text:
    Jonathan STEPHENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 85A02-1306-CR-518.
    Court of Appeals of Indiana.
    June 13, 2014.

      Daniel J. Vanderpool, Vanderpool Law Firm, P.C., Warsaw, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Jonathan Stephens (“Stephens”) appeals his conviction for Class C felony criminal confinement.

We affirm.

ISSUES

1. Whether sufficient evidence supports Stephens’s criminal confinement conviction.
2. Whether Stephens received ineffective assistance from his trial counsel.
3. Whether the prosecuting attorney committed misconduct during closing argument.

FACTS

On July 3, 2012, Stephens’s wife, Brittany Stephens (“Brittany”), her sister, Hannah Dickerhoff (“Dickerhoff’), and Brittany’s children went to the YMCA in Wabash to swim. Stephens went to the YMCA to talk to Brittany. Stephens wanted to spend time with Brittany, but she did not want to be with him. They began to argue, and another visitor at the YMCA called the police. Officer Chad Galligan (“Officer Galligan”) with the Wabash City Police Department responded to the call. Stephens left the YMCA before Officer Galligan arrived. The officer spoke with Brittany, and she explained that she and Stephens were arguing. She also told Officer Galligan that the confrontation did not get physical, and Stephens decided to leave. Officer Galligan left the scene once he felt the situation was under control.

Shortly after Officer Galligan left, Stephens returned to the YMCA and began to argue with Brittany again. Dickerhoff was outside of the YMCA with them, and she witnessed Stephens drag Brittany to his car and place her inside. Fearing for her sister’s safety, Dickerhoff entered the backseat of Stephens’s vehicle. Stephens then drove away from the YMCA. Stephens drove Brittany and Dickerhoff around Wabash while continuing to argue with Brittany. Eventually, Stephens began to drive out of Wabash toward Largo. Both Brittany and Dickerhoff told Stephens several times to take them back to the YMCA or let them out of the car. He refused and continued to drive.

Dickerhoff then called 911, told the operator that she and her sister were in Stephens’s car, and that he would not let them out. Brittany and Dickerhoff attempted to get out of the car, but the 911 operator told them not to exit the car while it was moving. Dickerhoff s call to 911 was disconnected because Stephens reached into the backseat, snatched her phone, and took out its battery. Stephens stopped the car near a drive-in movie theater. He then jumped into the backseat, opened the door, and pushed Dickerhoff out of the car. Dickerhoff landed on gravel and cut her hand. Stephens drove off, and Dickerhoff went to the theater to call for help. The police eventually found Stephens and Brittany and placed Stephens under arrest.

On July 10, 2012, the State charged Stephens with two Class C felony counts of criminal confinement for confining Brittany and Dickerhoff, interference with the reporting of a crime, and battery of Dick-erhoff, both Class A misdemeanors. The State also alleged that Stephens was an habitual offender.

The trial court began a jury trial on April 16, 2013. During trial, Brittany recanted, stating that she entered Stephens’s car voluntarily and did not ask to be let out. The jury convicted Stephens of battery and one count of criminal confinement for confining Dickerhoff. Stephens admitted that he was an habitual offender. On May 16, 2013, the trial court sentenced Stephens to eight (8) years on the criminal confinement conviction, one (1) year on the battery conviction, and eight (8) years for being an habitual offender. The trial court ordered that the battery conviction run concurrent to the conviction for criminal confinement. The trial court also ordered that the habitual offender enhancement be served consecutively to the criminal confinement charge. Stephens now appeals. Additional facts will be added as necessary.

DECISION

Stephens claims that: (1) his conviction for criminal confinement is not supported by sufficient evidence; (2) that his trial counsel rendered ineffective assistance; and (3) that the prosecuting attorney engaged in misconduct during closing argument, resulting in fundamental error. We address each of these claims separately.

1. Sufficiency of Evidence

Stephens contends that his conviction is not supported by sufficient evidence because Dickerhoff voluntarily entered his car. Stephens further claims that Dickerhoff knew that he was going to leave the YMCA with her sister and he should not have been convicted.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind.2007) (internal quotation marks and citations omitted).

To convict Stephens as charged, the State had to show that Stephens knowingly or intentionally confined Dickerhoff without her consent and that the offense was committed with a vehicle or caused her bodily injury. Ind.Code § 35-42-3-3(b)(1). “A person engages in conduct ‘knowingly’ if the person is aware of the high probability that he or she is doing so.” I.C. § 35-41-2-2(b). “A person engages in conduct ‘intentionally' if, when he engages in the conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2(a). To “confine” means “to substantially interfere with the liberty of a person.” I.C. § 35-42-3-1.

The evidence shows that Dickerhoff entered Stephens’s vehicle after witnessing him drag Brittany to his vehicle. Stephens left the YMCA and began driving around the Wabash area. Stephens ignored Dickerhoffs repeated pleas to let her out of the car. Eventually, Stephens even drove to another city and did not stop to let Dickerhoff out of the vehicle. When Dickerhoff called 911, Stephens still did not stop the car to let her go. Instead, he later stopped, grabbed Dickerhoffs phone, and removed its battery.

In this case, there is ample evidence from which a jury could conclude that Stephen criminally confined Dicker-hoff. See, e.g., Daniels v. State, 274 Ind. 29, 408 N.E.2d 1244, 1248 (1980) (Defendant guilty of criminal confinement when he drove the victim around without her consent). Accordingly, sufficient evidence supports Stephens’s conviction for criminal confinement.

2. Ineffective Assistance of Counsel

Stephens argues that his trial counsel was ineffective for failing to object to a line of questioning revealing that a no-contact order was in effect between Stephens and Brittany at the time of the offenses. He believes that had this information been kept from the jury, “there [was] a high probability that one or all of the verdicts would have been different[.]” (Stephens’s Br. 19).

A claim of ineffective assistance of trial counsel requires a showing that: (1) counsel’s performance was deficient by falling below an objective standard of reasonableness based on prevailing professional norms; and (2) counsel’s performance prejudiced the defendant such that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Davidson v. State, 763 N.E.2d 441, 444 (Ind.2002) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), reh’g denied, cert. denied. “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.Ct.App.2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind.2002)), trans. denied. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. French, 778 N.E.2d at 824. Here, we can resolve Stephens’s challenge with a prejudice inquiry.

Stephens has failed to show any prejudice caused by trial counsel’s failure to object to the line of questioning regarding the no-contact order. As we have just concluded, there was sufficient evidence to convict Stephens of criminal confinement, even without mention of the no-contact order. In light of Dickerhoffs testimony about the nature of her confinement, corroborated by her 911 call, the jury likely would have reached the same verdict even if they had not known of the no-contact order. Therefore, Stephens’s claim of ineffective assistance of trial counsel fails.

3. Prosecutorial Misconduct

Stephens claims that the prosecutor committed misconduct when he referred to Stephens as a “knucklehead,” “yahoo,” “bully,” and “not a noble heroic guy” during closing argument. In addition, Stephens claims that the prosecutor requested that the jury find him guilty for reasons other than his guilt. However, when the statements occurred, Stephens did not object.

In reviewing a properly preserved claim of prosecutorial misconduct, we must first determine whether the prosecutor’s conduct was improper. Newsome v. State, 686 N.E.2d 868, 875 (Ind.Ct.App.1997). If we determine the conduct was improper, we must then determine whether, under all of the circumstances, the prosecutor’s misconduct placed the defendant in a position of grave peril. Id. In deciding whether the defendant was placed in grave peril, we consider the probable persuasive effect of the misconduct on the jury’s decision. Id.

“[A]n appellate claim of prose-cutorial misconduct presented on appeal in the absence of [a] contemporaneous trial objection will not succeed unless the defendant established not only the grounds for prosecutorial misconduct but also the additional grounds for fundamental error.” Booher v. State, 773 N.E.2d 814, 818 (Ind.2002). Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 836 (Ind.2006). Fundamental error makes “a fair trial impossible or constitute^] clearly blatant violations of basic and elementary principles of due process ... presenting an undeniable and substantial potential for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind.2002).

As to Stephens’s allegation of name-calling, our Supreme Court has stated that:

[T]he prosecutor has an equal right to argue the State’s side of the case forcefully and to discuss the evidence pertinent thereto. We can perceive nothing unfair or prejudicial about permitting the prosecutor to argue his case in such a manner so long as his statements are reasonably calculated to sway the jury to the State’s point of view in light of the evidence adduced at trial, and so long as he makes no deliberate distortions or improper comments.

Morris v. State, 270 Ind. 245, 384 N.E.2d 1022, 1026-27 (1979).

The challenged statements were as follows:

Well, what do we-we know for sure from this case? Well, we know for sure that Jonathan and his wife Brittany had a-sounds like a tumultuous type of relationship. That they’re down at the YMCA causing a big ruckus. You people went down there to work out, they take their families down there to get a work out, to enjoy the facilities, and these yahoos are down there causing a big scene.
You heard [Dickerhoff] yesterday. And [Dickerhoff] doesn’t like this guy and doesn’t like the fact that her sister is married to this guy. Would you? If he does that type of stuff to your sister? This is a seventeen year old girl, now eighteen year old girl, still in-in school. She has no motivation to come in here and lie about anything. She’s trying to protect her older sister from this knucklehead.

(Tr. 175) (emphasis added).

It’s gotta be that evidence that firmly convinces you. If you-you think he might be guilty, then-or you know, then you have to find him not guilty. If it’s maybe he did it-folks, listen to the-listen and play back (inaudible) by hand. Go back and listen to that call again. There should be no question in your mind what was going on here. And for three-hours-at least from 8:00 through 10:00, he wasn’t letting these ladies out of the car. He was confining them in that car not letting them out. Being the big bully that he is. Wouldn’t let them call you know on their cell phone or using the On-Star system to get medical assistance. For two hours driving around like that and he finally pushes her out of the back and just leaves her there like a-I guess like a piece of trash on the side of the road.

