author: MAY, Judge.

text:
    David M. GREEN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 45A03-1210-PC-418.
    Court of Appeals of Indiana.
    Sept. 30, 2013.

      Thomas W. Vanes, Merrillville, IN, Mark A. Bates, Schererville, IN, for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, for Appellee.
   OPINION

MAY, Judge.

David M. Green appeals the denial of his petition for post-conviction relief. He argues his trial counsel was ineffective because counsel did not object to the empaneling of an anonymous jury at Green’s murder trial. We affirm.

FACTS AND PROCEDURAL HISTORY

We stated the facts underlying Green’s convictions in his direct appeal:

On November 2, 2004, Green visited his estranged wife Stacy and their two children, E.G. and R.G., at Stacy’s home in Griffith, Indiana. Stacy was thirty-nine weeks pregnant with the couple’s third child, whom she had named Nathaniel.
After the children were in bed, Green and Stacy walked into the kitchen and Stacy began to clean up the remains of the evening meal. Green decided to confess that he had been involved with another woman. At some point, Green kicked Stacy several times, lacerating her liver. He then strangled her, apparently with an aluminum broomstick, and stabbed her in the neck with a knife. Stacy sustained a two-inch wide, four-inch deep laceration to her neck, which severed her right carotid artery and fractured her cervical vertebrae. Stacy and her unborn son both died.
Green washed his arm, and washed and dried the knife and placed it into a kitchen drawer. He drove to a convenience market to buy Gatorade, and then drove to the residence of Sarah Dechene (“Dechene”), where he spent the night. The next morning, Green telephoned Stacy’s home and spoke with his five-year-old son E.G. E.G. told Green that Stacy was lying in “cherry juice next to a broom.” (Tr. 215.) Green summoned the police. When the police officers arrived, they found Stacy dead on her kitchen floor next to a bloody and broken aluminum broomstick. A kitchen window was open and the screen had been cut.
In Green’s initial conversations with police, he first omitted any discussion of an altercation and later denied that there had been an altercation. Eventually, Green reported that “something bad has happened” and that he “needed to tell” the officers about it after speaking with his father. (Tr. 458.) After speaking with his father, Green did not answer further police questions.
On November 16, 2004, Green agreed to speak with the police. He did so after receiving written assurances from the Lake County Prosecutor that the State would not seek to have the death penalty imposed upon him if he were ultimately charged with Stacy’s and Nathaniel’s murders. During the interview, Green admitted that he had been involved in an altercation with Stacy. He stated that Stacy had become angered upon learning of his affair with Dechene, and had come after him with a knife. He claimed that he put his arm around Stacy’s neck and squeezed until he felt something pop, but he didn’t know how she had been stabbed. He denied having the knife in his hand prior to picking it up to clean it.
On November 17, 2004, the State charged Green with two counts of murder. On August 9, 2006, the trial court denied Green’s motion to suppress his November 16, 2004 statement to police. On August 18, 2006, a jury found Green guilty as charged.
On September 22, 2006, the trial court sentenced Green to two consecutive terms of forty-five years imprisonment.

Green v. State, 870 N.E.2d 560, 563-65 (Ind.Ct.App.2007), trans. granted 878 N.E.2d 215 (Ind.2007), trans. order vacated 877 N.E.2d 467 (Ind.2007).

Prior to Green’s trial, the Lake County Court Criminal Division, “adopted a voir dire policy whereby the names of potential jurors would be eliminated from the jury questionnaires and names would not be used in open court or on the record.” (App at 153.) Instead, the jurors were to be referred to by number and “the names of the jurors were not provided to trial counsel and the defendant.” (PCR Ex. 2.) The policy “was adopted by all judges of the Lake Superior Court in response to jury privacy concerns in having their names used in a public forum ... [which concerns were] particularly heightened in this Internet world.” (App. at 153.) The jury for Green’s trial was empaneled in accordance with this policy. Green’s trial counsel did not object to the anonymous jury, nor was the issue raised in Green’s direct appeal.

On May 21, 2009, Green filed a petition for post-conviction relief (PCR) alleging trial counsel should have objected to the empaneling of an anonymous jury and appellate counsel should have raised the issue on direct appeal. On September 5, 2012, after a hearing, the post-conviction court denied Green’s petition. The court concluded:

10. At the time that Green’s trial took place, no Indiana case law addressed the constitutionality of an anonymous jury. However, federal precedent existed. United States v. Mansoori, 304 F.3rd [F.3d] 635, 650 (7th Cir.2002) (citing United States v. Crockett, 979 F.2d 1204, 1215 (7th Cir.1992) and United States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir.1991)), cert. denied, 505 U.S. 1220 (1992); United States v. Krout, 66 F.3rd [F.3d] 1420, 1427 (5th Cir.1995). In general the federal courts held that the use of an anonymous jury was an extreme measure only to be employed when the safety of the jurors was seriously at risk or in other unique circumstances. Id. For example, an anonymous jury might be warranted if the defendant is shown to participate in organized crime or any other group with the ability to harm jurors; if the defendant has previously tried to interfere with the judicial process generally or witnesses specifically; if the defendant is facing a potentially lengthy sentence of incarceration; or [if] the case has inspired extensive pretrial publicity that might logically culminate in the exposure of jurors’ names and the subjection to harassment or intimidation. See Krout, 66 F.3rd [F.3d] at 1427. There is no evidence that any of these factors existed in Green’s case except the potential for a lengthy sentence of incarceration.
11. The primary constitutional right at risk from the use of an anonymous jury is the right to be presumed innocent of the charges, a principal [sic] inferred from the basic rights to due process and equal protection guaranteed under the Fourteenth Amendment.
12. No trial strategy or litigation tactic guided defense counsel’s failure to object to the anonymous jury process in Green’s case. As counsel frankly put it, he simply did not know to object. He was not familiar with the body of federal cases addressing the issue and was not prepared to face the issue. The Lake County courts had never withheld jurors’ names in the past and counsel was surprised by the novel procedure just moments before the voir dire was about to begin. Furthermore, the court did not explain to the venire the reason why names were not provided to counsel. Therefore, the court did not say anything that impugned the presumption of innocence and might have inspired trial counsel to object. Finally the practice of withholding jurors’ names had apparently been in place for some months prior to Green’s trial, albeit unknown to [defense counsel]. There is no evidence that the prevailing professional norm among Lake County attorneys was to object to the court’s new procedure. Under these circumstances, we are not persuaded that counsel’s failure to object fell below prevailing professional norms of practice.
13. Even if counsel’s acquiescence to the anonymous jury procedure fell below prevailing professional norms, Green has failed to show that he was actually prejudiced thereby.
14. If this were a direct appeal, the State would bear the burden to show that the trial court’s use of an anonymous jury was not an abuse of discretion. See, e.g., Major v. State, 873 N.E.2d 1120, supra. But this is not a direct appeal. Unlike Carl Major, Green collaterally appeals his conviction. Therefore, he bears the burden to show that the use of the anonymous jury in fact prejudiced him in order to prove ineffective assistance of counsel and gain relief. Cf. Lingler v. State, 640 N.E.2d 392 (Ind.Ct.App.1994), citing Weathorford [Weatherford ] v. State, 619 N.E.2d 915, 918 (Ind.1993) (burden of proof in post-conviction proceedings rests with the defendant/petitioner).
15. Ind. Evid. Rule 606 governs the permissible limits of investigation into a juror’s service and experience. The [R]ule states, in relevant part:
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.
16. Green has obtained the names of the jurors who appeared for his trial along with their corresponding juror numbers. (Goldman disposition, [E]xh. 2). Although jurors are prohibited from certain areas of testimony under Rule 606, the fact that the jurors’ names are known provides an avenue to discover the relationships counsel might have discovered during voir dire. No evidence has been presented to show that any juror was related, biologically or emotionally, to any witness or party to the proceedings. The only evidence that an impaneled juror had knowledge of a family member of the victim is on the face of the record. Juror 280 revealed that she knew the victim’s grandmother; the relationship was explored on the record and neither party moved to strike her from the jury. All other arguments of prejudice address potential or speculative harm. There is no evidence that Green was actually prejudiced by his attorney’s failure to object to the anonymous jury.
17. We conclude that Green was not denied effective assistance of counsel.

