author: BROWN, Judge. BAKER, Judge,

text:
    Erasmo LEYVA, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1111-CR-535.
    Court of Appeals of Indiana.
    July 25, 2012.
    Randy M. Fisher, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana,- Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Erasmo Leyva, Jr., appeals his conviction for child molesting as a class A felony. Leyva raises one issue, which is whether the evidence is sufficient to sustain Leyva’s conviction for child molesting as a class A felony. We affirm.

The facts most favorable to the conviction follow. Leyva has three children, A.L., B.L., and E. A.L., who was born on March 19, 1999, and B.L. lived with their mother, Leyva’s former spouse, and visited Leyva every other weekend. Leyva, who was born on June 28, 1978, lived with his wife and son E.

From April 2, 2010, to April 4, 2010, A.L. and B.L. visited Leyva to celebrate Easter and their birthdays. On April 3, 2010, Leyva, his wife, A.L., B.L., and E. were watching a movie in the family room. Leyva’s wife, E., and B.L. watched the movie while on the floor, and Leyva and A.L. watched the movie from the couch. At some point, Leyva’s wife, B.L., E., and A.L. fell asleep.

At approximately 12:30 a.m., A.L., who was wearing pajama shorts and underwear and was on her back, woke up and felt that Leyva had his hand down her pants and underwear. Leyva inserted more than one of his fingers into A.L.’s vagina, which “[k]ind of hurt,” and A.L. turned onto her side. Transcript at 38. A.L. then looked at the clock, stood up and walked into the kitchen, and then walked upstairs to use the restroom and look for a phone to call her mother. A.L. was unable to find a phone and went back downstairs. Leyva was at the bottom of the steps when A.L. returned downstairs and asked A.L. what she was doing, and A.L. said that she had gone to the bathroom. A.L. grabbed a blanket and lay down by Leyva’s wife, and Leyva lay down on the couch. When A.L. was on the floor next to Leyva’s wife, she noticed a phone on the floor but did not try to call her mother because she was scared that Leyva was watching her.

On April 4, 2010, A.L. did not say anything about Leyva’s actions because she was scared, and eventually A.L.’s mother arrived to pick up A.L. and B.L. As they were driving, A.L. told her mother that she needed to talk to her. After they arrived home, A.L. took her mother into her bedroom and told her what had happened. A.L.’s mother took A.L. to the emergency room and later to the police station. A.L. was interviewed by Julie DeJesus, a forensic interviewer at the Dr. Bill Lewis Center for Children, and examined by Michelle Ditton, the chief nursing officer and a sexual assault nurse examiner at the Fort Wayne Sexual Assault Treatment Center.

On July 29, 2010, the State charged Leyva with Count I, child molesting for performing or submitting to deviate sexual conduct with A.L. as a class A felony, and Count II, child molesting for performing or submitting to fondling or touching with A.L. as a class C felony. At trial, the jury heard testimony from, among others, A.L., Erica Flegel, a forensic scientist with the Indiana State Police Laboratory, DeJesus, Ditton, Leyva, Leyva’s wife, and A.L.’s mother. Flegel testified that male DNA was identified in A.L.’s underpants but that the quantity was insufficient to positively identify the person. DeJesus testified regarding A.L.’s disclosure of sexual abuse and identification of Leyva. Ditton testified that A.L. had no injuries and, when asked about the frequency of injuries of victims of sexual abuse which involves penetration of the female sex organ, indicated that ninety to ninety-five percent of victims have completely normal exams.

Leyva testified that A.L. used to be his “little princess” and that “[t]he older she got the more problems came,” that over the years A.L. changed, and that “[fit’s a lot of materialism, a lot of selfishness. Just not what it used to be.” Id. at 167, 169. Leyva testified that A.L. was upset because the birthday party for A.L. and B.L. was on B.L.’s birthday and not her birthday and that during the movie A.L.’s brother took her spot, and that A.L. threw a fit, held her stomach, threw herself on the couch, and refused to watch the movie. During cross examination, A.L. indicated that she was upset that her brother had taken her spot and that she had been upset because Leyva had not purchased her the “burberry” she had wanted for her birthday. Id. at 51. Also, when asked which hand Leyva used to touch her and which fingers he inserted into her vagina, A.L. answered that she did not know. A.L. further testified that Leyva inserted more than one finger into her vagina. The jury found Leyva guilty on Counts I and II. The court merged Count II into Count I, entered judgment of conviction on Count I, and sentenced Leyva to twenty years in the Department of Correction.

The issue is whether the evidence is sufficient to sustain Leyva’s conviction. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the verdict and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. Ind.Code § 35-42-4-3 provides in part: “[a] person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony” and that “[h]owever, the offense is a Class A felony if ... it is committed by a person at least twenty-one (21) years of age.... ”

Leyva argues that the evidence is insufficient to support his conviction. Leyva asserts that A.L.’s testimony is incredibly dubious and not corroborated by any other evidence presented by the State, that A.L. alleged that he molested her while the entire family was sleeping in their family room, that no one heard or saw the alleged conduct, that A.L. spent the entire next day engaged in family activities with Ley-va for Easter, and that A.L.’s testimony regarding the details of the evening are completely inconsistent with that of Leyva and his wife at trial. Leyva further argues that no physical injuries to A.L. were found. Leyva also maintains that A.L. had several motives to lie about the incident, including that A.L. was upset because her birthday party was cancelled and she was forced to share a party with a sibling, and because Leyva did not “get a Blackberry for her birthday” as she expected. Appellant’s Brief at 13. Leyva argues that A.L. was also upset the night of the incident because her brother took her spot for the movie, and that she threw a fit, jumped on the couch, and refused to watch the movie. Leyva also points to the fact that A.L. could not testify as to which hand or fingers of Leyva were in her pants or vagina. The State argues that the evidence is suffi-dent to sustain Leyva’s conviction, that A.L.’s testimony was not incredibly dubious, and that the jury weighed Leyva’s claims regarding A.L.’s motive to fabricate the story and rejected the alternate theory.

To the extent Leyva asserts that the incredible dubiosity rule requires reversal of his conviction, we note that the rule applies only in very narrow circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind.2002). The rule is expressed as follows:

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

Id. Leyva fails to show that the testimony of A.L. was inherently contradictory. To the extent A.L.’s testimony conflicted with the testimony of Leyva or his wife or Leyva argues that A.L.’s testimony was less believable, we note that this is an issue of witness credibility. The function of weighing witness credibility lies with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141 (Ind.Ct.App.1995). We cannot reweigh the evidence and judge the credibility of the witnesses. See Jones, 783 N.E.2d at 1139. Further, we cannot say that the testimony of A.L. regarding Leyva’s actions, including A.L.’s testimony that she awoke and felt Leyva insert more than one of his fingers into her vagina while Leyva’s wife, B.L., and E. slept on the floor after watching a movie, was so inherently improbable that no reasonable person could believe it. Leyva does not show how the testimony against him was somehow internally inconsistent and has not shown A.L.’s testimony to be incredibly dubious.

Based upon our review of the evidence and testimony most favorable to the conviction as set forth in the record and above, we conclude that sufficient evidence exists from which the trier of fact could find Leyva guilty beyond a reasonable doubt of child molesting as a class A felony. See Hampton v. State, 921 N.E.2d 27, 29 (Ind.Ct.App.2010) (finding that the testimony of the seven-year-old victim was not incredibly dubious and concluding that based upon the record the State presented evidence of probative value from which a reasonable jury could have found the defendant guilty of child molesting as a class A felony), reh’g denied, trans. denied; Surber v. State, 884 N.E.2d 856, 869 (Ind.Ct.App.2008) (holding that the testimony of six-year-old victim was not incredibly dubious despite some inconsistencies, and that such inconsistencies are appropriate to the circumstances presented, the age of the witness, and the passage of time between the incident and the time of her statements and testimony), trans. denied.

For the foregoing reasons, we affirm Leyva’s conviction for child molesting as a class A felony.

Affirmed.

KIRSCH, J., concurs.

BAKER, J., dissents with separate opinion.

BAKER, Judge,

dissenting.

I respectfully dissent. I believe that A.L.’s testimony is incredibly dubious and that the evidence is, therefore, insufficient to support Leyva’s conviction for class A felony child molesting.

As noted by the majority, the doctrine of incredible dubiosity allows a reviewing court to reevaluate the credibility of a witness when “a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence.” Love v. State, 761 N.E.2d 806, 810 (Ind.2002). The “Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.” Id.

A defendant cannot appeal to this exception by merely showing some inconsistency or irregularity in a witness’s testimony. Cowan v. State, 783 N.E.2d 1270, 1278 (Ind.Ct.App.2003). Rather, a defendant must show that the witness’s testimony “runs counter to human experience” such that no reasonable person could believe it. Campbell v. State, 732 N.E.2d 197, 207 (Ind.Ct.App.2000). Moreover, the rule does not apply when testimony is corroborated by additional witnesses or circumstantial evidence. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind.2002).

Although it has not been stated for some time, our Supreme Court has opined that

it is the jury’s function, not ours, to weigh the evidence, whether conflicting or uncontradicted, from which discordant, yet reasonable inferences may be drawn and then determine whether such evidence excludes every reasonable hypothesis of innocence.... On review, however, we must pass on its sufficiency as a matter of law.

Gaddis v. State, 253 Ind. 73, 80-81, 251 N.E.2d 658, 662 (1969).

Moreover, the Gaddis Court recognized that we

must be particularly vigilant where a conviction is supported by the testimony of one eye witness. Testimonial errors resulting from imperfect recollection, defective perception or suggestion have been shown to occur and we would be careful not to implement a miscarriage of justice in such a situation where that testimony is the only testimony of appellant’s guilt.