(Tr. 184-185) (emphasis added). After Stephens’s attorney argued that Stephens helped Diekerhoff out of the car, the prosecutor responded during rebuttal as follows:

Is Jonathan Stephens the hero, is he the honorable man that they portray him to be? He helped her out of the car. Really? Made it sound like, oh, he-[Dickerhoff], could you please get out of the car now? Is that what was going on? Somehow she injured her hand. The direct evidence is what [Diekerhoff] told you. [Diekerhoff] told you that she was in the car, she witnessed what happened, she testified-that’s direct evidence. She’s telling you what happened. All kinds of cases go through here, and there’s some cases we have tons of evidence, and all of this stuff, and in this case, because of the facts of the case, you got what you got. You got 911 calls and you’ve got photos of that. But you heard from the people who were involved in this. He’s not a noble heroic guy.

(Tr. 190-191) (emphasis added).

In this case, the prosecutor’s remarks are along the lines of forceful argument permitted by our Supreme Court’s decision in Morris. Here, the prosecutor is trying to sway the jury toward his view that Stephens confined and battered Dick-erhoff. Therefore, there was nothing improper about the above-mentioned remarks.

On the other hand, the prosecutor ended his closing argument as follows: “These women shouldn’t have been treated like that. And hold him responsible for the way he treated those women that day because if you don’t, nobody will.” (Tr. 185). This argument could be construed as inappropriate because “[i]t is misconduct for a prosecutor to request a jury to convict a defendant for any reason other than his guilt.” Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 849 (1976). While the prosecutor was appealing to the jurors to find the Stephens guilty based upon the evidence, it also could be understood to mean that Stephens’ conviction would be a community service. “A prosecutor may not engage in argument which lends itself to such understanding.” Id. at 849. However, because there was not a contemporaneous objection, Stephens must show that the prosecutor’s improper argument constitutes fundamental error. Booker, 773 N.E.2d at 818. The totality of the circumstances shows that the improper comments had little persuasive effect on the jury. Stephens argues that the prosecutor’s comments placed him in grave peril because it encouraged the jury to infer that Stephens was a bad person who was more likely to commit the crimes charged. However, Stephens has not shown how the prosecutor’s comments placed him in grave peril. The jury’s verdict is supported by evidence, which is what had the more persuasive effect.

During trial, Brittany essentially recanted and stated that she got into the car voluntarily and did not feel that Stephens was confining her. It appears that the jury acknowledged this evidence by acquitting Stephens of confining Brittany. It also appears that the jury acquitted Stephens of interference of reporting a crime because Diekerhoff was actually able to reach 911 and make a report to law enforcement. Again, the evidence, and not the prosecutor’s inappropriate comment, appears to have helped the jury reach its verdict. Finally, and as stated earlier, Brittany’s 911 call corroborated her testimony and offered more persuasive effect on the jury’s verdict than the prosecutor’s inappropriate comment. Thus, Stephens has not shown that the prosecutor placed him in a position of grave peril. Accordingly, we affirm Stephens’s conviction for criminal confinement.

Affirmed.

MATHIAS, J., and BRADFORD, J„ concur.

      . Ind.Code § 35-42-3~3(b)(l).

      .I.C. § 35-45-2-5.

      .I.C. § 35-42-2-1.

      .I.C. § 35-50-2-8.

      . Here, the trial court erred. It is well settled that an "habitual offender finding does not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.2001) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind.1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind.1982)). Therefore, we remand to the trial court with instructions to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that the eight (8) year habitual offender enhancement serves as an enhancement of Stephens’s Class C felony criminal confinement conviction.

      . We note that because Stephens has presented a claim of ineffective assistance of trial counsel on direct appeal, he cannot assert this claim in any petition for post-conviction relief, regardless of whether he alleges different grounds. See Sawyer v. State, 679 N.E.2d 1328, 1329 (Ind.1997).


source: Caselaw Access Project

author: FISHER, Senior Judge.

license: Public Domain

text:
    David A. McKEEMAN, Sr., and Karen A. McKeeman, Petitioners, v. STEUBEN COUNTY ASSESSOR, Respondent.
    No. 02T10-1104-TA-31.
    Tax Court of Indiana.
    May 28, 2014.

      David A. McKeeman, Sr., Karen A. McKeeman, Fort Wayne, IN, Petitioners Appearing Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, John P. Lowrey, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   FISHER, Senior Judge.

This case concerns whether the Indiana Board of Tax Review erred in upholding David and Karen McKeeman’s 2006 real property assessment. The Court finds it did not.

FACTS AND PROCEDURAL HISTORY

The McKeemans own residential property in Pleasant Township, Steuben County, Indiana. For the 2006 tax year, the McKeemans’ property was assessed at $489,000 ($292,800 for land and $196,200 for improvements).

The McKeemans believed their land assessment was too high and sought review first with the Steuben County Property Tax Assessment Board of Appeals and then with the Indiana Board. On March 11, 2011, after conducting a hearing, the Indiana Board issued a final determination upholding the McKeemans’ assessment in its entirety.

On April 22, 2011, the McKeemans initiated this original tax appeal. The Court heard oral argument on October 13, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden to demonstrate that it is invalid. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind.Tax Ct.2010). Consequently, the McKeemans must demonstrate to the Court that the Indiana Board’s final determination is arbitrary, capricious, an abuse of discretion, not in accordance with the law, or unsupported by substantial evidence. See Ind. Code § 33-26-6-6(e)(l), (5) (2014).

LAW

In Indiana, real property is assessed on the basis of its market value-in-use: the value “of a property for its current use, as reflected by the utility received by the owner or a similar user, from the property!.]” 2002 Real Property Assessment Manual (Manual) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 2. See also Ind.Code § 6-l.l-31-6(c) (2006). To determine a property’s market value-in-use, assessing officials refer to a series of guidelines that explain the valuation process for both land and improvements. See Real Property Assessment Guidelines For 2002-Version A (Guidelines) (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 and 2. While assessments made pursuant to these guidelines are presumed to be accurate, a taxpayer may rebut this presumption with market-based evidence {e.g., sales data) that indicates that the property’s assessment does not accurately reflect its market value-in-use. Manual at 5.

ANALYSIS

The McKeemans have asked this Court to reverse the final determination of the Indiana Board for three main reasons. The McKeemans first contend that the Indiana Board erred in disregarding their claim concerning the establishment of their neighborhood. The McKeemans also contend that the Indiana Board erred in rejecting their base rate claim. Lastly, the McKeemans contend that the Indiana Board erred in concluding that their sales comparison analysis lacked probative value.

1. The Neighborhood

Indiana’s assessment guidelines provide that assessing officials must establish specific “neighborhoods” within each township for purposes of assessment. See Guidelines, Bk. 1, Ch. 2 at 8. In establishing these neighborhoods, assessing officials must consider:

(1) common development characteristics; (2) the average age of the majority of improvements; (3) the size of lots or tracts; (4) subdivision plats and zoning maps; (5) school and other taxing district boundaries; (6) distinctive geographic boundaries; (7) any manmade improvements that significantly disrupt the cohesion of adjacent properties; (8) sales statistics; and (9) other characteristics deemed appropriate to assure equitable determinations.

Id.

On appeal, the McKeemans maintain that the Indiana Board’s final determination is erroneous because the properties within their neighborhood demonstrate that the Assessor must have ignored Indiana’s assessment guidelines in establishing their neighborhood. (See Oral Arg. Tr. at 102-03; Pet’rs’ Reply Br. at 4-9; Pet’rs’ Br. at 3, 10-11, 13-16.) {See also Cert. Admin. R. at 116-21, 203-08.) For example, the McKeemans explain that certain properties in their neighborhood had access to paved roads while others did not, that significant size (ie., depth) differences existed between some of the properties, and that a large, commercial, youth camp/retreat center bisected the entire neighborhood thereby destroying any real sense of cohesiveness. {See, e.g., Cert. Admin. R. at 55, 76-88, 91-95.)

The assessment guidelines, however, clearly indicate that a neighborhood may contain properties that vary with respect to road access, size, and use type. See Guidelines, Bk. 1, Ch. 2 at 8. Thus, those types of differences simply are not per se indicators of an improperly constituted neighborhood. Consequently, the Court cannot say the Indiana Board erred in rejecting the McKeemans’ claim regarding the establishment of their neighborhood.

2. The Base Rate

The McKeemans also maintain that the Indiana Board’s final determination is erroneous because the Assessor’s evidence, in and of itself, demonstrated that several properties that are not comparable to their own were used to establish their land’s base rate. {See Pet’rs’ Reply Br. at 7-8; Pet’rs’ Br. at 3, 6-29.) This, however, is incorrect.

Indiana’s assessment guidelines call for the development of neighborhood valuation forms that establish “base rates” for commercial, industrial, and residential land in each of the townships throughout the county. See generally Guidelines, Bk. 1, Ch. 2; Ind.Code § 6-1.1-4-13.6 (2006) (explaining the base rate establishment process). In this case, the administrative record reveals that the Assessor introduced the McKee-mans’ neighborhood valuation form and their property record cards, which demonstrated that the McKeemans’ land was assessed consistent with the established base rate of $5,900 per front foot. {See Cert. Admin. R. at 157-59, 164.) The administrative record, however, does not disclose what properties were actually used in developing that base rate. (See generally Cert. Admin. R.) Consequently, the McKeemans have not shown that the Indiana Board erred in upholding the $5,900 base rate applied to their land.

