author: GARRARD, Senior Judge.

text:
    Karla P. ESTRADA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1110-CR-474.
    Court of Appeals of Indiana.
    June 22, 2012.

      Scott H. Duerring, Marielena Duerring, Duerring Law Offices, South Bend, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

GARRARD, Senior Judge.

STATEMENT OF THE CASE

Karla P. Estrada appeals her convictions and aggregate twenty-four-year sentence for two counts of Class B felony armed robbery as an accomplice and one count of Class C felony conspiracy to commit robbery. We affirm.

ISSUES

Estrada presents four issues, which we reorder and restate as:

I. Whether the trial court abused its discretion by denying her motion to dismiss.
II. Whether the trial court abused its discretion by admitting her statement to police into evidence.
III. Whether her conspiracy conviction violates Indiana’s double jeopardy prohibition.
IV. Whether her twenty-four-year sentence is inappropriate.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of May 2, 2009, seventeen-year-old Estrada asked Luis Torres, Diego Gonzalez, and Jorge Ochoa for help. She told them that she needed money to send to her cousins in Texas. Torres suggested that they rob a gas station, and everyone agreed.

Estrada drove Torres, Gonzalez, and Ochoa to the 7-EIeven on County Road 24 and State Road 19 in Elkhart County. Torres and Ochoa went into the store with their hoods up and masks on. Torres had a hand under his clothing as if he had a gun. Ochoa held a beer bottle by its neck like a club. Torres ordered, “Give me the fuckin’ money.” Tr. p. 230. The store clerk opened both registers and handed Torres about $600. Torres and Ochoa ran to the car. Estrada drove them away.

In the car, the four decided to commit another robbery. About a half an hour after the first robbery, Estrada parked near the 7-Eleven on Old U.S. 20 and County Road 13 in Elkhart County. Torres and Gonzales went into the store with their hoods up and masks on. Torres had a beer bottle under his clothing as if he had a gun. Gonzalez had a beer bottle in his hand. Torres ordered, “Give me your fuckin’ money, bitch.” Id. at 106. The store clerk opened a register and handed Gonzalez $300. Torres and Gonzalez ran to the car. Estrada drove them away.

In the car, Torres suggested that they go to a third location. About an hour later, Estrada parked near a Speedway gas station. Torres and Ochoa went into the store, but this time, they carried no weapons. Torres demanded money from the store clerk, who handed him $500. Torres and Ochoa ran to the car. Estrada drove to Torres’s and Gonzalez’s apartment, where the four split the money from all three robberies.

On May 8, 2009, the group committed a robbery at a Huck’s gas station. On May 9, 2009, they committed a robbery at a different 7-Eleven. Each time, the males entering the store had their hands under their clothing as if they had weapons, but no weapons were seen.

The robberies went unsolved until around February 2010, when Torres was arrested in Noble County for illegal consumption of alcohol by a minor. While being booked into jail, Torres, drunk, told an officer that he had been involved in several robberies. Detective Mitch Hersh-berger from the Goshen Police Department later spoke with Torres, who implicated himself, Estrada, Gonzalez, and Ochoa in the robberies.

Detective Hershberger went to Estrada’s place of employment, told Estrada that her name had come up in connection with an incident, and asked her to accompany him to the police station. Detective Hershberger, then called Estrada’s home and requested that her parents or guardian meet them at the station.

Estrada’s mother Patricia Estrada arrived with Edwin Cerone, a man she identified as her husband. Because Patricia spoke Spanish but no English, Detective Hershberger asked Officer Mario Mora, who was fluent in Spanish, to translate. Officer Mora brought with him a juvenile advisement of rights form that had been translated into Spanish. The form contained two sections: the top of the form listed each of the juvenile’s rights, and the bottom of the form consisted of a paragraph acknowledging and waiving the juvenile’s rights as well as a space for the juvenile and his or her parent or guardian to sign the waiver. Officer Mora read off each right listed on the form. He then asked Patricia and Cerone if they wanted to talk with Estrada. Patricia said no. Officer Mora then handed the form to Cerone, who gave it to Patricia, who gave it to Estrada. Patricia asked if she should sign the form, and Officer Mora responded that she needed to read it. Estrada read the waiver paragraph at the bottom of the form to Patricia while Patricia looked at the form over Estrada’s shoulder. Estrada and Patricia then signed the waiver. Estrada said that she understood everything and told Patricia that she was going to talk with Detective Hershberger. Officer Mora again asked Patricia if she wanted to talk with Estrada. Patricia said no. During the interview, Estrada admitted that she knew Torres, Gonzalez, and Ochoa and that she had been involved in the Speedway robbery. Even though the Speedway robbery did not involve any weapons, Estrada stated that a bottle was used.

In March 2010, the State filed a delinquency petition against Estrada for three counts of Class C felony robbery if committed by an adult. The petition covered the last three robberies, where no weapons were seen: the Speedway robbery on May 2, 2009, the Huck’s robbery on May 8, 2009, and the 7-Eleven robbery on May 9, 2009. Estrada admitted to the allegations and was adjudicated a delinquent.

In May 2010, the State charged Estrada with two counts of Class B felony armed robbery as an accomplice based on the first two robberies. Ind.Code §§ 35-42-5-1 (1984), 35-41-2-4 (1977). The State also charged her with one count of Class C felony conspiracy. Ind.Code § 35-41-5-2 (1977). Estrada filed a motion to dismiss the case, arguing that her adult criminal prosecution was barred by her juvenile adjudications on the three other robberies. After a hearing, the trial court denied the motion.

During the course of her jury trial in August 2011, Estrada filed a motion to suppress her statement to Detective Hershberger. After a hearing outside the presence of the jury, the trial court denied the motion. When the trial continued, Estrada’s statement was admitted over objection. The jury found Estrada guilty of all three charges, and the trial court later sentenced her to an aggregate term of twenty-four years. Estrada now appeals.

DISCUSSION AND DECISION

I. MOTION TO DISMISS

Estrada first challenges the trial court’s denial of her motion to dismiss. We review a trial court’s denial of a motion to dismiss for an abuse of discretion. Allen v. State, 956 N.E.2d 195, 196 (Ind.Ct.App.2011). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law. Id. at 196-97. We may affirm a trial court’s judgment if it is sustainable on any basis in the record. Benham v. State, 637 N.E.2d 138,138 (Ind.1994) (affirming trial court’s denial of motion to dismiss on different basis than trial court).

Estrada contends that the trial court should have granted her motion to dismiss because the charges were barred by Indiana Code section 35-41-4-4 (1977), the successive prosecution statute, which provides in relevant part:

(a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
(3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.

Specifically, Estrada argues that she was subjected to a juvenile proceeding for the last three robberies, that the proceeding resulted in juvenile adjudications for what would be Class C felony robbery if committed by an adult, and that the criminal charges here are for offenses that should have been charged in the juvenile proceeding. The State responds that the successive prosecution statute does not apply because juvenile proceedings are civil matters and do not result in criminal convictions.

We need not decide whether Indiana Code section 35-41-4-4 applies to juvenile proceedings to resolve the issue before us. Assuming without deciding that it does, subsections (a)(1) and (a)(2) appear to be satisfied. However, Estrada must show that subsection (a)(3) has been met, that is, that the two counts of Class B felony armed robbery and one count of Class C felony conspiracy “should have been charged” in the juvenile delinquency petition.

This brings us to a question of subject matter jurisdiction. Subject matter jurisdiction concerns whether a court has jurisdiction over the general class of actions to which a particular case belongs. Truax v. State, 856 N.E.2d 116, 121-22 (Ind.Ct.App.2006). Subject matter jurisdiction must be derived from the Constitution or statute and cannot be conferred by the consent or agreement of the parties. Id. at 122.

