence technician observed what appeared to be small drops of blood on two pieces of broken glass present at the crime scene. The officer placed each piece of glass into a separate box, sealed the boxes with red evidence tape, and affized his initials, He later took this evidence to the Indiana State Police Laboratory for testing. A laboratory technician-Nichole Stickle-transferred the purported blood drops from the glass and swabbed them onto a white cloth for testing. Stickle did not testify at trial; however, she "[did}n't do any testing." Tr. at 194. Instead Lori James-a forensic DNA analyst for the Indiana State Police Laboratory-conducted the analysis of the swabs taken from the piece of glass. Among other things she testified: "As a DNA analyst I receive items of evidence that contain potential sources of DNA. And I examine those items of evidence to develop a unique profile from them, so that I may be able to either include or exelude a person as being a possible contributor to that sample." Tr. at 170. Over Speers objection the State introduced three exhibits into evidence, all of which James prepared after conducting her analysis: Exhibit 7-STR Summary Sheet identifying two "swab[s] of glass"; Exhibit 9-Certificate of Analysis noting the "DNA profile obtained from the swabs of the glass ... is consistent with an unknown male ...."; and Exhibit 10-Cer-tificate of Analysis noting the "DNA profiles obtained from the swabs of glass ... match the DNA profile of Seott Speers...." Vol. of Exhibits (State's Ex. 7, 9, 10). After comparing a known sample of Speers DNA (obtained through a cheek swab pursuant to a search warrant) to the swabs taken from the glass found at the crime scene, James concluded: "In the absence of an identical twin, Scott Speers is the source of the DNA to a reasonable degree of scientific certainty .... and the statistic for this particular sample is 1 in 3.4 quintillion." Tr. at 214.

Speers insists his right of confrontation was violated because the State failed to present Stickle for cross examination. And he grounds his argument in two of the four separate opinions written by justices of the United States Supreme Court in Williams v. Illinois, — U.S. —, 182 S.Ct. 2221, 183 L.Ed.2d 89 (2012). Williams involved a comparison of two DNA profiles, one of semen recovered from a rape victim and one residing in the state's forensic database. A male DNA profile was developed by Cellmark, an accredited outside laboratory, from swabs taken from the victim's rape kit. Williams, 182 S.Ct. at 22830. The database profile was developed by a state police laboratory analyst from a sample taken from the defendant pursuant to his arrest in 2000 on unrelated charges. At trial, the State presented the analyst who performed the testing of the defendant's sample. She testified as to the process she used to develop the DNA profile, and she stated that she had entered the profile into the state's forensic database. Id. at 2229. The State then presented an expert witness who testified as to the chain of eusto-dy of the vaginal swab sample. Specifically, this witness confirmed that records of the state police lab reflected that the lab had sent the vaginal swabs to Cellmark and that Cellmark had returned them along with a deduced male DNA profile. Id. at 2230. The witness then testified that she found a match between the Cell-mark DNA profile derived from the vaginal swabs and the defendant's DNA profile. Id. But Cellmark's report on the vaginal swab profile was not admitted into evidence, no Cellmark analyst testified at trial, and the state's expert did not testify that she had conducted or observed the testing on the vaginal swabs. Id. Five justices on the Williams Court determined that the state's expert's testimony was not an adequate substitute for testimony from the Cellmark analyst who performed the testing on the vaginal swabs. See Williams, 182 S.Ct. at 2268 (Kagan, J., dissenting).

Unlike Williams, here both DNA profiles were analyzed by a single analyst-state police lab analyst Lori James. James completed and signed the Certificate of Analysis matching the DNA obtained from the glass swabs to the DNA obtained from Scott Speers. And James testified at trial as to her process in testing and analyzing all these samples, and as to her conclusion in making the match. Tr. at 203-06, 212-14. James testified that she did not actually prepare the glass swabs but that another technician had transferred the blood from the pieces of glass to the swabs that James eventually tested. We agree with the Court of Appeals that Williams-in which the testimony of the analyst who performed the DNA testing on the crime scene sample was entirely absent-provides little guidance in evaluating the facts before us. See Speers, 988 N.E.2d at 1244 (finding Williams "in-apposite").

However, in rejecting Speers' Confrontation Clause argument the Court of Appeals relied on this Court's opinion in Pen-dergrass v. State, 918 N.E.2d 703 (Ind. 2009). Although we do not agree with Speers' assertion that Williams abrogated Pendergrass, we do conclude the continued validity of Pendergrass has been undermined by subsequent authority from the United States Supreme Court. But as we explore below the subsequent authority confirms that Speers' right of confrontation was not violated.

