author: Barnes, Judge.

text:
    R. Kinsey BROOKS, Susan K. Brooks, Appellants-Defendants, v. BANK OF GENEVA, Appellee-Plaintiff.
    Court of Appeals Case No. 01A05-1709-MF-2174
    Court of Appeals of Indiana.
    Filed June 15, 2018
    Attorneys for Appellants: Andrew L. Teel, Daniel J. Skekloff, Sarah L. Schreiber, Haller & Colvin, P.C., Fort Wayne, Indiana
    Attorneys for Appellee: Scott E. Shockley, James R. Williams, Christopher L. Bills, Nicholas M. Tokar, Michael L. Wilhelm, Muncie, Indiana
    OPINION ON REHEARING
   Barnes, Judge.

[1] Bank of Geneva ("the Bank") petitions for rehearing following our decision in Brooks v. Bank of Geneva , 97 N.E.3d 647 (Ind. Ct. App. 2018). We issue this opinion on rehearing but reaffirm our original decision in all respects.

[2] The Bank contends that we should not have stated in the last sentence of the opinion, "The Brookses' claim for abuse of process remains pending." Id. , at 654. The Bank asserts that the trial court granted summary judgment on this claim and that the Brookses made no argument on appeal regarding this claim. We have re-reviewed the record on appeal and the trial court's summary judgment order. We first note that the Bank's motion for partial summary judgment only sought a judgment of foreclosure and in rem damages against the Brookses; it was completely silent regarding the Brookses' counterclaim for abuse of process. The trial court's summary judgment order does contain some "findings" that appear to reject the abuse of process counterclaim, but there is no express judgment against the Brookses on the counterclaim. Rather, the judgment is purely a decree of foreclosure against the Brookses' property. When summary judgment is only partially granted, "The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts." Ind. Trial Rule 56(C). It is not clear to us that the trial court's summary judgment order fulfilled this requirement.

[3] Moreover, the trial court stated in its order that "from the pleadings alone it is clear that Bank of Geneva is not pursuing any fraud claims against the Brooks and does not have an ulterior motive." App. Vol. III p. 110. Our review of the Bank's complaint indicates that, while it only made factual allegations against the Summersetts on the fraud claims, it sought treble damages for fraud "against the Defendants" without distinguishing between the Brookses and the Summersetts. App. Vol. II p. 19. We believe the trial court's view of the complaint is incorrect. Given the relief actually requested in the Bank's motion for partial summary judgment and the language in the trial court's partial summary judgment order, some of which was incorrect, we adhere to the statement in our original opinion that the abuse of process counterclaim is still pending.

[4] We also briefly address the Bank's contention that there is a material question of fact regarding the release of the Summersetts' mortgage, noting there is a dispute as to whether the Summersetts actually paid off the loan that mortgage secured. For purposes of the Brookses' status as sureties, whether the loan was paid off is irrelevant. It was the undisputed fact of releasing the Summersetts' mortgage that caused the release of the Brookses' mortgage, not whether the underlying loan was actually paid off. The release exposed the Brookses and their property to much greater potential liability than they signed up for when they agreed to mortgage their land with the understanding that the Summersetts were mortgaging their land as well. As to the Bank's rehearing argument regarding the change in payment terms of the Summersett note from monthly to semi-annually, we have nothing further to add to what we said in our original opinion.

Najam, J., and Mathias, J., concur.

      It appears the Bank's memorandum of law in support of partial summary judgment may have referenced the Brookses' abuse of process counterclaim, but that memorandum is not in the record before us.


source: Caselaw Access Project

license: Public Domain

text:
    Marcus T. THREATT, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 22A01-1710-CR-2402
    Court of Appeals of Indiana.
    FILED June 18, 2018
    Attorney for Appellant: Matthew J. McGovern, Anderson, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
    Shepard, Senior Judge [1] Appellant Marcus Threatt was sentenced to twenty years with two and one-half years suspended upon his conviction of robbery, a Level 2 felony. Concluding the sentence imposed by the trial court was not inappropriate, we affirm.
    Facts and Procedural History
    [2] In December 2015, Threatt arranged that he and Keontez Malone would purchase marijuana from Threatt's friend Charlie Fischbach. Threatt and Malone planned to take the marijuana without paying for it. When the three men met for the transaction, Fischbach resisted and Malone shot him. Fischbach died.
    [3] Threatt was charged with murder and dealing in marijuana, a Level 6 felony. In an open plea, he pleaded guilty to a reduced charge of robbery as a Level 2 felony, and the State agreed to dismiss the marijuana charge. The trial court sentenced Threatt to twenty years with two and one-half years suspended to probation. He now appeals.
    Issue
    [4] Threatt presents one issue for our review: whether his sentence is inappropriate.
    Discussion and Decision
    [5] Although a trial court may have acted within its lawful discretion in imposing a sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences. Indiana Appellate Rule 7(B) provides that we may revise a sentence if, after due consideration of the trial court's decision, we determine that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Thompson v. State , 5 N.E.3d 383 (Ind. Ct. App. 2014). However, "we must and should exercise deference to a trial court's sentencing decision, both because Rule 7(B) requires us to give 'due consideration' to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions." Stewart v. State , 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).
    [6] The principal role of appellate review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a perceived "correct" result in each case. Garner v. State , 7 N.E.3d 1012 (Ind. Ct. App. 2014). In other words, the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. King v. State , 894 N.E.2d 265 (Ind. Ct. App. 2008). The defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate. Childress v. State , 848 N.E.2d 1073 (Ind. 2006).
    [7] To assess such a claim, we look first to the statutory range established for the class of the offense. Here, the offense is a Level 2 felony, for which the advisory sentence is seventeen and one-half years, with a minimum of ten and a maximum of thirty years. Ind. Code § 35-50-2-4.5 (2014). Although Threatt was sentenced to twenty years, the executed portion of his sentence is equal to the advisory term.
    [8] Next, we look to the nature of the offense and the character of the offender. As to the current offense, this was a drug deal gone bad. Threatt and Malone planned to grab the marijuana and run, but in the process a young man was killed.
    [9] As for the character of the offender, we observe that Threatt was employed full time at the time of his arrest and had been for several months. However, while he claims to have been a law-abiding citizen as an adult, he admitted that he used marijuana every day. Further, Threatt arranged this deal and, in doing so, facilitated the death of a childhood friend. At sentencing, the trial judge found noteworthy the fact that Threatt's juvenile probation was terminated as unsuccessful.
    [10] In arguing that his sentence should be reduced, Threatt claims that his twenty-year sentence is too high given that Malone, the shooter, was sentenced to thirty years. We may compare sentences of co-defendants convicted of the same or similar crimes, but we are not required to do so. Clark v. State , 26 N.E.3d 615 (Ind. Ct. App. 2014). Regardless of who pulled the trigger in this case, the result of Threatt's criminal endeavor to obtain marijuana was the murder of a young father. See Bethea v. State , 983 N.E.2d 1134, 1145 (Ind. 2013) (holding that courts are not required to "turn a blind eye to the facts of the incident that brought the defendant before them" and may consider as aggravating circumstances facts that would have supported charges dismissed under the plea). Yet, the State agreed to allow Threatt to plead to Level 2 felony robbery, for which he received a sentence of twenty years, with only seventeen and one-half years executed. This is considerably less than the thirty years Malone received for his conviction of voluntary manslaughter. Even if the shooting was completely unexpected, as Threatt claims, he arranged the deal and, at the very least, set up his friend to be robbed, surely understanding that violence was a possibility in such a drug deal/robbery.
    Conclusion
    [11] We conclude Threatt's sentence is not inappropriate given the nature of the offense and his character.
    [12] Affirmed.
    Vaidik, C.J., and Crone, J., concur.

