author: VAIDIK, Judge.

text:
    Lavern CEASER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1106-CR-580.
    Court of Appeals of Indiana.
    March 26, 2012.

      Leah S. Cannon, Law Office of Deborah M. Agard, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Lavern Ceaser appeals her conviction for Class D felony battery on her daughter, M.R. Ceaser contends that the trial court erred by allowing the State to present evidence regarding her prior conviction for battering M.R. Ceaser also contends that the trial court erred by denying her motion to dismiss and that evidence at trial was insufficient to rebut her claim of parental privilege. We conclude that Ceaser’s prior conviction for battering the same child in a manner similar to the underlying incident was admissible under the intent and lack of accident or mistake exceptions to Indiana Evidence Rule 404(b). We further conclude that the trial court properly denied Ceaser’s motion to dismiss and the evidence at trial was sufficient to rebut her claim of parental privilege. We affirm.

Facts and Procedural History

The facts most favorable to the verdict are as follows. In April 2006, Ceaser was convicted of Class A misdemeanor battery on a child, her seven-year-old daughter, M.R. M.R. was removed from her mother’s care after the battery and then returned to Ceaser in January 2008. In November 2008, M.R., now nine, returned home from elementary school. Ceaser instructed M.R. to perform her chores, which included cleaning the living room. M.R. asked her mother if she could wait until her sister came home to clean the living room because they had dirtied the room together. Ceaser gave M.R. permission to wait for her sister. M.R. went to her room and fell asleep. A short time later, Ceaser entered M.R.’s room and asked M.R. why she had not cleaned the living room. M.R. stated that she thought Ceaser had given her permission to wait for her sister. Ceaser left the room and returned with the cord from a video game controller. Ceaser used the cord to repeatedly strike M.R., who was wearing a shirt and khaki pants at the time. Ceaser struck M.R. on the arms, back, legs, and bottom. M.R. stated that the beating lasted as long as fifteen minutes and caused her pain. M.R. screamed, cried, and flailed her arms and legs while her mother struck her.

At school the next day, M.R. was still in pain. She showed her teacher welts from the beating. The teacher notified the local Department of Children and Family Services (“DCS”) and Steffie Roberts, a family case manager, came to the school to speak with M.R. M.R. showed the marks to Roberts and described being beaten with the cord. Roberts concluded that the marks were consistent with M.R.’s account of the beating. Tr. p. 275. DCS filed a petition alleging M.R. to be a Child In Need of Services (“CHINS”) and removed M.R. from Ceaser’s home. In January 2009, the State charged Ceaser with Class D felony battery on a child.

At trial, the State sought to introduce evidence of Ceaser’s 2006 conviction for battering M.R. Specifically, the State sought to introduce evidence that Ceaser whipped an unclothed M.R., who was then seven years old, with a belt. M.R. sustained swelling and bruising to her face and other parts of her body and was taken to the emergency room. The State also sought to introduce evidence that M.R. was wearing only undergarments at the time of the beating, as well as Ceaser’s statements that her actions were wrong and that she should have simply talked to M.R. or walked away. Id. at 77.

At a hearing on the issue of the admissibility of Ceaser’s 2006 conviction, the court ruled that the State could not use evidence of the conviction in its case-in-chief but could use the evidence for rebuttal purposes if Ceaser relied on the defense of parental privilege. The trial court limited the evidence of Ceaser’s prior conviction, permitting references only to the misdemeanor conviction, not the initial felony charge, that the victim in both instances was M.R., that Ceaser used an object to whip M.R., and that M.R. sustained injuries to her face and body. Id. at 77-78. All other evidence of the prior conviction was excluded.

Before trial, but after the filing period provided by Indiana Code section 35-34-1-4(a)(5), Ceaser filed a motion to dismiss. The trial court denied Ceaser’s motion to dismiss under Section 35-34-l-4(a)(5) as untimely but heard evidence on Ceaser’s motion to dismiss under Section 35-34-1-4(a)(ll). Ceaser testified that M.R. had been lying about her homework and had not performed her chores and that she had tried other forms of discipline before beating M.R. with the cord. The State cross-examined Ceaser but due to its failure to timely file a witness list, the State was not permitted to offer evidence to rebut Ceaser’s testimony. Following the hearing, the trial court denied Ceaser’s motion under Section 35-34-l-4(a)(ll). The trial court explained that there were facts in dispute and noted that Ceaser intended to assert the defense of parental privilege, which was an issue to be determined by the trier of fact. Id. at 41.

A jury trial was held. The trial court ruled that Ceaser’s opening statement opened the door to allow the State to introduce evidence of Ceaser’s 2006 conviction. Id. at 207. The State elicited this evidence from Detective Robert Chappell, who testified that in the course of investigating the 2008 incident, he discovered that Ceaser had been convicted in 2006 for battering M.R. Id. at 321. In addition to testimony from Detective Chappell, the trial court also heard testimony from M.R., DCS caseworker Roberts, and M.R.’s elementary-school teacher.

At the close of the prosecution’s case, Ceaser moved for judgment on the evidence, arguing that the State had not met its burden of disproving her claim of parental privilege. The trial court denied the motion, stating that because the parental-privilege claim was an affirmative defense, Ceaser was required to present evidence regarding that defense.

Ceaser testified that in the weeks preceding the 2008 beating, M.R. lied about her homework and had not been keeping her bedroom clean. Id. at 344. She said that she tried disciplining M.R. for this behavior in various ways, which were not successful. Id. at 346. During the beating, Ceaser stated that she struck a crying M.R. seven or eight times, perhaps more. Id. at 346, 361. When asked about the 2006 beating, Ceaser indicated that she lost control and in addition to beating M.R., she slapped her. Id. at 348. Ceaser stated that although she did not believe her behavior in 2006 was reasonable, she felt the force used on M.R. in 2008 was reasonable. Id. at 361, 363-64.

The jury found Ceaser guilty of Class D felony battery on a child. The trial court sentenced Ceaser to 545 days with 544 days suspended to probation and one day’s credit. Id. at 463. Ceaser now appeals.

Discussion and Decision

Ceaser raises three issues on appeal. First, she contends that the trial court erred by allowing the State to present evidence regarding her 2006 conviction for battering M.R. Ceaser argues that this evidence was inadmissible and that its probative value was outweighed by its prejudicial effect. Second, Ceaser argues that the trial court erred by denying her motion to dismiss under Section 35-34-1-4(a)(ll), as the facts alleged by the State did not constitute a crime. Third, Ceaser claims that the evidence at trial was insufficient to rebut her claim of parental privilege. We address each of these contentions in turn.

I. Admission of Prior-Misconduct Evidence

We first address Ceaser’s challenge to the admission of evidence regarding her prior conviction for battering M.R. Ceaser argues that this evidence was inadmissible because it bore no relation to any of the admissible purposes listed in Indiana Evidence Rule 404(b), such as intent, knowledge, or absence of mistake. Even if the evidence was admissible under one of these exceptions, Ceaser argues, its probative value was substantially outweighed by its prejudicial effect. Both Ceaser and the State correctly note that we have yet to address this evidentiary issue in the context of parental discipline.

A trial court has broad discretion in ruling on the admission or exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App.2009). The trial court’s ruling on the admissibility of evidence will be disturbed on review only upon a showing of an abuse of discretion. Id. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. Error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. Ind. Evidence Rule 103.

Indiana Evidence Rule 404(b) provides that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” Evidence Rule 404(b) tracks Federal Rule of Evidence 404(b) almost verbatim. See Hicks v. State, 690 N.E.2d 215, 218 & n. 1 (Ind.1997) (noting that the federal rule also includes “opportunity” in its short list of permissible purposes). The rule is designed to prevent the jury from assessing a defendant’s present guilt on the basis of his propensities-the so-called “forbidden inference.” Id. at 218-19. Prior misconduct may be admissible to prove motive, intent, or other material facts at issue in a case. Id. Rule 404(b)’s list of permissible purposes is illustrative but not exhaustive. Id.

In assessing the admissibility of Rule 404(b) evidence, a trial court must (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Embry v. State, 923 N.E.2d 1, 8 (Ind.Ct.App.2010) (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind.2002)), trans. denied. Rule 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .... ”

Initially we note that the “admissibility of evidence of other crimes, wrongs, or acts to establish intent and an absence of mistake or accident is well established, particularly in child abuse cases.” United States v. Harris, 661 F.2d 138, 142 (10th Cir.1981). “Where a parent uses severe corporal punishment, often the only way to determine whether the punishment is a non-criminal act of discipline that was unintentionally harsh or whether it constitutes the felony of child abuse is to look at the parent’s history of disciplining the child.” State v. Wright, 593 N.W.2d 792, 802 (S.D.1999) (citing State v. Taylor, 347 Md. 363, 701 A.2d 389, 396 (1997)). Victims of child abuse are often unable or unwilling to testify against a parent who has abused them. Id. For this reason, a parent’s other disciplinary acts may be the most probative evidence of whether the corporal punishment at issue was imposed “maliciously, with an intent to injure, or with a sincere desire to use appropriate corrective measures.” Id.

