author: Crone, Judge.

text:
    Cindy K. MARSH, Appellant-Plaintiff, v. TOWN OF DAYTON, Indiana, Appellee-Defendant
    Court of Appeals Case No. 18A-MI-50
    Court of Appeals of Indiana.
    FILED December 4, 2018 Rehearing Denied February 8, 2019
    Attorney for Appellant: James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, Indiana
    Attorneys for Appellee: Brian A. Karle, Jason Ramsland, Ball Eggleston, PC, Lafayette, Indiana
   Crone, Judge.

Case Summary

[1] Cindy K. Marsh, a resident, landowner, and taxpayer of the Town of Dayton, Indiana, filed a complaint for declaratory judgment against the Town, challenging the adequacy of its fiscal plan for a proposed annexation. The Town filed a motion to dismiss Marsh's complaint for failure to state a claim. After a hearing, the trial court granted the Town's motion. Marsh appealed. The Town contends that we must dismiss the appeal because Marsh failed to timely file a motion to compel the court reporter to file the hearing transcript with the trial court clerk. Because such a dismissal is discretionary, rather than mandatory, we disagree with the Town's contention and exercise our discretion to consider the appeal. For her part, Marsh contends that the trial court erred in granting the Town's motion to dismiss her complaint. Finding no error, we affirm the trial court.

Facts and Procedural History

[2] In June 2017, the Town approved a resolution for the adoption of a fiscal plan for the annexation of approximately fifty-five acres on which a residential subdivision is slated to be built. In July 2017, Marsh filed a complaint for declaratory judgment against the Town, asking that the resolution be voided due to the Town's alleged failure to comply with Indiana Code Section 36-4-3-13, which sets various requirements for fiscal plans. The Town filed a motion for judgment on the pleadings and a motion to dismiss. After a hearing, the trial court denied the former and granted the latter. In November 2017, Marsh filed an amended complaint. The Town filed a motion to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). After a hearing, the trial court granted the motion. Marsh now appeals. Additional facts will be provided below.

Discussion and Decision

Section 1 - Dismissal of an appeal for an appellant's failure to timely file a motion to compel the court reporter to file the transcript is discretionary, not mandatory.

[3] In her notice of appeal, Marsh asked the court reporter to prepare a transcript of the hearing on the Town's motion to dismiss pursuant to Indiana Appellate Rule 11. Appellate Rule 11(B) provides that the court reporter has forty-five days after the appellant files the notice of appeal to file the transcript with the trial court clerk. The court reporter failed to meet that deadline. Appellate Rule 11(D) provides that if the court reporter fails to file the transcript with the clerk "within the time allowed, the appellant shall seek an order from the Court on Appeal compelling the" reporter to do so. The rule further provides, "Failure of appellant to seek such an order not later than seven (7) days after the Transcript was due to have been filed with the trial court clerk shall subject the appeal to dismissal." Id . Marsh failed to meet that deadline, which fell on February 19, 2018. On February 27, the Town filed a motion to dismiss Marsh's appeal; the motion was not entered onto this Court's docket until March 5. Meanwhile, on February 28, Marsh filed a motion to compel, which this Court granted on March 6. On March 15, this Court denied the Town's motion to dismiss.

[4] The Town now asks us to reconsider that ruling, contending that Marsh's appeal "should be dismissed pursuant to the mandatory language of Appellate Rule 11(D)." Appellee's Br. at 9. It is true, as the Town observes, that "shall" has been deemed "mandatory" for purposes of statutory construction. Id. (quoting In re Bi.B. , 69 N.E.3d 464, 469 (Ind. 2017) ). But Appellate Rule 11(D) does not say that an appeal "shall be dismissed" if an appellant fails to meet the seven-day deadline; instead, it says that such a failure "shall subject the appeal to dismissal." We have deemed such language to be discretionary, rather than mandatory, with respect to the untimely filing of briefs. See Haimbaugh Landscaping, Inc. v. Jegen , 653 N.E.2d 95, 98 (Ind. Ct. App. 1995) (stating that former Appellate Rule 8.1(A)'s provision that appellant's failure to timely file brief "shall subject the appeal to summary dismissal" did "not mandate an automatic dismissal" and that "[d]ismissal for the late filing of an appellant's brief is within the discretion of this court"), trans. denied (1996). We see no reason to decide any differently in this context, and the Town has failed to argue, let alone establish, that the denial of its motion to dismiss Marsh's appeal was an abuse of this Court's discretion. Consequently, we reaffirm our ruling and exercise our discretion to consider the appeal.

Section 2 - The trial court did not err in granting the Town's motion to dismiss.

[5] We now consider Marsh's argument that the trial court erred in granting the Town's motion to dismiss her amended complaint for failure to state a claim. Such a motion "tests the legal sufficiency of a complaint, not the facts supporting it." Allen v. Clarian Health Partners, Inc. , 980 N.E.2d 306, 308 (Ind. 2012). "Thus, the motion tests whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief." Id. "In ruling on a motion to dismiss for failure to state a claim, the trial court is required to view the complaint in the light most favorable to the non-moving party with every inference in its favor." Id. We review the trial court's ruling de novo. Id. "We may affirm the grant of a motion to dismiss if it is sustainable on any theory." Watson v. Auto Advisors, Inc. , 822 N.E.2d 1017, 1023 (Ind. Ct. App. 2005), trans. denied .

[6] During an annexation proceeding, a municipality must develop and adopt a written fiscal plan that must show, among other things, "[t]he cost estimates of planned services to be furnished to the territory to be annexed" and "[t]he method or methods of financing the planned services[,]" and that "services of a capital improvement nature," including sewer facilities and water facilities, "will be provided to the annexed territory within three (3) years after the effective date of the annexation ...." Ind. Code §§ 36-4-3-3.1(b), 36-4-3-13(d)(1), -(2), -(5). "The plan must present itemized estimated costs for each municipal department or agency[,]"

"must explain how specific and detailed expenses will be funded[,] and must indicate the taxes, grants, and other funding to be used." Ind. Code § 36-4-3-13(d)(1), -(2).

[7] In her amended complaint for declaratory judgment, Marsh asserted that the Town's fiscal plan was inadequate because it

[did] not disclose the source of funding for the possible sidewalk extensions from the new subdivision to the existing sidewalks and the source of funding for the construction and extension of sewer and water main services from the new subdivision to the existing utilities within three (3) years of annexation, all as required by I.C. 36-4-3-13(d) to be included in any such Plan.

Appellant's App. Vol. 2 at 96.

[8] Leaving aside the questions of whether Marsh has standing to challenge the adequacy of the Town's fiscal plan and whether she used the proper procedural vehicle to do so, her assertions are meritless, for two reasons. First, as the Town points out, there are currently no plans (let alone legal requirements) for the construction of sidewalk extensions to the annexation area, and Marsh cites no authority for the proposition that a fiscal plan must include estimated costs and specify funding sources for purely hypothetical projects. Second, the fiscal plan clearly discloses the source of funding for the construction and extension of sewer and water main services. See Appellant's App. Vol. 2 at 19 ("The Dayton Municipal Water Utility ... provides water service in the immediately surrounding area and has the capacity and capability to serve the Annexation Area if and when connection is desired based upon the actual buildout of the area. The Developer of the Annexation Area will be responsible to pay the Water Utility's cost recovery fees of $98,910, plus $425 per lot in inspection and connection fees.... Water distribution infrastructure within the area will be constructed by the Developer.") and 20 ("The Dayton Municipal Wastewater Utility ... provides wastewater service to the immediately surrounding area and has the capacity and capability to serve the Annexation Area if and when connection is desired based upon the actual build out of the area. The Developer of the Annexation Area will be responsible to pay the Wastewater Utility's cost recovery fees of $65,940, plus $325 per lot in inspection and connection fees.... Sanitary sewer collection system infrastructure with in [sic] the area will be constructed by the Developer."). Consequently, we affirm the dismissal of Marsh's amended complaint.

[9] Affirmed.

Najam, J., and Pyle, J., concur.

      Marsh attached a copy of the fiscal plan as an exhibit to her original complaint but not to her amended complaint. The Town does not challenge the adequacy of Marsh's amended complaint on this basis or argue that the trial court's consideration of the plan converted the motion to dismiss to a motion for summary judgment. Neither party contends that we are precluded from considering the plan on appeal.

      At the hearing on the motion to dismiss, Marsh claimed to "have an affidavit from [a] builder" who "estimate[d] that this is a $200.00 [sic] to $400,000.00[,] $250,000 to $400,000 project in terms of sewer and water ...." Tr. Vol. 2 at 11. She further asserted that a bond issue would be needed to pay for the extension of sewer and water services to the subdivision. In response, the Town denied that a bond issue would be needed and stated that
      numbers like $98,910.00 or $65,940.00 are not half hazardly [sic] arrived at those are numbers that are-that are the subject of cost recovery studies and formulation so for [Marsh] to suggest that these are sort of half baked numbers they're not at all and [Marsh has] no evidence to that affect [sic].
      Id. at 16. In her reply brief, Marsh claims that the Town "quotes the terms of the Plan which require [the Town] to pay for any improvement within the subdivision and implies that they apply to the extensions from [the] Town to the subdivision." Appellant's Reply Br. at 9 (emphasis altered). Marsh cites no authority for this assertion. If the Town's cost recovery estimates ultimately prove inadequate, whether through inadvertence or intention, the Town's taxpayers may voice their displeasure at the ballot box.


source: Caselaw Access Project

author: Riley, Judge.

license: Public Domain

text:
    Kevin Michael BARBER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-308
    Court of Appeals of Indiana.
    FILED December 5, 2018
    Attorney for Appellant: Andrew Penman, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Kevin Barber (Barber), appeals from the trial court's denial of his motion to modify his sentence.

[2] We affirm.

