author: BARNES, Judge.

text:
    CITY OF BLOOMINGTON, Appellant, v. Cheryl UNDERWOOD, Appellee.
    No. 53A01-1212-OV-577.
    Court of Appeals of Indiana.
    Aug. 20, 2013.
    Ordered Published Sept. 26, 2013.

      Patricia M. Mulvihill, City of Blooming-ton, Bloomington, IN, Attorney for Appellant.
    Edward F. McCrea, McCrea & McCrea, Bloomington, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

The City of Bloomington (“the City”) appeals the trial court’s grant of summary judgment to Cheryl Underwood on the City’s ordinance violation complaint. We affirm.

Issues

The City raises three issues, which we consolidate and restate as:

I. whether the trial court properly granted summary judgment to Underwood on the City’s complaint that she violated Title 20 of the Bloom-ington Municipal Code (“BMC”); and
II. whether the trial court properly granted summary judgment to Underwood on the City’s complaint that she violated Title 16 of the BMC.

Facts

Underwood owns rental property on East 8th Street in Bloomington. The property contained two efficiency units, a one-bedroom unit, and two three-bedroom units. In 2006, the City’s Planning Commission sought to repeal and replace Title 20 of the BMC, which concerned zoning. The Planning Commission published notice of the proposed change in a Bloomington newspaper. The Planning Commission also held several public meetings on the proposed changes. On December 20, 2006, the City repealed and replaced Title 20 of the BMC. The changes were effective on February 12, 2007.

Prior to the enactment of the new zoning ordinance, Underwood’s property was zoned Multi-dwelling Residential (RM7). After the enactment, the property and approximately twenty other nearby properties were changed to an Institutional zoning classification. Other than the notice by publication, the Planning Commission did not specifically notify Underwood or the other property owners affected by the change.

A multi-family dwelling is not a permitted use or conditional use within an Institutional zoning district. Because the property contained a “lawful multifamily dwelling prior to” the enactment of the ordinance, the property “was considered a lawful nonconforming use.” Appellant’s App. p. 29. However, Section 20.08.050 of the BMC does not allow a lawful nonconforming use to be “intensified, expanded, enlarged, extended or relocated ..., nor may any structure containing or associated with such use be expanded, enlarged, extended, relocated, or altered so as to create additional bedrooms or other habitable space.” Id. at 277.

Title -16 of the BMC required that all residential rental units be issued an occupancy permit prior to the unit being occupied by anyone other than the owner or the owner’s legal dependants. In January 2010, Underwood’s property was granted a valid, three-year occupancy permit. At some point in 2010, Underwood remodeled the three-bedroom units. According to the City, she reconfigured the space to make two five-bedroom units rather than two three-bedroom units. During the summary judgment proceedings and on appeal, Underwood disputes the assertion that she added two bedrooms to each unit.

After remodeling, Underwood did not obtain a new occupancy permit. In August 2010, Underwood applied for a building permit from the Monroe County Building Department (“Building Department”). The Building Department informed her that “they had no problem with [her] application” but the Planning Commission refused-to agree to the changes because of the property’s Institutional zoning classification and provided Underwood with written notice in September 2010. Appellee’s App. pp. 15-16. That letter was Underwood’s first actual notification of the zoning change. Underwood believed that her property was being misidentified as Institutional. In November 2010, Underwood petitioned the Planning Commission to rezone the property from Institutional to RM7.

In May 2011, the City filed a complaint against Underwood for an alleged violation of Titles 20 and 16 of the BMC. In January 2012, the City filed a motion for summary judgment. The City argued that: (1) Underwood violated Title 20 by unlawfully altering a lawful nonconforming use when she remodeled the units to contain five bedrooms each instead of three bedrooms; and (2). Underwood violated Title 16 by allowing tenants to live at the property without first obtaining a valid occupancy permit.

Underwood filed a response to the City’s motion for summary judgment. Underwood argued that the notice of the change to her property’s zoning classification was improper. According to Underwood, the City was required under Indiana Code Section 36-7-4-604(c) to give her individual notice of the zoning change, but the City failed to do so. Underwood also argued that she did not create two additional bedrooms in each of the units,and that there was a genuine issue of fact as to whether the units have three or five bedrooms. Underwood argued that she had a valid occupancy permit for five occupants in each of the units and that she had not exceeded the occupancy allowed by the permit. Underwood also argued that the Planning Commission was selectively enforcing the ordinances and that .she had been improperly targeted for enforcement.

The City then filed a reply brief. The City argued that individual notice of the zoning change was not required by the statute or due process, that Underwood was not treated differently than other property owners, that Underwood’s property was a lawful nonconforming use prior to the remodeling, that no genuine issues of material fact existed as to the number of bedrooms in the units, and that her occupancy permit was invalid after the remodeling.

After a hearing, the trial court “dismissed” the action because Underwood “was not given any notice under [Indiana Code Section 36-7-4-]604(c).” Id. at 6. The parties sought clarification of the order, and after a hearing in October 2012, the trial court issued the following:

3. The Court now finds that its order dated August 30, 2012, dismissing the case should have been an Order granting Summary Judgment in favor of the Defendant on Count I and Count II of the Plaintiffs Complaint.
4. The Court hereby modifies its August 30, 2012 Order dismissing the case to an Order granting Summary Judgment in favor of the Defendant on Counts I and II of the Plaintiffs Complaint because the Court finds that the Plan Commission rezoned the property of the Defendant in violation of the requirements of Ind. Code § 36-7-4-604(c) and the rezoning is, therefore, invalid.
The Fourteenth Amendment to the United States Constitution by its Due Process Clause requires notice and an opportunity to be heard before property rights can be taken away by state action, and the Indiana Constitution in Article I § 12 incorporates this fundamental right. While the Indiana Court of Appeals have held that rezoning is legislative in nature and, therefore, due process rights are not implicated, the Indiana legislature through the Indiana Code recognized this fundamental right when it wrote . the requirements for rezoning by a city or other municipality.
Section 36-7-4-604 et seq of the Indiana Code reads in essence (and with emphasis added) that before rezoning takes place (a) the plan commission must hold a hearing, (b) the plan commission shall give notice of this hearing by publication, and (c) the plan commission shall also provide for due process notice to interested parties. Everything else in this section of the code has to do with form and specific content. No matter what else, the law requires three actions on the part of the plan commission, not two.
The City argues that because section (c) gives the plan commission some leeway as to how it will fulfill the three requirements, the City can choose to use the action required by section (b) to serve for section (c) as well. But the plan commission would have done only two of the required three actions. And this third action is the one that assures the property owners the safe guards of their due process rights. The City would have this Court read the permissiveness of the way in which notice is effected in section (c) in such a way as to dispense with the third requirement altogether. But the statute reads: “shall .also” not “may if it wants to” nor “should do if it’s not too much trouble.” The rules of statutory construction require the Court not only to give words their ordinary meaning but also to give every word effect, and “no part of the statute is to be construed so as to be meaningless if it can be reconciled with the rest of the statute.” See Gray v. D & G, Inc., 938 N.E.2d 256, 259 (Ind.Ct.App.2010). In other words, this Court must construe the words of a statute in such a way as to give each and every section of the statute meaning if at all possible. The City’s interpretation of Ind.Code § 36-7-4-604(e) writes this requirement out of the statute and interprets “shall also” to mean “may.” This Court does not agree with this interpretation and its consequences.
Because rezoning is invalid the Court issues summary judgment in favor of the Defendant on both Counts I and II of the Plaintiffs Complaint.