(Id. at 113-16.)

DISCUSSION AND DECISION

Post-conviction proceedings provide defendants with the opportunity to raise issues that were not available on direct appeal or were not known at the time of the trial. State v. Hernandez, 910 N.E.2d 213, 216 (Ind.2009). Claims available on direct appeal but not presented are not available for post-conviction review. Id. Thus, not all issues are available in a post-conviction proceeding; challenges to convictions must be based on grounds enumerated in the post-conviction rules. Id.; Post Conviction Rule 1(1). A petitioner for post-conviction relief cannot avoid application of the waiver doctrine by asserting fundamental error. Id. Rather, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal. Id.

A successful claim of ineffective assistance of trial counsel must satisfy two components. First, the defendant must show deficient performance-representation that fell below an objective standard of reasonableness involving errors so serious that the defendant did not have the counsel guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002), reh’g denied. Second, the defendant must show prejudice — a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different. Id.

We need not consider whether counsel’s performance fell below the objective standard if that performance would have not changed the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Prejudice occurs when the defendant demonstrates ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). To demonstrate ineffective assistance of counsel under Strickland, the defendant must show “actual” prejudice. Conner v. State, 711 N.E.2d 1238,1254 (Ind.1999).

Green argues he was prejudiced because he was denied his right to a jury of “known individuals.” (Br. of Appellant at 14) (quoting United States v. Sanchez, 74 F.3d 562, 565 (5th Cir.1996)). He contends he was deprived of the information he needed to make peremptory challenges because he could not compare the jurors’ names to those known to him and counsel. In addition, Green argues the empaneling of an anonymous jury deprived him of his Fourteenth Amendment right to be presumed innocent because “[a]n anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected[.]” (Br. of Appellant at 15) (quoting United States v. Ross, 33 F.3d 1507, 1519 (11th Cir.1994)). Finally, Green contends prejudice can be presumed for purposes of his ineffective assistance of counsel claims because he did not receive a fair trial.

Green has not demonstrated he experienced “actual prejudice,” which is required to prevail under Strickland analysis. See Conner, 711 N.E.2d at 1254 (requiring showing of “actual prejudice”). Green received the jurors’ names as a part of discovery for his postconviction case, but he did not present evidence “that any juror was related, biologically or emotionally, to any witness or party to the proceedings.” (App. at 115.) As Green needed to demonstrate “actual” prejudice, his argument fails. See Conner, 711 N.E.2d at 1254 (requiring the showing of “actual” prejudice).

Regarding the presumption of innocence, the jury in Green’s trial was instructed multiple times at the beginning and end of trial regarding the presumption of Green’s innocence. Additionally, the evidence against Green was overwhelming. As we stated in our opinion on direct appeal:

In Green’s initial conversations with police, he first omitted any discussion of an altercation and later denied that there had been an altercation. Eventually, Green reported that “something bad has happened” and that he “needed to tell” the officers about it after speaking with his father. (Tr. 458.) After speaking with his father, Green did not answer further police questions.
On November 16, 2004, Green agreed to speak with the police. He did so after receiving written assurances from the Lake County Prosecutor that the State would not seek to have the death penalty imposed upon him if he were ultimately charged with Stacy’s and Nathaniel’s murders. During the interview, Green admitted that he had been involved in an altercation with Stacy. He stated that Stacy had become angered upon learning of his affair with Dechene, and had come after him with a knife. He claimed that he put his arm around Stacy’s neck and squeezed until he felt something pop, but he didn’t know how she had been stabbed. He denied having the knife in his hand prior to picking it up to clean it.

Green, 870 N.E.2d at 563-64. Also, the facts of the case tell us:

Green took painstaking steps to conceal Stacy’s death. He washed the knife, dried it, and placed it into a drawer. He returned to Dechene’s home and told her that he had dinner with his mother. He placed a call to Stacy’s home the next morning, ostensibly to inquire as to her whereabouts. There is evidence that a window was left open and the screen cut, yet the damp leaves on the ground beneath the window were undisturbed. From this, the jury could infer that Green attempted to create the impression that an intruder attacked Stacy.
Finally, Green had given conflicting versions of the incident soon thereafter, alternately claiming that he had no altercation with Stacy, and that Stacy, nine months pregnant, was the aggressor in an altercation from which he could not retreat.

Id. at 565.

Based on the lack of evidence regarding actual prejudice Green experienced, the multiple instructions to the jury about the presumption of Green’s innocence, and the overwhelming evidence against Green, Green has not demonstrated he received ineffective assistance of trial counsel. Accordingly, we affirm the denial of his petition for postconviction relief.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . We held oral argument in this case on August 20, 2013, in the Court of Appeals Courtroom at the Indiana Statehouse. We comment counsel on their excellent advocacy.

      . Green does not appeal the post-conviction court's decision that his appellate counsel rendered effective assistance.

      . Green asserts the Deputy Prosecuting Attorney had a list of the names of the jurors in addition to their numbers. The PCR court found:
      The Deputy Prosecuting Attorney who tried Green’s case believed that he had a jury list that included the jury’s names. However, based on our review of all of the evidence presented in these proceedings, we find that it is possible, though unlikely, that the State was given a list different than [sic] the list given to the defense.
      (App. at 109.) During oral argument, Green argued this finding was "clear error” because it was not supported by evidence in the record. Green v. State Oral Argument, 9:19-10:10 https://mycourts.in.gov/arguments/ default. aspx?&id= 1561 &view=detail&yr=& when=&page=l&court=app&search=& direction=%20ASC&future=False&sort=& judge=&county=&admin=False&page Size=20 (last accessed August 21, 2013). Regarding clear error, our Indiana Supreme Court has held:
      [A]s to factual determinations ”[w]e reverse only upon a showing of clear error that which leaves us with a definite and firm conviction that a mistake has been made.” ... ”[C]lear error” review requires the appellate court to assess whether "there is any way the trial court could have reached its decision.” In this review, we defer substantially to findings of fact but not to conclusions of law.

        State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997) (citations omitted), reh’g denied. During Green’s PCR hearing, the State presented evidence from the Deputy Prosecuting Attorney, who indicated he could not "definitively” recall if he had a list of the juror's names during trial. (Tr. at 69.) The court administrator for the Lake Superior Court, stated in a deposition he would take the juror list with juror names, and the judge would ”fold[] it over so that the names were not visible, place it on a copy machine, run copies of it and then the lawyers would receive the copies, which did not contain the [juror’s] names.” (App. at 133.) Based on that evidence, we cannot say the PCR court’s finding was clear error.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    William A. ASHER, Appellant-Respondent, v. Stephanie J. COOMLER, Appellee-Petitioner.
    No. 49A04-1302-DR-71.
    Court of Appeals of Indiana.
    Sept. 30, 2013.
    Jan Barteau Berg, Indianapolis, IN, Attorney for Appellant.
    Katherine A. Harmon, Jared S. Sunday, Mallor Grodner, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, William Asher (Father), appeals the trial court’s Order on Appellee-Petitioner’s, Stephanie Coomler (Mother), verified petition for post-secondary educational costs and Father’s verified petition for modification of decree of dissolution and marital settlement agreement.

We reverse and remand with instructions.

ISSUE

Father raises four issues, one of which we find dispositive and restate as the following: Whether Father was denied a special judge to preside over the proceedings.