ISSUE

[3] Barber presents one issue on appeal, which we restate as: Whether the trial court abused its discretion when it denied his motion to modify his sentence.

FACTS AND PROCEDURAL HISTORY

[4] On August 24, 2012, the State filed an Information, charging Barber with child molesting, a Class C felony; performing sexual conduct in the presence of a minor, a Class D felony; and dissemination of matter harmful to minors, a Class D felony. On December 12, 2012, Barber pleaded guilty pursuant to a plea agreement which provided for an eight-year sentence on the child molesting offense and two-year sentences for each of the Class D felonies. Both Class D felony sentences were entirely suspended to probation and were to be served concurrently to one another but consecutively to the eight-year sentence for the child molesting offense. The trial court accepted Barber's guilty plea and sentenced him according to the terms of his plea agreement.

[5] On November 22, 2015, with presentencing and good-time credit, Barber completed the executed portion of his sentence. He then began serving his parole for the child molesting offense and his probation for the Class D felonies. On October 4, 2017, Barber moved the trial court to modify his sentence. On November 8, 2017, the trial court held the first of two hearings on Barber's motion. Barber explained at the hearing that he sought to have his sentence for Class C child molesting reduced or suspended so that he could be discharged from parole, which he found to be overly restrictive on his ability to travel to attend school. The Deputy Prosecutor discussed various possibilities regarding restructuring Barber's sentence, but he stated that, "I would at this point not want to, to reduce his sentence in any way." (Appellant's App. Vol. II, p. 207). The trial court expressed doubt that it could grant Barber the relief he sought even if it were inclined to do so, as Barber had already completed the executed portion of his sentence. Barber, who was about to be discharged from his probation for the Class D felonies, agreed to extend the period of his probation to allow the trial court additional time to research the issue.

[6] On December 1, 2017, Barber filed a brief in support of his motion for sentence modification. Barber claimed that he had two years, four months, and twenty-seven days remaining on his parole for the child molesting offense. Barber argued that the terms of his sentence had placed an "unnecessary burden" on his re-entry into society. (Appellant's App. Vol. II, p. 219). On December 6, 2017, the trial court held a second hearing on Barber's motion at which the parties presented additional argument but no evidence. On January 16, 2018, the trial court summarily denied Barber's motion to modify his sentence.

[7] Barber now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] As a matter of first impression, we must determine whether the sentence modification statute authorizes a trial court to modify a sentence after the defendant has completed the executed portion of the sentence and has been discharged to parole. We review a trial court's denial of a request to modify sentence for an abuse of discretion. Gardiner v. State , 928 N.E.2d 194, 196 (Ind. 2010). However, we review questions of law such as the interpretation of the sentencing modification statute de novo . Id.

[9] "When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction." State v. Prater , 922 N.E.2d 746, 748 (Ind. Ct. App. 2010), trans. denied . "We review the statute as a whole and presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results." Id. When the language of a statute is clear and unambiguous, we give effect to its plain and ordinary meaning. Pierce v. State , 29 N.E.3d 1258, 1265 (Ind. 2015). Our goal in construing a statute is to discern the legislature's intent. Id.

[10] After entering its sentence, the trial court generally retains only the jurisdiction over a convicted person allotted to it by statute. State v. Harper , 8 N.E.3d 694, 696 (Ind. 2014). Therefore, we must examine the sentencing modification statute to discern whether it provides jurisdiction for a trial court to modify the sentence of a parolee. Indiana Code section 35-38-1-17 (2016) provides in relevant part as follows:

(e) At any time after:
(1) a convicted person begins serving the person's sentence; and
(2) the court obtains a report from the department of correction concerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing.

Neither party argues that the statute is ambiguous, and we do not find it to be so. Our examination of the express language of the statute leads us to conclude that the sentence modification statute is available only to convicted persons who are, at the time of the filing of their petition, currently executing a sentence. The best evidence for this conclusion is that the express language of the statute does not provide for such relief. Barber argues that the trial court had the authority to grant relief to a parolee because "the sentence modification statute makes no mention of parole." (Appellant's Br. p. 5). He contends that this is proof that the legislature did not intend to discriminate against parolees. However, when we interpret a statute, we will not read into the statute that which is not the expressed intent of the legislature, and it is just as important to recognize what the statute does not say as to recognize what it does say. Thompson v. State , 5 N.E.3d 383, 388 (Ind. Ct. App. 2014). Absent an express grant of authority by the legislature, we will not read into the sentence modification statute terms which would result in such a great expansion of the trial court's jurisdiction to modify sentences. See Paquette v. State , 101 N.E.3d 234, 241 (Ind. 2018) ("We may not add new words to a statute which are not the expressed intent of the legislature.") (quotation omitted).

[11] We find additional support for our conclusion in subsection (e), which provides conditions predicate to the trial court's ability to modify a sentence: the convicted person is to have begun serving his sentence, and the trial court is to have obtained a report from the department of correction. The legislature's directive that the trial court obtain a report from the department of correction concerning the defendant's conduct while imprisoned indicates that the statute is only for the benefit of those currently executing sentences. When construing a statute, "we are obliged to suppose that the General Assembly chose the language it did for a reason." Prater , 922 N.E.2d at 750. If the legislature had intended to expand the possibility of sentence modification to those who had already completed the executed portion of their sentences and had been discharged to parole, it could have directed trial courts to obtain information more pertinent to that inquiry, such as a report from the defendant's parole officer, but it did not.

[12] Subsection (f) further supports our conclusion, providing as follows:

(f) If the court sets a hearing on a petition under this section, the court must give notice to the prosecuting attorney and the prosecuting attorney must give notice to the victim (as defined in IC 35-31.5-2-348 ) of the crime for which the convicted person is serving the sentence .

(emphasis added). The addition of the phrase "is serving the sentence" in this subsection, styled in the progressive, continuous tense, implies an ongoing action, namely that of serving the sentence. Again, we assume that the legislature chose its words with intent. Prater , 922 N.E.2d at 750. Had our General Assembly intended to expand the sentence modification statute to those who had already executed their sentences, it could have used the phrase "is serving or has served the sentence", but it did not.

[13] In addition to examining the express language of the statute, when construing a statute, we also consider the practical effects of any particular statutory interpretation.

State v. Eichorst , 957 N.E.2d 1010, 1012 (Ind. Ct. App. 2011), trans. denied . Here, if we were to accept Barber's proposition that the statute authorizes the relief he seeks, it would result in convicted persons receiving the benefit of credit-time days to shorten the executed portion of their sentences which they would not have been entitled to after their sentences were reduced. For example, in this case Barber received the benefit of four years of good-time credit on his original eight-year sentence. If his sentence had been reduced to six years, he would have only been eligible for three years of good-time credit, resulting in a one-year windfall of credit-time. There is no indication that the legislature intended such a result.

[14] In addition, we agree with the State that Barber's reading of the statute would allow trial courts to interfere with the jurisdiction of our state's Parole Board, which "is not subject to the supervision or control of the Courts." White v. Ind. Parole Bd. , 713 N.E.2d 327, 328 (Ind. Ct. App. 1999). As a consequence, any right to parole release in Indiana must emanate from the parole release statutes. Id. Having resolved this appeal on jurisdictional grounds, we do not address the other issues raised by Barber on appeal, and we find no abuse of the trial court's discretion in denying his motion to modify his sentence.

CONCLUSION

[15] Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying Barber's motion to modify his already-executed sentence.

[16] Affirmed.

[17] Vaidik, C. J. and Kirsch, J. concur

      Barber challenged his sentence and guilty plea in a variety of litigation, including a motion to correct erroneous sentence. We affirmed the trial court's denial of Barber's motion to correct erroneous sentence and, by separate order, dismissed his challenge to the appropriateness of his sentence. Barber v. State , No. 53A01-1310-CR-464, Slip op. at 4, 2014 WL 2582935 (Ind. Ct. App. June 10, 2014).

      This was the version of the statute in effect at the time Barber filed his petition on October 14, 2017, which is the relevant date for determining what version of the statute applies. State v. Lamaster , 84 N.E.3d 630, 634 (Ind. Ct. App. 2017). The statute has been subsequently modified in a manner that does not affect the resolution of this appeal.


text:
    HAMILTON SOUTHEASTERN UTILITIES, INC., Appellant-Petitioner, v. INDIANA UTILITY REGULATORY COMMISSION ; Indiana Office of Utility Consumer Counselor; and Apartment Association of Indiana, Inc., Appellees-Respondents.
    Court of Appeals Case No. 93A02-1612-EX-2742
    Court of Appeals of Indiana.
    FILED December 5, 2018
    Attorneys for Appellant: Brian W. Welch, Randolph L. Seger, Michael T. Griffiths, Bingham Greenebaum Doll, LLP, Indianapolis, Indiana
    Attorneys for Appellees: Curtis T. Hill, Jr., Attorney General of Indiana, Patricia C. McMath, Deputy Attorney General, Indianapolis, Indiana, Beth E. Heline, Jeremy R. Comeau, Thomas M. Fisher, Lara K. Langeneckert, Julia C. Payne, Indiana Utility Regulatory Commission, Indianapolis, Indiana, Daniel M. Le Vay, William I. Fine, Scott C. Franson, Abby R. Gray, Daniel M. Le Vay, Indiana Office of Utility Consumer Counselor, Indianapolis, Indiana
    OPINION ON REMAND
   Riley, Judge.

[1] Appellee-Respondent, Indiana Utility Regulatory Commission (the Commission), sought transfer to our supreme court on the issue of whether this court properly dismissed it from the instant appeal. On June 27, 2018, the supreme court issued its decision holding that the Commission was a proper party, reversing our holding on the SAMCO-related expenses issue, and directing us to permit the Commission an opportunity to brief the SAMCO issue. Hamilton Southeastern Utils., Inc. v. Ind. Util. Regulatory Comm'n , 101 N.E.3d 229, 234 (Ind. 2018). On October 10, 2018, the Commission filed what was its second Appellee's Brief in this matter. After considering the Brief of Appellant-Petitioner, Hamilton Southeastern Utilities (HSE), and the Commission's second Brief of Appellee, we conclude that the Commission's Order disallowing HSE's requested 3% SAMCO hourly billing rate increase and 10% management fee was unsupported by substantial evidence, unreasonable, and arbitrary.