Id. at 9-10. In October 2012, the City Council passed an ordinance that restored Underwood’s property and five other properties back to the RM7 zoning classification. Despite the subsequent rezoning, the City now appeals.

Analysis

The City argues that the trial court erred by granting summary judgment to Underwood on its claims. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56. We liberally construe all designated evidentiary material in a light most favorable to the non-moving party to determine whether there is a genuine issue of material fact. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind.2009). The party that lost in the trial court has the burden of persuading the appellate court that the trial court erred. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001).

Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, the entry of specific findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court’s specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court’s actions. Id.

We first note that, in a footnote, Underwood very briefly argues the subsequent rezoning of her property back to the RM7 classification “could render the issues raised in this appeal moot.” Appellee’s Br. p. 3 n.l. The City does not address this argument or even acknowledge that the property’s original zoning has been restored. Without more, we cannot determine whether the issue regarding Title 20 is moot, and we will address the City’s arguments regarding Title 20. Moreover, the Title 16 issue does not appear to be affected by the rezoning.

I. Title 20 Violation

The City’s motion for summary judgment claimed that Underwood violated Title 20 by unlawfully altering a lawful nonconforming use when she allegedly remodeled the units to contain five bedrooms each instead of three bedrooms. Underwood responded, in part, by arguing that she did not receive notice of the City’s change of her property’s zoning classification and status as a lawful nonconforming use. The trial court agreed with Underwood, concluding that the rezoning was invalid because the City failed to comply with Indiana Code Section 36-7-4-604(c).

“Indiana Code sections 36-7-4-602 et seq. govern the amendment of a zoning ordinance and zoning map.” Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673, 681 (Ind.Ct.App.2009). A plan commission must take several steps prior to enacting such amendments, including providing notice of and holding a public hearing and certifying the proposal to the legislative body. See Ind.Code §§ 36-7-4-604, 36-7-4-605. Indiana Code Section 36-7-4-604(b) requires the plan commission to give notice of a public hearing on proposed amendments to the zoning ordinance by publishing notice one time, at least ten days before the date of the hearing. Further, Indiana Code Section 36-7-4-604(c) requires:

The plan commission shall also provide for due notice to interested parties at least ten (10) days before the date set for the hearing. The commission shall by rule determine who are interested parties, how notice is to be given to interested parties, and who is required to give that notice.

The notice under Indiana Code Section 36-7-4-604(e) is at issue here. According to Underwood, she was an interested party and was entitled to “due notice” of the zoning change. The City argues that it provided notice by publication, which was within its discretion and proper under Indiana Code Section 36-7-4-604(c).

This argument requires that we interpret Indiana Code Section 36-7-4-604. “The first step in interpreting a statute is to determine whether the Legislature has spoken clearly and unambiguously on the point in question.” City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Id. Clear and unambiguous státutes leave no room for judicial construction. Id. However, when a statute is susceptible to more than one interpretation it is deemed ambiguous and, thus, open to judicial construction. Id. When faced with an ambiguous statute, we apply other well-established rules of statutory construction. Id. One such rule is that our primary goal of statutory construction is to determine, give effect to, and implement the intent of the Legislature. Id. To effectuate legislative intent, we read the sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute. Id. We also examine the statute as a whole. Id. Further, we do not presume that the Legislature intended language used in a statute to be applied illogieally or to bring about an unjust or absurd result. Id.

Several other zoning statutes contain similar language regarding due notice to interested parties. See I.C. §§ 36-7-4-706, 36-7-4-920. However, Indiana courts have not interpreted this specific language. Indiana Code Section 36-7-4-604(b) clearly requires the planning commission to give notice by publication of the amendments to the zoning ordinance, which the City did. Indiana Code Section 36-7-4-604(c) also clearly requires “due notice to interested parties at least ten (10) days before the date set for the hearing.” We recognize that the planning commission is given significant leeway in defining “interested parties” and “due notice.” I.C. § 36-7-4-604(c). The City does not dispute that Underwood was an “interested party.” Rather, the City claims that the notice by publication was sufficient to satisfy the “due notice” requirement.

Despite the significant leeway given to the City in determining the boundaries of “due notice,” we conclude that, in this case, “due notice” required more than the notice by publication given pursuant to section 604(b). We must examine the statute as a whole. If we adopt the City’s interpretation, we would be eliminating section 604(c) in all circumstances. Although theré may be circumstances where notice by publication to interested parties would be sufficient, the City makes no argument here that providing some additional notice to those properties where the zoning classification was changing would have been onerous. In fact, the City made no effort at all to notice the properties affected by the zoning change, other than the notice by publication. It is clear that the City knew, or could have known and identified, with a reasonable effort, the properties in question. If the City is not required to provide additional notice in the case of such a significant zoning classification change, we cannot imagine a circumstance where it would be required to provide additional notice under Indiana Code Section 36-7-4-604(c).

“Rezoning is a legislative process.” Rush v. Elkhart Cnty. Plan Comm’n, 698 N.E.2d 1211, 1218 (Ind.Ct.App.1998) (citing Hills v. Area Plan Comm’n of Vermillion County, 416 N.E.2d 456, 461 (Ind.Ct.App.1981)), trans. denied. “The General Assembly has provided detailed procedures to provide due process to interested persons.” Id. “If the State imparts a due process right, then it must give that right.” Id. (citing City of Mitchell v. Graves, 612 N.E.2d 149, 152 (Ind.Ct.App.1993)). The legislature requires the City to provide “due notice” to “interested” persons. The City does not dispute that Underwood was an interested person, and we conclude that the City failed to give her “due notice” when it adopted the new zoning ordinance and changed the zoning of her property. See, e.g., Scalambrino, 904 N.E.2d at 681 (noting that the plan commission provide notice by publication and also mailed letters to the adjacent property owners); Bd. of Zoning Appeals, Bloomington, Ind. v. Leisz, 702 N.E.2d 1026, 1027 (Ind.1998) (noting that the city published notice of an ordinance change and also mailed notice to all owners of rental property registered under a separate housing ordinance).

The City also argues that Indiana Code Section 36-7-4-604(e) applies here. That statute provides: “A zoning ordinance may not be held invalid on the ground that the plan commission failed to comply with the requirements of this section, if the notice and hearing substantially complied with this section.” I.C. § 36-7-4-604(e). The City argues that it substantially complied with the statute by providing notice by publication. In support of their argument, the City relies on Scalambrino, 904 N.E.2d at 681. There, we held that the plan commission’s public notice and notice to interested parties, which was sent five days late, substantially complied with the notice statute. Scalambrino is distinguishable because, in that case, the interested parties were given notice, albeit late notice. Here, the interested parties were not given any notice whatsoever other than the notice by publication. We conclude that the City did not substantially comply with the notice provisions. Because the notice of the zoning amendment was not proper, we conclude that the trial court did not err by granting summary judgment to Underwood.

