author: Riley, Judge.

text:
    Brittanie R. CORBIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-12
    Court of Appeals of Indiana.
    FILED October 31, 2018
    Attorney for Appellant: Marc Lopez, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Brittanie Corbin (Corbin), appeals her conviction for operating a vehicle with an alcohol concentration equivalent (ACE) of 0.15 or more, a Class A misdemeanor, Ind. Code § 9-30-5-1(b) (2017).

ISSUES

[2] Corbin presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion in admitting certain evidence; and
(2) Whether the State presented sufficient evidence beyond a reasonable doubt to support Corbin's conviction for operating a vehicle with an ACE of 0.15 or more.

FACTS AND PROCEDURAL HISTORY

[3] On April 8, 2017, at approximately 11:36 p.m., two deputy sheriffs with the Montgomery County Sherriff's Department, Mathew Riddle (Deputy Riddle) and Ethan Redmon (Deputy Redmon), received a dispatch concerning a "disabled vehicle eastbound on I-74." (Transcript Vol. II, p. 15). The deputies arrived at the scene at approximately 11:43 p.m. and observed a "silver Chevy Cobalt on the right-hand shoulder." (Tr. Vol. II, p. 16). Deputy Riddle approached the vehicle from the driver's side, and Deputy Redmon advanced to the opposite side. Corbin was in the driver's seat, and there was a male passenger, "Alexander," in the front passenger seat. (Tr. Vol. II, p. 14). Deputy Riddle asked Corbin where she was coming from, and Corbin stated that "she was coming from a friend's wedding" and "was driving back to her Indianapolis area address." (Tr. Vol. II, p. 10). While talking to Corbin, Deputy Riddle observed that Corbin had "red glassy eyes and slow ... slurred speech." (Tr. Vol. II, p. 8). Based on his observation, Deputy Riddle formed an opinion that Corbin was "under the influence of either drugs or alcohol." (Tr. Vol. II, p. 8). Deputy Riddle consequently asked Corbin if she had drunk alcohol, and Corbin admitted that she "had." (Tr. Vol. II, p. 10). At that point, the deputies ordered Corbin and Alexander to exit the vehicle. Deputy Riddle observed that Corbin was "uneasy on her feet" and Corbin held onto Alexander "to keep her balance." (Tr. Vol. II, p. 11). Deputy Riddle began talking with Alexander, and after obtaining consent from Alexander, he tried to see if he "could get the vehicle running." (Tr. Vol. II, p. 11). While Alexander "looked under the hood to see if he could find the issue," Deputy Riddle attempted to "start the vehicle," but the vehicle was "inoperable." (Tr. Vol. II, p. 14).

[4] In the meantime, Deputy Redmon summoned Corbin to the side of the car in order to talk to her. As he was interacting with Corbin, Deputy Redmon observed that Corbin had "red blood[-]shot eyes and was unsteady on her feet." (Tr. Vol. II, p. 18). Corbin also emanated "an overwhelming odor of alcohol." (Tr. Vol. II, p. 18). Based on his "training and experience," Deputy Redmon formed the opinion that Corbin was "under the influence of a drug or alcohol." (Tr. Vol. II, p. 18). Deputy Redmon asked Corbin "how much" alcohol she had consumed, and Corbin stated, "maybe a glass or two" of "wine" at about "10:00-10:30" p.m. (State's Exh. 1 at 0:20-0:28). Implying that she was not intoxicated, Corbin continued, "you can check me if you want. I don't care." (State's Exh. 1 at 0:25). Deputy Redmon quickly responded, "Yep. We just want to make sure you are okay to drive, and we will figure out your car situation." (State's Exh. 1 at. 0:26). Shortly thereafter, Deputy Redmon walked back to his vehicle to retrieve something. When he returned, Deputy Redmon informed Corbin that he was going to conduct some tests "just to make sure she was okay to drive." (State's Exh. 1 at 1:47).

[5] Deputy Redmon administered a horizontal gaze nystagmus, a field sobriety test, in which Corbin "showed signs of being under the influence of either a drug or alcohol." (Tr. Vol. II, p. 21). Doubting Corbin's first response that she had drunk two glasses of wine, again, Deputy Redmon asked Corbin, "have you only had two glasses?" (State's Exh. 1 at 4:00). Corbin responded, "Yeah.... it feels like three maybe ... I haven't had many." (State's Exh. 1 at 4:00). At that point, Deputy Redmon administered a breathalyzer test, which determined that Corbin was intoxicated.

[6] Because Corbin had failed the administered tests, Deputy Redmon concluded that he had probable cause to arrest Corbin for operating a vehicle while intoxicated and he read Corbin the Indiana Implied Consent Law, which requires the officer to offer the suspect a certified chemical test. Corbin consented. Corbin was then handcuffed and transported to Montgomery County Jail. Corbin cried "throughout" her transportation to jail. (Tr. Vol. II, p. 29). At approximately 12:20 a.m., Deputy Redmon administered Corbin's chemical breath test. Prior to administering the test, Deputy Redmon ensured that Corbin had not eaten, drunk, smoked, or put any foreign objects in her mouth. The test revealed that Corbin had 0.152 grams of alcohol per 210 liters of breath.

[7] On April 19, 2017, the State filed an Information, charging Corbin with Count I, operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor and Count II, operating a vehicle while intoxicated, a Class C misdemeanor. On December 5, 2017, a bench trial was conducted. At the end of Corbin's bench trial, the trial court found her guilty of Count I, operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor; however, it dismissed Count II. On the same day, the trial court held a sentencing hearing and sentenced Corbin to a term of 180 days, all which, except time served, was suspended to probation.

[8] Corbin now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admission of the Evidence

[9] The admission or exclusion of evidence falls within the sound discretion of the trial court, and its determination regarding the admissibility of evidence is reviewed on appeal only for an abuse of discretion. Wilson v. State , 765 N.E.2d 1265, 1272 (Ind. 2002). 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. Doolin v. State , 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).

[10] Corbin argues that the trial court should have granted her motion to suppress the statements she made to the deputies prior to her arrest. We note that once a case proceeds to trial, the question of whether the trial court erred in denying a motion to suppress is no longer viable. Baird v. State , 854 N.E.2d 398, 403 (Ind. Ct. App. 2006), trans. denied . Instead, we review whether the trial court erred in admitting the evidence at trial. Id.

A. Miranda

[11] Corbin contends that while being questioned by deputies about drinking alcohol after she displayed signs of intoxication, the interrogation was custodial in nature and she should have been advised of her rights under Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In Miranda [ ] the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. These procedural safeguards include an advisement to the accused that he has the right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that if he cannot afford an attorney one will be appointed for him. However, these warnings are only required where a suspect is both in custody and subjected to interrogation.

State v. Necessary , 800 N.E.2d 667, 669-70 (Ind. Ct. App. 2003) (internal citation marks omitted). A law enforcement officer's duty to give Miranda warnings does not attach unless there has been such a restriction on a person's freedom as to render him in custody. Loving v. State , 647 N.E.2d 1123, 1125 (Ind. 1995). The Indiana Supreme Court has held:

Whether a person was in custody at a given time depends not upon the subjective views of either the interrogating officers or the subject being questioned but upon the "objective circumstances." An officer's knowledge and beliefs are only relevant to the question of custody if conveyed-through either words or actions-to the individual being questioned. Likewise, a police officer's "unarticulated plan has no bearing on the question" of custody. The test is how a reasonable person in the suspect's shoes would understand the situation.

Meriwether v. State , 984 N.E.2d 1259, 1263 (Ind. Ct. App. 2013).

[12] Corbin maintains that when the deputies initially spoke with her, and both formed the opinion that she was intoxicated and had driven the vehicle before it became disabled, the deputies' concern had shifted from a 'welfare check' to a potential criminal investigation. Corbin therefore contends that, at that moment, she was in a custodial-type situation, and the deputies should have given her Miranda warnings prior to questioning her.

[13] Corbin relies on Moore v. State , 723 N.E.2d 442, 446 (Ind. Ct. App. 2000) for the broad proposition that an interrogation is necessarily custodial once an officer knows or should know that he is investigating a potential crime and questioning a suspect. In Moore , police responded to the report of a pedestrian being struck by an automobile. Id. Moore, the driver of the automobile, was subsequently placed in the back seat of a police cruiser, could not leave the scene, and had a statutory duty to stay and provide information for an accident report. Id. This court acknowledged that under the circumstances, Moore was in a custodial-type situation, but that Moore was not in custody until the officer knew or should have known he was investigating a potential crime rather than just an accident when questioning the defendant. Id.

[14] While the deputies' initial concern was to check if Corbin needed assistance with her vehicle, we find that their encounter transitioned into a traffic stop. In Berkemer v. McCarty , 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court concluded that the "noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda ." Although the Court recognized that the defendant had been seized, it noted the brief nature of such stops, and that such stops "commonly occur in the public view, in an atmosphere far less police dominated than that surrounding the kinds of interrogation at issue in Miranda itself." Id . In Pennsylvania v. Bruder , 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988), the Court relied on Berkemer in holding that police officers were not required to give Miranda warnings where an officer "ask[ed] respondent a modest number of questions and request[ed] him to perform a simple balancing test at a location visible to passing motorists." Id. at 11, 109 S.Ct. 205.