DISCUSSION AND DECISION

[2] As we noted in our previous decision, our review of the Commission's Order involves multiple levels. "On the first level, it requires a review of whether there is substantial evidence in light of the whole record to support the Commission's findings of basic fact. Such determinations of basic fact are reviewed under a substantial evidence standard, meaning the order will stand unless no substantial evidence supports it." North. Ind. Pub. Serv. Co. v. U.S. Steel Corp. , 907 N.E.2d 1012, 1015 (Ind. 2009) (citation and footnote omitted). When reviewing an order issued by the Commission, we neither reweigh evidence nor assess witness credibility, and we consider only the evidence favorable to the Commission's findings. Id. However, the Commission's order is not binding if it is unreasonable or arbitrary. Id.

[3] "At the second level, the order must contain specific findings on all the factual determinations material to its ultimate conclusions." Id. The Commission is required to enter findings of fact pursuant to Indiana Code sections 8-1-1-5 and 8-1-3-1. The Commission's findings of fact are important because they assist in the understanding of the Commission's reasoning and policy judgments, they allow for a reasoned and informed basis of review, and they decrease the likelihood that we will substitute our judgment on complex evidentiary issues and policy determinations best left to an agency with technical expertise. North. Ind. Pub. Serv. Co. v. LaPorte , 791 N.E.2d 271, 278 (Ind. Ct. App. 2003). Further, requiring findings of fact assists the Commission in avoiding arbitrary and capricious action. Id.

[4] HSE has contracted with SAMCO to perform its operations since HSE's inception approximately twenty-five years ago. SAMCO's billing rates were based on an affiliate contract that was routinely filed with the Commission. In HSE's last rate case in 2010, the OUCC had offered similar arguments as it did here against SAMCO's billing rates and management fee based on the NARUC guidelines. The Commission had rejected those arguments in 2010 based on HSE's market study evidence showing SAMCO's billing rates were at or below market rates and evidence of the standard industry practice of affiliates charging comparable management fees.

[5] In the present rate case, although HSE presented the same type of evidence it had in its last rate case, the Commission this time applied the NARUC guidelines as urged by the UOCC and found HSE's evidentiary support for the SAMCO expense related portion of HSE's rate increase request to be inadequate because it had not supplied information regarding SAMCO's fully allocated costs. The Commission implicitly found that the NARUC guidelines were reasonable and applicable to HSE in this rate case, but it did not enter any specific findings regarding why it had reached this conclusion, and, thus, the Commission's order on this issue was not supported by substantial evidence, was not reasonable, and was arbitrary. North. Ind. Pub. Serv. Co. , 907 N.E.2d at 1015. The Commission's lack of findings was particularly unreasonable given that the effect of the Commission's future application of the NARUC guidelines to HSE and SAMCO will apparently have the effect that SAMCO will no longer operate as an entity which can charge HSE a profit, which represents a dramatic change in its business model. In addition, the Commission's findings shed no light on why it chose to apply the portion of the NARUC guidelines pertaining to fully allocated costs when the NARUC guidelines themselves provide that "[u]nder appropriate circumstances, prices could be based on incremental cost, or other pricing mechanisms as determined by the regulator." (Non-confidential Exhs. Vol. III, p. 174).

[6] The Commission argues that the NARUC guidelines were simply "another piece of substantial evidence in the record" it considered in reaching its decision. (Appellee's Br. p. 16). However, the Commission used the NARUC guidelines as a standard for assessing the sufficiency of the evidence supporting the reasonableness of HSE's rate increase request. Although, as before, we need not address whether the Commission engaged in impermissible rule-making by applying the NARUC guidelines, we reject the Commission's characterization of those guidelines as just another type of evidence it considered. Furthermore, contrary to the Commission's argument on appeal, the fact that OUCC urged the Commission to apply the NARUC guidelines to the SAMCO-related expenses in its pre-filed testimony did not put HSE on notice that the Commission would apply those guidelines to the evidence HSE submitted in this rate action, particularly since it had rejected those guidelines in HSE's last rate case. We again reverse the Commission on the SAMCO expenses issue and remand for it to make additional findings to support its decision or for a recalculation of HSE's rate.

[7] Reversed and remanded.

[8] Robb, J. and Pyle, J. concur


author: May, Judge.

text:
    Steven AKEHURST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-214
    Court of Appeals of Indiana.
    Filed December 7, 2018
    Attorney for Appellant: William W. Gooden, Mt. Vernon, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Steven Akehurst appeals the trial court's order of restitution. He claims the court erred by ordering him to pay the victim's lost earnings arising from the day of sentencing and to pay the difference between the insurance payment and the pay-off amount for the car loan. We reverse in part, affirm in part, and remand.

Facts and Procedural History

[2] On December 19, 2016, Akehurst crashed his vehicle into Jennifer Noble's van. Akehurst got out of his vehicle, surveyed the damage, "looked [Noble] straight in the face and then got back into his vehicle and took off." (Tr. Vol. 2 at 6.) Noble was transported by ambulance to the hospital and treated for leg injuries and "whiplash kind of things." (Id. )

[3] Akehurst was apprehended later that day. On December 27, 2016, the State charged him with Class B misdemeanor leaving the scene of an accident. On November 9, 2017, the trial court held a bench trial and found Akehurst guilty. On January 2, 2018, the trial court held a sentencing hearing.

[4] At the sentencing hearing, Noble testified her medical bills had been paid. Although insurance had paid for her vehicle, it did not cover $616.28 of her vehicle loan. Noble works as a teacher and makes $18.25 per hour. Between the medical treatment and days in court, Noble had taken 2.5 days off work. This time included the half-day she took off in order to attend the sentencing hearing. Noble had lost earnings of $318.80 - $63.25 of this amount was incurred on the day of sentencing.

[5] The trial court sentenced Akehurst to six months in the Posey County Jail, suspended to probation. The trial court also ordered Akehurst to pay restitution in the sum of $935.08. This amount included the $616.28 not paid by insurance for Noble's vehicle and $318.80 for her lost wages.

Discussion and Decision

[6] "Generally, an order of restitution is within the trial court's discretion, and it will be reversed only upon a finding of an abuse of that discretion. An abuse of discretion occurs when the trial court misinterprets or misapplies the law." Green v. State , 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). A restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime. Rich v. State , 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied . "Evidence supporting a restitution order is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture." J.H. v. State , 950 N.E.2d 731, 734 (Ind. Ct. App. 2011). Traditional goals of restitution are to "impress upon a criminal defendant the magnitude of the loss he has caused and his responsibility to make good that loss as completely as possible." Kotsopoulos v. State , 654 N.E.2d 44, 46 (Ind. Ct. App. 1995), reh'g denied, trans. denied .

Lost Wages

[7] Akehurst claims the trial court "clearly misapplied the law" when it ordered him to pay Noble's lost wages for the day of the sentencing because the restitution statute specifically limits restitution for lost earnings to "before the date of sentencing[.]" Ind. Code § 35-50-5-3(a)(4). Akehurst argues the trial court should not have included Noble's lost wages incurred for the day of sentencing.

[8] When faced with a question of statutory interpretation, our review is de novo . In re M.W. , 913 N.E.2d 784, 786 (Ind. Ct. App. 2009). We first decide if the statute is ambiguous. Id. If not, we need not and do not interpret it, but instead apply its plain and clear meaning. Id. Statutes must be read in harmony with related statutes. St. Margaret Mercy Healthcare Ctrs., Inc. v. Poland, 828 N.E.2d 396, 402 (Ind. Ct. App. 2005), trans. denied. We assume the legislature intended statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals. B.K.C. v. State , 781 N.E.2d 1157, 1167 (Ind. Ct. App. 2003). "A trial court's sentencing authority is limited to the statutory parameters prescribed by the General Assembly." Roach v. State , 711 N.E.2d 1237, 1238 (Ind. 1999).

[9] We have reversed restitution orders that have included costs that would not be incurred until after sentencing or were nebulous in nature, see, e.g. Creager v. State , 737 N.E.2d 771, 781 (Ind. Ct. App. 2000) (reversed restitution order for child support that would not have accrued until after sentencing); see also Carswell v. State , 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999) (reversed restitution order requiring defendant to pay for counseling "victims may incur"). Indiana Code section 35-50-5-3(a)(4) allows the trial court to order restitution for "earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime." (Emphasis added).

[10] When construing a statute, "[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense." Ind. Code § 1-1-4-1. "Before" is defined as "in advance [or] at an earlier time." https://www.merriam-webster.com/dictionary/before (last visited Nov. 26, 2018). The plain and ordinary definition of "before" is not ambiguous. Therefore, earnings lost on or after the date of sentencing are not included in the plain and ordinary meaning of this statute, and our inquiry is limited to a determination of whether lost earnings fall within the ambit of Indiana Code section 35-50-5-3(a)(4).

[11] Here, the trial court exceeded its authority when it ordered Akehurst to make restitution for the lost wages incurred on the date of sentencing. Indiana Code section 35-50-5-3(a)(4) limits restitution to those earnings lost "before the date of sentencing[.]" Noble's lost wages for the time she took off work to attend and testify at the sentencing hearing occurred concurrent with the sentencing date and not before . Therefore, the trial court erred when it ordered Akehurst to pay Noble's lost wages for the day of sentencing. As the lost earnings for the day of sentencing were $63.25, the restitution for the lost earnings should be $255.55, rather than $318.80.

