author: BARNES, Judge.

text:
    Gwen E. MORGAL-HENRICH, Appellant-Respondent, v. David Brian HENRICH, Appellee-Petitioner.
    No. 46A05-1111-DR-645.
    Court of Appeals of Indiana.
    June 26, 2012.

      David K. Payne, Michigan City, IN, Attorney for Appellant.
   OPINION

BARNES, Judge.

Case Summary

Gwen Morgal-Henrieh (“Wife”) appeals the trial court’s distribution of property in the dissolution of her marriage to David Henrich (“Husband”) and the trial court’s child support order. We affirm in part, reverse in part, and remand.

Issues

Wife raises two issues, which we restate as:

I. whether the trial court properly divided the marital estate; and
II. whether the trial court properly calculated Husband’s weekly gross income for child support purposes.

Facts

Husband and Wife married on March 26, 2000. Wife had adult children from a previous marriage and one minor child, D.H., who was born in May 1998, and Husband also had children from a previous marriage. Husband adopted D.H. in June 2001.

Husband and Wife purchased a residence in February 2000 for $230,000. The parties made a down payment of $105,000. $80,000 of the down payment was from the sale of Wife’s residence, and they obtained the remaining $25,000 from Wife’s father. Wife also had life insurance policies that she owned prior to the marriage.

Husband is a member of an operating engineers union and does seasonal work. His income varied greatly during the marriage depending on the availability of work. Wife has a bachelor’s degree in nutrition and has been employed at various times making $14 to $15 an-hour. Both were unemployed at the time of the final hearing. Moreover, the parties filed for bankruptcy in 2007.

Wife and D.H. left the marital residence on July 31, 2009, and Husband filed a petition for dissolution on August 10, 2009. The final hearing was held in April 2011 and June 2011. The trial court then issued findings of fact and conclusions thereon.

Regarding the division of marital property, the trial court found that the total marital assets were valued at $153,485.57. The trial court awarded Husband: (1) the marital residence, which was valued at $200,000 but was subject to $197,912.70 in mortgages; (2) his truck along with any indebtedness; (3) $56,293.38 of his pension; (4) personal property remaining at the residence; (5) the parties’ guns; (6) $3,300 he received from the sale of a motorcycle; (7) livestock; (8) $2,500 he received from the sale of a tractor; and (9) $56 in antique currency. The trial court awarded Wife: (1) $30,919.90 of Husband’s pension; (2) her vehicle along with any indebtedness; (3) three life insurance policies with a total cash value of $30,681.74; and (4) her Ameriprise investment account. The parties were ordered to pay an American Express judgment equally and pay their own attorney fees.

Regarding child custody and child support, the trial court found that Wife had sole custody of D.H. during the proceedings and that D.H. was emancipated as of the date of the final hearing, June 7, 2011. The trial court imputed a weekly gross income of $290 per week to Wife. The trial court noted that Husband had been unemployed during the majority of the dissolution proceedings and found that his weekly gross income was $390 per week, which was based on his unemployment benefits. The trial court ordered that Husband pay $65 per week in child support from the date of filing to the date of the final hearing for a total of $6,240 in child support. The trial court noted that no child support had been paid during the pendency and that there was an arrearage. Wife now appeals.

Analysis

Initially, we note that Husband did not submit an appellee’s brief in this case. When the appellee has failed to submit an answer brief, we need not undertake the burden of developing an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). We will reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error. Id. Prima facie error in this context is defined as, “at first sight, on first appearance, or on the face of it.” Id. Where an appellant is unable to meet this burden, we will affirm. Id.

It appears that the trial court entered sua sponte findings of fact and conclusions thereon. Sua sponte findings control only as to the issues they cover, and a general judgment will control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997). We will affirm a general judgment entered with findings if it can be sustained on any legal theory supported by the evidence. Id. When a court has made special findings of fact, we review sufficiency of the evidence using a two-step process. Id. First, we must determine whether the evidence supports the trial court’s findings of fact. Id. Second, we must determine whether those findings of fact support the trial court’s conclusions of law. Id.

Findings will only be set aside if they are clearly erroneous. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In order to determine that a finding or conclusion is clearly erroneous, an appellate court’s review of the evidence must leave it with the firm conviction that a mistake has been made. Id.

I. Division of Marital Property

Wife argues that the trial court abused its discretion when it divided the marital estate. “This case turns on whether the trial court’s division of the marital property was just and reasonable.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.2002). “Although this is in some sense an issue of law, it is highly fact sensitive and is subject to an abuse of discretion standard.” Id. We will not weigh evidence, but we will consider the evidence in a light most favorable to the judgment. Id.

In an action for dissolution of marriage, the trial court is required to divide the marital property in a “just and reasonable manner.” Ind.Code § 31-15-7-4(b). Indiana Code Section 31-15-7-5 provides:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.

A party seeking to rebut the presumption of equal division of marital property bears the burden of proof in doing so. Beckley v. Beckley, 822 N.E.2d 158, 163 (Ind.2005); I.C. § 31-15-7-5.

According to Wife, the trial court abused its discretion when it failed to deviate from the presumptive equal division of marital assets. Wife argues that she brought significant assets into the marriage, which should have favored an unequal division in her favor. Wife specifically argues that she contributed a $105,000 down payment on their house and that she brought the life insurance policies into the marriage. Wife also argues that she contributed to the marriage through part-time work and “homemaking duties,” that Husband has a greater earning ability than she does, and that Husband sold marital assets for less than the market value.

The evidence presented at the final hearing demonstrated that Husband and Wife purchased a residence for $230,000 and that the parties made a down payment of $105,000. $80,000 of the down payment was from the sale of Wife’s residence, and the remaining $25,000 was from Wife’s father. Despite the substantial down payment, at the time of the final hearing, the residence was valued at $200,000, but it was subject to almost $198,000 in mortgages. The equity in the marital residence provided by Wife is now minimal due to additional mortgages on the property. Wife also had life insurance policies that she owned prior to the marriage. However, Wife admitted that she continued to make payments on the policies during the marriage.

As for the earning ability of the parties, Husband is a member of an operating engineers union, does seasonal work, and has an income that varies greatly depending on the availability of work. Wife has a bachelor’s degree in nutrition and has been employed at various times making $14 to $15 an hour. Both were unemployed at the time of the final hearing. Moreover, the parties filed for bankruptcy in 2007. As for Husband’s alleged dissipation of assets, Wife argues that he sold assets, specifically a tractor and a motorcycle, for below market value. Husband testified that he needed cash to pay bills and that he found buyers for the items that would pay cash. There is no evidence in the record as to the actual market value of the items.

Our supreme court has held that a “trial court’s disposition is to be considered as a whole, not item by item.” Fobar, 771 N.E.2d at 59.

In crafting a just and reasonable property distribution, a trial court is required to balance a number of different considerations in arriving at an ultimate disposition. The court may allocate some items of property or debt to one spouse because of its disposition of other items. Similarly, the factors identified by the statute as permitting an unequal division in favor of one party or the other may cut in different directions. As a result, if the appellate court views any one of these in isolation and apart from the total mix, it may upset the balance ultimately struck by the trial court.

Id. at 60. In Fobar, our supreme court determined that, “[although several of the couple’s assets were brought to the marriage, there was no requirement that any be set off for one spouse, and no requirement that the overall pot be unequally divided.” Id. Rather, the court concluded that “the trial court was within its discretion in dividing the property 50-50, and was not required to alter its virtually equal division of the marital property to reflect [the wife’s] interest in the inherited ... property.” Id.

Similarly, here, we cannot view Wife’s contribution to the marital assets in isolation. Wife’s premarital assets were used to purchase marital assets, and those marital assets are now subject to substantial mortgages. Further, neither Husband nor Wife has had a substantial consistent income, and we cannot say that Husband’s sale of the tractor and motorcycle required the trial court to deviate from the equal division presumption. Given all of the circumstances here, we cannot conclude that the trial court abused its discretion by applying the equal division presumption. As in Fobar, the trial court was not required to alter its equal division of the marital property to reflect Wife’s premarital assets.

II. Child Support

Next, Wife argues that the trial court erred when it calculated Husband’s weekly gross income for child support purposes. “A trial court’s calculation of child support is presumptively valid.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind.2008). A trial court’s decision regarding child support will be upheld unless the trial court has abused its discretion. Sexton v. Sedlak, 946 N.E.2d 1177, 1188 (Ind.Ct.App.2011), trans. denied. A trial court abuses its discretion when its decision is clearly against the logic and the effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

The circumstances of this case are unusual in that the child support calculation relates only to the child support owed from the date the petition for dissolution was filed to the date of the final hearing, when D.H. was emancipated. Thus, the child support calculation is solely a retroactive calculation, and Husband’s income for that time period is known. Wife argues that the trial court improperly calculated Husband’s weekly gross income in making its child support calculation.

