author: ROBB, Chief Judge. VAIDIK, Judge,

text:
    Faith WILDER-NEWLAND, Appellant-Intervenor, v. April KESSINGER (f/k/a Wilder), Appellee-Petitioner.
    No. 40A01-1109-DR-395.
    Court of Appeals of Indiana.
    May 17, 2012.
    Mark J. Dove, Dove & Dillon, P.C., North Vernon, IN, Attorney for Appellant.
    Jon B. Laramore, Catherine A. Clements, Baker & Daniels LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Faith Wilder-Newland ("Grandmother") appeals the trial court's denial of her petition to establish visitation with her son's children. Grandmother raises three issues which we consolidate and restate as one: whether the trial court clearly erred in denying Grandmother's visitation. Concluding the trial court did not commit clear error, we affirm.

Facts and Procedural History

In 2009, B.W. ("Father") attacked AK. ("Mother") with a knife, stabbing her in the face. After his arrest, Father was granted supervised visitation with his three children, MZ.W., M.E.W., and S.M.W. Grandmother attended those visits. After Father was convicted and sentenced to concurrent sentences of six years for Class C felony battery with a deadly weapon and four years for Class D felony criminal recklessness with a deadly weapon, he no longer had visitation with the children. When Father's visitation ceased, Grandmother filed a petition to establish visitation with her grandchildren.

In April 2010, Mother and Father divoreed. The decree of dissolution granted Mother sole legal and physical custody of the children, established child support, and resolved other issues regarding the children but did not resolve grandparent visitation. One year later, Grandmother filed a second petition to establish visitation with the children.

In July 2011, the trial court held a hearing on Grandmother's petition. Following the hearing, the trial court denied grandparent visitation in an order which included the following findings of fact and conclusions of law:

Findings
13. During the time [Father's] criminal case was pending [Father] was allowed to visit with the children for two or three hours, onee a month.
14. [Grandmother] was allowed to be present during the visits. ...
oak
16. [Grandmother] has not had contact with the children since April, 2011.
#g ok
18. None of the children have ever had extended visits with [Grandmother].
19. [Grandmother] has never had overnight visits with any of the children.
# % #
21. The Court was left with the impression from [Grandmother]'s testimony that she believes that [Mother]'s conduct was the genesis of the attack by [Father].
22. [Mother] voiced concerns about the effects on the children following contact with [Grandmother].
23. [Mother] reported that the children became reserved and "acted out" and without visits they are more "normal".
Conclusions
# ode ok
3. [Mother]'s opposition to Court ordered visitation by [Grandmother] was an exercise by her of her right as a parent to make decisions concerning the custody, care and control of her children and [Grandmother] failed to rebut the presumption that she was acting in her children's best interest....
The Court has concluded that no evidence establishes that [Mother] is an unfit parent. The Court has therefore given special weight to her position to oppose Court ordered visitation. The Court has also determined that [Grandmother] has failed to carry her burden of proof that grandparent visitation is in the children's best interest.

Appellant's App. at 7-9.

Grandmother now appeals. Additional facts will be supplied as appropriate.

Discussion and Decision

I. . Standard of Review

Grandmother's primary argument on appeal is that the trial court erred in denying her court-ordered visitation rather than limiting visitation, as Grandmother believes would have been appropriate and believes to have been Mother's opinion expressed at the hearing. Nevertheless, we review a trial court order granting or denying grandparent visitation under the two-tiered clear error standard described in Indiana Trial Rule 52(A). Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind.Ct.App.2004).

In applying a two-tiered standard of review, we first determine whether the evidence supports the findings and then whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence to support the findings or the findings fail to support the judgment. We do not reweigh the evidence or determine witness credibility. Rather, we consider only the evidence most favorable to the trial court's judgment, with all reasonable inferences drawn in favor of the judgment.

Id. (quotations and citations omitted). Further, we give substantial deference to trial courts in family law matters. Jullie C. v. Andrew C., 924 N.E.2d 1249, 1259 (Ind.Ct.App.2010). Because Grandmother appeals a negative judgment, she must show that the evidence points unerringly to a conclusion different from that reached by the trier of fact, or that the judgment is contrary to law. Nunn v. Nunn, 791 N.E.2d 779, 783 (Ind.Ct.App.2003). This means that even if we might have taken a different course of action than that which a trial court took, we are bound to review the order, and findings and conclusions, for clear error only. Especially here, where the standard of review is clear error, it is a family law case where we give the trial court substantial deference, and the issue is fact-based and one in which the trial court heard testimony and weighed evidence and entered explicit findings thereon, it is our role as an intermediate appellate court to review the record only for errors which we are authorized to rectify.

II. Trial Court Findings and Conclusions

The trial court concluded essentially that denial of grandparent visitation is in the best interest of the children and that Grandmother failed to prove otherwise. Upon reviewing the record in accordance with our standard of review, we conclude that the evidence presented supports the findings and the findings support the conclusions.

Specifically, Mother testified that the children had difficulty adjusting to visitation in the past and answered affirmatively when asked if she was "afraid that if grandparent visitation was granted that they would struggle with that adjustment, yet again[.]" Tr. at 40 (ellipses in original). This supports the trial court's finding that "[Mother] voiced concerns about the effects on the children following contact with [Grandmother]." Appellant's App. at 9.

Mother also testified that she was "not comfortable" with Grandmother exercising extended court-ordered visitation because of potential health risks to the children, the possibility that Grandmother might attempt to reunite the children with Father, and the potential difficulty of the children's adjustment to visitation based on prior incidents of their acting out during and/or after visitation. See Tr. at 34-41. Mother also expressed her concern that Grandmother might facilitate the children's contact with Father by writing letters or calling (either of which could be done even during a short visitation), and that at the time of the hearing Mother did not believe such contact would be in the children's best interest. See id.

Grandmother testified regarding actions by Mother which Grandmother viewed as "what led" Father to commit eriminal acts. Id. at 22. This testimony supports the trial court's statement that it "was left with the impression from [Grandmother]'s testimony that she believes that [Mother]'s conduct was the genesis of the attack by [Father]." Appellant's App. at 8.

The trial court also found that "no evidence establishes that [Mother] is an unfit parent," and "therefore" the trial court gave "special weight to [Mother's] position to oppose Court ordered visitation." Id. at 9.

Finally, Mother also responded in the affirmative when asked if she requests that the trial court "remove [M.E.W.] ... from any possible visitations with grandparents(.]" Tr. at 32-83; see id. at 48 (Mother argued in closing that "if Your Honor ... chooses to grant visitation in this case, that it would be very minimal and certainly not more than, than what the Court granted in, uh ... the divorce decree, with grandparents having visitation, uh, ... once a month only. Uh ... we would ask that the middle child, [M.E.W.], who is not the biological son of [Father] and not the biological grandson of [Grandmother] be exeluded from that. And, uh . and not be involved, period.") (ellipses in original). It is abundantly clear that Mother did not want the trial court to order that Grandmother may have visitation with M.E.W.

Considering only the evidence which supports the judgment and reasonable inferences therefrom, the evidence described above supports the trial court's findings as to visitation with all three children. These findings support the conclusions that "[Grandmother] failed to rebut the presumption that [Mother] was acting in her children's best interest," and, most importantly, "that [Grandmother] has failed to carry her burden of proof that grandparent visitation is in the children's best interest." Id. In other words, Grandmother failed to carry her burden of proof that grandparent visitation is in the best interest of the children, and this failure is sufficient reason to uphold the order denying visitation.

III. Grandparent Visitation

"[If a parent is fit, a trial court is required to give special weight to the parent's decision regarding grandparent visitation.... [TJhis presumption is rebutta-ble and the petitioning grandparent has the burden of rebutting this presumption." Crafton v. Gibson, 752 N.E.2d 78, 98 (Ind.Ct.App.2001). Here, the trial court made an explicit finding that Mother was a fit parent, and accordingly, gave special weight to Mother's decision to deny Grandmother's visitation. Grandmother had the burden to rebut the presumption that Mother was fit, and failed to do so. On appeal Grandmother does not appear to argue that Mother is an unfit parent, but that Mother decided to limit and not deny Grandmother's visitation. This is a request for us to reweigh the evidence presented and enter findings of fact. We will not reweigh the evidence; rather, as stated above, we review the evidence to determine if it supports the trial court's findings.

Indiana Code section 81-17-5-2 provides that the trial court "may grant [grandparent] visitation rights if the court determines that visitation rights are in the best interests of the child." Here, the trial court made an affirmative finding to the contrary, that visitation is not in the best interest of the children. This ultimate conclusion, supported by the evidence and without more, is sufficient to affirm the trial court order.

As a result, it is not dispositive whether the trial court erred in concluding that Mother opposed any and all court-ordered visitation. The dissent takes issue with the previous statement, and contends we are abandoning our commitment to ensure trial courts give special weight to a fit parent's decision regarding grandparent visitation. This contention is incorrect. Rather, a central point of disagreement between the majority and the dissent is how to ascertain what Mother decided. We know that she did not want visitation at all with M.E.W. Tr. at 32-38. Mother expressed various concerns with Grandmother's visitation, at least two of which would not be allayed by limited visitation-preventing contact with Father by telephone or letter-writing, and the children's potential need for emergency healthcare. With these facts in evidence, it is not unreasonable for a trial court to infer that Mother wanted exclusive control over whether or when and how Grandmother would be allowed visitation with the children. Deeming Mother a fit parent, the trial court obliged. Upon reviewing the evidence presented, we conclude the trial court's findings were supported by the evidence and reasonable inferences therefrom.