Id. at 80, 251 N.E.2d at 662.

To begin, a more detailed recitation of A.L.’s testimony is needed. When A.L. was asked whether she had been upset when her birthday party was postponed because her stepmother’s father had a heart attack, forcing A.L. to share a party with her brother, she answered, “I don’t remember.” Tr. p. 45. A.L. also testified that she had forgotten about going to the mall between the time of her shared birthday and the time the family rented a movie. Id. at 46. A.L. did not remember what movie they had rented, acknowledged that she had not watched much of it, and that she could not remember that she had planned on watching the movie beside her stepmother. Id. at 46-47. A.L. testified that while she and her stepmother went to the kitchen to make popcorn, her brother took her spot next to their stepmother. Id. at 47. While A.L.. acknowledged that this upset her, she did not remember grabbing her stomach and lying down. Id. at 47-48. A.L. also testified that she had given her cell phone to her brother and that she was angry that her father had not bought her a Blackberry for her birthday. Id. at 50-51.

When asked what her father’s “hand was doing when [she] felt it[,]” she replied “I don’t remember.” Tr. p. 35. The questioning then became more specific: ‘Was his hand touching you on the outside of your private, or the inside of your private or neither or both? Where was his hand touching specifically?” Id. at 36. Then, A.L. answers with less than certainty, “Kind of inside I guess you would say.” Id. When A.L. was questioned regarding which hand Leyva was using, she answered, “I don’t know.” Id. at 51. The same answer was given to the question, which fingers he used during the molestation. Id.

A.L. then went on to testify that she felt Leyva’s fingers “[l]ike half inside, half not,” and “[n]ot all the way” inside. Tr. p. 36. A.L. stated that Leyva used more than one finger because she “could feel” but that she “moved right away.” Id. at 52. More specifically, A.L. turned on her side toward the back of the couch and Leyva put his hand “[b]ack beside him.” Id. at 36-37. A.L. then got up, went into the kitchen, and looked at the time. Id. She went upstairs to the bathroom and then looked for a phone to call her mother, but could not find one. Id.

When A.L. was first asked what she did after she could not find a phone upstairs, she answered, “I don’t remember.” Tr. p. 38. A.L. was then prompted, “Did you stay upstairs or did you go somewhere else?” Id. A.L. responded, “I grabbed a blanket and I went downstairs and laid by my step-mom.” Id. A.L. stated that when she went downstairs, Leyva was standing at the bottom of the steps and asked her what she was doing. Id. After explaining to him that she had used the bathroom, she laid down beside her stepmother without waking her or her siblings. Id. at 38-39. A.L. testified that she “laid on a phone [but] [she] didn’t want to move because [she] didn’t know if [her] dad was watching [her].” Id. at 39.

The next day, Easter Sunday, A.L. testified that she received her Easter basket. When asked if they had gone to church, she stated, “I don’t think so.” Tr. p. 40. A.L. also testified that despite having a good relationship with her stepmother, she did not say anything to her about what had occurred the night before and waited until that evening when her mother picked her up. Id. at 40-41. Additionally, A.L. acknowledged that she had asked her father if she could live with him prior to the incident because she did not want to attend a new school, but when questioned whether she had asked him on Easter Sunday, 2010, she responded, “I don’t remember that.” Id. at 62.

When A.L. was asked how she felt about her father, she responded, “I still love him, and I forgive him, but what he did was wrong.” Tr. p. 43. In addition, A.L. acknowledged that this was the “first or only time that this has ever happened[.]” Id. at 63.

In response to a juror question whether A.L. had been upset with her father that weekend, A.L. stated “No.” Tr. p. 63. However, when counsel followed up on this response, A.L. admitted that she was “upset with him for maybe an hour,” when she did not get the Blackberry. Id. at 64.

A.L. was eleven years old at the time when the alleged molestation occurred; however, as shown from the above recitation of A.L.’s testimony, she fails to recall many of the events and circumstances that occurred during Easter weekend 2010. It is interesting to note that A.L. does not remember the events that do not reflect positively on her, such as her anger towards the fact that she had to share her birthday party with her brother and that she refused to watch the movie after her brother took her place on the floor next to their stepmother. Even more noteworthy is A.L.’s response to a juror’s question that she had not been angry with her father that day when she had testified earlier that she had been angry with him for not buying her a Blackberry and that she had given her brother her cell phone in anticipation of receiving a Blackberry from Ley-va for her birthday.

Furthermore, in my view, the circumstances surrounding the alleged molestation run counter to human experience. A.L. testified that this was the first and only time that her father had touched her inappropriately. Nevertheless, according to A.L.’s testimony even though she was eleven years old and, fully aware of what was occurring, he chose the living room where the entire family had gathered to watch a movie. Additionally, A.L. did not tell her stepmother what had happened, despite having a good relationship with her. Indeed, A.L. did not tell anyone on Easter Sunday until her mom picked her up that evening around 6:00 p.m.

Moreover, I cannot agree with the State’s contention that there is circumstantial evidence supporting AL.’s testimony, insofar as male DNA was found in AL.’s underwear. First, Erica Felgel, a forensic scientist with the Indiana State Police, testified that “I can just say it’s male DNA, that is all.” Tr. p. 79. Perhaps even more compelling, the underpants that were collected and tested were not the same underpants that A.L. was wearing at the time of the incident. Id. at 113.

Finally, I cannot overlook the fact that A.L. had a motive to fabricate. Indeed, during part of AL.’s testimony she admitted to being angry with her father for not buying her a Blackberry. Tr. p. 51. But in a response to a juror question, she initially answered that she was not angry with her father the night of the incident. Tr. p. 63. Thus, there was some inconsistency and a motive to fabricate presented in A.L.’s testimony.

In sum, I think that all of these circumstances make AL.’s testimony incredibly dubious. I believe that it would be wise for us, as an appellate court, to draw upon the words of our predecessors, reminding us that while we should respect the province of the jury, it remains our responsibility to determine whether there is sufficient evidence as a matter of law. Likewise, we should be vigilant when a conviction is obtained on the basis of one eyewitness, so that we do not execute an injustice.

Notwithstanding the incredible dubiosity rule, I believe that it is time to consider whether we should require corroborating evidence when these type of offenses are supported only by the testimony of a single witness. Sir Matthew Hale, Lord Chief Justice of the Court of King’s Bench from 1671 to 1676 wrote at length regarding rape and famously stated:

“It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

People v. Rincon-Pineda, 14 Cal.3d 864, 874, 123 Cal.Rptr. 119, 538 P.2d 247, 254 (1975) (quoting 1 Hale, History of the Pleas of the Crown (1st Am. ed. 1847) p. 635).

While we no longer punish rape with death and are aware that many victims of sexual assault never come forward because of fear or embarrassment, there is still some truth in Lord Hale’s observation, inasmuch as it is a detestable crime that is hard to prove and, many times, hard to defend, especially if the only evidence against the defendant is the testimony of the victim.

Requiring corroborating evidence would not be a novel concept in the law. For instance, we require corroborating evidence to establish the corpus delicti of the crime before a defendant’s confession can be introduced into evidence. Willoughby v. State, 552 N.E.2d 462, 466 (Ind.1990). The primary function of the rule is to reduce the risk of convicting a defendant based on his confession for a crime that did not occur. Id. If we require such corroboration in circumstances under which the defendant has admitted to criminal conduct, it is not unreasonable to require corroborating evidence in circumstances where he claims innocence.

Moving forward to cases more analogous to the instant one, several of our sister states and the District of Columbia require corroborating evidence where the victim is a child. See Curry v. United States, 498 A.2d 534, 545-46 (D.C.Cir.1985) (stating that when a sexual offense involves a non-mature minor, instructions must be submitted to the jury requiring a finding of independent evidence corroborating the victim’s testimony); People v. Powell, 138 Ill.App.3d 150, 156, 92 Ill.Dec. 749, 485 N.E.2d 560 (Ill.App.Ct.1985) (stating “[i]t is well settled in Illinois that when a conviction for taking indecent liberties with a child depends upon the testimony of the prosecuting witness, and the defendant denies the charge, there must be substantial corroboration of the prosecuting witness by some other evidence, fact, or circumstance in the case; or the testimony ... must be otherwise clear and convincing”); Wright v. State, 859 So.2d 1028, 1030 (Miss.Ct.App.2003) (stating that the uncorroborated testimony of a victim is sufficient to support a conviction where that testimony is not discredited or contradicted by other evidence); State v. Fears, 217 S.W.3d 323, 332 (Mo.Ct.App.2007) (concluding that each child victim offered un-contradicted testimony corroborating the testimony of the other); Shepard v. State, 244 S.W.3d 421, 423-24 (Tex.Ct.App.2007) (opining that the corroboration requirement contained in the solicitation statute requires that “we eliminate the minor victim’s testimony from consideration and then determine whether there is other incriminating evidence tending to connect the accused with the crime”); State v. Craig, 219 Neb. 70, 361 N.W.2d 206, 214 (1985) (stating “[t]he general rule is that testimony of the victim of sexual assault must be corroborated as to material facts and circumstances which tend to support the victim’s testimony and from which, together with the victim’s testimony as to the principal fact, an inference of guilt may be drawn”).

With the advent of modern technology, including DNA testing and analysis, it is not unreasonable to require some form of corroborating evidence before convicting a defendant when the sole witness is the victim. This is especially true when the defendant has been accused of child molesting and similar offenses, insofar as if convicted, he will not only be sentenced accordingly, but also subject to certain registry and residency restrictions. See Ind.Code § 35-42-4-11.