Courts of other jurisdictions have held that evidence of past violence toward a child is relevant to show intent and lack of mistake or accident. Id. at 801; see also Taylor, 701 A.2d at 396; State v. Kimberly B., 283 Wis.2d 731, 699 N.W.2d 641, 652 (2005). In Wright, a father punched his son, banged his head against the wall, and whipped and kicked him. The father claimed that his actions were justified as parental discipline in response to his son’s dangerous misbehavior. The trial court admitted evidence of two prior acts of violence by the father, one against the son and another against his daughter. Wright was convicted, and the Supreme Court of South Dakota affirmed, framing the issue as one of “punishment — was it cruel or abusive?” Id. at 802. The court held that the father’s prior disciplinary acts were “highly relevant to [his] state of mind.” Id. Jurors could infer, based on the evidence of prior violence, that the alleged discipline was unreasonable, not necessary, and “merely part of an overall plan or design to abuse his children when given any provocation.” Id. The evidence was also relevant, the Wright court held, to show absence of mistake or accident based on the father’s claim that his mental state at the time of the discipline was influenced by his son’s dangerous conduct. Id.

In Taylor, in separate incidents, the defendant punched his stepson, used a cord to whip him, poked him with a sharp stick, and stabbed him with a fork. 701 A.2d at 390-91. The cases were consolidated after the trial court ruled that the evidence of each instance of abuse was admissible in each trial to show intent, malice, and absence of mistake. Id. at 391. The stepfather was convicted, and the Court of Appeals of Maryland affirmed. The court surmised that the defense’s position was either that the child had fabricated claims of abuse or that the injuries resulted from “permissible disciplinary acts, not child abuse or battery.” Id. Because the child at issue bore physical evidence of the violence against him, “the central issue in the case seemed to be whether the blows exceeded permissible parental discipline,” making intent to cause physical injury and malice important elements of the prosecution’s case. Id.

Likewise, the Court of Appeals of Wisconsin ruled that evidence of past violence toward a child was admissible under the intent exception in Kimberly B. In Kimberly B., a mother repeatedly struck her nine-year-old daughter in a shopping center parking lot with a closed fist, telling her to shut up and calling her a “big fat slut.” 699 N.W.2d at 644. At trial, the State introduced evidence that mother had twice previously beaten the child with a belt or extension cord, leaving visible injuries and requiring state intervention. The court upheld the use of the evidence, calling it “relevant and admissible to prove the intent element” of the jurisdiction’s parental discipline statute and “to disprove Kimberly’s reasonable discipline defense by showing ‘the absence of mistake or accident’ regarding ‘the kind of knowledge that [Kimberly] brings to the question of parental discipline.’ ” Id. at 651-52. Specifically, the jury could infer, based on the evidence of prior beatings, that “Kimberly knew when her use of physical force against [her daughter] was an unreasonable and excessive form of punishment.” Id. This evidence, the court stated, suggested that it was more probable than not that Kimberly intended to “cause physical harm to [her daughter] that exceeded acceptable norms for instructive discipline.” Id.

In this case, in order to convict Ceaser for battery where the defense of parental privilege was asserted, the State was required to prove either: (1) the force Ceaser used was unreasonable or (2) Ceaser’s belief that such force was necessary to control M.R. and prevent misconduct was unreasonable. Willis v. State, 888 N.E.2d 177, 182 (Ind.2008). Mistake or accident is inherent in the requirement that the State prove a parent had an unreasonable belief that a particular level of force was necessary. Put differently, the State is required to prove that a parent was mistaken about what force was necessary. Where, as here, a parent asserting parental privilege has a prior conviction for battering the child at issue in a manner similar to the circumstance at issue, that evidence goes directly to the reasonableness of the force used and the reasonableness of that parent’s belief regarding the force used. Here, a jury could infer based on Ceaser’s prior conviction for battering M.R. that Ceaser knew what level of physical force exerted against M.R. was unreasonable. The evidence was admissible under the lack of accident or mistake exception to Rule 404(b).

The evidence is also relevant to Ceaser’s intent. Contrary to Ceaser’s claim, the intent underlying parental discipline and battery are not the same. See Taylor, 701 A.2d at 396 (“a parent’s other disciplinary acts can be the most probative evidence of whether his or her disciplinary corporal punishment is imposed maliciously, with an intent to injure, or with a sincere desire to use appropriate corrective measures.’ ”) (emphases added). Discipline is defined as “punishment intended to correct or instruct.” Black’s Law Dictionary 270 (8th ed. 2004). A parent who disciplines a child in a physical manner intends to correct or alter their child’s behavior. That corrective intent is lacking in a battery. In order for evidence of previous crimes to be admissible to show intent to commit the instant crime, the defendant must place his or her intent at issue. Reeves v. State, 953 N.E.2d 665, 670 (Ind.Ct.App.2011) (citing Moore v. State, 653 N.E.2d 1010, 1017 (Ind.Ct.App.1995)). Ceaser has done so here. By arguing that she exercised her parental privilege in disciplining M.R., Ceaser necessarily represents that her intent was to correct M.R.’s behavior through corporal punishment, rather than to simply batter her daughter. The evidence of Ceaser’s 2006 conviction was also admissible under the intent exception to Rule 404(b).

Although we conclude that the evidence of Ceaser’s past violence toward M.R. was admissible under the intent and lack of accident or mistake exceptions, it may still have been inadmissible under the last part of the 404(b) test if its probative value was substantially outweighed by the danger of unfair prejudice pursuant to Evidence Rule 403. The trial court is afforded wide latitude in weighing probative value against prejudice under Rule 403. Freed v. State, 954 N.E.2d 526, 531 (Ind.Ct.App.2011). We will reverse the court’s evaluation and decision to admit or exclude only upon a showing of an abuse of discretion. Id. Trial courts may consider a broad range of factors in balancing probative value against the risk of unfair prejudice, including the similarity between the past crime and the charged crime. Saunders v. State, 848 N.E.2d 1117, 1123 (Ind.Ct.App.2006), trans. denied.

In both beatings, Ceaser whipped the same child, M.R., with objects — a belt in one instance and a cord in the other. In both instances, visible marks were left on M.R.’s body. The beatings were also close in proximity, occurring in 2006 and 2008, with the 2008 beating taking place less than a year after M.R. was returned to Ceaser’s care. The trial court limited the evidence of Ceaser’s prior conviction, permitting references only to the identity of the victim, the location of the victim’s injuries, and the use of an object to inflict those injuries. Other facts surrounding the 2006 beating, including statements made by Ceaser, were excluded.

We acknowledge that the potential for unfair prejudice was tangible here because the prior misconduct involved violence toward a child. However, we conclude that the trial court did not err in finding that the probative value was not outweighed by the threat of unfair prejudice given its direct relation to Ceaser’s claim of parental privilege, the similarity and proximity of incidents, and in light of the limitations imposed on the use of the evidence.

II. Motion to Dismiss

We next consider Ceaser’s claim that the trial court erred by denying her motion to dismiss as the facts alleged by the State did not constitute an offense. We review a trial court’s denial of a motion to dismiss for an abuse of discretion. State v. Durrett, 923 N.E.2d 449, 453 (Ind.Ct.App.2010). We therefore reverse only where the decision is clearly against the logic and effects of the facts and circumstances. Id. The purpose of Indiana Code section 35-34-1-8, which governs the dismissal of charging informations, is to establish facts that aid in a determination of whether an offense has properly been charged against the defendant as a matter of law. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App.2003) (citing State v. King, 502 N.E.2d 1366, 1369 (Ind.Ct.App.1987)). Facts that may be raised under Section 35-34-1-8 generally concern only pretrial matters. Id. Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss. Id. However, an information may be dismissed if the facts stated in the information do not constitute an offense. Ind.Code § 35-34-1-4(a)(5).