The dissent argues we should read the record differently, focus on different portions of Mother's testimony (as opposed to those portions that support the trial court's findings or Mother's testimony as a whole and in the context of the entire record), and remand for the trial court to review the record and enter findings completely opposite than it did the first time. We note that in advocating for remand, the dissent does not call for a new hearing-perhaps because Mother has now demonstrated on appeal she does not disagree with the trial court's decision. Dissent at 567-68. Rather, the dissent advocates for remand for the trial court to "reweigh the evidence submitted at the hearing." Id. In other words, the dissent would have the trial court "give weight to Mother's decision to allow visitation," id., and the trial court would be forbidden from reviewing the evidence and finding that Mother opposed all court-ordered visitation.

To more directly address the dissent's concern that we have disregarded in this case that the trial court may have erred in concluding Mother opposed all court-ordered visitation, we state here that a fit parent's decisions are entitled to special weight, per Crafton and other case law, and in that way is entitled to decide the propriety of visitation. The dissent seems concerned that Mother is somewhat disenfranchised or left out of the decision-making process. The order does not preclude visitation; under the trial court's order and this opinion affirming, Mother now has complete discretion and the ability to grant visitation on the terms she decides.

Assuming arguendo the trial court erred in concluding Mother opposed all court-ordered visitation, the fact remains that the trial court's denial of grandparent visitation is rooted in its well-supported conclusion regarding the best interest of the children. Our supreme court has held that "where a trial court has made special findings ... the reviewing court may affirm the judgment on any legal theory supported by the findings." Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.1998). Stated differently, even if the trial court erred in concluding that Mother opposed all court-ordered visitation, the evidence supports the trial court's ultimate conclusion that denial is in the children's best interest, and Indiana Code section 31-17-5-2 only authorizes the trial court to award visitation if it finds doing so is in the children's best interest.

We acknowledge that our court has also held: "once a parent agrees to some visitation, the dispute is no longer over whether the grandparent will have any access to the child, but instead over how often and how much visitation will occur." Crafton, 752 N.E.2d at 96. This holding might become relevant to this case if we were to consider evidence which is not most favorable to the judgment-which we are prohibited from doing and will not do-specifically, portions of Mother's testimony which suggest her intention to limit rather than deny visitation. For example, the dissent contends "[a] careful review of the fifty-one-page transcript of the hearing on this issue shows that the dispute between the parties was not over access to the children, but instead over how often and how much visitation would occur." Dissent at 566.

In our review of 'the transcript, it appears Mother expressed frustration as to the change in family dynamics with the children now living without Father and an understanding that the children had difficulty adjusting to visitation with Father and Grandmother when it occurred. Mother did not express exactly what degree of visitation she preferred, if at all, but she did testify extensively regarding her concerns. And while the dissent notes that "Mother represented no less than four times that she did not oppose visitation," id., she also testified explicitly that she did not want Grandmother to have any visitation with M.E.W. Taking a big-picture view of the proceedings and Mother's testimony as a whole, it would not have been unreasonable for the trial court to infer that Mother would like to decide the nature and amount of visitation on her own. While this preference might be the norm, it is significant that the trial court found Mother to be a fit parent, and as a result, gave her opinion special weight and presumed she acted in the best interest of the children. Agreeing that Mother's determination of the nature and amount of visitation is in the best interest of the children, the trial court decided to not require visitation at all.

Again, even if we were to consider evidence which does not support the judgment, the following statement from Crafton does not warrant we reverse or remand this case: "once a parent agrees to some visitation, the dispute is no longer over whether the grandparent will have any access to the child, but instead over how often and how much visitation will occur." 752 N.E.2d at 96. The dissent reads this portion of Craf-ton to suggest that onee a fit parent expresses his or her willingness to allow some grandparent visitation, the trial court's role immediately changes from determining whether visitation would be appropriate to determining the scope and logistics of visitation which it must order. Our case law does not bind trial courts in this manner or to this degree. Rather, with special reference to Crof-ton, we have explained:

Acting under [the presumption that a fit parent's decision is in the best interest of the child], courts must give special weight to a parent's decision to deny or limit visitation. Second, a court should give some weight to the fact that a parent has agreed to some visitation. Still, while we must presume, under Troxel, that a fit parent's decision regarding visitation is in the child's best interests, that presumption is rebutta-ble.. Thus, a grandparent seeking visitation has the burden of rebutting the presumption that a decision made by a fit parent to deny or limit visitation was made in the child's best interest.

Spaulding v. Williams, 793 N.E.2d 252, 258 (Ind.Ct.App.2008) (citations and internal quotations omitted).

Our case law and the presumption which Spaulding explains provide helpful guidance to a trial court in making this decision by flagging considerations for a trial court to give "special" and "some" weight. Id. Based on Spaulding and other case law, we conclude that it is ultimately the trial court which determines whether visitation is in the best interest of the children-the grandparent bears the burden to prove that visitation is in the best interest of the child and the trial court is the ultimate arbiter of the facts.

Here, the trial court made an explicit finding that Grandmother failed to meet her burden. We will not substitute our judgment for that of the trial court. It is not the role of our court to reverse and remand this case to force the trial court to enter an order specifying the frequency of visitation when it determined that none at all would be in the best interest of the children. Regardless of whether portions of Mother's testimony suggest it was her intention to deny visitation in total, deny the nature and extent of visitation Grandmother sought, or to allow some unspecified type or amount of visitation, the trial court found that Grandmother failed to meet her burden to prove that what Mother sought was not in the best interest of the children, and as a result concluded that Mother had the right to make that decision.

Contrary to the dissent's strenuous argument, our decision to affirm because evidence supports the trial court's finding that no visitation is in the best interest of the children does not render meaningless case law holding that a trial court must give special weight to a fit parent's decision regarding grandparent visitation. The trial court has entered a finding as to what Mother's decision was, we deem that finding supported by the evidence, and that finding supports the trial court's ultimate conclusion. And further, Grandmother is not entitled to the presumption; the presumption is provided for the benefit of Mother and she received that benefit here. Grandmother bore the burden to prove that visitation is in the best interest of the children and failed to do so.

In sum, our disagreement with the dissenting opinion in this case is a fundamentally different understanding of the standard of review. We believe we are abiding by well-established legal principles explained above. Our approach under the clear error standard of review also properly defers to trial court judges who come face-to-face with the parties and are in a better position than us to evaluate witnesses' sincerity, veracity, and intentions by hearing variations in speech, observing body language, and in other ways.

But at the same time, we do not take our principled approach in a vacuum. Here, our principled approach is also supported by the trial court's finding of what is in the best interest of the children, which is the paramount concern in all family law cases. We do not believe this deference to be avoidance of an issue because, especially in this case, the trial court's resolution of the matter still allows Mother-a fit parent who the trial court and we presume to make decisions in the best interest of the children-to allow visitation if and how she sees fit.

Conclusion

In abiding by our standard of review and Indiana substantive family law which focuses on the children's best interest and places the burden to prove that visitation is appropriate with the grandparent, we are compelled to affirm the trial court order declining grandparent visitation where it ultimately concluded that doing so was in the children's best interest and consistent with Mother's decision, and that Grandmother failed to satisfy her burden of proof. Therefore, we affirm.

Affirmed.

NAJAM, J., concurs.

VAIDIK, J., dissents with separate opinion.

VAIDIK, Judge,

dissenting.

A fit parent's decision to allow her children to visit with their grandparents is entitled to be given weight by a trial court when it decides whether grandparent visitation is in the best interest of the grandchildren. Because the majority renders this well-established legal principle meaningless, I respectfully disagree with my colleagues.

Grandmother, a high school English teacher, has the misfortune of being the mother of a son who committed atrocities against her grandchildren's Mother. Her son's conduct landed him in prison. Grandmother consequently desired to continue her relationship with her grandehil-dren, and to that end, she filed a petition with the trial court requesting visitation with her grandchildren. Mother did not oppose visitation. Instead, Mother sought only to limit visitation with Grandmother. The trial court, in its findings denying all grandparent visitation, concluded that Mother opposed court-ordered visitation. The evidence does not support this finding.

A careful review of the fifty-one-page transcript of the hearing on this issue shows that the dispute between the parties was not over access to the children, but instead over how often and how much visitation would occur. For example, during her testimony, Mother stated, "I am comfortable with [Grandmother] having visitation now, but I am not comfortable with the overnights and the week away and stuff ... I'm not comfortable with that at all." Tr. p. 34 (ellipses in original). When asked if Mother was asking the court to limit visitation between Grandmother and the children, Mother said yes. Id. Mother later reiterated, "And like I said before, I don't have a problem with visitation but I do not want overnights ... especially initially." Id. at 40 (ellipses in original). To cap the proceedings, in closing argument, Mother's counsel argued that "[Mother] is not asking that [the children] are precluded from seeing their grandmother ... she is just asking that it be very limited." Id. at 47 (ellipses in original).

Despite all evidence to the contrary, in its findings of fact entered two months after the hearing, the court concluded that Mother opposed visitation. This finding was clearly erroneous. Because Mother represented no less than four times that she did not oppose visitation, the evidence does not support the trial court's finding to that effect.

This was not the only error the trial court committed, however. The trial court afforded "special weight" to Mother's supposed opposition to visitation. Appellant's App. p. 9. In doing so, the court recognized that Mother was a fit parent, and that as a fit parent, Mother was exercising "her right as a parent to make decisions concerning the custody, care[,] and control of her children...." Id. Yet, Mother's decision was not to eliminate visitation but to limit it. As a result of this series of errors, Mother, an undisputedly fit parent, made a decision to permit limited visitation, which was disregarded. This was clear error in light of our historic deference to the decisions made by fit parents regarding the upbringing of their children.