II. Title 16

The City also argues that the trial court erred by granting summary judgment to Underwood on the BMC Title 16 violation claim. This issue is separate from the Title 20 zoning issue. The City argues that Underwood violated Title 16 by allowing tenants to live at the property without first obtaining a valid occupancy permit. According to the City, Underwood’s occupancy permit was for three bedrooms in the two units at issue, and Underwood “nullified” the occupancy permit by remodeling to allegedly add additional bedrooms. Appellant’s Reply Br. p. 8.

In January 2010, Underwood was granted an occupancy permit, and that permit was not set to expire until January 2013. The occupancy permit was for two efficiency units, one unit with one bedroom, and two units with three bedrooms. The “occupancy load” was one person for each of the efficiencies, two people for the one bedroom unit, and five people for each of the three bedroom units, for a total of fourteen tenants. Appellant’s App. p. 359. Underwood argues that her occupancy permit was never revoked and that, even after the three bedroom units were remodeled in 2010, she never exceeded fourteen tenants. Underwood also argues that Title 16 does not contain any requirement that she get a new occupancy permit to replace the existing permit after the units were remodeled.

BMC 16.04.080 requires all rental units to have a “current occupancy permit.” Id. at 354. Although the City argues that Underwood’s valid occupancy permit was “nullified” when she remodeled the units, the City cites no relevant authority for the proposition that a valid occupancy permit is “nullified” or revoked by remodeling. The City also argues that Underwood was required to have the property reinspected for compliance with Title 16 after it was remodeled and that, because the property was not inspected after the remodel, Underwood did not possess a valid occupancy permit. However, again, the City cites no relevant authority for the proposition that Underwood was required to have the property reinspected after the remodel for compliance with Title 16.

The City had the burden of demonstrating that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. “It is well settled that we will not consider an appellant’s assertion on appeal when he has failed to present cogent argument supported by authority and references to the record as required by the rules.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind.Ct.App.2004). “If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties.” Id. “This, clearly, we cannot do.” Id. Based on the City’s limited argument, we are unable to determine that the trial court’s decision is erroneous. The City has failed to meet its burden on appeal of proving that the trial court erred by granting summary judgment to Underwood on this issue.

Conclusion

The trial court properly granted summary judgment to Underwood on the City’s Title 20 violation claim. Further, the City has failed to demonstrate that the trial court erred by granting summary judgment to Underwood on the City’s Title 16 violation claim. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.

      . The parties do not discuss the timeliness of Underwood’s challenge to the rezoning.

      . The City also argues that Underwood was aware of the zoning amendment as evidenced by her October 2006 letter to the planning director regarding the zoning amendment. However, that letter concerned another piece of property, not the property at issue here. Underwood designated evidence that she was unaware of the proposed change in zoning on the property at issue here.


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    John Aaron SHOULTZ III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 36A01-1208-CR-359.
    Court of Appeals of Indiana.
    Aug. 21, 2013.
    Ordered Published Oct. 7, 2013.

      Alice L. Bartanen Blevins, Ethan G. Bartanen, Bartanen Law Office, LLC, Salem, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   MEMORANDUM DECISION

BAKER, Judge.

In this case, appellant-defendant John Aaron Shoultz Ill’s cruelty toward animals to control and manipulate those around him took a more sinister turn on the evening of May 2, 2009. That evening, Shoultz decided to kill his mom’s new puppy, which she had received as a gift from Shoultz’s dad after Shoultz had slit the throat of his mom’s beagle a few weeks before. Shoultz’s girlfriend convinced him to duct-tape the dog’s legs instead. When Shoultz’s father went to confront him, Shoultz shot him several times, killing him.

Shoultz now appeals his convictions for Murder, a felony, and Unlawful Possession of a Firearm by a Serious Violent Felon, a class B felony, raising numerous arguments. More particularly, Shoultz contends that the trial court erred by allowing testimony regarding prior acts of animal cruelty and an earlier conviction for battery with a deadly weapon against his father. Additionally, Shoultz maintains that the trial court erred by refusing to grant his oral request for a continuance to locate a witness. Further, Shoultz alleges that the prosecutor committed misconduct and that the trial court erred by refusing to give his proffered jury instructions. Finally, Shoultz argues that there is insufficient evidence to sustain his conviction for murder in light of inconsistent witness statements and his- self-defense claim. Finding no error and sufficient evidence, we affirm the judgment of the trial court.

FACTS

Andrea Howard and Shoultz began dating around October 2008, and shortly after, they moved in with Shoultz’s mother and father, John and Rhonda Shoultz, in Tampico. During the time that Andrea lived with Shoultz, she had a dog named Nightmare, and Shoultz had a dog named Ring. When Andrea first moved in with the Shoultzes, Rhonda had a beagle named Kane. Shoultz had an unusual hatred for small dogs, such as Kane. Indeed, several weeks before the incident that is the subject of this appeal, Shoultz slit Kane’s throat inside his parents’ home when Rhonda tried to break up an argument between Shoultz and Andrea after Andrea told Shoultz that she wanted to move out. Andrea did not leave Shoultz at that time because she feared him.

Although Shoultz had a vehement hatred for small dogs, this did not stop him from killing larger breeds as well. Before slitting Kane’s throat, Shoultz took Andrea out to the barn, gave her a gun, and told her to shoot one of his pit bull dogs that was tied up in the barn and wagging its tail. When Andrea refused to do it, Shoultz took the gun, shot and killed the dog and told Andrea that she had better do what he told her. This incident also caused Andrea to fear Shoultz.

After Shoultz had killed Kane, John moved out for a few weeks, but returned with a puppy for Rhonda which she named Tiny Tot. On the evening of May 2, 2009, Andrea woke up after sleeping all day. After showering, she returned to the bedroom where Shoultz began ranting about his mother having another dog and how he hated that dog. Shoultz stated that he wanted to kill Tiny Tot, but Andrea dissuaded him from killing the dog and suggested that instead, they tape the dog’s legs together. Shoultz agreed to this.

Andrea and Shoultz snuck into Rhonda’s bedroom where she was sleeping with Tiny Tot, took the dog back to them bedroom, duct-taped the dog’s legs together, and returned the dog to Rhonda, who was still sleeping. When Rhonda woke up and saw what had happened to Tiny Tot, she began yelling angrily and woke John, who stated that Shoultz and Andrea should not have done that to Tiny Tot.

Rhonda and John attempted to remove the duct tape from Tiny Tot, but their efforts only caused the puppy pain. Andrea overheard John remark that he should do the same thing to her and Shoultz’s dogs, so she gathered them dogs and brought them into their bedroom. Andrea did not hear John make any threat against her or Shoultz. When Andrea returned to the bedroom with the dogs, Shoultz was sitting on the bed facing the door, holding a gun in both hands and pointing it towards the door. Andrea closed the door when she returned with the dogs, and Shoultz locked the bedroom door. Shoultz then returned to the bed and pointed the gun at the door.

John turned the door knob, and Shoultz told him to not enter the room, but John opened the door and took several steps into the room, cradling Tiny Tot in his arms. John did not have a weapon and did not say anything. Shoultz then fired four shots approximately one to two seconds apart. John fell to the floor, and Shoultz knelt by his father for a few seconds and told him to not die. Shoultz and Andrea then left their bedroom to look for Rhonda but were unable to find her because she had fled and hid when she heard the gunshots.