The trial court denied Ceaser’s motion to dismiss under Section 35-34-l-4(a)(5) as untimely but heard evidence on Ceaser’s motion to dismiss under Section 35-34-l-4(a)(ll). Though the State cross-examined Ceaser, due to a failure to timely file a witness list, the State did not offer evidence to rebut Ceaser’s testimony. Following the hearing, the trial court denied Ceaser’s motion under Section 35-34-1^4(a)(ll). The trial court noted that there were still facts in dispute and that Ceaser intended to rely on the defense of parental privilege, which was an issue for the jury.

Though Ceaser failed to provide her motion to dismiss in her appellate materials, we note her description of it: “with her motion, [Ceaser] tendered her sworn affidavit containing the facts surrounding her exercise of parental privilege, along with her memorandum stating specifically the legal question at issue as required by the statute.” Appellant’s Br. p. 5. From Ceaser’s own description we conclude that she moved to dismiss the information at least in part based on the defense of legal authority; that is, parental privilege.

Ceaser claims she was entitled to dismissal under State v. Fettig, 884 N.E.2d 341 (Ind.Ct.App.2008) (Kirsch, J., dissenting), reh’g denied, trams, not sought. More specifically, Ceaser argues that under Fettig, a trial court has the discretion to determine whether parental privilege is a defense to a charge of battery on a child. In Fettig, a teacher was charged with battery after slapping a student. The teacher filed a motion to dismiss, which the trial court granted. The State appealed, arguing that whether the teacher’s actions constituted reasonable corporal punishment was an issue that must be decided at trial. The majority relied on three Supreme Court decisions from 1888, 1879, and 1894, holding that “[the cases] demonstrate the ability of the judiciary to determine whether a teacher has acted within the bounds of her authority to discipline when striking a student.” Id. at 345-46. The dissent, however, emphasized the unresolved factual issues and the need to resolve those issues at trial. The dissent also noted the significant changes in the world since the nineteenth century. Id. at 346.

We agree with the dissent in Fettig. Whether an individual has a statutory defense to the charges in an information goes beyond the issues that may be decided by a motion to dismiss and instead is a matter to be decided at trial. See Isaacs, 794 N.E.2d at 1123. Ceaser’s claim that she was entitled to dismissal in light of recent case law is not persuasive as her claim of parental privilege was an issue for the jury. The trial court did not err in denying Ceaser’s motion to dismiss.

III. Sufficiency of the Evidence

The standard of review for a challenge to the sufficiency of the evidence to rebut a claim of parental privilege mirrors the standard for any sufficiency claim. Willis, 888 N.E.2d at 182-83. We do not reweigh evidence or judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, we will affirm the verdict. Id.

To convict Ceaser of battery with injury to a child, the State was required to prove beyond a reasonable doubt that she knowingly or intentionally touched a person less than fourteen years of age in a rude, insolent, or angry manner and that touching resulted in bodily injury. Ind.Code § 35-42 — 2—1 (a)(2)(B). But Ceaser asserts the defense of parental discipline pursuant to Indiana Code section 35-41-3-1, which provides: “A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” In Willis, our Supreme Court set forth the requirements for the parental privilege, holding that “[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education.” 888 N.E.2d at 182 (quoting Restatement of the Law (Second) Torts, § 147(1) (1965)). The following factors are relevant to a court’s determination of whether the punishment at issue is reasonable:

(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

Id. In addition to this non-exhaustive list of factors, the unique facts of a particular case should be considered. Id. In order to convict a parent for battery where parental privilege is asserted, “the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control her child and prevent misconduct was unreasonable.” Id

Ceaser’s arguments on appeal, which attempt to minimize the harm to M.R. and insist that Ceaser’s behavior was not excessive but rather justified and distinguishable from prior cases involving parental discipline, are merely an invitation to reweigh the evidence, which we may not do. The jury heard evidence that Ceaser beat then-seven-year-old M.R. in 2006, M.R. was removed from the home after that beating, and Ceaser was ultimately convicted of battering M.R. The jury also heard evidence that in 2008, Ceaser beat nine-year-old M.R. for as long as fifteen minutes with a video game controller cord for failing to perform chores and lying about homework. This beating caused M.R. pain and left welts on her back, arms, legs, and buttocks. These marks were still painful and visible the following day when M.R. reported the beating to her teacher. This evidence is sufficient to support the jury’s conclusion that the State disproved the parental-privilege defense.

Affirmed.

ROBB, C.J., and NAJAM, J., concur.

      . Ceaser contends that she used a belt to beat M.R. However, both M.R. and the DCS caseworker testified that the object was a video-game controller. In deference to the verdict, we adopt the testimony of the child and the caseworker for purposes of our analysis.

      . The CHINS petition also referenced M.R.’s younger sister, M.S., who is not at issue in this appeal.

      . This motion is not included in the record. For our purposes we rely on Ceaser's description of her motion: "with her motion, [Ceaser] tendered her sworn affidavit containing the facts surrounding her exercise of parental privilege, along with her memorandum stating specifically the legal question at issue as required by the statute.” Appellant’s Br. p. 5.

      . Our reference to Ceaser's knowledge of the reasonableness of the level of force illustrates the close relation between the lack of accident or mistake and knowledge exceptions in this context. Because we conclude that the evidence was admissible under the lack of accident or mistake and intent exceptions, however, we need not address the admissibility of the prior misconduct evidence under the knowledge exception.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Hane C. HARRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 18A04-1108-CR-391.
    Court of Appeals of Indiana.
    March 27, 2012.

      Kelly N. Bryan, Muncie, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Hane C. Harris repeatedly molested the young daughter of his girlfriend. A jury found Harris guilty of class A felony child molesting, class C felony child molesting, and class D felony child solicitation. The jury also found Harris to be a habitual offender. The trial court sentenced Harris to a total sentence of eighty-one years, with seventy-nine years executed. On appeal, Harris claims that he was denied his right to confrontation guaranteed by both our federal and state constitutions because the victim was permitted to testify at trial via closed-circuit television. Harris also contends that the trial court abused its discretion in imposing consecutive sentences. Finding no constitutional violations and further concluding that Harris has not established that the trial court abused its discretion in imposing consecutive sentences, we affirm. However, we remand for correction of the sentencing order regarding the habitual offender enhancement.

Facts and Procedural History

T.D.S. was born on July 21, 2000. When T.D.S. was between the ages of seven and eight years old, T.D.S. lived in an apartment with her mother, S.D., and her mother’s boyfriend, Harris. T.D.S. slept in the same bedroom as S.D. and Harris, although she slept in a separate bed. On several different occasions while T.D.S. was lying in her bed, Harris put his hand under T.D.S.’s shirt and touched her chest. On other occasions while T.D.S. was lying in her bed, Harris touched T.D.S. on her “private part” both with his hand and with his penis. Tr. at 149. On more than one occasion, while S.D. was at work, Harris came into the bedroom while T.D.S. was watching television and playing with stuffed animals. Harris pulled down T.D.S.’s pants and underwear and then pulled down his own pants and underwear. Harris “put spit” on his hand and touched T.D.S.’s private part with his finger. Id. at 158-59. Harris then put his penis in T.D.S.’s private part. This hurt T.D.S. On some occasions, Harris would lift up T.D.S.’s shirt and put his mouth on her breast. Harris would often kiss T.D.S. on the lips, and this would make her feel “nasty.” Id. at 163. One time, Harris took T.D.S.’s hand and placed it on his penis. When T.D.S. tried to pull her hand away, Harris grabbed her hand and put it back on his penis. Harris told T.D.S. that he would kill her and her mother if she told anyone about these encounters. T.D.S. kept the molestations a secret for a “long time” but she finally told her grandmother in April 2009. Id. at 169. Subsequent physical examinations of T.D.S. revealed acute injuries to T.D.S.’s hymen and anus consistent "with some type of penetration.

On April 17, 2009, the State charged Harris with two counts of class A felony child molesting, class C felony child molesting, and class D felony child solicitation. Thereafter, on April 27, 2009, the State also filed a habitual offender allegation against Harris. Prior to trial, the State moved to have T.D.S. declared a protected person so that her testimony could be taken outside of Harris’s physical presence via videotape or closed circuit television. On May 16, 2011, the trial court held a protected person hearing on the State’s motion during which the court heard testimony from T.D.S.’s grandmother, a psychiatrist, and a behavioral clinician regarding the serious emotional harm that T.D.S. would suffer if required to testify in Harris’s presence. Following the hearing, the trial court granted the State’s motion.