Property Damage

[12] Akehurst argues the trial court abused its discretion when it ordered him to pay the $616.28 difference between what Noble's insurance paid for her totaled car and what was still owed on the automobile loan. Without citation to any caselaw, Akehurst argues the "remaining balance on the victim's loan was not part of the replacement cost contemplated by I.C. 35-50-5-3(a)(1)." (Br. of Appellant at 6.) Akehurst contends this could lead to absurd results, such as a restitution order to cover a loan amount thousands of dollars more than insurance coverage.

[13] Indiana Code section 35-50-5-3(a)(1) allows the trial court to order restitution for property damage "incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)[.]" A payment made by an insurance company "may or may not represent the actual replacement cost of the destroyed item[.]" Baker v. State , 70 N.E.3d 388, 391 (Ind. Ct. App. 2017), trans. denied . Restitution is not "precluded by ... insurance payments." Id.

[14] Although Noble's vehicle was insured, Akehurst is not entitled to "reap the benefits of the victim's insurance policy." Id. The statute allows the trial court to order restitution for the actual cost to replace Noble's van. That actual cost "must reflect the actual loss incurred by the victim," Rich , 890 N.E.2d at 51, and come as "a direct and immediate result of the criminal acts of the defendant." Huddleston v. State , 764 N.E.2d 655, 657 (Ind. Ct. App. 2002). Here, the actual loss, as a direct result of Akehurst's actions, was the van. The remaining loan balance for that van was $616.268 more than insurance would pay for the loss of the van. Therefore, the trial court did not abuse its discretion when it ordered Akehurst to pay the difference between what Noble's insurance paid for the damage to her vehicle and what Noble owed on the loan.

Conclusion

[15] The trial court erred when it ordered Akehurst to pay restitution to Noble for lost wages incurred by Noble when she attended the sentencing hearing; however, the trial court did not abuse its discretion when it ordered Akehurst to pay the difference between the insurance payment for the car and the car loan pay-off amount. Accordingly, we reverse in part and affirm in part. In addition, we remand for the trial court to enter a corrected sentencing order to amend the restitution order for lost earnings from $318.80 to $255.55.

[16] Reversed in part, affirmed in part, and remanded.

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

      Akehurst filed a copy of the "MyCase" summary, representing such as the Chronological Case Summary required as part of the Appendix, despite the fact the summary clearly states at the top of the page: "This is not the official court record. Official records of court proceedings may only be obtained directly from the court maintaining a particular record." (App. Vol. II at 2.) While not a violation of the Indiana Rules of Appellate Procedure, we note the Chronological Case Summary is the official record of the court. See Anderson v. Horizon Homes , 644 N.E.2d 1281, 1287 (Ind. Ct. App. 1995) (Chronological Case Summary is the official record of the court), trans. denied .

      Ind. Code § 9-26-1-1.1 (2016).

      Noble testified as to how many hours per day she worked and that she had an unpaid lunch period. The parties agree as to the dollar amounts of Noble's lost earnings.

      As restitution provides a mechanism to compensate victims for the damage caused by those who commit crimes, we were surprised to find the restitution statute was written to prohibit victims from recovering wages lost for time spent attending the sentencing hearing. We invite the General Assembly to consider whether Indiana Code section 35-50-5-3 should be modified to permit victims to recover lost wages incurred "on or before" the date of sentencing.


author: Mathias, Judge.

text:
    Anthony T. MICKENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-698
    Court of Appeals of Indiana.
    Filed December 10, 2018
    Attorneys for Appellant: Valerie K. Boots, Darren Bedwell, Marion County Public Defender -, Appellate Division, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew B. MacKenzie, Deputy Attorney General, Indianapolis, Indiana
   Mathias, Judge.

[1] Following a bench trial in Marion Superior Court, Anthony T. Mickens ("Mickens") was convicted of Level 3 felony criminal confinement resulting in serious bodily injury, Level 5 battery resulting in serious bodily injury, and Class A misdemeanor theft and sentenced to an aggregate term of fifteen years of incarceration. Mickens appeals and argues that the State failed to present evidence sufficient to support his conviction for Level 3 felony criminal confinement.

[2] We affirm.

Facts and Procedural History

[3] The victim in this case, A.S., began dating Mickens in late 2016, and Mickens eventually moved in to A.S.'s apartment. A.S.'s roommate did not approve of how Mickens treated A.S. and gave her an ultimatum-either Mickens would have to leave or A.S. could move out with Mickens. A.S. chose the latter option and moved with Mickens to the home of E.S., the mother of two of Mickens's children.

[4] On February 4, 2017, one of Mickens's friends, George, came over with another man. Soon thereafter, George and the other man confronted Mickens and cornered him near a door. A.S. told the two men not to harm Mickens, and approached George, who struck A.S. in the face, causing her to fall to the ground and injure her leg. A.S. asked Mickens to take her to the hospital, but he refused. The next day, A.S.'s leg had swollen to twice its original size, so she propped it up with a pillow and lay on the couch. Mickens told A.S. that, if she wanted to go to the hospital, she would have to find someone to take her, as he did not want any emergency vehicles coming to the house.

[5] A.S. went to the hospital the following day, February 6, 2017. Tests revealed that A.S.'s leg had been broken in two separate places. When told by A.S. that the injury occurred during "events that happened at home," Tr. Vol. 2., p. 193, the treating physician informed her that the emergency room was a safe place to discuss domestic violence, but A.S. did not provide any further detail. The physician placed a cast on A.S.'s leg and prescribed Norco, a narcotic analgesic.

[6] Mickens went to the pharmacy to pick up A.S.'s prescriptions, and A.S. stayed at home with the children. When Mickens returned home, he argued with his daughter, and A.S. made dinner. When she gave Mickens a plate of food, he threw the plate at her face and called her a "bitch." Id. at 235. This cut A.S.'s mouth. Mickens took A.S.'s pain medication, refused to give it to her, and stated that he was going to sell it. When E.S. came to the house, she could tell that A.S. had been crying and told Mickens to stop being mean to A.S. This request went unheeded.

[7] At approximately 11:00 p.m. that night, Mickens attacked A.S. He struck her approximately eighteen times as he screamed at her. Mickens's daughter sent E.S. a message asking her to call the police because her father was attacking A.S. Mickens saw this and took his daughter's phone away and hid it. Mickens told A.S. to leave, but A.S. responded that she was the one watching the children. Furthermore, E.S. had told A.S. that the house belonged to her (E.S.) and that Mickens could not make A.S. leave. Mickens and his teenaged son began to throw A.S.'s belongings outside. Mickens even threw A.S.'s crutches outside and grabbed A.S. by her hair and dragged her outside down three stairs onto the front lawn. Mickens then poured a can of beer on A.S. and stomped on her already-broken leg over a dozen times. A neighbor saw A.S. and attempted to help her but did not call the police for fear of becoming Mickens's next target. Mickens dragged A.S. back inside, where he had sex with her. A.S. begged Mickens to call 911, but he refused.

[8] The following morning, A.S. crawled to the bathroom and realized that her leg was so broken that a bone was almost protruding from her skin. Mickens agreed that A.S. would have to go to the hospital but again refused to allow A.S. to call 911. When Mickens left the home later than morning, A.S. found the cell phone that Mickens had hidden from his daughter and called for an ambulance.

[9] The paramedic and EMT who arrived with the ambulance saw A.S.'s belongings still strewn on the front yard. When they reached A.S., her leg was so broken it was "floppy," and her foot was pointing in the wrong direction. Id. at 122. They also observed that a bone had almost broken through her skin. A.S. told the first responders that Mickens had stomped on her leg. The ambulance took A.S. to the hospital, where she was treated by the same physician who had seen her before. She noted that A.S.'s right ankle was "grossly deformed" and that A.S. was in "excruciating pain." Id. at 179. By this time, a splintered piece of bone had punctured through A.S.'s skin, and her ankle mortise, where the ankle bones come together, was "totally destroyed." Id. at 180. A.S. had to be anesthetized so that the physicians could perform a "joint reduction." Id. at 182-83. Following this, A.S. underwent two surgeries to repair the bones in her ankle and remained in the hospital for two weeks.

[10] On April 12, 2017, the State charged Mickens with two counts of Level 1 felony rape, one count of Level 3 criminal confinement resulting in serious bodily injury, one count of Level 5 battery resulting in serious bodily injury, two counts of Class A misdemeanor battery resulting in bodily injury, one count of Class A misdemeanor theft, one count of Class A misdemeanor interfering with the reporting of a crime, and one count of Class A misdemeanor domestic battery. A bench trial was held on January 25, 2018, and, on February 7, 2018, the trial court entered an order finding Mickens guilty as charged, save the two counts of rape. The trial court later entered an amended order finding Mickens not guilty of interfering with the reporting of a crime.

[11] At a sentencing hearing held on March 6, 2018, the court entered judgments of conviction for Level 3 felony criminal confinement, Class A misdemeanor battery resulting in bodily injury, and Class A misdemeanor theft and "merged" the remaining guilty findings, i.e., did not enter judgment of conviction on these findings. The court imposed a sentence of fifteen years on the criminal confinement conviction, and concurrent one-year sentences on the remaining two convictions. Mickens now appeals.

Standard of Review

[12] On appeal, Mickens argues that the State presented insufficient evidence to support his conviction for criminal confinement resulting in serious bodily injury. Our standard of review on claims of insufficient evidence is well settled:

When reviewing a claim that the evidence is insufficient to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we respect the exclusive province of the trier of fact to weigh any conflicting evidence. We consider only the probative evidence supporting the [judgment] and any reasonable inferences which may be drawn from this evidence. We will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Harrison v. State , 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing McHenry v. State , 820 N.E.2d 124, 126 (Ind. 2005) ).