Pursuant to Indiana Code section 31-30-1-4 (2008), a juvenile court lacks subject matter jurisdiction over certain offenses if the juvenile was sixteen years of age or older at the time of the alleged violation:

(a) The juvenile court does not have jurisdiction over an individual for an alleged violation of:
(1) IC 35-41-5-l(a) (attempted murder);
(2) IC 35-42-1-1 (murder);
(3) IC 35-42-3-2 (kidnapping);
(4) IC 35-42-4-1 (rape);
(5) IC 35-42-4-2 (criminal deviate conduct);
(6) IC 35-42-5-1 (robbery) if:
(A) the robbery was committed while armed with a deadly weapon; or
(B) the robbery results in bodily injury or serious bodily injury;
(7) IC 35-42-5-2 (carjacking);
(8) IC 35^5-9-3 (criminal gang activity);
(9) IC 35-45-9-4 (criminal gang intimidation);
(10) IC 35-47-2-1 (carrying a handgun without a license), if charged as a felony;
(11) IC 35^17-10 (children and firearms), if charged as a felony;
(12) IC 35-47-5-4.1 (dealing in a sawed-off shotgun); or
(13) any offense that may be joined under IC 35-34-l-9(a)(2) with any crime listed in subdivisions (1) through (12);
if the individual was at least sixteen (16) years of age at the time of the alleged violation.

Estrada was charged with two counts of Class B felony robbery while armed with a deadly weapon and one count of Class C felony conspiracy for offenses she committed at the age of seventeen. Under subsection (a)(6)(A), the juvenile court lacked jurisdiction over the armed robbery charges.

Because the offense of conspiracy is not specifically enumerated in the statute, we must determine whether, pursuant to subsection (a)(13), it is an “offense that may be joined under IC 35-34-l-9(a)(2)” with the armed robbery charges. The relevant portion of Indiana Code section 35-34-1-9 (1981) provides:

(a) Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

The conspiracy count alleged that on May 2, 2009, Estrada conspired with Gonzalez, Torres, and Ochoa to commit robbery:

[0]n or about the 2nd day of May, 2009, at the County of Elkhart, State of Indiana, one KARLA P. ESTRADA did, with the intent to commit a felony, agree with another person, to-wit: DIEGO ARMANDO GONZALEZ, LUIS M. TORRES, and JORGE L. OCHOA, to commit the felony Robbery, defined under Ind.Code § [ J35-42-5-1 as to knowingly take property from another person while putting any person in fear, and did engage in conduct constituting an overt act toward said Robbery by driving to and robbing three (3) separate convenience stores....

Appellant’s App. p. 150. It takes no stretch of the imagination to conclude that the conspiracy charge may be joined with the armed robbery charges under Indiana Code section 35-34-l-9(a)(2). Estrada and her cohorts devised a plan to rob convenience stores after she asked for help in getting money for her cousins. Estrada thereafter drove the group to two 7-Elev-ens to commit robberies just a half an hour apart. Each time, two of her cohorts went into the store with their hoods up and masks on, one brandishing a beer bottle and the other pretending to have a gun under his clothing, demanded the store clerk to give them money, and fled to the car, where Estrada drove them away. The conspiracy charge was thus an offense within the ambit of subsection (a)(13) of Indiana Code section 31-30-1-4 and therefore outside of the juvenile court’s jurisdiction.

Because the juvenile court lacked jurisdiction over the criminal charges here, the criminal prosecution of Estrada was not for offenses with which she “should have been charged” in the juvenile proceeding. Even if the successive prosecution statute applies to juvenile proceedings, Estrada has not met subsection (a)(3) of the successive prosecution statute. We therefore conclude that the trial court did not abuse its discretion by denying Estrada’s motion to dismiss.

II. ADMISSION OF EVIDENCE

Estrada next contends that the trial court erred by denying her motion to suppress her statement to Detective Hershberger. Although Estrada originally challenged the admission of the evidence through a motion to suppress, she appeals following a completed trial. The issue is therefore appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

Estrada’s challenges to the admissibility of her statement are based on the juvenile waiver of rights statute. The relevant portion of that statute provides that any rights guaranteed to a child under the federal or state constitutions or any other law may be waived only:

(2) by the child’s custodial parent, guardian, custodian, or guardian ad li-tem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver.

Ind.Code § 31-32-5-1 (1997); S.D. v. State, 937 N.E.2d 425, 429-30 (Ind.Ct.App.2010), trans. denied. As a general rule, when a juvenile who is not in custody gives a statement to police, neither the safeguards of Miranda warnings nor the juvenile waiver statute is implicated. S.D., 937 N.E.2d at 430. The parties do not discuss whether Estrada was in custody when she gave her statement. For the purposes of this opinion, we assume without deciding that she was in custody.

Estrada argues that Patricia did not knowingly and voluntarily waive Estrada’s rights. Indiana Code section 31-32-5-4 (1997) directs a juvenile court to consider all the circumstances of the waiver to determine whether it was made knowingly and voluntarily:

In determining whether any waiver of rights during custodial interrogation was made knowingly and voluntarily, the juvenile court shall consider all the circumstances of the waiver, including the following:
(1) The child’s physical, mental, and emotional maturity.
(2) Whether the child or the child’s parent, guardian, custodian, or attorney understood the consequences of the child’s statements.
(3) Whether the child and the child’s parent, guardian, or custodian had been informed of the delinquent act with which the child was charged or of which the child was suspected.
(4) The length of time the child was held in custody before consulting with the child’s parent, guardian, or custodian.
(5) Whether there was any coercion, force, or inducement.
(6) Whether the child and the child’s parent, guardian, or custodian had been advised of the child’s right to remain silent and to the appointment of counsel.

Estrada claims that Patricia’s waiver of Estrada’s rights was not knowing and voluntary because the advisement of rights form was improperly translated into Spanish. At the hearing on the motion to suppress Estrada’s statement, certified Indiana Supreme Court interpreter Susan-nah Bueno testified that the Spanish translation of the advisement of rights form signed by Estrada and Patricia contained errors in grammar and syntax. Bueno’s English translation of the list of juvenile rights is as follows:

Before we ask any questions to your son, you should understand the civil rights that he has.
Your son has the right to remain silent.
Any statements that your son makes could be and will be used against him in court.
Your son has the right to consult with an attorney before he is questioned and to have an attorney present when he is being questioned.
If you don’t have the means to hire an attorney, one will be appointed, if you want one before asking him the questions.
If your son answers the questions, he can stop answering at any time and remain silent.
Your son has the right for you to be present while he is being questioned.
Your son has the right to significant consultation with you before or during the questions.

State’s Ex. XX; Defendant’s Ex. C. Her English translation of the waiver paragraph is as follows:

I have read this statement of my son’s rights and I understand them and I am satisfied that my son also understands them. I am willing to have police agents ask questions to my son and that he gives statements to them. My son and I have consulted in a significant and conscious way and voluntarily agree with this waiver of rights. I don’t want an attorney for my son at this moment. I understand very well and know what I am doing. This waiver of rights is not a result of threats, promises, force, o[r] pressure used by police agents over myself or my son.

State’s Ex. XX; Defendant’s Ex. C. Bueno stated that her translation of the form would not necessarily be how another person would have translated it. Although she pointed to a number of mistakes in the Spanish translation, however, she agreed with the State that the list of rights indicated that the juvenile as opposed to the parent has those rights and that “the document as a whole conveys the meaning it is intended to mean.” Tr. p. 346. Bueno was unable to speculate whether Patricia understood the form but stated that she herself understood the form. Based on Bueno’s testimony, we conclude that the Spanish translation of the advisement of rights form adequately informed Patricia and Estrada of Estrada’s rights.

Estrada also claims that Patricia’s waiver of Estrada’s rights was not knowing and voluntary because Patricia did not understand the consequences of Estrada’s statements. Specifically, Estrada states that it would have been impossible for Patricia to understand the consequences of Estrada’s statements given that the interrogation was conducted in English and further given that neither Patricia nor Estrada were informed that Estrada was a robbery suspect. The issue before us is whether Patricia’s waiver of Estrada’s rights was knowing and voluntary; therefore, the interrogation that occurred after the waiver at issue is not relevant to whether that waiver was knowing and voluntary.