[15] When Deputy Riddle first questioned Corbin on whether she had consumed any alcoholic beverage, Corbin was neither handcuffed nor physically restrained in any way, and she had not been told she was a suspect in a crime. There is no evidence that Deputy Riddle suggested to Corbin that she should cooperate, or implied that adverse consequences for noncooperation would result. After exiting her vehicle, Corbin indeed became a suspect to the crime of operating a vehicle while intoxicated. At that point, Deputy Redmon asked further questions about how many alcoholic drinks she had consumed at the wedding; however, we find that these questions were merely cumulative since Corbin had already admitted to Deputy Riddle about consuming alcohol prior to driving her vehicle.

[16] Moreover, the holding in Berkemer allows officers to ask questions and request sobriety tests of motorists whom they pull over. As such, we see no reason why the deputies in the instant case could not act similarly when they encountered Corbin at the scene of her disabled vehicle. See State v. Hicks , 882 N.E.2d 238, 243 (Ind. Ct. App. 2008) (holding the defendant was not in custody when a police officer asked her if she was driving a disabled vehicle in the immediate vicinity).

[17] Even if Corbin's statements to the deputies were obtained in violation of Miranda and erroneously admitted, they are subject to an analysis for harmless error. The improper admission of evidence is harmless error when the conviction is supported by substantial independent evidence of guilt so as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction." Lafayette v. State , 917 N.E.2d 660, 666 (Ind. 2009). "Reversal may be compelled if the record as a whole discloses that the erroneously admitted evidence was likely to have had a prejudicial impact on the fact-finder, thereby contributing to the judgment." Ground v. State , 702 N.E.2d 728, 732 (Ind. Ct. App. 1998). "To determine whether the erroneous admission of irrelevant and prejudicial evidence ... is harmless, we judge whether the jury's verdict was substantially swayed. If the error had substantial influence, or if one is left in grave doubt, the conviction cannot stand." Lafayette v. State , 917 N.E.2d 660, 666-67 (Ind. 2009) (citation and internal quotation marks omitted).

[18] Here, Deputy Riddle testified that after meeting Corbin, he observed that she had blood-shot eyes and slow, slurred speech. Deputy Riddle also saw that Corbin was unsteady on her feet when she exited her vehicle. Further, Deputy Redmon smelled an odor of alcohol when he approached Corbin. Corbin failed the field sobriety tests, she was handcuffed and transported to jail. While in jail, Corbin was administered a standardized chemical breath test after being booked in jail. Corbin's ACE was 0.152. Even without the admission of Corbin's inculpatory statements, Corbin's conviction for Class A misdemeanor driving while intoxicated with an ACE of 0.15 or more was supported by independent evidence, and there is no substantial likelihood that Corbin's statements to the deputies contributed to her conviction.

As such, any error in the admission of Corbin's statements was harmless.

B. Results of the Chemical Breath Test

[19] Corbin argues that pursuant to Indiana Code section 9-30-6-5(d), the results of her chemical breath test were inadmissible because the State was unable to certify that the chemical test was properly administered. We note that the results of a chemical breath test are inadmissible in a prosecution for operating while intoxicated unless the test operator, test equipment, chemicals used in the test, and test techniques have been approved in accordance with the rules promulgated by the Indiana University School of Medicine Department of Pharmacology and Toxicology. Ramirez v. State , 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied .

[20] Accordingly, for the results of a chemical breath test to be admissible, three foundational requirements must be satisfied: (1) the person who administered the test must be certified by the Department of Toxicology, (2) the equipment used in the test must have been inspected and approved by the Department of Toxicology, and (3) the operator must have followed the procedures approved by the Department of Toxicology. State v. Lloyd , 800 N.E.2d 196, 199 (Ind. Ct. App. 2003). Corbin challenges the third foundational requirement.

[21] Pursuant to Indiana Code section 9-30-6-5(a)(3), the state department of toxicology has promulgated an approved method for administering breath tests using the BAC DataMaster. 260 Ind. Admin. Code 2-4-1. In relevant part, the administrative rule contains the following steps:

STEP ONE: The person to be tested must:
(A) have had nothing to eat or drink;
(B) not have put any foreign substance into his or her mouth or respiratory tract; and
(C) not smoke;
within fifteen (15) minutes before the time a breath sample is taken.

260 I.A.C. 2-4-1(a). "The concern over foreign substances [placed in] a person's mouth is the potential for the substances to absorb and retain alcohol in the mouth, which could falsely elevate the breath alcohol concentration." Guy v. State , 823 N.E.2d 274, 277 (Ind. 2005). Corbin maintains that the results of her chemical breath test were inadmissible because part of 'STEP ONE' was not strictly adhered to. In particular, Corbin alleges that the

Video evidence of Corbin's encounter with police shows her sobbing .... Deputy Redmon testified that she was crying all the way to the Montgomery County Jail, but he was unable to confirm that no tears found their way into Corbin's mouth in the 15 minutes just prior to her certified breath test.

(Appellant's Br. p. 20). Corbin relies on Deputy Redmon's testimony that she cried "throughout" her transportation to jail, and because Deputy Redmon could not "accurately tell" if her tears "got in her mouth" within fifteen minutes before her breath sample was taken, the test was invalid and inadmissible at her bench trial. (Tr. Vol. II, p. 29) (Appellant's Br. p. 21).

[22] Corbin then argues that the facts of this case are "diametrically opposed to those in" Guy v. State , 823 N.E.2d 274 (Ind. 2005), and we should, therefore, reverse her conviction. In Guy , our supreme court held that the presence of a tongue stud placed in the defendant's mouth more than twenty minutes before a breath test did not render the test inadmissible. Id. at 275. The court examined the administrative code controlling the procedure for conducting a breath test and held that "[t]he logical conclusion to draw from the department of toxicology's use of the word 'put' is that any foreign substance placed in a person's mouth more than twenty minutes prior to a breath test poses no problem for the reliability of the results." Id. at 276. At the time, the court was referring to 260 Indiana Administrative Code 1.1-4-8(1), which was repealed in 2014 which then provided that "[T]he person to be tested must ... not have put any foreign substance into his or her mouth or respiratory tract ... within twenty (20) minutes before the time a breath sample is taken." Id.

[23] Corbin posits that during her transportation to jail, she was generating "fresh tears ... by the second." (Appellant's Br. p. 20). As such, pursuant to 260 I.A.C. 2-4-1(a), Corbin argues that her tears were foreign objects put in her mouth within fifteen minutes of her chemical breath test. In turn, the State argues that Corbin offered "no scientific evidence" at her trial, or now on appeal, to support her position that her tears were foreign objects put in her mouth or that her tears were skilled at invalidating a chemical breath test. (Appellant's Br. p. 15). Further, the State directs us to the record and urges us to consider any conflicting evidence in a light most favorable to the trial court's ruling. See Meriwether , 984 N.E.2d at 1262.

[24] Turning to the evidence, at Corbin's bench trial, Deputy Redmon testified that he examined Corbin's mouth at "11:54 p.m." and he did not observe any foreign objects in Corbin's mouth. (Tr. Vol. II, p. 26). Then at 12:20 a.m., after Corbin had been booked in jail, Deputy Redmon administered the chemical breath test. Prior to administering the test, he ensured that Corbin had not eaten, drunk, or smoked anything. Deputy Redmon testified that although Corbin cried on her way to jail, he could not tell if the tears entered Corbin's mouth. Because there is no evidence that Corbin's tears entered her mouth within fifteen minutes of her chemical breath test, and Corbin failed to present any scientific evidence in support of her claim, we conclude that the test was properly administered, and the trial court did not abuse its discretion in admitting the test results.

II. Sufficiency of the Evidence

[25] Corbin also contends that the State presented insufficient evidence to sustain her conviction for Class A misdemeanor operating a vehicle while intoxicated with an ACE of 0.15 or more. Specifically, she claims that (1) there was insufficient evidence to prove that she operated the vehicle, and (2) the chemical breath test was not administered within three hours of when she operated her vehicle.

[26] When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

[27] In order to convict Corbin of a Class A misdemeanor, the State was obligated to prove that she "operate[d] a vehicle with an [ACE] to at least fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100) milliliters of the person's blood; or (2) two hundred ten (210) liters of the person's breath." I.C. § 9-30-5-1(b). In this case, the results of Corbin's chemical breath test showed that her ACE was 0.152-well above the statutory threshold.

A. Operation of the Vehicle

[28] Corbin alleges that the State presented insufficient evidence beyond a reasonable doubt to show that she operated the vehicle. The word "operate" means to "navigate or otherwise be in actual physical control of a vehicle, motorboat, off-road vehicle, or snowmobile." I.C. § 9-13-2-117.5(a). In Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied , we listed four factors that could be used to determine whether a person "operated" a vehicle: "(1) the location of the vehicle when it is discovered; (2) whether the car was moving when discovered; (3) any additional evidence indicating that the defendant was observed operating the vehicle before he or she was discovered; and (4) the position of the automatic transmission." In addition to these four factors, "[a]ny evidence that leads to a reasonable inference should be considered." Id.

[29] Corbin relies on Johnson v. State, 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988), arguing that the State did not establish that she operated her disabled vehicle before encountering the deputies.

