text:
    John LUDACK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1109-CR-930.
    Court of Appeals of Indiana.
    April 25, 2012.

      Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

John Ludack was convicted of two counts of class A felony child molesting and adjudicated a habitual offender and sentenced to an aggregate term of one hundred thirty years. On appeal, he argues that his constitutional right against compulsory self-inerimination was violated when the detective who interviewed him testified that Ludack neither admitted nor denied the allegations of child molesting but just asked to stop speaking. Ludack also argues that his sentence is inappropriate in light of the nature of the offenses and his character.

We conclude that defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective's testimony. We also conclude that Ludack fails to carry his burden to persuade us that his sentence is inappropriate. Therefore, we affirm his convictions and sentence.

Facts and Procedural History

In June 2008, Ludack lived in an Indianapolis apartment with his girlfriend T.E. and her children: ten-year-old M.E. and her older brothers, TV. and AV. Ludack had been living with them approximately eighteen months. T.E. worked full-time at a pharmacy and attended cosmetology school. While TE. was working and attending classes, Ludack cared for the children, with whom he had a good relationship.

One day in early June while T.E. was at work, Ludack told M.E. to go into her mother's bedroom. Onee there, Ludack told her to take off her clothes. ME. tried to leave, but Ludack blocked the door. ME. said that she was going to call her mother, but Ludack had the phone and would not give it to her. ME. was seared. Ludack finally let M.E. out of the bedroom, but would not let her call her mother.

Ludack then told ME. to go to her bedroom. He followed her into her room and shut the door behind him. He told her to remove her pants and underwear and get on the bed. She complied and lay on her back. Ludack forcibly held ME. down as he put his penis in her vagina. M.E. was frightened and in pain. She tried to make him stop and struggled to get up. He violently held down her legs using a great deal of force. Afterward, ME. continued to feel pain and noticed that she was bleeding a little bit. Ludack told M.E. that if she told anyone that he "would hurt [her] mom or [Ludack and her mom] would be gone for a long time, or he would hurt anyone [that M.E.] told." Tr. at 30.

During the first two weeks of June, Lu-dack forced ME. to have sexual intercourse several times. Onee, it occurred in her mother's bedroom. Another time, M.E. fought back and scratched Ludack. Another time, Ludack attempted to force her to have sexual intercourse in the living room, but he was interrupted when TV. and A.V. knocked on the apartment door and wanted to come in.

On June 15, 2008, Ludack left the apartment and never returned. Sometime after Ludack left, M.E. tearfully explained to TV., using hand gestures, that Ludack had put his penis in her vagina. She told TV. not to tell anyone because Ludack had said that he would hurt someone. TV. did not tell anyone until January 2011, when he broke down and told his father, who immediately called T.E. She in turn immediately called the police. A forensic child interviewer interviewed ME., and a medical doctor physically examined her. The physical exam did not reveal any physical evidence of the sexual abuse that had occurred two and a half years earlier. Indianapolis police detective Chris Lawrence interviewed Ludack, TE., TV., and T.V.'s father.

The State charged Ludack with two counts of class A felony child molesting and two counts of class C felony child molesting and alleged that he was a habitual offender. The jury found Ludack guilty as charged, and he pleaded guilty to the habitual offender enhancement. The trial court sentenced Ludack to fifty years on each class A felony child molesting conviction and thirty years for the habitual offender enhancement, to be served consecutively, for an aggregate executed sentence of one hundred thirty years. Lu dack appeals.

Discussion and Decision

I. Fifth Amendment Violation

At trial, Detective Lawrence testified for the State. On direct examination, the prosecutor asked Detective Lawrence (1) whether he had interviewed Ludack, 2) whether Ludack stated that he was living with T.E. in June 2008, and (3) whether Ludack stated that he provided childcare to T.E.'s children. Detective Lawrence answered all three questions affirmatively. The prosecutor did not ask any other questions about Detective Lawrence's interview with Ludack. On cross-examination, Lu-dack's attorney asked Detective Lawrence whether Ludack "made any admissions" during the interview, and the detective replied, "He didn't admit to it, no." Tr. at 122-23. At a sidebar conference, the prosecutor argued to the court that the jury was left with a false impression and that she wanted to further examine the detective to confirm that Ludack had neither admitted nor denied the allegations of sexual abuse. The trial court granted the request, and the prosecutor questioned Detective Lawrence as follows:

Q: When you did you[r] interview with John Ludack, it was a fairly short interview, wasn't it?
Yes, it was.
And during that short period of time he gave you a few facts that we've already discussed, is that correct?
Yes, he did.
Q: And he neither admitted nor denied committing the offense, didn't he?
A: He didn't deny doing it either; Re just asked to stop speaking.