Lord Hale was correct when he recognized that sexual assaults are heinous. Indeed, they are particularly atrocious when they are perpetrated against our children, over whom our natural inclination is to protect. But we must be mindful that the disgust that such actions elicits cannot cloud our reason such that we permit guilty verdicts to stand even when they were not obtained by proof beyond a reasonable doubt. I believe that the State failed to prove beyond a reasonable doubt that Leyva committed class A felony child molesting in this case, and I would reverse.

      . Ind.Code § 35-42-4-3 (Supp.2007).

      . E. is identified by first name only in the record.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    NORTH GIBSON SCHOOL CORPORATION, Appellant-Defendant, v. Shea TRUELOCK, Brian Douglas, Doyin Barrett, Tony Hensley, Lacee Richardson, Sue Ellen Beloat, Mike Beloat, Jamie Slinker, Kim Blaize, Lisa Burkett, Pat Scott, Mike Ice, Brian Tolbert, Appellees-Plaintiffs.
    No. 26A01-1111-PL-505.
    Court of Appeals of Indiana.
    July 25, 2012.

      James S. Stephenson, Ian L. Stewart, Stephenson Morow & Semler, Indianapolis, IN, Attorneys for Appellant.
    Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Attorney for Appel-lees.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

North Gibson School Corporation (the “School Corporation”) brings this interlocutory appeal of the trial court’s denial of its motion to dismiss a lawsuit filed by thirteen individual bus drivers (collectively, the “Drivers”). The School Corporation raises two issues, which we restate and reorder as: whether unsuccessful bidders for a transportation services contract with a school corporation have a private right of action for collusion against that school corporation, and whether the Indiana Antitrust Act allows for recovery of compensatory damages from a school corporation. We conclude that the Drivers, as unsuccessful bidders, do not have a private right of action against the School Corporation, even if alleging collusion. We also conclude the School Corporation cannot be held liable for compensatory damages under the Indiana Antitrust Act. Therefore, we reverse and remand.

Facts and Procedural History

In November 2010, the School Corporation distributed a notice requesting bids for bus transportation contracts for the years 2011 through 2015. Bus Corp., an Indianapolis-based entity, submitted bids for nineteen routes. The School Corporation awarded Bus Corp. with two contracts, and then separately scheduled “negotiation sessions” with individual bus drivers who were “seeking to renew or acquire a contact for their respective routes.” Appendix of Appellants at 12 (Amended Complaint).

Thirteen of these individual bus drivers eventually filed suit against the School Corporation based upon the manner in which these “negotiation sessions” were carried out, or that they occurred at all, and in their amended complaint they describe the sessions as follows:

5. ... Present at each of these negotiation sessions was Bus Corp.’s owner Randy Arms.
6. During said negotiations, the [School Corporation] utilized a “reverse auction” bidding process which forced each plaintiff/driver to substantially reduce their bid.
7. Following the “reverse auction” negotiation process, the plaintiffs were presented with a contract at the reduced price resulting from the “reverse auction” and were told by the [School Corporation's representative that if the contracts at the stated daily rates were not executed on or before April 8, 2011 the [School Corporation] would award the contract to the next lowest bidder which was Bus Corp.
8. The two (2) routes awarded to Bus Corp. were for a daily rate substantially higher than those offered to the plaintiffs and were obtained by Bus Corp. without Bus Corp. having to participate in the “reverse auction” process.

Id.

The Drivers allege the School Corporation 1) violated Indiana Code section 24-1-2-3, which provides: “A person who engages in any scheme, contract, or combination to restrain or restrict bidding for the letting of any contract for private or public work, or restricts free competition for the letting of any contract for private or public work, commits a Class A misdemeanor”; and 2) failed to comply with Indiana Code chapter 20-27-5 et seq., which concerns contracts between bus drivers and school corporations to transport students to and from public schools.

The School Corporation filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, and the trial court held a hearing thereon. The School Corporation filed a Notice of Supplemental Authority, and shortly thereafter the trial court issued an order denying the School Corporation’s Motion to Dismiss. The School Corporation filed its answer to the amended complaint and a motion to certify the order for interlocutory appeal. Following a hearing, the trial court certified its decision, and we subsequently granted the School Corporation’s request to accept jurisdiction over this interlocutory appeal.

Discussion and Decision

I. Standard of Review

A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief. Thus, while we do not test the sufficiency of the facts alleged with regards to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred.

Trail v. Boys & Girls Clubs of Nw. Indiana, 845 N.E.2d 130, 134 (Ind.2006) (citations and internal quotations omitted).

Under notice pleading rules, plaintiffs need only plead the operative facts involved in the litigation and are required to provide only a “clear and concise statement that will put the defendants on notice as to what has taken place and the theory that the plaintiffs plan to pursue in their attempt for recovery.” Donahue v. St. Joseph Cnty., 720 N.E.2d 1236, 1239 (Ind.Ct.App.1999) (quotations omitted). .

“We do not defer to the trial court’s decision because deciding a motion to dismiss based upon failure to state a claim involves a pure question of law.” Carr v. Pearman, 860 N.E.2d 863, 868 (Ind.Ct.App.2007), trans. denied. Thus, review of the trial court’s denial of a motion to dismiss for failure to state a claim is de novo. Id.

II. Private Right of Action Against a School Corporation

A. Private Right of Action

An unsuccessful bidder for a government contract has a cause of action only when filing a “public lawsuit” as a taxpayer or citizen of the municipality in question, or where collusion or fraud led to an award of the contract. Shook Heavy & Envtl. Constr. Grp., a Div. of Shook, Inc. v. City of Kokomo, 632 N.E.2d 355, 359 (Ind.1994); Midwest Psychological Ctr., Inc. v. Indiana Dep’t of Admin., 959 N.E.2d 896 (Ind.Ct.App.2011) (“Generally, an unsuccessful bidder does not have standing to challenge the award of a government contract under the Public Purchasing Act”) (citations omitted), trans. denied. The Drivers concede they are not proceeding under the public lawsuit option, and they have not alleged fraud, which requires specific pleading by Trial Rule 9(B). See Beckom v. Quigley, 824 N.E.2d 420, 428 (Ind.Ct.App.2005) (“Pursuant to Indiana Trial Rule 9(B), fraud must be pled with specificity, including the time, place, substance of the false representations, and an identification of what was procured by fraud. A complaint which does not satisfy these requirements fails to state a redressable claim.”) (citation omitted).

The Drivers explicitly contend on appeal they are entitled to a private action due to collusion. Brief of Appellant North Gibson School Corporation at 5. This contention implies that the Drivers alleged collusion in their complaint. Under the broad notice pleading standards, the following portions of the amended complaint do imply an allegation of collusion:

5. Following the awarding of contracts to Bus Corp. the defendant scheduled a series of separate negotiation sessions with each plaintiff/driver.... Present at each of these negotiation sessions was Bus Corp.’s owner....
7. Following the “reverse auction” negotiation process, the plaintiffs were presented with a contract at the reduced price resulting from the “reverse auction” and were told by the defendant’s representative that if the contracts at the stated daily rates were not executed on or before April 8, 2011 the defendant would award the contract to the next lowest bidder which was Bus Corp.
8. The two (2) routes awarded to Bus Corp. were for a daily rate substantially higher than those afforded to the plaintiffs and were obtained by Bus Corp. without Bus Corp. having to participate in the “reverse auction” process.

Appellant’s App. at 12.

B. Proper Defendant

Although the Drivers, in alleging collusion, do have a private right of action, we now turn to whom the law permits them to bring such a cause of action against. More to the point, can the School Corporation be sued?

In Count I of the Drivers’ amended complaint, they allege the School Corporation violated section 3 of the Indiana Antitrust Act and seek relief under section 7, which states:

(a) Any person whose business or property is injured by a violation of this chapter may bring an action in the eir-cuit or superior court of any county in which the defendant resides or is found without respect to the amount in controversy, and is entitled to recover a penalty of threefold the damages awarded in the action, together with the costs of suit, including reasonable attorney’s fees.

Ind.Code § 24-1-2-7.

This case is similar to Brownsburg Cmty. Sch. Corp. v. Notare Corp., 824 N.E.2d 336 (Ind.2005), reh’g denied, in which an unsuccessful bidder alleged a school corporation violated section 3 of the Indiana Antitrust Act and the unsuccessful bidder was entitled to relief under section 7. The court opined that the legislature “did not contemplate a governmental entity as a potential violator” of the Antitrust Act’s substantive provisions, sections 1, 2, and 3. Id. at 341. The court noted with approval a case by our court in which we concluded that governmental entities could not be responsible for criminal acts. Id. (discussing State v. Ziliak, 464 N.E.2d 929 (Ind.Ct.App.1984)). In Brownsburg, the supreme court concluded “neither the State nor any other governmental entity is subject to criminal provisions of the Indiana statutes without the legislation making that result absolutely clear.” Id. After demonstrating this approach is consistent with the laws of the federal government and other states, the court expressly gave its stamp of approval of Ziliak and stated the “legislature did not contemplate a violation of a criminal prohibition by a governmental entity.” Id. at 342-43; see id. at 347 (stating federal antitrust laws “point in the direction of nonliability”).

The supreme court further stated:

The substantive prohibitions of the antitrust laws are criminal in nature. Accordingly, we think the legislation did not contemplate the possibility of a governmental entity engaging in an action forbidden by the statute. Rather, as Section 4 reflects, the statute views governmental entities as victims, not perpetrators, and explicitly relieves them of liability from a contract that was the result of collusive bidding.