Discussion and Decision

[13] A person who "knowingly or intentionally confines another person without the other person's consent" commits the crime of criminal confinement. Ind. Code § 35-42-3-3(a). The word "confine" is defined to mean to "substantially interfere with the liberty of a person." Ind. Code § 35-42-3-1. Criminal confinement is a Level 3 felony if "it results in serious bodily injury to a person other than the confining person." Id. at § 3(b)(2)(B). "Serious bodily injury" is defined by statute to mean "bodily injury that creates a substantial risk of death or that causes: ... (3) extreme pain; [or] (4) permanent or protracted loss or impairment of the function of a bodily member or organ[.]" Ind. Code § 35-31.5-2-292.

[14] Here, in its charging information, the State tracked this statutory language and alleged that Mickens "did knowingly or intentionally confine [A.S.] without the consent of [A.S.], said act resulting in serious bodily injury to [A.S.], to wit: extreme pain and/or unconsciousness." Appellant's Confidential App. p. 47.

[15] Mickens argues the evidence of injury to A.S. does not give rise to an inference of confinement. Mickens acknowledges that there was evidence that he committed a battery but argues that A.S.'s injuries were not the result of any confinement, writing "Mickens did not cause [A.S.]'s second set of fractures by ejecting her from the house and dragging her into the front yard, but by the battery he committed once she was there." Appellant's Br. at 16.

[16] Mickens appears to argue that there was insufficient evidence to show that he confined A.S. and that there was insufficient evidence to show that any confinement resulted in serious bodily injury to A.S. To the extent that Mickens argues that there was no evidence that he confined A.S., he is mistaken.

[17] Mickens cites McFadden v. State , 25 N.E.3d 1271 (Ind. Ct. App. 2015), in support of his argument. In that case, the victim was standing outside an apartment complex talking with a resident when the defendant's stepfather approached him and hit him in the head. Id. at 1272. The stepfather also pulled the victim's hair and struck him in the face, at which point the victim fell to the ground. Id. The defendant and another man then approached and began to push, hit, and kick the victim.

Id. The defendant also grabbed the victim's hair. Id. at 1272-73. The defendant was convicted of Class B felony criminal confinement and Class B felony battery.

[18] McFadden argued on appeal that the evidence was insufficient to support his conviction because, he claimed, there was no evidence that he forcibly removed the defendant from one place to another. At the time McFadden committed his offenses, the confinement statute provided that the offense could be committed by either confining a person against his or her will, or by "remov[ing] another person, by fraud, enticement, force, or threat of force, from one (1) place to another[.]" Ind. Code § 35-42-3-3(a)(2) (2012). The McFadden court noted that Indiana courts had held that "to prove confinement beyond the main crime charged, there must be something more than the act necessary to effectuate the crime, albeit, rape, theft, escape or battery." 25 N.E.3d at 1274 (citations omitted). The McFadden court then held:

Our review of the record reveals no independent evidence beyond McFadden's battery of [the victim]-which was established by evidence that McFadden pushed, hit, and kicked [the victim] and pulled his hair-that would support a conviction for criminal confinement. Not only is there no direct evidence of confinement, [the victim] never testified that he felt confined. And the mere fact that [the victim] was injured during the battery does not mean that he was confined.

Id. at 1275.

[19] Mickens argues that the same is true here, i.e., that the fact that there was evidence that he stomped on A.S.'s leg does not support a finding of confinement. We do not think that McFadden is controlling here.

[20] First, the criminal confinement statute has been amended to remove the "removal" subsection, and Mickens was charged with "confining" A.S. without her consent, not removing her from one place to another. The holding in McFadden is distinguishable for this reason alone. More importantly, however, here there was evidence other than the battery that Mickens confined A.S. Specifically, there was evidence that Mickens threw a plate at A.S. and told her to leave the house. She refused because she was watching the children and because E.S. had informed her that Mickens could not make her leave. Mickens responded by throwing A.S.'s belongings on the front lawn, grabbing her by the hair, and dragging her outside onto the lawn. After pouring a beer on her and stomping on her already-broken leg, Mickens then grabbed A.S. and dragged her back to the front door. From this evidence, and not merely the act of stomping on A.S.'s leg, the trial court, acting as the trier of fact, could reasonably conclude that Mickens substantially interfered with A.S.'s liberty without her consent.

[21] To the extent that Mickens argues that the evidence was insufficient to show that his confinement of A.S. resulted in serious bodily injury to A.S., we again disagree. In support of this argument, Mickens cites State v. Greene , 16 N.E.3d 416 (Ind. 2014), an appeal from the grant of post-conviction relief.

[22] In Greene , the petitioner argued that he had received ineffective assistance of counsel because his trial and appellate counsel had failed to cite what he believed to be controlling precedent that would establish that the evidence was insufficient as a matter of law to support his conviction for criminal confinement. Greene had been convicted of inter alia Class B felony criminal confinement for a prolonged incident spanning two days during which he terrorized his girlfriend and held her captive in their shared apartment. While in their bedroom, Greene strangled his victim until she lost consciousness, and when she regained consciousness, she was on a couch in their living room. After his convictions were affirmed on direct appeal, Greene successfully sought post-conviction relief, and the State appealed.

[23] On transfer to our supreme court, Greene argued that he was entitled to relief under Long v. State , 743 N.E.2d 253 (Ind. 2001). The Greene court summarized the holding in Long as follows:

Long insisted that although there was evidence that his victim [ ] suffered fractured facial bones, there was no evidence that these injuries resulted from her being forcefully removed from one place to another. Without such evidence, he reasoned, there was insufficient evidence to establish the serious bodily injury enhancement. The State countered that "the jury could have inferred that [the victim]'s injuries to her nose and eye socket were caused during her movement from one place to another" but did not identify any evidence as proof. On review, we found that "the evidence was insufficient to establish that the conduct constituting the charged offense of criminal confinement resulted in serious bodily injury."
Crucially, "the charged offense" was that (1) Long (2) knowingly or intentionally (3) removed the victim from one place to another (4) by force. Ind. Code § 35-42-3-3. At issue were elements three and four, and without identifying the circumstances under which [the victim] sustained facial fractures, the State could not establish beyond a reasonable doubt that [the victim]'s serious bodily injury occurred during her forcible removal from one place to another. This was likely attributable to the facts of the case: Long and two others confined [the victim] for possibly longer than one week in an attic, and in the course of her captivity and murder, inflicted numerous injuries upon her. Under these circumstances, the State was likely unable to isolate precisely when [the victim] sustained her fractures. Thus, the jury was unable to find that serious bodily injury resulted from her forcible removal.

16 N.E.3d at 420 (citing Long , 743 N.E.2d at 259-60, 262 ) (emphasis added in Greene ).

[24] The Greene court found Long to be factually distinguishable because the victim in Greene's trial testified that Greene strangled her until she was unconscious. Thus, "the jury could have reasonably inferred that Greene's act of force, strangulation, both facilitated his removal of [the victim] from their bedroom to their living room and resulted in serious bodily injury to her." Id. The Greene court held that, unlike in Long , the evidence here supported the State's contention that the defendant's knowing or intentional removal of the victim from one place to another by force resulted in serious bodily injury to the victim. Id. at 420-21.

[25] The Greene court further rejected Greene's claim that Long held that the State was required to prove that the victim's serious bodily injury was caused during the victim's movement from one place to another. Instead, the court held that, although there must be a "temporal link" between the inducement and the removal "so as to constitute one incident," the court did not interpret the confinement statute so narrowly as to "require the serious bodily injury to be suffered by the victim during the actual act of removal from one place to another." Id. at 421 (emphasis added). After reviewing Long and a similar case, the Greene court ultimately held that "serious bodily injury to the victim must be sustained during the charged offense of criminal confinement .... Thus, the victim must suffer serious bodily injury as the result of the act of forcible removal, whether or not the act of force occurs simultaneously with the act of removal." Id. at 423.

[26] In the present case, the evidence presented at trial shows that Mickens dragged A.S. by her hair to the front yard, thereby confining her, repeatedly stomped on her already-broken leg, and then dragged her back to the front door, again confining her. Thus, there was, in the words of the Greene court, a "temporal link" between the injury and the confinement such that they constituted one incident. Indeed, here, the order of events could be viewed as confinement, injury, and additional confinement. Thus, the injury did occur during the incident of confinement, and the evidence is sufficient to support Mickens's conviction for Level 3 felony criminal confinement resulting in serious bodily injury.

Conclusion

[27] We hold that the evidence was sufficient to support Mickens's conviction for confinement resulting in serious bodily injury. First, Mickens grabbed A.S. by the hair and dragged her onto the front lawn, where he poured beer on her and stomped on her broken leg, and eventually dragged her back to the front door. Thus, Mickens substantially interfered with A.S.'s liberty without her consent. Furthermore, the evidence showed that during this incident of confinement, Mickens seriously injured A.S.'s already-broken leg by repeatedly stomping on it. Thus, the State adequately proved that the criminal confinement resulted in serious bodily injury to A.S. We therefore affirm the judgment of the trial court.

[28] Affirmed.

Bailey, J., and Bradford, J., concur.

      A.S. testified that this incident occurred on the Saturday before the Super Bowl in 2017. We take judicial notice of the fact that Super Bowl LI took place on Sunday, February 5, 2017. See http://www.espn.com/nfl/game/_/gameId/400927752 (last visited Nov. 20, 2018).

      Joint reduction is performed "when you got a broken bone and the bone is no longer in alignment with the other portion of the bone. So generally you sedate the patient and you just pull it back into place, so that the bone is actually aligned." Id. at 183.

      Mickens does not challenge the sufficiency of the evidence to support his convictions for battery or theft.

      The fact that the State argued at trial that the confinement consisted of Mickens's act of stomping on A.S.'s leg did not limit the trial court's ability to find Mickens guilty for any reason supported by the evidence.