The Indiana Child Support Guidelines define weekly gross income and provide:

For purposes of these Guidelines, “weekly gross income” is defined as actual Weekly Gross Income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon “in-kind” benefits. Weekly Gross Income of each parent includes income from any source, except as excluded below, and includes, but is not limited to ... unemployment insurance benefits ....

Ind. Child Support Guideline 3 (emphasis added).

In 2008, Husband earned $58,160. In 2009, he earned $15,490 plus $16,000 in unemployment benefits. In 2010, he earned $89,608 plus $3,000 in unemployment benefits. At the time of the final hearings in April and June 2011, Husband had been receiving unemployment benefits of $390 per week since November 2010. Husband proposed a weekly gross income of $390 in his child support worksheet, while Wife proposed a weekly gross income of $1,723 (for an annual income of approximately $89,600) in her child support worksheet.

The trial court found Husband “has been unemployed throughout the majority of the pendency of this action. He earned $390 per week in unemployment benefits.” App. p. 99. We acknowledge that Husband had been unemployed since November 2010. However, he earned substantially more income than merely unemployment benefits from August 2009 through June 2011, the time period at issue here. Although Husband’s income fluctuates seasonally, Husband’s actual income during this time period is easily ascertainable. The use of $390 per week as his weekly gross income results in a substantial reduction of Husband’s child support obligation, while the use of $1,723 as his weekly gross income, as advocated by Wife, would result in a substantially inflated child support obligation.

Because Husband’s actual income during the relevant time period is known, we conclude that the trial court abused its discretion by using $390 per week as Husband’s weekly gross income. We reverse and remand for the trial court to recalculate Husband’s child support arrearage. On remand, given Husband’s fluctuating income, we recommend that the trial court use an income averaging calculation to determine Husband’s weekly gross income. See, e.g., Trabucco v. Trabucco, 944 N.E.2d 544, 552-53 (Ind.Ct.App.2011) (“In light of Husband’s self-employment, the significant fluctuations in his income over the past several years, and his failure to adequately document his actual income at the time of the final hearing, the trial court’s decision to use an income averaging approach to calculate Husband’s weekly gross income for child support purposes was not clear error.”), trans. denied.

Conclusion

The trial court properly divided the marital assets, but the trial court abused its discretion when it calculated the child support owed by Husband. We affirm in part, reverse in part, and remand for a recalculation of Husband’s child support.

Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J„ and MAY, J., concur.

      . The trial court found that the parties were married on September 9, 2006, but Husband testified that the parties married on March 26, 2000.

      . Wife argues that they obtained the remaining $25,000 from her father, while Husband testified that he provided the other $20,000. For purposes of this appeal, we will assume that Wife provided the additional funds.

      .In her brief, Wife argues that she had the three policies before her marriage to Husband. However, her testimony at the hearing seems to indicate that one of the policies was purchased during the marriage. See Tr. p. 165.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    Cory A. HEINZMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A02-1012-CR-1327.
    Court of Appeals of Indiana.
    June 27, 2012.
    Rehearing Denied September 11, 2012.

      Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Cory Heinzman (“Heinzman”) was convicted in Hamilton Superior Court of three counts of Class C felony child molesting in one cause and pleaded guilty to one count of Class D felony sexual battery in another cause. The trial court imposed an aggregate sentence of twenty-four years. In this consolidated appeal, Heinzman presents five issues, which we restate as:

I. Whether the trial court erred in denying Heinzman’s motion for discharge;
II. Whether the trial court abused its discretion in admitting testimony which Heinzman claims vouched for the credibility of the victim;
III. Whether the trial court abused its discretion in admitting into evidence a letter written by the victim, which Heinzman claims constituted impermissible hearsay;
IV. Whether Heinzman’s convictions for three counts of Class C felony child molesting constitute double jeopardy; and
V. Whether the trial court erred in sentencing Heinzman to an aggregate term of twenty-four years incarceration.

We affirm.

Facts and Procedural History

In 2002 and 2003, Z.B. lived in Elwood, Indiana with his father and stepmother. Z.B. was born in 1992, and was ten and eleven years old at the time. Z.B. was experiencing emotional problems due in part to his parents’ recent separation and divorce. Heinzman, who was born in born in 1969, was a cousin of Z.B.’s father and worked as a case manager with the Hamilton County Department of Child Services (“DCS”). Z.B.’s stepmother asked Heinz-man to mentor Z.B. and help him adjust to his current situation. Heinzman agreed and took Z.B. on several outings, such as going to the cinema, shopping, going out to eat, and watching movies at Heinzman’s house in Hamilton County. Z.B. also began to spend the night at Heinzman’s home up to four times per month. Z.B. typically slept in the same bed with Heinz-man.

On several occasions when Z.B. and Heinzman were in the bed, Heinzman put his hands inside Z.B.’s pants and fondled the boy’s penis for approximately ten to twenty minutes. Although Z.B. was unsure of the exact number of times this occurred, he later testified that this occurred “more than twice.” Tr. pp. 306-07. During another occasion, Heinzman and Z.B. were watching television on the couch, with Z.B.’s legs sitting across Heinzman’s lap. Although Z.B.’s father was also in the room, Heinzman and Z.B. were under a blanket, and Heinzman again fondled Z.B.’s penis. All of these events occurred before Z.B. moved in with his mother in November 2003.

In October 2005, Z.B. had moved back in with his father. Also at the home was Z.B.’s brother E.B., who is one year younger than Z.B. On October 24, 2005, Z.B. and E.B. got into a fight. After this, Z.B. threatened to kill himself and attempted to do so by wrapping a cord around his neck. Z.B.’s family admitted him to the hospital for counseling. At this time, Z.B. disclosed to his stepmother and a hospital counselor that Heinzman had molested him.

Z.B.’s family informed both the Hamilton County Sheriffs Department and the Department of Child Services of Z.B.’s accusations. After a Sheriffs Deputy took an initial report at Z.B.’s home, Detective Kija Ireland (“Detective Ireland”) of the Hamilton County Sheriffs Department contacted Z.B.’s family to schedule an interview with Z.B. at a child advocacy center in Hamilton County. Rita Johnson (“Johnson”), a “facilitator” at the child advocacy center interviewed Z.B. by herself. Detective Ireland, a deputy prosecutor, and Felicia Boyd-Smith (“Boyd-Smith”), a supervisor for the Marion County DCS, observed Johnson’s interview with Z.B. from another room via a video feed. Boyd-Smith also conducted her own investigation of the report of possible sexual abuse by Heinzman. In addition to observing Z.B.’s interview at the child advocacy center, Boyd-Smith spoke with Z.B.’s parents. She then determined that the report of abuse was “substantiated.” Tr. pp. 238, 241.

On November 1, 2005, the State charged Heinzman with three counts of Class C felony child molesting in cause number 29D02-0511-FC-239 (“Cause FC-239”), with all three counts alleging that Heinz-man had molested Z.B. by fondling. On May 1, 2008, the State charged Heinzman with Class C felony child molesting in cause number 29D02-0805-FC-46 (“Cause FC-46”). This latter charge alleged that, between 2003 and 2004, Heinzman had also fondled Z.B.’s brother E.B. by placing his hands on E.B.’s penis.

After numerous delays, some caused by Heinzman’s motions to continue and others caused by the trial court resetting the trial date as a result of court congestion, Heinz-man, on April 22, 2010, filed a motion for discharge pursuant to Indiana Criminal Rule 4(C). After a hearing was held on the matter, the trial court denied this motion on September 16, 2010.

Heinzman’s jury trial in Cause FC-239 was held on October 4 to October 6, 2010. At the conclusion of the trial, the jury found Heinzman guilty as charged. On October 7, 2010, Heinzman agreed to plead guilty to Class D felony sexual battery in Cause FC-46 in exchange for the State dismissing the charge of Class C felony child molesting. The trial court accepted the plea and scheduled a joint sentencing hearing in both causes for November 12, 2010.

At the sentencing hearing, Heinzman sought to withdraw his plea in Cause FC-46. The trial court denied this request. The trial court then found as aggravating factors in Cause FC-239 that Heinzman’s crimes were statutorily crimes of violence; that Heinzman engaged in a pattern of criminal conduct; and that Heinzman had abused a position of trust. The trial court found as mitigating that, at the time of the commission of the crimes, Heinzman had no prior criminal history. The trial court then sentenced Heinzman to the maximum term of eight years on each count and ordered the sentences to be served consecutively, for an aggregate sentence of twenty-four years. In Cause FC-46, the trial court sentenced Heinzman to a concurrent term of three years. Although the plea agreement called for this sentence to be suspended, the trial court’s oral sentencing statement indicated that this sentence was to be executed. Heinzman now appeals.

I. Motion for Discharge

Heinzman first claims that the trial court erred in denying his motion for discharge. Heinzman claims that he was entitled to discharge under Indiana Criminal Rule 4(C) in addition to the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. We address each argument in turn.