The majority contends that it is "not dispositive whether the trial court erred in concluding that Mother opposed any and all court-ordered visitation." Op. at 562. Their reasoning continues that there is other evidence besides Mother's alleged opposition to visitation that supports the trial court's conclusion that no visitation is in the best interest of the children, and on that basis, they conclude that this court must affirm. I disagree because to do so renders meaningless our case law that holds that a trial court must give consideration to a fit parent's decision to allow grandparent visitation.

It is well settled that when determining a child's best interest under Indiana's Grandparent Visitation Statute, courts are to presume that a fit parent's decision is in the child's best interest. Crafton v. Gibson, 752 N.E.2d 78, 96 (Ind.Ct.App.2001) (citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). When a parent agrees to some visitation, a trial court should afford some weight to that fact. Id. at 97. Here, Mother clearly stated that she did not oppose limited visitation between Grandmother and the children. See Tr. p. 34, 40, 47. Because Mother is a fit parent, the trial court was to presume that this decision was in the children's best interest. Grandmother did not receive the benefit of that presumption; instead, the trial court gave special weight to the erroneous conclusion that Mother opposed all visitation.

I understand the majority's position that we give substantial deference to a trial court's discretion in family-law matters. But the trial court does not have the dis-eretion to be wrong, and here the court was clearly wrong regarding a pivotal finding, which it then gave special weight to in eliminating Grandmother's visitation completely. If we ignore this error as irrelevant, then we throw out the concept that a fit parent's decision is entitled to special weight by the trial court in making grandparent-visitation decisions. I am not willing to do that.

Grandparents do not have a constitutionally recognized interest in visiting with their grandchildren. In re Visitation of C.L.H., 908 N.E.2d 320, 327 (Ind.Ct.App.2009) (citing Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind.Ct.App.1999)). However, our legislature recognized in drafting our Grandparent Visitation Statute that a child's best interest is often served by developing and continuing contact with his or her grandparents. Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind.Ct.App.2004) (citing Swartz, 720 N.E.2d at 1221). "Grandparents are members of the extended family whom society recognizes as playing an important role in the lives of their grandchildren, the importance of which has been given added meaning by the legislature's policy judgment underlying the Act." Id. A parent's decision regarding visitation, cloaked with the presumption of appropriateness, should be further protected when that decision allows visitation and fosters the relationship between grandparent and grandehild.

We are a court of review that reviews errors. A fair reading of this record shows an error. Because the trial court erred in making a finding that our court has determined deserves weight, I would reverse the order and remand to the trial court for the court to reweigh the evidence submitted at the hearing. In doing so, the trial court must give weight to Mother's decision to allow visitation.

      . The record suggests M.E.W. is not Father's biological child. Appellant's Appendix at 8; Transcript at 8. The trial court noted no issue related to this fact was litigated, and therefore it treated MEW. as Father's child and Grandmother's grandchild for purposes of determining visitation.

      . Grandmother filed this petition as part of Mother and Father's dissolution action. Although Grandmother did not move to intervene, the issue of visitation had been litigated within the confines of the dissolution action until the July 2011 hearing. The trial court therefore concluded that any procedural error was waived. Tr. at 3-4.

      . Visitation with M.E.W. was apparently singled out for further discussion because M.E.W. is not the biological child of Father.
      We note that closing arguments are not evidence. Perkins v. State, 483 N.E.2d 1379, 1387 (Ind.1985); see Bass v. State, 947 N.E.2d 456 (Ind.Ct.App.2011) (noting a jury was instructed that the State's improper closing arguments do not constitute evidence, and concluding that the partial impropriety of the closing argument did not amount to fundamental error), trans. denied. We point out this portion of Mother's closing argument in response to the dissent's reference to a different portion of the closing argument, in which Mother asks that visitation with "the children" be very limited and not totally eliminated. Dissent at 566. Mother's trial counsel made several arguments in closing-one of which was that Mother wanted only limited visitation, another of which was that Mother did not want any visitation, another of which was that Mother especially did not want visitation with M.E.W., and another of which may be summarized as Mother's view that she should determine the degree of visitation, if any, because she knows the best interest of her children. See Tr. at 47-48. Mother made several alternative arguments at trial, each of which might be supported by different portions of her testimony. Per our standard of review, we determine only whether evidence supports the findings and the findings support the judgment. In any event, even if Mother clearly stated in closing that she wished for limited and not denial of visitation and made no alternative argument, a closing argument is not evidence.

      . As noted several times, such a conclusion can only be reached by considering evidence which is not most favorable to the trial court's judgment. Cf. Megyese, 808 N.E.2d at 1213 (stating that we consider only the evidence most favorable to the trial court's judgment and draw all reasonable inferences in favor of the judgment).

      . If Mother truly does intend to allow Grandmother limited visitation, she does not need a court order to do so. Mother is free to allow visitation on her own terms without a court order.

      . Our supreme court has made the following comments regarding why abiding by the standard of review in family law cases is especially important:
      It is certainly true that appellate courts give considerable deference to the findings of the trial court in family law matters.... Whether the standard of review is phrased as "abuse of discretion" or "clear error," this deference is a reflection, first and foremost, that the trial judge is in the best position to judge the facts, to get a feel for the family dynamics, to get a sense of the parents and their relationship with their children-the kind of qualities that appellate courts would be in a difficult position to assess. Hon. Denise R. Johnson, Address at the 2004 Appellate Judges Summit (Nov. 13, 2004). Secondly, appeals that change the results below are especially disruptive in the family law setting. Id. And third, the particularly high degree of discretion afforded trial courts in the family law setting is likely also attributable in part to the "fluid" standards for deciding issues in family law cases that prevailed for many years. Id. (citing Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 175 (1978)).
      MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41 (Ind.2005) (footnote omitted).
      Although the dissent characterizes our approach and our supreme court's approach in MacLafferty as providing the trial court with "discretion to be wrong," dissent at 567, "wrong" is subjective, and our standard of review provides a methodical process for determining when a decision actually is "wrong." The trial court's decision is not "wrong" simply because the dissent reads the record differently. It would be "wrong" if it was not supported by the evidence or consistent with substantive family law. Here the findings are supported by the evidence, and the decision is consistent with substantive law, of which the primary concern is the best interest of the children.

      . We note Mother's position on appeal that the trial court did not err. Protracted legal battles that reach the appellate level often result in changed minds. Nonetheless, at the hearing, Mother clearly stated that she would permit visitation, and we cannot allow the legal system to be an impediment to the relationship between Grandmother and her grandchildren. Furthermore, Mother's claim now that she will in the future allow visitation without a court order is gratuitous.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Dante ADAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 15A01-1110-MI-537.
    Court of Appeals of Indiana.
    May 21, 2012.

      Robert W. Hammerle, Indianapolis, IN, Joseph M. Cleary, Collignon & Dietrick, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Dante Adams appeals the trial court's order transferring $25,000 in cash seized from Adams to federal authorities. Adams raises a single issue for our review, namely, whether the trial court properly ordered the State to transfer the money to federal authorities. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 18, 2011, Adams visited the Hollywood Casino in Lawrenceburg. There, he sought to exchange 969 $20 bills, 52 $10 bills, and 20 $5 bills for 200 $100 bills (an exchange of $20,000). During the attempted exchange, Adams became argumentative with the teller. He then proffered an Arizona driver's license when signing his taxpayer ID form, though he had told the teller his address was in Indianapolis.

Curiosity sparked, agents of the Indiana Gaming Commission approached Adams and questioned his identity. The agents ran a warrant check and discovered that the State of Texas had issued a parole warrant for Adams. The agents then took Adams into custody and informed the Lawrenceburg Police Department.

Shortly thereafter, Lawrenceburg Police Officer Jacob Jump arrived at the casino with a K-9 unit named "Newby." Appellant's Br. at 3. While being escorted out of the casino, Adams requested that his car keys be given to a friend inside the casino. Adams then became argumentative with Officer Jump and the gaming agents over which car was his. Adams' attitude "regarding such a trivial question raised suspicion regarding the contents of the car." Appellant's App. at 17. As such, upon finally identifying Adams' car Officer Jump had Newby do a sniff search of the vehicle. Newby gave a positive respdnse that nar-cotiecs were or had recently been present inside Adams' vehicle.

Officer Jump had Adams' car towed to the Lawrenceburg Police Department while he obtained a search warrant for the car. After he received the warrant, Officer Jump searched the car and seized $5,000 in cash, which had been placed inside a "Cheesecake Factory" sack in the trunk. Officer Jump also discovered a prepaid cell phone, a prepaid "boost" phone, two suitcases, two bags of snack foods, and a case of bottled water. Id. at 11. Based on his training and experience, Officer Jump knew that "subjects who possess and/or traffic in narcotics will have one or more prepaid cell phones along with snacks/food and luggage inside the vehi-ele," to say nothing of the $5,000 in cash. Id. Officer Jump had Newby separately sniff the cash inside the Cheesecake Factory sack, and Newby gave another positive response.

On June 28, the State filed a motion for transfer of property in the trial court. The State did not serve a copy of its motion on Adams. In its motion, the State asked the trial court to transfer the seized $25,000 to the United States Drug Enforcement Administration ("DEA") "for the purpose of commencement of forfeiture proceedings." Id. at 7. The trial court granted the State's motion on the same day. Thereafter, Adams, by counsel, filed a motion to set aside the transfer order. The court held a hearing on Adams' motion on August 26 and denied his motion on September 26. This appeal ensued.

DISCUSSION AND DECISION

We first address the State's contention that "this appeal should be dismissed" because "[tlhere is no discretion by the trial court to deny a motion [to transfer] made by a prosecutor." Appellee's Br. at 4. Rather, the State continues, the relevant statutory language invokes the mandatory term "shall" when instructing the trial court to order a transfer of property upon the motion of the prosecutor. Id.