Id. at 344.

The court added that the only issue in determining whether a municipal or local government may be hable under antitrust laws is “the intention of the state legislature to impose or withhold liability,” and “[fjor the reasons already given, we do not read our statute to provide liability of governmental agencies.” Id. at 348; see City of Fort Wayne v. Pierce Mfg., Inc., 853 N.E.2d 508 (Ind.Ct.App.2006) (“[I]t is just as important to recognize what the statute does not say as it is to recognize what it does say.”) (quotation omitted), trans. denied. As a result, the court reversed the order of the trial court and remanded with instructions to grant the school corporation’s motion for judgment on the pleadings.

We read Brownsburg to mean that governmental entities cannot be liable for actions prohibited by the Indiana Antitrust Act, and thus the Drivers cannot bring this suit against the School Corporation. See Naugle v. Beech Grove City Schs., 864 N.E.2d 1058, 1064 (Ind.2007) (reiterating the holding of Brownsburg, that school corporations cannot be liable under the Antitrust Act because it is criminal in nature, but stating that school corporations could be liable under the Wage Payment Statute, which is not criminal in nature). Rather, the Antitrust Act provides a cause of action for unsuccessful bidders against other bidders.

For instance, in contrast with the Drivers’ suit here, in Gariup Constr. Co., Inc. v. Carras-Szany-Kuhn & Assoc., P.C., 945 N.E.2d 227 (Ind.Ct.App.2011), trans. denied, an unsuccessful bidder brought suit against the successful bidder and did not join the contract-awarding governmental entity as a defendant. Thus, Gariup demonstrates a suit by the Drivers against Bus Corp. might have been a better strategy. See Thompson v. Vigo Cnty. Bd. of Comm’rs, 876 N.E.2d 1150 (Ind.Ct.App.2007) (wherein an unsuccessful bidder’s suit against the successful bidder would have been allowed to proceed if the unsuccessful bidder could have established he would have been the successful bidder), trans. denied; see also Ind.Code § 24-1-2-4 (stating that where collusion or fraud occurs among bidders, the principal who lets the contract shall not be liable); Trans-Care, Inc. v. Bd. of Comm’rs of Cnty. of Vermillion, 831 N.E.2d 1255, 1262 (Ind.Ct.App.2005) (holding that no cause of action exists where one lacks standing to sue under the Public Lawsuit Act and fails to allege or present evidence of a violation of the Indiana Antitrust Act).

C. Remedy

In response to the School Corporation’s reliance on Brownsburg, the Drivers argue that Brownsburg “only prohibits claims for treble damages against governmental entities under Indiana’s Antitrust Act and does not prohibit claims under the act for compensatory damages.... ” Ap-pellees’ Brief at 4. This is in spite of their complaint stating they seek the remedy provided by section 7 of the Indiana Antitrust Act, which provides for “threefold the damages awarded in the action, together with the costs of suit, including reasonable attorney’s fees.” Ind.Code § 24-1-2-7.

Above we concluded in favor of the School Corporation, that it could not be a defendant in the Drivers’ action. Here we note that, even if the Drivers were correct and the School Corporation could be a defendant, the Drivers would have no remedy, and thus, the Drivers’ claims fail anyway. The Drivers concede that Brownsburg prohibits treble damages as a remedy, and although they do not indicate what remedies they might be entitled to, we presume they are seeking compensatory damages.

We conclude that Brownsburg is also determinative of whether compensatory damages are available. As quoted above, the Brownsburg court stated that the only issue in determining whether a municipal or local government may be liable under antitrust laws is “the intention of the state legislature to impose or withhold liability,” and “[f]or the reasons already given, we do not read our statute to provide liability of governmental agencies.” Id. at 348. The court reversed the order of the trial court and remanded with instructions to grant the school corporation’s motion for judgment on the pleadings.

The court’s statements and instructions to grant the school corporation’s motion for judgment on the pleadings, rather than to limit damages, means that the Drivers cannot bring this suit against the School Corporation—not for treble damages, not for costs of the suit or attorney fees, and not for compensatory damages. In Skyline Roofing & Sheet Metal Co., Inc. v. Ziolkowski Constr., Inc., 957 N.E.2d 176 (Ind.Ct.App.2011), we commented that a party “correctly abandoned] its argument ... [because, the party noted,] a governmental entity cannot be liable for damages under Section 7” of the Antitrust Act. Id. at 189 (emphasis added). The inability to be held liable includes the inability to be held liable for compensatory damages.

Consistent with the conclusions of Skyline Roofing and Bronmsbwrg, we conclude here that the Drivers have no remedy against the School Corporation. Therefore, the trial court’s order denying the School Corporation’s motion to dismiss must be reversed.

Conclusion

The Drivers technically could bring a claim for collusion based on the facts alleged in their complaint, but cannot do so against the School Corporation because the School Corporation is an improper defendant and because the Drivers could not recover any damages from the School Corporation. Therefore, we reverse the trial court’s order denying the School Corporation’s motion to dismiss and remand with instructions to enter an order consistent with this opinion.

Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.

      . It is unclear from the amended complaint whether each of the drivers ultimately signed a contract with the School Corporation.

      . The Drivers' amended complaint states:
      11. The conduct of the defendant constitutes a violation of I.C. § 24-1-2-3 entitling the plaintiffs to relief pursuant to I.C. § 24-1-2-7.
      WHEREFORE, the plaintiffs pray for damages and any and all relief provided for by I.C. § 24-1-2-7; and all other appropriate relief in the premises.
      Appellant’s App. at 13.

      . The court did note that the availability of an injunctive remedy is another question, which is not relevant to the rest of its discussion or the case now before us. See id. at 343 n. 7.

      . As to Count I, the Drivers' amended complaint states: WHEREFORE, the [Drivers] pray for damages and any and all relief provided for by I.C. § 24-1-2-7; and all other appropriate relief in the premises. App. of Appellants at 13. As to Count II, the Drivers' pray for "all proper relief resulting [from the School Corporation's failure to comply with Indiana Code chapter 20-7-5] including the rebidding and/or renegotiation of all contracts and all other relief in the premises.”

      . Following the supreme court’s opinion in Brownsburg. the trial court apparently entered an order which stated in part that the supreme court "did not rule that actual damages were prohibited and thus, this case proceeds against [the School Corporation] as to actual damages only.” Appellant’s App. at 40 (order of the Indiana Supreme Court) (quotation omitted) (emphasis and alteration in original). The supreme court then issued an order, stating: the "Indiana totitrust Act does not create a cause of action against a municipal corporation, and therefore, the School Corporation cannot be held liable for any damages under the Act,” treble or actual. Id. (emphasis added). The Drivers contend that this order has no precedential value and therefore cannot be relied upon here.


author: MAY, Judge.

text:
    Andre GRAHAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A01-1108-CR-440.
    Court of Appeals of Indiana.
    July 27, 2012.

      Jeffrey D. Stonebraker, Clark County Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Andre Graham appeals his convictions of Class A felony dealing in cocaine, Class A felony possession of cocaine, Class B felony dealing in a schedule III controlled substance, and Class D felony possession of a controlled substance. He presents two issues for our review:

1. Whether the trial court erred when it admitted into evidence drugs found as a result of the traffic stop because the seizure violated the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution; and
2. Whether the State presented sufficient evidence Graham intended to deal the drugs in his possession.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 28, 2010, Jeffersonville Police Lieutenant Robert McGhee saw Graham participate in what the Lieutenant believed was a drug deal. Lieutenant McGhee contacted Officer Leverett of the Jeffersonville Police Department, relayed his suspicion, and asked Officer Leverett to intercept Graham’s vehicle.

Officer Leverett stopped Graham after he failed to signal a lane change. Officer Leverett saw there were two passengers in the vehicle with Graham; one seemed nervous and did not make eye contact, and the other appeared intoxicated. Officer Lev-erett asked Graham for his driver’s license, registration, and proof of insurance, and discovered the vehicle was not registered to Graham.

Officer Leverett asked Graham to exit the vehicle and asked if Graham had drugs or guns. Graham stated he did not have a gun, but admitted he had hydrocodone in his pocket for which he did not have a prescription. Officer Leverett placed Graham under arrest, and Graham thereafter surrendered cocaine hidden in his buttocks.

The State charged Graham with four counts of Class A felony possession of cocaine, and one count each of Class A felony dealing in cocaine, Class B felony dealing in a schedule III controlled substance, and Class D felony possession of a controlled substance. Graham moved to suppress the drugs seized during the traffic stop, but the trial court denied his motion. During trial Graham objected to the admission of the evidence from the traffic stop, and the trial court overruled his objection and admitted the evidence. At trial, the State presented evidence Graham possessed over fifty hydrocodone pills, 4.4 grams of cocaine, and $132 in cash when he was arrested.

The jury found Graham guilty of both of the dealing charges, and one each of the possession charges. The trial court entered convictions on all four verdicts, but it sentenced Graham to an aggregate sentence of fifty years with fifteen years suspended for Class A dealing in cocaine and Class B dealing in a schedule III controlled substance.

DISCUSSION AND DECISION

1. Admission of Evidence

Graham did not seek interlocutory review of the denial of his motion to suppress but instead appeals following trial. This issue is therefore “appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.Ct.App.2005). Our review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

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

a. Fourth Amendment

The Fourth Amendment to the United States Constitution provides:

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

The parties do not dispute a traffic stop is akin to an investigative stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, the unreasonableness of an investigative stop is measured by the officer’s actions and whether those actions were “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 19-20, 88 S.Ct. 1868. In Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the United States Supreme Court held “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop” and “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id.