3. The Sales Comparison Analysis

During the Indiana Board hearing, the McKeemans presented a sales comparison analysis that valued their two parcels of residential land at $62,341 using data from seven sales transactions in which ten properties were conveyed (“the Comps”). (See Cert. Admin. R. at 53.) In arriving at this value, the McKeemans:

(1) Determined the land value of each of the Comps by deducting from their total sales prices the assessed value of their improvements;
(2) Calculated the front foot values of each of the Comps by dividing their land values in Step 1 by their actual frontage/width;
(3) Computed the Comps’ average front foot value to be $2,969;
(4) Determined the front foot value of their own land to be $92,047 (by multiplying the Comps’ average front foot value of $2,969 by the actual frontage/width (31) of then-land);
(5)Adjusted their land’s front foot value to account for differences between their land and the Comps ($92,047-$29,706).

(See Cert. Admin. R. at 53-56, 97-115, 132-40, 198-212.) The Indiana Board determined the analysis lacked probative value because six of the Comps’ sales prices were not reliable indicators of those properties’ market value-in-use. (See Cert. Admin. R. at 35-36.) The Indiana Board also explained that in the two instances where the Comps’ sales prices were indicative of those properties’ market value-in-use, the McKeemans quantification of the differences between those properties and their own land simply did not indicate that their assessment was too high. (See Cert. Admin. R. at 36-37.)

On appeal, the MeKeemans contend that the Indiana Board erred in concluding that their sales comparison analysis lacked probative value because the Indiana Board relied on the Assessor’s mistaken claim that Comp 10 was not in their neighborhood. (See Oral Arg. Tr. at 38-89; Pet’rs’ Br. at 3-5.) Although the Indiana Board’s final determination indicates that the Assessor claimed Comp 10 was not in the MeKeemans’ neighborhood, it does not indicate whether the Indiana Board relied on the Assessor’s erroneous claim. (Compare Cert. Admin. R. at 29 with 31-38.) Nonetheless, even if the Indiana Board had relied on the Assessor’s mistaken claim, that alone would not warrant a reversal of the Indiana Board’s final determination. Indeed, the Indiana Board’s final determination explained that Comps 2 through 6, and Comps 8 through 9, lacked probative value for reasons unrelated to the Assessor’s erroneous claim. See supra notes 8, 11. Moreover, the Indiana Board explained that the MeKeemans valuation of the remaining Comps, Comps 1 and 7, also failed to demonstrate that their assessment was too high. See supra note 12. Consequently, the MeKeemans have not shown that the Indiana Board erred in concluding that their sales comparison analysis lacked probative value.

CONCLUSION

For the foregoing reasons, the Indiana Board did not err in upholding the McKee-mans’ 2006 assessment. Accordingly, the final determination of the Indiana Board is AFFIRMED.

      . During oral argument, the Court sustained the Assessor's objection to the McKeemans’ arguments regarding the thirteen exhibits filed with their brief to the extent the arguments and exhibits were not presented to the Indiana Board. (See Oral Arg. Tr. at 29-32; Resp’t Br. at 7-8.) Accordingly, the Court will not consider any specific arguments regarding Exhibits 1-3, 5, 7, and 10-13. (Compare,, e.g., Cert. Admin. R. at 181-84 with Pet’rs’ Br. at Ex. 10 (demonstrating the significant differences between Exhibit 10 and two related record exhibits).) The Court, however, will consider the arguments regarding Exhibits 4, 6, and 8-9 because they were presented to the Indiana Board. (Compare Cert. Admin. R. at 99-102, 127, 164, 167 with Pet’rs’ Br. at Exs. 4, 6, 8-9.)

      . The assessment guidelines indicate that a taxpayer may present varying types of market-based evidence to rebut the presumption that an assessment is correct; nonetheless, one of the most effective methods to rebut this presumption is through the presentation of a market value-in-use appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP). See Kooshtard Prop. VI, LLC v. White River Twp. Assessor, 836 N.E.2d 501, 506 n. 6 (Ind.Tax Ct.2005), review denied.

      . A "neighborhood” is "[a] geographical area exhibiting a high degree of homogeneity in residential amenities, land use, economic and social trends, and housing characteristics." Real Property Assessment Guidelines For 2002-Version A (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2), Bk. 2, Glossary at 14.

      . In fact, the McKeemans suggest that Indiana's assessment guidelines provide that neighborhoods must contain the same types of properties (e.g., all residential or all commercial). (See Oral Arg. Tr. at 44; Pet'rs’ Br. at 10-11.)

      . Moreover, the McKeemans initially used two of the allegedly non-comparable properties to develop their sales comparison analysis. (Compare Cert. Admin. R. at 55 with 152, 169-175.)

      . Presumably, the McKeemans valued their land at $62,341 per parcel and, therefore, their total land value would have been $124,682.

      . The McKeemans explained that the sales data was primarily derived from a web-based Geographic Information System (GIS) for Steuben County. (See Cert. Admin. R. at 54, 76, 97-115.)

      . In making this computation, the McKee-mans excluded Comps 4 and 8 because they believed these properties were not truly comparable to their own. (See Cert. Admin. R. at 54.) Thus, the Comps' average front foot value reflects an average front foot value of eight properties, not ten.

      . $2,969 multiplied by 31 is $92,039, not $92,047.

      . While the McKeemans explained that the differences between their land and the Comps included, among other things, the accessibility to paved roads, the location of the dwellings on the properties, and their proximity to the Lake James Christian Assembly, the McKeemans did not describe how they supported the value differences at $29,706. (See Cert. Admin. R. at 56, 140, 211-12.)

      . More specifically, the Indiana Board explained that the McKeemans provided insufficient details regarding both the court ordered sale of Comps 2 and 3 as well as the two sales transactions concerning Comps 5 and 6. (See Cert. Admin. R. at 35-36.) The Indiana Board also explained that the McKeemans' valuations of Comps 9 and 10 were unreliable because instead of allocating a portion of the total sales price to each property, they merely valued Comp 9 consistent with its 2006 land assessment and assigned the entire sales price to Comp 10 (minus the value of improvements and the assessed value of Comp 9). (See Cert. Admin. R. at 36.)

      . The Indiana Board explained that despite certain deficiencies in the McKeemans’ quantification, the results suggested that Comp 5, a property located on an unpaved road without a garage similar to one of the McKeemans’ parcels, had sold for an abstracted front foot value much higher than that assigned to the McKeemans' land. (See Cert. Admin. R. at 36-37.)

      . The MeKeemans have also argued that the Indiana Board should have considered sales data that was not contained within their sales comparison analysis because that data was more reliable. (See Pet'rs’ Br. at 25.) The MeKeemans, however, bore the burden of establishing the invalidity of their assessment, not the Indiana Board. See O'Donnell v. Dep't of Local Gov’t Fin., 854 N.E.2d 90, 95 (Ind.Tax Ct.2006).


author: DAVID, Justice.

text:
    John LUTTRELL, Appellant, v. Melinda LUTTRELL, Appellee.
    No. 49A02-1301-DR-85.
    Supreme Court of Indiana.
    June 20, 2014.
   PUBLISHED ORDER DENYING PETITION TO TRANSFER

This matter is before the Indiana Supreme Court on a petition to transfer jurisdiction filed by the Appellant pursuant to Appellate Rule 57, following the Court of Appeals opinion issued on September 12, 2013. See Luttrell v. Luttrell, 994 N.E.2d 298 (Ind.Ct.App.2013). The Court has reviewed the decision of the Court of Appeals. Any record on appeal that was submitted has been made available to the Court, along with all briefs filed in the Court of Appeals and all the materials filed in connection with the request to transfer jurisdiction. Also, the Court has heard oral argument on the transfer petition. Each member of the Court has had the opportunity to voice that Justice’s views on the case in conference with the other Justices, and each has voted on the petition to transfer.

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

The Court DIRECTS the Clerk to certify the Court of Appeals opinion as final and to send copies of this order to all counsel of record. The Clerk is also directed to post this order to the Court’s website, and Thomson/Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

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

DAVID, J., dissents to the denial of transfer with separate opinion, in which RUSH, J., joins.

DAVID, Justice.

I respectfully dissent from the denial of transfer. To provide guidance to trial courts, I believe we should address the issue of whether a lump-sum Social Security Disability Insurance payment is a marital asset subject to division upon divorce, or a factor to be considered.

In Severs v. Severs, we stated in dicta that “any assignment or division of social security benefits to satisfy a marital property settlement under Indiana law is barred by 42 U.S.C. § 407” of the Social Security Act. 837 N.E.2d 498, 501 (Ind. 2005). 42 U.S.C. § 407(a) provides that

[t]he right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

(emphasis added). Though the SSA provides an exception to Section 407 for the withholding of money payments to enforce an individual’s legal obligation to provide “child support” or “alimony,” “alimony” is defined to exclude “any payment or transfer of property or its value ... or other division of property between spouses or former spouses.” 42 U.S.C. § 659. Relying on our statement of Section 407’s broad applicability in Severs, both the trial court and the Court of Appeals (in a published opinion) found that Melinda Lutt-rell’s retroactive lump-sum SSDI payment of $14,480.75, received after her petition for separation was filed but largely covering a period of lost income during the marriage, was not an asset of the marriage subject to division. Appellant’s App. at 28; Luttrell v. Luttrell, 994 N.E.2d 298, 301-03 (Ind.Ct.App.2013).

But this Court has never formally responded to the issue presented on transfer. Moreover, even if we were to determine that pursuant to 42 U.S.C. § 407(a) a lump-sum SSDI payment cannot be divided in divorce proceedings, the SSA does not control whether trial courts can consider the award as part of the total picture when determining how to equitably divide property upon divorce. Although it did not reach this issue, the Court of Appeals pointed to Stanley v. Stanley, where the Supreme Court of Delaware answered in the affirmative. 956 A.2d 1, 4 (Del.2008). Luttrell, 994 N.E.2d at 303, n. 4.