The State's argument for dismissal is perplexing. As our supreme court recently stated:

The statute authorizing the turnover of seized property provides:
Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 16162, or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.
Ind.Code § 85-33-5-5(Jj) (2004). The State argues that the language of the turnover statute is mandatory in that "the court shall" order the transfer of property to federal authorities [The appellant] responds that the statute by its terms applies only if the property has been "seized under Indiana code chapter 34-24-1." Indiana Code section 34-24-1-2(a) provides:
Property may be seized under this chapter by a law enforcement officer only if:
(1) the seizure is incident to a lawful:
(A) arrest;
(B) search; or
(C) administrative inspection[.]
We agree with the trial court and the Court of Appeals that if the search or seizure of [the appellant's] property was unlawful, the turnover order must be reversed. The statute contemplates a lawful search, and the purpose of the exclusionary rule would be thwarted if law enforcement could conduct unlawful intrusions into citizens' privacy and still use the evidence by turning it over to another jurisdiction.

Membres v. State, 889 N.E.2d 265, 268-69 (Ind.2008) (second alteration original).

Accordingly, the propriety of a transfer order under Indiana Code Section 35-83-5-5(J) is dependent on the lawfulness of the search that led to the State obtaining the property in question. And the defendant has the right to challenge the lawfulness of the search prior to the court's granting of a motion to transfer, as demonstrated in Membres. Thus, we will not dismiss this appeal but will instead consider the merits of Adams' claims.

On the merits, we first address Adams' contention that he was entitled to notice of the State's motion to transfer. Specifically, Adams claims that his lack of notice of the motion violated Indiana Code Sections 34-24-1-3 and -4, which expressly require adherence to the Indiana Rules of Trial Procedure before a prosecutor finally disposes of seized property. On this specific question, we agree with the State's response that Adams has confused our forfeiture statutes with the turnover statute. We are not (yet) concerned with the forfeiture of the $25,000 and, therefore, Adams' argument is misplaced.

That said, we are also not persuaded by the State's argument that Adams was not entitled to notice of its motion. In support of its position that notice was not required, the State recognizes that the turnover statute merely instructs the court, upon a prosecutor's request to transfer lawfully seized property, to order the transfer. See I.C. § 35-33-5-5(j). As stated by the United States District Court for the Southern District of Indiana, the "law does not provide for such notice and hearing before the transfer. The state statutes ... simply require the state court to grant such motions...." United States v. $75,863.50 U.S. Currency, 2009 WL 1951800 at *2 (S.D.Ind.2009) (emphasis original). The district court has further concluded that a state court's transfer order "merely change[s] the forum and ... federal forfeiture proceedings [will] provide ample procedural protections before there [is] any final deprivation of the claimed property." Id. at *3 (discussing Martin v. Ind. State Police 537 F.Supp.2d 974, 987-89 (S.D.Ind.2008)).

Nevertheless, in Membres our supreme court held that the turnover statute "contemplates a lawful search" and, if the underlying search or seizure is unlawful, "the turnover order must be reversed." 889 N.E.2d at 269. Thus, the lawfulness of a search underlying a transfer request is a legitimate question for a defendant to raise before the transfer occurs. Such a challenge requires the State to first give the defendant notice of the transfer request. To permit otherwise would "thwart[ ]" the statutory protection against the transfer of unlawfully obtained property. Id.

This conclusion is also required by our trial rules. As Rule 1 of our Rules of Trial Procedure states, "[elxcept as otherwise provided, these rules govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature...." And Rule 5(A)(8) requires "each party ... [to] be served with ... every written motion except one which may be heard ex parte." The State rightly does not suggest that the cireumstances underlying its motion to transfer are within the "very few and rare" circumstances in which the law would permit a "disfavor[ed] ... ex parte court action without notice." Indianapolis Mach. Co. v. Curd, 247 Ind. 657, 666, 221 N.E.2d 340, 346 (Ind.1966); see, e.g., TeWalt v. TeWalt, 421 N.E.2d 415, 420 (Ind.Ct.App.1981) (permitting ex parte action when a party "had fled the jurisdiction and was concealing her whereabouts"). Thus, the State's arguments on appeal that it was not required to give Adams notice of its motion to transfer are not well taken.

But not all errors are reversible errors. It is well-established that an error based on a lack of notice is subject to the harmless error doctrine, which requires the appellant to demonstrate prejudice as a result of the lack of notice. See, e.g., TeWalt, 421 N.E.2d at 420. Here, Adams contends that he has been prejudiced by the transfer order because the underlying search had no "nexus between [the cash] and the ... offense." Appellant's Br. at 8. We cannot agree.

Adams' argument that the transfer is unlawful because there is no "nexus" between the property and the offense misstates the test set forth in Membres. Again, according to our supreme court, we need only consider the lawfulness of the search itself, and that question, in turn, requires an assessment of the probable cause for the search. See U.S. Const. amend. IV; Ind. Const. Art. I, See. 11; see, e.g., Daugherty v. State, 957 N.E.2d 676, 680-81 (Ind.Ct.App.2011).

Here, there is no serious question that the facts underlying the search of Adams' car and the seizure of his cash were supported by probable cause and were, therefore, lawful. Indeed, this otherwise centerpiece argument seems so indisputable that Adams' attorneys instead focus their appellate arguments on the fact that "Indiana's forfeiture statute requires the State to demonstrate a nexus between the property sought by the State in the forfeiture and the underlying drug offense." Appellant's Br. at 3. That is all well and good, see, e.g., Serrano v. State, 946 N.E.2d 1139, 1148 (Ind.2011), but, as the State correctly notes in its brief, this case does not involve Indiana's forfeiture statutes. -It involves the turnover statute and, as described in Membres, that statute requires consideration only of the lawfulness of the seizure. The lawfulness of a seizure, in turn, is dependent on probable cause, which is not disputed in this appeal. Accordingly, Adams cannot demonstrate that he was prejudiced by the trial court's transfer order, and we affirm that order.

Affirmed.

RILEY, J., and DARDEN, J., concur.

      . As Judge Hamilton has noted for the United States District Court for the Southern District of Indiana:
      When ... officers seize more than $10,000 in U.S. currency, they have the option to take the money either to an Indiana county prosecutor or to one of several federal agencies.... Under federal forfeiture proceedings, [the Indiana State Police] would receive eighty percent of the seized funds. In a state forfeiture proceeding, by contrast, ISP would be reimbursed for its expenditures, but the remainder of the money would be distributed among the county prosecutor's office, a teacher's [sic] fund, and other State entities.
      Martin v. Ind. State Police, 537 F.Supp.2d 974, 977 (S.D.Ind.2008) (footnote and citations omitted).

      . We note that both of Adams' attorneys were the attorneys of record in Membres. yet that controlling authority is not cited in any of the briefs on appeal.

      . Adams also claims that he was denied procedural due process under the state and federal constitutions. "It is commonly understood that procedural due process includes notice and an opportunity to be heard." Jones v. Hous. Auth. of City of S. Bend, 915 N.E.2d 490, 497 (Ind.Ct.App.2009), trans. denied. Any constitutional error in the lack of notice was cured by the trial court's consideration of Adams' motion to set aside the transfer order and this court's consideration of his claims on the merits. See id. ("Jones has been provided a full opportunity to present his defenses ..., first through the trial court, and now before us on appeal. Therefore, ... Jones has failed to demonstrate how he was prejudiced by the procedural due process error."). -


author: SHARPNACK, Senior Judge.

text:
    Willie HUGULEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1105-CR-413.
    Court of Appeals of Indiana.
    May 23, 2012.

      Mark Small, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHARPNACK, Senior Judge.

Willie Huguley is attempting to revive his original appeal and appeal the denial of his petition for postconviction relief. We conclude that Huguley cannot receive belated appellate review of the denial of post-conviction relief, but we remand to the trial court to determine whether he has been without fault and diligent in pursuit of his original appeal.

In 1999, Huguley was convicted of two counts of child molesting, both as Class A felonies, and of a third charge of child molesting as a Class C felony. Ind.Code § 35-42-4-3 (1996). His counsel timely initiated an appeal to this Court, indicating in the Notice of Appeal that the anticipated issues on appeal were insufficiency of the evidence and ineffective assistance of trial counsel. On February 15, 2000, Hu-guley, by counsel, petitioned this Court to terminate the appeal and remand the cause to the trial court to allow Huguley to seek postconviction relief and litigate the issue of ineffective assistance of trial counsel. The petition was granted by this Court, terminating the appeal and remanding to the trial court.

Huguley's counsel did file his petition for postconviction relief on April 12, 2002. The trial court, after a hearing on the petition, entered findings and conclusions of law denying postconviction relief on February 7, 2008. From the record, it appears that no Notice of Appeal was ever filed to initiate an appeal from the denial of postconviction relief.

On May 3, 2011, Huguley's present counsel filed an appearance and Petition for Belated Perfection of Appeal ("Petition") here under 49A05-9911-CR-504 ("CR-504"), the original appeal cause. After some administrative shuffling, the current cause 49A02-1105-CR-413 ("CR-413") was opened, and the case has continued on that docket. On October 11, 2011, the motions panel granted Huguley's Petition and directed transfer of all filings from CR-504 to CR-413. Next, Huguley, through counsel, tendered a Verified Motion to Temporarily Stay and Remand to Trial Court. The motions panel ordered that motion to be held in abeyance to be ruled on by the writing panel. Thereafter briefing was completed and the tendered motion is before us.