      Ind. Code § 35-42-5-1 (2014).

      Ind. Code § 35-42-1-1(2) (2014).

      Ind. Code § 35-48-4-10(c)(2)(A) (2014).


author: Crone, Judge.

text:
    Andrew SEAL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A02-1711-CR-2547
    Court of Appeals of Indiana.
    FILED June 18, 2018
    Attorney for Appellant: Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Andrew Seal appeals his conviction for committing level 1 felony child molesting against four-year-old S.P. He argues that the trial court abused its discretion in admitting his confession without independent evidence of the corpus delicti. Although he concedes that there is independent evidence that he committed level 4 felony child molesting by touching S.P.'s sex organ, he contends that the corpus delicti rule demands independent evidence of penetration of S.P.'s sex organ, which is the element that raises the offense to a higher felony level. He also argues that the evidence is insufficient to support his conviction.

[2] We conclude that the independent evidence that Seal committed the offense of child molesting satisfies the purpose of the corpus delicti rule such that independent evidence of penetration is unnecessary for the admission of his confession. As such, the trial court did not abuse its discretion in admitting it. We also conclude that the evidence is sufficient to support his conviction. Therefore, we affirm.

Facts and Procedural History

[3] In 2014, Seal was hired as a teacher for the prekindergarten program at Daystar Childcare ("Daystar"), a ministry of Englewood Christian Church in Indianapolis. From August 2015 through May 2016, four-year-old S.P. was assigned to Seal's classroom. In May 2016, while S.P.'s mother was putting S.P. in her car seat after dinner at a restaurant, S.P. told her mother about an incident with "Mr. Andy." Tr. Vol. 2 at 64. S.P. said that at naptime, Seal touched her vagina with his finger under her clothes. Id. at 59-60.

[4] S.P.'s parents took her to their pediatrician, who advised them to call Riley Children's Hospital. Id. at 65. S.P.'s parents also called Child Protective Services ("CPS"). CPS conducted a forensic interview with S.P. the week after she confided in her mother, but S.P. did not disclose any inappropriate touching. Id. at 66.

[5] S.P.'s mother reported S.P.'s allegations to a Daystar co-director. Daystar informed the Indiana Department of Child Services ("DCS") and restricted Seal from returning to his classroom until "everything had been cleared" by DCS. Id. at 77. DCS personnel interviewed Seal regarding the incident with S.P. Seal stated that S.P. got up from her cot during naptime. When he instructed her to go back to her cot, she turned around, pulled her pants down, and "shook her bottom at him." Id. at 78. Seal went to S.P.'s cot, told her to lie down, pulled up her pants, covered her with her blanket, and gave her some books. Id.

[6] On July 20, 2016, Seal was cleared to return to his classroom. In August, Seal reported to a Daystar co-director that he had unintentionally touched three-year-old J.B. inappropriately when she jumped on his lap. Id. at 80-81; State's Ex. 5. A Daystar co-director informed J.B.'s parents of the incident. In September, J.B. told her mother about another incident. She said that at naptime Seal touched her "on [her] vagina" through her clothes or on top of her covers with his fingers or hand. Tr. Vol. 2 at 16-17. She said that he had done it more than once. Id. at 17. J.B.'s parents reported Seal's conduct to Daystar and removed J.B. from Daystar's programs. Id. at 22. Daystar terminated Seal and reported the allegations to DCS. Id at 86. Seal prepared a written statement providing accounts of five incidents with J.B., in which he denied that he had intentionally touched J.B. inappropriately. Id. at 87; State's Ex. 6.

[7] In late September or early October of 2016, Seal's five-year-old daughter S.S. told her mother (Seal's wife) that Seal had inappropriately touched her when they were in his bed. Tr. Vol. 2 at 32-33. S.S. said that she got in bed with Seal, and he started tickling her arms and then her "pee-pee." Id. at 35. Then, he pulled down her pants and underwear and tickled her on top of her "pee-pee." Id. at 36. Seal told S.S. not to tell, but she later told her mother. When S.S.'s mother confronted Seal with the allegations, he admitted they were true.

[8] Detective Genae Cook of the Indianapolis Metropolitan Police Department investigated J.B.'s and S.S.'s allegations against Seal. Forensic interviews of J.B. and S.S. were conducted. During the investigation, Detective Cook learned of the earlier report regarding S.P. Detective Cook called S.P.'s parents and requested a follow-up forensic interview with S.P. Id. at 67. At this interview S.P. "made a disclosure." Id.

[9] As part of the investigation, Detective Cook conducted a videotaped interview with Seal. Seal signed a written advisement and waiver of his Miranda rights, and the following conversation took place:

Q: So when you dealt with [S.P.], you said she just pulled her pa ... pants down. So when you were watching her were you getting erections then? Did you start to feel it excite you?
A: Yeah.
Q: So when did you take a, take it to the next level?
A: Um, she, at one point wanted me to just like put my finger down there so I did.
Q: Okay. What do you mean put your finger down there?
A. She wanted ...
Q: Tell me what you did? A: Like I put my finger down there. She grabbed ahold of my finger and started rubbin' herself with my finger.
....
Q: So you started rubbin' her on her vagina then, did it become something that became somethin' between you and her at naptime or anything?
A: It ... happened like three times.
Q: So when you were touching [S.P.] was it over the underwear or under the underwear?
A: Hers was under the underwear because she would pull her pants down.
Q: Okay, so would your finger go up between the labia?
A: Yeah.
Q: Would you (inaudible) go inside?
A: No.
Q: Okay. But you would manipulate the labia ...
A: Yeah.
Q: ... get your finger up in there?
A: Well, I, just on top.
Q: Where did it ...
A: Like inside ...
Q: ... did you go in between the crack?
A: ... yeah, yeah, yeah, yes, yes ...
Q: Okay.
A: ... yes, yes.
Q: But you're not goin' in the hole ...
A: No, no.
Q: ... you're just goin' in between the cracks ...
A: Yes.
Q: ... where the clitoris is?
A: Yes.

State's Ex. 8 (DVD); State's Ex. 9 pp. 26, 28-29 (transcript of DVD).

[10] In October 2017, the State charged Seal with level 1 felony child molesting and level 4 felony child molesting of S.P. Appellant's App. Vol. 2 at 29. Under separate cause numbers, the State also charged Seal with level 4 felony child molesting of J.B. and with level 1 felony child molesting and level 4 felony child molesting of S.S.

[11] The three causes were consolidated for trial, and Seal waived his right to a jury trial. At the beginning of the bench trial, Seal indicated that he was contesting only the level 1 felonies based on the required element of penetration of the sex organ. Tr. Vol. 2 at 5-6. S.P., then six years old, testified that at naptime, Seal touched "[her] vagina." Id. at 59. She testified that Seal pulled down her clothes and "touched [her] skin on [her] vagina" with "his finger." Id. at 60. She testified that this happened more than one time and it always happened at naptime. Id. at 59-60. When asked if his finger moved or stayed still when he touched her, she answered that "it stayed still." Id. at 60. When asked how she felt when Seal was touching her vagina, she answered, "I don't know." Id. at 60. Detective Cook testified that she interviewed Seal and that "he admitted to the allegations." Id. at 95. The State submitted the DVD and transcript of Seal's confession. State's Exs. 8 and 9. Seal offered no objection at that time, and the trial court admitted the exhibits. At the conclusion of the evidence, the trial court found Seal guilty of level 4 felony child molesting in all three causes. However, for the level 1 felony child molesting charges, the trial court requested that the parties submit post-trial briefs on the law as to what constitutes penetration and whether the evidence proved penetration. Tr. Vol. 2 at 103, 107. In his post-trial brief, Seal argued that the trial court could not consider any part of his confession as evidence of guilt to support a conviction for level 1 felony child molesting because there was no independent evidence of the corpus delicti. Appellant's App. Vol. 2 at 78-79.