A. Criminal Rule 1¡.(C)

Indiana Criminal Rule 4(C) provides in relevant part:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar.

As noted by this court in Upshaw v. State, 934 N.E.2d 178, 181-82 (Ind.Ct.App.2010), trans. denied, and Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011), there appears to be a disagreement about the proper standard of review to apply to appeals of a trial court’s ruling on a motion for discharge brought under Criminal Rule 4. Some cases have applied a de novo standard, others an abuse of discretion standard, and yet others a clearly erroneous standard. See Upshaw, 934 N.E.2d at 181-82 (collecting cases). Although Up-shaw did not resolve this apparent conflict, Feuston attributed the discrepancies to the fact that in some cases the trial court resolved disputed facts, whereas in other cases the court simply applied the law to undisputed facts. Feuston, 953 N.E.2d at 548. Therefore, Feuston concluded that “factual findings made by the trial court are entitled to deference, but legal conclusions are to be reviewed de novo.” Id.

Here, Heinzman was arrested on November 1, 2005, and the trial court set an initial trial date of April 25, 2006. Heinz-man filed a motion for a continuance on April 20, 2006. The trial court granted Heinzman’s motion and set a trial date of October 31, 2006. Heinzman argues, and the State does not deny, that the 170-day delay between his arrest and his motion to continue is attributable to the State and counts against the one-year time period the State had to bring him to trial. On October 18, 2006, just two weeks before his scheduled trial, Heinzman filed another motion to continue. The trial court granted this motion and set a trial date of April 24, 2007. This delay is clearly attributable to Heinzman.

On April 24, 2007, and again on June 13, 2007, the trial court made docket entries indicating that, due to court congestion, the court was rescheduling Heinzman’s trial, and Heinzman’s trial was ultimately reset to October 16, 2007. Then, on October 16, 2007, the trial court made another docket entry indicating that, due to court congestion, Heinzman’s trial was reset for December 11, 2007. On December 11, 2007, the trial court yet again made another docket entry indicating that, due to court congestion, Heinzman’s trial was reset to April 22, 2008. However, there is no CCS entry for April 22, 2008. The next entry on the CCS occurred on May 23, 2008, in which the trial court, in an apparent nunc pro tunc entry, noted that, due to another in-progress jury trial, Heinzman’s scheduled trial date of April 22, 2008 had been vacated and reset for July 15, 2008. Yet again, there is no entry in the CCS for July 15, 2008. Instead, the next entry was made on October 15, 2008, which simply noted that the trial set for July 15, 2008 was reset to January 27, 2009. This entry is followed by another dated November 5, 2008, which explains in more detail that the jury trial set for July 15, 2008 was vacated due to a trial in progress in another case and reset for January 27, 2009.

On appeal, Heinzman claims that, even if all the other delays were not chargeable to the State, the 196-day delay between July 15, 2008 and January 27, 2009 is attributable to the State because the trial court did not properly document the court congestion and because, Heinzman insists, the court’s findings of congestion were factually incorrect. Heinzman contends that when this 196-day delay is added to the earlier 170-day delay attributable to the State, “the total delay attributable to the State is at least 366 days[.]” Appellant’s Br. p. 23. In other words, according to Heinzman, “the one-year deadline for bringing [him] to trial expired January 26, 2009[.]” Id.

But even if we assume arguendo that Heinzman’s claims regarding the delay attributable to the State is correct, Heinz-man cannot prevail. According to Heinz-man, the deadline for bringing him to trial was January 26, 2009. See id. But on October 15, 2008 — a date still within the one-year period claimed by Heinzman— the trial court reset the trial date to January 27, 2009 — a date one day beyond the one-year period.

It is well-settled that “when a trial court, acting within the one-year time limit of Criminal Rule 4(C), schedules trial to begin beyond the one-year limit, the defendant must make a timely objection to the trial date or waive his right to a speedy trial under that rule.” State ex rel. Bramley v. Tipton Circuit Court, 835 N.E.2d 479, 481 (Ind.2005) (citing Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999)). Here, because Heinzman failed to object when the trial court reset the trial for a date beyond the one-year limit, he waived his right to a speedy trial under Criminal Rule 4(C). See Baumgartner v. State, 891 N.E.2d 1181, 1135 (Ind.Ct.App.2008) (concluding that defendant waived his Criminal Rule 4(C) claim where he failed to object when the trial court, acting within the one-year time limit, reset the trial for a date outside the one-year time period).

B. Constitutional Right to Speedy Trial

Heinzman also claims that the delay in bringing him to trial deprived him of his constitutional right to a speedy trial. The right of an accused to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and by Article 1, Section 12 of the Indiana Constitution. Fisher v. State, 933 N.E.2d 526, 530 (Ind.Ct.App.2010) (citing Clark v. State, 659 N.E.2d 548 (Ind.1995)).

The question of whether a defendant has been denied the right to a speedy trial under the Sixth Amendment involves the balancing of a number of factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) any resulting prejudice to the defendant. Fisher, 933 N.E.2d at 530; Danks v. State, 733 N.E.2d 474 (Ind.Ct.App.2000) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)), trans. denied. We employ the same test to evaluate a speedy trial claim under Article 1, Section 12 of the Indiana Constitution. Fisher, 933 N.E.2d at 530.

We acknowledge that it took nearly five years to bring Heinzman to trial. “A post-accusation delay exceeding one year has been termed ‘presumptively prejudicial’ to a defendant.” Danks, 733 N.E.2d at 481. However, this “ ‘does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.’” Id. (quoting Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Thus, even if the delay is presumptively prejudicial because it exceeded one year, a defendant must “specify precisely how the delay affected his ability to defend himself against the charges in order to succeed on a speedy trial claim.” Id. (citing Gilmore v. State, 655 N.E.2d 1225, 1227-28 (Ind.1995)). This is a burden Heinzman fails to meet. Heinzman claims that Z.B. and other witnesses could not recall certain events, but he fails to explain how he was specifically prejudiced by these witnesses’ inability to recall.

Moreover, we disagree with Heinz-man’s characterization of his assertion of his right to a speedy trial as “vigorous.” See Appellant’s Br. p. 27. Heinzman filed several motions to continue and did not object when the trial court repeatedly reset his trial as a result of court congestion. In fact, Heinzman did not file his motion to discharge until April 22, 2010, which was almost four and one-half years after he was initially charged. Even after his motion for discharge was denied, Heinzman sought, unsuccessfully, to further continue his trial date. Under these particular facts and circumstances, we cannot say that Heinzman was denied his constitutional right to a speedy trial.

II. Vouching Testimony

Heinzman next contends that the trial court abused its discretion when it admitted the testimony of DCS supervisor Boyd-Smith, who investigated Z.B.’s reports of molestation by Heinzman. The admission of evidence is within the sound discretion of the trial court, and we review the court’s decision only for an abuse of that discretion. Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010). The trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

Indiana Evidence Rule 704(b) provides, “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal ease; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” Such testimony invades the province of the jury in determining what weight it should place upon a witness’s testimony. Rose v. State, 846 N.E.2d 363, 367 (Ind.Ct.App.2006).

In the present case, Heinzman focuses his argument on the testimony of DCS investigator Boyd-Smith, who testified that she investigated a report that Heinz-man had inappropriately touched Z.B. The State asked Boyd-Smith if she determined whether she had “substantiated” the alleged touching. Heinzman then objected on grounds that such testimony was an inadmissible opinion as to whether Heinz-man was guilty and improperly vouched for Z.B.’s truthfulness. The trial court overruled Heinzman’s objection, and the following exchange took place between the prosecuting attorney and Boyd-Smith:

Q. Ms. Smith, was the report, is there a process for substantiating or un-substantiating at this point in time when you are beginning the investigation of this type of allegation?
A. At the conclusion, yes, at the conclusion of an investigation there’s a case finding.
Q. Okay. And can you tell us what you mean by a case finding?
A. At th[e] time that this was investigated I believe we had three options. You could substantiate, you could unsubstantiate. Substantiate means basically find the allegations to be true. Unsubstantiated [means] that they’re not true or unfounded. Or I believe we still had indicated at that time. So—

Tr. pp. 238-39. At this point, Heinzman objected and moved to strike. The trial court sustained the objection and granted the motion to strike the statement that the allegations were true. The trial court also instructed the jury to disregard the statement as follows:

Ladies and Gentlemen of the Jury, you’re admonished to disregard that statement. I believe the follow[] up question that’s going to be handled by [the prosecuting attorney] will explain what she meant by that, but you are not to take the statement that she made that the allegations are true as evidence. It is stricken from the record.

Tr. pp. 239-40 (emphasis added).