In Pendergrass a majority of this Court determined that the defendant's cross examination of a laboratory supervisor, who had performed a "technical review" of the DNA tests at issue, satisfied the Confrontation Clause even though she had not performed the actual DNA testing or analysis and the analyst who performed the test did not testify at trial. Pendergrass, 913 N.E.2d at 704, 708. The Court held that the State's decision to call the laboratory supervisor "with direct involvement" in the technical process "sufficed for Sixth Amendment purposes." Id. at 708.

Shortly after our Pendergrass decision, the United States Supreme Court decided Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). That case involved a driving while intoxicated conviction which was based in part on a forensic laboratory report certifying the defendant's blood alcohol concentration. Similar to the facts in Pendergrass, the analyst who performed the testing and signed the certification did not testify at trial Instead, the state called another analyst who, like the supervisor in Pender-grass, was familiar with the laboratory testing procedures, but had neither participated in nor observed the test on the defendant's blood sample. In deciding the case the Court declared:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a seientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Id. at 2710 (emphasis added). Thus Buill-coming makes clear that it does not "suffice{[ ] for Sixth Amendment purposes" that the State may merely call as a witness a laboratory supervisor "with direct involvement" in the technical process. Pender-grass, 918 N.E.2d at 708. Instead "surrogate testimony of that order does not meet the constitutional requirement. The ac-eused's right is to be confronted with the analyst who made the certification." Bull-coming, 181 S.Ct. at 2710. -

Hence 'although Pendergrass provides the State no refuge, Speers nonetheless cannot prevail on his Sixth Amendment claim. In this case the sole analyst who conducted the DNA testing and prepared the laboratory reports that were introduced as exhibits did in fact testify at trial. This is precisely the procedure dictated by Bullcoming. By contrast, the witness about whom Speers complains was merely the technician who removed the sample for later testing and analysis-just one person involved in the chain of custody of the evidence. The question is whether the State was required to present this witness as well in order to honor Speers' constitutional right of confrontation. This point seems to have been put to rest in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In that case the defendant was convicted for drug offenses based partly on certificates of analysis stating the substance found in seized bags was cocaine of a certain weight, admitted without any live testimony either by the analyst who signed the affidavits or by anyone else. The State's position was that the affidavits stood on their own, and thus no witnesses were called. See Melendes-Diaz, 557 U.S. at 308-09, 129 S.Ct. 2527. After concluding that the certificates were "quite plainly affidavits," the Supreme Court held that the affidavits clearly constituted testimonial evidence because they "are functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination," " thus the analysts swearing their accuracy were "witnesses" for Sixth Amendment purposes. Id. at 810-11, 129 S.Ct. 2527 (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). And "[albsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to 'be confronted with' the analysts at trial." Id. at 311, 129 S.Ct. 2527 (quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1854) (emphasis omitted). Responding to the dissent's concerns about the consequences of its holding, the Melendez-Diaz majority declared:

Contrary to the dissent's suggestion ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that "(ilt is the obligation of the prosecution to establish the chain of custody" ... this does not mean that everyone who laid hands on the evidence must be called.

Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. 2527 (quoting id. at 385, 129 S.Ct. 2527). See also Bullcoming, 131 S.Ct. at 2712 n. 2 ("It is up to the prosecution ... to decide what steps in the chain of custody are so crucial as to require evidence ...") (quoting Melendes-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. 2527).

N.E.2d 683, 639 (Ind.1991). Essentially, there is no Confrontation Clause violation where the State introduces evidence and links in the chain of 'custody of that evidence are missing. Indeed, "the State need not establish a per-feet chain of custody, and any gaps go to the weight of the evidence and not its admissibility." Kennedy v. State, 578 In this case Speers pointed out during cross-examination of James that she was "not the person who took the purported blood off the glass," "that witness is not going to be testifying here today," and "if that person serewed it up, no matter what you did after the fact, all you would get would be an erroneous result." See Tr. at 220, 21. The significance of any gap created by the absence of Stickle's testimony was a matter for the jury to weigh. The trial court did not err by admitting the DNA evidence over Speers' Confrontation Clause objection.

Conclusion

We affirm the judgment of the trial court.

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

      . An acronym for Combined DNA Index System "CODIS" is "a computer software program that operates national databases of DNA profiles from convicted offenders and unsolved crime scene evidence." Anderson v. State, 961 N.E.2d 19, 24 (Ind.Ct.App.2012).

      . In a splintered set of opinions, five justices on the Williams Court ultimately determined that the testifying expert's reliance on Cell-mark's report to make a DNA match to the defendant did not constitute testimonial evidence and thus was not subject to the guarantees of the Confrontation Clause. But only a plurality agreed as to the rationale.


text:
    In the Matter of F. Scott STUARD, Respondent.
    No. 12S00-1309-DI-605.
    Supreme Court of Indiana.
    Dec. 20, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On September 27, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance, No. 13-1469, filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On November 5, 2013, the Commission filed a "Request for Ruling and to Tax Costs" asserting that Respondent still has not cooperated.