Graham acknowledges “the traffic stop was valid regardless of whether it was a pretext for investigation into drug activity, and the police were authorized to order him to exit the vehicle,” (Br. of Appellant at 15), pursuant to Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, Graham notes, “a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes upon interests protected by the Constitution.” Id. (citing Illinois v. Cab alles, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).) Caballes holds a seizure “that, is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete the mission.” Caballes, 543 U.S. at 407, 125 S.Ct. 834.

Graham argues the traffic stop became unlawful because it was “prolonged beyond the time reasonably required to complete that mission.” (Br. of Appellant at 15.) After Graham was stopped, Officer Lever-ett asked for his driver’s license and registration. Officer Leverett checked the validity of the license plate and for warrants on Graham and the other occupants of the car. Officer Leverett testified it could take up to fifteen minutes to obtain all of the pertinent information from the dispatcher. After receiving the information from the dispatcher, Officer Leverett began issuing Graham a citation for failure to signal a lane change. While he was writing the citation, Officer Leverett asked Graham to exit the car and asked whether he had guns or drugs in the vehicle. Graham admitted he was carrying pills he possessed illegally, and Officer Leverett arrested him. Graham asserts the time of the traffic stop—fifty-eight minutes—was “unreasonably prolonged prior to the officer inquiring about the presence of weapons or guns.” Id.

The State argues the length of the traffic stop, prior to Officer Leverett’s questions, was not unreasonable and thus did not violate Graham’s Fourth Amendment rights. Officer Leverett testified he asked Graham if he had any weapons or drugs while waiting for the warrant checks to come back from dispatch on Graham and the two passengers, which he testified was standard protocol during a traffic stop. When Graham revealed to Officer Leverett his possession of illegal substances, the nature of the stop went from that of a simple traffic stop to a detention based on criminal activity and led to Graham’s arrest. The State cites Washington, 898 N.E.2d at 1205, in which the facts are similar to those in the instant case:

The officer’s brief questioning as ■ to whether the defendant had any weapons, drugs, or anything else that could harm the officer was not itself a search or seizure and thus was not prohibited by the Fourth Amendment. The defendant was not obligated to answer the questions, and his choice to do so and to disclose inculpatory information provided the basis for the officer’s further request for permission to search the defendant’s trouser pockets.

Id.

Washington controls. Graham was under no obligation to answer Officer Lever-ett’s question regarding the presence of drugs or weapons in his car. It was his willingness to do so that resulted in his arrest, not the amount of time it took for Officer Leverett to complete the routine tasks associated with a traffic stop,

b. Article 1, Section 11

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

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

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

Officers are permitted to stop a vehicle when they observe a traffic violation, Black v. State, 621 N.E.2d 368, 370 (Ind.Ct.App.1993), even if the officer may have an ulterior motive of furthering an unrelated criminal investigation. Mitchell v. State, 745 N.E.2d 775, 787 (Ind.2001). The potential for unreasonable search and seizure associated with such a traffic stop is most likely to arise not in the routine handling of the observed traffic violation, but in additional investigatory conduct that may be excessive and unrelated to the traffic law violation. Id.

As in his Fourth Amendment argument, Graham takes issue with the amount of time between the initial stop and his arrest. Graham argues the time he was detained for the traffic stop was unreasonable because it is unclear “what the officer was doing related to the change of lane violation that would account for the other forty to forty-five minutes [considering the license and warrant check took ten to fifteen minutes] between the time of the stop and the time of the arrest.” (Br. of Appellant at 12.) Graham asserts, based on the totality of the circumstances, he was detained for an unreasonable amount of time. However, based on Officer Leverett’s testimony, it would seem Graham mischarac-terizes the length of the stop. WTiile it was fifty-eight minutes in duration total, Officer Leverett testified he questioned Graham while waiting for the warrant checks for Graham and the two passengers, and time passed after Graham admitted to possessing pills.

The State relies on Washington, in which our Indiana Supreme Court held an officer was permitted to ask questions of a detained motorist, including questions regarding the presence of drugs, 898 N.E.2d at 1206, and Lockett v. State, 747 N.E.2d 539, 543 (Ind.2001), holding an officer may ask about the presence of weapons during a traffic stop.

We agree with the State, and hold Officer Leverett’s questions did not unduly prolong the traffic stop to such an extent that it violated Graham’s rights under the Indiana Constitution. While in the process of writing Graham a citation for failure to signal a lane change and waiting for the warrant checks to come back for Graham and his passengers, Officer Leverett asked if Graham had weapons or drugs. Graham did not have to answer Officer Leverett’s question. He volunteered that he possessed pills, which admission led to his arrest and the extended duration of the traffic stop.

2. Sufficiency of the Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

To prove Graham committed Class A felony dealing in cocaine or Class B felony dealing in a Schedule III substance, the State was required to present evidence of Graham’s intent to deal the drugs. See Ind.Code §§ 85-48-4-1 and 2 (requiring possession of drug as well as the “intent to ... deliver”). “Delivery” is “an actual or constructive transfer from one (1) person to another of a controlled substance, whether or not there is an agency relationship[.]” Ind.Code § 35-48-1-11. Graham concedes he possessed the cocaine and hy-drocodone, but argues the State did not prove he intended to deal the drugs.

Graham notes there was no circumstantial evidence from which a reasonable fact finder could determine he had the intent to deal. However, we need not consider circumstantial evidence because Graham admitted at trial he intended to share the pills and cocaine with his friends:

[Defense]: Did you possess that cocaine within [sic] the intent to sell that cocaine for a profit?
[Graham]: No, Sir.
[Defense]: But you did intend to share it with the two (2) other parties in the car?
[Graham]: Yes. We all put in on it.
[Defense]: You all put in on it?
[Graham]: Yes.
[Defense]: As well as the pills?
[Graham]: Yes.

(Tr. at 201.)

As “delivery” is statutorily defined as an actual or constructive transfer from one person to another, Ind.Code § 35-48-1-11, we conclude there was sufficient evidence to prove Graham intended to deliver the drugs in his possession, thus supporting his convictions of dealing.

CONCLUSION

Graham’s federal and state constitutional rights were not violated during the traffic stop that resulted in his arrest for possession of and intent to deal hydroco-done and cocaine. As Graham testified he intended to deliver the drugs in his possession, there was sufficient evidence to prove he committed Class A felony dealing in cocaine and Class B felony dealing in a Schedule III substance. Accordingly, we affirm.

Affirmed.

BAKER, J., and BAILEY, J., concur.

      . Ind.Code§ 35-48-4-l(b).

      . Ind.Code § 35-48-4-6(b)(3).

      . Ind.Code § 35-48-4-2(b).

      . Ind.Code § 35-48-4-7(a).

      .We held oral argument in this case on June 19, 2012, at the Clark County Courthouse in Jeffersonville, Indiana. We thank the Clark and Floyd County Bar Associations, Judge Daniel Moore, and Judge Moore’s staff for their hospitality and preparation for our visit. We also commend counsel on their advocacy.

      . Graham claims the traffic stop lasted fifty-eight minutes, which spanned from the time the vehicle was stopped, until the time Graham was booked. However, Graham was detained during part of that time.


author: FRIEDLANDER, Judge.

text:
    Ronald DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1109-CR-459.
    Court of Appeals of Indiana.
    July 27, 2012.

      Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Ronald Davis pleaded guilty pursuant to a plea agreement to four counts of felony murder, one count of class B felony conspiracy to commit robbery, and one count of class B felony unlawful possession of a firearm by a serious violent felon. The trial court sentenced Davis to an aggregate executed term of 245 years in prison. On appeal, Davis presents the following restated and consolidated issues for review:

1. Does the sentence violate the terms of the plea agreement?
2. Did the trial court abuse its discretion in sentencing Davis?
3. Is Davis’s aggregate sentence inappropriate?

We affirm.

On the evening of January 14, 2008, Zarumin Coleman orchestrated a plan with several individuals, including Davis, to break into an Indianapolis home to steal a large amount of marijuana and possibly cash. After obtaining necessary items for the burglary, Coleman drove Davis, Jasper Frazier, and Donte Hobson to the home at 3283 North Hovey Street. The men agreed that Davis and Frazier would be the ones to break into the home while Coleman and Hobson waited in the SUV.

When Davis and Frazier were unsuccessful at entering through the front door, they went back to the SUV. Hobson suggested that they use a crowbar to get in. Davis and Frazier, armed with handguns, went back to the home with the crowbar and eventually gained entry by breaking through a window near the front of the house. Upon entering the house, the men did not find drugs or money, but they eventually located two women hiding with their two babies between a wall and a bed in a back bedroom. The women pleaded for their lives and the lives of their babies. Upon demands for the location of the drugs, Gina Hunt repeatedly indicated that the drugs were no longer at the home and had been taken elsewhere.

Ultimately, all four victims were shot and killed by one gunman. Gina sustained seven gunshot wounds, including to her right arm, thighs, pelvis, and face. Gina’s twenty-three-month-old son, Jordan, was shot in the face and chest. The autopsy report revealed the presence of gun powder stippling on the child’s cheek. Andrea Yarrell was shot in the back and the wrist, while her five-month-old daughter, Charlii, was shot in the head and the arm. Frazier and Davis fled after the shooting, and dropped their weapons and other evidence near the home, as police were responding to the area.