In the Petition for Belated Perfection of Appeal, Huguley asserted that he had been unaware that his petition for postcon-viction relief had been denied or that no Notice of Appeal had been filed. Further, he asserted that he was without sufficient legal or factual knowledge to know what had transpired in his case or how to proceed. The failure to file a Notice of Appeal or a motion to otherwise reinstate his direct appeal, he alleges, was not his; and he has been diligent to determine why his appeal was not pursued, to obtain counsel, and to request permission to pursue a belated appeal.

Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Halton v. State, 626 N.E.2d 442 (Ind.1993), establish and recognize that during the pendency of an appeal from a conviction, a defendant may have issues which could be the basis for postconviction relief in addition to the issues raised on appeal. In such a cireum-stance, on request, the appellate court may terminate the appeal and grant remand so the petition for postconviction relief can be heard. If postconviction relief is granted, the issues originally on appeal may be mooted and no further appeal is necessary. If postconviction relief is denied, an appeal may be taken from the denial and the issues originally raised on appeal may be added to the postconviction appeal. See Hatton, 626 N.E.2d at 442.

In this case, an appeal from the denial of postconviction relief was not initiated by the filing of a Notice of Appeal. Huguley may not turn to Indiana Postcon-viction Rule 2(1) to seek leave to file a belated Notice of Appeal because Postcon-viction Rule 2 does not apply to appeals from postconviction proceedings. See Taylor v. State, 939 N.E.2d 1132, 1135 (Ind.Ct.App.2011) (citing Greer v. State, 685 N.E.2d 700, 703 (Ind.1997)). It also appears that Huguley may not seek belated perfection of the postconviction appeal under Indiana Postconviction Rule 2(8) because, again, the appeal would be from a postconviction proceeding and, like Post-conviction Rule 2(1), Postconviction Rule 2(8) would not apply, because no timely Notice of Appeal was filed as required by Postconviction Rule 2(8)(a). As things stand, there is no appeal available from the denial of Huguley's petition for postconvietion relief.

However, there remains the matter of "revival" of the original appeal which was terminated to permit the posteconvietion process to go forward. Review of this issue requires us to examine Indiana Post-conviction Rule 2(8), which provides:

An eligible defendant convicted after a trial or plea of guilty may petition the appellate tribunal for permission to pursue a belated appeal of the conviction or sentence if:
(a) the defendant filed a timely notice of appeal;
(b) no appeal was perfected for the defendant or the appeal was dismissed for failing to take a necessary step to pursue the appeal;
(c) the failure to perfect the appeal or take the necessary step was not due to the fault of the defendant; and
(d) the defendant has been diligent in requesting permission to pursue a belated appeal.

In this case, the original appeal was timely initiated, satisfying Postconvietion Rule 2(8)(a). Although the present case may not precisely fit Rule 2(8)(b), it is clear that there was failure to take a necessary step to pursue the appeal. That is, Huguley did not pursue the appeal of the postconviction judgment, which was a necessary step to bring forward the issues from the original appeal. We think the requirement of Rule 2(8)(b) has been met.

That brings us to the requirements of Postconviction Rule 2(38)(c) and (d). Hugu-ley must demonstrate that the failure to perfect the appeal from the postconviction denial was not due to his fault. Huguley must also demonstrate that he has been diligent in requesting permission to pursue a belated appeal.

Huguley contends that he has met the burden by these statements under the penalty of perjury:

18. Mr, Huguley's direct appeal was terminated on motion by his counsel, who had sought a stay of the direct appeal.
19. Mr. Huguley was unaware his PCR was denied by the Marion Superior Court or that no Notice of Appeal was filed with the Marion Superior Court.
20. The filing of a Notice of Appeal or a motion to otherwise reinstate his direct appeal was the necessary step to take to pursue his direct appeal, but Mr. Huguley was without sufficient legal or factual knowledge to know what had transpired in his case or how to proceed in his case.
21. The failure to take the steps described in paragraph 20 was not Mr. Huguley's as Mr. Huguley would have taken whatever steps were necessary to reinstate and pursue his direct appeal.
22. Mr. Huguley has been diligent in trying to determine why his appeal was not pursued, in securing post-conviction counsel, and in otherwise requesting permission to pursue a belated appeal.

Appellant's App. pp. 54-55. The State contends that such conclusory assertions are insufficient to show diligence and lack of fault.

Huguley's assertions are not in themselves sufficient to carry his burden, but they are sufficient for us to allow him an opportunity to make a factual case to support the allegations. We grant Huguley's Verified Motion to Temporarily Stay and Remand to Trial Court in part. We terminate this appeal and remand this cause to the trial court to determine whether or not Huguley's failure to pursue the appeal of the postconviction judgment was his fault and whether or not Huguley has been diligent. If the trial court finds favorably, he may return to this Court and continue the appeal of his case as originally initiated. There. can be no appeal of the post-conviction denial.

Remanded.

BAILEY, J., and CRONE, J., concur.


author: MATHIAS, Judge.

text:
    E. Paul HASTE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 03A01-1108-CR-369.
    Court of Appeals of Indiana.
    May 25, 2012.
    ~ Aaron J. Edwards, Columbus, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

E. Paul Haste ("Haste") appeals his conviction and sentence for Class B felony dealing in methamphetamine. Concluding that the order from which Haste appeals is not a final judgment, we dismiss this appeal sua sponte.

Facts and Procedural History

Haste was convicted of Class B felony dealing in methamphetamine on July 21, 2011. A sentencing hearing was held on August 17, 2011, at which the State presented evidence concerning the damage Haste's methamphetamine manufacturing activity had caused to his landlord's home and asked the trial court to enter a restitution order in the amount of $90,000. On the same date, the trial court issued an order sentencing Haste to a ten-year executed sentence and indicating that the court was taking the issue of restitution under advisement. On August 23, 2011, before the trial court entered any order addressing the issue of restitution, Haste filed his notice of appeal. The trial court clerk filed the Notice of Completion of Clerk's Record on the same date. This appeal ensued.

Discussion and Decision

This court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A). Whether an order is a final judgment governs this court's subject matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003). The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte. Id.

Pursuant to Indiana Appellate Rule 2(H)(1), a "final judgment" is one which "disposes of all claims as to all parties([.]" In a criminal matter, sentencing is a final judgment. Terrell v. State, 180 Ind.App. 634, 636, 390 N.E.2d 208, 209 (1979). This court has held that the requirement that a defendant pay restitution is as much a part of a eriminal sentence as any fine or other penalty. Wilson v. State, 688 N.E.2d 1293, 1295 (Ind.Ct.App.1997) (citing Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995), trans. denied.). Because the trial court specifically stated in its August 17, 2011 sentencing order that it was taking the restitution issue under advisement, that order did not completely dispose of all sentencing issues. gust 17, 2011 sentencing order from which Haste appeals is not an appealable final judgment, and we must dismiss this appeal. Accordingly, the Au-,

We note that Haste has included in his Appellant's Appendix a document purporting to be a restitution order entered by the trial court on October 24, 2011. However, because the Notice of Completion of Clerk's Record was filed on August 23, 2011, over two months prior to the date reflected on the document, it is apparent that the purported restitution order was never made part of the record on appeal. Accordingly, the order is not properly before us and we will not consider it. See R.R.F. v. L.L.F., 956 N.E.2d 1135, 1142 n. 4 (Ind.Ct.App.2011) (noting that this court cannot consider matters outside the ree-ord). Nevertheless, we note that if the document is what it purports to be, then the trial court's judgment became final on October 24, 2011, the date the order was issued.

Indiana Appellate Rule 9(A)(1) provides that "[a] party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (80) days after the entry of a Final Judgment." The timely filing of a notice of appeal is a jurisdiction al prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal. State v. Hunter, 904 N.E.2d 371, 373 (Ind.Ct.App.2009); App. R. 9(A)(5). Assuming that Haste did not file another notice of appeal within thirty days of the entry of the October 24, 2011 restitution order, it would appear that he has missed the deadline for filing a direct appeal of his conviction and sentence. However, it also seems apparent that Haste's conduct might qualify him to file a petition for permission to file a belated notice of appeal under Post-Conviction Rule 2. ‘

Dismissed.

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


author: DAVID, Justice.

text:
    Mickey CUNDIFF, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 31S05-1108-CR-512.
    Supreme Court of Indiana.
    May 31, 2012.
    Bart M. Betteau, New Albany, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 31A05-1008-CR-607

DAVID, Justice.

In this case, the State filed charges against the defendant, and after a brief period of incarceration, the defendant was released. Shortly after his release, the defendant was again incarcerated but on a probation-revocation case. While he was incarcerated on the probation-revocation case, the defendant filed a Criminal Rule 4(B) motion, requesting a speedy trial on the pending charges.

The trial court denied the motion. We affirm, holding that Criminal Rule 4(B) is available to a defendant only when the defendant is held on the pending charges for which he requests a speedy trial.

Facts and Procedural History

On December 19, 2009, a police officer pulled over Mickey Cundiff in Harrison County, Indiana. After Cundiff consented to a certified breath test, the officer transported him to the county sheriff's department. The breath test revealed that Cun-diff had a blood alcohol content of .12. On December 21, 2009, the trial court found probable cause for Mickey Cundiffs arrest, and the following day, the State charged Cundiff with one felony and three misdemeanor operating-while-intoxicated offenses (Cause FD-889). Cundiff posted bond and was released from incarceration on Cause FD-899 on January 11, 2010.

After this release and before March 15, 2010, Cundiff was incarcerated on a probation-revocation case (Cause FD-190). On March 15, 2010, Cundiff filed a motion for a speedy trial in Cause FD-899, relying on Indiana Criminal Rule 4(B).