Shoultz suggested that they blame the shooting on Rhonda. Shoultz took Rhonda’s car keys and cell phone from her purse and left the house with Andrea. Shoultz used Rhonda’s cell phone to call his paternal grandmother, Mary Jane Johnson, and told his grandmother that he had just shot his father. Following this cell phone call, Shoultz walked back into his bedroom, stepped over his dying father who was gasping for air, and retrieved his shoes so that he and Andrea could leave the house.

Shoultz hid the gun in the barn, and then he and Andrea drove away in Rhonda’s van. Andrea called her mother and told her what had happened, but she did not believe her daughter. Shoultz received a phone call from his grandmother or aunt. Shoultz told the caller that Andrea had shot and killed John. Shoultz also called his aunt, Mona Lisa Black, and told her that Andrea had killed John, shooting him ten times. Black asked Shoultz if he had called 911, to which he responded that he had not because he feared that he would be blamed. A short time later, police officers pulled over the van and took Andrea and Shoultz into custody.

When North Vernon Police Officer Todd Beam conducted a pat-down search of Shoultz, he recovered several knives and a latex glove containing several bullets. Jackson County Deputy Sheriff Jeff Walters advised Shoultz of his rights and then Shoultz blurted out that his mother and father had been arguing and that his mother shot his father.

Shoultz and Andrea were separated, and at first, Andrea told the police that she threw the gun under a pile of wood and that she had shot John. However, Andrea later conveyed to the officers that Shoultz had shot his father.

Amy Burrows-Beckham, M.D., an assistant medical examiner in Kentucky, performed an autopsy on John. Her examination revealed that John had sustained three bullet wounds, one that entered his abdomen and two that entered the right side of his chest. John had also sustained a bullet wound to his right hand that likely went through his hand and into his abdomen. John further suffered a serious wound to his left foot that was ulcerated, infected, and down to the bone. This wound would have caused John serious pain, forcing him to walk with a significant limp. Tiny Tot did not escape the attack unscathed; he was struck with a bullet in the leg while John was holding him.

The gunshot wound to John’s abdomen would not have caused death had he received medical treatment; however, the gunshot wounds to the chest would have been fatal in any event. Thus, John’s cause of death was from two gunshot wounds to his chest, and the manner of death was homicide.

On May 6, 2009, the State charged Shoultz with Count I, murder, a felony; and Count II, unlawful possession of a firearm by a serious violent felon, a class B felony. On May 29, 2012, Shoultz filed a self-defense claim.

While in jail, Shoultz had a recorded telephone conversation with his mother, Rhonda. During the conversation, Shoultz blamed Rhonda for having Tiny Tot in the house. He told his mother that he had planned to kill Tiny Tot that night but that Andrea had talked him into duct-taping the puppy instead. Shoultz also told his mother that he needed Andrea to cooperate and that when he was out of jail, he would kill the new little dog that she had, even if it meant going back to jail, because “I don’t give a f* * *. I don’t like little dogs.” Tr. p.229;

Shoultz’s jury trial commenced on June 4, .2012. Andrea testified for the State, describing, in detail the events surrounding Shoultz slitting Kane’s throat, shooting his own pit bull, and shooting his father. Following the presentation of the State’s casein-chief, Shoultz verbally requested a continuance because he wanted to call Andrea as a defense witness but was unable to find her at that'time. The trial court denied Shoultz’s request, concluding that the issues that Shoultz wished to question Andrea about had already been covered by her earlier testimony. The trial court also determined that it was not convinced that Andrea has been properly served with a subpoena because the defense had served Andrea’s attorney in another case, and Andrea was not a party to the present case.

Likewise, the .trial court refused to give Shoultz’s self-defense instructions, but instead, gave its own. On June 8, 2012, the jury found Shoultz guilty on both counts. On July 16, 2012, the trial court sentenced Shoultz to fifty-eight years on the murder conviction and to a concurrent term of fifteen years on the SVF conviction, for a total aggregate sentence of fifty-eight years imprisonment. Shoultz now appeals.

DISCUSSION AND DECISION

I. Evidence Rule JpOI(b): Other Crimes, Wrongs, and Acts

Shoultz argues that the trial court erred by permitting testimony regarding his acts of animal cruelty. Additionally, Shoultz contends that the trial court erred by allowing testimony concerning prior violent acts that Shoultz had committed against his father in 2006.

Whether to admit or exclude evidence is within the sound discretion of the trial court. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind.2000). We will reverse the trial court’s decisions regarding the admission or exclusion of evidence when it has been demonstrated that the trial court abused its discretion, which occurs when the trial court’s evidentiary ruling is clearly against the logic and effect of the facts and circumstances before it. Id.

A. Waiver

As an initial matter, the State argues that Shoultz has waived any claim that the trial court erred in admitting evidence of Shoultz’s prior bad acts of animal cruelty because he failed to raise objections to this evidence when it was introduced at trial. The failure to make a contemporaneous objection to evidence when it is offered waives any claim of error in its admission on appeal. Bean v. State, 913 N.E.2d 243, 253 (Ind.Ct.App.2009). The reasoning behind this rule, in part, is to immediately and fully alert the trial court of the legal issue. Id.

Shoultz challenges the admission of evidence pertaining to acts of cruelty inflicted upon Kane and his own pit bull. Regarding Kane, Andrea testified that when Kane followed Rhonda to break up an argument between Shoultz and Andrea, Shoultz told his mother to “get that f* * *ing dog out of his room.” Tr. p. 49. Shoultz then stabbed Kane “around its stomach,” after which Kane ran away “bleeding and yelping.” Id. at 49-50. Shoultz then followed the dog, grabbed him “by the scruff of his neck and slit his throat.” Id. at 50-51.

Not once during this emotionally-charged testimony did Shoultz lodge an objection.- Instead, Shoultz relies on a motion in limine filed before trial. However, “[a]s a general rule, motions in limine do not preserve errors for appeal; the defendant must reassert his objection at trial contemporaneously with the introduction of the evidence.” White v. State, 687 N.E.2d 178, 179 (Ind.1997). Consequently, Shoultz has waived this claim as it pertains to Kane, his mother’s beagle.

Waiver notwithstanding, Andrea’s testimony reveals the intense conflict in the home and is further evidence of Shoultz’s admitted hatred of small dogs. This was followed a few weeks later by the torturing of Rhonda’s new Chihuahua puppy, another small breed dog, and the murder of his father. This certainly is relevant to motive and intent, particularly in light of the fact that Shoultz had asserted self-defense. See Goldsberry v. State, 821 N.E.2d 447, 456 (Ind.Ct.App.2005) (concluding that evidence of prior altercations were admissible when the defendant had alleged self-defense, placing his intent into issue, and frequent conflicts between the parties was relevant to show motive).

Moving forward to Shoultz’s pit bull, during direct examination Andrea was asked why she was so afraid of Shoultz such that she had initially taken the blame for John’s murder. Andrea responded that Shoultz had taken her out to the barn where he had one of his pit bulls chained and told her to shoot the dog. Andrea testified that the dog was “[w]agging her tail” and that she “couldn’t do it.” Tr. p. 134. Shoultz took the gun and shot the dog. ■ Shoultz instructed Andrea that she needed to stand by him, and she stated that she was afraid of him after that. Id.