[30] In Johnson , a police officer investigated a vehicle parked on the side of the road. Johnson , 518 N.E.2d at 1127. An officer observed a vehicle parked off the road. Id. The officer stopped to investigate and found Johnson in the driver's seat. Id. Johnson explained that the car was disabled and proved the car would not start. Id. The officer asked Johnson for identification and ran a routine check on Johnson's license. Id. The officer learned Johnson's driving privileges had been revoked. Id. As such, he arrested Johnson for operating a motor vehicle while his driving privileges were suspended. Id. At his trial, Johnson explained he had not been driving the car, the car would not start, and he was waiting for a friend to return with a tow. Id. Two witnesses corroborated Johnson's story. Id. On appeal, we reversed Johnson's conviction. In reaching that holding, we noted that the State had presented no evidence at trial that Johnson had driven the car or that the car was operable at the time of Johnson's arrest. Id. at 1129.

[31] Although there are some factual similarities, we find the Johnson case distinguishable. Unlike Johnson , Corbin did not inform the deputies that she had not operated the vehicle or that she was waiting for towing services. We note that Corbin's vehicle had stalled on the shoulder of 1-74, an area used only for emergencies. While the record is silent as to the position of the vehicle's gear, Corbin was seated behind the wheel, and she informed the deputies that she was coming from a wedding and "was driving back to her Indiana, Indianapolis area address." (Tr. Vol. II, p. 11). It is reasonable to infer that in order to get her vehicle from the wedding to the shoulder of I-74, Corbin must have driven her vehicle to get to that location. Thus, applying the plain language of Indiana Code section 9-13-2-117.5 to this case, a reasonable finder of fact could conclude from this evidence that Corbin was in "actual physical control" of her vehicle and met the statutory definition of the word "operate."

B. Administration of the Chemical Breath Test

[32] Corbin argues that the State did not prove that the chemical breath test was completed within the requisite period of time. Indiana Code section 9-30-6-2 (c) provides that a chemical breath test "must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under [I.C. §] 9-30-5 or a violation under [I.C. §] 9-30-15."

[33] Indiana Code section 9-30-6-15(b) provides:

If, in a prosecution for an offense under [Indiana Code chapter] 9-30-5, evidence establishes that:
(1) a chemical test was performed on a test sample taken from the person charged with the offense within the period of time allowed for testing under section 2 of this chapter; and
(2) the person charged with the offense had an [ACE] to at least eight-hundredth (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person's blood at the time the test sample was taken; or
(B) two hundred ten (210) liters of the person's breath; the trier of fact shall presume that the person charged with the offense had an [ACE] to at least eight-hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the person's blood or per two hundred ten (210) liters of the person's breath at the time the person operated the vehicle. However, this presumption is rebuttable.

This statute allows a jury to relate the driver's ACE at the time of the chemical test back to the time the driver operated the vehicle. See Disbro v. State , 791 N.E.2d 774, 778 (Ind. Ct. App. 2003), trans. denied. If the State fails to prove that the chemical test occurred within three hours of when the defendant last operated her vehicle, it is not allowed to rely on the presumption. Allman v. State , 728 N.E.2d 230, 232 (Ind. Ct. App. 2000). Even if the test is not conducted within the three-hour time period, that affects only the presumption and not the test's admissibility. Mannix v. State , 54 N.E.3d 1002 (Ind. Ct. App. 2016).

[34] Among the cases that Corbin cites to is Mordacq v. State , 585 N.E.2d 22, 23 (Ind. Ct. App. 1992), where this court discussed whether the chemical breath test can "presumptively relate back to an act of operating a vehicle that occurred before an officer encountered the defendant ...." Analyzing this issue, we determined that

[I]n a case where the officer did not observe the defendant operating the vehicle, the statutes could be read to impose no limit on the relation back test, provided the test was performed within three hours of the time an officer investigated the defendant. Such an interpretation would distinguish between those defendants stopped (1) by the police while driving, and (2) those who stop of their own accord or by accident. This could lead to absurd and illogical results unintended by the legislature, and would operate to the disadvantage of those who, realizing their continued driving posed a threat to public safety, chose to stop. In our view, the three-hour limit expressed in I.C. [§] 9-30-6-2(c) begins not from the moment an officer ideates probable cause, but rather from the moment at which the vehicle was operated in violation of I.C. [§] 9-30-5.

Id. The State argues that Corbin's reliance on Mordacq is misplaced.

[35] In Mordacq , at approximately 2:30 a.m., an officer observed a vehicle parked alongside the road with its engine running. Id. An hour later, the officer returned to find that the vehicle was still there, and the defendant was asleep in the driver's seat. Id. After rousing the defendant and smelling alcohol on her breath, the police officer administered a breathalyzer test at 3:55 a.m., which demonstrated that the defendant had a blood alcohol level of 0.10. Id. Other than the defendant's own estimate that she had parked her vehicle along the street at least two hours earlier, there was no evidence indicating whether she had operated the vehicle within the three hours preceding the breathalyzer test. Id. Accordingly, we held that the "State's failure to prove the time [the defendant] operated her vehicle, to a degree precise enough to trigger a statutory presumption that incorporates a precise time limit, precludes evidentiary use of the presumption." Id. at 27.

[36] A few years after Mordacq , this court reached a similar conclusion in Allman v. State , 728 N.E.2d 230 (Ind. Ct. App. 2000). There, a police officer was dispatched to a car accident at approximately 10:00 p.m. Id. at 231. When the officer arrived, he observed a driver sitting in her vehicle off the side of the road, but no other vehicles or people were nearby. Id. The officer detected an odor of alcohol on the driver's breath; following two invalid breathalyzer tests, the driver's blood was drawn at 12:28 a.m. and revealed a blood alcohol level of 0.104. Id. Although the defendant's blood was drawn within three hours of the police dispatch, the statutory presumption was inapplicable because there was no evidence regarding when the accident occurred in order to relate the blood alcohol level back to the time of the accident. Id. at 234.

[37] While there are factual similarities among these cases and the current case, we find that the circumstantial evidence present in the case at bar readily distinguishes it from Mordacq and Allman . In both Mordacq and Allman , an officer responded to a parked vehicle where there were no other witnesses, and there were no other facts from which it could be inferred that the drivers had operated their vehicles within the necessary timeframe. In Corbin's case, the deputies were dispatched at 11:36 p.m., and they arrived at 11:43 p.m. to attend to Corbin's stalled vehicle facing eastbound near the 41 ½ mile marker on I-74. Corbin then informed the deputies that she was driving from a wedding and was heading home. Corbin displayed signs of intoxication. Corbin also informed Deputy Redmon that she had consumed two or three glasses of wine between 10:00 and 10:30 p.m. Deputy Redmon administered field sobriety tests, and Corbin failed all of them. Corbin was arrested and transported to jail.

[38] After Corbin had been booked in jail, she submitted to a chemical test. Deputy Redmon, a certified breath test operator, administered the test at approximately 12:20 a.m. The test showed that Corbin's ACE was 0.152, well above the statutory threshold. Our role on appeal is to consider "the probative evidence supporting the judgment and the reasonable inferences that may be drawn [therefrom.]" Dorsett v. State , 921 N.E.2d 529, 531 (Ind. Ct. App. 2010).

[39] Here, the fact finder was allowed to deduce that Corbin's last alcoholic beverage was consumed at 10:30 p.m. and after that, Corbin got behind the wheel and drove her vehicle before it broke down on I-74. Since Corbin's chemical breath test was administered at 12:20 a.m., it may be inferred from the evidence that a presumption existed that Corbin had an ACE of at least 0.15 at the time she operated the vehicle. Therefore, we conclude that the State met its burden of proof beyond a reasonable doubt, and we affirm Corbin's conviction for operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor.

CONCLUSION

[40] For the foregoing reasons, we conclude that the trial court did not abuse its discretion by admitting Corbin's statements to the deputies or the results of the chemical breath test. Also, the State presented sufficient evidence beyond a reasonable doubt to convict Corbin of Class A misdemeanor operating a vehicle with an ACE of 0.15 or more.

[41] Affirmed.

[42] Kirsch, J. and May, J. concur

      We held oral argument on October 9, 2018, at the Winchester Community High School, Winchester, Indiana. We commend counsel for their excellent presentations and thank Winchester Community High School for their hospitality in hosting this oral argument.


source: Caselaw Access Project

author: Pyle, Judge.

license: Public Domain

text:
    IN RE: the ADOPTION OF L.G.K.
    J.K., Appellant-Respondent, v. G.C., Appellee-Petitioner.
    Court of Appeals Case No. 18A-AD-371
    Court of Appeals of Indiana.
    FILED October 31, 2018 Rehearing denied December 11, 2018
    Attorney for Appellant: Darlene R. Seymour, Ciyou & Dixon, P.C., Indianapolis, Indiana
    Attorney for Appellee: Meredith L. McIntyre, McIntyre & Smith, Bedford, Indiana
   Pyle, Judge.

Statement of the Case

[1] G.C. ("Putative Father") filed a motion to set aside the adoption of the minor child L.G.K. ("Child") by J.K., her maternal grandfather ("Maternal Grandfather"). Maternal Grandfather appeals, raising one issue for our review, which we restate as whether the trial court properly granted Putative Father's motion for relief from judgment. We conclude that because Maternal Grandfather presented an adoption petition to the trial court in which E.K. ("Mother") fraudulently claimed that she did not know the identity of Child's father, the trial court did not err in granting Putative Father's motion for relief from judgment and setting aside the adoption.