A bifurcated jury trial was held on June 6 and 7, 2011. Prior to T.D.S.’s testimony, Harris objected to the trial court allowing T.D.S. to testify via closed-circuit television, claiming that it would impair his ability to cross-examine her and would also impair the jury’s ability to determine credibility. The trial court overruled the objection and permitted T.D.S. to testify via closed-circuit television. At the conclusion of the trial, the trial court dismissed one count of class A felony child molesting, and the jury found Harris guilty of the remaining charges. The trial proceeded to the habitual offender phase, after which the jury found Harris to be a habitual offender.

Sentencing occurred on July 18, 2011. The trial court found seven aggravating factors and two mitigating factors. Concluding that the aggravators outweighed the mitigators, the trial court sentenced Harris to forty years for class A child molesting. The trial court entered a separate sentence of thirty years based upon the habitual offender finding and ordered that sentence to be served consecutive to the class A felony child molesting count. The court sentenced Harris to eight years, with one year suspended, for class C felony child molesting, and three years, with one year suspended, for class D felony child solicitation, each to be served consecutive to the other counts, for a total sentence of eighty-one years, with seventy-nine years executed. This appeal ensued.

Discussion and Decision

I. Victim Testimony

Harris contends that the trial court erred when it permitted T.D.S. to testify at trial via two-way closed-circuit television. Specifically, Harris argues that the State presented insufficient evidence that T.D.S. would suffer serious emotional harm if required to testify in his physical presence, and therefore permitting her to testify outside of his physical presence violated his federal and state constitutional rights. We disagree.

We begin by noting that the admission of evidence is within the sound discretion of the trial court. Broude v. State, 956 N.E.2d 130, 134 (Ind.Ct.App.2011), trans. denied (2012). We will not reverse a trial court’s decision on whether to admit evidence absent a showing of manifest abuse of discretion resulting in the denial of a fair trial. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied.

Harris concedes that by virtue of her age at the time of trial, ten-year-old T.D.S. was a “protected person” who would be eligible to testify via closed-circuit television, provided the criteria set forth in Indiana Code Section 35-37-4-8 were met. That section provides in relevant part:

(c) On the motion of the prosecuting attorney, the court may order that the testimony of a protected person be taken in a room other than the courtroom, and that the questioning of the protected person by the prosecution and the defense be transmitted using a two-way closed circuit television arrangement that:
(1) allows the protected person to see the accused and the trier of fact; and
(2) allows the accused and the trier of fact to see and hear the protected person.
(e) The court may not make an order under subsection (c) or (d) unless:
(1) the testimony to be taken is the testimony of a protected person who:
(B) is found by the court to be a protected person who should be permitted to testify outside the court room because:
(i) the court finds from the testimony of a psychiatrist, physician, or psychologist and any other evidence that the protected person’s testifying in the physical presence of the defendant would cause the protected person to suffer serious emotional harm and the court finds that the protected person could not reasonably communicate in the physical presence of the defendant to the trier of fact;
(ii) ...; or
(iii) evidence has been introduced concerning the effect of the protected person’s testifying in the physical presence of the defendant, and the court finds that it is more likely than not that the protected person’s testifying in the physical presence of the defendant creates a substantial likelihood of emotional or mental harm to the protected person;

Ind.Code § 35-37-4-8.

This statutory provision is part of what is known as the Protected Person Statute, a statute that is generally described as an effort to spare children the trauma of testifying in open court against an alleged sexual predator. See Tyler v. State, 903 N.E.2d 463, 466 (Ind.2009). However, application of the Protected Person Statute necessarily implicates both federal and state constitutional rights. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” “The essential purpose of the Sixth Amendment right of confrontation is to ensure that the defendant has the opportunity to cross-examine the witnesses against him.” Howard v. State, 853 N.E.2d 461, 465 (Ind.2006). Article 1, Section 13 of the Indiana Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face....” Because Indiana’s clause contains both the right to cross-examine and the right to meet witnesses face to face in the courtroom during trial, Indiana’s right to confrontation is known to be more “generous” but can be said to encompass the federal right which only guarantees an opportunity to cross-examine witnesses. See Pierce v. State, 677 N.E.2d 39, 48 n. 3 (Ind.1997); Gardner v. State, 641 N.E.2d 641, 643 (Ind.Ct.App.1994).

Our supreme court has held that Indiana Code Section 35-37-4-8, when properly construed, satisfies the requirements of the federal confrontation right. Brady v. State, 575 N.E.2d 981, 986 (Ind.1991). Moreover, “while there is something unique and important” about the face-to-face requirement of our state constitution, a two-way closed-circuit television arrangement does not compromise a defendant’s state constitutional right to meet witnesses face-to-face. See id.

Here, Harris does not quibble with the constitutionality of Indiana Code Section 35-37-4-8 or the use of the two-way closed-circuit television for child victim testimony generally. Instead, he argues that the State failed to make the required evi-dentiary showing pursuant to subpara-graph (B)(i) or B(iii) of the statute to justify allowing T.D.S. to testify outside of his physical presence. Therefore, he argues that the trial court improperly applied the statute and, as a result, violated his federal and state constitutional rights when it permitted T.D.S. to testify via closed-circuit television.

During the protected person hearing, the State presented ample testimony to support the trial court’s conclusion that testifying in the physical presence of Harris would cause T.D.S. to suffer serious emotional harm and that T.D.S. could not reasonably communicate to the jury while in the physical presence of Harris. Psychiatrist Snieguole Radzeviciene testified that T.D.S. suffered from post-traumatic stress disorder as a result of the molestations. Dr. Radzeviciene stated that testifying in Harris’s physical presence would cause T.D.S. to suffer extreme stress. When asked whether T.D.S. would be able to testify in a courtroom with Harris, Dr. Radzeviciene stated:

As I said ... that situation is extremely stressful for her. Plus, she looked to me, she acted like, emotionally less mature than she’s expected to be. And I’m afraid that her level of distress would be too significant for her to be able to usefully participate in this. Plus, it would leave a lot of anxiety.

Tr. at 56-57. Dr. Radzeviciene opined that use of closed-circuit television would not only protect T.D.S., but would also be more useful for the court due to T.D.S.’s inability to participate usefully if required to testify in Harris’s presence. When asked specifically whether there was a substantial likelihood that testifying in Harris’s physical presence would cause T.D.S. serious emotional harm, Dr. Rad-zeviciene answered, “I think so.” Id. at 65.

Behavioral clinician Lavania Burrous began working with T.D.S. in November 2010. Burrous testified that T.D.S. would become very anxious and quiet whenever questioned about the molestations. Bur-rous stated that when she asked T.D.S. what would happen if she ever saw Harris in person again, T.D.S. would “clam up,” clench her fists, and shake with anxiety. Id. at 77. Burrous testified that she believed T.D.S. would suffer serious emotional harm if she had to testify in the physical presence of Harris.

Finally, T.D.S.’s grandmother, Joyce Stone, testified that T.D.S. had nightmares that Harris was going to kill her mother. Stone stated that T.D.S. was a very scared little girl and has a lot of anxiety. T.D.S. was afraid to sleep alone and has had problems with her bowel movements. Stone testified that T.D.S. would suffer emotional harm if forced to testify at a jury trial in Harris’s presence.

This evidence was more than sufficient to support the trial court’s determination pursuant to subparagraph B(i) of Indiana Code Section 35-37-4-8 that testifying in the physical presence of Harris would cause T.D.S. to suffer serious emotional harm and that she could not reasonably communicate to the jury in the physical presence of Harris. In addition, the evidence supports the trial court’s determination pursuant to subparagraph B(iii) that it is more likely than not that T.D.S.’s testifying in the physical presence of Harris creates a substantial likelihood of emotional or mental harm to T.D.S.

On appeal, Harris makes much of the fact that Dr. Radzevieiene was the only “psychiatrist, physician, or psychologist” who testified regarding the potential for emotional harm to T.D.S. However, the statute makes clear that the trial court may gather information “from the testimony of a psychiatrist, physician, or psychologist and any other evidence ” that the protected person’s testifying in the physical presence of the defendant would cause the protected person to suffer serious emotional harm. See Ind.Code § 35-37-4-8(e)(l)(B)(i) (emphasis added). Harris essentially asks that we reweigh the evidence in his favor, which we may not do on appeal.

There was sufficient evidence to support the trial court’s decision, pursuant to Indiana Code Section 35-37-4-8, to permit T.D.S. to testify outside of Harris’s physical presence, and we cannot say that the trial court’s decision constituted a manifest abuse of discretion such that Harris was denied a fair trial. As noted by the State, despite the fact that T.D.S. was not physically present in the courtroom, the record reveals that Harris conducted a lengthy cross-examination of T.D.S. during trial. Harris could see his accuser, and she could see him and the jury. Harris has failed to show that the trial court violated his federal or state constitutional rights when it permitted T.D.S. to testify via closed-circuit television.