While no objection was made during Andrea’s testimony, just prior to this testimony, there was a brief recess during which the prosecutor brought to the attention of the trial court an earlier “affirmative motion in limine” requesting that the State be permitted to introduce testimony regarding the pit bull incident. Tr. p. 125. The prosecutor requested that the trial court reconsider its previous denial of that motion in light of questions that Andrea had been asked on cross-examination regarding her fear of Shoultz. Both the prosecutor and defense counsel intensely expressed their positions regarding the request. In light of the fact that the trial court was fully alerted as to the precise legal issue, the purpose behind the contemporaneous objection rule has been satisfied. Accordingly, these circumstances present a rare exception to that rule, and Shoultz has not waived this issue on appeal.

B. The Pit Bull

Shoultz maintains that the trial court erred by allowing testimony concerning cruelty that he displayed towards his pit bull. Rule 404(b) provides that

[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

“The list of other purposes is illustrative not exhaustive.” Hicks v. State, 690 N.E.2d 215, 219 (Ind.1997).

In Hicks, our Supreme Court established the standard for assessing the admissibility of 404(b) evidence: (1) the court must determine whether the evidence is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect under Evidence Rule 403. Id. at 221.

Here, as stated above, the prosecutor argued that Andrea should be permitted to testify regarding the pit bull incident because the defense had put Andrea’s fear of Shoultz into issue. More particularly, the prosecutor stated:

I think that is relevant because the defense asked the following questions, um, said once they were separated into different squad cars did she still continue to tell the same story, did she still continue to, uh, to back the story that John Aaron Schultz had brought up to the police and she said that she did Um, that she did even after they were separated and then asked her did my client ever threaten you to which, you know, on that day, to which she said no, but at that point I believe that it becomes relevant when she’s been threatened in the past....

Tr. p. 126. And when the trial court granted the prosecutor’s request, it stated,

I do believe that once this witness is questioned concerning whether or not she was threatened by the defendant that, uh, uh, that has to speak to whether or not the witness has a reasonable fear and other evidence then to, that’s she's been impeached, if you will, on that and I believe that’s, that evidence is relevant to, uh, deal with that.

Id. at 130 (emphasis added).

It is evident from the prosecutor’s argument and the trial court’s rationale for permitting the testimony that the evidence was relevant to a matter other than Shoultz’s propensity to commit murder, namely, to rehabilitate Andrea after her fear of Shoultz had been placed into question by the defense on cross-examination. Accordingly, the testimony survives the first prong of the Hicks test.

As for the second prong, under Rule 403, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice .... ” (Emphasis added). Here, Andrea had already testified that Shoultz had slit Kane’s throat and that she had convinced him to duct-tape Tiny Tot’s legs instead of killing him, which is what Shoultz had wanted to do. Tr. p. 51, 58. In light of fact that the jury had already heard testimony regarding those two instances of animal cruelty and that Andrea’s fear of Shoultz had been brought into issue by the defense, we cannot say that the probative value of Andrea’s testimony regarding the pit bull incident was substantially outweighed by the danger of unfair prejudice. Thus, her testimony survives the second prong of the Hicks test, and the trial court did not err by permitting it.

C. Prior Violent Acts Against John

Shoultz argues that the trial court erred by allowing testimony regarding pri- or violent acts that Shoultz had committed against his father. Although Shoultz concedes that his conviction for battery with a deadly weapon is relevant for purposes of the jury to determine whether he was a serious violent felon as charged in Count II, he argues that a record of his conviction would have sufficed to prove this rather than a long line of questioning by the prosecution that elicited details of the event. -

Here, Rhonda testified that Shoultz “did cut his dad at one point, yes” and that she had to take her husband to the hospital as a result of the injuries he sustained in that attack. Tr. p. 221-22. Rhonda stated that Shoultz pleaded guilty and was convicted of battery with a deadly weapon. Id. at 222. Shoultz did not object to any of this testimony.

After Rhonda gave this testimony, the prosecutor and the defense counsel had a conference with the trial judge regarding the same incident. The prosecutor wanted to tell the entire story including that Shoultz had shot his dad’s dog for urinating on the floor, which is what had precipitated the fight. Tr. p. 357. Defense counsel objected to any further details, arguing that they were too remote, occurring almost three years before John was murdered. Ultimately, the trial court decided to not allow these additional details, noting that there had been sufficient acts of animal cruelty brought to the attention of the jury during the course of the trial.

Although the trial court ruled in Shoultz’s favor on this evidentiary issue, he complains that Deputy Sheriff Adam Nicholson testified that Shoultz had told him that “he took an action that he reasonably knew would anger his father[.]” Tr. p. 416. Shoultz further argues that this question was used during closing argument to assert that his prior act resulted in John being stabbed in the face with a knife. Appellant’s Br. p. 17.

Errors in the admission of evidence are generally to be disregarded unless they affect the defendant’s substantial rights. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.2012), reh’g denied. Here, the evidence presented through Deputy Sheriff Nicholson’s testimony was merely cumulative of the testimony given by Shoultz’s mother, Rhonda.

Moreover, as discussed above, the altercation between John and Shoultz was probative to the level of hostility between them. And it is difficult to maintain that the probative value is substantially outweighed by the danger of unfair prejudice in that it is tenuous indeed to assume that the jury made a connection between the “action that [Shoultz] reasonably knew would anger his father,” appellant’s br. p. 17, and another instance of animal abuse. Therefore, the evidence did not run afoul of Rule 404(b).

II. In-Trial Request for a Continuance

Shoultz next contends that the trial court erred by failing to grant his motion to continue so that Shoultz could obtain the presence of a witness. More particularly, Shoultz wanted the court to adjourn for the day so that he could locate Andrea and present her as a witness.

Because Shoultz’s oral motion for a continuance made during the middle of his jury trial did not comply with the statutory requirements of Indiana Code section 35-36-7-1, which specifies the requirements necessary to postpone a trial because of the absence of evidence, his continuance motion is non-statutory. As a result, a trial court’s rulings on such motions are within its sound discretion. Hamilton v. State, 864 N.E.2d 1104, 1108-09 (Ind.Ct.App.2007).

On appeal, we will review a trial court’s denial of a non-statutory continuance motion only for an abuse of discretion and resultant prejudice. Barber v. State, 911 N.E.2d 641, 645-46 (Ind.Ct.App.2009). An abuse of discretion occurs only where the trial court’s decision is clearly against the logic and effect of the fact and circumstances before the court. Washington v. State, 902 N.E.2d 280, 286 (Ind.Ct.App.2009). Additionally, the appellant must demonstrate that he was prejudiced by the denial. Hamilton, 864 N.E.2d at 1109.

Here, Shoultz asserts that he “believes that there was additional inforihation that was crucial to his defense' that would have been covered during this examination and that he should have been provided an opportunity to present said information.” Appellant’s Br. p. 20. Shoultz does not elaborate on the nature of the information that would have been elicited during his direct examination of Andrea or how it was crucial to his defense. Thus, Shoultz has failed to establish prejudice.