Over the next two days, tips came into police indicating that Coleman and Davis might have been involved in the crime. Coleman was arrested on other charges on January 17, and denied any involvement in the instant crime. That same day, detectives learned that Frazier (whose name had not come up in the investigation) was in Ohio and willing to provide information. Early on January 18, Frazier voluntarily came back to Indianapolis and provided a detailed statement to police in exchange for an agreement from the prosecutor not to file murder charges against him. Frazier openly admitted substantial involvement in the crime but indicated that Davis was the actual shooter. According to the lead detective, Frazier broke the case for police. Thereafter, in exchange for similar deals, Coleman and Hobson provided corroborating statements (and later depositions) implicating Davis, as well as themselves. Davis was arrested at his mother’s home on January 18 and eventually admitted being involved with the crime, but he claimed Frazier was the shooter.

On January 23, 2008, the State charged Davis with four counts of murder, four counts of felony murder, and one count each of conspiracy to commit robbery as a class A felony, attempted robbery as a class A felony, burglary as a class A felony, and unlawful possession of a handgun by a serious violent felon as a class B felony. The State filed a death-sentence request the following day.

More than two and one-half years after being charged in this case, Davis entered into a plea agreement with the State. Pursuant to the agreement, Davis pleaded guilty to four counts of felony murder (Counts V-VIII), one count of conspiracy to commit robbery reduced to a class B felony (Count IX), and one count of unlawful possession of a handgun by a serious violent felon, a class B felony (Count XII). In exchange, Davis avoided the death penalty and the State dropped the remaining counts. Sentencing was left to the discretion of the trial court, with the exception that the sentence for conspiracy, Count IX, would run concurrently with the other counts. Accordingly, Davis faced a sentence of between 45 and 280 years.

Following a lengthy sentencing hearing on November 10, 2010, the trial court sentenced Frazier to an aggregate sentence of 245 years in prison. Specifically, the court imposed 60 years for each of Counts V, VII, and VIII, 65 years for Count VI (the murder of Jordan Hunt), 20 ye'árs for Count IX, and 20 years for Count XII. The sentences for each murder were ordered to be served consecutively, while the remaining sentences were ordered to be served concurrently with Count V.

On December 10, 2010, Davis filed a motion to correct error. The trial court held a hearing on April 20, 2011 and took the matter under advisement. On August 16, 2011, the trial court issued a detailed order denying the motion and clarifying its original sentencing order. Davis now appeals.

1.

Davis initially claims that “the 285-year actual sentence” imposed violates the terms of his plea agreement. Appellant’s Brief at 24. This claim is wholly without merit. As set forth above, Davis received an aggregate sentence of 245 years. The plea agreement provided in relevant part:

The sentence to be imposed upon the Defendant shall be left to the discretion of the Court with the parties free to argue terms. However, the State agrees that the sentence on Ct. IX (Conspiracy) shall run concurrent with any other sentence imposed.

Appellant’s Appendix at 1636. Accordingly, the trial court properly indicated at the guilty plea hearing that Davis faced a maximum sentence of 280 years in prison. Davis, in fact, received a sentence below the maximum in part because the trial court ordered both Counts IX and XII to be served concurrently with one of the felony-murder counts. The 245-year sentence imposed clearly did not violate the terms of the plea agreement.

2.

Davis contends the trial court abused its discretion in sentencing him. Specifically, he argues that the trial court found an improper aggravator, failed to find a mitigating factor clearly supported by the record, and failed to adequately consider the comparative culpability of him and his co-defendants. We will address each in turn.

It is well settled that sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. The trial court must enter a sentencing statement that includes the court’s reasons for the imposition of the particular sentence. Id. If the statement includes a finding of aggravating and/or mitigating circumstances, then the statement must identify all significant mitigating and aggravating circumstances. Id. An allegation that the court failed to find a particular mitigator requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Webb v. State, 941 N.E.2d 1082 (Ind.Ct.App.2011), trans. denied. “The relative weight given to the aggravating and mitigating factors is not subject to review.” Id. at 1088.

With respect to the murder of twenty-three-month-old Jordan Hunt, the trial court found the stippling on his left check to be an aggravating factor because it indicated a “close contact” wound. Transcript at 275. Davis responds on appeal, noting the lack of a muzzle imprint: “[t]he wound was a close-range wound, not a contact wound.” Appellant’s Brief at 15. The trial court’s language is imprecise, as the court apparently conflated the two terms, but the most reasonable interpretation of the court’s statement is that it found the fact that the child was shot in the face at close range to be an aggravating factor. We find no abuse of discretion in this regard.

Davis next argues that the trial court failed to consider his significant brain damage as a mitigating factor. He claims that he presented evidence of both mental illness and brain damage and that the trial court improperly considered them together in discussing his “mental health issues” as mitigating factors. Transcript at 263.

Our review of the record reveals that the trial court fully considered the medical evidence relating to Davis’s mental illness (signs of paranoid schizophrenia and symptoms of PTSD) and brain damage. The practical and relevant effect of both was impaired decision making, including planning, moral judgment, and impulse control. Contrary to Davis’s assertions on appeal, his mental illness and brain damage were not clearly presented to the trial court as independent mitigating factors. To be sure, at the sentencing hearing, defense counsel discussed these issues together and along with the conclusions of three experts, noting “Dr. Ferrar, Dr. Hanlon and Dr. Gurr, all came to similar conclusions through independent work.” Id. at 226. In sum, the trial court entered into a detailed discussion of Davis’s psychological and physiological issues when imposing sentence and found them to be of some mitigating weight. We find no error. Moreover, even if we were to find an abuse of discretion, we are confident that the trial court would have imposed the same sentence had it considered Davis’s mental illness and brain damage as separate miti-gators and, therefore, remand would be unnecessary. See Anglemyer v. State, 868 N.E.2d 482.

Finally, with regard to abuse of discretion, Davis argues that “the notion of comparative culpability should work as a mitigating factor in his case.” Appellant’s Brief at 20. He directs us to Cardwell v. State, 895 N.E.2d 1219 (Ind.2008) in support of his claim that comparative culpability is a proper mitigating factor, which the trial court refused to accept. In Cardwell, our Supreme Court expressly reaffirmed that “[n]o authority requires co-participants to receive proportional sentences.” Id. at 1225 (citing Lopez v. State, 527 N.E.2d 1119 (Ind.1988)). As a result, the Court held that the trial court did not abuse its discretion in refusing to find the relatively slight sentence imposed on Cardwell’s codefendant to be mitigating. The same is true in this case.

3.

Davis urges that his 245-year aggregate sentence is inappropriate. We have the constitutional authority to revise a sentence if, after careful consideration of the trial court’s decision, we conclude the sentence is inappropriate in light of the nature of the offense and character of the offender. See Ind. Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482. Even if a trial court follows the appropriate procedure in arriving at its sentence, we maintain the constitutional power to revise a sentence we find inappropriate. Hope v. State, 834 N.E.2d 713 (Ind.Ct.App.2005). Although we are not required under App. R. 7(B) to be “extremely” deferential to a trial court’s sentencing decision, we recognize the unique perspective a trial court brings to such determinations. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). The burden of persuading us that the sentence is inappropriate is on the defendant. Rutherford v. State, 866 N.E.2d 867.

Davis cannot seriously challenge his sentence on the basis of the nature of the offense, which is among the most heinous in Indiana’s history. Gina Hunt and Andrea Yarrell were hiding with their babies in a back bedroom, cowering on the floor between a bed and a wall, as Davis and Frazier broke into the residence to steal drugs. Upon being discovered and threatened, Gina indicated that there were no drugs in the home, and she and Andrea pleaded for their own lives and the lives of the two babies. The young women and children were then senselessly and violent ly murdered just before Davis and Frazier left with nothing. Each victim was shot multiple times. The five-month old and twenty-three-month old were shot in the head, one of them at close range. After a thorough review of the record, we agree with the trial court that all signs (aside from Davis’s self-serving statements) point to Davis as the actual shooter, not Frazier. The 245-year sentence is in no way inappropriate in light of the nature of the offense.

With respect to his character, Davis merely points out that he had a horrific childhood and suffers from mental illness and brain damage. We do not doubt this to be true and deserving of some mitigating weight. As the trial court aptly observed, however, these issues do not make Davis any less dangerous. On the contrary, they indicate a propensity for serious criminal behavior that is, in fact, reflected in his criminal history.

Davis was thirty-three years old when he was sentenced in the instant case, and he has spent most of his adult life incarcerated. In 1994, Davis was committed to the Indiana Boys School at the age of seventeen after having been found to have committed an act that would have been class A felony dealing in cocaine if committed by an adult. In October 1996, he committed class B felony dealing in cocaine and was sentenced to ten years executed on May 9, 1997. He was released to parole supervision twice (2002 and 2006) but was returned to prison within a matter of months each time due to parole violations. While on parole the first time, he committed class D felony criminal confinement and misdemeanor battery. Davis was released to parole supervision a third time in April 2007 and was subsequently released from parole on October 18, 2007. He committed the instant crimes three months later.

We agree with the State and the trial court that Davis is a dangerous person from whom society must be protected. In light of Davis’s character and the particularly heinous nature of the crime, we conclude that his 245-year sentence is not inappropriate.

Judgment affirmed.

MAY, J., and BARNES, J., concur.

      . Frazier, Coleman, and Hobson, as well as another individual, were charged in the same criminal information. The State charged Frazier with three class A felony counts—conspiracy to commit robbery, attempted robbery, and burglary—as well as a misdemean- or handgun offense. Coleman was charged with the conspiracy count, class D felony criminal confinement (of Frazier from January 16 to 17), and class B felony unlawful possession of a handgun. Hobson was charged with the conspiracy count, as well as class B felony unlawful possession of a handgun.