FACTS AND PROCEDURAL HISTORY

On December 28, 2001, Father and Mother’s marriage was dissolved. Two children were born during the marriage: T.A. and A.A., who will turn nineteen years old in 2013 and 2015. Mother was awarded custody of both children. Both parties subsequently remarried. In the fall of 2012, T.A. commenced studies at Indiana State University (ISU).

On June 27, 2012, Mother filed her verified petition for establishment of college expenses in the Marion County Superior Court, alleging that the parties’ divorce decree had not addressed payment of the children’s college expenses and that the parties were unable to come to an agreement. On July 26, 2012, Father filed a motion for change of venue from the judge under Indiana Trial Rule 76. On August 3, 2012, Father filed his verified petition for modification of the decree, seeking modification of his obligations for child support and payment of uninsured medical expenses.

On August 6, 2012, the trial court granted Father’s petition under T.R. 76 and provided a panel of Marion County Superi- or Court judges for the parties’ selection. After the parties struck two judges, the trial court appointed the remaining judge, the Honorable S.K. Reid, as special judge. On September 14, 2013, the case was transferred to Judge Reid’s court. On October 12, 2013, the trial court issued its order to appear, signed by Magistrate Kimberly Mattingly.

On December 11, 2012, the parties appeared for a hearing on their respective motions. Magistrate Mattingly presided but Father’s counsel was “totally unaware until [she] walked in today that [the magistrate] were going to be hearing it.” (Transcript p. 7). Father’s counsel sought a continuance because a special judge had been appointed and she “believe[d] it needs to be in front of the [s]pecial [j]udge.” (Tr. p. 7). Mother’s counsel argued that Father’s counsel had not filed a request for the matter to be heard by the presiding judge, despite the fact that the matter had been pending since October 2012. In denying Father’s counsel’s request, Magistrate Mattingly explained:

[MAGISTRATE MATTINGLY]: There is a statute on the books that says when a case is filed, any party may request the elected judge. If they do not, then they get what they get. And it’s that versus yes, there’s a Trial Rule that covers the [s]pecial [j]udge procedure. Both of the elected judges in the courts to where I am assigned, believe that the correct application of that is that unless the party filed back when the case was initiated in 2001, to request the elected judge, then they no longer have the right to a choice of which judicial officer hears the case. [...]. Judge Reid either way would not hear it, she’s retiring, so she’s out. She has a few cases and things to wrap up yet this year so if I did not hear it today, we continue till at least January and then I don’t know what the elected [j]udge coming into this [e]ourt, what his policy will be. [...].
[FATHER’S COUNSEL]: [...] I believe by the [Trial Rules], if Judge Reid were retiring, or otherwise unavailable, then we would go back through the procedure as it’s prescribed by the Trial Rules.
[MAGISTRATE MATTINGLY]: No, the cases generally stay in the [e]ourt to which they’re assigned. Because we have [j]udges move throughout our system all the time and the cases stay there. If the parties agree then a case can go, I’ve seen plenty and have taken them with me too when I move from [c]ourt to [c]ourt. If the parties agreed, then the case goes with that judicial [o]fficer. But in the past, Marion County has not done that, sent that back through the [s]pecial [j]udge process. I’m not saying Marion County’s right about that. [I]f the [cjourt of [ajppeals comes and tells us we’re wrong, we’ll have to do things differently. [...].

(Tr. pp. 9-10). The parties thereafter presented evidence, but prior to the completion of the hearing, Father’s counsel requested a continuance, which the trial court granted.

On January 18, 2018, a second hearing was held, with Magistrate Mattingly presiding. However, Father did not object and the matter was concluded. On January 23, 2013, the trial court issued its Order, which was signed by both Magistrate Mattingly, recommending the Order for approval, and Marion County Superior Court Judge James Osborn, approving the Order. The Order addressed Father’s child support and post-secondary educational expense obligation. Regarding child support, the trial court concluded that Father had not shown “a 20% difference from the amount Father currently pays” and declined to modify his child support obligation. (Appellant’s App. p. 11). Regarding post-secondary educational expenses, the trial court deemed tuition, room and board, and required fees to be the parents’ responsibility and ordered Father to pay 78% of such costs and reimburse Mother for those costs she or her current husband advanced on T.A.’s behalf.

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Father argues that the trial court’s Order must be reversed because Magistrate Mattingly, rather than the special judge, Judge Reid, presided over the proceedings. Father asserts that Judge Reid was “the only judicial officer with jurisdiction to hear the case.” (Appellant’s Br. p. 9). In response, Mother argues that Judge Reid never relinquished jurisdiction and therefore a magistrate could preside over the hearings.

Trial Rule 79 provides the “exclusive manner for the selection of special judges in circuit, superior, and probate courts” when the appointment of a special judge is required under T.R. 76. Trial Rule 79 outlines various procedures for the appointment of a special judge, including the selection of the special judge from a panel. See T.R. 79(F). Once the special judge is selected, the filing of acceptance vests jurisdiction in the special judge. See T.R. 79(G).

Here, Father filed a motion for change of venue from judge under T.R. 76(B), which permits a change from the judge upon “the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney.” On August 6, 2012, the trial court submitted a panel to the parties for striking, which consisted of Judge Ayers, Judge Reid, and Judge Dreyer. On August 13, 2012, Mother struck Judge Ayers from the panel. On August 21, 2012, Father struck Judge Dreyer from the panel. That same day, the trial court appointed Judge Reid to serve as special judge. The CCS reflects that the case was transferred on September 4, 2012. The parties do not dispute that Judge Reid was the duly appointed special judge and possessed jurisdiction.

On December 11, 2012, the parties appeared for the first hearing; however, Magistrate Mattingly presided and Father objected. In overruling Father’s objection, Magistrate Mattingly explained that “[tjhere is a statute on the books that says when a case is filed any party may request the elected [jjudge.” (Tr. p. 9). We presume that the magistrate referred to Ind. Code § 33-33-49-32(c), which governs transfer of the case from the magistrate to a judge elected to the Marion County Superior Court.

We disagree that I.C. § 33-33-49-32(c) applies under these circumstances and instead conclude that Judge Reid, the special judge, or those judicial officials designated in T.R. 79(1) could preside over the hearing. Trial Rule 79(1) provides, in relevant part, as follows:

(2) In the event that a special judge assumes jurisdiction and is thereafter unavailable for any reason on the date when a hearing or trial is scheduled,;
a. the special judge may, as appropriate, appoint a judge pro tempore, temporary judge, or senior judge of the court where the case is pending, provided such judge is otherwise eligible to serve and has not previously had jurisdiction of the case removed from them pursuant to the Rules of Trial Procedure, or
b. the regular judge of the court where the case is pending may assume temporary jurisdiction, provided such judge is otherwise eligible to serve and has not previously had jurisdiction of the case removed pursuant to the Rules of Trial Procedure.

T.R. 79(I)(2) (emphasis added). Here, Judge Reid assumed jurisdiction and was unavailable for the December hearing. By the express terms of T.R. 79(I)(2)(a), only a judge pro tempore, temporary judge, a senior judge appointed by Judge Reid could preside under such circumstances. Further, T.R. 79(I)(2)(b) is inapplicable since Judge Reid was the regular judge of Civil Division 14 at the time of hearing. Because a magistrate is not -within the class of judicial officers specified in T.R. 79(I)(2), Magistrate Mattingly could not preside at the hearing.

Furthermore, T.R. 79(1) addresses situations where the special judge is unavailable and those judicial officers do not assume jurisdiction. “If the regular judge, judge pro tempore, temporary judge, or senior judge does not assume jurisdiction under this section, such hearing or trial shall be reset to a date when the special judge is available.” T.R. 79(1). Because Judge Reid was unavailable and no judicial officer named in T.R. 79(I)(2) presided in her stead, the matter had to “be reset when the special judge is available.” T.R. 79(1). This did not occur.