II. Sentencing

Harris maintains that the trial court abused its discretion in imposing consecutive sentences. Sentencing determinations are within the trial court’s discretion and will be reversed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g 875 N.E.2d 218. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court may abuse its discretion by failing to enter a sentencing statement, entering findings of aggravating and mitigating factors unsupported by the record, omitting factors clearly supported by the record and advanced for consideration, or giving reasons that are improper as a matter of law. Id. at 490-91. It is within the trial court’s discretion to impose consecutive sentences, but the trial court must find at least one aggravating factor before imposing consecutive sentences. Owens v. State, 916 N.E.2d 913, 917 (Ind.Ct.App.2009). We may review both the written and oral sentencing statements in order to identify the findings of the trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind.2007).

In both its written and oral sentencing statements, the trial court found the following seven aggravating factors: (1) Harris’s adult criminal history, which includes ten felony and ten misdemeanor convictions and one habitual offender finding; (2) the substantial degree of care and planning on Harris’s part in committing the current crimes; (3) Harris was on probation at the time of the current offenses; (4) prior attempts at correctional treatment and rehabilitation through probation have been unsuccessful; (5) the current crimes were particularly devastating to T.D.S. and her family; (6) Harris was in a position of trust with T.D.S.; and (7) Harris threatened to harm T.D.S. if she told anyone about the crimes. The trial court identified three mitigating factors, which included: (1) Harris’s age of forty-four; (2) imprisonment would result in undue hardship on Harris’s dependents; and (3) Harris has tried to meet family and financial obligations by maintaining gainful employment. In light of the overwhelming number of aggravators versus mitigators, the trial court determined that consecutive sentences were appropriate.

Harris’s sole contention in this regard is that the trial court failed to sufficiently “articulate any reasons for imposing consecutive sentences.” Appellant’s Br. at 12. This argument is unavailing. As noted above, the trial court need only find one aggravating factor before exercising its discretion to impose consecutive sentences. See Owens, 916 N.E.2d at 917. Harris does not challenge the validity of or the evidence supporting the seven stated aggravating factors. To the extent that Harris challenges the weight assigned to those factors, this is no longer a viable argument on appeal. See Anglemyer, 868 N.E.2d at 490-91. We find no abuse of discretion in the trial court’s imposition of consecutive sentences.

However, as noted by the State, the trial court did erroneously enter a separate thirty-year sentence for the habitual offender finding to be served consecutive to the sentence for the class A felony child molesting count. It is well settled that a habitual offender finding does not constitute a separate crime, nor does it result in a separate sentence. See Ind. Code § 35-50-2-8. Rather, a habitual offender finding results in a sentence enhancement imposed upon the conviction of a subsequent felony. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.2001). Therefore, we remand for correction of the sentencing order so that it reflects that the thirty-year habitual offender enhancement serves as an enhancement of the class A felony child molesting count.

Affirmed and remanded.

DARDEN, J., and VAIDIK, J., concur.

      . Using an anatomical diagram during her testimony, T.D.S. identified her vagina as what she refers to as her "private part.” Tr. at 149.

      . Although in its written sentencing order the trial court correctly titled this the “Habitual Offender Enhancement," the court’s written and oral sentencing statements indicate that it actually entered a separate consecutive thirty-year sentence based on the habitual finding rather than an enhancement. Appellant's App. at 265, Tr. at 572.

      . Indiana Code Section 35-37-4-6 provides that the victim of a sex crime, who is a child less than fourteen years of age, is a "protected person” for purposes of the statute.

      . Indiana Code Section 35-50-2-8(h) provides that "[t]he court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.” Because the trial court here intended a thirty-year habitual offender enhancement, upon remand, that enhancement must be attached to the underlying class A felony count as opposed to the underlying class C or class D counts. See Ind.Code §§ 35-50-2-4, -6, and -7 (the advisory sentence for class A felony is thirty years, the advisory sentence for class C felony is four years, and the advisory sentence for class D felony is one and one-half years).


author: SHARPNACK, Senior Judge.

text:
    Janet STEWART, Appellant-Plaintiff, v. RICHMOND COMMUNITY SCHOOLS, Appellee-Defendant.
    No. 93A02-1108-EX-793.
    Court of Appeals of Indiana.
    March 28, 2012.
    Rehearing Denied May 4, 2012.

      Ronald L. Wilson, Badell & Wilson, P.C., Rushville, IN, Attorney for Appellant.
    Paul L. Fields, The Law Offices of the Liberty Mutual Group, Carmel, IN, Attorney for Appellee.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Janet Stewart appeals the final judgment of the Worker’s Compensation Board of Indiana (“the Board”) affirming a Single Hearing Member’s (“the Member”) determination of permanent partial impairment. The Board had previously reversed the Member’s determination that Stewart was permanently and totally disabled and had remanded the determination to the Member to establish Stewart’s degree of permanent partial impairment. We affirm.

ISSUE

Stewart raises one issue, which we restate as: whether the Board’s determination that she is not permanently and totally disabled is supported by sufficient evidence.

FACTS AND PROCEDURAL HISTORY

Stewart worked for the Richmond Community School Corporation (“the School”) as a physical education teacher. On December 5, 2003, Stewart was spotting a student as he attempted a gymnastic maneuver. The student fell onto Stewart, causing her to break her right leg. The injury required surgery and other treatment. Stewart applied for, and received, worker’s compensation benefits for the surgery and other treatment.

After surgery, Stewart continued to experience pain and difficulty putting weight on the leg. On December 5, 2004, she fell at home and broke her right hip. Stewart contended that the fall was caused by continuing problems with her right leg. She did not return to work at the School after the hip injury.

Stewart applied for worker’s compensation benefits related to her hip injury. After a hearing, the Member determined that the hip injury was related to Stewart’s work-related leg injury and that Stewart was permanently and totally disabled. The School appealed the decision to the full Board. The Board affirmed the Member’s conclusion that Stewart’s hip injury was a compensable claim. However, the Board reversed the Member’s determination that Stewart was permanently and totally disabled and remanded for a calculation of her permanent partial impairment. Neither party appealed the Board’s decision.

On remand, the parties filed factual stipulations and statements of contentions. In Stewart’s statement of contentions she argued, as she had at the prior hearing, that she was permanently and totally disabled. In the alternative, she asserted that she “has 39% impairment.” Appellant’s App. p. 33. The Member concluded that Stewart had sustained a “39% permanent partial impairment in the amount of $60,100.00.” Id. at 31. Stewart sought review from the full Board, which affirmed the Member’s determination. This appeal followed.

DISCUSSION AND DECISION

In reviewing a worker’s compensation decision, an appellate court is bound by the factual determinations of the Board and may not disturb them unless the evidence is undisputed and leads inescapably to a contrary conclusion. Christopher R. Brown, D.D.S., Inc. v. Decatur Cnty. Mem. Hosp., 892 N.E.2d 642, 646 (Ind.2008). We examine the record only to determine whether there is substantial evidence and reasonable inferences that can be drawn therefrom to support the Board’s findings and conclusions. Id. As to the Board’s interpretation of the law, an appellate court employs a deferential standard of review to the interpretation of a statute by an administrative agency charged with its enforcement in light of its expertise in the given area. Id. The Board will only be reversed if it incorrectly interpreted the Worker’s Compensation Act. Id.

Stewart argues that the evidence establishes that she is permanently and totally disabled and the Board’s decision must be reversed. The School contends that Stewart has waived her claim of permanent and total disability because she did not appeal the Board’s determination that she was not permanently and totally disabled.

Stewart has not filed a Reply Brief or otherwise responded to the School’s claim of waiver. When an appellee fails to file a brief responding to the appellant’s arguments, we may apply a less stringent standard of review, reversing the judgment below if the appellant establishes prima facie error. Ferguson v. Stevens, 851 N.E.2d 1028, 1031 (Ind.Ct.App.2006). In this case, Stewart’s failure to respond to the School’s claim of waiver is substantially like an appellee’s failure to file a brief. The School’s claim, if meritorious, is dis-positive of Stewart’s appeal. Therefore, we determine that the School need only establish a prima facie case in support of its claim. Prima facie is defined as at first sight, on first appearance, or on the face of it. Id.