At some point, Cundiff filed a motion for discharge in Cause FD-899. That motion was not included in the record; however, the State filed its opposition to Cundiffs motion for discharge on June 25, 2010. Among other things, the State argued that discharge was improper because Cundiff was not being held on Cause FD-899 and, thus, his motion was "moot."

On July 22, 2010, the trial court held a hearing on Cundiffs motion to discharge. On August 26, 2010, the trial court denied the motion and also held a bench trial in Cause FD-899. The trial court found Cundiff guilty of Class D felony operating a vehicle while intoxicated.

Cundiff appealed the trial court's denial of his motion for discharge, and the Court of Appeals affirmed the trial court. Cundiff v. State, 950 N.E.2d 1279, 1288 (Ind.Ct.App.2011). We granted transfer.

Standard of Review

The speedy-trial issue today involves a pure question of law; accordingly, the appropriate standard of review is de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997).

Indiana Criminal Rule 4(B)

Both the U.S. and Indiana Constitutions protect the right of an accused to a speedy trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 12. The speedy-trial right is a " 'fundamental principle of constitutional law' " that has been zealously guarded by our courts. Clark v. State, 659 N.E.2d 548, 551 (Ind.1995) (quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572 (1957).

Indiana Criminal Rule 4 generally implements the constitutional right of an accused to a speedy trial. Bridwell v. State, 659 N.E.2d 552, 553 (Ind.1995). Subsection (B) of the Rule is at issue, and it provides, in part, that "Jf any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion." Ind.Crim. Rule 4(B)(1). The Rule continues by listing conditions that excuse a failure to bring an accused to trial within the seventy-day timeframe. Id.

It is well established that Criminal Rule 4 places an "affirmative duty" on the State to bring a defendant to trial. Curtis v. State, 948 N.E.2d 1143, 1151 (Ind.2011). By the same token, the purpose of Criminal Rule 4 is not to provide defendants with a technical means to avoid trial but rather to assure speedy trials. Loyd v. State, 272 Ind. 404, 410, 398 N.E.2d 1260, 1266 (1980).

There is no dispute that more than seventy days elapsed after Cundiff filed his Criminal Rule 4(B) motion for a speedy trial. The parties dispute, however, the applicability of Criminal Rule 4(B) to Cun-diffs case.

The State points out that Cundiff was not incarcerated on the pending charges at issue when he filed his Criminal Rule 4(B) motion. The State asserts that for Criminal Rule 4(B) to apply, "incarceration on the current offense must be the reason that the defendant is in jail." The State alternatively argues that if Criminal Rule 4(B) does apply, various delays were attributable to Cundiff, which would exeuse any failure in bringing him to trial within the seventy-day deadline.

Cundiff, on the other hand, contends that Criminal Rule 4(B) applies despite the fact that he was incarcerated for a different reason and not on the charges for which he requested a speedy trial. Cun-diff acknowledges that case law from the Court of Appeals supports the State's position on 4(B)'s applicability, but he directs us to precedent from this Court, asserting that it is consistent with his position.

The Court of Appeals agreed with the State, concluding that for Criminal Rule 4(B) to apply, "a defendant must be incarcerated on the pending charges to be entitled to the benefits of the seventy-day speedy trial rule." Cundiff, 950 N.E.2d at 1283. Before reaching this conclusion, however, the Court of Appeals acknowledged a split between its own panels on the issue. Id. at 1282. It also pointed to possibly ambiguous language from this Court's precedent on Criminal Rule 4(B)'s applicability in these types of situations. Id. at 1281-82.

We write to clarify any ambiguity within this Court's precedent on the issue and to resolve the split within the Court of Appeals. We address the question of whether an incarcerated defendant has the right to be tried within seventy days under Criminal Rule 4(B) when he is being held for an unrelated offense and not on the charges for which speedy trial is demanded.

Our analysis begins with this Court's decision in Poore v. State, 685 N.E.2d 36 (Ind.1997). In Poore, this Court was faced with the narrow issue of whether Criminal Rule 4(B)'s time limits applied to a retrial of a habitual-offender finding. 685 N.E.2d at 36. Although the procedural history in Poore varies from that of the present case, Poore's interpretation of Criminal Rule 4(B) is instructive. Importantly, separate panels of the Court of Appeals have interpreted Poore differently, resulting in a split within that court on the precise question before us today.

In Poore, the defendant was sentenced to twenty years on a burglary conviction, which was enhanced by thirty years based on a habitual-offender finding. Id. at 37. Years later, a post-conviction court vacated one of the predicate felonies supporting the habitual-offender enhancement. Id. This eventually led to the post-conviction court also vacating the enhancement and ordering that the habitual-offender count be set for retrial. Id.

The Poore defendant filed a speedy-trial motion under Criminal Rule 4(B), asserting that he had a right to a trial within seventy days. Id. Onee the seventy-day time limit elapsed without trial, the defendant filed a motion for discharge. Id.

Ultimately, this Court determined that Criminal Rule 4(B) applied to retrials of habitual-offender counts and thus the defendant was entitled to discharge. Id. at 41. In making this determination, this Court addressed the text of the rule and previous cases that dealt with the applicability of Criminal Rule 4(B). Id. at 38-41.

Language from the analysis in Poore has been construed to support two divergent eonelusions on Criminal Rule 4(B)'s applicability to defendants who are being held for an unrelated offense and not the charge for which speedy trial was requested. Compare Mork v. State, 912 N.E.2d 408, 411 (Ind.Ct.App.2009) (citing Poore and concluding that for Criminal Rule 4(B) to apply "incarceration on a present of fense must be a reason that the defendant is in jail"), with Brown v. State, 825 N.E.2d 978, 981-83 (Ind.Ct.App.2005), trans. denied (citing Poore and concluding that a defendant was entitled to discharge under Criminal Rule 4(B) when he was incarcerated for a prior conviction but not for the pending charges for which he requested a speedy trial). After closely examining Poore, we believe that its language largely supports a conclusion that a defendant must be held on the charge for which he requests a speedy trial for Criminal Rule 4(B) to apply.

In Poore, this Court first stated that the phrase in Criminal Rule 4(B), "held in jail on an indictment or affidavit," was "not entirely without ambiguity" but that it "clearly contemplates a defendant in custody on a pending criminal charge." 685 N.E.2d at 38. Importantly, the Poore defendant met this requirement, as he was "'being held upon the habitual charge as set forth in the indictment or information.'" Id. at 39 (quoting Poore v. State, 660 N.E.2d 591, 597 (Ind.Ct.App.1996) (Sullivan, J., dissenting)).

The Court then addressed the argument that Criminal Rule 4(B) was inapplicable because the defendant was being held before his habitual-offender retrial on the burglary-conviction sentence. Id. at 40. In discounting this argument, this Court used language that perhaps engendered some confusion as to when Rule 4(B) applies. This Court first stated that "(elven assuming, however, that [the defendant] would have been in jail anyway due to his sentence on the burglary conviction, he still would have been entitled to the benefit of Rule 4(B)" Id. This Court then cited three previous decisions to support its conclusion: Fossey v. State, 254 Ind. 173, 258 N.E.2d 616 (1970); Gill v. State, 267 Ind. 160, 368 N.E.2d 1159 (1977); and Jackson v. State, 663 N.E.2d 766 (Ind.1996). It determined that those cases "stand for the proposition that incarceration due to the pending charge at issue need not be the only reason the defendant is in jail at the time the speedy trial is requested under Rule 4(B)." Poore, 685 N.E.2d at 40 (emphasis added).

Poore, especially its explicit statement that the rule "clearly contemplates" a defendant being held on a pending eriminal charge, supports a holding that Criminal Rule 4(B) applies only if a defendant is being held on the charge for which he requests a speedy trial. Poore also supports a holding that as long as the defendant is in jail on the pending charge, Criminal Rule 4(B) applies to that charge even if the defendant is also being held for another reason. On the other hand, Poore did not extend the applicability of Criminal Rule 4(B) to defendants who are not being held on the pending charge for which a speedy trial is requested but for a different reason altogether.

It is true that Poore's reliance on Jackson, 663 N.E.2d 766, is slightly misleading. Jackson involved a defendant who was being held on unrelated charges and who was subsequently charged for other offenses. 663 N.E.2d at 768. The Jackson defendant filed a Criminal Rule 4(B) motion on the later charges, and this Court determined the defendant was entitled to discharge because the State had failed to bring him to trial within seventy days. Id. at 770. It is unclear from the opinion whether the Jackson defendant was also being held on the charges for which he requested a speedy trial. Thus, the facts could be construed to support the position that for Criminal Rule 4(B) to apply, incarceration for any reason suffices, even if the defendant is not held on the charge for which he requests a speedy trial. But the crux of the Jackson opinion was whether the State's failure to bring the defendant to trial within seventy days was excusable. Id. at 768-70. This Court never delved into whether Rule 4(B) applied in the first place-perhaps because the issue was never raised.

Importantly, Poore relied on cases that explicitly involved the application of Rule 4(B) to defendants who were being held on the charge for which they filed a speedy-trial motion and also another reason. In Fossey, this Court noted that, in light of U.S. Supreme Court precedent, a judicially-created exception that made Criminal Rule 4 unavailable for a defendant "seeking a trial on a charge pending while he, at the same time, is in jail on another conviction" could not be maintained. 254 Ind. at 179, 258 N.E.2d at 619. Later, in Gill, this Court stated that "[t]he fact that incarceration during such post-arraignment period may also be required by an order in another case does not render Criminal Rule 4 inapplicable." 267 Ind. at 164, 368 N.E.2d at 1161 (emphasis added). Thus, both of these cases stand for the proposition that Criminal Rule 4(B) is available to a defendant who is being held on the pending charge for which he requests a speedy trial even if he is also being held for a separate reason. Neither of those cases extended the availability of Criminal Rule 4(B) to defendants who, like Cundiff, were incarcerated, but not on the charge for which they requested a speedy trial.