Further, we acknowledge that one of the factors a trial court must consider when determining whether a waiver is knowing and voluntary is whether the child and parent “had been informed of the delinquent act with which the child was charged or of which the child was suspected.” Ind.Code § 31-32-5^4(3). Before Estrada and Patricia signed the waiver, Estrada had only been told that her name had come up in connection with an incident and Patricia had not been told why she was called to the police station. Nonetheless, this factor standing alone is insufficient to render the waiver unknowing and involuntary. See Tingle v. State, 632 N.E.2d 345, 352-53 (Ind.1994) (rejecting appellant’s argument that waiver was not knowing and voluntary because neither he nor his grandmother was informed of potential charges or penalties and concluding that trial court was within its discretion to find this factor standing alone insufficient to render confession involuntary).

Instead, the trial court must consider all the circumstances of the waiver to determine whether it was made knowingly and voluntarily. Here, Estrada was just one month shy of her eighteenth birthday when Detective Hershberger told her that her name had come up in connection with an incident. She voluntarily accompanied Detective Hershberger to the police station, and Detective Hershberger contacted Patricia to request that she meet him and Estrada there. Estrada waited in an interview room for no more than thirty minutes before Patricia and Cerone arrived. Patricia and Cerone were then directed to the interview room where Estrada was waiting and were left alone with Estrada for about ten minutes. Officer Mora and Detective Hershberger then entered the room, and Officer Mora informed Patricia and Estrada of Estrada’s rights, including that any of Estrada’s statements could be used against her in court and that Estrada had the right to remain silent and to the appointment of counsel. Estrada read the waiver paragraph to Patricia, and both women subsequently signed the waiver. There is no evidence that Estrada was physically, mentally, or emotionally immature for her age or that she and Patricia were coerced, forced, or induced to sign the waiver. We conclude that Patricia’s waiver of Estrada’s rights was knowing and voluntary.

Estrada next argues that Detective Hershberger and Officer Mora did not comply with the meaningful consultation requirement of the juvenile waiver of rights statute. The purpose of the meaningful consultation requirement is to afford the juvenile a stabilizing and comparatively relaxed atmosphere in which to make a serious decision that could affect the rest of his or her life. Patton v. State, 588 N.E.2d 494, 496 (Ind.1992). The opportunity for the juvenile and the parent to consult with each other must occur before the juvenile’s rights are waived. D.M. v. State, 949 N.E.2d 327, 385 (Ind.2011). The consultation requirement is satisfied when the State demonstrates actual consultation of a meaningful nature or the express opportunity for such consultation, which is then forsaken in the presence of the proper authority by the juvenile, so long as the juvenile knowingly and voluntarily waives his or her constitutional rights. Id.

Estrada first claims that she was not informed that she, as opposed to Patricia, had the right to meaningful consultation. We disagree. As noted above, the Spanish translation of the advisement of rights form adequately informed Patricia and Estrada of Estrada’s rights. One of those rights was that Estrada had the right to meaningful consultation.

Second, Estrada claims that although Patricia was asked whether she wanted to consult with Estrada, Estrada was never asked if she wanted to consult with Patricia. The evidence shows that Officer Mora advised Patricia and Estrada of Estrada’s rights, including that she had the right to meaningful consultation. He then asked Patricia and Cerone if they wanted to talk with Estrada, and Patricia answered no. After Estrada read the waiver paragraph aloud, she and Patricia signed the waiver. Estrada said that she understood everything and told Patricia that she was going to talk with Detective Hershberger. We acknowledge that Officer Mora asked Patricia and not Estrada whether she wanted the opportunity for consultation and that Patricia and not Estrada waived the right to consultation. However, the evidence in this case shows that Estrada was informed of the right to meaningful consultation, understood that right, and decided to talk with Detective Hershberger without taking advantage of that right. This evidence is sufficient to show that Estrada was given an opportunity for meaningful consultation and waived that right.

Estrada also appears to argue that because neither she nor Patricia were told before the interrogation that Estrada was a robbery suspect, any consultation with Patricia would not have been meaningful. Appellant’s Br. pp. 17-18 (“[Patricia]’s ignorance of the real motivation for the interrogation, paired with her inability to speak the language creates a situation in which Estrada’s right to have the benefit of her parent’s advice with respect to waiving her rights were completely disregarded.”). We disagree. Estrada and Patricia were advised that any statements Estrada made could be used against her. This was sufficient to inform them of the possible ramifications of abandoning the right to remain silent. See Colorado v. Spring, 479 U.S. 564, 576-77, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (“We have held that a valid waiver does not require that an individual be informed of all information useful in making his decision or all information that might affect his decision to confess. We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. Here, the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.” (quotations and citations omitted)).

We therefore conclude that the trial court did not abuse its discretion by admitting Estrada’s statement to Detective Hershberger.

III. DOUBLE JEOPARDY

Estrada also contends that her conspiracy conviction violates Indiana’s double jeopardy prohibition. Indiana’s double jeopardy clause states, “No person shall be put in jeopardy twice for the same offense.” Ind. Const, art. 1, § 14. Our Supreme Court has held that two or more offenses are the “same offense” in violation of Indiana’s double jeopardy clause “if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999).

Estrada’s double jeopardy challenge is based on the actual evidence test. Under the actual evidence test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Lee v. State, 892 N.E.2d 1231, 1234 (Ind.2008). To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. Id. In Spivey v. State, our Supreme Court further explained:

The test is not merely whether the evi-dentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.

761 N.E.2d 831, 833 (Ind.2002). Application of the actual evidence test requires the reviewing court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the fact-finder’s perspective, considering where relevant the jury instructions, arguments of counsel, and other factors that may have guided the factfinder’s determination. Id. at 832.

Estrada argues that the actual evidence used to convict her of conspiracy was the same evidence used to convict her of the robberies. To convict Estrada of conspiracy to commit robbery, the State must have proven that Estrada agreed with another person to commit robbery with the intent to commit robbery and that Estrada or another party to the agreement performed an overt act in furtherance of the agreement. See Ind.Code § 35-41-5-2; Appellant’s App. p. 150; Griffin v. State, 717 N.E.2d 73, 87 (Ind.1999). To convict Estrada of armed robbery as an accomplice, the State must have proven that Estrada knowingly or intentionally aided, induced, or caused another person to knowingly or intentionally take property from another person or from the presence of another person by putting any person in fear while armed with a deadly weapon. See Ind. Code §§ 35-42-5-1, 35-41-2-4; Appellant’s App. p. 150.

Estrada claims that the same evidence used to show the overt act element of conspiracy — that she drove to and robbed three separate convenience stores — was the same evidence used to show that she aided, induced, or caused the armed robberies — that she drove to and from each robbery. Appellant’s Br. p. 14. Conspiracy, however, does not have only one essential element. In addition to the overt act element, the State must also prove an agreement to commit the robbery with the intent to commit the robbery. See Spivey, 761 N.E.2d at 833-34 (rejecting actual evidence challenge to felony murder and conspiracy to commit burglary convictions where evidentiary facts proving essential elements of felony murder did not prove agreement element of conspiracy and where evidentiary facts proving essential elements of conspiracy did not prove that victim was killed during burglary). We therefore must evaluate the evidence from the jury’s perspective to determine whether there is a reasonable possibility that the evidence used to show the overt act element of conspiracy and that Estrada aided, induced, or caused each armed robbery — both shown by Estrada driving to the robberies — was also used to show the agreement element of conspiracy.

Gonzalez and Torres testified at trial. Gonzalez testified that Estrada asked him, Torres, and Ochoa for help in getting money to send to her cousins in Texas, and Torres suggested that they rob a gas station. Estrada then drove the group to three different locations. At each location, two of the passengers got out of the car and robbed the store. In the car after each robbery, they all laughed and joked. After the robberies, Estrada drove them back to Gonzalez’s and Torres’s apartment where the group split the money.