As it stands, the potential windfall for the spouse receiving the lump-sum SSDI payment is apparent, particularly where, under most circumstances, the lump sum represents lost income that was compensated for by a combination of the other spouse stepping up and both parties doing without during the period which gave rise to the SSDI qualification. Here, Melinda Luttrell’s lump-sum SSDI payment of $14,430.75 was not factored into the trial court’s division of the Luttrell marital estate, of which the net distribution of approximately $191,000 was split 60/40 in her favor. And in the next case where this issue arises, the lump-sum SSDI payment could be greater in amount and/or percent at stake. At minimum, one party’s receipt of a lump-sum SSDI payment should be a factor for the trial court to consider when awarding attorney’s fees.

Because this Court is passing up an opportunity to resolve a consequential issue likely to reoccur, I respectively dissent from the denial of transfer.

RUSH, J., joins.


author: BROWN, Judge.

text:
    Clarenda LOVE, Appellant-Respondent, v. Bruce LOVE, Appellee-Petitioner.
    No. 32A01-1311-DR-504.
    Court of Appeals of Indiana.
    April 30, 2014.
    Ordered Published May 22, 2014.
    Jana K. Strain, Indianapolis, IN, Attorney for Appellant.
    Matthew E. Dumas, Hostetter & O’Hara, Brownsburg, IN, Attorney for Ap-pellee.
   OPINION

BROWN, Judge.

Clarenda Love appeals from the trial court’s division of marital property in the dissolution of her marriage to Bruce Love. Clarenda raises two issues which we consolidate and restate as whether the court erred in its division of the marital property. We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts, as set forth in this court’s previous June 26, 2013 memorandum decision (the “June 2013 Decision”) related to the parties’ dissolution proceedings, are as follows:

Clarenda and Bruce were married on September 23, 1979. There are two children born of the marriage, both of whom were emancipated before the dissolution of Clarenda and Bruce’s marriage.
After the couple’s first child was born, Clarenda earned money for the family by babysitting and then later by operating a housecleaning business with a friend. When the children were young, Clarenda exercised primary responsibility for taking care of the home and the children while working part-time. During this period, Bruce worked fulltime outside the home. The family’s bills were paid from a joint account.
At some point in the 1990’s, Clarenda started taking prerequisites for pharmacy school. In approximately 2000, Clar-enda entered Purdue University to take core pharmacy classes. During this time, Clarenda also worked for Kroger and cleaned houses. Despite working part time and engaging in co-op programs during school, Clarenda incurred student loan debt valued at $54,646.84 at the time of separation. She graduated from Purdue in 2005, passed the pharmacy boards in August 2007, and then was hired as a full-time pharmacist at Kroger.
Bruce also went to college during the marriage, but he did not graduate. His college tuition was reimbursed by his employer.
Bruce petitioned for dissolution of the marriage on June 22, 2010, and, although the parties continued to reside in the marital residence until Bruce moved out in December of 2011, the separation date is June 22, 2010 (the date the petition for dissolution was filed).
At the time of the final dissolution hearing on June 19, 2012, Clarenda had been employed full-time for five years as a pharmacist for Kroger, and Bruce had been employed as an engineer at SMC Corporation of America (“SMC”) for a number of years. Clarenda had accumulated a retirement account through Kroger with a balance of $21,617.71 on the date of separation, and Bruce had accumulated a retirement account through SMC with a balance of $65,935.37. Clarenda’s annual salary was $106,000 on the date of separation, and Bruce’s annual salary was $52,000.
During the marriage, the parties acquired two residential properties: the marital residence in Avon, Indiana (the “marital residence”) and a rental property in Lafayette, Indiana (the “rental property!”] ),[] which they rented to Purdue students. For most of the period that the parties owned the rental property, Bruce was responsible for maintenance and Clarenda was responsible for administrative issues (finding renters, executing leases, collecting rent, etc.). At the time of the separation, Clarenda stopped managing the rental property, and Bruce took over those duties. When Bruce took over administrative duties, the cash flow from the rental property dwindled.
During the marriage, the parties jointly owned a money market account (“Account 2744”) that, until April 14, 2009, held approximately $27,000. On April 14, 2009, Bruce, in anticipation of filing for dissolution of the marriage, withdrew half the money market balance ($13,500) and moved it to a personal account (“Account 5330”). On or about the date of separation, Account 2744 held $13,821.44.

Love v. Love, No. 32A05-1207-DR-373, slip op. 2-4, 2013 WL 3280015 (Ind.Ct.App. Jun. 26, 2013). On June 27, 2013, the trial court entered an Order of Property and Debt Distribution (the “Original Order”). The June 2013 Decision summarized the trial court’s property distribution set forth in the Original Order as follows:

The trial court awarded the marital residence (with a gross value of $94,555.00) to Clarenda and the rental property (with a gross value of $130,000) to Bruce. The trial court also awarded other assets with a gross value of $69,498.37 to Clarenda and a gross value of $107,890.38 to Bruce. The court further held Clarenda responsible for $71,988.36 in debt (including a mortgage of $6,321.04 and student loans of $56,-686.54[]) and Bruce responsible for $47,406.22 (the amount of the mortgage on the rental home). Thus, of the net marital estate worth $282,549.17, the trial court awarded Clarenda 32.6 percent ($92,065.01) and Bruce 67.4 percent ($190,484.16). In support of its “Order of Property and Debt Distribution,” the trial court stated the following in pertinent part:
Both parties are employed. [Bruce] earns $52,000.00 annually and [Claren-da] approximately $106,000. During the course of the marriage, [Claren-da], while being a homemaker and working part-time, completed a pharmacy degree, acquired a license, and is now employed as a pharmacist. However, certain student loans acquired as a result thereof remain unpaid, those being Xpress Loan Servicing [as shown on Exhibit C].
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
The Court specifically finds that the deviation from the presumptive equal distribution ... [is] just and reasonable given the significant difference in present income and future earnings potential of the parties, and the fact that this difference results directly from educational degrees and a professional license acquired wholly within the course of the marriage.

Id. at 4-5.

Clarenda appealed from the Original Order, arguing that the trial court abused its discretion in deviating from the statutory presumption of an equal division of marital property and that the court’s findings were insufficient to support its order. Id. at 5. This court issued the June 2013 Decision and noted that the presumption of an equal division of marital property may be rebutted if a party presents relevant evidence regarding the five factors set forth in Ind.Code § 31-15-7-5. Id. at 6. In the June 2013 Decision, this court observed that the trial court’s findings failed to indicate that the trial court considered all of the relevant factors, that while Clarenda has a higher income she also has been held responsible for payment of significant debt, and that, while Clarenda benefitted from Bruce’s support during the marriage, Bruce reaped the benefits of Clarenda’s home management throughout the marriage and increased income during the years after she passed the boards and before Bruce filed the petition for dissolution. Id. at 6-7. We further noted that the trial court may have given undue consideration to the parties’ income differential, specifically noting that although Clar-enda does now have a higher income than Bruce it is not such a significantly higher income that it would necessarily justify a deviation from an equal division, that the entire family benefitted from Clarenda’s higher income while the parties were still married, and that the trial court set aside a significant amount of debt, largely attributable to Clarenda’s education which enabled her to make the higher income, to Clarenda. Id. at 7. We stated: “These factors, if considered by the trial court, may have caused the court to order less of a deviation from [a] presumed equal division of property. On the other hand, they may not have affected the court’s ultimate determination. The bottom line is that we cannot discern from the trial court’s order whether it considered relevant factors other than the disparity in the parties’ income.” Id. The June 2013 Decision remanded with instructions that the trial court determine the distribution of the marital estate in accordance with the presumption of an equal division of marital property. Id. at 8.

Following remand, the trial court on November 1, 2013, entered an order titled Amended Order of Property and Debt Distribution on Remand (the “Amended Order”). The Amended Order provided in part:

Preliminarily, this Court does apologize to all concerned that it did not set forth in its [Original] Order a sufficient explanation of its decision, thus bringing about this remand.
Regarding the contribution of each spouse in factor (1) of the statute, the evidence shows that the parties were married in 1979 when [Clarenda] became pregnant at age 17. [Bruce], who is approximately 3 years older and never acquired a college degree, worked throughout the marriage at a modest but respectable wage. A second child came along and [Clarenda] in the early years had primary responsibility for household matters, but also worked part time cleaning houses as she could. Initially, both parties pursued some limited additional education at no significant cost, [Bruce] being reimbursed by his employment, and [Clarenda] being subsidized by her grandmother.
Until about the year 2000 all indications are that the parties contributed equally to the family enterprise including the acquisition of property. In that year the oldest child was or was about to be emancipated, the youngest was approximately at high school entry age, and [Clarenda] embarked upon the pursuit of a pharmacy degree and a license to practice that profession. For approximately the next seven years her income was nominal while she travelled from Avon to Lafayette to attend classes at Purdue or worked as a “co-op”, presumably an intern, at Kroger. [Bruce] testified that he supported her and that he paid the costs of travel, books, etc. However, it appears that a “pay as you go” strategy was not fully possible as the parties incurred significant student loan debt with $54,646.84 of that still owing at the time of separation.
It is obvious that [Clarenda] devoted considerable time, effort and resources toward obtaining her degree and license, and she is to be complimented and admired for doing so. However, [Bruce] also sacrificed and the process involved ongoing monetary expense, and, the Court infers, loss of time to devote to the family enterprise and loss of potential income from more regular employment from [Clarenda]. Even if this latter be deemed too speculative, there is the hard fact of $54,646.84 in remaining debt directly attributable to the acquisition.
Since a degree and license cannot be included as “property” in the marital pot, this course of events resulted, albeit with no bad faith or evil intent exhibited by either party, in a significant reduction in the resulting marital pot at separation. Marital property, or what would could have [sic] and should have become marital property (to include lack of debt), was converted to non-marital property, ie., the degree and license, which inures only to [Clarenda’s] benefit after separation. While technically not dissipation, the effect is the same on [Bruce’s] bottom line.
The Court finds the foregoing to be a persuasive argument under factor (1) of the statute against the presumption of equal distribution. If not relevant as such under factor (1), it is at least an additional reason why an unequal distribution would be just and reasonable, to be factored in with the others.
Moving on to the other factors, (2) was found by the Court of Appeals to clearly have no relevance to this case. Regarding factor (3) there are no minor children in need of a residence, and neither party is in danger of being left destitute so long as their present income levels are maintained. However, as a significant debt responsibility must be assigned, [Clarenda’s] higher income gives her greater flexibility in this regard. This is even more so due to the fact that (at least at the date of the original Order herein) it is not an advantageous time to sell real estate such as the Lafayette property awarded to [Clarenda],[] and the Court finds it undesirable to place the parties in a position in which this is likely to be necessary.
Respecting factor (4) the Court reiterates its finding of no bad conduct or dissipation on the part of either party, but also reiterates its conclusion that, if the presumption of equal division obtains, the unforeseen outcome of the laudable pursuit of her degree and license is a windfall to [Clarenda] and constitutes unjust enrichment. At least as to the remaining student loan debt, equal division means that [Bruce] will be subsidizing, in the amount of 1/2 of the balance thereof at separation, or $27,823.42, [Clarenda’s] acquisition of her pharmacy degree and license leading to her enhanced income, which is all hers to keep.
Which brings us to factor (5). The parties testified, and the Court found, that their annual wages were $52,000 for [Bruce] and $106,000 for [Clarenda]. The parties further testified that, when all sources of income were considered, their actual approximate annual incomes were $60,000 and $120,000 respectively. Whatever these exact figures, it is undisputed that [Clarenda’s] income is at least twice that of [Bruce’s], and that the quantum leap that her income took beginning in mid 2007 was only made possible by acquisition of the degree and license. [Bruce] did reap the advantage of [Clarenda’s] increased income from its inception until separation, but this was for a period of only approximately three years, and not long enough to pay down the student loans to less than $54,646.42. [Clarenda], age 49 at final hearing, has many more earnings years ahead of her. [Bruce], at 52, is unlikely to see any increase in income beyond cost of living adjustments. Further, the Court finds this difference of $54,000 to $60,000 in annual income to be substantial. The first $60,000 should leave one comfortably average; the second $60,000 can buy security and the finer and special things in life that most, especially as they age, very much seek and enjoy.
In view of the foregoing, the Court found that an equal division of property would not be just and reasonable, and that the presumption thereof in I.C. 31-15-7-5 is rebutted. That being said, the issue of exactly what is just and reasonable remains, of course. The Court Order of June 27, 2012 sets forth a distribution of 67.4% [Bruce] and 32.6% to [Clarenda], On the face of it, and in view of past Appellate decisions in Indiana, such a disparate division is considered suspect. The decision remanding this very case tactfully makes this point. Nevertheless, and mindful of the disfavor with which it would be viewed, the Court found its decision to be the just and reasonable one. Two additional reasons are offered therefore: First, to make the division previously ordered equal would require the transfer of $49,209.58 from [Bruce] to [Clarenda]. But as it stands, with [Clarenda’s] excess income over [Bruce’s], even allowing 30% less for taxes, she can make this up in approximately 1.7 years, and thereafter have the entire additional $60,000 per year all to herself.
Second, and more persuasive to this Court is the idea that, in view of the special facts and circumstances of this case, the remaining balance of $54,646.84 of student debt should not be treated as a debt of the marriage at all (though still [Clarenda’s] sole obligation to pay), since the valuable asset it was used to purchase, the degree and license, is not considered property of the marriage, and since [Bruce] cannot realize any benefit from it.
Nevertheless, in the process of this analysis the Court has come upon precedent, not previously noted by any party involved, precisely on point and forcing the Court to modify its previous Order. Roberts v. Roberts, [670 N.E.2d 72 (Ind.Ct.App.1996), trans. denied ], dealt with similar facts (a law degree), and similar reasoning on the part of the trial Court in reaching a very unequal division of property. The cause was reversed and remanded, the final result being unknown.
Roberts clearly establishes that a degree cannot be counted as marital property, that student loan debt associated with it remains marital debt, and that these facts alone will not support an award of maintenance or alimony. The Court of Appeals even goes so far as to say that (in spite of the statutory mandate in I.C. 31-15-7-4(b) to divide the property “in a just and reasonable manner”), “inequities” must be allowed to occur in situations such as these, and that this problem can only be remedied by legislation.
This Court must defer to the Court of Appeals, and it is clear that the original Order as it stands will not survive further appellate review. However, Roberts does not say that there is nothing in facts such as these allowing the presumption of equal division to be rebutted; on the contrary, it is stated specifically that consideration of the increased earning capacity resulting from the degree is permitted under the statute.
Considering, then, all relevant statutory and non-statutory factors, including the great difference in earning capacity resulting directly from the acquisition of the degree and license during the course of the marriage and the manifest inequity of forcing [Bruce] to go on subsidizing [Clarenda’s] twice-his-size paycheck, the Court reiterates its finding that the presumption of equal division is rebutted, and that, at the very minimum, a just and reasonable divisioh demands that an otherwise equal division be adjusted by shifting 1/2 the student loan debt, or $27,828.42, from [Bruce] to [Clarenda’s]. This the Court orders done by adopting the property division as set out in the original Order, and modifying same by ordering that [Bruce] shall make an equalization payment to [Clarenda] in the amount of $21,886.16 within thirty (30) days of this Amended Order or under such reasonable terms that the parties submit by agreement subject to the Court’s approval. This results in a net distribution of $168,598.00, or 59.7%, to [Bruce], and $113,951.17, or 40.3%, to [Clarenda].
The Court’s Order of Property and Debt Distribution of June 27, 2012 is incorporated herein by reference and the matters therein are reiterated and reordered, modified only by the equalization payment as above ordered together with the analysis and explanations contained herein.

Appellant’s Appendix at 9-15. Clarenda now appeals from the Amended Order.

DISCUSSION

The issue is whether the trial court erred or abused its discretion in its division of the marital property. Clarenda asserts that the evidence does not rebut the statutory presumption that an equal division would be just and reasonable and therefore that the trial court abused its discretion in dividing the marital estate unequally. She argues that, in focusing on the student loans and the idea that incurring student loan debt converted marital property to a non-marital asset, the trial court disregarded the parties’ contributions to the acquisition of property. She does not dispute that she devoted time and resources toward obtaining her degree, but argues that Bruce offered no evidence that her education resulted in either lost time to devote to the family enterprise or lost potential income, that it is wholly speculative to consider her lost potential income, and that her education and skills would suggest that her potential income was no higher than minimum wage. Clar-enda maintains that the court did not consider her work in administering the rental property during fifteen years of marriage, that the court found there was no dissipation, and, although Bruce assisted with providing her with a car and money for gas and books, that the student loans were not unusual and did not constitute a waste or misuse of the marital finances. She contends that the trial court again gave undue consideration to the parties’ incomes and that Bruce’s income is a product of his lengthy employment history which he achieved in part because he had her support. Clarenda also claims that, although tying debts to assets may be appropriate in some property divisions, a degree is not an asset and it is error to tie student loan debt to the degree.

Bruce contends that the Amended Order discusses all of the relevant statutory factors and provides two additional reasons for the unequal division of the marital estate and that the trial court did not abuse its discretion in awarding him 59.7 percent of the marital estate. He argues that, if not for his actions in working and allowing Clarenda to obtain her pharmacy degree and license, she may not have had that degree and license, that he received very little benefit (three years of a thirty-year marriage) of Clarenda’s pharmacy degree and license while he carried the financial load during the majority of the marriage, that Clarenda’s earnings before obtaining the pharmacy degree and license were nominal, and that he paid all expenses during her quest for the degree and license. Bruce also maintains that the Amended Order correctly identifies Clar-enda’s student loan obligations as a marital debt.

The division of marital property is within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. Hartley v. Hartley, 862 N.E.2d 274, 285 (Ind.Ct.App.2007). An abuse of discretion occurs if the trial court’s decision “is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law or disregards evidence of factors listed in the controlling statute.” Hatten v. Hatten, 825 N.E.2d 791, 794 (Ind.Ct.App.2005), trans. denied. When we review a claim that the trial court improperly divided marital property, we must consider only the evidence most favorable to the trial court’s disposition of the property. Id. Although the facts and reasonable inferences might allow for a different conclusion, we will not substitute our judgment for that of the trial court. Id.

An equal division of marital property is presumed to be just and reasonable, but this presumption may be rebutted if a party presents relevant evidence regarding the following factors: (1) each spouse’s contribution to the acquisition of property; (2) acquisition of property through gift or inheritance prior to the marriage; (3) the economic circumstances of each spouse at the time of disposition; (4) each spouse’s dissipation or disposition of property during the marriage; and (5) each spouse’s earning ability. Ind.Code § 31-15-7-5. When ordering an unequal division, the trial court must consider all of the factors set forth in the statute. Eye v. Eye, 849 N.E.2d 698, 701 (Ind.Ct.App.2006). While a trial court abuses its discretion in considering a factor in isolation from the other four factors, the court is not required to explicitly address each factor. Id. at 702. However, a court on review must be able to infer from the trial court’s findings that all the statutory factors were considered. Id. at 703.