[2] We affirm.

Issue

Whether the trial court properly granted Putative Father's motion for relief from judgment.

Facts

[3] The facts in the light most favorable to Putative Father are that Mother and Putative Father dated and had an intimate relationship from December 2013 through October 2014. In December 2014, Mother told Putative Father that she was pregnant. Putative Father saw Mother one time during the pregnancy and did not provide support. Putative Father's parents ("Paternal Grandparents"), however, maintained contact with Mother throughout the pregnancy.

[4] Child was born on August 20, 2015. Putative Father was not present at the birth, but Paternal Grandparents visited Mother at the hospital shortly after Child was born, and Putative Father's mother informed him that Child had been born. Putative Father's name was not listed on Child's birth certificate, and Putative Father did not establish paternity or register with the Putative Father Registry. Putative Father testified that he and Mother took a DNA test using a product obtained from a drugstore, and that the test showed that he was Child's biological father. Mother disputes this.

[5] After Child was born, Mother and Putative Father lived together for approximately six months and acted as parents to Child. Both Putative Father and Paternal Grandparents established a relationship with Child. Child calls Putative Father "dad" and calls Paternal Grandparents "granny" and "poppy." Mother and Putative Father eventually separated, but Putative Father continued to visit regularly with Child. Mother and Putative Father jointly hosted a birthday party for Child when Child turned one year old. Maternal Grandfather attended the party.

[6] Mother led Putative Father to believe that he was the biological father of Child. At some point, Mother told Putative Father that she was going to the prosecutor's office to establish child support but did not do so. She requested child support from Putative Father of $400.00 per month, which Putative Father paid at times and Mother accepted. Mother threatened to take Putative Father to court and deny him visitation unless he paid her child support. Mother and Putative Father discussed going to the Indiana Department of Health to have Putative Father listed on Child's birth certificate; however, this was not done. At one point, Mother agreed to have Putative Father's name placed on Child's birth certificate, but she did not do so.

[7] On February 17, 2017, B.P., Mother's then fiancé, filed a petition to adopt Child. Putative Father was not provided with notice of the petition. On May 10, 2017, Maternal Grandfather filed a petition for adoption ("Second Adoption Petition"), and B.P. agreed to it. Putative Father was not provided with notice of the Second Adoption Petition. The Second Adoption Petition stated that the biological father was unknown and had not been disclosed by Mother to Maternal Grandfather or Maternal Grandfather's attorney. The Second Adoption Petition was granted, and the decree of adoption was issued on May 22, 2017.

[8] On June 19, 2017, under a separate cause number, Putative Father filed a petition to establish paternity and for orders relating to custody, visitation, and support. Putative Father continued to have contact with Child after the adoption decree was issued, though Putative Father did not learn of Child's adoption until Mother moved to dismiss his paternity action. Putative Father registered with the Putative Father Registry in August 2017.

[9] On August 4, 2017, Putative Father filed a motion to set aside the adoption, alleging that Mother and Maternal Grandfather defrauded him by "allowing him to have a regular visitation schedule with this child, by taking his regular child support payments, and allowing him to be this child's father, while behind the scenes, [Mother] was planning to have this child adopted by first her fianc[é], and then by her father." (App. Vol. 2 at 9). Maternal Grandfather filed a motion to dismiss Putative Father's motion. Putative Father responded and, additionally, moved for relief from judgment.

[10] The trial court held an evidentiary hearing on November 28, 2017. On January 25, 2018, the trial court granted Putative Father's motion to set aside the adoption. The court issued a written order, determining (among other things) that:

[Mother] held [Putative Father] out to be the [Child's] Father to [Putative Father], his family, her family and to the child up to and including the summer of 2017. The photos and text messages entered into evidence establish that [Putative Father] and his family have a loving relationship with [Child].
Based on the Court's observation of [Mother] and the evidence presented, the Court does not find her to be credible.

(App. Vol. 2 at 10). The trial court concluded (in relevant part) that:

The child's rights as well as [Putative Father's] rights are not well served by denying notice and a hearing to a father whose identity and location were known by the Petitioner. Further, by not setting aside this order, the child's right to an involved and loving parent is compromised.... [Putative Father] has demonstrated that he established a substantial relationship with the child and was not given the right to contest the adoption or proceed with his Paternity matter, and/or the Petitioner procured a fraud upon the Court by stating in his Petition that " 'The biological father is unknown and has not been disclosed to the petitioner or petitioner's attorney by the Mother' " when it was clear to the Court that the Petitioner knew that [Putative Father] had been acting as and was believed to be the child's Father, therefore invoking the Court to set the Adoption aside under Indiana Trial Rule 12(b)(6) [sic]. Further, that [Putative Father] was fraudulently induced, through material misrepresentations by [Mother], to not exercise his obligations or rights to take legal action to establish his rights legally. The Court further finds that [Putative Father] had standing to join in the Adoption because of the fraudulent actions of the Petitioner and to protect his due process rights allowing him to be equally protected as a parent and/or to proceed with his right [to] establish legally whether or not he is the Father. Further, he is furthering the rights of the child to determine whether she will be able to continue with their relationship and a relationship with her possible half-sister. [Putative Father] should have been notified of the filing of any Petition for Adoption of the minor child, [L.G.K.].

(App. Vol. 2 at 18-19).

Discussion

[11] The issue before us is whether the trial court properly granted Putative Father's motion for relief from judgment. Maternal Grandfather argues that the trial court erred in granting the motion for relief from judgment, and that the trial court should have upheld the adoption decree and dismissed Putative Father's paternity action. According to Putative Father, the trial court reached the correct result because Mother and Maternal Grandfather perpetrated fraud on the court by misrepresenting their knowledge of the existence of Putative Father as Child's biological father. In his reply brief, Maternal Grandfather maintains that "[Putative] Father cannot cry " 'fraud' ", as Mother is not to blame for [Putative Father's] own inaction in failing to register" with the Putative Father Registry. (Maternal Grandfather's Reply Br. 9).

[12] The trial court's decision whether to set aside a judgment is given substantial deference on appeal, and we will reverse only if the trial court abused its discretion. In re Adoption of L.C.E. , 940 N.E.2d 1224, 1226 (Ind. Ct. App. 2011). An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. In reviewing the trial court's decision, we will not reweigh the evidence or substitute our judgment for that of the trial court. Id.

[13] Trial Rule 60 motions address the equitable grounds justifying relief from the legal finality of the final judgment. Blichert v. Brososky , 436 N.E.2d 1165, 1167 (Ind. Ct. App. 1982). Indiana Trial Rule 60(B)(3) provides that a court may relieve a party from a final judgment based on fraud, misrepresentation, or other misconduct of an adverse party. The decision of whether to grant or deny such a motion is left to the equitable discretion of the trial court. Stonger v. Sorrell , 776 N.E.2d 353, 358 (Ind. 2002) ; Levin v. Levin , 645 N.E.2d 601, 604 (Ind. 1994). We will not reverse a grant or denial of a motion for relief from judgment in the absence of an abuse of discretion. Stonger , 776 N.E.2d at 358 ; see also Beike v. Beike , 805 N.E.2d 1265, 1267 (Ind. Ct. App. 2004). The burden is on the movant to demonstrate that relief is both necessary and just. Levin , 645 N.E.2d at 604.

[14] When, as in this case, the trial court has made findings of fact and conclusions thereon, we apply a two-tiered standard of review: "we must first determine whether the evidence supports the findings and second, whether the findings support the judgment." In re Adoption of T.W. , 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006) ; see also Ind. Trial Rule 52(A) (providing that where the trial court has made findings of fact and conclusions of law, "the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."). Factual findings "are clearly erroneous if the record lacks any evidence or reasonable inferences to support them [and] ... [a] judgment is clearly erroneous when it is unsupported by the findings of fact and the conclusions relying on those findings." T.W. , 859 N.E.2d at 1217.

[15] To assert a claim of fraud on the court, the party must establish that an unconscionable plan or scheme was used to improperly influence the court's decision and that such acts prevented the losing party from fully and fairly presenting its case or defense. Stonger , 776 N.E.2d at 357. The party also must show that he has a "meritorious claim or defense." Outback Steakhouse of Florida, Inc. v. Markley , 856 N.E.2d 65, 73 (Ind. 2006). This meritorious claim or defense requirement merely requires a prima-facie showing, that is, " 'a showing that will prevail until contradicted and overcome by other evidence.' " Id. This requires a showing that " 'vacating the judgment will not be an empty exercise.' " Id.

[16] Fraud on the court has been narrowly applied and is limited to the most egregious of circumstances involving the courts. Stonger , 776 N.E.2d at 357. To prove fraud on the court, it is not enough to show a possibility that the trial court was misled. Id. at 358. Instead, there must be a showing that the trial court's decision was actually influenced. Id.

[17] Here, Putative Father alleges that Mother "misrepresented to [Putative Father] the facts regarding his relationship with [Child], and [Maternal Grandfather] and Mother misrepresented their knowledge about the existence of [Putative Father] as [Child's] biological father[, and that] [a]s a result of these misrepresentations, [Putative Father] failed to file with the putative father registry[,] and the trial court ... granted [Maternal Grandfather's] adoption petition." (Putative Father's Br. 11). This allegation thus alleges an unconscionable plan or scheme was used to improperly influence the court's decision and that such acts prevented Putative Father from fairly presenting his case. See Stonger , 776 N.E.2d at 357. We agree.