Id. at 124-25 (emphasis added). Ludack did not object, move to strike, or move for mistrial.

Ludack argues that Detective Lawrence's testimony violated his right against compulsory self-incrimination guaranteed in the Fifth Amendment to the United States Constitution, resulting in fundamental error. "In order to constitute fundamental error, an error must be blatant and the potential harm must be so substantial and apparent that to ignore it would clearly constitute a denial of due process.!" Owens v. State, 937 N.E.2d 880, 885 (Ind.Ct.App.2010) (quoting Hinkle v. State, 569 N.E.2d 349, 350 (Ind.Ct.App.1990), trans. denied (1991)), trans. denied (2011).

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." This privilege extends to the states through the Fourteenth Amendment. The seope of the privilege is comprehensive.

The privilege can be claimed in any proceeding, be it eriminal or civil, administrative or judicial, investigatory or adjudicatory. [I]t protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.

Application of Gault, 387 U.S. 1, 47-48, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (citation and quotation marks omitted).

Specifically, Ludack argues that his Fifth Amendment right was violated when, during the State's case-in-chief, Detective Lawrence testified that Ludack "didn't deny doing it either; he just asked to stop speaking." Tr. at 125. In arguing whether this testimony presents a Fifth Amendment violation, the parties disagree on whether the State used Detective Lawrence's testimony as substantive evidence of Ludack's guilt. They also disagree as to whether Detective Lawrence's testimony revealed that Ludack had invoked the right to remain silent or reflected pre-arrest, pre-Miranda silence. We need not untangle these disagreements to determine whether fundamental error occurred. Instead, we conclude that because it was defense counsel who first questioned Detective Lawrence as to what Ludack did not say during the interview, no error occurred as a result of the prosecutor's follow-up questions. This conclusion is based on two legal principles.

The first is that a prosecutor may comment upon a defendant's decision to invoke the Fifth Amendment right against self-incrimination where the criminal defendant's own arguments invite such a comment. In United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 LEd.2d 23 (1988), defense counsel said in closing argument that the government had not been fair to the defendant (who had not testified) and had unfairly denied the defendant the opportunity to explain his actions. In his rebuttal, the prosecutor stated that the defendant could have taken the stand to explain his side of the story. The defendant argued that the prosecutor's remark violated the Fifth Amendment. In addressing his argument, the Robinson court emphasized that "prosecutorial comment must be examined in context." Id. at 33, 108 S.Ct. 864. The court concluded that "the prosecutorial comment did not treat the defendant's silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case." Id. at 32, 108 S.Ct. 864. The court held that in light of defense counsel's comments, the prosecutor's statement did not infringe on the defendant's Fifth Amendment right. Id. at 31, 108 S.Ct. 864. The court explained the basis for its ruling as follows:

The central purpose of a eriminal trial is to decide the factual question of the defendant's guilt or innocence. To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin [v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)] to the effect that the Fifth Amendment "forbids ... comment by the prosecution on the accused's silence," must be taken in the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence.

Id. at 33-34, 108 S.Ct. 864 (citations, quotation marks, and brackets omitted); cf. Herron v. State, 801 N.E.2d 761, 766 (Ind.Ct.App.2004) (concluding that defense counsel's assertion that State failed to produce evidence of gun used to shoot victim was not invitation for State to comment upon his silence at trial).

The second legal principle supporting our conclusion that no error occurred is that otherwise inadmissible evidence may become admissible where the defendant "opens the door" to questioning on that evidence. See Kubsch v. State, 784 N.E.2d 905, 919 (Ind.2004) (concluding that where defendant opened the door by introducing testimony through defense witness that defendant neither possessed nor had access to handgun, trial court properly admitted otherwise inadmissible hearsay testimony of State's witness implying that defendant had a gun in the house), cert. denied. "In order to open the door, the evidence relied upon must leave the trier of fact with a false or misleading impression of the facts related." Bryant v. State, 802 N.E.2d 486, 500 (Ind.Ct.App.2004) (concluding that defense witness's testimony that defendant moved out of mother's residence because he had taken her vehicle opened the door to State introducing evidence that defendant stole checks from mother and chased her with a baseball bat and choked her as real reasons defendant moved out), trans. denied; cf. Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind.2001) {concluding that defendant's testimony that he was not a killer did not create false impression that he was an upstanding citizen and therefore did not open the door to evidence of his criminal ~ recklessness conviction).