Torres testified that everyone needed money, so he suggested that they commit robbery. He further testified that they each agreed to commit robbery. Like Gonzalez, Torres stated that Estrada drove them to three different locations, each place was robbed, and Estrada drove them back to the apartment where the group split the money.

In the final instructions, the jury was instructed that the State had to prove that Estrada aided, induced, or caused each armed robbery “[b]y driving to and from the robbery.” Appellant’s App. pp. 70, 71. The final instructions for conspiracy showed that the overt act of “driving to and robbing three separate convenience stores” was a separate element from the agreement to commit the robbery:

Before you may convict the Defendant, KARLA P. ESTRADA, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant, KARLA P. ESTRADA,
2. agreed with another person, Diego Armando Gonzales, Luis M. Torres and Jorge L. Ochoa, to commit a felony, to-wit: the crime of Robbery,
3. with the intent to commit the crime, and
4. KARLA P. ESTRADA performed an overt act in furtherance of the agreement
5. by driving to and robbing three separate convenience stores.
If the State failed to prove each of these elements beyond a reasonable doubt, you should find the Defendant, KARLA P. ESTRADA, not guilty of the crime of Conspiracy, a Class C Felony as charged in Count III.

Id. at 69.

In closing arguments, the State pointed to evidence that Estrada drove the car to each location to show that she aided, induced, or caused each armed robbery:

What did the defendant do? She drove the red car all night to each and every location....
... The testimony of Diego Gonzalez standing alone is direct evidence to convict the defendant. But we also know that Luis Torres told you the exact same thing. Again, direct evidence. The defendant drove this red car all night.

Tr. pp. 516-17. For conspiracy, the State highlighted that the agreement element is separate from the overt act element:

A conspiracy, the idea is this agreement. Conspiracy means that we have to prove the defendant with the intent to commit the felony, in this case robbery, agreed with other people to commit the felony, and that someone did an overt act in furtherance.

Id. at 518. The State noted that the three robberies occurred in one night. The State also pointed out that Estrada admitted to Detective Hershberger that she knew Torres, Gonzales, and Ochoa, was with them during the Speedway robbery, and that her car was used. The State further asked the jury to use their common sense to determine whether Estrada drove that night as Torres and Gonzalez had testified. The State then said:

Using your common sense, making inferences which you are permitted to do based upon the evidence, the state has proven to you beyond a reasonable doubt that there was this agreement that they intended; that is, was their conscious objective to commit robberies that night. That they agreed on it and that they all did the overt acts. The defendant's specific act was driving to each location.

Id. at 520.

We acknowledge that the State’s closing argument as to conspiracy did not point to Gonzalez’s and Torres’s testimony establishing that Estrada needed money, Torres suggested robbery, and they each agreed. Nevertheless, this evidence was presented to the jury. Moreover, the jury instructions and the State’s closing argument made it clear that the agreement and the overt act were separate elements of the crime of conspiracy. Viewing the evidence from the jury’s perspective, we conclude that there is no reasonable possibility that the evidence used to show the overt act element of conspiracy and that Estrada aided, induced, or caused each robbery— both shown by Estrada driving to the robberies — was also used to show the agreement element of conspiracy. See Griffin, 717 N.E.2d at 89 (“To establish that two offenses are the same offense under the actual evidence test, the possibility must be reasonable, not speculative or remote.”).

Estrada nonetheless cites Guffey v. State, 717 N.E.2d 108 (Ind.1999), in support of her double jeopardy claim. In that case, the defendant was convicted of aiding in the commission of armed robbery and conspiracy to commit armed robbery. Our Supreme Court determined that the evidence at trial showed elaborate planning and implementation of the robbery. However, the jury was instructed to direct its attention to specific evidentiary facts. Regarding aiding in the commission of armed robbery, the jury was instructed that the defendant handed the gun to his cohort and waited for his cohort to leave the gas station knowing his cohort would rob the gas station. Regarding conspiracy to commit armed robbery, the jury was instructed that the defendant and his cohort performed overt acts in furtherance of their agreement by the defendant handing the gun to his cohort, his cohort entering the gas station, and the defendant waiting for him to leave the gas station. The Supreme Court vacated the defendant’s conspiracy conviction, finding that there was a reasonable possibility that the jury used the same evidentiary facts, that the defendant provided his cohort with the gun and waited for his cohort to commit the robbery, to prove the essential elements of both aiding in the commission of armed robbery and conspiracy to commit armed robbery. Id. at 107.

Guffey is distinguishable from the case before us. In Guffey, the jury was given the option to use the same evidentiary facts to prove both the aiding in the commission of armed robbery and conspiracy to commit armed robbery. The instructions on conspiracy did not distinguish between the agreement and the overt act; instead, the jury was instructed that if it found that the defendant provided his cohort with the gun and waited for his cohort to leave the gas station, it could find the defendant guilty of conspiracy. Here, in contrast, the jury was given the same evi-dentiary facts to prove both charges of armed robbery but only the overt act element of conspiracy. While it is possible that the jury used the fact that Estrada drove to the robberies as the evidence showing both the agreement and the overt act, based on the jury instructions and the State’s closing argument specifically distinguishing between the two elements, we find no reasonable possibility that the jury did so.

We conclude that Estrada’s convictions do not violate Indiana’s double jeopardy clause.

IV. INAPPROPRIATE SENTENCE

Estrada finally contends that her twenty-four-year sentence is inappropriate. Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7(B), which provides that a court “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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007)). The defendant has the burden of persuading us that his or her sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1078, 1080 (Ind.2006)).

We first look to the statutory ranges established for the classes of the offenses. Estrada was convicted of two counts of Class B felony armed robbery and one count of Class C felony conspiracy. The statutory range for a Class B felony is between six and twenty years, with the advisory sentence being ten years. Ind.Code § 35-50-2-5 (2005). The statutory range for a Class C felony is between two and eight years, with the advisory sentence being four years. Ind. Code § 35-50-2-6(a) (2005). The trial court sentenced Estrada to twelve years for each armed robbery and five years for conspiracy. The robbery convictions were ordered to be served consecutively, and the conspiracy conviction was ordered to be served concurrently with one of the robbery convictions, for an aggregate sentence of twenty-four years.

We next look to the nature of the offenses and Estrada’s character. As for the nature of the offenses, Estrada asked her cohorts for help in getting money, and they all agreed to rob convenience stores. Estrada drove the group to and from each location, and within a couple of hours, they had committed three robberies. In the first two robberies, her cohorts held empty beer bottles as weapons. In between the robberies, they all laughed and joked in the car. We recognize, as did the trial court, that Estrada was the driver and did not enter any of the stores. Even so, it is significant that she was the person who asked for help in getting money and that she was complicit in crimes of a serious nature.

As for Estrada’s character, we acknowledge that she was only seventeen at the time of these offenses. However, between the age of fifteen and the crime spree at issue here, Estrada had eleven contacts with the juvenile justice system. She has juvenile adjudications for battery resulting in bodily injury, operating a motor vehicle without ever receiving a license, conversion, operating while intoxicated causing endangerment, false informing, and robbery (for the three unarmed robberies committed in the same time period as the armed robberies here). Estrada has been on probation and found to have violated that probation. She has been dishonorably discharged from probation for lying to the juvenile court about being in college and submitting a falsified letter purporting to be from a college professor. Estrada has also attempted to deceive electronic monitoring personnel by lying about being in school and trying to pass her boyfriend off as her uncle. Estrada’s character shows disrespect for the judicial process and disregard of the law.

Estrada has failed to persuade us that her sentence is inappropriate.

CONCLUSION

For the reasons stated, we affirm the trial court.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . Estrada has filed a motion for oral argument. We deny this motion by separate order issued contemporaneously with this opinion.

      . We also note that before the interrogation, Officer Mora had explained to Patricia that it would be difficult for him to translate the conversation between Detective Hershberger and Estrada word-for-word but that if she wanted to know specifically what was being said, he would interrupt the questioning and explain it. Patricia agreed to this. During the interrogation, Patricia never asked Officer Mora to explain.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    In re Prosecutor’s Subpoena Regarding S.H. and S.C., S.H., Appellant, v. State of Indiana, Appellee.
    No. 73A01-1109-CR-468.
    Court of Appeals of Indiana.
    June 22, 2012.