However, Mother argues that Father knew that Magistrate Mattingly would preside as early as October 12, 2012 and therefore waived his objection to the magistrate presiding. Because Father objected to Magistrate Mattingly presiding over the case at the first hearing, no further objections were required. See Smith v. Lake Cty., 807 N.E.2d 58, 58 (Ind.Ct.App.2004). Therefore, the Order is without legal effect. See id. Accordingly, we reverse and remand with instructions to the trial court to permit the parties to select a successor special judge in accordance with the procedures specified in T.R. 79(I)(1).

CONCLUSION

Based on the foregoing, we conclude that Father was denied a special judge to preside over the proceedings. We therefore reverse and remand with instructions to the trial court to permit the parties to select a special judge pursuant to T.R. 79(I)(1).

Reversed and remanded with instructions.

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

      . Ind Code § 33-33-49-32(c) provides as follows:
      (c) A party to a [Marion County] superior court proceeding that has been assigned to a magistrate appointed under this section may request that an elected judge of the superior court preside over the proceeding instead of the magistrate to whom the proceeding has been assigned. A request under this subsection must be in writing and must be filed with the court:
      (1) in a civil case, not later than:
      (A) ten (10) days after the pleadings are closed; or
      (B) thirty (30) days after the case is entered on the [CCS], in a case in which the defendant is not required to answer;
      Upon a timely request made under this subsection by either party, the magistrate to whom the proceeding has been assigned shall transfer the proceeding back to the superior court judge.


author: ROBB, Chief Judge.

text:
    Christina ATKINS, and Kyla Atkins, by her parent and next friend Christina Atkins, Appellant-Petitioner, v. VEOLIA WATER INDIANAPOLIS, LLC, Appellee-Respondent.
    No. 49A02-1302-CT-181.
    Court of Appeals of Indiana.
    Oct. 1, 2013.
    Stanley Kahn, Kevin E. Deville, Law Office of Stanley Kahn, Indianapolis, IN, Attorneys for Appellants.

      Matthew W. Melton, Richard L. Norris, Cynthia E. Lasher, Norris Choplin Schroeder LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Appellant Christina Atkins appeals the trial court’s denial of her motion for leave to file a belated appeal under Indiana Trial Rule 72(E). Atkins raises two issues for our review: (1) whether the trial court abused its discretion by denying Atkins’s Rule 72(E) motion and (2) if so, whether the trial court erred by granting a motion for judgment on the pleadings in favor of Veolia Water Indianapolis, LLC (“Veolia”). Concluding the trial court did not abuse its discretion by denying Atkins’s motion under Rule 72(E), we affirm.

Facts and Procedural History

Atkins filed a negligence action against Veolia in October of 2009. On July 20, 2012, Veolia filed a motion for judgment on the pleadings, arguing that Veolia did not owe a duty to Atkins when the incident occurred. On November 14, 2012, after briefing by both parties, the trial court entered an order granting Veolia’s motion for judgment on the pleadings (“the Order”), resulting in a final judgment in favor of Veolia.

Counsel for Veolia received a copy of the Order from the trial court clerk on November 16, 2012. The Order was also received by Atkins’s counsel; however, the Order was apparently misfiled, and Atkins’s counsel did not actually see the Order. The date on which Atkins’s counsel received his copy of the Order is unknown. On January 28, 2013, Atkins’s counsel went to the trial court and learned that the Order had been issued more than two months before. The trial court’s Chronological Case Summary (“CCS”) reflects that the Order was dated November 14, 2012, but it does not contain an entry noting that the clerk mailed a copy of the Order to counsel for either party.

On January 31, 2013, Atkins filed a motion seeking relief from the judgment and leave to file a belated appeal. A hearing was held on February 19, 2013, and the trial court denied Atkins’s motion. On February 27, 2013, Atkins filed a motion to correct error, which was also denied. This appeal followed.

Discussion and Decision

I. Standard of Review

We review the trial court’s ruling on a motion for relief under Indiana Trial Rule 72 for an abuse of discretion. Vaughn v. Schnitz, 673 N.E.2d 501, 502 (Ind.Ct.App.1996). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law. Id.

II. Relief under Trial Rule 72(E)

At bottom, this appeal concerns the proper interpretation and application of Indiana Trial Rule 72(E). The rule, in its totality, states:

Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling, order or judgment, or authorize the Court to relieve a party of the failure to initiate proceedings to contest such ruling, order or judgment, except as provided in this section. When service of a copy of the entry by the Clerk is not evidenced by a note made by the Clerk upon the Chronological Case Summary, the Court, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel. Such extension shall commence when the party first obtained actual knowledge and not exceed the original time limitation.

Ind. Trial Rule 72(E).

Atkins argues on appeal that the trial court abused its discretion by denying her request for relief and leave to file a belated appeal under Rule 72(E). Specifically, she contends the trial court erred because the CCS did not note service of the Order on the parties; she provided the trial court with good cause for the relief requested; and her counsel did not have actual knowledge of the Order. We believe that Atkins’s argument is founded upon an incorrect interpretation of Rule 72(E) and puts the cart before the horse, failing to first establish a lack of notice as required by the rule.

The first sentence of Rule 72(E) provides that “[l ]ack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling ... except as provided in this section.” Id. (emphasis added). Simply stated, lack of notice is a prerequisite for relief under Rule 72(E). The second portion of the rule — concerning the CCS, good cause, and lack of actual knowledge — is only relevant if the movant first establishes lack of notice or lack of actual receipt of a copy of the entry from the trial court! Here, Atkins makes no such assertion. Indeed, Atkins’s counsel readily admitted at the hearing that “we had received the notice, the notice was misplaced.” Transcript at 3.

It is undisputed that Atkins’s counsel received a copy of the Order. Receipt of a copy of an order from the trial court “constitutes notice for all purposes.” Blichert v. Brososky, 436 N.E.2d 1165, 1168 (Ind.Ct.App.1982). Because lack of notice is a prerequisite to relief under Rule 72(E) and Atkins had notice of the Order, her arguments as to the second portion of the rule are premature and ultimately irrelevant.

The plain language of Rule 72(E) necessitates the result in this case. And, although no court has previously held that lack of notice is a prerequisite for relief under Rule 72(E), statements by the Indiana Supreme Court lend support to our interpretation of the rule. In Markle v. Indiana State Teachers Ass’n, our supreme court stated that “this court amended T.R. 72(D) to its present form to provide essentially that counsel could rely on the clerk’s office to send notice and if such notice was not received, to provide an avenue through which to challenge the mailing of the notice.” 514 N.E.2d 612, 614 (Ind. 1987) (emphasis added). Moreover, in Collins v. Covenant Mutual Insurance Co., our supreme court noted that “Trial Rule 72(E) plainly states that only if the CCS does not contain evidence that a copy of the court’s entry was sent to each party may a party claiming not to have received such notice petition the trial court for an extension of time to initiate an appeal.” 644 N.E.2d 116, 117-18 (Ind.1994) (emphasis added).

Furthermore, to our knowledge, every case in which courts have granted relief under Rule 72(E) involved situations where the movant claimed lack of notice and the order was either never mailed or mailed to the wrong address. See, e.g., Maride, 514 N.E.2d at 614 (the trial court ruled on two separate motions, but the movants received a copy of only one order in the mail, and the evidence could support the conclusion that copies of both orders had not been mailed to the movants); Taylor v. State, 939 N.E.2d 1132, 1137 (Ind.Ct.App.2011) (movant claimed not to receive the order, and the CCS was “riddled with inaccuracies and contradictions” and indicated that the order had been mailed to the wrong address); In re Sale of Real Prop. with Delinquent Taxes or Special Assessments, 822 N.E.2d 1063, 1069 (Ind.Ct.App.2005) (copy of the order was not mailed), trans. denied; Gable v. Curtis, 673 N.E.2d 805, 808 (Ind.Ct.App.1996) (copy of the order was mailed to the wrong address).