      As in McFadden , Greene's acts of confinement took place when the confinement statute contained the "removal" subsection.


text:
    Riley M. RANDALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1574
    Court of Appeals of Indiana.
    FILED December 11, 2018
    Attorney for Appellant: John M. Haecker, Squiller & Hamilton, LLP, Auburn, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Angela N. Sanchez, Assistant Section Chief, Criminal Appeals, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Riley M. Randall appeals his conviction following a jury trial for level three felony robbery while armed with a deadly weapon. He contends that the trial court abused its discretion in instructing the jury. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] The facts most favorable to the verdict indicate that on May 12, 2016, Randall purchased marijuana from Ron Wilkinson at Wilkinson's apartment in Garrett. Randall was short on cash, so he used a jar full of coins to purchase the marijuana. After leaving, Randall believed that Wilkinson had shorted him on the deal. Randall called Brandon Cardone, told him that Wilkinson had shorted him, and asked Cardone if he had a gun. Cardone informed Randall that he did have a gun. Cardone and another man, Zachary Burcham, who were both armed with guns, drove to meet Randall. Randall also called his friend, Jacob Johnston, and asked him to come with all three men to go to Wilkinson's apartment in order to "get a bag fixed" that "was light." Tr. Vol. 2. at 199. This meant that they were planning to go and "either get the monies [sic] worth back or get the rest of the marijuana." Id.

[3] The men all got into Cardone's car, and Randall directed them to Wilkinson's apartment. When they arrived, Johnston decided to stay in the car while the others went inside the building. The men knocked on Wilkinson's door, and Wilkinson yelled for them to come in. Cardone and Burcham entered the apartment, and Randall stood outside at the top of the stairs. Cardone and Burcham ordered Wilkinson to the ground at gunpoint and asked him where his money and drugs were. One of the men took Wilkinson's wallet. Once Wilkinson was on the ground and in a position where he would not be able to see and identify Randall, Cardone went outside and tapped on the wall to signal Randall to come in to help. Randall eventually entered the apartment and located Wilkinson's safe. Randall grabbed the safe, as well as the jar of coins he had used to purchase the marijuana, and the three men ran out of the apartment. They returned to Cardone's car and reported to Johnston what had happened. The men had also taken Wilkinson's cell phone but dropped it in the parking lot.

[4] All four men returned to the apartment where Randall had been staying and divided up the money and the drugs. Meanwhile, Wilkinson reported the crime to his apartment manager and called police. Wilkinson was later able to identify Randall from the apartment complex's surveillance video, but he did not recognize the other two men who entered his apartment.

Police were unable to locate Randall that night. The next day, Randall went to the police station and told police that he had been kidnapped and forced to rob Wilkinson. He later told Johnston that they both should claim that Cardone and Burcham forced Johnston to force Randall to get them marijuana.

[5] The State charged Randall with level 3 felony robbery while armed with a deadly weapon. Prior to trial, Randall tendered a proposed jury instruction on the statutory defense of duress, asserting that the evidence would show that he was an unwilling participant in the armed robbery. The trial court subsequently issued a written order denying the proposed instruction. Following a trial, the jury found Randall guilty as charged. The trial court imposed a nine-year sentence with two years suspended to probation. This appeal ensued.

Discussion and Decision

[6] Randall asserts that the trial court abused its discretion in rejecting his tendered jury instruction regarding the statutory defense of duress. Thus, we must first determine whether the duress defense applies in the instant case. This is an issue of statutory construction, which we review de novo. Jones v. State , 87 N.E.3d 450, 454 (Ind. 2017). "Our goal is to determine the legislature's intent, which we do by following the plain and ordinary meaning of the statute's unambiguous language." Id.

[7] We will then review whether the trial court abused its discretion. The manner of instructing a jury is left to the sound discretion of the trial court. Albores v. State , 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied . We review the trial court's decision only for an abuse of that discretion. Id. On review of a trial court's decision to refuse a proposed jury instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by the evidence, and (3) is covered in substance by other instructions that are given. Id. We consider jury instructions as a whole and in reference to each other. Evans v. State , 81 N.E.3d 634, 637 (Ind. Ct. App. 2017). We do not reverse the trial court unless the instructions as a whole misstate the law or mislead the jury. Id.

[8] Randall claimed duress as a defense to armed robbery, and tendered a jury instruction that provided as follows:

It is at issue whether the Defendant was acting under duress.
It is a defense that the Defendant was compelled to commit the acts charged by threat of imminent serious bodily injury to himself or another person. Compulsion exists only if the force, threat, or circumstances would render a reasonable person incapable of resisting pressure.
The defense does not apply to a person who recklessly, knowingly or intentionally placed himself in a situation where it was foreseeable that he would be subjected to duress.
The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under duress.

Appellant's App. Vol. 2 at 35-36. The trial court rejected this instruction, concluding that, pursuant to Indiana Code Section 35-41-3-8(b)(2), the duress defense "does not apply to armed robbery cases." Id. at 43. Indeed, the duress statute provides,

(a) It is a defense that the person who engaged in the prohibited conduct was compelled to do so by threat of imminent serious bodily injury to himself or another person. With respect to offenses other than felonies, it is a defense that the person who engaged in the prohibited conduct was compelled to do so by force or threat of force. Compulsion under this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.
(b) This section does not apply to a person who:
(1) recklessly, knowingly, or intentionally placed himself in a situation in which it was foreseeable that he would be subjected to duress; or
(2) committed an offense against the person as defined in IC 35-42.

Ind. Code § 35-41-3-8(b)(2) (emphasis added).

[9] Randall concedes that robbery is indeed "an offense against the person" as defined by Indiana Code Section 35-42-5-1. Nevertheless, he asserts that because the jury was also instructed (and likely convicted him) on a theory of accomplice liability, the duress defense should have been available. We disagree.

[10] Indiana's accomplice-liability statute provides, in part, "A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense[.]" Ind. Code § 35-41-2-4. Pursuant to this statute, an individual who aids another person in committing a crime is as guilty as the actual perpetrator. Specht v. State , 838 N.E.2d 1081, 1093 (Ind. Ct. App. 2005), trans. denied (2006). The statute does not set forth a separate crime, but merely provides a separate basis of liability for the crime that is charged. Id. at 1092. Accordingly, a person who aids another person in committing armed robbery is as guilty of armed robbery as the actual perpetrator.

[11] Contrary to Randall's assertion, the character of an offense as one "against the person" as defined in Indiana Code Section 35-42 in no way depends on whether the defendant is the principal or an accomplice, or whether another inchoate basis of liability is alleged. See, e.g. , Armand v. State , 474 N.E.2d 1002, 1005 (Ind. 1985) (holding that attempted robbery is an offense against the person to which the duress defense is expressly excluded). Relying on our supreme court's discussion of the statutory abandonment defense in Jones, 87 N.E.3d 450, Randall makes a nuanced argument that, notwithstanding the clear prohibition against the use of a duress defense by one who commits an offense against the person, the legislature intended for the duress defense to be available to one who aids, induces, or causes an offense against the person. However, the abandonment defense, and the discussion thereof in Jones , is wholly inapposite. Unlike the duress statute, the abandonment statute specifically provides that abandonment may be asserted as a defense to crimes under Indiana Code Section 35-41-2-4 (aiding, inducing, or causing an offense), Indiana Code Section 35-41-5-1 (attempt), or Indiana Code Section 35-41-5-2 (conspiracy). Ind. Code § 35-41-3-10. Indeed, the abandonment defense "applies exclusively" to those three inchoate statutory offenses. Jones , 87 N.E.3d at 455. As stated above, the duress statute specifically prohibits its application to a certain type of offense, which includes the inchoate versions of that type of offense. Armand, 474 N.E.2d at 1005.

[12] Simply stated, the offense is the offense, and the legislature has plainly provided that the duress defense is unavailable to a person, such as Randall, who is alleged to have committed an offense against the person, regardless of the basis of liability. Therefore, duress was not available as a defense to Randall's charge of armed robbery. The trial court did not abuse its discretion in rejecting his tendered duress instruction.

[13] Randall very briefly argues that the trial court abused its discretion in failing to simply give his tendered instruction but limit its application to the lesser-included offense of theft because, unlike robbery, theft is not an offense against the person as defined in Indiana Code Section 35-42. However, there is nothing in the record to indicate that Randall requested that the trial court give his duress instruction coupled with a limiting instruction, nor did he tender an instruction limiting the application of the defense. "[I]t has long been established that a party cannot complain of incomplete or omitted instructions when he, himself, has not tendered any instruction on that issue." Brittain v. State , 565 N.E.2d 757, 760 (Ind. Ct. App. 1990) (quoting Law v. State , 273 Ind. 624, 626-27, 406 N.E.2d 1185, 1186 (1980) ). Randall's failure to tender a limiting instruction results in waiver of the issue on appeal. See id.

[14] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

      Although Randall's counsel mentioned during a pretrial hearing the potential of still pursuing the duress defense in the event the evidence presented at trial supported a jury instruction on the lesser-included offense of theft, it does not appear that he renewed such a request at the close of the evidence or tendered a limiting instruction.


author: WENTWORTH, J.

text:
    WIGWAM HOLDINGS LLC, Petitioner, v. MADISON COUNTY ASSESSOR, Respondent.
    Cause No. 18T-TA-00015
    Tax Court of Indiana.
    FILED December 14, 2018
    ATTORNEYS FOR PETITIONER: MATTHEW S. CARR, JACOB V. BRADLEY, COURTNEY S. FIGG, QUARLES & BRADY LLP, Indianapolis, IN
    ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR., ATTORNEY GENERAL OF INDIANA, ZACHARY D. PRICE, KELLY S. THOMPSON, DEPUTY ATTORNEYS GENERAL, Indianapolis, IN
    ORDER ON PETITIONER'S PETITION TO ENJOIN THE COLLECTION OF TAX
   WENTWORTH, J.