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(F)(8), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(F)(5), that Respondent reimburse the Disciplinary Commission $524.44 for the costs of prosecuting this proceeding. If not paid by the due date of the next annual registration fee (October 1), Respondent will be subject to suspension for nonpayment of costs. See Admis. Disc. R. 23(10)(F)(5) and 2(b).

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of F. Scott STUARD, Respondent.
    No. 12S00-1310-DI-685.
    Supreme Court of Indiana.
    Dec. 20, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OFP LAW IN INDIANA FOR NONCOOPERATION

On October 22, 2018, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance, No. 14-0017, filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On November 8, 2013, the Commission filed a "Request for Ruling and to Tax Costs" asserting that Respondent still has not cooperated.

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(£)(8), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 28(10)(f)(5), that Respondent reimburse the Disciplinary Commission $518.33 for the costs of prosecuting this proceeding. If not paid by the due date of the next annual registration fee (October 1), Respondent will be subject to suspension for nonpayment of costs. See Admis. Disc. R. 23(10)(£)(5) and 2(b).

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.


author: MAY, Judge.

text:
    Courtney GLENN, Appellant, Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1302-CR-79.
    Court of Appeals of Indiana.
    Oct. 31, 2013.

      Ruth Johnson, Marion County Public Defender Agency, Eric Sommers, Certified Legal Intern, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Courtney Glenn appeals her convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. She presents the following issues for our review:

1. Whether there was sufficient evidence to sustain CHenn's convictions; and
2. Whether Glenn's convictions subjected her to double jeopardy.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 25, 2012, Glenn entered a K-Mart and placed three shirts in her purse. As Glenn left the store, a loss prevention officer detained her until police arrived. Responding Officer Gary Smith found Glenn uncooperative and argumentative. While being escorted from the store, Glenn refused to walk, aggressively attempted to pull free, and repeatedly shouted profanities at Officer Smith. On more than one occasion, Officer Smith used a leg sweep to regain control of Glenn. Outside the store, CHlenn continued to argue loudly with Officer Smith and tried to move around. Officer Smith told Glenn multiple times to remain seated. While seated, Glenn freed one hand from the handcuffs, stood up, and swung the handcuffed hand at Officer Smith, causing the handcuff to swing within a few inches of the officer.

The State charged Glenn with one count of Class D felony theft, one count of Class A misdemeanor resisting law enforcement, and two counts of Class B misdemeanor disorderly conduct. The State dismissed the theft charge and tried Glenn to the bench on the remaining charges. The court convicted Glenn of resisting law enforcement and one count of disorderly conduct. The trial court sentenced her to 365 days, with 359 days suspended and 8365 days probation.

DISCUSSION AND DECISION

1. Sufficiency of the Evidence

Glenn contends the State did not present sufficient evidence to support her convictions. When we review sufficiency of evidence we do not reweigh evidence or assess witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We consider only the probative evidence and reasonable inferences supporting the verdict. Id. The evidence need not overcome every inference of innocence. Id. at 147. Evidence is sufficient if it permits a reasonably drawn inference that supports the verdict. Id. The conviction will be affirmed "unless no reasonable fact-finder could find the elements of the erime proven beyond a reasonable doubt." Id.

a. Resisting Law Enforcement

Class A misdemeanor resisting law enforcement occurs when a person "knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer ... lawfully engaged in the execution of the officer's duties." Ind.Code § 35-44.1-3-l1(a)(1). One forcibly resists when "strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties." Spangler v. State, 607 N.E.2d 720, 728 (Ind.1993). Glenn contends her feet-dragging and multiple attempts to pull away from Officer Smith were not forcible resistance. We disagree.

In Spangler, a Sheriffs deputy attempted to serve Spangler, at his place of employment, with a protective order issued against Spangler. Spangler refused to accept the papers, told the deputy not to bother him at work, and walked away. When Spangler continued to refuse to accept the documents or to comply with orders, the deputy arrested him for disorderly conduct. The State charged Spangler with resisting law enforcement, but the Court concluded Spangler did not act forcibly when no "strength, power, or violence" was used and no "movement or threatening gesture" was directed at the police officer. Id. at 724.

Glenn's actions were not analogous to Spangler's actions; rather, Glenn acted more like the defendant in Johnson v. State, 883 N.E.2d 516 (Ind.Ct.App.2005). A police officer twice asked Johnson to move his vehicle because it was blocking traffic. When Johnson refused, the officer activated his lights, stepped out of his eruiser, and approached Johnson's driver side door. Johnson again refused to move his vehicle, and the officer placed him under arrest. While being searched following arrest, Johnson turned and pushed away with his shoulders while cursing and yelling. After being searched, Johnson refused to get into the transport vehicle and he "stiffened up" so the officers had to exert physical force to place him inside. Id. at 517. We concluded Johnson acted "forcibly" and affirmed his conviction of resisting law enforcement. Id. at 518.