[12] At the sentencing hearing, the trial court first heard argument as to whether Seal's confession was admissible as evidence on the level 1 felony child molesting charges and whether there was sufficient evidence of penetration. The trial court found that his confession was admissible and found Seal guilty of level 1 felony child molesting of S.P. The trial court sentenced Seal to twenty years for his level 1 felony child molesting conviction and six years for his level 4 felony conviction, to be served concurrent to one another, but consecutive to the sentences imposed under the other two causes. This appeal ensued.

Discussion and Decision

Section 1-The trial court did not abuse its discretion in admitting Seal's confession.

[13] Seal asserts that the trial court abused its discretion in admitting his confession as evidence of level 1 felony child molesting because there was no independent evidence of the corpus delicti. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion and will reverse "only when the decision is clearly against the logic and effect of the facts and circumstances." Shinnock v. State , 76 N.E.3d 841, 843 (Ind. 2017).

[14] Before addressing the specific circumstances in this case, we briefly review the corpus delicti rule. "In Indiana, a person may not be convicted of a crime based solely on a nonjudicial confession of guilt. Rather, independent proof of the corpus delicti is required before the defendant may be convicted upon a nonjudicial confession." Id. (citation omitted). Historically, the corpus delicti was defined as "[t]he body of a crime.... In a derivative sense, the substance or foundation of a crime; the substantial fact that a crime has been committed." Brown v. State , 239 Ind. 184, 190, 154 N.E.2d 720, 722 (1958) (quoting BLACK'S LAW DICTIONARY at 413 (4th ed. 1951) ), cert. denied (1960). Evidence sufficient to satisfy the corpus delicti rule was described as follows:

A dead body alone is not proof of the corpus delicti in a homicide case; but an identified dead body with marks of violence thereon or surrounding circumstances that would indicate the deceased did not die from natural causes establishes prima facie that a homicide has been committed and the corpus delicti. Likewise, the corpus delicti in an arson case is not established by the burning of a building alone, but additional independent evidence is necessary to show it was intentionally set afire in violation of the law. In other words, the independent evidence must be of such a character that reasonable inferences may be drawn to support a conclusion that a crime of the nature and character charged has been committed by someone.

Id. at 190-91, 154 N.E.2d at 722 (citations omitted).

[15] Our courts adapted the corpus delicti rule as our criminal law evolved. In Jones v. State , 253 Ind. 235, 252 N.E.2d 572 (1969), cert. denied (1977), our supreme court considered how the rule should be applied where a defendant was charged with first-degree murder in the commission of a felony pursuant to a statute that provided, "Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate a rape, arson, robbery, or burglary, kills any human being, is guilty of murder in the first degree." Id. at 246, 252 N.E.2d at 578. Jones was charged with and convicted of first-degree murder while attempting to commit robbery. On appeal, he contended that although the State established the corpus delicti of murder, his confession to murder and attempted robbery was inadmissible due to the State's failure to show the corpus delicti of attempted robbery. The Jones court rejected his argument:

[W]e hold that it is not necessary to make out a prima facie case as to each element of the crime charged nor is it necessary to prove each element of the crime charged beyond a reasonable doubt before a confession is admissible..... [I]n first degree murder under our felony-murder statute we do not require that the exact felony or attempted felony be established by evidence independent of the confession nor do we require that premeditation be proved by outside independent evidence where the charge is purposeful and premeditated first degree murder. These elements may be shown by use of the confession in connection with any independent evidence in making out the case.

Id. at 249, 252 N.E.2d at 580 (emphasis added).

[16] Our supreme court discussed the difficulties of applying the corpus delicti rule to modern criminal law in Willoughby v. State , 552 N.E.2d 462, 467 (Ind. 1990). The State charged Willoughby with murder, robbery, and criminal confinement, all committed within a single criminal episode. He twice confessed to all three crimes but argued that his confessions were inadmissible because there was no independent evidence of the corpus delicti of each of the crimes. Guided by the purpose of the corpus delicti rule, our supreme court held that a strict application of the rule is not always required:

[T]o support the introduction of a defendant's confession into evidence, the corpus delicti of the crime must be established by independent evidence of 1) the occurrence of the specific kind of injury and 2) someone's criminal act as the cause of the injury. The corpus delicti rule arose from judicial hesitancy to accept without adequate corroboration a defendant's out-of-court confession of criminal activity. The primary function of the rule is to reduce the risk of convicting a defendant based on his confession for a crime that did not occur. Other justifications include the reduction of confessions produced by coercive tactics and the encouragement of thorough police investigations. The extent to which the rule actually furthers these goals has been seriously questioned, especially in light of developing procedural safeguards for voluntary confessions. Most federal courts and several state courts have adopted a more flexible "trustworthiness" requirement for confession corroboration. In the past this Court has declined to adopt the "trustworthiness" rule.[ ][ Jones , 253 Ind. at 248, 252 N.E.2d at 578-79 ].
Strict adherence to the corpus delicti rule, in light of its declining utility, presents great difficulties in modern criminal law.
If conscientiously applied, the requirement-especially the corpus delicti formulation-contains fertile grounds for numerous arguments and complexities of application. Definition of the corpus delicti may have been a relatively simple task when crimes were few and concisely defined. But increased use of the criminal sanction has greatly increased the number of criminal offenses. Further, modern statutes tend to define offenses more precisely and in greater detail than traditional case law. Defining the corpus delicti has become more complex. Comprehensive definitions of the corpus delicti, if incorporated into the corroboration requirement, may impose an unrealistic or at least unnecessary burden upon the prosecution.
[ MCCORMICK ON EVIDENCE § 145 at 371 (3d ed. 1984). ]
We are persuaded that where a defendant confesses to several crimes of varying severity within a single criminal episode, strict and separate application of the corpus delicti rule to each offense adds little to the ultimate reliability of the confession once independent evidence of the principal crimes is introduced. The confession at that point has been substantially corroborated. In such a case the confession stands as direct evidence of each crime, even those not separately corroborated, if the independent evidence establishes the corpus delicti of the principal crime or crimes.

Id. at 466-67 (emphases added) (citations omitted). The Willoughby court concluded that there was independent evidence of murder and robbery and "independent proof of the corpus delicti of criminal confinement was not needed because of the adequate corroboration of the principal crimes discussed in [Willoughby's] confessions," and therefore his confessions were admissible. Id. at 468. See also Owens v. State , 732 N.E.2d 161, 163 (Ind. 2000) (affirming admissibility of Owens's confession to murder and rape, where there was no independent evidence of rape, because "strict and separate application of the corpus delicti rule to each offense adds little to the ultimate reliability of the confession once independent evidence of the principal crime is introduced") (quoting Willoughby , 552 N.E.2d at 467 ).

[17] Most recently in Shinnock , our supreme court summed up the corpus delicti rule as follows:

Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone. Thus, admission of a confession requires some independent evidence of commission of the crime charged. The independent evidence need not prove that a crime was committed beyond a reasonable doubt, but merely provide an inference that the crime charged was committed. This inference may be created by circumstantial evidence.
.... The State is not required to prove the corpus delicti by independent evidence prior to the admission of a confession, as long as the totality of independent evidence presented at trial establishes the corpus delicti.