Atkins relies heavily upon Driver v. State, 954 N.E.2d 972 (Ind.Ct.App.2011), trans. denied. In Driver, the trial court denied Driver’s petition for post-conviction relief on November 12, 2009. Id. at 972. Similar to the circumstances in this case, a copy of the trial court’s order was mailed to Driver’s counsel’s office but was placed in a file without actually being seen by Driver’s counsel. Id. In August 2010, Driver requested information on the status of his case, and the trial court sent Driver a copy of the judgment on September 7, 2010. Id. Driver filed a motion for relief on October 29, 2010. Id.

As Atkins points out, the court in Driver noted that “Driver gained actual knowledge of the judgment when the trial court sent him a copy on September 7, 2010.” Id. at 973. Atkins apparently believes that this statement by the court means that Driver’s attorney did not have notice of the order. As an initial matter, Atkins’s argument is misplaced, as it conflates the concepts of “notice” and “actual knowledge.” But beyond that fundamental flaw, the portions of Driver relied on by Atkins are no more than dicta. The court in Driver held that Driver was not entitled to relief because he did not file his motion within thirty days after receiving actual knowledge of the order; meaning, Driver was not entitled to relief under Rule 72(E) regardless of whether his attorney had notice. That said, to the extent that the decision in Driver could be construed as implying that Driver’s attorney did not have notice when a copy of the order was mailed to him or that Rule 72(E) could be applied irrespective of that notice, we respectfully disagree.

A copy of the Order was mailed to the office of Atkins’s counsel. It may well be true that her counsel never physically laid eyes on the Order and thus did not have actual knowledge of it. But her counsel’s mishandling of the Order does not negate the fact that notice was given. Because that notice was given, Atkins cannot now obtain relief under Rule 72(E). A contrary result would undermine the purpose of Rule 72(E). See Maride, 514 N.E.2d at 613-14.

Conclusion

We conclude that because lack of notice is a prerequisite to relief under Indiana Trial Rule 72(E) and Atkins had notice of the Order, the trial court did not abuse its discretion by denying Atkins’s request to file a belated appeal. Therefore, we affirm.

Affirmed.

RILEY, J., and KIRSCH, J„ concur.

      . We remind Atkins’s counsel that Indiana Appellate Rule 46(A)(10) requires an appellant’s brief to include a copy of the appealed order or judgment.

      . Because we conclude the trial court properly denied Atkins’s request to file a belated appeal, we do not address the second issue of whether the trial court’s judgment on the pleadings was appropriate.

      . Veolia points out that it is the trial court’s practice in Marion County to note service of an order in the CCS only when no proposed order is provided by counsel.

      . Atkins's deadline to initiate an appeal was December 14, 2012. See Ind. Appellate Rule 9(A)(1).

      . The rule at issue in Markle was Indiana Trial Rule 72(D). Indiana Trial Rule 72(E) took effect on January 1, 1991, and the language of Rule 72(E) was taken nearly verbatim from what was previously Rule 72(D). Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 118 n. 2 (Ind.1994).


text:
    Kevin SPEER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A02-1209-CR-748.
    Court of Appeals of Indiana.
    May 31, 2013.

      David T.A. Mattingly, Mattingly Legal, LLC, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Kevin Speer appeals his convictions of and sentences for Class B felony conspiracy to manufacture methamphetamine, Class B felony manufacturing methamphetamine, Class D felony possession of methamphetamine, Class A misdemeanor possession of paraphernalia, Class D felony possession of two more chemical reagents or precursors with the intent to manufacture a controlled substance, and Class D felony maintaining a common nuisance. He presents six issues for our review:

1. Whether the evidence from Speer’s traffic stop was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution;
2. Whether the evidence obtained as a result of the search warrant was seized illegally;
3. Whether the trial court abused its discretion when it denied Speer’s motion for mistrial;
4. Whether the State presented sufficient evidence Speer committed the crimes with which he was charged;
5. Whether Speer’s convictions of Class B felony manufacturing a methamphetamine and Class D felony possession of two more chemical reagents or precursors with the intent to manufacture a controlled substance subject Speer to double jeopardy because the State used the same evidence to prove Speer committed both crimes; and
6. Whether Speer’s sentence was inappropriate based on his character and the nature of the offense.

We affirm in part, and reverse and remand in part.

PACTS AND PROCEDURAL HISTORY

On September 25, 2011, Detective Chad Robinson of the Lafayette Police Department was conductiñg surveillance at the residence of David Balsar, who was suspected of' participation in drug activity. Around 10:00 p.m., a red truck with an attached trailer left the residence. Detective Robinson followed the vehicle and noticed the license plates on both the trailer and the truck were partially obscured. He initiated a traffic stop.

Speer who was driving the vehicle and Jason Ferguson was his passenger. Detective Robinson discovered the plates on the truck were registered to a different vehicle. Back-up officers arrived at the scene, and Detective Robinson told Speer he would be conducting a dog sniff investigation of the vehicle. The dog alerted for the presence of narcotics near the driver’s door.

Detective Robinson searched the cab of the truck and found a black pouch containing, syringes, methamphetamine, and digital scales; a bag of syringes; two glass smoking pipes; and a device for smoking marijuana. He also found plastic aquarium tubing, more syringes, a funnel, measuring cups,. Heet starting fluid, lithium batteries, coffee filters, and pseudoephed-rine pills. The officers on scene recognized an odor consistent with that of a methamphetamine manufacture lab. Detective Robinson filed an affidavit in support of a search warrant, which was issued, and the rest of the truck and trailer were searched. The subsequent search yielded additional items that could be used to manufacture methamphetamine.

The State charged Speer with Class B felony conspiracy to manufacture methamphetamine, Class B felony manufacturing a methamphetamine, Class D felony possession of methamphetamine, Class A misdemeanor possession of paraphernalia, Class D felony possession of two or more chemical reagents or precursors with the intent to manufacture a controlled substance, and Class D felony maintaining a common nuisance. The State also alleged Speer was an habitual substance offender. After a jury trial, Speer was convicted on all counts and found to be an habitual substance offender. The trial court sentenced Speer to an aggregate sentence of thirty-three and one-half years incarcerated.

DISCUSSION AND DECISION

1. Admission of Evidence

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

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

a. Fourth Amendment

Speer argues Detective Robinson did not have reasonable suspicion to stop his vehicle, and thus the ensuing search violated Speer’s Fourth Amendment rights. We disagree.

The Fourth Amendment to the United States Constitution provides:

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

Under the Fourth Amendment, a police officer may stop a vehicle if he has reasonable suspicion a traffic law has been violated or other criminal activity is taking place. Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009). “An officer’s decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests that lawbreaking occurred. This discretion, however, does not extend to an officer’s mistaken belief about what constitutes a violation as a matter of law.” Id. at 870.

Detective Robinson testified he stopped Speer’s vehicle because its license plate was not properly displayed. Indiana law requires:

(a) License plates shall be displayed ...
(1)For a ... trailer ... upon the rear of the vehicle ...
* * * * :'fi :|:
(3) For every other vehicle, upon the rear of the vehicle ...
* ⅜ ⅝ * ⅛ *
(b) A license plate shall be securely fastened, in a horizontal position, to the vehicle for which the plate is issued:
(1) to prevent the plate from swinging;
(2) at a height of at least twelve (12) inches from the ground, measuring from the bottom of the license plate;
(3) in a place and position that are clearly visible;
(4) maintained free from foreign materials and in a condition to be clearly legible; and
(5) not obstructed or obscured by tires, bumpers, accessories, or other opaque objects.