To address the School’s claim of waiver, we must determine whether the Board’s decision that Stewart was not permanently and totally disabled was a final, appealable judgment. The School cites no cases in support of its argument and relies solely on Indiana Code section 22-3-4-8(b) (1986), which governs appeals of the Board’s decisions. We have found more direct guidance on this subject in our Supreme Court’s decision in Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053 (Ind.1996). In that case, a group of injured workers filed a federal class action against the Board, asserting that the Board improperly refused to issue final awards on compensation claims until the claimants reached a state of maximum medical improvement. The Board contended that a decision on temporary benefit issues would not be a final order subject to judicial review. The federal court asked our Supreme Court to address several certified questions, including: “without disposing of all of the issues that may exist or arise between the parties ... [m]ay the Board make an enforceable and appealable determination that temporary total disability benefits have been properly terminated?” Id. at 1055.

Our Supreme Court reviewed the governing statutes and determined that the Board was authorized to issue an order addressing temporary total disability benefits, and that such an order would be enforceable in court. Next, the Court turned to whether such an order would be appeal-able. The Court noted that by statute, a party to a proceeding before the Board may seek review of an award at the Court of Appeals. See id. at 1056-57 (citing Ind. Code § 22-3-4-8). Giving the words of the statute their plain and ordinary meaning, and noting that the Indiana Worker’s Compensation Act is intended to remove obstacles and provide a more certain, expeditious remedy for injured employees, our Supreme Court concluded that an order regarding temporary total disability benefits is a final decision subject to appellate review, even though the parties’ dispute is not yet fully resolved as to all issues.

Here, the Board’s reversal of the Member’s determination that Stewart was permanently and totally disabled is analogous to a ruling on temporary total disability as discussed in Cox. The parties fully argued the question of permanent and total disability, and nothing remained to be addressed after the Board issued its ruling. In fact, the Board’s determination that Stewart was not permanently and totally disabled is more definite than a determination of temporary total disability, because the status of temporary total disability is subject to further evidentiary developments. Furthermore, appellate review of the Board’s decision that Stewart was not permanently and totally disabled would have promoted judicial efficiency, because a reversal of the Board’s decision would have eliminated the need for further proceedings before the Member. Consequently, based on the holding in Cox, we conclude that the Board’s determination that Stewart was not permanently and totally disabled was a final award subject to appellate review. Stewart failed to seek appellate review of the Board’s determination. As a result, Stewart has waived any claim of error related to the Board’s decision that she is not permanently and totally disabled. The School has presented a prima facie case in support of its claim of waiver and we therefore find no reversible error.

CONCLUSION

For the reasons stated above, we affirm the judgment of the Board.

Affirmed.

BAILEY, J., and CRONE, J., concur.


author: DARDEN, Judge.

text:
    Carolyn BOSS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1106-CR-320.
    Court of Appeals of Indiana.
    March 30, 2012.

      Suzy St. John, Marion County Public Defender, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Carolyn Boss appeals her convictions and sentence following a bench trial for six counts of class A misdemeanor failure to restrain a dog and six counts of class B misdemeanor harboring a non-immunized dog.

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

ISSUES

1. Whether there is sufficient evidence to support Boss’s convictions.
2. Whether Boss’s convictions constitute double jeopardy.
3. Whether Boss’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
4. Whether Boss’s one-year consecutive sentences are unconstitutional.

FACTS

On November 3, 2008, three dogs surrounded Carole Bales as she walked in an alley near her home. Bales recognized the dogs as those kept by Boss, who lived across the street from Bales.

One of the dogs clamped down on Bales’s arm and began shaking her by the arm before pulling her down to the ground. Another dog bit Bales’s leg and “started shaking” it while the third dog “started nipping [her] up and down [her] body.” (Tr. 12). The dogs then “started dragging [Bales] down the alley.” (Tr. 12).

Thomas Wimberly responded to Bales’s cries for help. When he got to the alley, he saw the dogs “gnawing on” Bales. (Tr. 28). As Wimberly attempted to get the dogs away from Bales, two of the dogs bit his arms and knocked him to the ground. A passerby alerted Boss to the attack. Boss called the dogs off of Bales and Wim-berly and took them back to her yard.

Deborah Dobbins, an animal control officer with Indianapolis Animal Control & Care, responded to the scene. She observed two of the dogs in a fenced area at the side of Boss’s house. A forty-two-inch-high chain-link fence surrounded the area. Dobbins, however, observed that the fence was “dilapidated,” with gaps at the bottom of the fence under which a dog could crawl. (Tr. 58). The third dog was loosely secured by its collar to a tree in the unfenced backyard. Dobbins observed that the collar was “way too loose for that dog” because it “slipped right off the dog’s head....” (Tr. 59). Dobbins observed blood on all three dogs.

Boss informed Dobbins that the dogs belonged to her son and that she was caring for them because he was incarcerated. Dobbins did not find any rabies tags on the dogs, and Boss could not provide any vaccination records. Boss signed a Surrender of Owner’s Animal, whereby she certified that she was the owner of the dogs and voluntarily surrendering the dogs to Animal Control & Care.

The dog bites caused extensive injuries to Bales, including permanent damage to the nerves in her arm. Bales’s injuries required a two-week stay in the hospital followed by extensive physical therapy. Bales also suffered several bite wounds to her legs as well as scratches to her torso. Wimberly’s injuries to his arm required a hospital stay of six weeks, followed by several weeks of physical therapy. Wim-berly also suffered permanent damage to his arm. In addition, Wimberly suffered several less severe bites to his arms.

On December 8, 2008, the State charged Boss with six counts of class A misdemean- or failure to restrain a dog and six counts of class B misdemeanor harboring a non-immunized dog. The trial court held a bench trial on June 22, 2011, after which it found Boss guilty as charged.

The trial court held a sentencing hearing on June 24, 2011. The trial court found Boss’s lack of criminal history and that she voluntarily surrendered the dogs to be mitigating circumstances. The trial court found the nature and circumstances of the crime to be an aggravating circumstance. Finding that the aggravator outweighed the mitigators, the trial court sentenced Boss to concurrent sentences of one year on Counts 1, 2, 3, 5, and 6. The trial court further sentenced Boss to one year on Count 4, to be served consecutive to the sentence on Count 1, to be served in county jail. The trial court then sentenced Boss to concurrent sentences of 180 days on the remaining counts, with 168 days on each count suspended to probation. Thus, Boss received an aggregate sentence of two years, followed by 168 days of probation.

DECISION

1. Sufficiency of the Evidence

Boss asserts that the evidence is insufficient to support her convictions for failing to restrain her dogs and harboring non-immunized dogs.

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

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

a. Failure to restrain

Boss argues that the evidence was insufficient to establish that she failed to take reasonable steps to restrain her dogs. Indiana Code section 15-20-1-4 provides that the owner of a dog commits a class C misdemeanor if:

(1) the owner recklessly, knowingly, or intentionally fails to take reasonable steps to restrain the dog;
(2) the dog enters property other than the property of the dog’s owner; and
(3) as the result of the owner’s failure to restrain the dog, the dog bites or attacks another person without provocation, resulting in bodily injury to the other person.

The offense is a class A misdemeanor if it results in serious bodily injury to a person.

“In interpreting statutes, we do not interpret a statute that is facially clear and unambiguous. Rather, we give the statute its plain and clear meaning.” “[I]f a statute is ambiguous, we seek to ascertain and give effect to the legislature’s intent.” “The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute.” “[P]enal statutes must be strictly construed against the State, but a statute should not be overly narrowed so as to exclude cases fairly covered by it and should be interpreted so as to give efficient operation to the expressed intent of the legislature.” “Also, we assume that the language in a statute was used intentionally and that every word should be given effect and meaning.” “We seek to give a statute practical application by construing it in a way favoring public convenience and avoiding absurdity, hardship, and injustice.”

Buchanan v. State, 956 N.E.2d 124, 128-29 (Ind.Ct.App.2011) (internal citations omitted).

“Reasonable” is defined as “not extreme or excessive!.]” See http://www.merriam-webster.com/dictionary/reasonable (last visited Feb. 23, 2011). In Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 987 (Ind.Ct.App.1999), trans. denied, this court construed the meaning of “restraint,” as used in a city ordinance requiring owners to keep their dogs restrained. Looking at the plain and ordinary meaning, the court determined the terms “restraint” and “restrained” import active control and prevention of conduct rather than mere containment. See id. (citing black’s law dictionary at 1214 (6th ed. 1991) (confinement or holding back from action); American Heritage Dictionary at 1438 (3d ed. 1992) (to hold back or keep in check; control)). We find the use of the term “restrain” in Indiana Code section 15-20-1-4 to be analogous to that addressed in Ple-sha. Accordingly, we interpret Indiana Code section 15-20-1-4 as requiring an owner of a dog to take practical and sensible steps to control his or her dog to prevent the dog from going onto the property of another.