76 N.E.3d at 843 (citations and quotation marks omitted). The court also distinguished the level of proof required to establish the corpus delicti for the admission of a confession from that required to sustain a conviction:

For the preliminary purpose of determining whether the confession is admissible, the State must present evidence independent of the confession establishing that the specific crime charged was committed by someone. The degree of proof required to establish the corpus delicti for admission of a confession is that amount which would justify the reasonable inference that the specific criminal activity had occurred. It is not necessary to make out a prima facie case as to each element of the offense charged, and the corpus delicti may be shown by circumstantial evidence.
On the other hand, in order to sustain a conviction the corpus delicti must be proved beyond a reasonable doubt. In determining the sufficiency of the evidence for conviction, the confession may be considered along with the independent evidence.

Id. at 843-44 (quoting Harkrader v. State , 553 N.E.2d 1231, 1232-33 (Ind. Ct. App. 1990), trans. denied ).

[18] In Shinnock , the defendant was charged with and convicted of bestiality pursuant to Indiana Code Section 35-46-3-14(4), which required the State to prove that he "knowingly or intentionally perform[ed] an act involving ... penetration of an animal's sex organ by the human male sex organ." He appealed, arguing that his confessions were inadmissible because the State failed to satisfy the corpus delicti rule. The Court of Appeals concluded that the State had not presented evidence of the penetration element, and therefore Shinnock's confessions were inadmissible. However, our supreme court disagreed and affirmed Shinnock's conviction. The court noted that "all the State had to present was independent evidence that provided an inference that the crime charged was committed." Id. at 844. The court concluded that there was "ample circumstantial evidence that provide[ed] an inference that Shinnock committed bestiality." Id. Specifically, the court observed that the animal, a dog, was not there to greet her owner when he arrived home like she usually did but was trapped in Shinnock's bedroom with him; when her owner opened the door to Shinnock's bedroom, the dog ran to hide under the couch; the floor was covered in dog feces, which was unusual; and Shinnock was in his underwear and had an erection. Our supreme court concluded, "All the facts taken together suffice to demonstrate both that the dog was a victim and that Shinnock committed the crime. Accordingly, the trial court properly found that the corpus delicti rule was satisfied and admitted the confessions into evidence." Id.

[19] We now turn to the resolution of this case. Seal was charged with two counts of child molesting. He was charged with level 1 felony child molesting pursuant to Indiana Code Section 35-42-4-3(a), which provides,

A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5 ) commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if:
(1) it is committed by a person at least twenty-one (21) years of age.

Section 35-31.5-2-221.5 defines "other sexual conduct" as an act "involving a sex organ of one person and the mouth or anus of another person; or the penetration of the sex organ or anus of a person by an object." Our case law has established that a finger is an object for purposes of the child molesting statute. Simmons v. State , 746 N.E.2d 81, 86 (Ind. Ct. App. 2001), trans. denied. It is also well established that the female sex organ includes the external genitalia and that the slightest penetration of the female sex organ constitutes child molesting. See, e.g., Short v. State , 564 N.E.2d 553, 559 (Ind. Ct. App. 1991) (concluding that penetration of female sex organ includes penetration of external genitalia); Stetler v. State , 972 N.E.2d 404, 407-08 (Ind. Ct. App. 2012) (concluding that touching clitoral hood with finger supported jury's finding that Stetler penetrated victim's sex organ), trans. denied.

[20] The State also charged Seal with level 4 felony child molesting, which is defined in Section 35-42-4-3(b) as follows:

A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits level 4 felony child molesting.

[21] In support of the charges, six-year-old S.P. testified that Seal put his finger on her skin on her vagina and that he touched her more than one time. Seal confessed that he used his finger to rub S.P.'s vagina on three separate occasions and that his finger went "up between the labia ... in between the crack ... where the clitoris is." State's Ex. 9 pp. 28-29. Seal concedes that S.P.'s testimony provided independent evidence of level 4 felony child molesting and that his confession was admissible to prove that offense. Appellant's Br. at 14-15. However, Seal argues that his confession pertaining to penetration of S.P.'s sex organ is not admissible to prove level 1 felony child molesting because there was no independent evidence of the element of penetration.

[22] Based on the foregoing cases, we conclude that Seal's argument improperly focuses on a single element. As previously discussed, the admission of a confession requires some independent evidence that supports an inference that the crime charged was committed, but the corpus delicti rule does not require the State to "make out a prima facie case as to each element of the offense charged." Shinnock , 76 N.E.3d at 843 ; Jones , 253 Ind. at 249, 252 N.E.2d at 580. Here, the specific crime charged is child molesting. S.P.'s testimony establishes that she was a victim of child molesting and that Seal was the perpetrator. Her testimony justifies a reasonable inference that Seal committed the offense of child molesting. In addition, despite her young age, her testimony includes details that match Seal's confession; that is, during naptime he touched her vagina with his finger and he did so more than once. We note that there is no suggestion or evidence that Seal's confession was procured through coercive tactics. The paramount consideration in applying the corpus delicti rule is whether independent evidence sufficiently corroborates the confession so that a defendant is not convicted of a crime that did not occur. Here, the independent evidence sufficiently corroborates Seal's confession such that requiring the State to make a prima facie case on the element of penetration would add "little to the ultimate reliability of the confession." Willoughby , 552 N.E.2d at 467.

[23] In Brown , our supreme court observed,

The purpose of requiring the proof of the corpus delicti in a criminal case is none other than to corroborate a confession before it is admissible. No other reason has been pointed out for the rule. When it serves that purpose there is no reason for extending it further, thus needlessly creating a technicality without any purpose or merit. Reason is the life of the law and when there is no reason for a rule there is nothing to sustain it.

239 Ind. at 202-03, 154 N.E.2d at 728. We agree. We conclude that the trial court did not abuse its discretion in admitting Seal's confession.

Section 2-The evidence is sufficient to support Seal's level 1 felony child molesting conviction.

[24] Seal also challenges the sufficiency of the evidence supporting his level 1 felony child molesting conviction. In reviewing a claim of insufficient evidence, we do not reweigh the evidence or judge the credibility of witnesses, and we consider only the evidence that supports the judgment and the reasonable inferences arising therefrom. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). "We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt." Id. "In determining the sufficiency of the evidence for conviction, [Seal's] confession may be considered along with the independent evidence." Shinnock , 76 N.E.3d at 844 (quoting Harkrader , 553 N.E.2d at 1233 ).

[25] To convict Seal of level 1 felony child molesting, the State had to prove that he was at least twenty-one years old and knowingly or intentionally performed an act that involved the penetration of the sex organ of S.P., a child under the age of fourteen, by an object. Ind. Code §§ 35-42-4-3 ; 35-31.5-2-221.5; Appellant's App. Vol. 2 at 29.

[26] Seal asserts that S.P.'s testimony fails to provide substantial evidence of probative value and that his statement "is so equivocal as to provide no support for a conviction." Appellant's Br. at 19. We disagree. S.P. testified that Seal touched her on the skin of her vagina. In his statement, although Seal indicated that he was "not goin' in the hole," he confessed that his finger went "up between the labia ... in between the crack ... where the clitoris is." State's Ex. 9 pp. 28-29. As previously noted, the slightest penetration of the female sex organ, including the external genitalia, constitutes child molesting. Short , 564 N.E.2d at 559. Seal's argument is a request to reweigh the evidence, which we must decline. Accordingly, we affirm his conviction.

[27] Affirmed.

Bailey, J., and Brown, J., concur.

      The record does not reveal whether S.P. was examined by her pediatrician or by doctors at Riley Children's Hospital.

      The trial court found Seal not guilty of level 1 felony child molesting of S.S.

      Federal courts apply the trustworthiness standard adopted by the United States Supreme Court in Opper v. United States , 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954). The trend toward replacing the corpus delicti rule with a trustworthiness standard has continued. See State v. Dern , 303 Kan. 384, 362 P.3d 566, 580-83 (2015) (listing states that have abandoned or modified the corpus delicti rule, explicitly adopting a standard of trustworthiness for the admissibility of confessions for any crime that does not naturally or obviously produce a tangible injury easily susceptible to physical proof, and stating, "The unfortunate fact that our longstanding recognition of [the trustworthiness] method of showing the corpus delicti has all too often been obscured by our previous insistence on reciting the formal rule even when inapplicable is remedied today.").