      Cara Schaefer Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General Indianapolis, IN, Attorney for Ap-pellee.
   OPINION

MAY, Judge.

S.H. and S.C. (collectively, “Parents”) appeal a trial court order granting the State’s petition to compel their testimony by providing use immunity. Parents argue a prosecutor may not grant use immunity when there is no grand jury proceeding and the persons whose testimony is sought have not been charged with a crime.

We affirm.

FACTS AND PROCEDURAL HISTORY

On September 27, 2010, S.C. gave birth at her home. When the child’s father, S.H., returned home, he found S.C. bleeding and took her and the infant to a hospital. The medical staff noted the baby showed signs of injury in the form of multiple puncture wounds. Police officers spoke with Parents and others, who offered differing accounts of the circumstances of the birth and the cause of the wounds. The police then searched Parents’ apartment.

The prosecutor petitioned for subpoenas compelling Parents’ testimony about the circumstances surrounding the birth, and they were issued. The parents asked the trial court to quash the subpoenas on the ground they violated Parents’ constitutional privileges against self-incrimination.

The trial court granted the motions to quash and then the State asked the court to grant use immunity and compel Parents to testify. The parents objected on the same ground, but the trial court granted use immunity and ordered Parents to testify. At this point, although Parents had not been formally charged with any crime, the trial court appointed public defenders to represent them and directed the parties to agree to a date on which Parents would testify. The parents moved to correct error and the trial court denied the motion.

DISCUSSION AND DECISION

The parents contend a prosecutor cannot circumvent the privilege against self-incrimination during a pre-charge investigation by granting use immunity. They argue the prosecutor has authority to compel testimony via use immunity in only two circumstances: (1) when there is a grand jury investigation; or (2) after charges have been filed. Because the prosecutor can compel testimony in grand jury proceedings by granting use immunity, the State argues the prosecutor has the same authority when conducting a pre-charge investigation without a grand jury. As a prosecutor’s ability to investigate and accumulate evidence is coextensive with that of a grand jury, we agree with the State.

The trial court phrased the issue before it as “[wjhether a prosecutor investigating a crime precharge and without a grand jury has the same authority to grant use immunity as a prosecutor using a grand jury?” (App. at 43.) It answered in the affirmative, relying on our Indiana Supreme Court’s statement in In re Order for Ind. Bell Tel. to Disclose Records, 274 Ind. 131, 134-35, 409 N.E.2d 1089, 1091 (1980):

In 1973, prosecuting attorneys were given the power to initiate criminal prosecutions by filing an information. It should be noted this same general power was given under prior law but the instrument was called an affidavit filed by the prosecutor, rather than an information. Under the statute the prosecutor has the authority to charge an individual with the commission of a crime without first submitting the evidence to a grand jury. Along with this power to charge a person with the commission of a crime, we hold that the investigatory powers of the prosecutor now parallel those of the grand jury. A prosecutor has the same ability to accumulate evidence as the grand jury.

(Citation omitted) (emphasis added).

The parents correctly note the language of the statute governing use immunity, Ind.Code § 35-34-2-8, addresses such immunity only when there is a grand jury:

(a) Upon request by the prosecuting attorney, the court shall grant use immunity to a witness before the grand jury. The court shall instruct the witness by written order or in open court that any evidence the witness gives before the grand jury, or evidence derived from that evidence, may not be used in any criminal prosecution against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the grand jury or the prosecutor. The court shall then instruct the witness that he must answer the questions asked and produce the items requested.

(Emphasis added.) The trial court acknowledged that portion of the statute, but determined

the authority of the prosecutor to offer use immunity does not depend upon the existence of a grand jury or legislative action, but such authority is implicit in the office of the prosecutor itself. Even if use immunity authority is derived solely from legislative consent, the Indiana Supreme Court has already addressed that issue [in Indiana Bell],

(App. at 45.)

We decline to adopt the trial court’s position that a prosecutor’s authority to offer use immunity is “implicit in the office of the prosecutor itself.” (Id.) We stated otherwise in Brune v. Marshall, 169 Ind.App. 637, 640, 350 N.E.2d 661, 663 (1976):

While the office of Prosecuting Attorney may have been created by the Constitution of Indiana, the rights and duties of that office are prescribed by statute.... (T)he Prosecuting Attorney has only such power as is enumerated within the four corners of the statutory enactment defining his duties, and he has no residual common law rights or powers.

In Bruñe, we were unable to find statutory authority for a pre-charging deferral program to be initiated and/or operated by a prosecuting attorney as an alternative to prosecution, and we therefore concluded the prosecutor was acting beyond the scope of his authority when he established such a program and charged Bruñe a fee for participating in it. Id. at 641, 350 N.E.2d at 663.

Only two Indiana Code chapters appear to address a prosecutor’s authority to offer use immunity. Ind.Code §§ 35-37-3-1 through 3 provide for a grant of use immunity on a prosecutor’s request, if a witness, in any hearing or trial occurring after an indictment or information has been filed, refuses to answer any question or produce any item. Those sections do not authorize use immunity in the case before us, as there are no witnesses testifying at a trial or hearing occurring after an indictment or information was filed. The second statutory provision that addresses use immunity is Ind.Code § 35-34-2-8 which, as noted above, appears explicitly limited to grand jury proceedings.

The State relies on Indiana Bell to support the premise that because “the investigatory powers of the prosecutor now parallel those of the grand jury” and a prosecutor “has the same ability to accumulate evidence as the grand jury,” 274 Ind. at 135, 409 N.E.2d at 1091, the prosecutor must necessarily have the same authority to offer use immunity as is available in grand jury proceedings. Interpreting the statutes as Parents suggest, the State argues, would lead to the absurd result that prosecutors would have fewer investigative tools before deciding whether to bring charges than they have after charges are filed.

The parents argue the trial court applied Indiana Bell too broadly, because of the inherent differences between the grand jury system and the charging information process, and because of the type of information sought in that case. Indiana Bell involved a subpoena duces tecum, which compels production of documents or other materials in a person’s possession and does not implicate one’s privilege against self-incrimination, whereas this case involves a subpoena ad testificandum, which compels a person to appear as a witness and testify. Such a subpoena does implicate that privilege, especially where, as here, the subpoena is served on the person who is the subject of a criminal investigation.

The Indiana Bell subpoena was issued on a third party who was neither a suspect nor a witness. It therefore did not raise any concerns about self-incrimination. The parents argue Indiana Bell should be “considered in the context of the case in which it was decided,” (Br. of the Appellants at 15), so its holding should be restated as “prosecutors share the same investigatory powers as grand juries do when it comes to serving subpoenas duces tecum on persons who were neither suspects nor witnesses to the crime.” (Id. at 15-16.)

The parents note a grand jury “remains under the supervision of the court which convenes it,” State ex rel. Pollard v. Criminal Court of Marion County, Div. One, 263 Ind. 236, 247, 329 N.E.2d 573, 582 (1975), and its proceedings are governed by a detailed set of statutes, see Ind.Code ch. 35-34-2. See Oman v. State, 737 N.E.2d 1131, 1138 (Ind.2000) (“indirect judicial oversight is an inherent part of all grand jury proceedings, which by their nature are secretive: this arrangement militates against the possible prejudicial impact of testimonial or physical evidence improperly gathered by a prosecutor during his or her pre-charge investigation”), reh’g denied, cert. denied 534 U.S. 814, 122 S.Ct. 38, 151 L.Ed.2d 12 (2001). When there is no grand jury, by contrast, the court does not exercise the same oversight until the prosecutor has decided to file charges.

While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought. We accordingly affirm the trial court.

Affirmed.

BAKER, J., and BROWN, J., concur.