The prosecuting attorney then continued with her direct examination of Boyd-Smith:

Q. Would it be a proper statement to say that when you substantiate a case you find a reason to believe the allegations may have some factual foundation?
A. Yes, that would be correct.
Q. So there’s no way for you to tell or to say whether or not at that point in time that they are absolutely beyond doubt true, but they have a foundation upon which to proceed with further investigation?
A. That’s correct.
Q. Okay. And if you had unsubstantiated it, then there would have been no basis for further investigation as far as your department was concerned; is that correct?
A. That’s correct.
Q. Okay. And what does indicated, I know we don’t have indicated here, but what is that term? What does that mean?
A. Indicated at that time meant that there was a high likelihood, if you will, which is kind of hard to define[,] that the allegations did occur.
Q. So is it fair to say that indicated might, everybody might be kind of scratching their heads and say we think there may be something here but we need to kind of delve into some additional things?
A. Yes, that would be correct.
Q. Okay. So this particular report at the time after the initial interview and the investigation that you did was substantiated, correct?
A. That’s correct.
Q. And then what, if any, additional involvement with this particular case did you continue to have after that point in time?
A. None at that point in time.

Tr. pp. 240-41.

On appeal, Heinzman claims that Boyd-Smith’s references to “substantiating” the allegations in her report were impermissible pursuant to Evidence Rule 704(b). In support of his argument, Heinzman relies mainly on the opinion of this court in Bradford v. State, 960 N.E.2d 871 (Ind.Ct.App.2012). In that case, a child protective services investigator testified that she had “substantiated sexual abuse, meaning our office feels that there was enough evidence to conclude that sexual abuse occurred.” Id. at 876. We concluded that although the investigator’s testimony did not directly vouch for the truthfulness of the victim’s testimony, it did constitute an opinion regarding the truth of the allegations, because she testified that she had interviewed the victim and others and concluded that the victim had, in fact, been sexually abused. Id. at 876-77. We therefore concluded that this evidence was inadmissible and that the trial court’s decision to admit this evidence constituted reversible error. Id. at 877-78.

Heinzman claims that the same is true here, i.e. that Boyd-Smith’s references to “substantiating” the claims of abuse amounts to testimony that she believed the allegations to be true. We disagree. Boyd-Smith’s testimony revealed that when a report is “substantiated,” it means that the DCS had a “reason to believe” that the report of inappropriate touching “may have some factual foundation,” but that this did not mean that the allegations were “absolutely” true. Tr. pp. 239^41. Instead, she explained that this simply meant that the allegations had a foundation upon which to proceed with further investigation, whereas an unsubstantiated report meant that there was no basis for further investigation. She also explained that the report involving Z.B. and Heinz-man was “substantiated,” i.e., that there was a factual foundation for further investigation.

Thus, Boyd-Smith’s testimony revealed little more than that the investigation proceeded further. We agree with the State that this information added little, if anything, to what the jury was already well aware of: that an investigation was conducted that revealed enough evidence to further investigate, and ultimately charge Heinzman with child molesting. In fact, Heinzman’s trial counsel made this very point during his cross-examination of Boyd-Smith, emphasizing that the likelihood or “high likelihood” was akin to probable cause, and “certainly not beyond a reasonable doubt.” Tr. p. 244.

We find this case to be factually distinguishable from Bradford in that the witness in that case testified to the effect that “there was enough evidence to conclude that sexual abuse occurred,” and that she concluded that the victim had, in fact, been sexually abused. 960 N.E.2d at 876-77. In contrast, here, Boyd-Smith testified that there was a factual basis to support further investigation. She did not testify to an opinion concerning guilt or innocence, the truth or falsity of allegations, or whether a witness had testified truthfully. In fact, the trial court specifically admonished the jury that Boyd-Smith’s earlier testimony was not to be considered as an opinion concerning the truth of the allegations. We do not read Bradford to broadly hold that any testimony that a report of abuse was “substantiated” constitutes impermissible vouching and reversible error.

We also find Rose, supra, cited by Heinzman, to be factually distinguishable. In that case, the State’s witness testified repeatedly regarding the child victim’s credibility and how “convincing” the victim was when she described the offense. Rose, 846 N.E.2d at 368-69. We held this to be impermissible vouching. Id. In the case before us, Boyd-Smith did not testify regarding Z.B.’s credibility or repeatedly state how convincing his allegations were. Gutierrez v. State, 961 N.E.2d 1030 (Ind. Ct.App.2012), also cited by Heinzman, is even more factually distinct. In that case, a nurse testified that she believed that the child victim was telling the truth, a DCS investigator testified that she “absolutely” believed the victim’s testimony, and the deputy prosecutor contemporaneously inserted his opinion that he too believed the victim. Id. at 1035. Boyd-Smith’s testimony does not approach this sort of vouching.

' For all of these reasons, and under the facts and circumstances before us, we cannot conclude that the trial court abused its discretion in overruling Heinzman’s objection to Boyd-Smith’s testimony.

III. Hearsay Evidence

Heinzman also claims that the trial court abused its discretion in admitting into evidence a letter that Z.B. had written, but apparently never delivered to, Heinzman. Heinzman claims that this letter constituted impermissible hearsay. In addressing this claim, we first note that we review the trial court’s evidentiary decisions only for an abuse of discretion. Boatner, 934 N.E.2d at 186.

The letter in question reads:

Cory I don’t see why you would do something so disturbing to me after I trusted you for so long and I respeced [sic] you but now I have no respect no trust and right now I don’t give a damn about you[.] I hope you spend the rest of your life in jail and after that the rest of eternity in hell[.] At first it was something new to me[.] I didn’t now [sic] what was going on and thought it feelt [sic] good but when I found out it was wrong and didn’t like it then you forsed [sic] me to do that which was wrong that you took control of me after I told you to stop doing that because I didn’t like it but you would not stop[.] Then you woke me up doing that and know [sic] when I think about it hurt’s [sic] me so bad and depresed [sic] about it one time I wanted to kill myself over all this stuff and if I ever see you agin [sic] I don’t know if I could control myself.

Ex. Vol., State’s Ex. 8.

Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Boatner, 934 N.E.2d at 186 (citing Ind. Evidence Rule 801(c)). As a general rule, hearsay evidence is inadmissible. Id. (citing Ind. Evidence Rule 802). There are several exceptions to this general rule. Pursuant to Indiana Evidence Rule 803(3), a statement of a then existing mental, emotional, or physical condition is not excluded by the hearsay rule, even though the declarant is available as a witness. Specifically:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it related to the execution, revocation, identification, or terms of declarant’s will.

Evid. R. 803(3).

Here, the bulk of Z.B.’s letter consists of a statement of his then-existing state of mind and emotions. It speaks of how he had no respect for Heinzman, felt betrayed, and how hurt he was by Heinz-man’s actions. Z.B. even testified with regard to the letter that “those are my feelings and how I felt at the time.” Tr. p. 323 (emphasis added). To the extent that the letter describes Z.B.’s then-existing state of mind and emotions, it was admissible pursuant to Evidence Rule 803(3).

Heinzman argues, however, that this exception is inapplicable because the letter was offered “to prove the fact remembered,” i.e. that Heinzman molested Z.B. We agree that there are certain, indirect references to Heinzman’s actions toward Z.B. But to the extent that the letter contains references to these actions, we cannot say that Heinzman was harmed by the admission of these references. Z.B. testified clearly and directly regarding Heinzman’s acts of molestation. The few indirect references to the molestation contained in the letter are relatively innocuous by comparison and are, at most, cumulative of Z.B.’s direct testimony. We therefore conclude that, to the extent that portions of the letter were inadmissible, any error in the admission of the letter was harmless. See Montgomery v. State, 694 N.E.2d 1137, 1140 (Ind.1998) (noting that the admission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted); Purvis v. State, 829 N.E.2d 572, 585 (Ind. Ct.App.2005) (erroneous admission of evidence is harmless if it is cumulative of other evidence), trans. denied.

IV. Double Jeopardy

Heinzman also contends that his convictions for three counts of Class C felony child molesting constitute double jeopardy. The standard for evaluating an alleged double jeopardy violation is well-settled. In Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), our supreme court established a two-part test for analyzing double jeopardy claims under the Indiana Constitution and concluded that two or more offenses are the “same offense” for double jeopardy purposes “if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Thus, a double jeopardy violation may occur if the actual evidence presented at trial demonstrates that each offense was not established by separate and distinct facts. Williams v. State, 892 N.E.2d 666, 668-69 (Ind.Ct.App.2008). To establish a violation of the actual evidence test, the defendant must demonstrate a “reasonable possibility” that 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.

Here, Heinzman notes that all three counts of child molesting were alleged in the same manner:

[O]n or between January 1, 2002 and November 80, 2008, Cory Heinzman did, with a child under the age of fourteen (14), to-wit: [Z.B.], age 10-12 years of age, perform or submit to touching or fondling of the child with the intent to arouse or satisfy the sexual desire of the child or the older person.

Appellant’s App. p. 17.