The trial court’s division of marital property is “highly fact sensitive and is subject to an abuse of discretion standard.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.2002). Also, a trial court’s discretion in dividing marital property is to be reviewed by considering the division as a whole, not item by item. Id. We “will not weigh evidence, but will consider the evidence in a light most favorable to the judgment.” Id. A trial court may deviate from an equal division so long as it sets forth a rational basis for its decision. Hacker v. Hacker, 659 N.E.2d 1104, 1109 (Ind.Ct.App.1995). “A party who challenges the trial court’s division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute.” Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind.Ct.App.2008). “Thus, we will reverse a property distribution only if there is no rational basis for the award.” Helm v. Helm, 873 N.E.2d 83, 89 (Ind.Ct.App.2007) (citation omitted).

It is well-established that all marital property goes into the marital pot for division, whether it was owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts. Ind.Code § 31-15-7-4(a); Beard v. Beard, 758 N.E.2d 1019, 1025 (Ind.Ct.App.2001), trans. denied. This “one-pot” theory ensures that all assets are subject to the trial court’s power to divide and award. Thompson v. Thompson, 811 N.E.2d 888, 914 (Ind.Ct.App.2004), reh’g denied, trans. denied.

Here, in its Amended Order, the trial court addressed the factors set forth in Ind.Code § 31-15-7-5 and found that the evidence relating to the factors rebutted the presumption of an equal division of marital property. Regarding the acquisition of the marital property, the record reveals, that for the first years of the parties’ marriage, Clarenda cared for the parties’ children and earned money by babysitting and housecleaning, and Bruce worked full time. A little over twenty years into the marriage, Clarenda attended school and obtained her pharmacy degree and license, during which time she incurred $54,646.84 of student loan debt, and she ultimately became employed as a full-time pharmacist in 2007. According to the asset and debt schedules attached to the Original Order, the parties had paid off a significant portion of the mortgage associated with the marital residence prior to 2010, and at that time Clarenda had been employed as a full-time pharmacist for approximately three years of the parties’ thirty-year marriage. Clarenda testified that the parties acquired a rental property in 1996 or 1997, and according to the asset and debt schedules attached to the Original Order, the value of the parties’ debt associated with the property was a little over one-third of the value of the property in 2010, and at that time Clarenda had been employed as a full-time pharmacist for approximately three years of the thirteen or fourteen years the parties had owned the rental property. Until the parties’ separation, Bruce was responsible for maintenance of the rental property and Clarenda was responsible for administrative issues related to the property. As noted by the trial court, until the year 2000, all indications are that the parties contributed equally to the acquisition of property, and after that time Clarenda committed time and resources, which included incurring student loan debt, toward obtaining her degree and license. Neither party claims property was received through gift or inheritance prior to the marriage.

With respect to the parties’ economic circumstances, as of the date of the parties’ separation, Clarenda earned $106,000 annually, Bruce earned $52,000 annually, and the court awarded the marital home and associated debt to Clarenda and the rental property and associated debt to Bruce. In its Amended Order, the court found that the parties testified that, when all sources of income were considered, the actual approximate annual incomes of Clarenda and Bruce were $120,000 and $60,000, respectively. The value of assets schedule attached to the Original Order shows the value of Bruce’s retirement account with his employer after a number of years of employment was $65,935.37 and the value of Clarenda’s retirement account with her employer after three years of full-time employment was $21,617.71. The schedule also shows that the parties’ bank and money market accounts were divided evenly between the parties, that Bruce was awarded three vehicles, namely, a 1977 Ford Bronco, a 1995 Acura Integra, and a 1991 Ford F-250, with a total value of $2,935, that Bruce was awarded four motorcycles valued at $4,985, and that Clar-enda was awarded two vehicles, namely, a 2000 Volkswagen Jetta and a 2005 Cadillac, with a total value of $20,960.

We note that the trial court did not consider Clarenda’s pharmacy degree and license as constituting marital property. However, the court observed that the marital estate includes the student loans associated with paying for Clarenda’s education. The court also explained that, consistent with case law, it considered Claren-da’s increased earning capacity resulting from her degree. See Roberts v. Roberts, 670 N.E.2d 72, 77-78 (Ind.Ct.App.1996) (noting that “the dissolution statute does permit the increased earning capacity of a spouse who has earned a degree during a marriage to be considered in regard to the division of marital property”), trans. denied. Although incurring student debt may not have constituted waste or misuse of marital assets, the debt was incurred to enable Clarenda to obtain her education and licensure, which she achieved, and we note that the debt must be included as a liability in the marital estate, that the debt reduces the aggregate value of the marital estate to be distributed between the parties, and that the value of the debt must be assigned to the parties in some fashion. See id. at 76-77 (noting that the wife argued that, if the husband’s degree was not to be considered a marital asset then, correspondingly, his student loans should not be considered marital liabilities, disagreeing with her argument, observing that the student loans were contracted during the marriage and were properly considered as part of the marital estate, and holding that “the court quite properly determined that [the husband] should be solely responsible for their repayment” and that the wife “suffered no harm whatever from their inclusion in the marital pot and the order that [husband] be solely responsible for their repayment”). The trial court noted these facts and considered the relevant statutory factors, found that the presumption of equal division was rebutted, and found that a just and reasonable division was to shift one-half of the student loan debt from Bruce to Clarenda, which the court achieved by ordering Bruce to make an equalization payment to Clarenda of $21,886.16. This resulted in a net distribution of 59.7 percent of the marital estate to Bruce and 40.3 percent of the marital estate to Clarenda.

Under the circumstances and upon review of the record and the court’s findings and conclusions, we cannot say that Clar-enda has overcome the strong presumption that the trial court considered and complied with the applicable statute, and we do not disturb the division of marital property set forth in the trial court’s Amended Order.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s division of the marital estate.

Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.

      . Clarenda testified that the rental property was purchased in 1996 or 1997.

      . The total of the amounts associated with the "Xpress Loan Servicing” debt shown on Exhibit C to the Original Order is $54,646.84.

      . The June 2013 Decision noted that the factor related to acquisition of property through gift or inheritance prior to the marriage had no application to the facts and circumstances of this case. Love, Slip op. at 6 n. 1.

      . In its Original Order, the trial court awarded the rental property in West Lafayette to Bruce, and the court did not disturb this aspect of the property division in its Amended Order. The reference here to Clarenda, the Respondent below, appears to be a mistaken reference. Also, as noted by Clarenda, the rental property was located in West Lafayette.

      . The court valued the marital residence at $94,555.00 and the mortgage at $6,321.04.

      . The court valued the rental property at $130,000.00 and the debt associated with the property at $47,406.22.

      . One-half of the student loan debt of $54,646.84 is $27,323.42. Shifting the value of one-half of the student loan debt from Bruce to Clarenda results in a total distribution to Clarenda of $113,951.17, which can be calculated by subtracting the value of one-half of the student loan debt from one-half of the aggregate marital estate as follows: ($282,-549.17 h- 2) - $27,323.42 = $113,951.17 (rounding up by one-half cent). Shifting the value of one-half of the student loan debt from Bruce to Clarenda results in a total distribution to Bruce of $168,598.00, which can be calculated by adding the value of one-half of the student loan debt to one-half of the aggregate marital estate as follows: ($282,549.17 -h 2) + $27,323.42 = $168,598.00 (rounding down by one-half cent). The Original Order awarded Bruce $190,484.16 of the marital estate, and in order to effect an ultimate distribution to Bruce of $168,598.00 of the marital estate, the court in its Amended Order required Bruce to pay Clarenda an equalization payment in the amount of $21,886.16, the difference between $190,484.16 "and $168,598.00.


author: MAY, Judge. VAIDIK, Chief Judge,

text:
    Kenneth GRIESEMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1308-CR-382.
    Court of Appeals of Indiana.
    May 23, 2014.

      Daniel L. Moore, Moore & Associates, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   Opinion

MAY, Judge.

Kenneth Griesemer appeals his conviction of Class A misdemeanor patronizing a prostitute. He argues he was entrapped. We reverse.

FACTS AND PROCEDURAL HISTORY

On August 15, 2012, Indianapolis Metropolitan Police Department Detective Tabatha McLemore was posing as a prostitute on East Washington Street in Indianapolis. Around 2:30 p.m., Griesemer drove past her and stared at her as he passed. A few minutes later, Griesemer drove northbound toward Washington Street on Ewing Street. As he approached the corner of Ewing and Washington Streets, he asked Detective McLemore, through his open car window, if she needed a ride. She declined the ride, saying she was trying to make money. Griesmer nodded his head toward his passenger seat, which she understood to be an invitation to enter the car. She asked how much money he had, and he said twenty dollars. She told him she could perform fellatio for twenty dollars. He nodded his head “yes,” and then he nodded toward the passenger seat to indicate she should get in the car. She asked him to pick her up “down the street.” (Tr. at 8.) Griesemer nodded in agreement, then turned right onto Washington Street, drove down the street, and pulled' into the parking lot that he had used to circle back to Washington Street the first time. In that parking lot, uniformed officers in a marked police car stopped Griesemer and placed him under arrest.

The State charged Griesemer with one count of Class A misdemeanor patronizing a prostitute. Following a bench trial, the court entered a conviction thereof and imposed a 180-day sentence with 176 days suspended.