      The current edition of the treatise states,
      Application of the corpus delicti formulation may have been a relatively simple task that accomplished the purpose of the corroboration requirement when crimes were few and were defined in simple and concise terms. But modern statutory criminal law has increased the number and complexity of crimes. Simply identifying the elements of the corpus delicti thus provides fertile ground for dispute.
      1 McCormick on Evidence § 147 at 815 (7th ed. 2013).

      In fact, S.P.'s testimony is sufficient evidence to prove beyond a reasonable doubt that Seal committed level 4 felony child molesting. See Bailey v. State , 979 N.E.2d 133, 135 (Ind. 2012) ("A conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.").

      Although this case satisfies the standard under the current corpus delicti rule, it may illustrate that it is time for our supreme court to consider updating our approach and adopting some form of the modern trustworthiness standard, as is now used by the federal courts and many states, which would accommodate the complexity and specificity of our modern criminal laws and effectively accomplish the purpose of the corpus delicti rule.

      Seal argues that "the Level 1 charge was the principal offense so that by implication, under the reasoning of Owens , independent evidence of that offense would be necessary." Appellant's Br. at 15. However, Seal's offenses do not comprise a single criminal episode involving different crimes. His crimes involve different felony levels of the same crime, and for the reasons we have discussed, we do not believe that the purpose of the corpus delicti rule would be served by requiring independent evidence of all the elements required to prove the higher felony level.


author: May, Judge. Riley, dissenting

text:
    STATE of Indiana, Appellant-Plaintiff, v. Nicolas LINDAUER, Appellee-Defendant
    Court of Appeals Case No. 87A05-1709-CR-2137
    Court of Appeals of Indiana.
    FILED June 20, 2018
    Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Larry D. Allen, Andrew A. Kobe, Deputy Attorney General, Indianapolis, Indiana
    Attorney for Appellee: Mark K. Phillips, Boonville, Indiana
   May, Judge.

[1] The State of Indiana appeals the trial court's grant of Nicholas Lindauer's motion to dismiss the charges against him pursuant to Indiana Criminal Rule 4(C). The State argues the trial court erred in granting Lindauer's motion because the calendar year in which the State needed to bring Lindauer to trial had not expired. Because Lindauer requested nearly all the continuances that had occurred in the year after the State charged Lindauer, the State's year in which to try Lindauer had not expired. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

[2] On April 6, 2016, the State charged Lindauer with a Class C misdemeanor operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more, Class C misdemeanor operating a vehicle while intoxicated, Class B misdemeanor possession of marijuana, Class C misdemeanor possession of paraphernalia, and Level 6 felony operating a vehicle with an ACE of .08 or more. During the hearing of April 25, 2016, Lindauer waived the formal reading of the charges and requested the trial court "authorize a specialized driving permit." (Tr. Vol. II at 4.) Finding no objection from the State, the trial court granted Lindauer's request the same day and set the case for a progress hearing on June 27, 2016.

[3] On June 23, 2016, Lindauer moved to continue the progress hearing scheduled for June 27, 2016, "due to Attorney Phillips having a confirmed Jury Trial in another jurisdiction." (Appellant's App. Vol. II at 3.) The trial court granted the motion and reset the hearing to August 22, 2016.

[4] On August 22, 2016, the trial court conducted a progress hearing. Lindauer explained that plea negotiations were ongoing and stated that "we have a shot at getting this resolved[.]" (Tr. Vol. II at 6.) The CCS states: "On Defendant's motion matter is reassigned for Progress Hearing on October 24, 2016." (Appellant's App. Vol. II at 3.)

[5] At the hearing of October 24, 2016, Lindauer referenced the continuing negotiations and requested the hearing to be reset "for an anticipated plea." (Tr. Vol. II at 6.) Accordingly, the CCS reflects: "On Defendant's motion matter is reassigned for progress hearing on November 14, 2016 [ ] for possible plea." (Appellant's App. Vol. II at 3.)

[6] On November 14, 2016, the parties informed the trial court that no plea had been reached. Lindauer moved to set the case for a later progress hearing, to which the State acquiesced. The court offered January 30, 2017, to which Lindauer responded: "Sounds great." (Tr. Vol. II at 7.)

[7] On January 30, 2017, the court conducted a progress hearing. Essentially as soon as the court called the case, Lindauer requested the court reset the case for February 27, 2017, because "[w]e're on our third version of the plea agreement." (Id. at 8.) After brief discussion of the single term of the plea that divided the parties, Lindauer said: "So if we can set it for the 27th that'd be my request. We're gonna resolve it I believe.... And I assume the Court'll either accept or reject and set it for Trial." (Id. ) "On Defendant's motion matter is reassigned for February 27, 2017." (Appellant's App. Vol. II at 4.)

[8] At the February progress hearing, Lindauer advised the trial court that he "pitched a potential resolution to [the State]. [The State] wants to do some investigation on its own. And I think we're gonna set up a time to chat with each other about it." (Tr. Vol. II at 9.) Accordingly, "[o]n Defendant's motion matter is reassigned for March 20, 2017." (Appellant's App. Vol. II at 4.)

[9] Again, during the March hearing, Linduaer notified the court that they "just need a date a couple weeks out" to come to a resolution with the State. (Tr. Vol. II at 9.) Therefore, "[o]n Defendant's motion matter is reassigned for April 10, 2017." (Appellant's App. Vol. II at 4.)

[10] At the April 10, 2017, progress hearing, Lindauer admitted that he had been unable to reach a plea agreement with the State and requested the trial court set the cause for trial on May 8, 2017. The State objected to the proposed trial date because it did not allow for sufficient time to subpoena the witnesses but offered to be ready for trial on May 23 or 30, 2017. The trial court was not available on May 23, 2017, and Lindauer refused the date of May 30, 2017. After the trial court reaffirmed May 8 would not work, Lindauer asked if he ever formally waived his Criminal Rule 4 rights and argued that, if he had not formally waived his right, any trial date would be outside the Rule 4 time period. Lindauer agreed to provide the trial court with authority regarding his Rule 4 rights. The court set a "jury trial June 20, 2017." (Appellant's App. Vol. II at 4).

[11] On April 13, 2017, Lindauer filed a motion to dismiss pursuant to Indiana Criminal Rule 4(C). During the hearing on Lindauer's motion, Lindauer conceded that at least 56 days were attributable to him, but that he should have been brought to trial prior to June 2, 2017. In response, the State contended that at least 287 days were not attributable to the rule because these were times that Lindauer requested the hearings be reset. On August 23, 2017, the trial court summarily granted Lindauer's motion and dismissed the cause.

DISCUSSION AND DECISION

[12] The State contends that the trial court erred by dismissing the cause pursuant to Indiana Criminal Rule 4(C). An accused's right to a speedy trial is guaranteed by Article I, Section 12 of the Indiana Constitution and by the Sixth Amendment to the United States Constitution. Leek v. State , 878 N.E.2d 276, 277 (Ind. Ct. App. 2007). "This 'fundamental principle of constitutional law' has long been zealously guarded by our courts." Id. (quoting Clark v. State , 659 N.E.2d 548, 551 (Ind. 1995) (citing a case from 1957) ). Indiana Criminal Rule 4 was adopted to implement a defendant's right to a speedy trial. Id. Criminal Rule 4(C) provides, in relevant part:

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.