These two legal principles lead us to conclude that the State may introduce evidence that might otherwise be a violation of the defendant's Fifth Amendment right against self-inerimination if the State's evidence is a fair response to evidence elicited by the defendant. See Hall v. Vasbinder, 563 F.3d 222, 234 (6th Cir.2009) (concluding that testimony elicited by prosecutor about defendant's silence at a probate court hearing at which his daughter was placed in foster care did not violate Fifth Amendment because defense counsel opened the door by first asking defendant's daughter on cross-examination whether her father testified at the hearing). To open the door, the defendant's evidence must use his or her pre-trial silence as probative of the defendant's innocence and leave the trier of fact with a false or misleading impression. See Bryant, 802 N.E.2d at 500. This rule protects a defendant's Fifth Amendment privilege and provides "both the defendant and the prosecutor to meet fairly the evidence and arguments of one another." Robinson, 485 U.S. at 38, 108 S.Ct. 864. Of course, the State may not introduce such evidence on its own initiative without running afoul of the Fifth Amendment.

Here, on direct examination, the prosecutor asked Detective Lawrence whether Ludack said that he lived with T.E. in June 2008 and took care of her children. That appears to be the entire substance of the interview, and the prosecutor asked no other questions. On cross-examination, defense counsel asked Detective Lawrence whether, during the interview, Ludack had admitted the allegations that he molested M.E. Defense counsel used the question to elicit testimony to imply that since Ludack answered some questions during the interview but did not admit to the allegations, he must be innocent. Thus, Ludack attempted to capitalize on the fact that he chose to remain silent by terminating the interview with Detective Lawrence. In addition, defense counsel's question and the reply created a false impression that Detective Lawrence and Ludack actually talked about whether Ludack committed the alleged acts. We conclude that Ludack opened the door for the prosecutor to question Detective Lawrence as to the scope of the interview. The prosecutor's follow-up questions attempted to clarify that Ludack neither admitted nor denied the allegations. The prosecutor's question was a fair response to defense counsel's tactic. It is unsurprising that Detective Lawrence explained why Ludack neither admitted nor denied the allegation, although there is no indication that the prosecutor was actually attempting to elicit testimony that Ludack "asked to stop speaking." Tr. at 125. We also observe that the prosecutor did not comment upon Ludack's request to stop speaking after that. In light of defense counsel's question, we find no violation of Ludack's Fifth Amendment right against self-incrimination. Therefore, no error occurred, let alone fundamental error.

II. Appropriateness of Sentence

At sentencing, the State moved to dismiss the class C felony child molesting counts, which the trial court granted. The trial court found several aggravating factors: Ludack had an extensive eriminal history, including convictions for class C felony battery, class A felony rape, and class D felony failure to register as a sex offender; Ludack was on parole for his rape conviction when he committed the current offenses; the victim was under the age of twelve; Ludack was in a position of trust with the victim; and Ludack threatened to harm the victim and her family if she told anyone. The trial court found no mitigating factors. The trial court sentenced Ludack to an aggregate term of one hundred thirty years, executed.

Ludack claims that his sentence is inappropriate. Article 7, Section 6 of the Indiana Constitution authorizes " "independent appellate review and revision of a sentence imposed by the trial court!" Light v. State, 926 N.E.2d 1122, 1124 (Ind.Ct.App.2010) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007)) (brackets omitted), trans. denied. Our appellate authority is implemented through Indiana Appellate Rule 7(B), which states, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." "The principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived 'correct' result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). The defendant bears the burden of persuading us that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Regarding the nature of the offense, "the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed." Pierce v. State, 949 N.E.2d 349, 352 (Ind.2011). The sentencing range for a class A felony is twenty to fifty years, with an advisory sentence of thirty years. Ind.Code § 85-50-24. Ludack received maximum, consecutive sentences for his class A felony child molesting convictions. In addition, based on Ludack's habitual offender finding, the trial court enhanced his sentence by the maximum of thirty years. See Ind.Code § 35-50-2-8 (providing that habitual offender enhancement may not exceed thirty years).

Regarding the imposition of the maximum possible sentence, our supreme court has stated,

[The maximum possible sentences are generally most appropriate for the worst offenders. This is not, however, an invitation to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.

Buchanan v. State, 767 N.E.2d 967, 973 (Ind.2002) (citations and quotation marks omitted).