Ind. Code § 9-18-2-26. Detective Robinson testified he “was unable to read the, clearly read the plate that was attached to the trailer. It was partially obstructed, uh, either by a bumper or the rear light.” (Tr. at 4-5.) Detective Robinson’s testimony demonstrates he had a reasonable suspicion Speer had committed a traffic violation pursuant to Ind.Code § 9-18-2-26(b)(5). Speer’s arguments to the contrary are invitations to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh evidence or assess credibility of witnesses).

b. Article 1, Section 11

Article 1, Section 11 provides:

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

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

Under Section 11, a police officer may stop a vehicle when he has reasonable suspicion the motorist has committed a traffic violation. Mitchell v. State, 745 N.E.2d 775, 787 (Ind.2001). Detective Robinson testified the license plate on Speer’s trailer was not properly displayed pursuant to Ind.Code § 9-18-2-26(b)(5), and thus he had reasonable suspicion to stop Speer’s truck. Speer’s arguments to the contrary are invitations for us to reweigh the evidence, which we cannot do. See Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh evidence or assess credibility of witnesses).

2. Search Warrant

Speer argues the trial court abused its discretion when it admitted evidence found as a result of the search warrant because the affidavit on which the search warrant was based was defective. Speer did not object to the admission of the evidence found as a result of the search warrant. “Failure to object to the admission of evidence at trial normally results in waiver and precludes appellate review unless its admission constitutes fundamental error.” Whatley v. State, 908 N.E.2d 276, 280 (Ind.Ct.App.2009), trans. denied. “The standard for fundamental error is whether the error was so prejudicial to the rights of the defendant that a fair trial was impossible.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind.2001).

Pursuant to Ind.Code § 35-33-5-2, before a warrant can be issued, an affidavit must be filed with a judge:

(1) particularly describing:

(A) the house or place to be searched and the things to be searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:
(A) the things as are to be searched for are there concealed; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.

When determining whether a search warrant should be issued:

“[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Spillers, 847 N.E.2d 949, 952-53 (Ind.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “The duty of the reviewing court is to determine whether the magistrate had a ‘substantial basis’ for concluding that probable cause existed.” Id. (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317). “A substantial basis requires the reviewing court, with significant deference to the magistrate’s determination, to focus on whether reasonable inferences drawn from the, totality of the evidence support the determination of probable cause.” Id. (citing Houser v. State, 678 N.E.2d 95, 99 (Ind.1997)). A “reviewing court” for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. Although we review de novo the trial court’s substantial basis determination, we nonetheless afford “significant deference to the magistrate’s determination” as we focus on whether reasonable inferences drawn from the totality of the evidence support that determination. Id. (quoting Houser, 678 N.E.2d at 98-99).

Hayworth v. State, 904 N.E.2d 684, 694 (Ind.Ct.App.2009). Search warrants are presumed valid, and “where a presumption of the validity of a search warrant exists, the burden is upon the defendant to overturn that presumption.” Jones v. State, 783 N.E.2d 1132, 1136 (Ind.2003).

If a defendant establishes by a preponderance of the evidence that “a false statement knowingly and intentionally, or with a reckless disregard for the truth, was included by the affiant in the warrant affidavit, ... and; with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

Stephenson v. State, 796 N.E.2d 811, 815 (Ind.Ct.App.2003), reh’g denied, trans. denied (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).

Speer takes issue with the reason Detective Robinson indicated in his affidavit for stopping Speer. In the affidavit, Detective Robinson wrote he stopped Speer’s vehicle for “improper registration.” (App. at 38.) However, in the same affidavit, Detective Robinson indicated he also discovered, on the alert from the dog, a black case containing “a digital scale, a metal vial that had a white powdery substance inside, and a syringe.” (Id.) In addition, he found, in plain view, “some coffee filters, funnels, jars, tubing, and an ice pack[,] ... two plastic bottles with an off-white crystalline substance inside, a bottle of drain opener, and two baggies with what appear[ed] to be salt.” (Id.) Finally, Detective Robinson wrote he found “a bottle of starting fluid, several new syringes, two pipes that looked like meth pipes, and a marijuana pipe” on the driver’s side of the vehicle. (Id.) Detective Robison indicated he “recognized that these items were materials commonly used in manufacturing methamphetamine.” (Id.)

Detective Robinson testified his reference to “improper registration” was a mistake, and he stopped the vehicle because the license plates on the trailer and truck were not properly displayed, and Speer did not properly signal a turn. We need not decide if Detective Robinson knowingly misrepresented the nature of the stop, because even if that information is redacted, the judge could reasonably rely on the long list of methamphetamine manufacturing precursors found in plain view in Speer’s vehicle. See Stephenson, 796 N.E.2d at 815 (even if improper material redacted, search warrant is still valid if it demonstrates probable cause). As the search warrant was properly granted, the admission of the evidence obtained therefrom was not fundamental error.

3. Request for Mistrial

The trial court has discretion in determining whether to grant a mistrial, and its decision is afforded great deference on appeal because the trial court is in the best position to gauge the circumstances surrounding of the event and its impact on the jury. Schlomer v. State, 580 N.E.2d 950, 955 (Ind.1991). Mistrial is an extreme remedy in a criminal case, which should be granted only when nothing else can rectify the situation. Id. To prevail on appeal, an appellant must show that he was so prejudiced that he was placed in a position of grave peril to which he should not have been subjected. Id. Grave peril is measured by the probable persuasive effect on the jury of the challenged action, evidence, or misconduct. Owens v. State, 714 N.E.2d 250, 252 (Ind.Ct.App.1999).

In his brief, Speer states:

In our case [Speer] asserts he is entitled to a mistrial because the State, in front of the jury, and while questioning Jason Ferguson, a co-conspirator and witness against [Speer], referenced that Mr. Ferguson had agreed as part of a plea agreement to take a polygraph examination upon request by the State. (T.T. Vol. 1, pg. 152). After the reference was made, counsel for [Speer] moved for a mistrial based upon that reference. (T.T. Vol. 1, pg. 153). The Court denied the motion.

(Br. of Appellant at 8.) The pages of the transcript cited in Speer’s brief do not contain a motion for mistrial; instead they contain Ferguson’s testimony and an inaudible sidebar conference with the judge at Speer’ request:

[State]: And, uh, prior to this plea agreement, prior to your guilty plea, the plea agreement required that you provide what is called a clean up statement and that clean up statement would require that you tell the full truth about this case, correct?
[Ferguson]: Yes.
[State]: And it also required if we requested that you be subject to a polygraph examination?
[Ferguson]: Yes mam. [sic]
[State]: And an agreement you also have to testify truthfully?
[Ferguson]: Yes.
[State]: In any case, not only this case but in any potential case, right?
[Ferguson]: Yes.
[State]: And failing to testify truthfully or provide a full clean up statement if you were granted any probation time would be a violation of your probation, correct?
[Ferguson]: Yes mam. [sic]
[State]: Now you have not yet been sentenced on that case, we’re set for a status hearing on July 27, 2012, correct?
[Ferguson]: I believe so.
[State]: Now also you have a prior conviction for check deception out of this county and were sentenced for that as a D felony on February 15, 2006, correct?
[Ferguson]: Yes.
[State]: And you also have a check deception as an A misdemeanor out of White 'County, sentenced for that on July 5, 2006, correct?
[Ferguson]: Yes.
[State]: OK. Now going back to September 25, 2011, the day of your and the defendant’s arrest, do you recall what day of the week it was?
[Speer’s Counsel]: Judge, I’d like to approach the bench with counsel at this time please.
[Court]: You may.
AT THIS TIME A SIDEBAR WAS CONDUCTED AT THE BENCH AND IS IN [SIC] NOT FULLY AUDIBLE
DIRECT EXAMINATION CONTINUES
QUESTIONS BY [STATE’S COUNSEL]
[State]: Mr. Ferguson, you were not subjected to, were not requested by the State to take a polygraph examination, correct?
[Ferguson]: No mam. [sic]

(Tr. at 152-54.)