      . Moreover, we note that Frazier pleaded guilty to class B felony conspiracy to commit robbery, class A felony attempted robbery, and a class A misdemeanor handgun offense. The trial court imposed the maximum sentence on all counts and ordered the felonies to be served consecutively, resulting in an aggregate sentence of seventy years in prison. The only crime for which Davis and Frazier were both convicted was the conspiracy, and they each received the same twenty-year sentence on that count. Thus, the sentences are in fact comparable to the limited extent that they can be compared.

      . It is important to note that Davis served nearly all ten years of his sentence as a result of losing credit time due to a number of misconduct incidents while in prison.


author: BRADFORD, Judge. VAIDIK, Judge,

text:
    John CHERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A01-1112-CR-585.
    Court of Appeals of Indiana.
    July 27, 2012.

      Ryan P. Dillon, Law Office of Ryan P. Dillon, P.C., Franklin, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant John Cherry appeals from his convictions of and sentences for Class B felony Aiding, Inducing, or Causing Dealing in Heroin and Class D felony Unlawful Possession of a Syringe. As restated, Cherry contends that the trial court abused its discretion in admitting certain evidence, the State failed to produce sufficient evidence to sustain his convictions, the trial court abused its discretion in denying his mistrial motion, and his sentence is inappropriately harsh. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 24, 2011, Morgan County Sheriffs Deputy Larry Sanders learned from a confidential informant (“Cl”) that Austin Quick, from whom the Cl had previously purchased heroin, was presently dealing in heroin. Detective Sanders contacted Detective Brian Chambers and Sergeant John Richards of the Martinsville Police Department to assist in a controlled drug buy. Quick was riding in a truck with Cherry, driver Cheyne Smith, Angela Montgomery, and Brenda Loy when he received a telephone call, whereupon he asked Smith to drive to an alley where the controlled buy was to occur.

When the truck arrived at the meeting location, Quick and Cherry noticed police in the area, and Quick told Smith to keep driving. Before police pulled the truck over, Quick ingested two “balloons” that contained “tar” heroin. Tr. pp. 155,156. From along the path traveled by the truck, Martinsville Police Detective Timothy Foley recovered two syringes and a spoon with residue wrapped in a string or rope. Heroin in tar form is heated until liquid for injection, a process “[a] lot of people” carry out using a spoon. Tr. p. 79.

Detective Chambers stopped the truck after a short chase, its occupants were removed, and Detective Sanders began obtaining information from them. While Detective Sanders was speaking to Montgomery, Cherry asked to speak with him. Cherry told Detective Sanders that Quick was “not the person that [he] wanted” and that “[h]e was the person supplying the heroin.” Tr. p. 70. Cherry repeated the statement after Detective Sanders called another police officer over. Sergeant Richards recovered a syringe from Cherry’s right front pants pocket, and Cherry was transported to the Morgan County Sheriffs Department. Detective Sanders proceeded to question Cherry, who told Detective Sanders that Quick was dealing heroin and that he was supplying it to Quick. Cherry explained that he had stayed at a friend’s house “right behind the Rural King” the night before, had received some money for scrap metal that morning, and had then driven to Indianapolis with Quick to purchase heroin. State’s Ex. 3. Detective Sanders also interviewed Quick, who told him that he sold heroin for Cherry.

The State charged Cherry with two counts of Class B felony aiding, inducing, or causing dealing in heroin and Class D felony unlawful possession of a syringe. At trial, the State’s first witness testified that the balloons Quick had swallowed, and which were later recovered, contained heroin, and a laboratory report to that effect was entered into evidence. As is happened, however, the report was later withdrawn when the trial court ruled that the State had failed to establish a sufficient chain of custody for the heroin. Cherry moved for a mistrial and then requested an admonition, and the trial court admonished the jury not to consider any evidence from the witness who had testified regarding the test results or the laboratory report. The jury found Cherry guilty as charged, and the trial court sentenced him to ten years of incarceration for aiding, inducing, or causing dealing in heroin, with two years suspended and to be followed by four years of probation, and a concurrent three years for Class D felony unlawful possession of a syringe.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence

The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002), trans. denied. We will reverse a trial court’s decision on the admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence, and consider the evidence most favorable to the trial court’s ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied.

A. Statements to Detective Sanders

Cherry contends that the trial court abused its discretion in admitting his videotaped statement to Detective Sanders because any probative value is outweighed by its prejudicial effect and because the State had failed to previously establish a corpus delicti at trial.

1. Evidence Rule 403

Indiana Evidence Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Cherry argues that the prejudicial effect of his admissions to acts unrelated to the events of May 24, 2011, only served to inflame the jury. Specifically, Cherry challenges his admission that he had driven with Quick to purchase heroin on previous occasions.

We cannot conclude that the trial court abused in discretion in this regard. First, we find the statement that Cherry and Quick had worked together in the past to be highly relevant to the question of Cherry’s intent on May 24, 2011. Moreover, the record contains ample evidence from other sources that Cherry was helping Quick to deal heroin, including Cherry’s statement to Detective Sanders at the scene that he was the person supplying the heroin and Quick’s own statement to Detective Sanders that he sold heroin for Cherry. In light of the substantial evidence that Cherry and Quick were working together on May 24, 2011, we doubt the jury was much affected by evidence that the duo had worked together in the past. The trial court did not abuse its discretion in this regard.

2. Corpus Delicti

Cherry argues that his videotaped statement was inadmissible because the State had not yet established a corpus delicti for the aiding, inducing, or causing heroin dealing charge when it was admitted. “Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone.” Taylor v. State, 236 Ind. 415, 421, 140 N.E.2d 104, 108 (1957).

For a confession to be admitted into evidence, the State must establish the corpus delicti. Rickey v. State, 661 N.E.2d 18, 23 (Ind.Ct.App.1996), trans. denied. The purpose for requiring proof of the corpus delicti is to prevent the admission of a defendant’s confession to a crime that never occurred. Hurt v. State, 570 N.E.2d 16, 19 (Ind.1991). The State is not required to prove the corpus delicti beyond a reasonable doubt, but must present independent evidence from which an inference may be drawn that a crime was committed. Douglas v. State, 481 N.E.2d 107, 110 (Ind.1985). The corpus delicti need not be established prior to admission of the confession so long as the totality of independent evidence presented at trial establishes it. Morgan v. State, 544 N.E.2d 143, 146 (Ind.1989). The corpus delicti may be established by circumstantial evidence. Grey v. State, 273 Ind. 439, 442, 404 N.E.2d 1348, 1350 (1980).

Weida v. State, 693 N.E.2d 598, 600 (Ind.Ct.App.1998), trans. denied. Regardless of the order of the presentation of evidence, the totality of the evidence apart from Cherry’s confession, specifically Quick’s admission and the fact that the truck reported as instructed for a controlled drug buy, established that a crime was committed. The trial court did not abuse its discretion in admitting Cherry’s videotaped statement.

B. Syringes Found Near the Truck’s Route

Cherry contends that the trial court abused its discretion in admitting the syringes found near the truck’s route following the traffic stop. Cherry has, however, waived this argument for appellate consideration. Although Cherry initially objected to the admission of the syringes, he did not object when they were actually admitted into evidence. The purpose of the contemporaneous objection rule is to promote a fair trial by preventing a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him. Purifoy v. State, 821 N.E.2d 409, 412 (Ind.Ct.App.2005), trans. denied (citation omitted). “The rule requires parties to voice objections in time so that harmful error may be avoided or corrected and a fair and proper verdict will be secured.” Id. Because Cherry did not object to the admission of the syringes found by the road, he has waived the issue on appeal.

II. Whether the State Produced Sufficient Evidence to Sustain Cherry’s Convictions

Our standard of review for challenges to the sufficiency of the evidence supporting a criminal conviction is well-settled:

In reviewing a sufficiency of the evidence claim, the Court neither reweighs the evidence nor assesses the credibility of the witnesses. We look to the evidence most favorable to the [finding of guilt] and reasonable inferences drawn therefrom. We will affirm the conviction if there is probative evidence from which a reasonable [finder of fact] could have found Defendant guilty beyond a reasonable doubt.

Vitek v. State, 750 N.E.2d 346, 352 (Ind.2001) (citations omitted).

A. Aiding, Inducing, or Causing Heroin Dealing

In order to convict Cherry of aiding, inducing, or causing heroin dealing, the State was required to establish that he aided, induced, or caused Quick to possess, with intent to deliver, heroin. Ind.Code §§ 35—41-2-4; 35-48^1-1 (a)(2)(C). Cherry argues that the State produced insufficient evidence to establish that the substance in the balloons Quick swallowed was actually heroin. While it is true that neither the substance nor direct evidence of the substance’s identity was admitted at trial, “[t]he State is not required to introduce the subject contraband to obtain a conviction for dealing or possession.” Helton v. State, 907 N.E.2d 1020, 1024 (Ind.2009) (citations omitted). “The identity and quantity of a controlled substance, and the defendant’s possession of or dealing in narcotics, may all be established through witness testimony and circumstantial evidence.” Id. (citations omitted). “The exclusion of the seized items [does not foreclose] prosecution and conviction based on other evidence.” Id.

The State produced sufficient circumstantial evidence to establish that Quick possessed heroin. At the very least, Quick testified that he swallowed two balloons of tar heroin in his possession, and Cherry testified that all five persons in the truck were “hard-core junkies[.]” Tr. p. 215. The jury was entitled to conclude from this testimony that Quick knew how to identify heroin and that the substance he possessed was, in fact, heroin, despite the lack of test results to that effect. Moreover, Quick admitted to police that he sold heroin for Cherry, and Cherry admitted to police that he supplied Quick with heroin. The jury was entitled to find from this evidence that Quick had obtained the heroin from Cherry and that Quick intended to deal it. The State produced sufficient evidence to sustain Cherry’s conviction for aiding, inducing, or causing heroin dealing.