Moreover, Shoultz did not try to personally serve Andrea with the subpoena, but rather, faxed it to an attorney who was representing her in another case. Indiana Trial Rule 4.1 provides that “[sjerviee may be made upon an individual, or an individual acting in a representative capacity” by registered or certified mail, personally delivering a copy of the subpoena, leaving a copy at her house, or serving his agent. See also Ind. Trial Rule 45(C) (providing that service of subpoenas may be made in accordance with Trial Rule 4). Here, the attorney to whom the subpoena was faxed was not acting as Andrea’s representative in the instant matter. Additionally, the subpoena was not sent via certified or registered mail or personal delivery. Consequently, we agree with the trial court that, under these circumstances, Shoultz did not have a subpoena served on Andrea. Accordingly, the trial court did not err by denying Shoultz’s motion for a continuance.

III. Prosecutorial Misconduct

Shoultz asserts several instances of prosecutorial misconduct, including:

• Referencing the killing of animals as “murder.”
• Informing the jury about the large amount of State resources spent on Shoultz’s trial.
• Playing a recorded jailhouse telephone conversation between Shoultz and Rhonda where Shoultz states: “I’ll come back to jail, I don’t give a f* * *. I don’t like little dogs.” Tr. p. 541.

Shoultz alleges that he did not waive these claims by failing to object and requesting a mistrial because these instances of misconduct rose to the level of fundamental error.

Generally, to preserve a claim of prosecutorial misconduct, a defendant must request an admonishment or a mistrial if an admonishment is inadequate. Castillo v. State, 974 N.E.2d 458, 468 (Ind.2012). Failure to follow these steps results in waiver. Id.

Nevertheless, an appellant can attempt to avoid waiver by invoking the fundamental waiver doctrine. Id. The fundamental error doctrine is extremely narrow. Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). To be sure, it “applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” McQueen v. State, 862 N.E.2d 1237, 1241 (Ind.Ct.App.2007).

As for the prosecutor describing as “murder” the two instances that Shoultz brutally killed two helpless dogs, although that word is a legal term of art, Shoultz fails to show error let alone grave peril. The reason is simple: We can rest assured that a jury of Shoultz’s peers will not become entangled in a legal term of art. Instead, there is nothing to indicate that the citizens of this State did not use common sense to understand that the prosecutor’s use of the term “murder” referenced Shoultz’s senseless killing of two dogs who were not showing the slightest bit of aggression.

Moving on to the prosecutor’s statements that the State had expended vast amounts of resources in trying to bring Shoultz to justice, Shoultz has taken this statement out of context. In an attempt to rebut a statement that the State had presumed that this case was simply “trash killing trash,” tr. p. 546, the prosecutor wanted to assure the jury that the case was adequately investigated. Specifically, the prosecutor stated

the defendant did a significant amount of forensic testing and spent a huge amount of the state’s resources to make sure that witness testimony and evidence gathered in this case were, in fact, backed up by scientific evidence in this case so that the case was fully investigated and so that you, the jury, would ultimately be comfortable about it.

Tr. p. 546.

It is apparent from the above statements that the prosecutor wanted to alleviate any concerns that the jury might have harbored regarding the quality of the investigation in light of the social status of the victim and the alleged perpetrator. This is not impermissible, and indeed, we want the citizens of this State to be informed that crimes are investigated with vigor regardless of social status. Consequently, there was no error.

Shoultz’s final claim of prosecuto-rial misconduct involves the telephone conversation between him and Rhonda that was recorded while he was in jail and played for the jury during closing argument. More particularly, Shoultz claims that the prosecutor deliberately misstated that Shoultz had said to Rhonda, “I’ll come back and kill 'em,” when what he actually said was “I’ll come back to jail.” Tr. p. 541, 557. In any event, the prosecutor explained to the jurors that it was up to them to decide what Shoultz had said and that either version had the same effect, namely, that Shoultz did not care about the consequences of his actions. Id. at 605. Under these circumstances, we cannot say that the prosecutor committed misconduct.

IV. Jury Instructions

Shoultz asserts that the trial court erred by denying his proffered jury instructions on self-defense. The State claims that Shoultz has waived this issue because he failed “to set out in the argument section of his appellant’s brief the verbatim jury instructions and the verbatim objections at trial regarding the relevant jury , instructions.” ■ Appellee’s Br. p. 21.

Appellate Rule 46(A)(8)(e) provides that “[w]hen error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any made thereto.” Shoultz concedes that he failed to set out the instructions or the objections verbatim in the argument section of his brief. Nevertheless, Shoultz points out that his' proposed jury instructions and the final jury instructions have been included in the Appellant’s Appendix to which he cites. Additionally, Shoultz highlights the fact that he cited to portions of the record where the relevant objections were made. Therefore, according to Shoultz, he has followed the “spirit” of the Rule 46(A). Reply Br. p. 10.

While we encourage practitioners and others appearing before this Court to follow the precise instructions of the Appellate Rules rather than simply the “spirit” of the Rules, we also prefer to decide cases and issues on the merits. But even more applicable to the instant case, Shoultz has impeccably cited to the appendix and transcript, thereby permitting this Court to easily evaluate his claim. Therefore, Shoultz has not waived this claim.

Proceeding to the merits, when determining whether the trial court erred in refusing the defendant’s tendered instruction, this Court will look to whether: (1) the tendered instruction correctly states the law; (2) there is evidence in the record to support the giving of the instruction; and (3) the substance of the tendered instruction is covered by other instructions. Sylvester v. State, 698 N.E.2d 1126, 1131 (Ind.1998).

Here, the trial court gave the jury the following instruction on self-defense:

It is an issue whether the Defendant acted in self-defense. A person may use reasonable force against another person to protect himself from what he reasonably believes to be the imminent use of unlawful force. A person is justified in using deadly force, and does not have a duty to retreat, only if he reasonably believes that deadly force is necessary to prevent serious bodily injury to himself. However, a person may not use force if: He is committing a crime that is directly and immediately connected to the confrontation giving rise to the self-defense claim or he provokes a fight with another person with intent to cause bodily injury to that person. The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense.

Appellant’s App. p. 13.

This instruction comports with statutory law, inasmuch as it tracks Indiana Code section 35-41-3-2 (Self-Defense Statute). Moreover, it comports with applicable caselaw. In Mayes v. State, our Supreme Court concluded that although a defendant may be committing a crime at the time he is allegedly defending himself, this is not sufficient to deprive the defendant of a self-defense instruction. 744 N.E.2d 390, 394 (Ind.2001). Instead, “there must be an immediate causal connection between the crime and the confrontation.” Id. In other words, if the defendant had not committed the crime, the confrontation with the victim and the resulting injury would not have occurred. Id.

By contrast, Shoultz’s tendered instructions did not mention the “committing a crime” provision. Appellant’s App. p. 11-12. Accordingly, they were not correct statements of the law applicable to this case, and the trial court did not err by refusing to give them.

V. Sufficiency of the Evidence

Finally, Shoultz argues that the evidence was insufficient to sustain his conviction for murder. When reviewing a challenge to the sufficiency of the evidence, this Court neither reweighs the evidence nor judges the credibility of witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind.2010). Instead, we will consider only the probative evidence and the reasonable inferences supporting the trial court’s verdict. Id.