Wigwam Holdings LLC has appealed the Indiana Board of Tax Review's final determination that upheld the assessment of its real property for the 2015 tax year. Pending its appeal, Holdings seeks to enjoin the collection of property taxes. The Court finds that Holdings is not entitled to an injunction.

FACTS AND PROCEDURAL HISTORY

During the 2015 tax year, Holdings owned four parcels consisting of approximately 18 acres of land in Anderson, Indiana. (See Cert. Admin. R. at 189, 273-301.) On September 2, 2014, Holdings acquired these parcels by Quitclaim Deed from the City of Anderson Department of Redevelopment, which had contemporaneously acquired them that day by Quitclaim Deed from the Anderson Community School Corporation (referred to together as the "Quitclaim Deeds"). (See Cert. Admin. R. at 278-92.) The only parcel at issue in this matter contained a 220,000 square foot building with, among other things, a natatorium, maintenance shops, an auditorium, band and choral rooms, offices, a cafeteria/kitchen, a two-story classroom, and an 8,996 seat basketball facility situated on the 8.56 acre parcel (the "Wigwam"). (See Cert. Admin. R. at 189, 218-20, 473-76.) The property was unoccupied on the March 1, 2015, assessment date. (See Cert. Admin. R. at 462, 484, 551.)

For the year at issue, the Madison County Assessor assigned the property an assessed value of $11,415,000 ($428,000 for land and $10,987,000 for improvements). On December 12, 2015, Holdings appealed the assessment to the Madison County Property Tax Assessment Board of Appeals (PTABOA). On September 19, 2016, after a hearing, the PTABOA reduced the assessment to $2,115,200 ($423,700 for land and $1,691,500 for improvements). Believing the assessment was still too high, Holdings sought review with the Indiana Board on November 3, 2016.

On April 18, 2017, the Indiana Board conducted a hearing on the matter, during which Holdings claimed its assessment should be reduced to $68,500 ($68,500 for land and $0 for improvements). (See Cert. Admin. R. at 460.) To support its claim, Holdings presented, among other things, an appraisal completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP); the testimony of one of the appraisal's preparers, Mr. Jay Allardt (an Indiana certified general appraiser and SRA designated member of the Appraisal Institute); and the documentation associated with its acquisition of the property. (See, e.g., Cert. Admin. R. at 187-267, 273-92, 471-72.)

Allardt's appraisal had been prepared prior to the 2015 assessment date at the request of the Anderson Department of Redevelopment for use "in considering a possible acquisition of the [ ] property." (Cert. Admin. R. at 188.) In substance, the appraisal provided that the Wigwam's highest and best use was as vacant land because its building contained asbestos, was not ADA compliant, lacked air conditioning and a sprinkler system, and was generally in poor condition. (See Cert. Admin. R. at 243-47, 477-80.) Allardt subtracted his estimated land value of $68,500 from his estimate of the building's demolition and remediation costs of $559,000 to conclude that the Wigwam's market value was negative $490,500 as of May 30, 2014. (See Cert. Admin. R. at 193, 248-50, 494-98.)

Holdings also maintained the "building wasn't worth anything" because it was acquired for $0 on September 2, 2014. (See Cert. Admin. R. at 505, 623-24.) The Quitclaim Deeds required the gymnasium to "be repaired, restored, and maintained in a first class manner" by December 31, 2018, and simultaneously, Holdings and the Anderson Community School Corporation entered into an Escrow Agreement that required the School Corporation to deposit $630,000 in an escrow account for Holdings to use to restore the property. (See Cert. Admin. R. at 273-92, 396-97, 400, 533-35, 605-16.) The Quitclaim Deeds further provided that upon completion of the restoration, the Anderson Community School Corporation would receive the "irrevocable right" to use the Wigwam gymnasium for up to 12 days each year for a period of 10 years with an option to extend another 5 years. (See Cert. Admin. R. at 278-79.) If Holdings did not fulfill its obligations by December 31, 2018, however, the escrow funds were to be returned to the Anderson Community School Corporation. (See Cert. Admin. R. at 274.)

Finally, Allardt testified that the Assessor incorrectly determined the assessed value. Allardt claimed it was incorrect because it classified the property under the wrong use type (i.e., utility/storage) and failed to account for abnormal obsolescence in its cost approach, an omission that negatively impacted the value of the property. (See Cert. Admin. R. at 508-10, 761-66, 777-78.)

In response, the Assessor asserted that Holdings' evidence lacked probative value because it did not establish the property's actual market value-in-use. (See Cert. Admin. R. at 377.) As support, the Assessor offered a variety of property tax assessment materials, Indiana case law, and the testimony of an expert witness, Mr. Anthony Garrison, an Indiana certified Level III Assessor-Appraiser. (See, e.g., 376-85, 680.) Garrison testified that there were "issues" with Allardt's appraisal because it estimated the Wigwam's market value, not its market value-in-use, even though the two standards are not necessarily equivalent. (See Cert. Admin. R. at 701-04, 710-18.) Indeed, Garrison explained that Allardt's appraisal was inconsistent with the market value-in-use standard because it was based on a hypothetical use of the property as vacant land rather than its current use as improved land. (See Cert. Admin. R. at 704-06, 709-18, 731.) Moreover, Garrison testified that Allardt's appraisal failed to account for the requirement in the Quitclaim Deeds and associated Escrow Agreement that Holdings restore the Wigwam's gymnasium. (See Cert. Admin. R. at 709, 717-18, 723-25.) Finally, Garrison stated that the September 2014 sale was not a market transaction because the seller was atypically motivated by its desire to restore the iconic Wigwam for the community's future use, as implied by the restrictions in the Quitclaim Deeds and the Escrow Agreement. (Cert. Admin. R. at 706-09.) (See also Cert. Admin. R. at 273-92.)

On March 29, 2018, the Indiana Board issued its final determination upholding the assessment. (Cert. Admin. R. at 407-22.) In so doing, the Indiana Board explained that it had weighed the evidence and determined that Holdings did not make a prima facie case for reducing its assessment because Allardt's appraisal did not credibly value the Wigwam and the September 2014 sale was not a probative, market transaction. (See Cert. Admin. R. at 418-21 ¶¶ 43-52.) The Indiana Board also determined that Holdings' use type and abnormal obsolescence claims were unpersuasive because they were not evidence of value, but merely attacked the assessment methodology. (See Cert. Admin. R. at 421 ¶ 50.)

On May 11, 2018, Holdings initiated an original tax appeal and filed a Petition to Enjoin the Collection of Tax pursuant to Indiana Code § 33-26-6-2. On October 5, 2018, Holdings filed an emergency motion to remove the property at issue from a tax sale, which the Court granted on October 10, 2018. Then, on November 27, 2018, after the Certified Administrative Record was filed and the parties submitted their briefs, the Court conducted a hearing on Holdings' Petition to Enjoin. Additional facts will be supplied when necessary.

LAW AND ANALYSIS

When, as here, a taxpayer appeals the assessment of its real property to the Tax Court, it must "pay taxes on the tangible property when the property tax installments come due, unless the collection of the taxes is enjoined under [ Indiana Code § 33-26-6-2 ] pending" the resolution of the appeal. IND. CODE § 6-1.1-15-10(a) (2018). To enjoin the collection of the tax, Holdings must show the Court that (1) it has a reasonable opportunity to prevail in the appeal; (2) the issues raised by its appeal are substantial; and (3) the equitable considerations favoring the enjoining of the collection of the tax outweigh the state's interest in collecting the tax pending the appeal. See IND. CODE 33-26-6-2(c) (2018). All three factors must exist for the Court to enjoin the collection of tax. I.C. § 33-26-6-2(c).

Reasonable Opportunity to Prevail

A reasonable opportunity to prevail is a tolerable, moderate, rational, honest, or equitable chance of success on the merits of the appeal. See Video Tape Exch. Coop of Am., Inc. v. Indiana Dep't of State Revenue, 512 N.E.2d 476, 477 (Ind. Tax Ct. 1986). Thus, when a party seeks to enjoin the collection of property taxes, it must demonstrate that it has a reasonable opportunity to prevail by showing that the Indiana Board's final determination may be reversed by the Tax Court because it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of or short of statutory jurisdiction, authority, or limitations; without observance of the procedure required by law; or unsupported by substantial evidence. See IND. CODE § 33-26-6-6(e)(1)-(5) (2018). To that end, Holdings claims that it has a "reasonable likelihood of success on the merits" because the Indiana Board's final determination regarding the credibility of Allardt's appraisal, the probative value of the September 2014 sale, and its abnormal obsolescence claim are arbitrary, capricious, an abuse of discretion, in excess of the Indiana Board's statutory authority, in violation of the procedure required by law, and unsupported by substantial evidence. (See Pet'r Br. Supp. Pet. Enjoin Collection Tax ("Pet'r Br.") at 5, 7-18; Pet'r Pet. Original Tax Appeal Final Determination Ind. Bd. Tax Review ("Pet'r Pet.") ¶¶ 42-72.)

A. Allardt's Appraisal

Holdings claims it is likely to prevail on the merits because it made a prima facie case for reducing its assessment by introducing into evidence a USPAP-compliant appraisal and the testimony of its expert witness, Allardt, who both prepared and explained the appraisal in detail. (See Pet'r Br. at 10-11; Hr'g Tr. at 8-10.) Holdings states that because it established a prima facie case, the evidentiary burden shifted, triggering the Assessor's duty to introduce his own market-based evidence in rebuttal. (See Pet'r Br. at 11.) Holdings claims that the Assessor, however, did not meet this evidentiary burden because he simply "relied upon [his] cross-examination of [Holdings'] witnesses, which [cross-examination] was largely conclusory and focused on irrelevant hypotheticals." (Pet'r Br. at 14.) Consequently, Holdings contends that it is likely to prevail because the Indiana Board ignored its uncontroverted evidence, "attacked" Allardt's appraisal itself, and made the Assessor's case for him. (See Pet'r Br. at 10-16; Hr'g Tr. at 25-26.)