Ultimately, the most reasonable interpretation of Poore's language on Criminal Rule 4(B)'s availability-"incarceration due to the pending charge at issue need not be the only reason the defendant is in jail"is the following: for Rule 4(B) to apply, the defendant must be incarcerated on the charge for which he seeks a speedy trial, and as long as that requirement is met, the availability of Rule 4(B) is not affected if the defendant is also incarcerated on other grounds. 658 N.E.2d at 40. Accordingly, Criminal Rule 4(B) was not available to Cundiff on the pending charges for which he sought a speedy trial because he was not incarcerated on those charges.

Conclusion

We affirm the trial court's denial of Cun-diffs Criminal Rule 4(B) motion to discharge.

DICKSON, C.J., and SULLIVAN, RUCKER, and MASSA, JJ, concur.

      . The record does not reveal the exact date of Cundiff's probation-revocation incarceration.

      . Importantly, Criminal Rule 4 does not cover every aspect of the constitutional right to a speedy trial. Cooley v. State, 172 Ind.App. 199, 202, 360 N.E.2d 29, 32 (1977), trans. denied; see also State v. Moles, 166 Ind.App. 632, 646, 337 N.E.2d 543, 552 (1975) ("An accused ... has two distinct but related rights to have the processes of justice move deliberately toward the end of obtaining a trial within a reasonable and agreeable time-one right is guaranteed by the Constitutions and one by the implementing CR. 4.").

      . Criminal Rule 4(B)(1) provides in full as follows:
      (B)(1) Defendant in Jail-Motion for Early Trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.


author: BROWN, Judge.

text:
    Robert A. BAKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 40A05-1109-CR-503.
    Court of Appeals of Indiana.
    April 11, 2012.
    Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Robert A. Baker appeals his convictions and sentence for possession of methamphetamine within one thousand feet of a school as a class B felony, possession of a controlled substance within one thousand feet of a school as a class C felony, and possession of marijuana with prior convietion as a class D felony. Baker raises two issues, one of which we find dispositive and restate as whether the evidence is sufficient to sustain his convictions for possession of methamphetamine as a class B felony and possession of a controlled substance as a class C felony. We reverse and remand.

The relevant facts follow. On May 14, 2009, Tommy Harper, Baker's next door neighbor in an apartment building at the Ivy Park Apartments, called the police to report a chemical odor coming from Baker's apartment. North Vernon Police Officer Craig Kipper responded to the report and entered Harper's apartment. The front door of Harper's residence was open and a fan was inside the door blowing air out of the apartment, and Harper stated that he was having trouble breathing inside the apartment. Officer Kipper smelled a "strong ... chemical odor inside the apartment" and after "about a half hour [his] nose and throat were burning." Transcript at 40. Harper informed Officer Kipper that "this usually happens two or three times a month," that he "gets the same odor in his apartment," and that "(there's always constant traffic in and out of [Baker's] apartment, all times of day, all times of night." Id. Harper also stated that "every time that this would [happen] they would run that garbage disposal for maybe two hours at a time and this was like after midnight...." Id. at 108-109.

Officer Kipper contacted other officers and learned that the Sheriff's Department had completed controlled buys involving Baker during the previous months. After North Vernon Police Officer Matthew Staples verified that the chemical odor in the apartment was consistent with the manufacturing of methamphetamine, officers performed a protective sweep of Baker's apartment while another officer obtained a search warrant for the residence. Baker and a woman were in the apartment and were secured by police. Marijuana, a bottle containing pills including Zolpiden, and a coffee filter containing methamphetamine residue were discovered in the apartment. Baker claimed ownership of the marijuana.

On June 30, 2009, the State charged Baker with: Count I, possession of methamphetamine within one thousand feet of a school as a class B felony; Count II, possession of a controlled substance, specifically Lortab as a Schedule III controlled substance and Zolpiden as a Schedule IV controlled substance, within one thousand feet of a school as a class C felony; and Count III, possession of marijuana with prior conviction as a class D felony. At a bench trial, the court, upon request by the State, struck Lortab from the charging information in Count II. The State presented the testimony of Officer Kipper that Baker's apartment was located approximately six hundred feet from the Early Training Center (the "ETC). The court found Baker guilty on each count. Following a hearing, the court sentenced Baker to twenty years for his conviction under Count I, eight years for his convietion under Count II, and two years for his conviction under Count III, and ordered that the sentences be served consecutively.

The issue is whether the evidence is sufficient to sustain Baker's enhanced convictions under Counts I and II. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000)). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id.

Baker argues that the State did not present sufficient evidence to support the enhancements under Counts I and II for being within 1,000 feet of school property. He argues that the school enhancement law is meant to protect those under eighteen rather than those seeking education and is written in such a way as to place the focus on protecting children, not the school. He asserts that the State sought a class B Felony conviction rather than a class D Felony conviction and that "[in essence, the State wanted Baker kept in jail for twenty years rather than three." Appellant's Brief at 9. Baker further asserts that the State failed to present accurate and reliable information to prove beyond a reasonable doubt that the school near Baker's apartment qualified as an educational facility serving those under the age of eighteen. Baker argues that the only evidence concerning the nature of the ETC came in through Officer Kipper who "did not explain whether the services were offered to children, or just to adults," that "[flrom his testimony, the ETC Learning Center appears to be a building geared toward adult education," and "[the State presented no evidence that the center enrolled or taught anyone under the age of eighteen." Id. Baker also maintains that "[the State may counter that the words 'high school' imply a place for teens," that such implication should not be enough to meet the State's burden of proof, and that "[tlhis is especially so given that many adults without educations later go back to get their GEDs" and "[jJJust because high school level courses are being offered does not prove that those under eighteen are taking them." Id. at 9-10. Baker argues that he cannot be punished more harshly for possessing drugs if he did so near an adult facility and requests that his convie-tions under Counts I and II be reduced to class D felonies.

The State maintains that the evidence supports the school zone enhancement, that Baker's argument fails because he waived it by failing to raise it during trial, that the State demonstrated that the ETC was a school, that the trial court "could take judicial notice that ETC was a school," and that Baker nevertheless violated the charged statutes by possessing the methamphetamine and controlled substances in a family housing complex. Ap-pellee's Brief at 8. The State asserts that Officer Kipper's testimony allowed the trial court to correctly conclude that the ETC was a school for high-school-aged students, the majority of whom are younger than eighteen. The State argues that "[the ETC is located at the same site of the Jennings County Education Center, a school listed on the Jennings County School Corporation's website," that "[the two appear to be the same facility, or at least located on the same property owned or rented by the Jennings County School Corporation," that "[iJt is generally known that the two are one and the same," and that "(als such, the trial court can take judicial notice that the ETC ... was a school." Id. at 9. The State also argues that the evidence that Baker's apartment was located in an "apartment complex" is sufficient to prove that Baker possessed the contraband within 1,000 feet of a "family housing complex." Id. at 10.

In his reply brief, Baker argues that he did not waive his sufficiency argument by failing to raise it at trial, that it is well-settled that sufficiency of the evidence may be raised for the first time on appeal, and that he had no obligation to disprove the State's allegations. Baker argues that the ETC is affiliated with Ivy Tech Community College and that this court has held that the term "school property" does not include a college or university. Appellant's Reply Brief at 3. Baker argues that it would not have been proper for the court to take judicial notice of "something that is not legally true," that "[the bottom line is that the Record is vague as to the nature of the ETC Learning Center," and that this court should not uphold the increased sentencing based on "conjecture and speculative internet searches." Id. at 4-5. Baker further argues that the State did not charge him with possession within 1,000 feet of a family housing complex and thus that basis cannot now be used to support an enhancement.

Ind.Code § 35-48-4-6.1 (Supp.2006), pursuant to which Baker was convicted under Count I, provides in pertinent part:

(a) A person who, without a valid prescription or order of a practitioner acting in the course of the practitioner's professional practice, knowingly or intentionally possesses methamphetamine (pure or adulterated) commits possession of methamphetamine, a Class D felony, except as provided in subsection (b).
(b) The offense is: ...
(2) a Class B felony if the person in possession of the methamphetamine possesses less than three (8) grams of pure or adulterated methamphetamine:
{(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(ii) a family housing complex; or
(iv) a youth program center....

(Emphasis added).

Ind.Code § 35-48-4-7(a) (2004) (subsequently amended by Pub. L. No. 138-2011, § 14 (eff. Jul. 1, 2011), Pub.L. No. 182-2011, § 14 (eff. Jul. 1, 2011)), pursuant to which Baker was convicted under Count II, provides:

A person who, without a valid prescription or order of a practitioner acting in the course of his professional practice, knowingly or intentionally possesses a controlled substance (pure or adulterated) classified in schedule I, II, III, or IV, exeept marijuana, or hashish, commits possession of a controlled substance, a Class D felony. However, the offense is a Class C felony if the person in possession of the controlled substance possesses the controlled substance:
(1) on a school bus; or
(2) in, on, or within one thousand (1,000) feet of:
(A) school property;
(B) a public park;
(C) a family housing complex; or
(D) a youth program center.

(Emphasis added).

In Count I, the State alleged on or about May 14, 2009, Baker "did knowingly or intentionally possess methamphetamine in an amount less than three grams, in, on, or within one thousand feet of school property, to-wit: ETC Learning Center...." Appellant's Appendix at 14. In Count II, the State alleged on or about May 14, 2009, Baker "did knowingly or intentionally possess ... Zolpiden, a controlled substance listed in Schedule IV, without a valid prescription or order of a practitioner acting in the course of his/her professional practice, in, on, or within one thousand feet of school property, to-wit: ETC Learning Center." Id. at 15. Accordingly, in order to obtain the enhancements from a class D felony to a class B felony under Count I and from a class D felony to a class C felony under Count II, the State needed to prove that Baker possessed the methamphetamine and controlled substance identified in those counts within 1,000 feet of "school property" and that the "ETC Learning Center" constituted school property. Id.