The State has an affirmative duty to bring a defendant to trial within one year. Leek , 878 N.E.2d at 277. A defendant has no obligation to remind the court of the State's duty, nor is a defendant required to take affirmative action to ensure he is brought to trial within that period. Id.

[13] Nevertheless, if a defendant takes action that delays the proceeding, "that time is chargeable to the defendant and extends the one-year time limit, regardless of whether a trial date has been set at the time or not." Cook v. State , 810 N.E.2d 1064, 1066-67 (Ind. 2004). "When a continuance is had on motion of the defendant, or delay in trial is caused by his act, any time limitation contained in the rule shall be extended by the amount of the resulting period of such delay caused thereby." Crim. R. 4(F). "The objective of the rule is to move cases along and to provide the defendant with a timely trial, not to create a mechanism to avoid trial." Brown v. State , 725 N.E.2d 823, 825 (Ind. 2000).

[14] Whether delays in the scheduling of the trial have occurred and to whom they are chargeable are factual determinations for the trial court, Leek , 878 N.E.2d at 277, and "appellate review is for clear error." Austin v. State , 997 N.E.2d 1027, 1040 (Ind. 2013). Thus we may not reweigh the evidence or reassess witness credibility, and we reverse if we are left "with a definite and firm conviction that a mistake has been made." Id. (quoting State v. Oney , 993 N.E.2d 157, 161 (Ind. 2013) ).

[15] Using the date the charges were filed against Lindauer, the Criminal Rule 4(C) time period began to run on April 6, 2016. Barring any delay extending the time, the State was required to bring Lindauer to trial by April 5, 2017. The State notes that the CCS shows Lindauer was granted continuances on several occasions. "The CCS is an official record of the trial court," Ind. Trial Rule 77(B), and "a trial court speaks through its docket." Young v. State , 765 N.E.2d 673, 678 n.6 (Ind. Ct. App. 2002).

[16] The CCS in this case clearly states that hearings set in June 2016, August 2016, October 2016, November 2016, January 2017, February 2017, and March 2017 were rescheduled on Lindauer's motion. The Transcript of the six hearings that occurred between those dates also confirms Lindauer moved to reset six of the hearings. (See Tr. at 6, 6, 7, 7-8, 9, & 9.) Thus, every extension of time that occurred between June 23, 2016, and April 10, 2017, occurred because of a request made by Lindauer.

[17] Criminal Rule 4(C) provides a defendant can be required to answer a charge more than a year after it was filed if "a continuance was had on his motion, or the delay was caused by his act ...." As those seven continuances, which cumulatively accounted for 288 calendar days, were all ordered because of a motion by Lindauer, all 288 days are attributable to Lindauer and do not count toward the Criminal Rule 4(C) deadline. See Cook , 810 N.E.2d at 1068 ("Defendant made five motions to continue, all of which were attributable to Defendant." (footnote omitted) ).

[18] As our Indiana Supreme Court has explained, Criminal Rule 4(C) was created "to move cases along ..., not to create a mechanism to avoid trial." Brown , 725 N.E.2d at 825. A defendant cannot habitually move to reset the preliminary hearing at which the trial date was to be set and then assert a meritorious claim that his right to trial within a year was violated. See Cook , 810 N.E.2d at 1068 (holding all five of defendant's motions to continue the pre-trial conference were chargeable against the defendant, such that Criminal Rule 4(C) time limit had not expired). Because the trial court committed clear error when it granted Lindauer's motion to dismiss, we reverse and remand for further proceedings.

[19] Reversed and remanded.

Mathias, J., concurs.

Riley, J., dissents with separate opinion.

Riley, dissenting

[20] I respectfully dissent from the majority's decision to reverse the trial court's order, which dismissed Lindauer's charges pursuant to Indiana Criminal Rule 4(C). Like the majority, I acknowledge that the CCS is the "official record of the trial court," and that a trial court speaks through its docket. Ind. Trial Rule 77(B), Young v. State , 765 N.E.2d 673, 678, n.6 (Ind. Ct. App. 2002). However, the CCS combined with the transcript of the proceedings presents a more nuanced picture in the instant case and indicates that for the majority of the continuances, the parties were engaged in ongoing plea negotiations. "To the extent the parties were engaged in plea negotiations, '[a]lmost every criminal case involves a simultaneous two-track process-a negotiation track and a litigation track and Criminal Rule 4(C) requires the State to be ever mindful of the one-year deadline.' " Gibson v. State , 910 N.E.2d 263, 268 (Ind. Ct. App. 2009) (citing Leek v. State , 878 N.E.2d 276, 279 (Ind. Ct. App. 2007) ).

[21] During the April 10, 2017 progress hearing, Lindauer advised the trial court that the negotiations were not successful and requested a trial date. Until Lindauer made this request, no trial date had ever been scheduled, despite the State's affirmative duty to bring Lindauer to trial before June 2, 2017. Our court has previously held:

[W]hen, prior to the expiration of the period set by [ Criminal Rule 4 ], the court sets a trial date which is beyond that period and the defendant is or should be aware that the setting is beyond that period, it is his obligation to object at the earliest opportunity so that the court can reset the trial for a date within the proper period. If the defendant sits idly by at a time when the court could yet grant him a trial within the prior period and permits the court, without objection, to set a date beyond that period, he will be deemed to have acquiesced therein.

State v. Black , 947 N.E.2d 503, 508 (Ind. Ct. App. 2011) (citing State v. Delph , 875 N.E.2d 416, 420 (Ind. Ct. App. 2007), trans. denied ).

[22] Here, Lindauer was aware of the Criminal Rule 4(C) timeframe. During the April 10, 2017 hearing, Lindauer advised the trial court about his Criminal Rule 4 right but the trial court nevertheless scheduled the trial date outside this period. While a line of cases describe a defendant's obligation as an "obligation to object at the earliest opportunity," other cases merely state that once a trial court sets a trial date outside the one year period, the defendant must alert the court and file a timely objection. See, e.g., Randall v. State , 474 N.E.2d 76, 84 (Ind. 1985) ; Johnson v. State , 708 N.E.2d 912, 915 (Ind. Ct. App. 1999), trans. denied ; But see contra , e.g. , Schwartz v. State , 708 N.E.2d 34, 36 (Ind. Ct. App. 1999) ; Wheeler v. State , 662 N.E.2d 192, 194 (Ind. Ct. App. 1996). However, all of the cases seem to agree that the purpose of the objection requirement is to permit the trial court to set the trial for a new date within the proper period. See Brown v. State , 725 N.E.2d 823, 825 (Ind. 2000).

[23] While Lindauer might not have explicitly objected at his earliest opportunity-i.e. , at the hearing-it was clear to all parties involved that he was invoking his right to being brought to trial within the Criminal Rule 4 term. Accordingly, as Lindauer timely objected and did not waive his Criminal Rule 4(C) rights, I would affirm the trial court's decision to dismiss the case.

      Ind. Code § 9-30-5-1(a) (2001).

      Ind. Code § 9-30-5-2(a) (2001).

      Ind. Code § 35-48-4-11(a)(1) (2014).

      Ind. Code § 35-48-4-8.3(b)(1) (2015).

      Ind. Code § 9-30-5-1(a) (2001) & Ind. Code § 9-30-5-3 (2014).