Here, the evidence shows that Boss kept two of the dogs in a fenced area. Dobbins, however, testified that the fence had obvious gaps through which the dogs could escape. The evidence further shows that Boss kept the third dog in her unfenced backyard, with only a loose collar through which his head easily slipped. Given the evidence, the trial court could reasonably infer that Boss failed to take reasonable steps to restrain the dogs.

b. Harboring a non-immunized dog

Boss further asserts that the evidence was insufficient to establish that she harbored a non-immunized dog. Boss maintains that it was the State’s burden to prove that the dogs were not immunized. She also maintains that the State failed to present evidence that she knew the dogs were not immunized.

Indiana Code section 35-46-3-1 provides that a “person who knowingly or intentionally harbors a dog that is over the age of six (6) months and not immunized against rabies commits harboring a non-immunized dog.” The offense is a class B misdemeanor “if the dog causes bodily injury by biting a person.” I.C. § 35-46-3-1. Indiana Administrative Code section 1-5-2 requires owners to vaccinate their dogs against rabies. Pursuant to Indiana Administrative Code section 1-5-1, upon administering a rabies vaccination, the veterinarian must provide the owner with a completed rabies vaccination certificate and a rabies vaccination identification tag, both of which the owner is required to keep.

In this case, the State presented evidence that Boss could provide neither tags nor certificates of rabies vaccination for the dogs. Thus, the trier-of-fact could reasonably infer that the dogs had not been immunized.

In the alternative, Boss argues that the State failed to prove that she knew the dogs had not been immunized. “A person engages in conduct ‘knowingly if, when he engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2. “ ‘Because such a finding requires one to resort to inferential reasoning to ascertain the defendant’s mental state, the appellate courts must look to all the surrounding circumstances of a case to determine if a guilty verdict is proper.’ ” Scruggs v. State, 883 N.E.2d 189, 191 (Ind.Ct.App.2008) (quoting McMichael v. State, 471 N.E.2d 726, 731 (Ind.Ct.App.1984), trans. denied), trans. denied.

Here, the State presented evidence that Boss cared for the dogs and that she did not have proof that they had been vaccinated. Accordingly, the trial court could infer that Boss was aware of a high probability that the dogs had not been immunized.

We find that the State presented sufficient evidence from which the trial court could infer that Boss harbored non-immunized dogs. Boss is asking this Court to reweigh the evidence, which we will not do.

2. Double Jeopardy

Boss next asserts that her convictions violate Indiana’s prohibition against double jeopardy. Specifically, she contends that she was subjected to double jeopardy “when her convictions for harboring a non-immunized dog were elevated to a [cjlass B misdemeanor on the same type of bodily injury elevating her convictions for failure to restrain a dog to a [cjlass A misdemean- or.” Boss’s Br. at 21.

Pursuant to Article 1, Section 14 of the Indiana Constitution, “[n]o person shall be put in jeopardy twice for the same offense.”

[T]wo offenses are the “same offense” in violation of the Indiana Double Jeopardy Clause if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.

Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999)). “In addition, categories of double jeopardy based on rules of statutory construction and common law prohibit multiple convictions or punishments for the same crime.” Porter v. State, 935 N.E.2d 1228, 1232 (Ind.Ct.App.2010). These categories bar “ ‘[conviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.’ ” Id. (quoting Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002)). We consider the evidence, charging information, final jury instructions and arguments of counsel in determining what facts the trier-of-fact used to establish each element of an offense. Ramon v. State, 888 N.E.2d 244, 253 (Ind.Ct.App.2008).

Failure to restrain a dog is a class A misdemeanor when it results in serious bodily injury. “Serious bodily injury” means a bodily injury that, inter alia, causes serious permanent disfigurement, extreme pain or “permanent or protracted loss or impairment of the function of a bodily member or organ[.]” I.C. § 35-41-1-25. Knowingly or intentionally harboring a non-immunized dog is a class C infraction. The offense, however, is elevated to a class B misdemeanor if “the dog causes bodily injury by biting a person.” I.C. § 35-46-3-1. “ ‘Bodily injury’ means any impairment of physical condition, including physical pain.” I.C, § 35-41-1-4.

In Counts 1 through 6, the State alleged that Boss committed failure to restrain a dog as a class A misdemeanor based upon “bite wound(s) and[/]or laceration(s) resulting in extreme pain and/or serious permanent disfigurement and/or permanent or protracted loss or impairment of the function of a bodily member or organ” to Wim-berly and Bales. (App. 36-41) (emphasis omitted). In Counts 7 through 12, the State alleged that Boss committed harboring a non-immunized dog as a class B misdemeanor based upon “bite wound(s) and/or lacerations” to Wimberly and Bales. (App. 42 — 44(B)).

The evidence introduced at trial indicates that both Wimberly and Bales suffered permanent injuries to their arms, including nerve damage and loss of function, due to the dog bites. The evidence introduced at trial also indicates that Wim-berly and Bales each suffered numerous other bites.

Although the State presented evidence of multiple wounds to Wimberly and Bales, it presented no actual evidence to prove bodily injury from Boss’s separate conduct of harboring a non-immunized dog. From the evidence presented, we find that Boss has demonstrated a reasonable possibility that the evidentiary facts used by the trier-of-fact to elevate her convictions for harboring non-immunized dogs also were used to enhance her convictions for failure to restrain a dog. See Richardson v. State, 717 N.E.2d 32, 54 (Ind.1999). Therefore, the enhancements for both offenses cannot stand. Accordingly, we remand with directions to vacate Boss’s convictions and sentences for harboring a non-immunized dog as class B misdemeanors and enter a determination that Boss committed harboring a non-immunized dog as class C infractions.

3. Inappropriate Sentence

Boss asserts that her sentence is inappropriate. She argues that “it should be revised to a term served on home detention in accord with the prosecutor’s original recommendation.” Boss’s Br. at 8.

We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). It is the defendant’s burden to “ 'persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.’” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (Ind.2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)).

In determining whether a sentence is inappropriate, the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081. Indiana Code section 35-50-3-2 provides that “[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year[.]”

The location where a sentence is to be served is an appropriate focus for application of our review and revise authority.... Nonetheless, we note that it will be quite difficult for a defendant to prevail on a claim that the placement of his sentence is inappropriate. This is because the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. A defendant challenging the placement of a sentence must convince us that the given placement is itself inappropriate. As a practical matter, trial courts know the feasibility of alternative placements in particular counties or communities. For example, a court is aware of the availability, costs, and entrance requirements of community corrections placements in a specific locale.

King v. State, 894 N.E.2d 265, 267-68 (Ind.Ct.App.2008) (internal citations omitted).

As to Boss’s character, it appears that her criminal history consists only of a conviction for driving with a suspended license. She also expressed remorse during the sentencing hearing. Moreover, the victims stated that they did not want anything bad to happen to Boss, and the State recommended home detention. While we acknowledge the victims’ statements as well as the State’s recommendation, and Boss’s character notwithstanding, it is the nature of the offenses that is critical to our review of her sentence.

As to Boss’s offense, her failure to adequately restrain three dogs resulted in catastrophic injuries to two people. Furthermore, the testimony presented indicates that this was not the first occasion Boss’s dogs ran loose. In light of these factors, we find that Boss’s sentence of one year in jail for each count of failure to restrain a dog is appropriate.

4. Consecutive Sentences

Boss further asserts that her two one-year consecutive sentences violate the Fourteenth Amendment to the United States Constitution and Article 1, Section 23 of the Indiana Constitution because “she is not eligible to benefit from the consecutive sentencing limitations of Indiana Code [section] 35-50-1-2.” Boss’s Br. at 29. She maintains that her total sentence for the six class A misdemeanor convictions should not have exceeded one and one-half years, the advisory sentence for a class D felony. See I.C. § 35-50-2-7.

Indiana Code section 35-50-l-2(c) provides, in pertinent part, as follows:

except for crimes of violence, the total of the consecutive terms of imprisonment ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

(Emphasis added).

In Dunn v. State, 900 N.E.2d 1291, 1292 (Ind.Ct.App.2009), this court held that “[t]he clear and unambiguous language of Indiana Code section 35-50-1-2(c) requires the defendant to be sentenced for felony convictions in order to fall within its purviewf.]” Finding that Dunn had only misdemeanor convictions and failed to cite “other statutory, constitutional, or common law restrictions on consecutive sentences for misdemeanor offenses,” this court affirmed Dunn’s sentence.