Turning now to the specifics of Ludack's offenses, we observe that M.E. was only eight years old when Ludack moved in with her family and became her mother's boyfriend. Not only did Ludack have a good relationship with M.E. and her brothers, but he was also the children's sole caretaker when their mother was at her full-time job or attending cosmetology school. At the time Ludack began sexually molesting ME., this arrangement had endured for a year and a half. Clearly, Ludack was in a position of trust with M.E. when he sexually molested her. See Brown v. State, 760 N.E.2d 243, 246 (Ind.Ct.App.2002) (noting that defendant, as mother's live-in boyfriend, occupied a position of trust with victim), trans. demied. As a result of this close relationship, the acts of sexual molestation pose a greater threat of severe, long-lasting emotional harm to ME. See McCoy v. State, 856 N.E.2d 1259, 1262 (Ind.Ct.App.2006) (stating that a position of trust "by itself constitutes a valid aggravating factor, which supports the maximum enhancement of a sentence for child molesting"). Further, when Ludack forced M.E. to have sexual intercourse, she was only ten years old. See Hamilton v. State, 955 N.E.2d 723, 727 (Ind.2011) (stating that "[the younger the victim, the more culpable the defendant's conduct").

In addition to the sexual violations Lu-dack inflicted upon M.E., Ludack's abuse was accompanied by violent force as he held ME. down while she struggled to escape. Ludack also threatened to harm M.E.'s mother or take her mother away for a long time if M.E. told anyone what he had done to her. We agree with the trial court's comment that such threats "were reprehensible attempts to control her and maintain not only his control over her but his freedom to continue to do what he wanted to do." Tr. at 198. Throughout early June 2008, Ludack repeatedly molested M.E. She escaped his ongoing abuse only because he was arrested on June 16. There is no indication that the molestation otherwise would have stopped. We conclude that the nature of Ludack's offenses supports a lengthy sentence.

We next consider Ludack's character. Our supreme court has stated that "the significance of a defendant's prior eriminal history in determining whether to impose a sentence enhancement will vary 'based on the gravity, nature and number of prior offenses as they relate to the current of fense'" Smith v. State, 889 N.E.2d 261, 263 (Ind.2008) (quoting Ruiz v. State, 818 N.E.2d 927, 929 (Ind.2004)). Ludack has a lengthy eriminal history, beginning in 1983 and continuing with increasing violence and severity. His juvenile history includes true findings for criminal mischief, disorderly conduct, battery, prostitution, and public intoxication. As an adult, he was convicted of class C felony battery in 1990 and was sentenced to eight years executed. After his release from incarceration, he was convicted of class A felony rape in 1997 and sentenced to twenty-five years executed. He was released to parole in July 2006. Within two years and while still on parole for the class A felony rape eonviction, he sexually abused M.E., a ten-year-old girl who was in his care. Further, at the time he sexually molested ME., he was also committing the crime of failing to register as a sex offender, for which he was arrested in July 2008 and found guilty of the following month. Pre-sentence Investigation Report at 5.

Throughout his life, Ludack has shown no willingness to obey the law. Most troubling is that his crimes have become progressively more heinous. Given this erimi-nal history, the depravity of Ludack's character and the danger he represents to society cannot be disputed.

Standing alone, either the nature of Lu-dack's offenses or his character would support maximum sentences. Taken together, they warrant not only enhanced sentences but consecutive sentences, even though the charges involve the same victim. See Brown, 760 N.E.2d at 246 (upholding maximum executed sentence of one hundred thirty years' imprisonment for two counts of class A felony child molestation of same victim and adjudication as a habitual offender).

We acknowledge that "[wlhether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences." Cardwell, 895 N.E.2d at 1225. However, the Cardwell court also noted that "additional criminal activity directed to the same victim should not be free of consequences." 895 N.E.2d at 1225. The cases in which our supreme court revised consecutive sentences to concurrent sentences where the child molesting charges involved the same victim are easily distinguishable. See Pierce v. State, 949 N.E.2d 349, 352-53 (Ind.2011) (revising one-hundred-thirty-four-year aggregate sentence to eighty-year aggregate sentence where defendant's criminal history included only one prior class C felony molestation conviction that occurred eight years before instant offense); Rivers v. State, 915 N.E.2d 141, 144 (Ind.2009) (revising consecutive sentences to concurrent sentences where defendant molested victim on two occasions in a relatively short period of time, then stopped on his own accord, and did not commit any other offenses in the seven years that passed until he was charged); Harris v. State, 897 N.E.2d 927, 980 (Ind.2008) (revising consecutive fifty-year sentences to concurrent sentences where defendant's criminal history consisted of two class D felonies involving theft and numerous traffic violations, which court concluded were not significant aggravators in relation to class A felony child molestation); Smith v. State, 889 N.E.2d 261, 263-64 (Ind.2008) (revising four consecutive sentences to three concurrent sentences and one consecutive where defendant's criminal history was assigned low aggravating weight due to lack of proximity in time between prior offenses and instant offenses and his mental health {history of depression and two suicide attempts) was a mitigating factor); Monroe v. State, 886 N.E.2d 578, 580-81 (Ind.2008) (revising consecutive twenty-two-year sentences on five counts of class A felony child molesting to fifty-year concurrent sentences where defendant's erim-inal history of six misdemeanor convictions was assigned little aggravating weight); Ortiz v. State, 766 N.E.2d 370, 377 (Ind.2002) (revising consecutive thirty-year sentences to concurrent terms where trial court failed to adequately identify, explain, and evaluate aggravating circumstances used to impose consecutive sentences); Walker v. State, 747 N.E.2d 536, 538 (Ind.2001) (revising two consecutive forty-year sentences to run concurrently where defendant did not have history of criminal behavior).