In addition to the lack of specificity in the charging information, Heinzman notes that, during deliberations, the jury asked the trial court, “Must one of the three counts be the incident on the couch?” Appellant’s Supp. App. p. 1. The trial court responded by telling the jury to review their instructions and notes. Id. Heinz-man admits that Z.B. testified that Heinz-man fondled him once on a couch in the living room and “more than twice” in Heinzman’s bedroom. But he claims that the lack of specificity in the charging information combined with the jury’s question and Z.B.’s testimony create a reasonable possibility that the jury returned guilty verdicts on all three counts based solely on the evidence of the acts that occurred in the bedroom.

We note, however, that the State presented evidence that Heinzman repeatedly molested Z.B. from September 2002 through November 2003. Z.B. testified that he spent the night at Heinzman’s house once or twice per month during this period. Although Z.B. was unsure of precisely how many times Heinzman fondled him when they were in the bedroom, he stated that it occurred “more than twice.” Tr. pp. 306-07. By definition more than twice is at least three times. From this alone, the jury could have concluded that Heinzman molested Z.B. three separate times in the bedroom. In fact, the prosecuting attorney emphasized this point in its closing argument to the jury, stating, “even if you have difficulty believing [the living room] incident, you have sufficient information before you that there were numerous incidents of molestation that happened in the bedroom to satisfy the three counts that are charged.” Tr. p. 466. Moreover, Z.B. also testified that Heinzman molested him on the couch. Thus, there was evidence of at least four separate acts of molestation by Heinzman. Accordingly, we cannot say that there was a reasonable possibility that the jury relied on the same evidentiary facts to convict Heinzman of the three separate counts of child molesting.

V. Sentencing

Heinzman also asserts several errors in the manner in which the trial court sentenced him: that the trial court violated his Blakely rights by finding certain aggravating factors, that the trial court abused its discretion in the finding of aggravating and mitigating factors, and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. We address each of these arguments in turn.

A. Blakely

Heinzman committed his offenses in 2002 and 2003, when the presumptive sentencing scheme was still in effect, and the presumptive sentencing statutes are therefore applicable to Heinzman’s sentence. See Harris v. State, 897 N.E.2d 927, 928-29 (Ind.2008) (“The sentencing statute in effect at the time a crime is committed governs the sentence for that crime.”). Heinzman was convicted of three counts of Class C felony child molesting. At the time of Heinzman’s offenses, the presumptive sentence for a Class C felony was four years, and the trial court could add up to an additional four years based on the presence of aggravating factors. See Ind.Code § 35-50-2-5 (1998). The trial court imposed the maximum sentence of eight years on each count.

Heinzman argues that the trial court’s finding of aggravating factors violated his rights under the Sixth Amendment to the United States Constitution as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and as applied to Indiana’s sentencing statutes by the Indiana Supreme Court in Smylie v. State, 823 N.E.2d 679 (Ind.2005). See Williams v. State, 891 N.E.2d 621, 631 (Ind.Ct.App.2008) (explaining that, under Blakely, a sentence may only be enhanced based on: (1) prior convictions, (2) facts found by a jury beyond a reasonable doubt, (3) facts admitted by the defendant, or (4) facts found by the court if the defendant has consented to judicial fact-finding).

The State counters that Heinzman waived this claim by not raising it before the trial court. A claim is generally considered forfeited if it is not raised at trial. See Smylie, 823 N.E.2d at 689. In Smylie, however, our supreme court held that the State’s waiver argument failed because the defendant’s trial counsel could not have anticipated the holding of Blakely beforehand. Id. Here, however, Heinzman’s sentencing hearing took place in 2010, almost six years after the Blakely decision and five years after the Smylie decision. We therefore agree with the State that Heinz-man waived his current argument by failing to make any Blakely objection to the trial court.

B. Abuse of Discretion

In Kien v. State, 782 N.E.2d 398 (Ind.Ct.App.2003), a case decided under the presumptive sentencing scheme in effect at the time of Heinzman’s convictions, we explained:

Sentencing lies within the discretion of the trial court. Sentencing decisions are reviewed only for an abuse of discretion. When a trial court enhances a sentence, the trial court is required to state its specific reasons for doing so. The sentencing statement must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific reason why each circumstance is aggravating or mitigating; and (3) demonstrate that the aggravating and mitigating circumstances have been weighed to determine that the aggravators outweigh the mitigators. We examine both the written sentencing order and the trial court’s comments at the sentencing hearing to determine whether the trial court adequately explained the reasons for the sentence. A sentence enhancement will be affirmed in spite of a trial court’s failure to specifically articulate its reasons if the record indicates that the court engaged in the evaluative processes and the sentence imposed is not [inappropriate].
A single aggravating circumstance may be sufficient to enhance a sentence. A sentence enhancement may still be upheld when á trial court improperly applies an aggravator but other valid aggravators exist.

Id. at 410-11 (citations omitted).

Heinzman claims that the trial court improperly found as an aggravating factor that Heinzman engaged in a pattern of criminal conduct. Heinzman contends that the evidence shows that he engaged in, at most, only one instance of criminal conduct. We disagree. As noted above in our double jeopardy analysis, there was evidence in the record that Heinzman molested Z.B. on at least three occasions in the bedroom and once on the couch.

We acknowledge that the trial court found as mitigating that, at the time the current offenses were committed, Heinz-man did not yet have a criminal history. But this fact does not rule out the possibility that the trial court’s reference to a pattern of criminal conduct could also have been in reference to Heinzman’s other convictions for crimes that were charged after the charges in this case were filed, but for which Heinzman was convicted and sentenced prior to his convictions and sentencing in the present case. Specifically, Heinzman was convicted in 2007 for three counts of Class A felony child molesting, two counts of Class C felony child molesting, two counts of Class D felony sexual misconduct with a minor, and one count of Class D felony conducting a performance before minors that is harmful to minors. Appellant’s App. pp. 275-76; see also Heinzman v. State, 895 N.E.2d 716, 719 (Ind.Ct.App.2008) (noting Heinzman’s convictions for numerous counts of sexual offenses involving minors), trans. denied.

Although Heinzman had not yet been convicted of these crimes at the time he committed the instant crimes, our supreme court has held that “[c]riminal activity that occurs subsequent to the offense for which one is being sentenced is a proper sentencing consideration.” Sauerheber v. State, 698 N.E.2d 796, 806 (Ind.1998) (citing Hoage v. State, 479 N.E.2d 1362, 1366 (Ind.Ct.App.1985)); see also Williams v. State, 782 N.E.2d 1039, 1051 (Ind.Ct.App.2003) (citing Sauerheber in holding that it was proper for the trial court to consider as aggravating that the defendant committed an offense in jail after commission of the crime for which he was being sentenced). Indeed, the Sauerheber court held that the defendant’s “aggregate history of criminal activity was properly used as an aggravating circumstance,” and the fact that most of this activity had occurred after the conviction for which the defendant was being sentenced “d[id] not require the trial court to attach any less significance to it.” Id. We therefore conclude that the trial court did not abuse its discretion in finding as an aggravating factor that Heinzman engaged in a pattern of criminal conduct, whether this referred to his repeated acts of molesting Z.B. or whether it referred to Heinzman’s subsequent convictions for molestation.

Heinzman also contends that the trial court failed to give sufficient weight to the alleged mitigating factor that Heinzman had no prior criminal history. This argument fails for several reasons. First, the trial court is not required to find mitigating factors or to accept as mitigating the circumstances proffered by the defendant. Kien, 782 N.E.2d at 415. Only when the trial court fails to find a significant miti-gator that is clearly supported by the record is there a reasonable belief that it was overlooked. Id. When determining whether a particular mitigator is significant, the trial court is not required to give the same credit or weight to the proffered mitigating circumstance that the defendant does. Battles v. State, 688 N.E.2d 1230, 1236-37 (Ind.1997).

More importantly, as noted earlier, when the trial court sentenced Heinzman in the present case, Heinzman did have a criminal history. Although, at the time he committed the instant crimes, he had yet to commit or be convicted for the acts he subsequently committed, by the time the trial court sentenced Heinzman in this case, he had been convicted and sentenced for several other crimes based on his other sexual acts toward children. Clearly, the trial court did not abuse its discretion by refusing to consider Heinzman’s “lack of criminal history” as a significant mitigating factor. See Sauerheber, 698 N.E.2d at 806.

Heinzman also claims that the trial court failed to explain its decision that the aggravating factors outweighed the mitigating factors, thus justifying the enhanced, consecutive sentences it imposed. We disagree. The trial court identified three aggravating factors: that Heinzmaris crimes were, by statute, crimes of violence; that Heinzman engaged in a pattern of criminal conduct; and that Heinzman betrayed a position of trust. The trial court found as mitigating that Heinzman had no criminal history at the time the present crimes occurred. The trial court then sentenced Heinzman to eight years on each conviction to be served consecutively. See Tr. pp. 539^41; Appellant’s App. p. 12.