Additionally, when a defendant claims self-defense and there is evidence in the record that provides support for that claim, the State, has the burden to negate at least one of the necessary elements of the self-defense claim beyond a reasonable doubt. Bryant v. State, 984 N.E.2d 240, 250 (Ind.Ct.App.2013). On appeal, the standard of review when self-defense is claimed is the same as the sufficiency standard. Randolph v. State, 755 N.E.2d 572, 576 (Ind.2001).

Shoultz makes two arguments, namely, that Andrea gave inconsistent statements, and the evidence indicated that Shoultz acted in self-defense. The first is easily disposed of because, as stated above, we do not judge the credibility of witnesses. Treadway, 924 N.E.2d at 639.

As for Shoultz’s claim of self-defense, to succeed on this claim, a defendant must present evidence that he: (1) was in a place that he had a right to be in; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. Bryant, 984 N.E.2d at 250.

In this case, Andrea testified that Shoultz wanted to kill his mother’s new puppy but that she talked him into duct-taping its legs together instead to distract him and that the two of them carried out this plan together. Tr. p. 57-61. This occurred in the context of Shoultz having slit the throat of his mother’s beagle, and he knew how this incident had upset his father. Id. at 48-54. Furthermore, Shoultz’s father had purchased the new puppy for his mother after Shoultz had slit the beagle’s throat. Id. at 54-55.

From these facts, the factfinder could reasonably infer that Shoultz wanted to do something terrible to the puppy to upset his parents, which he did. Then, knowing that his father would confront him about the mistreatment of the puppy, Shoultz armed himself and waited to ambush his unarmed father. Id. at 65-77. When John opened the door and stepped into Shoultz’s room, he fired four shots at John, killing him. Id. at 74-79. This evidence demonstrates that Shoultz instigated the violence that led to him killing his father.

Nevertheless, Shoultz argues that a “simple practical joke on a Chihuahua could not have been foreseen to escalate to the point which it did.” Reply Br. p. 11. Then Shoultz asserts “[a] reasonable and expected response to such a prank would not have involved the use of a deadly weapon and a violent entry into the Appellant’s room.” Id.

This argument is nothing short of absurd. It was Shoultz who used a deadly weapon to kill his own father. Furthermore, to characterize duct-taping a helpless animal’s legs as a “practical joke” or a “prank” diminishes the seriousness of Shoultz’s actions and is anything but humorous and perhaps a criminal offense. See Ind.Code § 35-46-3-12(e) (providing that a person who intentionally tortures a vertebrate animal commits a class D felony). In any event, this argument fails.

CONCLUSION

The trial court did not err by allowing evidence concerning Shoultz’s prior acts of animal cruelty and earlier conviction for battery with a deadly weapon against his father. Additionally, the trial court did not err when it denied Shoultz’s oral request for a continuance, insofar as Shoultz made no effort to personally serve the witness with a subpoena and failed to show prejudice from the denial of the continuance. Further, Shoultz has failed to demonstrate prosecutorial misconduct, and the trial court properly refused his proffered jury instructions because they were not correct statements of the law applicable to this case. Finally, the State presented sufficient evidence to sustain Shoultz’s murder conviction and to negate his claim of self-defense, inasmuch as he instigated the confrontation with his father.

The judgment of the trial court is affirmed.

FRIEDLANDER, J„ and VAIDIK, J„ concur.

      . Ind.Code § 35-42-1-1(1).

      . Ind.Code § 35-47-4-5(c).

      . In the trial transcript, the defendant's family name is spelled "Schultz," but the rest of the record indicates that the correct spelling is "Shoultz.” Consequently, we will use the latter spelling.

      . Although Shoultz suggests that the proper standard for assessing 404(b) claims is the one applied by the United States Court of Appeals for the Seventh Circuit, appellant’s br. p. 16, our Supreme Court has explicitly stated “We see no persuasive reason to adopt the Seventh Circuit test.” Hicks, 690 N.E.2d at 219. Accordingly, we will analyze Shoultz’s claims pursuant to the standard established by our Supreme Court.


author: RILEY, Judge.

text:
    Kelvin FULLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1212-CR-520.
    Court of Appeals of Indiana.
    Sept. 10, 2013.

      P. Jeffrey Schlesinger, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Kelvin Fuller (Fuller), appeals the trial court’s denial of his motion to discharge pursuant to Indiana Rule of Criminal Procedure 4(C).

We affirm.

ISSUE

Fuller raises one issue which we restate as: Whether the trial court abused its discretion by denying his motion to discharge in accordance with Ind.Crim. Rule 4(C).

FACTS AND PROCEDURAL HISTORY

On August 3, 2007, the State filed an Information in Lake County superior court, charging Fuller with Count I, robbery, a Class B felony, Ind. Code § 35-42-5-1; Count II, confinement, a Class C felony, I.C. § 35-42-3-3; Count III, strangulation, a Class D felony, I.C. § 35-42-2-9; and Count IV, intimidation, a Class D felony, I.C. § 35-45-2-1. At the time the State filed the Information, Fuller was at large and the State requested that a warrant be issued for his arrest. On December 15, 2008, Fuller was convicted of bank robbery in Wyoming. Around January 9, 2009, Lake County, Indiana was notified that Fuller was incarcerated in Laramie County, Wyoming. As a result, on January 13, 2009, Lake County prosecutors sought his extradition by initiating interstate rendition proceedings. However, instead of being extradited to Lake County, Fuller was convicted of aggravated assault in Laramie County, Wyoming and sentenced to “not less than nine (9) years and not more than ten (10) years” in the Wyoming Department of Correction. (Appellant’s App. p. 39). Thereafter, on May 15, 2009, Fuller was extradited to Indiana. On June 17, 2009, Doug Barnes, the Unit Team Case Manager of the Hamilton County Sheriffs Department, read Fuller the Lake County warrant while also serving him with a Hamilton County warrant. On April 30, 2010, Fuller was convicted of escape in LaPorte County, Indiana and sentenced to four years in the Indiana Department of Correction. Then, on September 21, 2009, February 2011, and May 2011, Fuller attended hearings in Hamilton County on unrelated charges and was sentenced to four years executed. On July 29, 2010, Fuller also appeared in Madison County court on unrelated charges.

On June 13, 2012, Fuller filed a motion to discharge the instant charges, which originated in Lake County, pursuant to Crim. R. 4(C). On July 6, 2012, the State filed its motion in opposition and the trial court denied Fuller’s motion the same day. On August 15, 2012, an initial hearing was held where Fuller was served with the arrest warrant. Om October 11, 2012, Fuller filed a motion to reconsider the trial court’s denial of his request for discharge. On October 17, 2012, after a hearing, the trial court denied the motion to reconsider and certified its ruling for interlocutory appeal. On February 4, 2013, we accepted jurisdiction over the interlocutory appeal.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Fuller argues that the trial court abused its discretion by denying his motion to discharge pursuant to Crim. R. 4(C), which provides:

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

Criminal Rule 4 implements the defendant’s constitutional right to a speedy trial. State v. Jackson, 857 N.E.2d 378, 380 (Ind.Ct.App.2006). Under this rule, the State has an affirmative duty to bring the defendant to trial within one year of being charged or arrested, subject to the listed exceptions. Cook v. State, 810 N.E.2d 1064, 1065 (Ind.2004). The defendant has no obligation to remind the court of the State’s duty, nor is he required to take any affirmative action to see that he is brought to.trial within the statutory time period. State v. Smith, 495 N.E.2d 539, 541 (Ind.Ct.App.1986). When a defendant makes a motion, for discharge pursuant to Criminal Rule 4, the burden is on the defendant to show that he has not been timely brought to trial and that the defendant is not responsible for the delay. Martin v. State, 419 N.E.2d 256, 259 (Ind.Ct.App.1981).