[18] Putative Father grasped the opportunity to undertake his parental responsibilities toward Child by exercising regular visitation with Child, paying child support to Mother, and attending Child's doctor's appointments. At the same time, Mother was holding Putative Father out as Child's father, accepting child support payments, and permitting Putative Father to exercise visitation. This continued even after Maternal Grandfather filed the adoption petition. Mother allowed Putative Father to keep Child over a weekend in June 2017, after the adoption petition was granted and before Putative Father was made aware of the adoption. Mother knew that Child called Putative Father "dad," and Mother, Putative Father, and Child had all lived together for a period of time. In addition, Putative Father was led to believe, and indeed believed, he was Child's father. Nevertheless, Maternal Grandfather fraudulently presented an adoption petition to the trial court claiming that Mother did not know the identity of Child's father.

[19] Based on the language of the trial court's written order granting (among other things) relief from judgment, it appears that the court was strongly of the view that its granting of the adoption petition was significantly influenced by Maternal Grandfather's claim that Mother did not know the identity of the Child's father. The trial court specifically found that "[b]ased on the Court's observation of [Mother] and the evidence presented [at the evidentiary hearing], the Court does not find her to be credible." (App. Vol. 2 at 10). We will not second-guess the trial court's finding.

[20] We are aware and acknowledge that INDIANA CODE § 31-19-5-18 governs the waiver of notice rights of unregistered putative fathers, providing that, "A putative father who fails to register within the period specified by section 12 of this chapter waives notice of an adoption proceeding. The putative father's waiver under this section constitutes an irrevocably implied consent to the child's adoption." I.C. § 31-19-5-18. INDIANA CODE § 31-19-5-12(a) sets forth the time period in which a putative father must register, that is, for our purposes, within thirty days of the child's birth or by the date on which the petition to adopt the child is filed, whichever is later. We also acknowledge that statutes and established caselaw provide that "a putative father whose consent has been implied may not challenge the adoption or establish paternity." See, e.g., In re Paternity of Baby Doe , 734 N.E.2d 281, 285 (Ind. Ct. App. 2000) ; In re Adoption of J.D.C. , 751 N.E.2d 747, 750 (Ind. Ct. App. 2001) ; In re Adoption of K.G.B. , 18 N.E.3d 292, 297 (Ind. Ct. App. 2014) ; In re Adoption and Paternity of K.A.W. , 99 N.E.3d 724 (Ind. Ct. App. 2018) ; I.C. §§ 31-19-9-13, -14.

[21] Here, a verified petition for adoption was filed by Maternal Grandfather that stated that Mother did not disclose the name of Child's putative father. See I.C. § 31-19-5-1. However, evidence was presented at the evidentiary hearing that both Maternal Grandfather and Mother knew that Putative Father was Child's father, and that Mother chose not to disclose this. Regardless of Putative Father's statutory waiver of notice of the adoption proceeding for failure to register with the Putative Father Registry, the fraud perpetrated by Mother and Maternal Grandfather precluded the trial court from having an opportunity to consider Putative Father's relationship, as well as his family's relationship, with Child which compromises the best-interests aspect of the adoption decision-making process. See I.C. § 31-19-11-1(a)(1). Under this set of facts, and in support of the trial court's belief that Mother lacked credibility at the evidentiary hearing, we conclude that Putative Father was entitled to equitable relief, notwithstanding Putative Father's failure to register with the Putative Father Registry.

[22] Based on the foregoing, we find that Mother and Maternal Grandfather engaged in an unconscionable plan or scheme to improperly influence the court's decision regarding the adoption, that such acts ultimately prevented Putative Father from fairly challenging the adoption of Child, and that Putative Father established a prima-facie showing of a meritorious defense. Therefore, we conclude that the trial court properly granted Putative Father's motion for relief from judgment and did not abuse its discretion in doing so.

[23] Affirmed.

Najam, J., and Crone, J., concur.

      Father's motion for relief from judgment was not provided in the record on appeal.

      The trial court also denied Mother's motion to dismiss the paternity action, although it is unclear when the trial court consolidated the paternity action with the adoption matter.

      The parties also raise arguments of constitutional due process, relating to a putative father registering (or failing to register) with the Putative Father Registry, and interpretation of the adoption statutes. Finding the issue of fraud dispositive, we decline to address those arguments.

      The statutory authority governing the Putative Father Registry
      applies to a putative father whenever (1) an adoption under IC 31-19-2 has been or may be filed regarding a child who may have been conceived by the putative father; and (2) on or before the date the child's mother executes a consent to the child's adoption, the child's mother has not disclosed the name or address, or both, of the putative father to the attorney or agency that is arranging the child's adoption.
      I.C. § 31-19-5-1(a).

      Indiana Code § 31-19-11-1(a)(1) reads as follows: "(a) Whenever the court has heard the evidence and finds that: (1) the adoption requested is in the best interest of the child; ... the court shall grant the petition for adoption and enter an adoption decree.


author: Najam, Judge.

text:
    Devon R. GRANGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1494
    Court of Appeals of Indiana.
    FILED October 31, 2018
    Attorney for Appellant: Andrew R. Falk, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Devon Granger appeals his conviction for possession of paraphernalia, as a Class C misdemeanor, following a bench trial. Granger presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction based upon his possession of a grinder. We reverse.

Facts and Procedural History

[2] On October 18, 2017, Avon Police Department Officer Jacob Elder saw Granger driving well over the speed limit and initiated a traffic stop. After Officer Elder asked Granger for his license and registration, Officer Elder saw a grinder in the door handle area of the driver's side door. Officer Elder recognized the grinder as something that is used to grind marijuana into finer pieces for "easier" consumption. Tr. at 48. Accordingly, Officer Elder asked Granger to exit the vehicle, read him his Miranda rights, and asked him whether there was "anything else illegal in the vehicle." Id. at 46. Granger responded in the negative, and Officer Elder searched the vehicle but did not find anything else of interest. Officer Elder found a substance that he believed to be marijuana inside the grinder. Accordingly, Officer Elder arrested Granger.

[3] The State charged Granger with possession of paraphernalia, as a Class C misdemeanor. Following a bench trial, the trial court found him guilty as charged and entered judgment. The court sentenced Granger to time served. This appeal ensued.

Discussion and Decision

[4] Granger contends that the State presented insufficient evidence to support his conviction. In reviewing the sufficiency of the evidence, we consider only the evidence and reasonable inferences most favorable to the conviction, neither reweighing the evidence nor reassessing witness credibility. Griffith v. State , 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable fact-finder could find the defendant guilty. Id.

[5] To prove possession of paraphernalia, as a Class C misdemeanor, the State was required to show that Granger knowingly or intentionally possessed an instrument, device, or other object that he intended to use for "introducing into [his] body a controlled substance." Ind. Code § 35-48-4-8.3(b)(1) (2018). Granger asserts that the State did not present any evidence that the grinder could be used to introduce marijuana into his body. We must agree.

[6] Our goal in statutory interpretation is to determine the legislature's intent, which, if the statute is unambiguous, we do by following the plain and ordinary meaning of the statute. E.g. , Jones v. State , 87 N.E.3d 450, 454 (Ind. 2017). Here, Granger's conviction depends on the meaning of "introducing" as used in the statute, and to "introduce" is defined in relevant part as "to put or insert into." Webster's Third New Int'l Dictionary 1186 (2002). Thus, an instrument or device that is used to put or insert a controlled substance into the body is paraphernalia under the statute.

[7] Officer Elder testified that the grinder was "a device to grind [marijuana] down more finely so [that the person] can consume it easier." Tr. at 48. And he agreed that the grinder was used "in preparation of using marijuana ." Id. (emphasis added). But there is a material distinction between possession of an instrument or device that can only be used to prepare a controlled substance for consumption and possession of an instrument or device that can be used to introduce a controlled substance into the body. Here, the evidence shows only that the grinder could be used to prepare marijuana for ingestion by another means, such as by a joint, a pipe, or a bong.

[8] We hold that the term "paraphernalia" as used in Indiana Code Section 35-48-4-8.3(b)(1) does not apply to an instrument or device that merely prepares a substance for introduction into the body by another means. Because the State did not present evidence that the grinder could itself be "use[d] for[ ] introducing" marijuana into Granger's body, the evidence is insufficient to support his conviction.

[9] Still, the State asserts in the alternative that, "should this Court find that a grinder could not physically be used for introducing controlled substances into the body," Granger's conviction should be affirmed because "[t]he variance between the charging information and the proof presented at trial was not fatal" to the case against Granger. Appellee's Br. at 12-13. In particular, the State maintains that the evidence shows that Granger's possession of paraphernalia also falls under Indiana Code Section 35-48-4-8.3(b)(3), which prohibits possession of an instrument, device, or other object that the person intends to use for enhancing the effects of a controlled substance. And the State contends that Granger was "in no way misled by any arguable error in the charging information"; he "was on proper notice of his alleged crime"; and his "defenses would not have been impacted in any way regardless of what subsection of the statute" Granger was charged under. Appellee's Br. at 14.