DISCUSSION AND DECISION

A person commits Class A misdemeanor patronizing a prostitute if that person “knowingly or intentionally pays, or offers or agrees to pay money or other property to another person ... on the understanding that the other person will engage in ... deviate sexual conduct with the person.... ” Ind.Code § 35-45-4-3. Deviate sexual conduct includes acts involving “a sex organ of one person and the mouth or anus of another person.” Ind. Code § 35-41-1-9. Griesemer acknowledges that agreeing to have Detective McLemore perform fellatio in exchange for twenty dollars would constitute patronizing a prostitute. He argues, however, that the State did not disprove his defense of entrapment.

Entrapment is a one of a handful of defenses that can eliminate a defendant’s culpability for acts committed. See Ind. Code ch. 35-41-3 (“Defenses Relating to Culpability”). “Entrapment exists where an otherwise law-abiding citizen is induced through police involvement to commit the charged crime.” Lahr v. State, 640 N.E.2d 756, 760 (Ind.Ct.App.1994), trans. denied. Our legislature provided the following definition for entrapment:

(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

Ind.Code § 35-41-3-9.

If a defendant asserts the defense of entrapment and establishes police inducement, then the burden of proof shifts to the State. Dockery v. State, 644 N.E.2d 573, 577 (Ind.1994). The State must either disprove police inducement by demonstrating beyond a reasonable doubt that “the defendant’s prohibited conduct was not the product of the police efforts,” McGowan v. State, 674 N.E.2d 174, 175 (Ind.1996), reh’g denied, or establish the defendant’s predisposition to commit the crime. Dockery, 644 N.E.2d at 577. If the State does not meet its burden of proof, then entrapment has been established as a matter of law. Id.

“We review a claim of entrapment using the same standard that applies to other challenges to the sufficiency of evidence.” Id. at 578. We consider only the evidence supporting the verdict and draw all reasonable inferences therefrom. Id. We neither reweigh the evidence nor judge witness credibility. Id. If the record contains substantial evidence of probative value that would have permitted a reasonable trier of fact to infer guilt beyond a reasonable doubt, then we will uphold a conviction. Id.

Griesemer asserts the police induced his behavior. After Griesemer offered Detective McLemore a ride, she was the first to mention money, the first to mention performance of a sexual act, and the first to mention trading a sexual act for money. Under nearly identical facts, we held a defendant had “clearly established police inducement.” Ferge v. State, 764 N.E.2d 268, 271 (Ind.Ct.App.2002) (“It is undisputed that Officer Gehring initiated the conversation regarding whether Ferge would be interested in fellatio for payment.”).

Accordingly, the burden shifted to the State to either disprove inducement or demonstrate Griesemer was predisposed to commit the crime. See McGowan, 674 N.E.2d at 175 (holding State must disprove inducement or prove predisposition). The State argues it “merely afforded the defendant the opportunity to commit this crime.” (Oral Argument Video at 17:19-17:22; see also Appellee’s Br. at 7.) In support thereof, the State notes the second part of the statute defining entrapment states: “(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.” Ind.Code § 35-41-3-9.

However, as our Indiana Supreme Court explained:

Part (b) of the statute is explanatory of the level of police activity that would be necessary to support the entrapment defense but this section does not negate the requirement of the necessary predisposition on the part of the accused. We have consistently held that if the accused had the predisposition to commit the crime and the police merely afforded him an opportunity to do so, then the defense of entrapment is not available.

Baird v. State, 446 N.E.2d 342, 344 (Ind.1983) (emphasis in original) (reversing conviction based on entrapment where State sent minor to purchase alcohol and “presented absolutely no evidence of defendant’s predisposition to commit the crime”). Thus, if the police merely afforded a citizen an opportunity to commit a crime, then the State may not have induced that citizen’s criminal behavior, see, e.g., Shelton v. State, 679 N.E.2d 499, 502 (Ind.Ct.App.1997) (evidence police “merely placed the deer decoy off the road where the Sheltons could see it” was not adequate to demonstrate inducement sufficient to entitle Sheltons to jury instruction on entrapment), but it does not relieve the State of its obligation to demonstrate a defendant’s predisposition.

The State attempts to analogize the facts in this case to the facts in Shelton. There, police officers placed a remote-control deer decoy in a field where it would be visible to persons driving past. Then, when Denver and Kenneth Shelton drove down the road, the officers used the remote control to move the deer’s head. The Shelton brothers stopped their vehicle on the road, pointed a shotgun out the window, and fired two shots at the deer decoy. For that act, the State charged them with Class C misdemeanor road hunting. We held the placement of the deer decoy in the field was not sufficient to demonstrate inducement that would entitle the Sheltons to a jury instruction on entrapment, because the police had merely provided an opportunity for the Sheltons to shoot at a deer. Id. at 502.

We cannot, however, hold that the facts herein are analogous to those in Shelton. Detective McLemore was not merely standing on the side of the road dressed like a prostitute. She was the first to mention money, a sex act, and the possibility of exchanging the two. For Shelton to be analogous, the deer decoy would have needed a sign or recording announcing to passers-by that they were welcome to shoot at the deer for twenty dollars. As the deer decoy contained no such explicit invitation to commit criminal behavior, we decline the State’s invitation to follow Shelton. Detective McLemore’s question and statements were sufficient to induce Gries-emer to commit patronizing a prostitute. See Ferge, 764 N.E.2d at 271 (record “clearly established police inducement” where officer initiated conversation regarding whether “Ferge would be interested in fellatio for payment”); ef. Espinoza, v. State, 859 N.E.2d 375, 385-86 (Ind.Ct.App.2006) (where police intercepted package containing marijuana and cocaine that was addressed for delivery via UPS to Espinoza, and police simply delivered the package instead of UPS, police did not induce Espinoza’s criminal behavior or implant a criminal design in his mind).

Therefore, to rebut Griesemer’s entrapment defense, the State needed to prove Griesemer was predisposed to commit patronizing a prostitute. See Price v. State, 397 N.E.2d 1043, 1046 (Ind.Ct.App.1979) (“Insomuch as the idea of the charged illegal conduct originated with the police, the State has the burden of proving a predisposition on the part of defendant to engage in the illegal activities.”). “Whether a defendant was predisposed to commit the crime charged is a question for the trier of fact,” and the State must prove that predisposition beyond a reasonable doubt using “evidence subject to the normal rules of admissibility.” Dockery, 644 N.E.2d at 577. Several factors may be relevant to determining whether a defendant was predisposed to commit a crime:

(1) the character or reputation of the defendant; (2) whether the suggestion of criminal activity was originally made by the government; (3) whether the defendant was engaged in criminal activity for a profit; (4) whether the defendant evidenced reluctance to commit the offense, overcome by government persuasion; and (5) the nature of the inducement or persuasion offered by the government.

Kats v. State, 559 N.E.2d 348, 353 (Ind.Ct.App.1990), trans. denied. Additional facts that suggest criminal predisposition include familiarity with jargon and prices, engaging in multiple transactions, or arranging future transactions. Riley v. State, 711 N.E.2d 489, 494 (Ind.1999).

Griesemer notes he stopped at a stop sign and offered the detective a ride, and then the detective initiated discussion of sexual matters. Furthermore, Griesemer asserts, the State presented no evidence that he was familiar with the jargon or price of prostitutes, that he tried to engage in multiple transactions or arrange future transactions, that he was known to patronize prostitutes, or that he exhibited any other behavior that suggests predisposition to patronize prostitutes. Thus, Gries-emer claims, we should reverse his conviction. See Ferge, 764 N.E.2d at 271-72 (reversing conviction of patronizing a prostitute because State did not show Ferge’s predisposition to commit the crime the police induced).

The State argues Ferge should not control the outcome herein because “[u]nlike Ferge, there was no evidence that [Gries-emer] was in the habit of offering rides to strange women.” (Appellee’s Br. at 8-9.) However, Griesemer did not have any burden to prove he lacked predisposition, and we decline the State’s invitation to impose that burden on him. See Baird, 446 N.E.2d 342 (reversing conviction of furnishing alcohol to a minor because police use of 19-year-old to purchase the beer from the store where Baird was the clerk amounted to police initiation of the criminal activity, and State did not offer evidence that Baird was predisposed to sell alcohol to minors). We may not affirm Griesemer’s conviction on the ground that he did not produce evidence of his motivation for offering Detective McLemore a ride.

Finally, at oral argument, the State suggested Griesemer’s nodding yes to agree to fellatio and nodding toward the seat for Detective McLemore to get into the car demonstrate he was predisposed to commit patronizing a prostitute because “this is everything we would expect in this kind of encounter.” (Oral Argument Video at 18:06-18:09.) Although the State does not need to demonstrate “prior acts to show ‘predisposition,’ ” Gilley v. State, 535 N.E.2d 130, 132 (Ind.1989), the State cannot use the very facts necessary to demonstrate patronizing a prostitute to demonstrate predisposition to commit that same crime, or the State effectively will have avoided its burden to demonstrate predisposition. See Voirol v. State, 412 N.E.2d 861, 864 (Ind.Ct.App.1980) (“The fact that defendant sold to a person he had never seen before does not support an inference of eagerness or propensity. Otherwise any time one has been entrapped and a sale has occurred, the fact of sale would show a propensity or a predisposition.”). We decline to hold that agreeing to commit a crime induced by the State demonstrates the predisposition necessary to rebut the defense of entrapment. See Dockery, 644 N.E.2d at 577 (if State does not prove predisposition, then entrapment is established as a matter of law); Baird, 446 N.E.2d at 344 (reversing conviction of entrapment where State “presented absolutely no evidence of defendant’s predisposition to commit the crime”).