Holdings cites several cases as authority for the proposition that a taxpayer makes a prima facie case for reducing an assessment by presenting an appraisal completed in conformance with USPAP. (See Pet'r Br. at 10-11 (citing Marion Cty. Assessor v. Washington Square Mall, LLC, 46 N.E.3d 1, 7-8 (Ind. Tax Ct. 2015) ; French Lick Twp. Tr. Assessor v. Kimball Int'l, Inc., 865 N.E.2d 732, 739 (Ind. Tax Ct. 2007) ; Hometowne Assocs., L.P. v. Maley, 839 N.E.2d 269, 277 (Ind. Tax Ct. 2005) ; Meridian Towers E. & W. v. Washington Twp. Assessor, 805 N.E.2d 475, 479 (Ind. Tax Ct. 2003) ; Canal Square Ltd. P'ship v. State Bd. of Tax Comm'rs, 694 N.E.2d 801, 807 (Ind. Tax Ct. 1998) ).) Nonetheless, neither specific language in, nor trends from, those cited cases indicate that there is a per se rule that a USPAP-compliant appraisal automatically establishes a prima facie case for reducing an assessment. This is consistent with the Indiana Board's statutory duty, as the finder of fact, to "review the probative value of an appraisal report." See IND. CODE § 6-1.1-15-4(p) (2018). See also Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 498-99 (Ind. Tax Ct. 2010) (stating the Indiana Board is responsible for weighing the evidence and judging the credibility of the witnesses who testify at the administrative hearing). Consequently, the resolution of this appeal depends on whether the Assessor presented the Indiana Board with evidence that placed the credibility of Allardt's appraisal, and therefore its probative value, at issue.

The Assessor presented evidence in the form of testimony by Garrison, a certified expert on real property assessment in Indiana. (See Cert. Admin. R. at 680.) Garrison identified wide-ranging disparities between Allardt's appraisal and his testimony when compared to the valuation standards and assumptions underlying Indiana's assessment guidelines. (See Cert. Admin. R. at 680-756.) For example, Garrison testified that he considered the property at issue, "a 9,000 seat arena attached to a school[,]" to be a special purpose property. (See Cert. Admin. R. at 705-06, 710-13.) (See also Hr'g Tr. at 45 (indicating that Holdings also agrees that the Wigwam is a special purpose property).) He explained that Indiana's assessment guidelines define a special purpose property as a type of limited market property that has a "unique physical design, special construction materials, or a layout that restricts its utility to the use for which it was built." (Cert. Admin. R. at 710-11.) Garrison further explained that the guidelines require that a special purpose property's market value-in-use to be determined using the cost approach. (See Cert. Admin. R. at 712.) Moreover, he asserted that the market value-in-use of a special purpose property would not be determined by examining its highest and best use, which is a market value measure. (See Cert. Admin. R. at 700-06.) (See, also e.g., Cert. Admin. R. at 379 (citing Millennium Real Estate Inv., LLC v. Assessor, Benton Cty., 979 N.E.2d 192, 196 (Ind. Tax Ct. 2012) (explaining that when a property's current use is inconsistent with its highest and best use, the property's market value-in-use will not equal its market value because the sales price will not reflect the property's utility), review denied ).)

Here, the certified administrative record reveals that the parties presented conflicting evidence during the Indiana Board hearing calling into question the credibility of Holdings' evidence. The Indiana Board exercised its discretion and weighed the evidence. Absent an abuse of discretion, the Court cannot reweigh that evidence. See Trimas Fasteners, 923 N.E.2d at 498. Accordingly, the Court finds that Holdings does not have a reasonable opportunity to prevail on this issue in its appeal.

B. September 2014 Sale

Next, Holdings claims that it has a better than negligible chance of succeeding on the merits because it presented probative evidence establishing that in September 2014, the Wigwam sold in a market transaction for a negative $630,000. (See Hr'g Tr. at 30-31.) Holdings claims this evidence is sufficient to establish the market value of the property thus making its prima facie case for reducing the assessment. (See Hr'g Tr. at 30-34.)

During the 2015 tax year, Indiana defined "market value" for purposes of its property tax system as:

The most probable price, as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms, for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress.

2011 REAL PROPERTY ASSESSMENT MANUAL (incorporated by reference at 50 IND. ADMIN. CODE 2.4-1-2 (2011) ) at 5-6. This definition specifies that conditions required for a fair sale, include the buyer and seller being typically motivated, without duress, compulsion, or pressure to act. See id. Accord 2002 REAL PROPERTY ASSESSMENT MANUAL (2004 Reprint) (incorporated by reference at 50 IND. ADMIN. CODE 2.3-1-2 (2002 Supp.) (repealed 2010) ) at 10 (defining "market value"); Marion Cty. Assessor v. Simon DeBartolo Group, LP, 52 N.E.3d 65, 70-71 (Ind. Tax Ct. 2016) (construing Indiana's definition of market value).

Evidence in the certified administrative record called into question whether the September 2014 sale actually reflected the property's market value. Allardt testified that the seller was typically motivated, even though the buyer paid zero dollars and received access to $630,000 in return for the property transfer. (See Cert. Admin. R. at 534-35.) Garrison, on the other hand, testified that those same facts, together with the restrictions in the Quitclaim Deeds and Escrow Agreement and the seller's status as an exempt governmental entity, actually indicate that the seller was not typically motivated. (See Cert. Admin. R. at 707-09.) Once again, the Indiana Board weighed the evidence to determine its probative value. (See Cert. Admin. R. at 420-21 ¶¶ 47-49.) Holdings has not identified anything in the certified administrative record that indicates the Indiana Board abused its discretion by weighing the credibility of the competing evidence and concluding that the sale price was not probative of the Wigwam's market value. Therefore, the Court finds that Holdings does not have a reasonable opportunity to prevail in its appeal based on this issue. See Trimas Fasteners, 923 N.E.2d at 498 (providing that the Court may not reweigh the evidence absent an abuse of discretion).

C. Abnormal Obsolescence

Finally, Holdings claims it has a reasonable likelihood of success on the merits because the Indiana Board erred by rejecting its abnormal obsolescence claim.

(See Pet'r Br. at 16-18.) Holdings explains that it "presented uncontroverted evidence of the Wigwam's significant functional and economic obsolescence[,]" which the Assessor failed to take into account. (See Pet'r Br. at 17-18.) Accordingly, Holdings contends that the Indiana Board's failure to reduce the assessment based on its abnormal obsolescence claim constitutes an abuse of discretion because it is against the logic and effect of the facts and circumstances before it. (See Pet'r Br. at 17.)

It is well established that when a taxpayer claims its property assessment is too high, it has the burden to prove its claim with market-based evidence. See, e.g., McKeeman v. Steuben Cty. Assessor, 10 N.E.3d 612, 614 (Ind. Tax Ct. 2014). Merely challenging the Assessor's methodology will not suffice. See, e.g., Gillette v. Brown Cty. Assessor, 54 N.E.3d 454, 456 (Ind. Tax Ct. 2016). Moreover, a taxpayer must support its claim that abnormal obsolescence has diminished the value of its property with probative evidence that 1) identifies the causes of the alleged obsolescence and 2) quantifies the amount of obsolescence to be applied to its improvements. See, e.g., Idris v. Marion Cty. Assessor, 12 N.E.3d 331, 334 (Ind. Tax Ct. 2014) ; Hometowne Assocs., 839 N.E.2d at 273-74 ; Canal Square, 694 N.E.2d at 806-07. Although Allardt's testimony identified several causes of alleged obsolescence that may have diminished the value of the Wigwam, Holdings did not provide evidence to quantify their negative effect on the value of its property. (See, e.g., Cert. Admin. R. at 760-69.) Accordingly, the Court finds that Holdings does not have a reasonable opportunity to prevail in its appeal on this issue as well.

Holdings has failed to establish any grounds that persuade the Court that it has a reasonable opportunity to prevail in its appeal. Consequently, the Court need not address the remaining two factors.

CONCLUSION

For the foregoing reasons, Holdings has not demonstrated that the collection of property taxes should be enjoined pending the resolution of its appeal. Consequently, the Court DENIES Holdings' Petition to Enjoin the Collection of Tax. The Court will issue orders regarding the briefing of the merits and the stay of the tax sale under separate cover.

SO ORDERED this 14th day of December 2018.

      The PTABOA apparently reclassified the property's use type as utility/storage and reassessed the entire building based on that use type under Indiana's assessment guidelines. (See Cert. Admin. R. at 298-301, 682-84.) (See also Cert. Admin. R. at 729 (indicating that applying the utility/storage use type to an unoccupied commercial property typically results in the lowest possible assessment).)

      Abnormal obsolescence is a "loss in value from obsolescence beyond normal depreciation[.]" Real Property Assessment Guidelines FOR 2011 (incorporated by reference at 50 Ind. Admin. Code 2.4-1-2(c) (2011) ), Bk. 2, App. F at 4. In turn, obsolescence is "[a] diminishing of a property's desirability and usefulness brought about by either functional inadequacies or super-adequacies inherent in the property itself, or adverse economic factors external to the property." Id., Bk. 2, Glossary at 16.

      Although insufficient by themselves to support equitable relief, the other two factors tend to favor injunction. The appeal raises a substantial issue of statewide importance, i.e., under what circumstances, if any, a USPAP-compliant appraisal automatically constitutes a prima facie case for assessment reduction. Moreover, the equitable considerations favor enjoining the collection of tax because the fiscal impact to Holdings, which would have to pay a significant tax bill or lose its interest in the property, far outweighs the negligible fiscal impact on the County, which has never collected taxes on the property because of its prior tax exempt status.