[10] The State is incorrect. The State's purported "variance" argument is really an argument that a different offense occurred, namely, an uncharged offense under subsection (b)(3) rather than the charged offense under subsection (b)(1). Our Supreme Court has made clear that the State may not make such arguments. Young v. State , 30 N.E.3d at 719, 726 (Ind. 2015) (holding that a fair trial was impossible where the State had charged the defendant with attempted aggravated battery by shooting but pursued a theory of attempted aggravated battery by beating during trial). Here, the State did not charge Granger with possession of the grinder with the intent to use it to enhance the effects of marijuana. Indeed, the State presented no evidence to show that the grinder could enhance the effects of marijuana, and Granger had no notice to prepare a defense against such an allegation. We reject the State's contention on this issue.

Conclusion

[11] The State introduced no evidence that the grinder could be used to introduce marijuana into Granger's body. And we reject the State's argument in the alternative that we should affirm Granger's conviction because the variance between the charging information and the proof presented at trial was not fatal. Accordingly, we reverse Granger's conviction for possession of paraphernalia, as a Class C misdemeanor.

[12] Reversed.

Crone, J., and Pyle, J., concur.

      While a grinder does not constitute "paraphernalia" under the statute because it cannot be used to introduce marijuana into a person's body, it might be considered paraphernalia as that term is commonly used to describe evidence of the "manufacture" of marijuana under Indiana Code Section 35-48-1-18, just as with scales, baggies, and the like. See, e.g. , Bell v. State , 626 N.E.2d 570, 571 (Ind. Ct. App. 1993), trans. denied .


text:
    Damien D. MURPHY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 79A05-1709-CR-2319
    Court of Appeals of Indiana.
    Filed October 31, 2018
    Attorney for Appellant: Robert J. Little, Lafayette, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Andrew Kobe, Deputy Attorney General, Indianapolis, Indiana
   Pyle, Judge.

Statement of the Case

[1] In this interlocutory appeal, Damien Murphy ("Murphy") appeals the trial court's denial of his motion to dismiss two petitions to revoke his probation, which were both filed after his probationary period had ended. He argues that the trial court does not have authority to hold a revocation hearing and make a final determination on any allegation within the revocation petitions because the trial court did not toll his probation pursuant to the tolling provision in the probation revocation statute.

[2] We conclude that the tolling provision in the revocation statute does not apply to the facts of this case and note that the probation revocation statute sets out the trial court's authority for holding a revocation hearing and entering a determination on a probation allegation in a timely-filed revocation petition. Because the first revocation petition was timely filed and the second revocation petition was not, we affirm the trial court's denial of Murphy's motion to dismiss the first revocation petition, reverse the trial court's denial of Murphy's motion to dismiss the second revocation petition, and remand for further proceedings on the first revocation petition.

[3] We affirm in part, reverse in part, and remand.

Issue

Whether the trial court abused its discretion by denying Murphy's motion to dismiss the two probation revocation petitions.

Facts

[4] On October 11, 2016, Murphy entered into a plea agreement and pled guilty as charged to Class B misdemeanor possession of marijuana. That same day, the trial court, pursuant to the plea agreement, sentenced Murphy to "180 days, suspended upon timely and satisfactory completion of all terms and conditions of [unsupervised] probation[,]" which included, among other conditions, the requirement to "[c]ontinue school at the Excel Center to obtain high school diploma and provide proof to [the] court." (App. Vol. 2 at 11, 12). Under Murphy's plea agreement, he also had a probation term requiring him to pay for court services and attend drug and alcohol evaluations within six months. The trial court set a probation review hearing for May 25, 2017, at which time Murphy was "to bring written proof of [the] completion of all probation requirements." (App. Vol. 2 at 12).

[5] When Murphy appeared at the probation review hearing on May 25, 2017, he had apparently not completed all of his probation requirements. That same day, the State filed a petition to revoke Murphy's probation ("First Probation Revocation Petition"), alleging that Murphy had violated probation by: (1) failing to "[c]omplete all Court Services requirements for drug and alcohol evaluation, fees, referral, etc.[;]" and (2) failing to provide "[p]roof of Excel completion[.]" (App. Vol. 2 at 13). The trial court conducted an initial hearing on the petition that same day. The trial court did not issue a warrant or summons.

[6] Shortly thereafter, on July 6, 2017, the State filed another petition to revoke probation ("Second Probation Revocation Petition"), alleging that Murphy had violated probation by "failing to maintain good and lawful behavior." (App. Vol. 2 at 20. Specifically, the State alleged that "on or about June 28, 2017, [Murphy] committed the offenses of Dealing in a narcotic Drug, Possession of a Narcotic Drug, Resisting Law Enforcement, Operating While Intoxicated Endangering a Person, Operating While Intoxicated with an ACE of .08 or More, and Possession of Marijuana[.]" (App. Vol. 2 at 20).

[7] A few days later, on July 10, 2017, Murphy filed a motion to dismiss the two revocation petitions. He stated that his probationary period had ended on April 8, 2017 and argued that both revocation petitions should be dismissed because they were filed outside the limits set out in INDIANA CODE § 35-38-2-3(a). Specifically, Murphy argued that the First Probation Revocation Petition should be dismissed because it was filed on May 25, 2017, which was forty-eight days after his probationary period had ended and that the Second Probation Revocation Petition should be dismissed because it alleged that he had violated probation on June 28, 2017, which was after his probationary period had ended. Additionally, Murphy argued that, even if the trial court were to find that the two revocation petitions were filed in accordance with INDIANA CODE § 35-38-2-3(a), the trial court "no longer ha[d] jurisdiction" to make a final determination of any allegation because the trial court had not issued a summons or warrant that would have tolled his probationary period as set out in INDIANA CODE § 35-38-2-3(c). (App. Vol. 2 at 34). He further argued that the "filing of a petition to revoke probation in and of itself d[id] not toll the period of probation" because " I.C. [§] 35-38-2-3(c) very clearly states that a period of probation is tolled only when a summons or warrant is issued." (App. Vol. 2 at 35) (emphasis in original).

[8] On July 27, 2017, the trial court held a hearing on Murphy's motion to dismiss. During the hearing, the trial court determined that: (1) the First Probation Revocation Petition was timely filed because the State had filed it within forty-five days of receiving notice of the violation on May 25, 2017; (2) the filing of the First Probation Revocation Petition "toll[ed] the probationary period[;]" and (3) the Second Probation Revocation Petition was timely filed because Murphy's probation had been tolled by the filing of the First Probation Revocation Petition. (Tr. Vol. 2 at 10). The trial court then issued an order denying Murphy's motion to dismiss both revocation petitions.

[9] Thereafter, upon Murphy's motion, the trial court certified its order for an interlocutory appeal. Murphy then sought and was granted permission by our Court to file an interlocutory appeal. Murphy now appeals the trial court's order denying his motion to dismiss.

Decision

[10] Murphy appeals the trial court's denial of his motion to dismiss the two probation revocation petitions. "We review a trial court's denial of a motion to dismiss for an abuse of discretion, and we reverse only where the trial court's decision is clearly against the logic and effect of the facts and circumstances." Frink v. State , 52 N.E.3d 842, 845 (Ind. Ct. App. 2016).

[11] Resolution of this appeal requires us to review and interpret INDIANA CODE § 35-38-2-3, which provides, in relevant part, as follows:

(a) The court may revoke a person's probation if:
(1) the person has violated a condition of probation during the probationary period; and
(2) the petition to revoke probation is filed during the probationary period or before the earlier of the following:
(A) One (1) year after the termination of probation.
(B) Forty-five (45) days after the state receives notice of the violation.
(b) When a petition is filed charging a violation of a condition of probation, the court may:
(1) order a summons to be issued to the person to appear; or
(2) order a warrant for the person's arrest if there is a risk of the person's fleeing the jurisdiction or causing harm to others.
(c) The issuance of a summons or warrant tolls the period of probation until the final determination of the charge.
(d) Except as provided in subsection (e), the court shall conduct a hearing concerning the alleged violation....
* * * * *
(j) If the court finds that the person has violated a condition during any time before the termination of the period, and the petition is filed under subsection (a) after the probationary period has expired, the court may:
(1) reinstate the person's probationary period, with or without enlarging the conditions, if the sum of the length of the original probationary period and the reinstated probationary period does not exceed the length of the maximum sentence allowable for the offense that is the basis of the probation; or
(2) order execution of all or part of the sentence that was suspended at the time of the initial sentencing.

[12] The crux of Murphy's appellate argument, however, is that the trial court was without jurisdiction to hold a probation revocation hearing on the First and Second Probation Revocation Petitions because it did not toll his probation pursuant to INDIANA CODE § 35-38-2-3(c). He contends that, in order for the trial court to have authority to hold a revocation hearing and make a final determination on an allegation within a revocation petition, the trial court was required to toll his probation under subsection (c) by issuing a summons or a warrant. The State, on the other hand, recognizes the language of subsection (c) but contends that the First Probation Revocation Petition "served the same purpose as a summons or warrant" and, as a result, tolled Murphy's probation and would allow the trial court to retain jurisdiction to hold a revocation hearing on both revocation petitions. (State's Br. 12).