Again, Boss asserts a constitutional basis for reversing her sentence. We note, however, that this court is not permitted to address a constitutional issue when we can base our decision on any other statutory or common-law basis. Wright v. State, 688 N.E.2d 224, 226 n. 4 (Ind.App.1997) (citing Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992)).

We recognize that Boss’s convictions arose out of a single criminal episode. Nonetheless, Boss’s failure to restrain her dogs resulted in serious injuries to two separate victims. Given that a single act resulted in separate harms to separate people, we cannot say that Boss is entitled to a limit on her sentence pursuant to Indiana Code section 35-50-1-2. See, e.g., Vance v. State, 860 N.E.2d 617, 620 (Ind.Ct.App.2007) (finding no error in the imposition of consecutive sentences on the defendant’s misdemeanor convictions where a single act resulted in separate harms).

Affirmed in part, reversed in part, and remanded with instructions.

BAKER, J., and BAILEY, J., concur.

      . Ind.Code § 15-20-1-4.

      . I.C. § 35-46-3-1.

      . Boss admittedly "assumed the role of owner to [the] three dogs....” Boss's Br. at 5.

      . We do not address the concurrent sentences imposed on Counts 7 through 12 as we hereby vacate those sentences.

      . The record does not include a pre-sentence investigation report.


author: RILEY, Judge.

text:
    Odonis D. PARKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1108-CR-381.
    Court of Appeals of Indiana.
    March 15, 2012.
    Ordered Published April 12, 2012.

      Anthony S. Churchward, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Odonis D. Parker (Parker), appeals his sentence for robbery, a Class B felony, Ind.Code § 35-42-5-1 .

We affirm.

ISSUES

Parker raises two issues on appeal, which we restate as:

(1) Whether Parker’s right to a speedy trial, pursuant to Indiana Criminal Rule 4(B), was violated even though he was released from incarceration upon expiration of the seventy-day period; and
(2) Whether the trial court violated Parker’s right to present a defense.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict are as follows. In January of 2011, Pervis Hall (Hall) and Trevon Thomas (Thomas) attempted to sell Thomas’ X-box gaming system by advertising it for sale on Hall’s Facebook page. Parker expressed his interest in buying the X-box and the parties reached an agreement on a purchase price of $300. On January 25, 2001, Parker came over to Hall’s house to pick up the gaming system. Hall and Trevon had placed the X-box on the porch and went to meet Parker when he drove up in a white Chevrolet Impala. Although there were other people in the car, only Parker exited the vehicle. Parker inspected the system and asked Hall and Thomas to help him carry the X-box to the car. While walking over to the car, Parker pulled out a handgun, pointed it at Thomas, and told both Thomas and Hall “it’s mine now, keep it movin’.” (Transcript p. 140). After placing the X-box in the trunk of the vehicle, Thomas and Hall backed away and Parker drove away without paying the purchase price.

On February 7, 2011, the State filed an Information charging Parker with robbery, a Class B felony. On February 10, 2011, Parker requested a speedy trial. The trial was initially set for April 7, 2011. However, on April 4, 2011, the State moved for a continuance because it had not yet been able to obtain the telephone records for Hall and Parker that it had been seeking. Over Parker’s objection, the trial court granted the continuance and rescheduled the trial for April 21, 2011, which was the seventieth calendar day following Parker’s speedy trial request.

On April 21, 2011, the State again moved for a continuance because even though it had obtained the telephone records, they were not in a form that would be admissible at trial. The trial court granted the motion over Parker’s objection, reset the trial for June 1, 2011, but released Parker on his own cognizance. On June 1, 2011, the trial court continued the cause due to congestion on the trial court’s calendar and rescheduled the trial for July 6, 2011.

On July 6, 2011, a jury trial was held. Prior to trial, Parker alerted the trial court and the State that he would request a lesser-included instruction on theft and announced his theory of defense. Specifically, Parker stated that the transaction involved marijuana, not an X-box system, and that he had failed to return with payment after being fronted the marijuana. Parker later made an offer of proof with respect to this theory of defense. The State objected, noting that the parties had known since March that Hall would be testifying by deposition, that the accusation of marijuana had never been raised before, and that Hall could not respond to this new allegation. The trial court granted the State’s objection, finding that the degree of prejudice to the State substantially outweighed the probative value. The trial court ruled that Parker could testify to his version of events without mentioning that the subject of the transaction was marijuana. At the close of the evidence the jury found Parker guilty as charged.

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

DISCUSSION AND DECISION

I. Indiana Criminal Rule 1(B)

Parker contends that his right to a speedy trial pursuant to Indiana Criminal Rule 4(B) was violated when the trial court failed to conduct his trial prior to the end of the seventy-day period. Initially, we note that even though Parker objected every time his trial date was continued, this was not sufficient to preserve this issue for our review. We have previously held that a defendant waives review of a speedy trial request on appeal “if he does not make a motion for discharge or motion for dismissal prior to trial.” Hampton v. State, 754 N.E.2d 1037, 1039 (Ind.App.2001). There is no indication in the record that Parker moved for discharge or dismissal prior to trial. Therefore, his claim is waived.

Waiver notwithstanding, we will address Parker’s claim on its merits. Indiana Criminal Rule 4(B) provides, in relevant part as follows:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Here, Parker requested a speedy trial on February 10, 2011. Therefore, the seventieth day from the date of that motion was April 21, 2001. Although a trial was scheduled for April 21, 2001, at the request of the State, the trial court continued the trial date. Nevertheless, on that same day, Parker was released in the instant cause on his own recognizance.

The purpose served by Crim. R. 4(B) is to prevent a defendant from being detained in jail for more than seventy days after requesting an early trial. Williams v. State, 631 N.E.2d 485, 486 (Ind.1994). Once released from custody, a defendant receives no further benefit from Crim. R. 4(B). Id. at 487. Instead, a non-incarcerated defendant’s right to a speedy trial is implemented by the one-year limitation period contained in Crim. R. 4(C). Id. Thus, as Parker was released from pre-trial incarceration on the seventieth day of his speedy trial request in the instant cause, his Crim. R. 4(B) right was not violated.

II. Right to Present a Defense

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Payne v. State, 854 N.E.2d 7, 17 (Ind.Ct.App.2006). An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Although the right to present a defense, which includes the right to present the defendant’s version of the facts, is of the utmost importance, it is not absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind.2001); Roach v. State, 695 N.E.2d 934, 939 (Ind.1998). “The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. One of the Rules of Evidence a defendant must abide by is Evid. R. 403, which provides that otherwise relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Although Parker had notified the State in advance that he would seek a jury instruction on theft, as a lesser included of robbery, Parker did not divulge his theory of defense until the day of trial. Both parties knew that Hall would not be available for trial, and Parker had agreed “with the State [] that this witness was not going to be present and that his deposition could be used in lieu of live testimony.” (Tr. p. 176). Allowing Parker to testify at trial that instead of buying an X-Box, he met Hall to purchase marijuana, would raise an accusation that Hall is a drug dealer. Being unavailable, Hall would not be able to respond to this allegation and the jury would not be able to observe Hall denying the allegation. We agree with the State that “[i]n a case that largely amounted to a credibility contest between the victims and [Parker], it was extremely prejudicial to make this drug dealing accusation at a time and in a manner where [Hall] would have no chance to refute it.” (Appellee’s Br. p. 14).

Furthermore, although the trial court prohibited Parker from testifying that the item was marijuana, the trial court’s ruling did not prevent the jury from making an inference adverse to the victims. Parker testified that he did not tell the police officers about the transaction because he “didn’t feel comfortable talking about it.” (Tr. p. 212). Also, in closing argument, Parker’s counsel referred to the transaction as “less th[a]n legitimate.” (Tr. p. 134).

In sum, we cannot conclude that Parker’s defense was impaired because he could not specifically name the marijuana as the item he claimed to attempt to purchase from Hall. Therefore, we find that the trial court did not abuse its discretion by excluding specific references to marijuana and Parker’s right to present a defense was not violated.

CONCLUSION

Based on the foregoing, we conclude that Parker’s right to a speedy trial was not violated and the trial court did not impair Parker’s right to present evidence when it excluded certain evidence.

Affirmed.

BARNES, J. and BRADFORD, J. concur.

      . Although this is a consolidated appeal that also involved a probation revocation issue under a different cause number, Parker does not raise any issue with respect to his probation case.

      . It should be noted that Parker continued to be incarcerated subsequent to April 21, 2011 on a pending probation revocation charge. However, Parker fails to make any arguments that his incarceration in a different cause has any impact on his speedy trial right in the instant cause.