Even if the trial court could have better articulated its sentencing decision, the record indicates that the court engaged in the evaluative process. See Kien, 782 N.E.2d at 411. And the existence of these multiple aggravating factors is sufficient to support the trial court’s decision to impose consecutive sentences. See O’Connell v. State, 742 N.E.2d 943, 952 (Ind.2001) (noting the well-established principle that multiple crimes or victims constitutes a valid aggravating circumstances that may justify consecutive sentences); Thorne v. State, 687 N.E.2d 604, 605 (Ind.Ct.App.1997) (noting that there is no prohibition against using the same aggravating factor to both enhance a sentence and impose consecutive terms).

C. Appellate Rule 7(B)

Lastly, Heinzman claims that the sentence imposed by the trial court is inappropriate. Pursuant to Appellate Rule 7(B), we may revise a sentence otherwise authorized by statute if, “after due consideration of the trial court’s decision, [we] find[ ] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Although we have the power to review and revise sentences, “[t]he principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). Our review under Appellate Rule 7(B) should focus on “the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Id. It is the defendant’s burden on appeal to persuade us that the sentence imposed by the trial court is inappropriate. Chil-dress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

We first consider the nature of the offenses. Heinzman repeatedly molested the son of his cousin. It is undisputed that Heinzman was in a position of trust vis-a-vis his victim. In fact, Z.B.’s family asked Heinzman to mentor the boy and help him work through his problems, and the family allowed Z.B. to stay at Heinzmaris home. Heinzman took advantage of this situation by repeatedly molesting the boy. Z.B. was apparently already struggling, and he attempted to commit suicide shortly before he disclosed the molestations to his stepmother. As a result of Heinzman’s actions, Z.B. still has trouble trusting others. Clearly, the nature of Heinzmaris offenses support the imposition of an enhanced sentence.

Heinzman’s character provides further support for the trial court’s sentencing decision. Although Heinzman had no criminal history at the time he committed the acts against Z.B., by the time he was convicted and sentenced in the present case, he had already been convicted of multiple counts of child molestation involving other children. See Sauerheber, 698 N.E.2d at 806 (holding that the trial court properly considered the defendant’s criminal activity subsequent to the instant crime as an aggravating factor). As disclosed in our opinion in Heinzman’s other convictions, he molested a child he met through his job as a caseworker for Child Protective Services. Heinzman, 895 N.E.2d at 719. Thus, Heinzman abused a position of trust in that case too.

Considering the nature of the offenses and the character of the offender, and giving due consideration to the trial court’s sentencing decision, we cannot say that Heinzman has met his burden on appeal of demonstrating that his aggregate twenty-four year sentence is inappropriate.

D. Sentence on Cause FC-46

Heinzman also claims that, pursuant to the terms of his plea agreement, the trial court was required to suspend his sentence in Cause FC-46, the cause in which Heinzman pleaded guilty to Class D felony sexual battery on E.B., Z.B.’s younger brother. The State concedes that Heinzman’s plea agreement did call for a suspended sentence. Yet the trial court indicated in its oral sentencing statement that Heinzman’s sentence on this count was to be executed, which would be contrary to the plea. We first note that Heinzman made no objection to the trial court’s sentencing statement indicating that his sentence in Cause FC-46 was to be executed. Moreover, this sentence was ordered to be served concurrently with Heinzman’s aggregate twenty-four year sentence in Cause FC-239. Thus, even if the trial court had suspended Heinzman’s sentence in Cause FC-46, this sentence would be “served” while Heinzman was serving his executed sentence in Cause FC-239. We therefore consider this error to be harmless, as remand for resentenc-ing would result in the exact same sentence for Heinzman.

Conclusion

The trial court did not err in denying Heinzman’s motion for discharge because Heinzman waived his right to a speedy trial under Criminal Rule 4(C) by failing to object when the trial court set a trail date outside the one-year time limit. And because Heinzman himself was responsible for some delay in the trial, did not timely assert his right to a speedy trial, and has failed to demonstrate resulting prejudice, we cannot say that the delay in his trial violated his constitutional right to a speedy trial.

With regard to the admission of evidence, the trial court did not abuse its discretion in admitting evidence that the report of Heinzman’s abuse had been “substantiated,” inasmuch as this testimony did not run afoul of Evidence Rule 704(b). Similarly, the letter written by the victim was admissible under an exception to the hearsay rule and was cumulative of the victim’s testimony.

Heinzman’s convictions on three counts of Class C felony child molesting do not constitute double jeopardy because there was evidence establishing that Heinzman molested the victim on at least four occasions. Thus, there was no reasonable possibility that the jury relied on the same evidentiary facts to convict Heinzman on all three counts.

Lastly, the trial court did not abuse its discretion in sentencing Heinzman to an aggregate term of twenty-four years. This sentence is not inappropriate given the nature of the offense and the character of the offender.

Affirmed.

ROBB, C.J., and BAILEY, J., concur.

      . Boyd-Smith, a supervisor for the Marion County DCS, was asked to investigate the report involving Heinzman in Hamilton County because Heinzman himself was an employee of the Hamilton County DCS. Tr. p. 236.

      . We reject Heinzman’s claim that he did not waive this issue by failing to object because "he had no reason to suspect the trial court’s finding of congestion was inaccurate factually.” Appellant's Br. p. 23. Heinzman is attempting to have it both ways. He attacks the trial court’s findings of congestion as factually inaccurate, yet attempts to rely on these findings to avoid waiver. Moreover, Heinzman fails to explain why he was unable to discover that the trial court's congestion finding was allegedly inaccurate at the time he should have objected.

      . The case cited by Kien referred to a "manifestly unreasonable” sentence. But as noted in Kien, Appellate Rule 7(B) was amended effective January 1, 2003, to refer to an "inappropriate” sentence. 782 N.E.2d at 416 n. 12. Because this rule is directed toward the reviewing court, we refer to the current version of the rule. See id.


author: BAILEY, Judge. ROBB, Chief Judge,

text:
    Doug WYNKOOP, Appellant-Plaintiff, v. The TOWN OF CEDAR LAKE, Indiana, and the Town Council of the Town of Cedar Lake, Indiana, Appellees-Defendants.
    No. 45A05-1111-PL-602.
    Court of Appeals of Indiana.
    June 29, 2012.

      John P. Reed, Abrahamson, Reed & Bilse, Hammond, IN, Attorney for Appellant.
    Liberty L. Roberts, Collier-Magar & Roberts, P.C., Indianapolis, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Doug Wynkoop (“Wynkoop”) appeals the grant of summary judgment in favor of his former employer, the Town of Cedar Lake, Indiana (“Cedar Lake”), and the Town Council of the Town of Cedar Lake, Indiana (collectively, “the Town”).

We affirm.

Issue

Wynkoop raises one issue, which we restate as whether he possessed a constitutionally protected property interest in his position with Cedar Lake so that he was entitled to due process before his employment was terminated.

Facts and Procedural History

Wynkoop was employed by Cedar Lake for approximately seven years, working as a part-time Building Inspector and then as a full-time Code Enforcement Officer. In 2009, by ordinance, Cedar Lake adopted a sixty-page “Town of Cedar Lake Policy and Procedure Manual” (“Procedure Manual” or “Manual”), which states upfront that it is not a contract of employment. The Manual also contains a lengthy at-will employment provision, a progressive disciplinary policy provision, and an employee appeal provision. Wynkoop acknowledged receipt of the Manual on December 4, 2009.

By letter dated June 16, 2010, Cedar Lake notified Wynkoop of a disciplinary job action against him; the recommended discipline was employment termination. Alleging violations of the Procedure Manual and the Town Code of Conduct, the Town Administrator advised Wynkoop that, in accordance with the Manual, he was entitled to request an administrative hearing before the Town Council. A hearing was held in June and, on July 7, 2010, the Town Administrator sent Wynkoop another letter informing him of the Town Council’s decisions to suspend him without pay for thirty days and to demote him to the position of part-time Building Inspector. Wynkoop was provided documents pertaining to that position but, apparently, refused to formally acknowledge their receipt. His employment was eventually terminated.

Wynkoop filed a “Complaint for Writ of Certiorari, Declaratory Judgment, Injunc-tive Relief and Damages” against the Town. (App. at 13.) In part, he asked the trial court to declare that the disciplinary procedure “was violative of the Due Process rights afforded [him] under the Town’s Personnel Policy” because the Town Council considered subject matter “beyond the four corners of the charging instrument.” (App. at 16.) The Town moved for summary judgment and filed a supporting memorandum of law, arguing that Wynkoop had no constitutionally protected property interest in his job. It designated as evidence an affidavit of the Town Administration to which was attached a copy of the Procedure Manual.