Glenn was convicted of resisting law enforcement after she refused to walk and, on more than one occasion, "aggressively" tried to pull away from Officer Smith. (Tr. at 7.) As in Johnson, the resistance was forcible and there was ample evidence to support the conviction.

b. Disorderly Conduct

"A person who recklessly, knowingly, or intentionally ... engages in fighting or in tumultuous conduct" commits disorderly conduct. Ind.Code § 35-45-1-3(a)(1). Conduct is "tumultuous" if it "results in, or is likely to result in, serious bodily injury to a person or substantial damage to property." Ind.Code § 35-45-1-1. Serious bodily injury occurs when an injury "creates a substantial risk of death or ... causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ ..." Ind.Code § 35-31.5-2-292. Glenn asserts none of her actions were likely to result in serious bodily injury. We disagree.

Officer Smith testified Glenn freed one of her hands from the handcuffs, stood up, and then swung her handcuffed hand at him, bringing the handcuff within inches of him. Glenn contends she was merely showing Officer Smith the handcuff malfunction and had no intention of striking him. However, when evidence conflicts, as it does here, "we are bound to view only that evidence which is most favorable to the verdict and all reasonable inferences therefrom." Bunting v. State, 731 N.E.2d 31, 33 (Ind.Ct.App.2000), trans. denied. Viewing the evidence most favorable to the conviction, a reasonable fact-finder could conclude Glenn swung the handcuff at Officer Smith and serious bodily injury could have resulted therefrom. Seq, e.g., Bailey v. State, 907 N.E.2d 1008, 1007 (Ind.2009) (affirming disorderly conduct conviction where a high school student threw down his drink, clenched his fists, and eursed in the face of a school official). Finding otherwise would require us to weigh evidence and assess witness credibility, which we cannot do. See Drame, 867 N.E.2d at 146 {appellate court will not reweigh evidence or judge witness credibility).

2. Double Jeopardy

Article I, Section 14 of the Indiana Constitution provides in relevant part: "No person shall be put in jeopardy twice for the same offense." Glenn asserts she was subjected to double jeopardy when she was convicted of both resisting law enforcement and disorderly conduct. She was not.

Two offenses are the "same offense" in violation of Indiana's Double Jeopardy Clause if, with respect to either the statutory elements of the challenged erimes or the actual evidence used to con-viet, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind.2002). We review de novo whether a defendant's convictions violate this provision. Spears v. State, 735 N.E.2d 1161, 1166 (Ind.2000), reh'g denied.

Glenn contends she was subjected to double jeopardy under the "actual evidence" test. To demonstrate two challenged offenses are the same under that test, a defendant must demonstrate a reasonable possibility the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. Id. We conduct our analysis by examining the evidence presented at trial to determine whether each challenged offense was established by separate and distinct facts. Richardson v. State, N.E.2d 32, 53 (Ind.1999). There is no double jeopardy violation when the evidentiary facts establishing the essential elements of one offense establish only one or even several, but not all, of the elements of a second offense. Spivey, 761 N.E.2d at 833.

To determine what facts were used to convict, we consider the evidence, charging information, final jury instrue-tions, and arguments of counsel. Davis v. State, 770 N.E.2d 819, 324 (Ind.2002), reh'g denied. To show Glenn resisted law enforcement, the State presented evidence Glenn tried several times to aggressively push away from Officer Smith. To show disorderly conduct, the State presented testimony that Glenn, while seated outside the store, broke free from her handcuffs and swung them at Officer Smith.

To support her contention she was subjected to double jeopardy, Glenn notes the trial court did not fully explain which facts it relied on to support each convietion. This lack of clarity, Glenn asserts, implies a reasonable possibility the court based both convictions on identical facts. However, we assume the trial court, at a bench trial, followed the law and applied it correctly. M.T. v. State, 787 N.E.2d 509, 513 (Ind.Ct.App.2008). There was a sufficient separate basis to convict Glenn of both resisting law enforcement and disorderly conduct. See, e.g., Bald v. State, 766 N.E.2d 1170, 1172 (Ind.2002) (holding simultaneous convictions did not violate the state double jeopardy prohibition when each conviction rested on at least one unique evidentiary fact).

CONCLUSION

The State presented sufficient evidence to convict Glenn of resisting law enforcement and disorderly conduct, and Glenn has not demonstrated her convictions rested on identical facts in violation of Indiana's double jeopardy provision. Accordingly, we affirm.

Affirmed.

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

      . Ind.Code § 35-44.1-3-1(a)(1).

      . Ind.Code § 35-45-1-3(a)(1).

      . Ind.Code § 35-43-4-2(a).