Rather, to demonstrate predisposition, the State needed to produce evidence similar to that which we have found sufficient in prior decisions, such as providing marijuana on a prior occasion and offering to sell crack cocaine to the officer in the future, Gray v. State, 579 N.E.2d 605 (Ind.1991), reh’g denied; selling drugs to obtain a “pinch” for himself, knowing prices and sources, and offering to sell in the future, Henrichs v. State, 455 N.E.2d 599, 601 (Ind.1983); using drug jargon for cocaine packaging (“bricked up”) and offering to supply additional cocaine in the future, Turner v. State, 993 N.E.2d 640, 644 (Ind.Ct.App.2013), trans. denied; negotiating for a better price and urging the officer to engage in more criminal behavior, Salama v. State, 690 N.E.2d 762 (Ind.Ct.App.1998) (charged with welfare fraud), trans. denied, being the first to mention the crime, discussing payment, and providing a shotgun, Lahr, 640 N.E.2d at 760; and knowing terminology and pricing, having familiarity with suppliers, wanting some for his own use, Young v. State, 620 N.E.2d 21, 25 (Ind.Ct.App.1993), trans. denied. As the State did not present any evidence that could demonstrate Griesemer was predisposed to patronize a prostitute, it did not rebut his defense of entrapment. See, e.g., Baird, 446 N.E.2d at 344 (reversing conviction where criminal activity was initiated by police and State presented no evidence of defendant’s predisposition).

Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law, and we must reverse Griesemer’s conviction.

Reversed.

BAKER, J., concurs.

VAIDIK, C.J., dissents with separate opinion.

VAIDIK, Chief Judge,

dissenting.

I respectfully disagree with the majority’s view that there was not sufficient evidence to rebut Griesemer’s entrapment defense. Specifically, I believe that the State proved that Griesemer was predisposed to commit the offense because the State established that Griesemer was not reluctant to commit the offense. Therefore, I would affirm Griesemer’s conviction for Class A misdemeanor patronizing a prostitute.

Griesemer was driving his car and noticed Tabitha McLemore, an undercover police officer who was posing as a prostitute, near the corner of Washington and Ewing Streets on the east side of Indianapolis. A few minutes later, he drove by again and asked her if she needed a ride. Tr. p. 6. She declined and explained that she was “trying to make some money.” Id. at 7. Griesemer then nodded his head toward his passenger seat, indicating that Officer McLemore should get into his car. Id. She then asked Griesemer how much money he had, and he responded by again nodding his head toward the passenger seat. She repeated the question, and he responded that he had twenty dollars. Id. Officer McLemore told him that she could do “head” for that price. Griesemer shook his head yes and again nodded for her to get into the passenger seat of his car. Id. Officer McLemore then asked Griesemer to pick her up “down the street.” Id. at 8. He nodded in agreement. Griesemer turned right onto Washington Street from northbound Ewing and then turned right again at the next block pulling into the parking lot that he “turned in originally.” Id. at 9. In the parking lot, he was arrested by uniformed police officers. After a bench trial, the trial court found him guilty of Class A misdemeanor patronizing a prostitute.

Griesemer asserted the defense of entrapment at trial. Entrapment is a valid defense if (1) the prohibited conduct was the result of a police officer using persuasion or other means likely to cause the person to commit a crime and (2) the person was not predisposed to commit the offense. Ind.Code § 35-41-3-9. This Court has stated that once a defendant has proved that he was induced to commit the offense, the burden of proof shifts to the State either to disprove beyond a reasonable doubt that the defendant was induced to commit the crime or to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Scott v. State, 772 N.E.2d 473, 474-75 (Ind.Ct.App.2002), tram, denied.

I agree with the majority that Officer McLemore induced Griesemer to commit the offense. However, I disagree with the majority that the State did not prove that Griesemer was predisposed to commit the offense.

A defendant’s predisposition to commit a crime is a question of fact, and we use the same standard that is used to address sufficiency claims. Dockery v. State, 644 N.E.2d 573, 578 (Ind.1994). We will uphold a conviction if the record is supported with substantial evidence of probative value from which a reasonable trier of fact could infer that the appellant was predisposed to commit the offense. Id. “Circumstantial evidence may be sufficient to establish predisposition.” Voirol v. State, 412 N.E.2d 861, 863 (Ind.Ct.App.1980).

Several factors may be relevant in determining whether a defendant was predisposed to commit a crime, including:

(1) the character or reputation of the defendant; (2) whether the suggestion of criminal activity was originally made by the government; (3) whether the defendant was engaged in criminal activity for a profit; (4) whether the defendant evidenced reluctance to commit the offense, overcome by government persuasion; and (5) the nature of the inducement or persuasion offered by the government.

Kats v. State, 559 N.E.2d 348, 353 (Ind.Ct.App.1990), trans. denied. We adopted these factors from the Seventh Circuit in United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir.1989). In explaining the factors, the Fusko Court stated that “ ‘the most important element of the equation is whether the defendant was reluctant to commit the offense.’ ” Id. (quoting United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir.1984)). The Fusko Court also explained that reluctance is established when “ ‘evidence demonstrated some degree of Government involvement in coaxing the defendant into committing the offense, and the defendant, for whatever reason, was initially reluctant to become involved _’” Id. (quoting Thoma, 726 F.2d at 1196).

The majority asserts that the State cannot use the very facts necessary to commit a crime to demonstrate that a defendant was predisposed to commit that crime. Op. at 1020. I agree that something more than the commission of the crime by itself is necessary to prove that a defendant was predisposed to commit the offense. See Voirol, 412 N.E.2d at 863 (holding that the mere fact that a defendant was willing to sell drugs to a person he did not know could not be construed as evidence that the defendant was “willing and eager” to sell drugs). But based on the Kats factors, the State does not need to prove that the defendant is “willing and eager” to commit the crime. Instead, the State must only establish that the defendant was not reluctant to commit the crime.

The evidence presented by the State did exactly that. The evidence most favorable to the judgment shows that Griesemer nodded his head toward the passenger seat after Officer McLemore told him she was trying to make some money. She then asked him how much money he had, and he responded that he had twenty dollars. Although Officer McLemore was the first to mention the idea of paying money for a sexual act, Griesemer was the first to mention the amount of money. Had he been initially reluctant to commit the crime, he would not have immediately volunteered the amount of money he had in his car to an unknown woman standing outside his car window. After the agreement was consummated, she told him to pick her up down the street. Griesemer then drove into the parking lot he had originally turned around in, presumably to turn around and pick her up down the street. I believe that the evidence most favorable to the judgment is sufficient to establish that Griesemer was not reluctant to commit Class A misdemeanor patronizing a prostitute.

I also find this case distinguishable from Ferge v. State, 764 N.E.2d 268 (Ind.Ct.App.2002). In that case, Ferge stopped at a corner and asked the undercover police officer, who was posing as a prostitute, if she needed a ride. She said “maybe” and then asked if he was “looking for a little more.” Id. at 270. Ferge responded only, “yes, get in,” to each of her questions. But more pertinently, after the officer told Ferge to meet her in an alley behind the building, Ferge did not circle the block to return to the alley; instead, he drove away from the alley until he was stopped by the police approximately seven blocks away. Id. Unlike in Ferge, Griesemer did drive back to the parking lot he had turned into originally.

While lack of reluctance is only one of the Kats factors, it is the most important one. Here, Griesemer exhibited no reluctance to commit the offense, nor is there any evidence that the government used persuasion to overcome any reluctance Griesemer may have had.

Finally, I respectfully disagree with the majority’s suggestion that in order to demonstrate predisposition, the State needed to produce evidence of Griesemer patronizing prostitutes in the past or being familiar with the jargon of the prostitution business.

When looking at the evidence most favorable to the judgment, I believe the State proved that Griesemer was predisposed to commit the offense. Therefore, I would find that there was sufficient evidence to rebut Griesemer’s entrapment defense and would affirm his conviction for Class A misdemeanor patronizing a prostitute.

      . Ind.Code § 35-45-4-3.

      . We held oral argument on this case on February 11, 2013, at the Indiana Statehouse, before an audience of participants in the Indiana Bar Association’s Leadership Development Academy. We commend counsel for the quality of their advocacy.

      . The precise location where Griesemer was to meet Detective McLemore is unclear from the record. Detective McLemore testified "he would have to, in order to come back around, he’d have to turn on to Washington Street and go around the loop which is what he did originally when he came back to speak with me.” (Tr. at 8.)

      . Detective McLemore testified she told Gries-emer that she could "do ‘head’ which is street terminology for fellatio.” (Tr. at 7.) However, we decline to hold that widely-know slang term for fellatio qualifies as the kind of criminal "jargon” suggesting a person is predisposed to patronize prostitutes. Cf. Henrichs v. State, 455 N.E.2d 599, 601 (Ind.1983) (appellant "used and understood terminology almost exclusively practiced in the illegal drug traffic trade”); Young v. State, 620 N.E.2d 21, 25 (Ind.Ct.App.1993) (appellant used "eight balls” and "sixteenths” for quantities of cocaine and knew the prices for each), trans. denied.

      .The only additional fact to which the State can point is the fact that Griesemer had turned into a parking lot that would provide access to an alley through which Griesemer could circle back around to the designated meeting place. The State asserts this fact distinguishes this case from Ferge, in which the defendant had driven nine blocks from the undercover officer before he was stopped by police. See Ferge, 764 N.E.2d at 272. However, the fact remains that, when arrested, Griesemer was in the parking lot of a convenience store and, from Detective McLemore’s description, at least two blocks from the designated meeting place. We decline to hold Griesemer’s presence there, at least two blocks from the meeting place and in the parking lot of a convenience store, demonstrated his predisposition to commit this crime.

      . “Head" is a street term for fellatio.

      . According to Officer McLemore, to pick her up, "he'd have to turn [onto] Washington Street and go around the loop which is what he did originally when he came back to speak with [Officer McLemore].” Tr. p. 8.