It is well-settled Indiana law that “the results of a polygraph examination, or the offer or refusal to take a polygraph examination, are not admissible in criminal prosecution absent a waiver or stipulation by the parties.” Houchen v. State, 632 N.E.2d 791, 794 (Ind.Ct.App.1994). Speer argues he was put in grave peril of an unfair trial when the trial court denied his motion for mistrial based on the above exchange between Ferguson and the State. In support of his argument, Speer cites our holding in Houehen, in which we held Houehen was subjected to grave peril of an unfair trial when one of the State’s witnesses mentioned Houehen had been offered and had declined two polygraph tests. Id. at 793-4. However, Houchen is distinguishable because in the instant case because Ferguson stated the State did not ask him to take a polygraph test. Therefore, we hold Speer was not placed in grave peril of an unfair trial based on Ferguson’s testimony.

4. Sufficiency of the Evidence

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

a. Conspiracy to Deal in Methamphetamine

To prove Speer committed Class B felo- , ny conspiracy to deal in methamphetamine, the State was required to prove Speer agreed with another person to knowingly or intentionally manufacture methamphetamine, and either he or the other person in the conspiracy committed an act in furtherance of that agreement. Ind.Code § 35-41-5-2; Ind.Code § 35-48-4-1.1. The State presented evidence Speer and Ferguson stopped at Menard’s to purchase Damp Rid, fish tank hose, and coffee filters, all precursors for the manufacture of methamphetamine. Then they went to Balsar’s house, where Speer helped Balsar cook a batch of methamphetamine.

Speer’s arguments implicating Ferguson as the person who purchased the precursors, or that Balsar was the only person who manufactured methamphetamine are invitations to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court does not reweigh evidence or judge the credibility of witnesses).

b. Dealing in Methamphetamine

To prove Speer committed Class B felony dealing in methamphetamine, the State was required to prove Speer knowingly or intentionally manufactured methamphetamine. Ind.Code § 35-48-4-1.1. The State presented evidence Detective Brock Russell discovered bottles in Speer’s truck- in which chemical reactions were ongoing. Detective Russell testified the chemicals discovered in these bottles; were consistent with those used as part of the “one-pot” method of methamphetamine manufacturing. Speer’s arguments to the contrary are invitations to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court does not reweigh evidence or judge the credibility of witnesses).

c. Possession Counts

To prove possession, the State must prove the defendant had actual or constructive possession of the item(s) in question. Deshazier v. State, 877 N.E.2d 200, 205 (Ind.Ct.App.2007), trans. denied. The State proved Speer had constructive possession of those items.

For the State to prove constructive possession, it must prove the defendant had the intent and capability to maintain dominion and control over the contraband. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind.1997), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind.1997). To prove intent to maintain dominion and control, there must be additional circumstances supporting the inference of intent. Id. Proximity to contraband in plain view is one such circumstance. Id. Constructive possession may also be proven by a defendant’s incriminating statements, attempted flight or furtive gestures, or the comingling of contraband with other items the defendant owns. Henderson v. State, 715 N.E.2d 833, 835-36 (Ind.1999).

Speer acknowledges he “had the capability to maintain dominion and control over the methamphetamine from the simple fact he had a possessory interest in the vehicle.” (Br. of Appellant at 25.) Further, Speer concedes the trier of fact “could also infer [Speer] had the intent to maintain dominion and control over contraband from [Speer]’s possessory interest in the premises, even when the possessory interest was not exclusive.” (Id.) When access to the premises is non-exclusive, the State must show additional circumstances that point to the defendant’s knowledge of the presence of contraband. Therefore, we look to the additional factors to support the inference of intent. Lampkins, 682 N.E.2d at 1275.

i. Class D Felony Possession of Methamphetamine

To prove Speer committed Class D felony possession of methamphetamine, the State was required to prove he knowingly or intentionally possessed methamphetamine without a prescription. Ind. Code § 35-48-4-6.1. Speer argues he did not know what was in the case found on the ground outside the passenger side of the vehicle he was driving. The case contained methamphetamine and syringes. The State presented evidence Speer and Ferguson, who claimed ownership of the black case, had been using methamphetamine that day. Pipes used for smoking methamphetamine were found under Speer’s seat, suggesting he and Ferguson had been using methamphetamine in the truck, and bottles containing methamphetamine precursors were found in the truck. The jury could have inferred Speer knew the black case contained methamphetamine. The State presented sufficient evidence to support his conviction of Class C felony possession of methamphetamine. See Floyd v. State, 791 N.E.2d 206, 211 (Ind.Ct.App.2003) (evidence sufficient to prove Floyd had constructive possession over methamphetamine when it was co-mingled with items used to ingest and manufacture methamphetamine), tram, denied.

ii. Class A Misdemeanor Possession of Paraphernalia

To prove Speer committed Class A misdemeanor possession of paraphernalia, the State was required to prove he knowingly or intentionally possessed an instrument he intended to use to introduce a controlled substance into his body. Ind. Code § 35-48-4-8.3(a). The State presented evidence pipes used to smoke methamphetamine were found under Speer’s seat in the vehicle. Ferguson testified Speer smoked methamphetamine and did not shoot it. Speer does not deny the pipes belonged to him, but he asserts the syringes were not his. Therefore, the State presented sufficient evidence to prove Speer possessed drug paraphernalia when it presented evidence he possessed the pipes found under his seat.

iii. Class D Felony Possession of Two or More Chemical Reagents or Precursors with the Intent to Manufacture a Controlled Substance

To prove Speer committed Class D felony possession of two or more chemical reagents or precursors with the intent to manufacture a controlled substance, the State was required to prove Speer possessed two or more chemical reagents with the intent to manufacture methamphetamine. Ind. Code § 35-48-4-14.5. The State presented evidence the vehicle contained bottles containing two or more methamphetamine precursors, and the police found lithium batteries, another precursor, in the truck. There was evidence Speer and Ferguson went to Menards to purchase other items used in the manufacture of methamphetamine. Finally, the State presented evidence Speer and Balsar prepared a methamphetamine-producing mixture before Speer and Ferguson left Balsar’s residence. Speer’s arguments to the contrary are invitations for us to reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court does not reweigh evidence or judge the credibility of witnesses).

5. Double Jeopardy

Article 1, Section 14 of the Indiana Constitution provides that “no person shall be put in jeopardy twice for the same offense.” Two or more offenses are the same if, “with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999). Double jeopardy may also be proven when there is a “reasonable probability that the evidentiary facts used by the fact finder to establish the essential elements of one offense may also have been used to establish the essential elements of the second offense.” Id. at 53. Under the actual evidence test, we examine the evidence presented at trial to determine whether each challenged offense was established by separate and distinct facts.

Speer argues the jury relied on the same evidence to convict him of both Class B felony manufacture of methamphetamine and Class D felony possession of two or more precursors used to manufacture methamphetamine. He relies on Iddings v. State, 772 N.E.2d 1006, 1016 (Ind.Ct.App.2002), we held:

It is impossible to knowingly or intentionally manufacture methamphetamine without first possessing the chemical precursors of methamphetamine with the intent to make the drug. Methamphetamine cannot be conjured out of thin air. The sole practical difference between these two offenses is that one may be guilty of possessing chemical precursors with intent to manufacture without actually beginning the manufacturing process, whereas the manufacturing process at the very least, have been started by a defendant in order to be found guilty of manufacturing methamphetamine.