Wynkoop responded, designating his affidavit and the June 16, 2010 and July 7, 2010 letters from the Town Administrator. The Town filed a motion to strike portions of Wynkoop’s affidavit, which was granted in part. On October 4, 2011, the trial court entered summary judgment in favor of the Town with the following explanation:

The policy and procedure manual adopted by the Town of Cedar Lake did not create a contract of employment with Mr. Wynkoop. As such, Mr. Wyn-koop had no property interest in his employment with the town. Mr. Wyn-koop had the rights only of an employee at will. As such, he cannot bring a claim for breach of contract, nor can the disciplinary procedures described in the handbook provide a basis for making a claim for breach of due process.

(App. at 11.) (Citations omitted.) Wyn-koop now appeals.

Discussion and Decision

Standard of Review

We review an appeal of a trial court’s ruling on a motion for summary judgment using the same standard applicable to the trial court. Wilson v. Isaacs, 929 N.E.2d 200, 202 (Ind.2010). Summary judgment is appropriate only if the evidence designated by the parties “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from the facts are construed in favor of the non-moving party. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). When material facts are not in dispute, our review is limited to determining whether the trial court correctly applied the law to the undisputed facts. Hayes v. Trustees of Ind. Univ., 902 N.E.2d 303, 312 (Ind.Ct.App.2009), trans. denied. We review a question of law de novo. Id. Further, this Court is not bound by the trial court’s findings and conclusions although they aid appellate review and offer valuable insight into the court’s rationale for its decision. SCI Ind. Funeral Serv., Inc. v. D.O. McComb & Sons, Inc., 820 N.E.2d 700, 706 (Ind.Ct.App.2005), trans. denied.

Analysis

Wynkoop contends that triable issues of material fact exist concerning whether his due process rights were violated when he was discharged from his employment. The Due Process Clause of the Fourteenth Amendment proclaims that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1; Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind.2012). Due process challenges require a two-part inquiry. The first question is whether the plaintiff was deprived of a protected interest in “property” or “liberty.” Only after finding the deprivation of a protected interest do we determine whether the State’s procedures comport with due process. Perdue, 964 N.E.2d at 832.

To have a property interest in a benefit, a person “must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Further, property interests are not created by the Constitution. Id. The hallmark of property is “an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Logan v. Zimmeman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (citations omitted); Tri-City Comprehensive Cmty. Mental Health Center, Inc. v. Franklin, 498 N.E.2d 1303, 1305 (Ind.Ct.App.1986). The source of such entitlement generally arises from statute, ordinance, or contract, but can also arise by agreement with a governmental entity for continued employment. Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind.Ct.App.2006).

Here, Wynkoop identifies three “state-law sources” of his purported property interest: the Procedure Manual, the Town’s “rules and regulations” and the Town’s ordinance. Clearly, however, the basis of each is the Procedure Manual. Thus, we set forth in some detail the relevant portions of that document.

The Procedure Manual

First, under “Introduction and Purpose,” the Manual states its purpose and declares that “[i]t is written, adopted, and interpreted exclusively by the Town Council and their designee, and is not subject to modification, change, or contrary interpretation by any employee-” (App. at 50.) A “disclaimer” follows: “This manual is not a contract of employment and does not guarantee employment for any specified duration.” Id.

Later, under “Employee-at-Will,” the Procedure Manual explains:

A. Public employment is based on the “at-will” doctrine. “At-will” employment means, any individual may voluntarily leave employment or may be terminated by the Toum at any time with or without cause.
B. This policy may not be modified by any statements contained in this manual or any other employee materials, including applications, memoranda, or other documents provided to applicants and employees in connection with their employment. None of these documents whether single or combined, create any expressed or implied contract of employment for a definite period, or an express or implied contract concerning any terms or conditions of employment.
C. Similarly, Toum policies and practices with respect to any matter should not be considered as creating any contractual obligation on the Town’s part or as stating in any way that termination will occur only “for cause.” Statements of specific grounds for termination set forth in this manual or any other Town documents are examples only, not all-inclusive lists, and are not intended to restrict the Town’s right to terminate at-will.
D. Completion of a Probationary Period or conferral of regular status does not change an employee’s status as an at-will employee or in any way restrict the Town’s right to terminate the employee or change the terms or conditions of employment.

(App. at 56-57, emphasis supplied.)

Under the “Employee Behavior/Conduct” section, the Manual incorporates a “Progressive Disciplinary Policy” with “established rules of conduct.” Included is a non-exhaustive list of “Group I Rules” with an associated four-step approach for disciplinary violations, and a non-inclusive list of Group II Rules, for which an employee “may be subject to termination pending an Administration hearing.” (App. at 73, 78-80.) Preceding the recitation of disciplinary violations is a statement that disciplinary action “rang[es] from verbal or written warnings to suspension or to immediate termination depending on the act and the circumstances.” (App. at 79, emphasis supplied.)

The “Employee Appeal” part of the Procedure Manual is of particular interest. It reads:

A. In the event that disciplinary action must be taken against an employee, it will be for just cause and normally in a progressive manner in an attempt to correct an employee’s behavior, except in those cases of gross or serious misconduct where an employee may be subject to suspension, reduction, or removal from employment for violation of Group II rules.
B. In cases of possible suspension without pay, reductions, in pay or position, or termination, an employee shall be notified of the charges in advance and be afforded the opportunity to present evidence and witnesses on his/her behalf before disciplinary action. Said hearing will be before the Town Council. The employee may also be represented by third party if so requested.

(App. at 80-81, emphasis supplied.) The Manual then explicitly defines “At-Will Employee” as allowing termination of employment “by the Town at any time with or without cause.’’ (App. at 89, emphasis supplied.) Wynkoop’s signature appears on the Acknowledgment of Receipt, which confirms: “I also understand that nothing contained in this manual shall be construed as a contract or guarantee of employment.” (App. at 105.)

Manual as Source of Property Right

Relying largely on the “Employee Appeal” section quoted above, Wynkoop insists that the “just cause” and “administrative hearing” provisions of the Procedure Manual give him a legitimate claim of entitlement in continued employment. As background, we observe that, historically, Indiana has recognized two basic forms of employment: (1) employment for a definite or ascertainable term; and (2) employmentat-will. Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind.1997). If there is no definite or ascertainable term of employment, then the employment is at-will and is presumptively terminable at any time, with or without cause. Id. If the parties choose to include a clear job security provision in an employment contract, however, that presumption may be rebutted. Id. Nevertheless, the presumption of at-will employment is strong. Id. Whether employment is at-will is a determination of law for the court. Uhlman v. Panares, 908 N.E.2d 650, 655 (Ind.Ct.App.2009).

In Orr, our Supreme Court considered whether an employee handbook constituted a valid unilateral contract under which the plaintiff could maintain a breach of contract claim. While refusing to adopt a general exception to the employment-at-will doctrine for employee handbooks, the Court cited Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314, 318 (1987), where the Supreme Court of Illinois enumerated a three-part test under which an employee handbook may constitute a unilateral contract and bind the employer: (1) the language of the employee handbook must contain a promise clear enough that an employee would reasonably believe that an offer had been made; (2) the handbook must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and (3) the employee must accept the offer by commencing or continuing work after learning of the terms of the handbook. Orr, 689 N.E.2d at 720.

In reviewing the handbook at issue, the Orr court found no clear promise of an offer and further noted contrary provisions, including a disclaimer disavowing contract formation and a provision permitting modification of terms at any time. The Court concluded that, even under the Duldulao rule, the employee handbook did not constitute a valid unilateral contract as a matter of law. Id. at 720-22 (re-affirming the general rule that adequate independent consideration is necessary to convert an at-will relationship into an employment relationship requiring an employer to discharge an employee for good cause). Following Orr, this Court has declined to construe personnel policies as converting an individual’s employment from an at-will relationship. See, e.g., Uhlman, 908 N.E.2d at 655; Hayes, 902 N.E.2d at 313.

Orr was decided on contract grounds rather than on constitutional grounds. Wynkoop acknowledges such but, distinguishing Orr, insists that the Procedure Manual in this case contains clear promises of employment security.

Just Cause

Emphasizing the excerpt, “In the event that disciplinary action must be taken against an employee, it will be for just cause,” Wynkoop contends that the Procedure Manual clearly promises termination for just cause only. Standing alone, the quoted language appears mandatory, although it does not explicitly assure disciplinary action “only” for just cause. See Lashbrook v. Oerkfitz, 65 F.3d 1339, 1347 (7th Cir.1995) (reasoning that employee could not reasonably believe that the statement “Department Heads, with the approval of the Director, may dismiss any employee for just cause” would mean that employee could only be dismissed for just cause.) More problematic for Wynkoop, however, is the principle that the Procedure Manual must be read as a coherent whole. See Border v. City of Crystal Lake, 75 F.3d 270, 274 (7th Cir.1996).