      In support of his argument the trial court properly dismissed his charges under Criminal Rule 4(C), Lindauer points to Leek v. State , 878 N.E.2d 276 (Ind. Ct. App. 2007), and Smith v. State , 495 N.E.2d 539 (Ind. Ct. App. 1986). Because each of those cases contains facts that are materially dissimilar from Lindauer's case, neither requires we affirm the trial court's dismissal of Lindauer's charges.
      Leek, like Lindauer, moved for dismissal of the charges against him after one calendar year had passed while Leek and the State had been negotiating a possible plea agreement. 878 N.E.2d at 277. Unlike Lindauer, however, Leek had not moved for a continuance during the eleven months that his CCS sat silent. Id. Leek did not request the continuance that began the eleven-month lull in his proceedings. Id. Leek had not appeared at hearings during that eleven months such that he could have acquiesced in continuances requested by the State. Id. Because Leek had not taken any action that resulted in the delay, while Lindauer explicitly requested the seven continuances that led to nine months of delay, we decline to follow Leek .
      Smith also moved for dismissal of his charges based on Criminal Rule 4(C) after one year passed without the State bringing him to trial. 495 N.E.2d at 540. The State asserted the court should deny Smith's motion because "it had been engaged in plea negotiations with Smith's attorney and ... was waiting on a response from Smith to the State's plea bargain offer."Id. The trial court rejected the State's argument and dismissed the charges. On appeal, we noted the CCS "entries reflect no delay in the scheduling of the trial that can be attributed to Smith." Id. at 541. As we affirmed the trial court's decision, we explained:
      Even if we assume that the State's evidence established that it was engaged in plea negotiations with Smith over the entire one-year period, this does not establish that anything Smith or his attorney did caused an actual delay or prevented the State from scheduling the trial. Smith was under no duty to remind the State that the one-year period was running out, and the State was under no compulsion to allow the period to expire while waiting for Smith's response to its plea offer. Indeed, if the State was dissatisfied with the progress of the negotiations, it could have simply requested the court to set a timely trial date and required Smith to obtain a continuance to pursue the negotiations. This the State did not do.
      Id. at 542. Unlike Smith, Lindauer moved for multiple continuances to pursue plea negotiations with the State. This factual distinction leads us to hold Smith supports our decision to assign to Lindauer the delay caused by his seven motions to continue. See Cook , 810 N.E.2d at 1068 (defendant's motions to continue the pre-trial conference were chargeable against the defendant).

      We need not address the State's argument that Lindauer waived his right under Rule 4(C) by failing to object at an appropriate time to a trial being set outside the one-year deadline because, by our calculation, at the time of the trial scheduled for June 20, 2017, only 153 days attributable to the Rule 4(C) deadline would have passed. Because the scheduled trial was well within the one-year deadline, no objection to that trial date was necessary.

      The CCS and transcript reflects that the hearing of June 27, 2017 was continued to August 22, 2016, by Lindauer's written motion. I find that only this 56-day continuance can be attributed to Lindauer and extends the Criminal Rule 4(C) deadline to June 2, 2017.


author: May, Judge.

text:
    Zachariah MARSHALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 64A05-1710-CR-2368
    Court of Appeals of Indiana.
    Filed June 20, 2018
    Attorney for Appellant: Michael A. Campbell, Valparaiso, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Zachariah Marshall appeals the trial court's denial of his renewed motion to suppress. He argues the traffic stop initiated by Reserve Officer Sean Dolan which led to Marshall's arrest violated Marshall's Fourth Amendment rights under the United States Constitution because Reserve Officer Dolan did not have reasonable suspicion to stop Marshall. We reverse and remand.

Facts and Procedural History

[2] In the early morning on October 29, 2016, Reserve Officer Dolan initiated a traffic stop of Marshall's vehicle based on Reserve Officer Dolan's observation that Marshall "was going over the posted speed limit." (Tr. Vol. II at 39.) Reserve Officer Dolan explained to Marshall that Reserve Officer Dolan pulled Marshall over for speeding.

[3] Soon thereafter, the stop escalated to an investigation of operating a vehicle while intoxicated. Reserve Officer Dolan's supervisor, Corporal Robert O'Dea, arrived on the scene and arrested Marshall. Reserve Officer Dolan testified he did not write Marshall a citation for speeding because

Marshall's BMV check came back that he had no priors to speeding and also that Mr. Marshall was also under the investigation for an O.W.I., therefore, I knew that he was going to have plenty of money problems and legal problems ahead of him that were going to be costly and I decided to cut him a break on the citation for speeding.

(Id. at 13.)

[4] On November 2, 2016, the State charged Marshall with Class A misdemeanor operating a vehicle while intoxicated, endangering a person; Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to .08 but less than .15; and Class C misdemeanor operating a vehicle while intoxicated. On August 4, 2017, Marshall filed a motion to suppress, alleging the traffic stop was unlawful. The trial court denied Marshall's motion on August 8, 2017.

[5] On August 9, 2017, Marshall filed a renewed motion to suppress, again alleging the traffic stop was unlawful, and requested a hearing on the motion. The trial court granted Marshall's request for a hearing and held a hearing on Marshall's renewed motion to suppress on August 17, 2017. The trial court denied Marshall's renewed motion to suppress on August 18, 2017.

[6] On September 6, 2017, Marshall filed a motion asking the trial court to certify its denial of his renewed motion to suppress for interlocutory appeal. The trial court granted Marshall's request for certification on September 12, 2017. Our court accepted jurisdiction over Marshall's interlocutory appeal on December 5, 2017.

Discussion and Decision

[7] Our standard of review for the denial of a motion to suppress evidence is similar to other sufficiency issues. Jackson v. State , 785 N.E.2d 615, 618 (Ind. Ct. App. 2003), reh'g denied, trans. denied . We determine whether substantial evidence of probative value exists to support the denial of the motion. Id. We do not reweigh the evidence, and we consider conflicting evidence that is most favorable to the trial court's ruling. Id. But the review of a denial of a motion to suppress is different from other sufficiency matters in that we must also consider uncontested evidence that is favorable to the defendant. Id. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to a trial court's determination of the facts, which will not be overturned unless clearly erroneous. Campos v. State , 885 N.E.2d 590, 596 (Ind. 2008).

[8] The Fourth Amendment to the United States Constitution requires law enforcement officials obtain a valid warrant before conducting searches or seizures. A traffic stop is considered a seizure under the Fourth Amendment. Bush v. State , 925 N.E.2d 787, 789 (Ind. Ct. App. 2010), clarified on reh'g 929 N.E.2d 897 (Ind. Ct. App. 2010) (clarifying procedural history of case and addressing State's claim of waiver). "To be valid, a traffic stop must be supported by, at least, reasonable suspicion a traffic law has been violated or other criminal activity is afoot." Id. at 790. Reasonable suspicion must consist of more than general hunches or suspicions. Abel v. State , 773 N.E.2d 276, 279 (Ind. 2002). We consider the totality of the circumstances in determining whether an officer had reasonable suspicion. Carter v. State , 692 N.E.2d 464, 467 (Ind. Ct. App. 1997).

[9] Marshall argues the trial court erred when it denied his renewed motion to suppress because Reserve Officer Dolan's traffic stop was unlawful. Specifically, Marshall contends Reserve Officer Dolan's testimony of his "visual speed estimate" was insufficient to prove Reserve Officer Dolan had reasonable suspicion to believe Marshall was exceeding the speed limit when Reserve Officer Dolan initiated the traffic stop. (Br. of Appellant at 14.) This is an issue of first impression in Indiana.

[10] In its order denying Marshall's renewed motion for summary judgment, the trial court concluded that "an officer's testimony of speeding, without radar, pacing or some number, when based upon his or her expertise and ability to draw conclusions about the excessive speed of the vehicle, in general terms, is sufficient to establish a reasonable suspicion of a traffic infraction justifying a stop." (App. Vol. II at 11.) In support of its conclusion, the trial court cited four cases from other jurisdictions: State v. Butts , 46 Kan.App.2d 1074, 269 P.3d 862 (2012) ; State v. Konvalinka , 819 N.W.2d 426, 2012 WL 1860352 (Iowa Ct. App. 2012) ; State v. Allen , 978 So.2d 254 (Fla. Dist. Ct. App. 2008) ; and State v. Barnhill , 166 N.C.App. 228, 601 S.E.2d 215 (2004), review denied .