Id. at 1016-17.

During closing arguments, the State argued, regarding Class B felony manufacture of methamphetamine:

So count two, the actual manufacturing, I have to prove that the defendant knowingly or intentionally manufactured methamphetamine pure or adulterated. And you’re going to be given an instruction on the definition of manufacturing. This is what I’m talking about, the production, preparation, propagation, dissemination, distributing it, compounding, converging or processing of a controlled substance. Either directly or indirectly by extraction from substances of natural origin independently by means of chemicals [sic] synthesis or by a combination of extraction of chemical synthesis. It’s a lot of wordy language. They were preparing it. They were compounding it. Those PowerAde bottles, that’s why those are important. They’re mixing it up and then the defendant took it out with him. And it tested positive for ammonia, one of the chemical reagents or precursors. And to do so, to have ammonia gas, you had to have in there ammonium nitrate or sulfate and lye. So there are two precursors right there.

(Tr. at 319-20.) The State argued regarding Class D felony possession of two or more precursors used to manufacture methamphetamine:

Now illegal drug lab, the defendant possessed two or more chemical reagents or precursors with the intent to manufacture a controlled substance. Again, only looking at the cab, we have the ammonium gas that comes from the combination of either ammonium sulfate or ammonium nitrate and lye, which are two precursors. So that’s enough right there. We have those which had pseudoephed-rine in it. That’s three. Again, we have more lye. More lye. Again, [lithium] batteries, that’s four. And the Heat [sic], that’s ether. There’s five. We only need two.

(Id. at 322.) Based on the State’s mention of the ammonium mixture containing two precursors for the manufacture of methamphetamine in its argument for both counts, there is a reasonable probability that jury used those pieces of evidence to establish the essential elements of both crimes, violating double jeopardy. Therefore, we vacate Speer’s conviction of and sentence for Class D felony possession of two or more precursors used to manufacture methamphetamine and remand to the trial court for revision of the Abstract of Judgment consistent with this opinion.

6. Appropriateness of Sentence

We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind.Ct.App.2008) (citing Ind. Appellate Rule 7(B)). We consider not only the ag-gravators and mitigators found by the trial court, but also any other factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1142 (Ind.2013). The appellant bears the burden of demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

The trial court sentenced Speer to seventeen years for both Class B felony conspiracy to manufacture methamphetamine and Class B felony dealing in methamphetamine, to run concurrently; the seventeen year sentence was to run consecutive to all his other sentences, which were consecutive to each other: two and one-half years for Class D felony possession of methamphetamine, one year for possession of paraphernalia, and two and one half years for Class D felony maintaining a common nuisance. The trial court then enhanced Speer’s sentence for Class B felony dealing in methamphetamine by eight years by virtue of his status as an habitual substance offender. All together, the trial court sentenced Speer to an aggregate sentence of thirty-one years.

When considering the nature of the offense, the advisory sentence is the starting point to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.2007), clarified on reh’g 878 N.E.2d 218 (Ind.2007). The advisory sentence for a Class B felony is ten years, with a range of six to twenty years. Ind.Code § 35-50-2-5. The advisory sentence for a Class D felony is one and one-half years, with a range of six months to three years. Ind.Code § 35-50-2-7. There is no advisory sentence for a Class A misdemeanor, but a sentence may not exceed one year. Ind.Code § 35-50-3-2.

All of Speer’s individual sentences were higher than the advisory sentence for each crime. One factor we consider when determining the appropriateness of a deviation from the advisory sentence is whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the “typical” offense accounted for by the legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind.Ct.App.2008), trans. denied. Speer possessed a multitude of ingredients used to make methamphetamine, was “cooking” methamphetamine in his vehicle, and possessed methamphetamine and pipes to use the drug. We cannot say his sentence is inappropriate based on the nature of his offense.

When considering the character of the offender, one relevant fact is the defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App.2007). The significance of a criminal history in assessing a defendant’s character varies based on the gravity, nature, and number of prior offenses in relation to the current offense. Id. Speer has an extensive criminal history, dating back over twenty years. It includes many substance-related crimes such as possession of marijuana, possession of paraphernalia, and multiple driving while intoxicated and public intoxication offenses. Speer has served time in prison, in work release, and probation and violated the terms of each. Therefore, we cannot say Speer’s sentence is inappropriate based on his character.

CONCLUSION

We hold the search of Speer’s vehicle did not violate his Fourth Amendment rights or his rights under Article 1, Section 11 of the Indiana Constitution. Similarly, the search warrant was properly granted because there existed probable cause to support the decision. Therefore, the trial court did not abuse its discretion when it admitted the evidence obtained from the vehicle search and incident to the search warrant.

Speer was not placed in grave peril of an unfair trial because the State did not make an impermissible reference to a polygraph examination. The State presented evidence sufficient to prove Speer committed all the crimes of which he was convicted, and Speer’s sentence was not inappropriate based on his character or the nature of the crime. However, his convictions of Class B felony dealing in methamphetamine and Class D felony possession of two or more precursors used to manufacture methamphetamine subjected him to double jeopardy because there was a reasonable probability the jury used the same evidence to decide Speer’s guilt of both crimes, and we therefore vacate his conviction of and sentence for Class D felony possession of two or more precursors used to manufacture methamphetamine, and remand to the trial court for revision of the Abstract of Judgment to reflect this holding.

Affirmed in part, reversed and remanded in part.

BAKER, J., and MATHIAS, J., concur.

      . Ind.Code § 35-48-4-1.1 (manufacturing methamphetamine); Ind.Code § 35-42-5-2 (conspiracy).

      . Ind.Code § 35-48-4-1.1.

      . Ind.Code § 35-48-4-6.1.

      . Ind.Code § 35-48-4-8.3(a).

      . Ind.Code§ 35-48-4-14.5(e).

      . Ind.Code § 35-48-4-13.

      . Speer also argues the dog sniff violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution because there was not reasonable suspicion for the traffic stop. As the traffic stop was valid, we need not address that allegation of error.

      . "Chemical reagents" are one or more of the following:
      (1) Ephedrine.
      (2) Pseudoephedrine.
      (3) Phenylpropanolamine.
      (4) The salts, isomers, and salts of isomers of a substance identified in subdivisions (1) through (3).
      (5) Anhydrous ammonia or ammonia solution (as defined in IC 22-11-20-1).
      (6) Organic solvents.
      (7) Hydrochloric acid.
      (8) Lithium metal.
      (9) Sodium metal.
      (10) Ether.
      (11) Sulfuric acid.
      (12) Red phosphorous.
      (13) Iodine.
      (14) Sodium hydroxide (lye).
      (15) Potassium dichromate.
      (16) Sodium dichromate.
      (17) Potassium permanganate.
      (18) Chromium trioxide.
      (19) Benzyl cyanide.
      (20) Phenylacetic acid and its esters or salts.
      (21) Piperidine and its salts.
      (22) Methylamine and its salts.
      (23) Isosafrole.
      (24) Safrole.
      (25) Piperonal.
      (26) Hydriodic acid.
      (27) Benzaldehyde.
      (28) Nitroethane.
      (29) Gamma-butyrolactone.
      (30) White phosphorus.
      (31) Hypophosphorous acid and its salts.
      (32) Acetic anhydride.
      (33) Benzyl chloride.
      (34) Ammonium nitrate.
      (35) Ammonium sulfate.
      (36) Hydrogen peroxide.

        (37) Thionyl chloride.
      (38) Ethyl acetate.
      (39)Pseudoephedrine hydrochloride.
      Ind.Code § 35-48-4-I4.5(a).

      . As we vacated Speer’s two and one-half years for Class D felony possession of two or more precursors required to manufacture methamphetamine, his aggregate sentence is reduced by that amount to thirty-one years.