Here, from the “Introduction and Purpose” section, through the lengthy “Employee-At-Will” section to the “Definition” section, the Procedure Manual emphasizes the at-will nature of employment. An “At-Will Employee” is one who “maybe terminated by the Town at any time with or without cause.” (App. at 89.) The Manual specifically states that “Town policies and practices with respect to any matter should not be considered ... as stating in any way that termination will occur only ‘for cause.’” (App. at 56.) The Manual also speaks of possible “immediate termination depending on the act and the circumstances.” (App. at 79.) Further, in the signed Acknowledgment of Receipt, Wynkoop recognized that “nothing contained in this manual shall be construed as a ... guarantee of employment.” (App. at 105.) Construed as a whole, the Procedures Manual does not contain a clear promise that employees would be terminated only for just cause.

Administrative Hearing

Wynkoop also asserts that the Procedure Manual clearly promises an administrative hearing before employment can be terminated. He also argues that the Town’s “course of performance” in affording him notice and a hearing creates a fact question regarding whether he was an employee at will or a “contract employee” whose employment could only be terminated “for cause.” (Appellant’s Br. at 14-15.)

The threshold question before us, however, is whether Wynkoop has a property right in his employment. “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Thornton v. Barnes, 890 F.2d 1380, 1386 (7th Cir.1989) (citing Olim v. Wakinekona, 461 U.S. 238, 250,103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)); Shook Heavy and Envtl. Const. Group v. City of Kokomo, 632 N.E.2d 355, 361 (Ind.1994). Thus, the notice and hearing procedures found in the Procedure Manual do not transform Wynkoop’s at-will employment into employment with termination for just cause only.

In addition, the fact that Wynkoop received a hearing before he was terminated does not establish that he had a property right in his job. Our Court has recognized that policies or practices may give rise to a “property interest” but only if there are “mutually explicit understandings” that support a claim of entitlement to a benefit. Morris v. City of Kokomo, 178 Ind.App. 56, 60, 381 N.E.2d 510, 514 (1978) (citation omitted); see also Lawshe v. Simpson, 16 F.3d 1475, 1480 (7th Cir.1994). As illustrated above, there was no mutually explicit understanding that Wynkoop had a property right in his job. Absent such, the Town’s “course of performance” did not create a property right.

Rules and Regulations as Source of Property Right

In a separate argument, Wyn-koop equates the provisions of the Procedure Manual to “rules and regulations” and contends they are the basis of a property right in his employment. Rules and regulations, promulgated pursuant to statute, may create vested rights. See, e.g., Wells v. Auberry, 476 N.E.2d 869 (Ind.Ct.App.1985), trans. denied. But no designated evidence shows that the Procedure Manual’s provisions were promulgated as legally binding rules and regulations of Cedar Lake.

Wynkoop points out that the Manual was adopted by ordinance. Municipal ordinances have the same force and effect as statutes in the localities where they apply. French v. Bristol Myers Co., 574 N.E.2d 940, 943 (Ind.Ct.App.1991), trans. denied. When construing and applying an ordinance, legislative intent must be considered. Id. The intention of the body that passed the ordinance controls over the strict letter of the ordinance or the literal import of particular terms or phrases. Id.

Here, the stated purposes of the Procedure Manual include “to provide a consistent, systematic, and organized approach to the establishment, implementation, and administration of the personnel policies” of Cedar Lake and “to assist and guide personnel in the day-to-day direction and performance of the general workforce.” (App. p. 50.) By its terms, the Procedure Manual is not a contract of employment and does not assure employment for any specified duration. The document is replete with references to at-will employment; it contains a disclaimer and an acknowledgment that nothing in the Manual shall be construed as a guarantee of employment. It was to be interpreted exclusively by the Town Council.

Obviously, the intent of the Manual is to inform employees of practices and policies; it is not intended to create a property interest. Thus, even though the Manual was adopted by ordinance, it does not create enforceable rights against the Town.

Conclusion

Under Indiana law, Wynkoop did not possess a cognizable property right in his position; rather, he remained an employee-at-will. As such, he had no property interest entitled to procedural due process protection. The trial court properly entered summary judgment in favor of the Town.

Affirmed.

MATHIAS, J., concurs.

ROBB, C.J., concurs in result with opinion.

ROBB, Chief Judge,

concurring in result with opinion.

I respectfully concur in result. Although I agree the trial court did not err in granting summary judgment in favor of the Town, I do so on a basis different from my colleagues.

The majority holds that Wynkoop was an at-will employee and he therefore had no property interest entitling him to due process protection under the terms of the Manual. As I noted in my concurring in result opinion in McCalment v. Eli Lilly & Co., 860 N.E.2d 884 (Ind.Ct.App.2007), however, our supreme court has recognized exceptions to the employment-at-will doctrine, including promissory estoppel. Id. at 896 (citing Orr, 689 N.E.2d at 718). To successfully invoke the doctrine of promissory estoppel, an employee must assert and demonstrate that the employer made a promise; that the employee relied on that promise to his detriment; and that the promise otherwise fits within the Restatement test for promissory estoppel. Orr, 689 N.E.2d at 718.

When an employer drafts and offers an employee handbook containing specific disciplinary and grievance procedures, or makes promises regarding the same, I believe the provisions of the handbook and the promises of the employer should mean something. In McCalment, the employee was given a handbook that described disei-pline to be handled by the employee’s direct supervisor first, who had authority to make commitments to employees. The handbook also described a grievance procedure. The employee was given two warnings by his supervisor but was promised that the discipline would be removed from his file one year after being issued. Based on those promises, the employee did not invoke the grievance procedure. Over a year from the last warning, the employee was placed on probation due in part to the two previous warnings, both of which should have been removed from his file. The employee was also reassigned, and upon committing an error in his new job, was terminated. The majority held that notwithstanding the provisions of the handbook and the promises made by his supervision, the employee was an at-will employee who could be terminated at any time for any reason. Although I agreed that the handbook did not in and of itself create a contract of employment for a definite term, I also believed the employee had shown a promise had been made to him that disciplinary matters would be handled at the lowest level first, that he had relied on the statements of his direct supervisor that the warnings about his job performance would be removed from his file after one year and not considered in any future discipline, and that he relied on those promises to his detriment because he did not engage the grievance procedures available to him after either warning. 860 N.E.2d at 896-97. Although I agreed that the employee could be fired for any proper reason, I believed that firing him based in part on past warnings which he had been told would be removed from his file was an improper basis. Id. at 897; see also McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-94 (Ind.1988) (holding even an employee at will who can be fired for any reason cannot be fired for an improper reason, such as a refusal to break the law in carrying out his duties).

As in McCalment, the City here unilaterally wrote and provided to its employees, including Wynkoop, the Manual which describes disciplinary and grievance procedures. The Manual specifically states that it is not a contract of employment and does not guarantee employment for any specified length of time and it states that an employee may be terminated at any time with or without cause. However, the Manual also includes two levels of rules of conduct, a “progressive disciplinary policy,” and an employee appeal procedure, and states that in the event disciplinary action is taken against an employee, “it will be for just cause and normally in a progressive manner....” App. at 78-81. If the Manual is to mean anything at all, these provisions allowing for progressive discipline and discipline for just cause must be given effect. In an at-will state such as Indiana, an employer is not obligated to furnish to its employees a statement of its employment policies. Having made statements in writing about the terms and conditions of employment, however, it is fundamentally unfair to allow an employer to essentially declare those statements illusory and raise the “employment at will” doctrine as a shield when it is called to task by an employee who can demonstrate detrimental reliance on the employer’s failure to abide by those terms and conditions.

Wynkoop, however, has not demonstrated detrimental reliance on the provisions of the Manual. When he was informed of the disciplinary action against him, he received a hearing as provided by the employee appeal section of the Manual. There is no evidence that he forewent any other available recourse. He was also informed that the recommended discipline was termination. The Manual does provide that disciplinary action could consist of immediate termination, and there is no evidence that in the course of the disciplinary action against Wynkoop he was promised and agreed to any lesser discipline. Thus, regardless of what, if any, rights Wynkoop may have had, he has not shown detrimental reliance on any statements in the Manual and I concur in the result reached by the majority that the trial court properly granted summary judgment in favor of the Town.

      . Wynkoop also sought the issuance of a Writ of Certiorari to Cedar Lake requiring it "to produce the entire record of proceedings regarding the disciplinary process and both hearings regarding [his] employment”; he asked the trial court to enjoin the Town from affecting his employment until the matter could be "resolved at a full and fair hearing before the Court”; and he further asked the court to "review the charging instrument, the Town’s disciplinary hearing procedure and the transcript of evidence to make a full and fair determination as to whether the charges brought against [him] were sufficient, and sufficiently supported by the record of evidence to justify the disciplinary actions taken. ...” (App. at 16-17.)

      . Nonetheless, because after the employee learned the employer would not be honoring its previous promises regarding removal of prior discipline from his file, he did not use the grievance procedures available to him to contest being placed on probation, his reliance became unreasonable, and I concurred with the majority’s decision that his complaint was properly dismissed. Id. at 898.