      . We heard oral argument May 7, 2012, at Loogootee High School. We thank the school for its hospitality and commend counsel on the quality of their advocacy.

      . The Fifth Amendment provides in relevant part that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. 5. A grant of use immunity permits a prosecutor to compel a person to testify despite his Fifth Amendment privilege against self-incrimination, but testimony so compelled may not be used against the witness in any respect. State v. Peters, 637 N.E.2d 145, 148 (Ind.Ct.App.1994).

      . The trial court said it was appointing counsel, in part, because concerns had been raised about the mental competency of S.H. and S.C. Competency is not an issue in this appeal.

      . The State suggests we review the trial court’s decision for abuse of discretion: "Rulings on motions to quash subpoenae are reviewed for an abuse of discretion.” (Br. of Appellee at 9.) But we are not reviewing any such ruling. The parents’ motion to quash was granted, so it is not an issue on appeal. Instead, the issue on appeal is the trial court's ruling on the State's petition for grant of use immunity, which appears to be a pure question of law. See Bellows v. Bd. of Com’rs of County of Elkhart, 926 N.E.2d 96, 114 (Ind.Ct.App.2010) (where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo).

      . The text of those sections is as follows:
      Ind.Code § 35-37-3-1:
      (a) If a witness, in any hearing or trial occurring after an indictment or information has been filed, refuses to answer any question or produce any item, the court shall remove the jury, if one is present, and immediately conduct a hearing on the witness’s refusal. After such a hearing, the court shall decide whether the witness is required to answer the question or produce the item.
      (b) If the prosecuting attorney has reason to believe that a witness will refuse to answer a question or produce an item during any criminal trial, the prosecuting attorney may submit the question or request to the trial court. The court shall hold a hearing to determine if the witness may refuse to answer the question or produce the item.
      Ind.Code § 35-37-3-2:
      If the court determines that the witness, based upon his privilege against self-incrimination, may properly refuse to answer a question or produce an item, the prosecuting attorney may make a written request that the court grant use immunity to the witness, in accordance with section 3 of this chapter.
      Ind.Code § 35-37-3-3:
      (a) Upon request of the prosecuting attorney, the court shall grant use immunity to a witness. The court shall instruct the witness, by written order or in open court, that any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney. The court shall instruct the witness that he must answer the questions asked and produce the items requested.
      (b) A grant of use immunity does not prohibit the use of evidence the witness has given in a prosecution for perjury under IC 35-44-2-1.
      (c) If a witness refuses to give the evidence after he has been granted use immunity, the court may find him in contempt.

      . The State does not argue any statute explicitly authorizes a prosecutor to offer use immunity in a situation like that before us, but notes our courts have "routinely allowed grants of use immunity to be extended to testimony in other settings.” (Br. of Appellee at 10.) It cites a number of decisions, but all of them involve situations where, unlike in the case before us, charges had already been brought. See Lucas v. State, 499 N.E.2d 1090, 1095 (Ind.1986) (trial court granted use immunity for pre-trial deposition); In re Gardner, 713 N.E.2d 346, 347 (Ind.Ct.App.1999) (State attempted to depose Gardner about charges against a fellow inmate, and Gardner refused to testify at the deposition even though he was given use immunity); Jackson v. State, 644 N.E.2d 607, 608 (Ind.Ct.App.1994) (Jackson was granted use immunity but refused to testify during deposition during codefendant’s trial), trans. denied; and Chanley v. State, 550 N.E.2d 764, 767 (Ind.Ct.App.1990) (State's first petition for use immunity at deposition of Chanley as a witness on behalf of a charged defendant was not premature when Chanley would likely assert the Fifth Amendment right against self-incrimination when faced with similar questions asked by the prosecutor at trial).


author: VAIDIK, Judge.

text:
    In re the Matter of a Search Warrant Regarding the Following Real Estate, SENSIENT FLAVORS LLC, Appellant-Defendant, v. INDIANA OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Appellee-Plaintiff.
    No. 49A02-1109-MC-844.
    Court of Appeals of Indiana.
    June 26, 2012.

      Paul L. Jefferson, Mark Stuaan, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

The Indiana Commissioner of Labor filed a petition for an anticipatory search warrant in order to conduct an administrative inspection of Sensient Flavors LLC’s Indianapolis facility. Sensient opposed the search warrant and was successful in getting it quashed. The trial court later issued an amended search warrant that was more restrictive than the original. Although the search of Sensient’s facility has been completed, Sensient appeals the issuance of the amended search warrant, arguing that it was not supported by probable cause and unreasonable because it did not contain any limitations regarding the scope or manner of the search. Concluding that Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.

Facts and Procedural History

Sensient is a Delaware limited liability company with its principal place of business at 5600-5700 West Raymond Street in Indianapolis. Sensient manufactures and distributes proprietary flavors that are used in food and beverages. As part of its business, Sensient uses certain substances that are listed as “high priority” by the U.S. Department of Health and Human Services. One such substance is diacetyl. Appellant’s App. p. 142. Diacetyl is used to add flavor and aroma to food and is typically used in microwave popcorn. The government has been investigating the use of diacetyl in facilities that manufacture food flavorings because of the dangers dia-cetyl poses to workers, and Sensient became a target.

The Occupational Safety and Health Act of 1970 created both The National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA). About NIOSH, The Nat’l Inst, for Occupational Safety & Health, http://www.cdc.gov/niosh/ about.html (last visited June 8, 2012). OSHA is in the U.S. Department of Labor and is responsible for developing and enforcing workplace safety and health regulations. Id. NIOSH is part of the Centers for Disease Control and Prevention (CDC) in the U.S. Department of Health and Human Services. Id. NIOSH is an agency established to help ensure safe and healthful working conditions for working men and women by providing research, information, education, and training in the field of occupational safety and health. Id.

On the state level, the Indiana Occupational Safety and Health Administration (IOSHA), which is part of the Indiana Department of Labor, is dedicated to ensuring Hoosier workplace safety and health by reducing hazards and exposures in the workplace environment that result in occupational injuries, illnesses, and fatalities. IOSHA, Ind. Dep’t of Labor, http://www.in.gov/dol/iosha.htm (last visited June 8, 2012).

At some point, the International Brotherhood of Teamsters Local 137 became concerned about possible respiratory problems and the use of flavoring chemicals, including diacetyl, at Sensient’s facility. Accordingly, the union requested a Health Hazard Evaluation from NIOSH. NIOSH investigators visited Sensient’s facility in May 2008 and performed air sampling and received records of spirometry, a type of lung-function test, in June 2008. After a delay incurred by litigation, Sensient provided additional spirometry records through September 2009 and air-sampling results through August 2009. In June 2011, NIOSH issued a forty-eight-page final Health Hazard Evaluation Report, which concluded that Sensient employees had experienced adverse respiratory conditions due to exposure to food-flavoring chemicals, including diacetyl. Appellant’s App. p. 39-91.

On September 9, 2011, the Indiana Commissioner of Labor (“Commissioner”) filed a Petition for Anticipatory Search Warrant in Marion Superior Court to conduct an administrative inspection of Sensient’s facility. Notably, probable cause in the criminal sense is not required for administrative search warrants. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); State v. Kokomo Tube Co., 426 N.E.2d 1338, 1343 (Ind.Ct.App.1981). That is, probable cause to conduct a nonconsensual inspection of business premises can be established by presenting specific evidence of an existing violation or by showing compliance with reasonable legislative or administrative standards for inspecting the premises in question. Barlow’s, 436 U.S. at 320, 98 S.Ct. 1816; Kokomo Tube, 426 N.E.2d at 1342. Here, the Commissioner wanted to determine whether Sensient was furnishing its employees “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees” and whether Sensient was “complying with the occupational safety and health standards promulgated under the Indiana Occupational Safety and Health Act, Ind.Code § 22-8-1.1-1_” Appellant’s App. p. 8.