Focusing on the start date of the one-year time period under Crim. R. 4(C), Fuller argues that the “commencement of extradition proceedings constitutes an arrest in that it is an order for a defendant’s return by the charging court.” (Appellant’s Br. p. 5). As such, he maintains that he was in the “custody of the Indiana Department of Correction for more than three, years before he filed his [mjotion to [djismiss and the State took any action on the case.” (Appellant’s Br. p. 5).

In Sweeney v. State, 704 N.E.2d 86, 100 (Ind.1998), our supreme court held that the Crim. R. 4(C) clock begins when the defendant has been brought within Indiana’s jurisdiction and control: “[A] defendant being brought to Indiana is equivalent to an ‘arrest’ and thus the one[-]year period for determining a violation of Crim. R. 4(C) commence[s][.]” Likewise, Indiana has long held that Crim. R. 4 does not apply when a person is incarcerated in a foreign jurisdiction. Fisher v. State, 933 N.E.2d 526, 529 (Ind.Ct.App.2010). Accordingly, Fuller’s Crim. R. 4(C) clock commenced on May 15, 2009 when he returned to Indiana’s jurisdiction.

However, attempting to toll the one-year statutory term, the State now contends that “[bjecause the Lake County Prosecutor’s Office and the Lake County courts did not have actual notice of [Fuller’s] whereabouts until approximately June 13, 2012, when he filed his motion to dismiss, the trial court properly denied [Fuller’s] motion for discharge-.” (Appellee’s Br. p. 8).

In support of its argument, the State relies on Werner v. State, 818 N.E.2d 26 (Ind.Ct.App.2005), trans. denied. Werner was arrested in Randolph County and charged in September 2000. Id. at 27. He appeared at his initial hearing where he requested a continuance. Id. at 28. The trial court granted the continuance and subsequently rescheduled several more times. Id. In November 2000, Werner was arrested in Wayne County, and someone called the Randolph County clerk’s office to inform the office of Werner’s incarceration. Id. When Werner failed to appear for a hearing in January 2001, the Randolph County court rescheduled again. Id. Werner’s bond agent later called the bailiff and informed him that Werner was incarcerated in Wayne County. Id. After further delays, Werner filed a motion for discharge pursuant to Crim. R. -4(C) in March 2003. Id. The trial court denied the motion.- Id. On appeal, the State argued that Werner should be charged with 142 days — the time that passed between January 2001 when he failed to appear for his initial hearing as he was incarcerated in Wayne County and the date when he was released from Wayne County jail — because Werner had failed to provide written notice that he was incarcerated in Wayne County. Id. at 30.

Noting that Werner’s case in Randolph County was midstream when he was incarcerated in Wayne County, ie., Werner had been arrested, charged and appeared in Randolph County by the time he was arrested in Wayne County, we held that Werner was required to provide formal written notice of his incarceration to the trial court and the State to avoid tolling of the Crim. R. 4(C) clock. Id. at 31. Otherwise, the Werner court reasoned, there is simply no way to determine whether sufficient notice was given to the trial court to notify it of the defendant’s whereabouts. Id. “Trial courts have substantial case loads and complicated dockets to manage, and if we did not require that litigants communicate with each other and the court formally and in writing, the system would soon devolve into chaos.” Id. As such, the Werner court concluded that the Rule 4(C) clock tolled for 142 days. Id. at 32. We find Werner to be inapposite as Fuller’s Lake County case was not midstream when he was extradited to Indiana. In fact, Fuller had not yet even appeared in the trial court.

More on point is Feuston v. State, 953 N.E.2d 545 (Ind.Ct.App.2011). Feuston was arrested in Jay County and charged with theft. Id. at 546. While out on bond, he failed to appear at his pre-trial conference and he was later arrested in Delaware County on an unrelated charge. Id. Feuston remained incarcerated in Delaware County and no action was taken in Jay County until Feuston, acting pro se, filed a motion requesting final disposition of eharges/detainers in his Jay County case. Id. Feuston was appointed counsel, who filed a motion for discharge under Crim. R. 4(C), which was denied by the trial court. Id.

Presenting evidence indicating that there had been a facsimile communication between the Jay County and Delaware County jails, Feuston argued, among others, that Jay County was aware of his whereabouts and could have brought him to trial within the one-year period. Id. at 551. We disagreed and held that “the knowledge of a police or correctional officer should not be imputed to the trial court or prosecutor in these circumstances.” Id. We concluded that the purpose of Crim. R. 4(C) is to- promote early trials and not to discharge defendants. Id. Unnecessary delays will not be deterred by granting discharges in cases where the trial court and prosecutor did not have actual knowledge of the defendant’s whereabouts. Id. “This is true regardless of whether some other agent of the State has this knowledge.” Id.

In a separate concurrence in result, Chief Judge Robb disputed the soundness of the actual knowledge requirement by the trial court and prosecutor and instead cautioned that the issue of notification is extremely fact sensitive. Id. at 553. She noted that if there is indisputable evidence that officials at the Jay County jail were aware Feuston was incarcerated in the Delaware County jail during the pendency of his Jay County case and indisputable evidence of when they became aware of Feuston’s incarceration, the trial court and prosecutor would be sufficiently notified of the defendant’s whereabouts to commence the Rule 4(C) clock as of that date. Id.

Similarly, here, Fuller is pointing to what purports to be a facsimile communication sent by the Lake County “Sheriff Warrants” to “Doug Barnes Del” on May 22, 2009. (Appellant’s App. p. 81). The facsimile details the Lake County cause number, charges and the fact that a warrant was issued for Fuller’s arrest. Although the remark section of the facsimile indicates that Fuller will be “going to Madison Co, IN first” after being extradited to Indiana, there is no notation indicating when this would occur. (Appellant’s App. p. 81). The communication fails to indicate who sent it, at whose direction, and for what reason. Although the evidence reflects that Doug Barnes, the Unit Team Case Manager of the Hamilton County’s Sheriffs Department read Fuller the Lake County warrant while also serving him with a Hamilton County warrant, this fact does not reflect on the knowledge of the Lake County prosecutor or trial court.

It is Fuller’s burden on appeal to give us a record that supports his claims. See Delao v. State, 940 N.E.2d 849, 852 (Ind.Ct.App.2011). At best, Fuller presented us with some evidence suggesting that Lake County sheriffs department might have been aware of Fuller’s incarceration in Indiana. However, because the record does not show that the Lake County prosecutor or trial court were actually aware of Fuller’s return to Indiana’s jurisdiction prior to Fuller’s filing of his motion to discharge on June 13, 2012, the Crim. R. 4(C) clock did not start until that date. Therefore, the trial court properly denied Fuller’s motion.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly denied Fuller’s motion to discharge in accordance with Crim. R. 4(C).

Affirmed.

KIRSCH, J. and ROBB, C.J., concur.