[11] All of the cases cited by the trial court in support of its conclusion are distinguishable from the facts in this case because they included testimony from the officer on the scene of the approximate speed the defendant was traveling prior to the initiation of the traffic stop. See Butts , 269 P.3d at 866 ("Officer Hopkins first noticed Butts' vehicle traveling at a speed of about 45 miles per hour in a 30-mile-per-hour speed zone. The officer's speed determination was an estimate based upon his observations, training, and experience with radar and speed detection.");

Konvalinka , at *1 (Officer "estimated Konvalinka to be travelling at approximately sixty miles per hour. The speed limit in the area was twenty-five miles per hour."); Allen , 978 So.2d at 255 (Although officer did not know the exact speed Allen was traveling, "Detective Rylott testified that the area has a speed limit of twenty-five miles per hour and that he had to drive well over fifty miles per hour to catch up to Allen."); and Barnhill , 601 S.E.2d at 216 ("In Officer's [sic] Malone's opinion the vehicle was exceeding a safe speed, as he estimated the vehicle to be traveling 40 m.p.h. in a 25 m.p.h. zone.").

[12] Here, the trial court noted as part of its order the relevant facts regarding Reserve Officer Dolan's testimony:

Hebron police officer Sean Dolan was patrolling the area around State Road 8 and 500 West on October 19, 2016. He observed Defendant's car speeding and stopped the [D]efendant. Officer Dolan was using a radar, but he could not testify at hearing or at deposition 1) what speed the [D]efendant was traveling and 2) what the radar showed as [D]efendant's speed. He could only state the following:
Q: How certain were you that the defendant was speeding?
A: Very certain, a hundred percent.

(App. Vol. II at 10.) The facts in this case are more similar to those in State v. Petzoldt , 803 N.W.2d 128, 2011 WL 2556961 (Iowa Ct. App. 2011). In Petzoldt , Officer Jay King pulled over Petzoldt because Officer King thought Petzoldt was speeding. After speaking with Petzoldt, Officer King suspected Petzoldt was intoxicated, administered field sobriety tests, and arrested Petzoldt for operating a vehicle while intoxicated. Id. at *1. Petzoldt filed a motion to suppress, citing multiple grounds, including "lack of legal cause to stop [Petzoldt's] vehicle." Id. The trial court denied Petzoldt's motion to suppress based on the legality of his traffic stop. At his subsequent bench trial, the trial court found Petzoldt guilty as charged and sentenced him accordingly.

[13] On appeal, Petzoldt argued the traffic stop was not justified by reasonable suspicion because "Officer King had no 'sufficient, specific, articulable facts to substantiate a particularized suspicion to justify making an investigatory stop.' " Id. at *3. The court stated:

We believe that with proper foundation, an officer's visual estimation of speed may be sufficient to supply probable cause to stop a vehicle for speeding. But that is not the case here.
Here, Officer King testified he was playing Solitaire when he observed Petzoldt's pickup truck briefly as it passed in front of his patrol car. Although he testified he believed the truck was travelling at a speed greater than the posted speed limit, Officer King made no estimate as to how fast the truck was travelling or how much over the posted limit he thought the pickup was travelling. The posted speed limit is not even in the record before us. Officer King's visual estimate of speed was not confirmed by any other means of corroboration of the speed, such as radar or pacing. Officer King observed no other traffic infractions or driving anomalies by the pickup.
He reached his conclusion based upon "years of experience looking at vehicles and the speeds they are going," something he did every day in his job as a thirty-one-year veteran of the police force. Further, he said that as he attempted to catch up to the pickup, he "could tell that it was still going over the speed limit." Officer King did not charge Petzoldt with speeding. The speed of Petzoldt's truck cannot be discerned from viewing the video taken by Officer King's dashboard-mounted camera.

Id. (footnote omitted). As part of its analysis, the court relied on Allen and Barnhill as instances where the officer's visual estimation was sufficient to supply probable cause to stop a vehicle for speeding. Based thereon, the court concluded:

Officer King's testimony is solely conclusory. Having failed to articulate his observations of the movement of the Petzoldt truck in his testimony, Officer King's opinion lacks any factual foundation. Other than relying on his experience as a police officer, he failed to express any reasons for his belief the truck was speeding.

Id. at *4. Because Officer King had not supplied specific, articulable facts upon which he based his conclusion that Petzoldt was speeding, the court concluded the traffic stop violated Petzoldt's rights under the Fourth Amendment of the United States Constitution and reversed Petzoldt's conviction.

[14] Similar facts exist here. During a pre-trial deposition, Reserve Officer Dolan could not recall the posted speed limit at the location of the traffic stop, but he claimed he knew at the time of the stop what the speed limit was in the area. He testified he "thought maybe it was forty miles an hour[.]" (Tr. Vol. II at 22.) During the suppression hearing, Reserve Officer Dolan indicated he had visited the location of the stop prior to the hearing and that the speed limit was fifty miles per hour. Reserve Officer Dolan testified he did not pace Marshall's vehicle, did not write down the speed at which he observed Marshall traveling prior to the traffic stop, and did not observe Marshall commit additional traffic infractions.

[15] Instead, he agreed when asked, "you're testifying that Mr. Marshall was doing something above [the posted speed limit]?" (Id. at 12.) Reserve Officer Dolan also testified his radar was properly calibrated and working at the time and while he did not know the exact speed Marshall was traveling, his radar indicated Marshall was going over the posted speed limit. Because Reserve Officer Dolan could not testify regarding the speed of Marshall's vehicle in more specific terms, we hold he did not have specific articulable facts to support his initiation of a traffic stop, and therefore the traffic stop violated Marshall's Fourth Amendment rights. See L.W. v. State , 926 N.E.2d 52, 59 (Ind. Ct. App. 2010) (officer did not have reasonable suspicion to conduct investigatory stop of L.W. and thus the stop violated L.W.'s Fourth Amendment rights), reh'g denied .

Conclusion

[16] The trial court erred when it denied Marshall's renewed motion to suppress because the traffic stop that resulted in Marshall's arrest for driving while intoxicated violated the Fourth Amendment to the United States Constitution. Accordingly, we reverse and remand for proceedings consistent with this opinion.

[17] Reversed and remanded.

Riley, J., and Mathias, J., concur.

      Ind. Code § 9-30-5-2(b).

      Ind. Code § 9-30-5-1(a).

      Ind. Code § 9-30-5-2(a).

      Petzoldt also argued "improper administration of field sobriety tests, lack of grounds to request a preliminary breath test and/or invoke implied consent, violation of Iowa Code section 804.20, not requesting a breath specimen in writing, lack of certification to operate the DataMaster, and improper questioning of [Petzoldt] prior to Miranda warning." Id. at *1. The trial court denied Petzoldt's motion to suppress on all grounds except his argument regarding the grounds for the preliminary breath test.

      As noted infra , those cases are distinguishable on the basis the officers involved testified to an approximate speed the defendant was traveling and to the speed limit in that area.

      At trial and on appeal, Marshall also argued the traffic stop violated his rights under Article 1, Section 11 of the Indiana Constitution, which also prohibits unreasonable search and seizure. The trial court's order did not address Marshall's Indiana Constitutional argument. As the Indiana Constitution provides broader protection than the Federal Constitution, State v. Moore , 796 N.E.2d 764, 767 (Ind. Ct. App. 2003) ("the Indiana Constitution may prohibit searches which the federal Constitution does not"), trans. denied , and we have concluded the traffic stop did not meet the lower protection provided by the Federal Constitution, we need not address any argument regarding the Indiana Constitution.