[13] The overriding issue in this interlocutory appeal is whether the trial court has jurisdiction or authority to hold a revocation hearing and enter a disposition on the First and Second Probation Revocation Petitions. To resolve this issue, the parties focus on whether the trial court had tolled Murphy's probation pursuant to INDIANA CODE § 35-38-2-3(c). That focus, however, is misplaced because Murphy's probationary period had already ended prior to the State's filing of the two probation revocation petitions. We have explained that "tolling [under INDIANA CODE § 35-38-2-3(c) ] does not apply to violations filed after the probationary period ends." Davis v. State , 35 N.E.3d 261, 264 (Ind. Ct. App. 2015) (citing IND. CODE § 35-38-2-3(b) - (c) ). If the State files a notice of probation violation after a defendant's probation has ended, as the State did here pursuant to subsection (a)(2) of the revocation statute, then "there [i]s no period of probation to be tolled, which means the trial court c[an] not continue [a defendant's] terms of probation pursuant to Ind. Code § 35-38-2-3(c)." Id. Because Murphy's probationary period had already ended, it could not be tolled.

[14] Therefore, we turn to the relevant focus in this interlocutory appeal, which is whether the trial court has authority to hold a revocation hearing and enter a disposition on the revocation petitions. We recognize that "once a probationer's term of probation has expired, the court loses jurisdiction over that person." Hayes v. State , 590 N.E.2d 1116, 1118 (Ind. Ct. App. 1992), trans. denied. Nevertheless, "[t]he disposition regarding a violation of probation may occur after the probationary period has ended, but the violation must have occurred within the probationary period." Trammell v. State , 45 N.E.3d 1212, 1215 (Ind. Ct. App. 2015) (citing Dawson v. State , 751 N.E.2d 812, 814 (Ind. Ct. App. 2001) ).

[15] Indeed, the probation revocation statute sets out the trial court's authority for holding a revocation hearing and entering a determination on a probation revocation allegation in a timely-filed revocation petition. "A statute must be held to mean what is clearly and plainly expressed therein." Hayes , 590 N.E.2d at 1118. Subsection (a) makes clear that a trial court "may revoke a person's probation" only "if the person has violated a condition of probation during the probationary period" and the revocation petition is filed either during the probationary period or after probation has ended but within the time periods contained in the statute. I.C. § 35-38-2-3(a). If there is a timely-filed revocation petition under subsection (a), subsection (d) mandates that a trial "court shall conduct a hearing concerning the alleged violation." I.C. § 35-38-2-3(d) (emphasis added). At such hearing, the State is required to prove the violation by a preponderance of the evidence. See I.C. § 35-38-2-3(f). Additionally, subsection (j) sets forth the dispositional options a trial court has when it "finds that a person has violated a condition during any time before the termination of the period, and the petition is filed under subsection (a) after the probationary period has expired[.]" I.C. § 35-38-2-3(j). Thus, the trial court has the authority to hold a revocation hearing and enter a determination on a probation allegation but only if the two revocation petitions have met the timely-filing requirements of subsection (a).

[16] Here, the trial court sentenced Murphy and placed him on probation on October 11, 2016. Therefore, his probationary period ended 180 days later on April 9, 2017. The State filed the First Probation Revocation Petition on May 25, 2017, which Murphy does not dispute was within forty-five days of the State receiving notice that Murphy had allegedly failed to complete all of his probation requirements during his probationary period. Thus, the First Probation Revocation Petition complied with the requirements of subsection (a) and was timely filed. Pursuant to subsection (d), the trial court is required to "conduct a hearing concerning the alleged violation[s]." I.C. § 35-38-2-3(d). Because the trial court has authority pursuant to the revocation statute to hold a revocation hearing and to enter a determination on this timely-filed petition, the trial court did not abuse its discretion by denying Murphy's motion to dismiss the First Probation Revocation Petition. We affirm the trial court's judgment on the First Probation Revocation Petition and remand for further proceedings.

[17] The trial court, however, abused its discretion by denying Murphy's motion to dismiss the Second Probation Revocation Petition. This second petition did not comply with the requirements of subsection (a)(1) because it alleged that Murphy had violated a condition of probation on June 28, 2017, which was after Murphy's probationary period had already ended. Because this Second Probation Revocation Petition was not timely filed, the trial court does not have authority to hold a revocation hearing on it. Accordingly, the trial court abused its discretion by denying Murphy's motion to dismiss the Second Probation Revocation Petition, and we reverse the trial court's judgment on this Second Probation Revocation Petition. See, e.g. , Dawson , 751 N.E.2d at 815-16 (holding that the trial court improperly revoked a defendant's probation where the allegation was based on an offense alleged to have occurred after the expiration of his probationary term).

[18] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Barnes, Sr., J., concur.

      The transcript of the probation review hearing is not included in the record on appeal.

      Murphy no longer challenges the timeliness of the filing of the First Probation Revocation Petition under Indiana Code § 35-38-2-3(a) or the trial court's determination that the State filed this first petition within forty-five days of receiving notice of the violation. He does, however, challenge the timeliness of the Second Probation Revocation Petition, arguing that the trial court should have dismissed it because the State alleged that he violated probation on a date after his probationary period had ended.

      We recognize that our Court has stated that "[t]he purpose of I.C. 35-38-2-3(c) is to grant a trial court power to revoke probation and order a person returned to jail when it determines that such person violated probation, even though the disposition regarding that violation occurs after the original term of probation has expired." Slinkard v. State , 625 N.E.2d 1282, 1284 (Ind. Ct. App. 1993). In Slinkard , however, the issue was whether probation had been tolled during a prior revocation proceeding that was filed during the probationary period that would have extended the probation for the subsequent revocation at issue. Here, however, Murphy did not have any revocation proceedings during the course of his probationary period that would have tolled his probation.

      We note that April 9, 2017 was a Sunday. Pursuant to Indiana Trial Rule 6(A), computation for the last day of a period of time prescribed by order of the court does not include a Sunday. Thus, under Trial Rule 6, the last day of Murphy's probation would have technically been Monday April 10, 2017.

      Of course, the trial court could enter a determination only if it finds that the State meets its burden of proving the allegations in this first revocation petition by a preponderance of the evidence. See I.C. § 35-38-2-3(f).


text:
    Laperria Marie BROOKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-759
    Court of Appeals of Indiana.
    Filed October 31, 2018
    Attorney for Appellant: Rory Gallagher, Marion County Public Defender, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Andrew A. Kobe, Section Chief, Criminal Appeals, Indianapolis, Indiana
    Statement of the Case
   Pyle, Judge.

[1] Laperria Brooks ("Brooks") was convicted following a bench trial of Class A misdemeanor criminal trespass, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. On appeal, Brooks argues that there was insufficient evidence to support only her conviction for resisting law enforcement. Finding that there was insufficient evidence to support her conviction, we reverse her conviction for resisting law enforcement. We remand with instructions for the trial court to vacate the Class A misdemeanor resisting law enforcement conviction and enter a new sentencing order and abstract of judgment to reflect the vacated conviction.

[2] We reverse.

Issue

Whether there was sufficient evidence to support Brooks' resisting law enforcement conviction.

Facts

[3] On July 19, 2017, Brooks attempted to cash a check at a Kroger store in Indianapolis. Brooks became upset when the manager told her that Kroger would not cash her check because she did not have proper identification. Brooks started yelling loudly and "disrupting the whole store." (Tr. 8). The manager informed Brooks that she needed to leave the store several times, but she refused. The manager then called the police.

[4] Officer Jonathon Willey ("Officer Willey") of the Indianapolis Metropolitan Police Department arrived at the Kroger store and found Brooks refusing to leave the store. Brooks was still yelling loudly and attracting the attention of other customers. Officer Willey told Brooks multiple times to stop yelling and to leave the store, but Brooks refused. Eventually, Officer Willey put his arm around Brooks and tried to walk her out of Kroger. Brooks recoiled at Officer Willey's touch. Brooks told Officer Willey that she would walk out of the store if he took his arm off her. Officer Willey removed his arm, and Brooks left the store.

[5] After Brooks left Kroger, Officer Willey told her that she needed to leave the parking lot as well. Brooks refused and continued to be "very loud" even after Officer Willey warned her multiple times that she would be arrested for trespassing if she did not leave. (Tr. 15). Brooks refused to leave the parking lot. Officer Willey informed Brooks that she was under arrest and to put her hands behind her back. When Officer Willey tried to handcuff Brooks, "[s]he tensed up and wouldn't give [him] her arms." (Tr. 15). At trial, the State asked Officer Willey, "[w]as [Brooks] using force to get away?" (Tr. 16). Officer Willey responded, "[s]he was using her physical stature to not give us her arms." (Tr. 16). With the assistance of a second officer, Officer Willey was able to handcuff Brooks and place her under arrest.

[6] On July 20, 2017, the State charged Brooks with: Count I, criminal trespass, a Class A misdemeanor; Count II resisting law enforcement, a Class A misdemeanor; and Count III, disorderly conduct, a Class B misdemeanor. The matter proceeded to a bench trial on March 9, 2018. Brooks, the Kroger manager, and Officer Willey testified to the facts above. The trial court found Brooks guilty of all three counts. The trial court sentenced Brooks to concurrent sentences of one (1) year on Counts I and II, with a concurrent sentence of 180 days on Count III. The court suspended the sentence, except for time served, and sentenced Brooks to 361 days of probation.