The Commissioner sought an anticipatory search warrant because in the past Sensient had failed to cooperate with IO-SHA’s Compliance Safety and Health Officers (CSHOs). Id. The Petition for Anticipatory Search Warrant was supported by the affidavits of the Director of Industrial Safety and Hygiene and a CSHO. The affidavits specifically averred that IOSHA had received a referral from OSHA regarding Sensient and IOSHA wished to carry out an “unprogrammed inspection” of Sensient because of that referral. Id. at 12. The referral was based on NIOSH’s June 2011 report that revealed Sensient employees had experienced adverse respiratory conditions due to exposure to food-flavoring chemicals. The trial court granted the search warrant that day.

But on September 12, Sensient filed an emergency motion to stay the search warrant. The trial court scheduled a hearing for the next day. At the September 13 hearing, Sensient argued that the search warrant was not supported by probable cause. The Commissioner was given additional time to supplement the documentation in support of the search warrant. On September 14, the Commissioner filed supplemental documentation in support of the search warrant, including an amended affidavit of the CSHO. The amended affidavit provides, in pertinent part:

4. That in approximately mid to late July 2011, Richard Fairfax, Deputy Assistant Secretary at federal OSHA referred the NIOSH report to my superior Jeffry Carter, Deputy Commissioner, Indiana Occupational Health and Safety Administration for an inspection regarding the findings of the 2011 NIOSH report at Sensient.
5. That NIOSH sent copies of them June 2011 final report, which is attached as Exhibit 8 and incorporated herein, to representatives at Sensient, the International Brotherhood of Teamsters Local 137, Indiana State Department of Health, and OSHA Region V office in Chicago in the summer of 2011. See page 40 of Exhibit 3 (the NIOSH report).
6. That NIOSH received a request from the local union for the Health Hazard Evaluation because it was concerned about possible respiratory problems and the use of flavoring chemicals. See page iii, Exhibit 3.
7. That the team from NIOSH that conducted the inspection at Sensient resulting in the 2011 report consisted of two industrial hygienists and two medical doctors. See Exhibit 2 page 3.
9. [TJhere is a national emphasis program designated by federal OSHA covering the manufacture of food flavorings containing diacetyl. Please see attached Exhibit 4 incorporated herein. A national emphasis program is used to identify and reduce or eliminate hazards associated with employee exposure to flavoring chemicals in facilities that manufacture food flavorings containing diacetyl. See, abstract page 3 of Exhibit 4.
* * * * * ⅜
11. That documentation and information received from Mr. Fairfax included the June 2011 NIOSH report that revealed that employees have experienced adverse respiratory conditions due to exposure to food flavoring chemicals. See Exhibit 3.
12. That IOSHA has a policy of conducting inspections of referrals that allege serious health hazards as stated in the Indiana Field Inspection Reference Manual, Chapter 1, page I — 11 of Exhibit 5 attached and incorporated herein.

Id. at 24-25. The June 2011 NIOSH report, which was attached to the CSHO’s amended affidavit, makes the following conclusions:

The findings from our spirometry record review indicate that the flavorings manufacturing facility employees who underwent spirometry testing at the contracted clinic had 3.8 times greater prevalence of spirometric restriction than the U.S. population after adjusting for age, gender, race, smoking, and body mass index. About one-third of employees had spirometric abnormalities, most of them restrictive in nature .... Statistical modeling indicated that abnormal decline in FEVx [forced expiratory volume in one second] and that annualized average decreases in FEVx and FVC [forced vital capacity] were associated with working in areas with higher potential for exposure to flavoring chemicals. Employees who had ever done liquid processing had greater average annualized falls in spi-rometric measurements than employees who had never worked in an area with higher potential for flavoring exposure. These results suggest that the flavorings company employees are experiencing respiratory health effects related to ongoing exposures in the workplace.

Id. at 81 (emphasis added). The report also offered recommendations to Sensient on how to reduce exposure to harmful chemicals. Id. at 81-84.

At a September 14 hearing, the Commissioner agreed that the scope of the September 9 warrant was too broad and should be limited to documents, records, and areas associated with the use of flavoring substances listed in Appendix D of OSHA’s National Enforcement Program to identify and reduce or eliminate hazards associated with exposures to flavoring chemicals. Tr. p. 58; Appellant’s App. p. 92, 140-150. Accordingly, the trial court quashed the September 9 search warrant but noted that it would issue an amended search warrant that limited the scope of the search to documents, records, and areas associated with the use of the substances listed in Appendix D. Sensient objected to any amended search warrant and asked that it be quashed. The trial court, however, denied this request as well as Sensient’s request to stay execution of the amended search warrant pending appeal.

On the next day, September 15, the trial court issued the amended search warrant. The only substantive difference between the original and amended search warrants is the inclusion of this paragraph at the end of the amended search warrant:

However, this warrant shall be limited in scope to those documents, records, and areas associated with the use of flavoring substances listed as high priority in Appendix D of the National [E]n-forcement Program, CPL 03-00-011, pages D-3 through D-13.

Appellant’s App. p. 7. Sensient immediately appealed and asked this Court to stay, execution of the amended search warrant. We denied their request on September 16, and the briefing process continued.

In the meantime, Sensient continued to litigate this matter in the trial court. In October 2011, Sensient filed an Emergency Motion to Quash Search Warrant, Exclude Evidence and for Sanctions. Id. at 2. A flurry of motions followed, and the search warrant was stayed pending resolution of these and other issues. Finally, in January 2012, the trial court denied Sensient’s Emergency Motion to Quash Search Warrant, Exclude Evidence and for Sanctions. The trial court also denied Sensient’s further motion to stay execution of the amended search warrant.

On February 22, 2012, IOSHA filed a notice in the trial court that the amended search warrant for Sensient’s facility had been fully executed and IOSHA would not undertake any further searches pursuant to that warrant. Appellee’s App. p. 9.

At this point, activity resumed in this Court. In March 2012, IOSHA filed a motion to dismiss the appeal, arguing that because the search of Sensient’s facility had already been completed, the matter was moot. This Court denied IOSHA’s motion in a 2-to-l vote. Sensient Flavors, LLC v. Ind. Occupational Safety & Health Admin., No. 49A02-1109-MC-844 (Ind.Ct.App. Apr. 2, 2012).

Discussion and Decision

Sensient challenges the amended search warrant on two grounds: (1) it is not supported by probable cause and (2) it is unreasonable because it does not contain any limitations regarding the scope or manner of the search. Accordingly, Sen-sient asks us to “void” the warrant. IO-SHA makes two arguments in response. First, IOSHA argues that the issue of whether the amended search warrant should be voided is moot because the search has already been completed. Second, IOSHA argues that because the search is complete, the only possible issue is suppression of the evidence obtained as a result of the search if such evidence is going to be used in finding safety violations and imposing penalties; however, Sensient must first present this issue to the agency and exhaust its administrative remedies. We find IOSHA’s second argument to carry the day in light of Seventh Circuit case law on this very issue.

In In re Establishment Inspection of Kohler Company, 985 F.2d 810 (7th Cir.1991), Kohler Company, a Wisconsin company, sought to quash an administrative search warrant issued to OSHA on grounds that OSHA lacked probable cause to inspect its plant. Like this case, OSHA argued that because the inspection had already been completed, the issue was moot. The Seventh Circuit, however, did not address OSHA’s mootness argument because it found that Kohler had failed to exhaust its administrative remedies. Id. at 812. Specifically, the court found that according to the Occupational Safety and Health Act of 1970 (OSH Act), it was “without jurisdiction to consider Kohler’s challenge to the warrant that authorized OSHA’s inspection.” Id. The court noted that Section 10(a) of the OSH Act “requires parties to contest OSHA citations before the Review Commission before obtaining judicial review” and Section 11(a) provides that “no objection that has not been argued before the Commission shall be considered by the court....” Id. (citing 29 U.S.C. §§ 659, 660). Accordingly, the court concluded, ‘We cannot, therefore, review a motion to suppress evidence ... that has not been presented to the Review Commission.... To address Kohler’s motion to quash now would enable Kohler to circumvent the statutory exhaustion requirement.” Id.