B. Unlawful Possession of a Syringe

In order to convict Cherry of unlawful possession of a syringe, the State was required to establish that he “possessed] or ha[d] under control with intent to violate [the Indiana Legend Drug Act] a hypodermic syringe or needle or an instrument adapted for the use of a legend drug by injection in a human being.” Ind.Code § 16-42-19-18; see also Ind.Code § 16-42-19-13 (2011) (“A person may not possess or use a legend drug or a precursor unless the person obtains the drag ... on the prescription or drug order of a practitioner; ... in accordance with section 11(2) or 21 of this chapter; or ... in accordance with rules adopted by the board of pharmacy under IC 25-26-23.”). The hypodermic syringe was found in Cherry’s pocket, and Cherry testified that he had “been a hard-core junkie for about five years” and that “most of the time I have paraphernalia on me.” Tr. pp. 214-15. Cherry also testified that he usually took heroin by injecting it with a syringe. The jury was entitled to conclude that Cherry possessed the syringe found in his pocket with the intent to use it to inject heroin in violation of the Indiana Legend Drug Act. The State produced sufficient evidence to sustain both of Cherry’s convictions.

III. Whether the Trial Court Abused its Discretion in Denying Cherry’s Mistrial Motion

Cherry contends that the trial court abused its discretion in denying his mistrial motion, which was made after the trial court withdrew the laboratory report indicating that the substance Quick had injected was heroin.

We review a trial court’s decision to deny a mistrial for abuse of discretion because the trial court is in “the best position to gauge the surrounding circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253, 260 (Ind.2004). A mistrial is appropriate only when the questioned conduct is “so prejudicial and inflammatory that [the defendant] was placed in a position of grave peril to which he should not have been subjected.” Mickens v. State, 742 N.E.2d 927, 929 (Ind.2001) (quoting Gregory v. State, 540 N.E.2d 585, 589 (Ind.1989)). The gravity of the peril is measured by the conduct’s probable persuasive effect on the jury. Id.

Pittman v. State, 885 N.E.2d 1246, 1255 (Ind.2008).

When faced with a circumstance that a defendant believes might warrant mistrial,

[generally, the correct procedure is to request an admonishment. See Brown v. State, 572 N.E.2d 496, 498 (Ind.1991). However, if counsel is not satisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the error, counsel may then move for a mistrial. See Dresser v. State, 454 N.E.2d 406, 407-08 (Ind.1983). [A] failure to request an admonishment or move for a mistrial results in waiver of the issue. See Robinson v. State, 693 N.E.2d 548, 552 (Ind.1998).

Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999).

Here, Cherry moved for a mistrial and then requested an admonition, which the trial court then gave. “[W]here the trial court adequately admonishes a jury, an admonishment is presumed to cure any error that may have occurred.” Emerson v. State, 952 N.E.2d 832, 840 (Ind.Ct.App. 2011) trans. denied. We conclude that the trial court adequately admonished the jury and that Cherry has failed to rebut the presumption that this cured any error that might have occurred. The trial court admonished the jury to disregard any testimony from the sponsor of the laboratory report and removed the report itself from evidence. Moreover, the jury was told in preliminary and final instructions that it should not consider testimony or evidence that was not admitted or stricken from the record. Cherry points to no indication in the record to indicate that the jury failed to take the instructions and admonition to heart, and our review reveals none. Because Cherry offers nothing but conclusory statements that the admonition was ineffective, he has failed to establish that the trial court abused its discretion in denying his mistrial motion.

IV. Whether Cherry’s Sentence is Inappropriate

We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App.2006), trans. denied (citations and quotation marks omitted). As previously mentioned, the trial court sentenced Cherry to an aggregate sentence of ten years of incarceration, with two years suspended and four years of probation.

The nature of Cherry’s offense is not as egregious if looked at as an isolated incident. It was, however, merely one incident of many in what appears to have been a drug-dealing operation of some scope and duration. Cherry admitted to buying and delivering heroin on a regular basis, making up to three runs to Indianapolis daily to purchase more product from the Mexican Mafia. Cherry was an admitted conduit for heroin infiltration in Martins-ville. The nature of Cherry’s offense justifies his sentence.

As for Cherry’s character, it is that of an admitted long-term polysubstance abuser and drug dealer, who has made only cursory attempts at rehabilitation. Cherry has one prior conviction, for assisting a criminal, and, as of sentencing had pending misdemeanor charges in Georgia and pending drug-related felony charges in Indiana, for which he was out on bond when he committed the instant offenses. Cherry had been written-up twice during a previous incarceration and was written up three times while incarcerated awaiting sentence in this case. Cherry, who was thirty-one at sentencing, admitted to using Xanax and heroin daily since the age of twenty-five and has also admitted to using marijuana, mushrooms, cocaine, Valium, and Morphine. Despite his history of substance abuse, Cherry has participated in only one inpatient treatment program. As with the nature of his offenses, Cherry’s character fully justifies his sentence. Cherry has failed to establish that his sentence is inappropriate.

We affirm the judgment of the trial court.

VAIDIK, J., concurs in part and dissents in part.

CRONE, J., concurs.

VAIDIK, Judge,

dissenting in part and concurring in part.

I respectfully dissent from the majority’s conclusion that the evidence is sufficient to support Cherry’s conviction for Class B felony aiding, inducing, or causing dealing in heroin. Because I believe that the evidence is insufficient to prove that the substance in the balloons that Quick swallowed was actually heroin, I would reverse Cherry’s conviction.

The identity of a drug is an essential element of a crime that the State must prove beyond a reasonable doubt. As our Supreme Court has explained, the identity of a drug “has long been a metaphysical cornerstone of our criminal law.” Slettvet v. State, 258 Ind. 312, 280 N.E.2d 806, 809 (1972). Generally, the identity of a drug is proven by expert testimony based on chemical analysis. There have been cases, however, where circumstantial evidence has been used to prove the identity of a drug. Clifton v. State, 499 N.E.2d 256, 258 (Ind.1986). For example, in the absence of chemical analysis, police officers, based on their specialized training, can identify a drug. See Halsema v. State, 823 N.E.2d 668, 673 n. 1 (Ind.2005) (“Here, investigating officer Troy Harris testified that he received special training concerning the production, manufacture, and distribution of methamphetamine. The officer explained that the drug is highly addictive, that it can be produced from various household items, and he described the various methods of ingestion. When asked to identify State’s Exhibit # 30, the contents of a plastic evidence bag containing items retrieved from the bedroom dresser drawer, Officer Harris testified, ‘it’s methamphetamine.’ This testimony was sufficient [even in the absence of expert testimony based on chemical analysis].” (citations omitted)); see also Doolin v. State, 970 N.E.2d 785, 790 (Ind.Ct.App.2012) (concluding that the police officer’s experience, training, and personal observations, along with “other circumstantial evidence,” “sufficiently established the identity of the substance as marijuana”). Also in the absence of chemical analysis, someone sufficiently experienced with drugs, such as a drug addict, may testify that the substance is indeed a dangerous drug. 28A C.J.S. Drugs and Narcotics § 415 (2008); see also Clifton, 499 N.E.2d at 258. In those cases, the testimony of long-time addicts that their physiological and psychological reactions after the use of a particular substance was the same as they had previously experienced from the use of narcotics will sustain a finding that the substance used by such addicts in fact contained a narcotic drug. 28A C.J.S. at § 415.

Neither, however, happened in this case. Although the lab report was initially admitted into evidence, the trial court later withdrew it because of chain-of-custody problems for the heroin. Quick testified at trial that the substance in the balloons was tar heroin. Tr. p. 155-56, 158. Tar heroin is usually packaged in balloons. Id. at 78. When asked how he knew it was heroin, Quick responded because he “purchased” it from a dealer in Indianapolis and was “told” that it was heroin. Id. at 158, 177. Quick admitted, however, that he did not know what was inside the balloons because he never opened them either before or after they passed through his digestive system at the hospital. Id. at 158-59. Quick explained that on at least one occasion when he bought from this same dealer, he was told that it was heroin, but it was not. Id. at 188.

As the majority points out, Cherry admitted to police that he supplied heroin to Quick. Regardless of this fact, Cherry testified at trial that he did not know that Quick had heroin on him that particular day, and Cherry never admitted that the substance in the balloons that Quick swallowed was heroin. Simply put, there was no testimony in this case of someone sufficiently experienced with the drug indicating that the substance in the balloons was indeed a dangerous drug. See Halsema, 823 N.E.2d at 673 n. 1; Slettvet, 280 N.E.2d at 808. No police officer identified the substance in the balloons as heroin. And even though Quick and Cherry may have been hard-core heroin junkies, because Quick and Cherry never tested or even saw the substance in the balloons, there was no testimony in this case that the substance in the balloons was actually heroin. I would therefore reverse Cherry’s conviction for Class B felony aiding, inducing, or causing dealing in heroin. I otherwise concur with the majority as to Cherry’s conviction and sentence for Class D felony unlawful possession of a syringe.

      . Ind.Code §§ 35-41-2-4 (2010); 35-48-4-1(a)(2)(C) (2010).

      . Ind.Code § 16-42-19-18 (2010).

      . One count of aiding, inducing, or causing dealing in heroin was later dismissed.