Ind.Code § 35-41-1-24.7 (Supp.2006) provides:

"School property" means the following:
(1) A building or other structure owned or rented by:
(A) a school corporation;
(B) an entity that is required to be licensed under IC 12-17.2 or IC 31-27;
(C) a private school that is not supported and maintained by funds realized from the imposition of a tax on property, income, or sales; or
(D) a federal, state, local, or nonprofit program or service operated to serve, assist, or otherwise benefit children who are at least three (8) years of age and not yet enrolled in kindergarten, including the following:
(i) A Head Start program under 42 U.S.C. 9831 et seq.
(Ii) A special education preschool program.
(iii) A developmental child care program for preschool children.
(2) The grounds adjacent to and owned or rented in common with a building or other structure described in subdivision (1).

In Pridgeon v. State, this court held, in interpreting a prior version of Ind.Code § 35-41-1-24.7, that "[the words 'school property' do not include a college or university." 569 N.E.2d 722, 724 (Ind.Ct.App.1991), trans. denied. In support of this holding, the court in Pridgeon observed that "[olver and again, our courts have strictly construed criminal statutes defining offenses to avoid the creation of penalties by construction," that "[e}riminal statutes must be strictly construed against the State, and they may not be enlarged beyond the fair meaning of the language used," and that "(allthough the word 'school' has numerous meanings, this court exeluded colleges and universities from the 'common usage' of this term in Lawrence v. Cain (1969), 144 Ind.App. 210, 245 N.E.2d 663." Id. at 723. See Lawrence, 144 Ind.App. at 216, 245 N.E.2d at 666 (providing that "[iIn the ordinary accept[ance] of its meaning, a school is a place where instruction is imparted to the young" and that "(ilt is an institution of learning of a lower grade, below a college or a university; a place of primary instruetion"). This court further noted that the legislature's decision was "to afford special protection to children from the perils of drug trafficking" and found that to include colleges would result in an interpretation broader than intended by the legislature. Pridgeon, 569 N.E.2d at 724. See also Reynolds/Herr v. State, 582 N.E.2d 833, 838-839 (Ind.Ct.App.1991) (noting, in finding the statute constitutional, that the legislative intent behind the statute enhancing the offense for dealing cocaine was similar to Congress' intent in enacting 21 U.S.C. § 845(a), the federal enhancement statute, that the Indiana legislature in drafting the enhancement provisions intended to afford special protection to children from the perils of drug trafficking and to provide harsher penalties for those culprits determined to peddle drugs on or near school property, and that increased penalties for drug offenders who commit their offenses near school property is rationally related to this purpose).

In this case, the only evidence presented at trial on this issue consisted of the following exchange during the questioning of Officer Kipper by the prosecutor:

Q. Now what other buildings are around Ivy Park?
A. There's Early Training Center.
Q. Is that the Education Training Center?
A. Or Early Training Center yes.
Q. The ETC?
A. Yes.
Q. And that's located where it used to be the old nursing home out there is that correct?
A. Yes.
Q. Where is that located in relation to Ivy Park?
A. It'd be to the north or to the east of Ivy Park approximately 600 feet from [] Baker's apartment to the center of the building.
Q. And you measured that off is that correct?
A. Yes.
Q. What happens at the ETC?
A. They have continuing education classes for students who wish to pursue their high school education to get their diplomas and also I believe they have Ivy Tech classes for continuing education for college credits.
Q. So that's right next door?
A. Yes.
Q. The properties are right next to each other correct?
A. Yes.
Q. Certainly less than 1000 feet?
A. Yes. Transeript at 48-44.

The State elicited testimony from Officer Kipper that the ETC had "continuing education classes for students who wish to pursue their high school education to get their diplomas." Id. at 44. However, the State does not point to any evidence presented at trial which shows that the ETC was a building or other structure owned or rented by a school corporation or other type of entity or organization described under Ind.Code § 85-41-1-24.7. Moreover, the State does not point to evidence which indicates that the students enrolled in any program at the ETC, including those seeking their high school diplomas, were school-age children and not adults or college-age individuals.

In light of this court's holdings and observations that the words "school property" do not include a college or university, see Pridgeon, 569 N.E.2d at 724, that we strictly construe criminal statutes defining offenses to avoid the creation of penalties by construction and strictly construe criminal statutes against the State, see id., and that the legislative intent was "to afford special protection to children from the perils of drug trafficking," id., we conclude that the evidence presented by the State does not, standing alone, show that the ETC constituted "school property" as contemplated by the Indiana legislature for the purpose of enhancement, or prove beyond a reasonable doubt that Baker committed the possession offenses charged in Counts I and II within 1,000 feet of school property. Cf. French v. State, 778 N.E.2d 816, 823 (Ind.2002) (holding that the evidence was sufficient to show that a preschool was "school property" for purposes of an enhancement, where the director of the preschool testified that the school was a private school and did not receive state funding, that the children at the school range in age from twenty months to six years, that the children learn their numbers and alphabet, sing songs, go on field trips, and play, and that the building in which the school is located is owned by the parish); Dixon v. State, 712 N.E.2d 1086, 1093 (Ind.Ct.App.1999) (holding that the evidence was sufficient to show that a school was "school property" for purposes of an enhancement where the State elicited testimony from an associate superintendent that the property was owned by the school corporation and that the school district had constructed a middle school on the land); Bailey v. State, 603 N.E.2d 1376, 1380 (Ind.Ct.App.1992) (holding that the evidence was sufficient to support an enhancement where the evidence showed that the center was used as a classroom site for a remedial program for students who failed to succeed in a regular education setting, that classes were conducted for grades 7 through 12 at the center, that student access to other parts of the center was unrestricted, and that a certified teacher taught the curriculum which was consistent with the regularly scheduled classes).

Further, we do not find the State's arguments as to waiver, judicial notice, or the fact that Baker's apartment building may have constituted a family housing complex to have merit. The State does not point to authority for the proposition that a defendant must object at trial to the State's introduction of evidence as to one or more elements of an offense in order to preserve the argument on appeal that the evidence was insufficient to support an element of the offense or sustain the defendant's conviction. See Powers v. State, 540 N.E.2d 1225, 1227 (Ind.1989) ("This Court has held many times that the burden of proving all elements of a charged crime beyond a reasonable doubt rests with the State and the raising of an affirmative defense does not relieve the State of such burden."), reh'g denied. Further, the State does not point to the transcript or record to show that the trial court took judicial notice, or that it requested the court to take such notice, of the fact that the ETC constituted "school property." In addition, the State's charging information in Counts I and II specifically alleged that Baker committed the possession offenses "in, on, or within one thousand feet of school property, to-wit: ETC Learning Center," see Appellant's Appendix at 14-15, and not within 1,000 feet of a family housing complex, and the State does not point to the record to show that it advanced this basis for the enhancement at trial.

Based upon the evidence presented at Baker's trial and the charging information, we conclude that the evidence is insufficient to permit a trier of fact to conclude beyond a reasonable doubt that Baker committed the enhanced possession offenses charged under Counts I and II within 1,000 feet of school property. Accordingly, we reverse Baker's convictions under Counts I and II and remand with instructions to reduce Baker's convictions under those counts to class D felonies and to resentence him accordingly.

Reversed and remanded.

BAKER, J., and KIRSCH, J., concur.

      . Ind.Code § 35-48-4-6.1 (Supp.2006).

      . Ind.Code § 35-48-4-7 (2004) (subsequently amended by Pub. L. No. 138-2011, § 14 (eff. Jul. 1, 2011), Pub. L, No. 182-2011, § 14 (eff. Jul. 1,2011)).

      . Ind.Code § 35-48-4-11 (2004) (subsequent ly amended by Pub. L. No. 138-2011, § 14 (eff. Jul. 1, 2011), Pub. L. No. 182-2011, § 14 (eff. Jul. 1, 2011)).

      . In response to the State's question: "Is that the Education Training Center?" Officer Kipper replied "Or Early Training Center yes." Transcript at 43. The State then asked "The ETC?" and the Officer replied "Yes." Id.

      . A footnote in the facts section of the State's brief states:
      The Ivy Tech website refers to the ETC Learning Center as the North Vernon Education & Training Center; the center is located at 1200 WO & M Avenue, North Vernon, IN 47265. Ivy Tech Community College, http://www.ivytech.edu/columbus/ contact/index.html (last visited Feb. 29, 2012).
      This is the same location of the Jennings County Education Center, a school listed on the Jennings County School Corporation's website. Jennings County Education Cen-terHome, http:/www.joesc.org/education/ school/school.php?sectionid=84& (last visited Feb. 29, 2012).
      Appellee's Brief at 4 n. 2.
      The State does not point to the record to show, nor has our review revealed, that any such evidence was presented at trial.

      . The statute as amended also excludes "sal-via, or a syuthetic cannabinoid" from the controlled substances governed by the statute. See Ind.Code § 35-48-4-7(a) (Supp.2011); see also Pub. L. No. 138-2011, § 14 (eff. Jul. 1, 2011), Pub. L. No. 182-2011, § 14 (eff. Jul. 1, 2011).

      . Baker also argues that his sentence is inappropriate in light of the nature of the offenses and his character. However, because we remand with instruction to reduce Baker's convictions under Counts I and II to class D felonies and for resentencing, we need not address this argument.