Decision

[7] Brooks challenges the sufficiency of the evidence for only her resisting law enforcement conviction. Our standard of review for sufficiency of evidence claims is well settled. We do not assess the credibility of the witnesses or reweigh the evidence in determining whether the evidence is sufficient. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and reasonable inferences supporting the verdict. Id. Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

[8] In order to convict Brooks of resisting law enforcement, the State was required to prove beyond a reasonable doubt that: (1) Brooks; (2) knowingly; (3) forcibly resisted, obstructed, or interfered with; (4) Jonathan Willey, a law enforcement officer; (5) while said officer was lawfully engaged in his duties as a law enforcement officer. I.C. § 35-44.1-3-1(a)(1) (emphasis added). On appeal, Brooks maintains that the evidence is insufficient to show that she forcibly resisted Officer Willey. We agree.

[9] Our supreme court held that any action to resist must be done with force. Spangler v. State , 607 N.E.2d 720, 724 (Ind. 1993) (reversing defendant's conviction for resisting law enforcement because there was insufficient evidence of force where defendant merely resisted service of process by vehemently refusing to accept service and turning and walking away). "[O]ne 'forcibly resists' law enforcement when strong , powerful , violent means are used to evade a law enforcement official's rightful exercise of his or her duties." Id. at 723 (emphasis added). The forcible resistance element requires "some form of violent action toward another." Id. at 724. "It is error as a matter of law to conclude that 'forcibly resists' includes all actions that are not passive." Id. "The force involved need not rise to the level of mayhem."

Graham v. State , 903 N.E.2d 963, 965 (Ind. 2009). Indeed, "turn[ing] [and] pull[ing] away" from a law enforcement encounter, K.W. v. State , 984 N.E.2d 610, 612-13 (Ind. 2013), leaning away from an officer's grasp, A.C. v. State , 929 N.E.2d 907, 912 (Ind. Ct. App. 2010), refusing to present arms for handcuffing, Graham , 903 N.E.2d at 966, "twisting and turning 'a little bit' " against an officer's actions, Ajabu v. State , 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998), or walking away from a law enforcement encounter, Spangler , 607 N.E.2d at 724, do not establish forcibly resisting law enforcement.

[10] In the instant case, both Officer Willey and Brooks testified to the events surrounding her arrest. Officer Willey testified in relevant part as follows:

[Officer Willey]: She tensed up and wouldn't give me her arms.
* * *
[Officer Willey]: She just kept tensing up and pulling away.
* * *
[State]: Was she using force to get away?
[Officer Willey]: She was using her physical stature to not give us her arms.

(Tr. 15-16). Brooks testified on direct examination as follows:

[Brooks' Attorney]: And you admit that you did tense up when he touched you. Right?
[Brooks]: Yes sir.
[Brooks' Attorney]: And you pulled away some?
[Brooks]: Yes sir.

(Tr. 23).

[11] Here, nothing in the testimony from Officer Willey or Brooks suggests that she employed any "strength, power, or violence" against the officers. See Spangler , 607 N.E.2d at 724. There is no specific testimony to even suggest that Officer Willey had to use force to execute the arrest. There was no movement or threatening gesture made in the direction of Officer Willey. Indeed, Officer Willey was specifically asked whether or not Brooks used force to get away, and he did not answer in the affirmative.

[12] The State argues that Brooks "used physical force against the officer to prevent the officer from handcuffing her ...." (State's Br. 7). As detailed above, the facts supporting this argument are not found within the record. The evidence "demonstrates obnoxious disrespect for authority, but not the use of any force" by Brooks. See Graham , 903 N.E.2d at 964. Accordingly, we hold that the State failed to present sufficient evidence to prove beyond a reasonable doubt that Brooks forcibly resisted the officer. Therefore, we reverse Brooks' conviction for Class A misdemeanor resisting law enforcement.

[13] Reversed.

Najam, J., and Crone, J., concur.

      Ind. Code § 35-43-2-2.

      I.C. § 35-44.1-3-1.

      I.C. § 35-45-1-3.


author: Bradford, Judge.

text:
    Brian DUNLAP and Lauren Dunlap, Appellants-Plaintiffs-Counterclaim Defendants, v. Shirlena LANGE, Appellee-Defendant-Counterclaim Plaintiff.
    Court of Appeals Case No. 18A-PL-1212
    Court of Appeals of Indiana.
    FILED November 2, 2018
    Attorneys for Appellants: John R. Hurley, Joanne McAnlis, Michael Mahoney, McAnlis Law Group, P.C., Indianapolis, Indiana
    Attorney for Appellee: John D. Cross, Mercer Belanger, P.C., Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] In 2016, Shirlena Lange contracted with Brian and Laura Dunlap to purchase their Marion County house, but the sale was never closed. The Dunlaps later sold the house to another buyer and sued Lange for breach of contact. The Dunlaps attached the purchase agreement they and Lange executed ("the Purchase Agreement") to their complaint. The trial court issued a pretrial order in which it required all exhibits to be exchanged one week before trial. The Dunlaps did not exchange the Purchase Agreement as an exhibit. The trial court excluded the Purchase Agreement as a sanction for violating its pretrial order and then entered judgment on the evidence in favor of Lange on the basis that the Dunlaps could not prove their case without the Purchase Agreement. The Dunlaps contend that the trial court improperly excluded the Purchase Agreement. Because we conclude that the Purchase Agreement was deemed admitted into evidence by virtue of its attachment to the Dunlaps' complaint, we reverse and remand for further proceedings.

Facts and Procedural History

[2] On or about March 7, 2016, Lange entered into the Purchase Agreement with the Dunlaps. On or about April 13, 2016, Lange requested a release from the Purchase Agreement and did not close on the previously-agreed-upon closing date of May 5, 2016. The Dunlaps later sold the house to another buyer and sued Lange for breach of contract on August 17, 2016. The Dunlaps attached the Purchase Agreement to their complaint as Exhibit A. On September 2, 2016, Lange answered the Dunlaps' complaint and counterclaimed for the return of her $1500 earnest money pursuant to the Purchase Agreement. On October 16, 2017, Lange amended her answer. Lange did not deny execution of the Purchase Agreement in either her answer or amended answer.

[3] On August 23, 2017, the trial court issued its pretrial order, in which it required the parties to exchange all proposed trial exhibits seven days before trial or they would be excluded. On December 19, 2017, an entry in the chronological case summary again notified the parties to exchange proposed exhibits prior to trial. The Dunlaps never exchanged exhibits with Lange prior to trial.

[4] On May 2, 2018, a bench trial was held, at the beginning of which the trial court excluded the Dunlaps' proposed exhibits, including the Purchase Agreement. During the Dunlaps' case, Brian testified regarding the agreement with Lange, the circumstances under which Lange backed out of the sale, and that a later sale was made for a lower price. After the Dunlaps rested, Lange moved to dismiss their case pursuant to Indiana Rule of Trial Procedure 41(B) and to dismiss her counterclaim. Lange argued that the Indiana Statute of Frauds requires that any contract for the sale of land be evidenced by a writing, an argument that the trial court accepted, granting Lange's motions and entering judgment in her favor.

Discussion and Decision

[5] The Dunlaps contend that the trial court erroneously entered a judgment on the evidence against them pursuant to Indiana Rule of Trial Procedure 41(B), which provides, in part, as follows:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief.

[6] In reviewing a motion for involuntary dismissal, this court does not reweigh the evidence or judge the credibility of the witnesses; rather we only consider the evidence most favorable to the verdict and the reasonable inferences therefrom. Chem. Waste Mgmt. of Ind., L.L.C. v. City of New Haven , 755 N.E.2d 624, 635 (Ind. Ct. App. 2001). We will reverse the trial court only if the trial court's judgment is clearly erroneous. TMC Transp., Inc. v. Maslanka , 744 N.E.2d 1052, 1055 (Ind. Ct. App. 2001), trans. denied .

[7] The basis for the trial court's judgment, i.e. , that the Dunlaps could not prove their case without the Purchase Agreement being in evidence, relies on the trial court's earlier decision to exclude the Purchase Agreement from evidence. We conclude that this first decision, however, was clearly erroneous. Trial Rule 9.2(B) provides, in part, as follows:

When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith.

[8] Here, the Dunlaps' pleading was founded on the Purchase Agreement, which they attached to their complaint and the execution of which Lange has never denied. Consequently, the Purchase Agreement was deemed admitted into evidence by operation of Trial Rule 9.2(B), with no other action by the Dunlaps required. Lange contends (without citation to authority) that the Purchase Agreement was not "otherwise admissible" because the trial court excluded it. The trial court, however, did not actually conclude that the Purchase Agreement was inadmissible pursuant to the Indiana Rules of Evidence, it excluded it as a sanction for the Dunlaps' violation of its pretrial order. The Dunlaps offer no other reason why the Purchase Agreement might not be admissible, and we can think of none. While we do not condone noncompliance with pretrial orders, we conclude that the trial court's stated reason for excluding the Purchase Agreement was not sufficient to avoid operation of Trial Rule 9.2(B). Because the exclusion of the Purchase Agreement was the sole basis for the entry of judgment on the evidence in favor of Lange, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

[9] The judgment of the trial court is reversed and we remand with instructions.

Bailey, J., and Mathias, J., concur.