The court then highlighted the importance of exhausting administrative remedies, that is, it “protects the autonomy of administrative agencies, respects administrative expertise, facilitates judicial review by ensuring a well-developed factual record, and promotes judicial economy by avoiding piece-meal review of cases and by giving the agency the opportunity to resolve the case to the parties’ mutual satisfaction without judicial interference.” Id. Particularly relevant to this case, the court explained:

The rationale for applying the doctrine may be even stronger in the context of a case, like this one, that raises a constitutional question, because the exhaustion requirement enables courts to avoid deciding cases on constitutional grounds unnecessarily; during administrative proceedings the constitutional issue, or the entire case, for that matter, may be resolved favorably for the aggrieved party, obviating the need for the courts to address the constitutional claim.

Id. at 812-813. The court noted that these considerations have led many of the circuits to require companies seeking to suppress evidence obtained during OSHA inspections to contest OSHA citations before the Review Commission before turning to the federal courts for relief. Id. at 813. The Seventh Circuit therefore “join[ed] the other circuits that require parties challenging completed OSHA inspections on fourth amendment grounds to address their arguments to the Review Commission before turning to the federal courts.” Id. at 814; see also Trinity Marine Products, Inc. v. Chao, 512 F.3d 198, 203 (5th Cir.2007) (“Administrative warrants also differ from traditional criminal warrants in that the exhaustion-of-administrative-remedies doctrine applies, meaning that an employer who wishes to challenge a warrant cannot immediately file a motion in district court to suppress the evidence after the warrant has been executed.”).

Treatises provide likewise. According to LaFave, “An executed search warrant may not be immediately challenged in court, as the business must first exhaust its administrative remedies. The same is true as to state counterparts of OSHA.” 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.2 n. 37 (4th ed. 2004) (emphasis added) (citations omitted).

Although we are not bound by federal court of appeals’ precedent, because the federal OHSA statutes closely resemble ours, federal case law is persuasive. See Comm’r of Labor v. Gary Steel Products Corp., 643 N.E.2d 407, 412 (Ind.Ct.App.1994); Comm’r of Labor v. Talbert Mfg. Co., 593 N.E.2d 1229, 1232 (Ind.Ct.App.1992). Similar to the OSH Act, the Indiana Occupational Safety and Health Act (IOSH Act) requires employers to contest citations before petitioning for judicial review. See Ind.Code § 22-8-1.1 — 28.1(b) (“If the employer wishes to petition for review of a penalty assessment, he must file a written petition for review under IC 4-21.5-3-7 with the commissioner within fifteen (15) working days of the receipt of the notice of penalty.” (emphasis added)). Further, judicial review of citations is governed by Indiana’s Administrative Orders and Procedures Act (AOPA), which requires issues to be presented to the Indiana Board of Safety Review before seeking judicial review. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1255 (Ind.2000); see also Ind.Code §§ 4-21.5-5-10, -4(a) (“A person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.”).

The Indiana Supreme Court has also emphasized the value of completing administrative proceedings before resorting to judicial review. Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 982 (Ind.2005). Similar to the Seventh Circuit in Kohler, our Supreme Court has found that the exhaustion doctrine is supported by “strong policy reasons and considerations of judicial economy,” particularly:

The exhaustion doctrine is intended to defer judicial review until controversies have been channeled through the complete administrative process. The exhaustion requirement serves to avoid collateral, dilatory action ... and to ensure the efficient, uninterrupted progression of administrative proceedings and the effective application of judicial review. It provides an agency with an opportunity to correct its own errors, to afford the parties and the courts the benefit of [the agency’s] experience and expertise, and to compile a [factual] record which is adequate for judicial review.

Id. (quotation omitted). Also similar to the Seventh Circuit in Kohler, our Supreme Court concluded that even where “the ground of the complaint is the unconstitutionality of the statute, which may be beyond the agency’s power to resolve, exhaustion of administrative remedies may still be required because administrative action may resolve the case on other grounds without confronting broader legal issues.” Id. at 982-88 (emphasis added) (quotation omitted).

Here, Sensient has administrative remedies still available to it. The IOSH Act provides that if following an administrative search, the Commissioner or his designated representative determines that there are occupational safety and health violations, the Commissioner “shall issue a safety order” and may impose civil penalties on the employer. Ind.Code §§ 22-8-1.1-25.1, -27.1. An employer receiving a safety order may file a petition for review with the Commissioner, who has five working days in which to affirm, amend, or dismiss the safety order and penalty, if any. Ind.Code §§ 22-8-l.l-28.1(a), -28.3(a); see also I.C. § 22-8-l.l~28.1(b) (noting that when there is a penalty assessment, the employer “must” file a written petition for review). If a petition for review is granted, the Commissioner shall immediately certify the dispute to the Board of Safety Review, which must hold a hearing. Ind.Code §§ 22-8-1.1-28.5, -35.3. The Board of Safety Review may affirm, modify, or dismiss the action of the Commissioner concerning an alleged violation, including any penalty or abatement period. Ind.Code § 22-8-1.1-30.1; see also Griffin, 730 N.E.2d at 1255. Finally, orders by the Board of Safety Review are subject to judicial review in accordance with Indiana Code chapter 4-21.5-5. Ind. Code § 22-8-1.1-35.5. Because Sensient’s remaining relief is suppression of the evidence obtained during the search, it must exhaust these administrative remedies first. As noted by both the Kohler and Johnson Courts, it does not matter that this case raises a constitutional question. Because Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.

Dismissed.

CRONE, J., and BRADFORD, J., concur.

      . "Unprogrammed inspections” are those "where alleged hazardous working conditions have been identified at a specific establishment and include fatality/catastrophe investigations, complaint or referral inspections[J and follow-up inspections.” Appellant’s App. p. 12.

      . We note that Sensient argues in its reply brief that it is not seeldng to suppress any evidence; however, given that the search has already been completed, it is unclear what the remedy would be if we were to find that the amended warrant was not properly issued. See Appellant's Reply Br. p. 11 (“IOSHA hypothesizes that the goal of this appeal is the suppression of evidence (which it is not) and thus whether the warrant was deficient as a matter of law is subject to exhaustion issues.").

      .The court noted that according to Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir.1979), an exception to the exhaustion requirement is when doing so would be pointless. Kohler, 935 F.2d at 814. That exception did not apply in Kohler.

      The court also headed off any argument that requiring the Review Commission to rule on motions to suppress evidence presented a separation-of-powers problem. Id.

      Finally, the court premised its holding on the ability of employers to challenge OSHA inspection warrants in district court. Id. at 815. In this case, Sensient did just that and was successful in getting the original search warrant quashed. Sensient continued to challenge the amended search warrant in the trial court even after filing a notice of appeal and obtained a stay until January 2012, when its motion to quash the amended warrant was finally denied. Appellant's App. p. 2-6.

      . The Board of Safety Review conducts hearing on contests involving safety orders, penalties, and notices of failure to correct a violation issued under Indiana Code chapter 22-8-1.1 and may affirm, modify, or dismiss the action of the Commissioner in respect to the violation, penalty, and abatement period. Ind.Code § 22-8-1. l-30.1(b).

      . AOPA sets forth two exceptions, neither of which apply here.

      . We acknowledge Sensient’s concern that it is effectively denied review of its constitutional issue right now; however, this review is merely delayed until it becomes necessary to address this issue.

      . A "safety order” "refers to a notice issued to employers by the commissioner of labor for alleged violations of this chapter, including any health and safety standards.” Ind.Code § 22-8-1.1-1.

      . The Kohler Court noted that "a determination that the OSHA inspectors lacked probable cause could conceivably support a section 1983 action, giving Kohler another possible remedy for the unconstitutional search and rescuing the case from mootness." 935 F.2d at 812. Sensient has filed such a case in federal court in Sensient Flavors LLC v. Ind. Occupational Safety & Health Admin., et. al., 1:11-CV-1622-JMS-DML. See Appellant’s Br. p. 6 n. 4.