In sum, Ludack has failed to persuade us that his one-hundred-thirty-year sentence is inappropriate in light of the nature of the offenses and his character. Therefore, we affirm.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.

      . A person at least twenty-one years of age who, with a child under fourteen years of age, performs or submits to sexual intercourse or deviate sexual conduct commits class A felony child molesting. Ind.Code § 35-42-4-3.

      . "Article I, section 14, of the Indiana Constitution also protects a defendant's right to remain silent at trial." Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.2001). Ludack does not challenge his convictions on state constitutional grounds..

      . The State characterizes Detective Lawrence's testimony as a comment on Ludack's pre-arrest, pre-Miranda silence, and does not analyze the issue in terms of the invocation of the right to remain silent. Ludack concedes that the record before us does not reveal whether he was under arrest and/or had received Miranda warnings at the time he made the statement to Detective Lawrence. The State concedes that a defendant's silence before or after his arrest, if attributable to the invocation of the defendant's Fifth Amendment privilege, may not be used by the State as substantive evidence without infringing upon the defendant's due process rights. Ap-pellee's Br. at 15 (citing People v. Solmonson, 261 Mich.App. 657, 683 N.W.2d 761, 766 (2004)).

      . In Griffin, the prosecutor told the jury in closing argument that the defendant, who was with the victim just prior to her death, was the only person who could provide information regarding certain details about her murder, but he had "not seen fit to take the stand and deny or explain." 380 U.S. at 611, 85 S.Ct. 1229. In addition, the trial court instructed the jury that it was permitted to draw an inference unfavorable to the defendant as to "facts within his knowledge [] if he does not testify." Id. at 610, 85 S.Ct. 1229.

      . A defendant's post-arrest, post-Miranda silence cannot be used substantively in the State's case-in-chief, Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), and cannot be used to impeach a defendant. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 LEd.2d 91 (1976). The U.S. Supreme Court has not addressed whether post-arrest, pre-Miranda silence may be used substantively, but Indiana courts have held that a defendant's post-arrest, pre-Mi-randa silence cannot be used as substantive evidence in the State's case-in-chief. See Peters v. State, 959 N.E.2d 347, 353 (Ind.Ct.App.2011); Akard v. State, 924 N.E.2d 202, 209 (Ind.Ct.App.2010), aff'd in part and rev'd in part on other grounds, 937 N.E.2d 811 (Ind.2010); Rowe v. State, 717 N.E.2d 1262, 1267 (Ind.Ct.App.1999). However, Indiana courts have not had to decide whether a defendant's pre-arrest, pre-Miranda silence may be used as substantive evidence by the State, although this question and the split among the federal circuit courts was discussed at length in Owens, 937 N.E.2d 880, 884-893; see also Clancy v. State, 829 N.E.2d 203, 212 (Ind.Ct.App.2005) (concluding that even if testimony regarding defendants failure to contact police officer was Fifth Amendment violation, trial court's admonishment to jury cured any error), trans. denied.

      . Ludack also asserts that the prosecutor made a comment that highlighted Ludack's silence and, when combined with Detective Lawrence's testimony, resulted in fundamental error. During closing argument, the prosecutor argued, "[To the extent that John Lu-dack provided information, he corroborated M.E.'s story; yes, I lived there-yes, I was the sole caregiver for the children when their mother was gone. To that extent, it is corroborated." Tr. at 140. Ludack did not object. Because we have found that Detective Lawrence's testimony did not result in any error and Ludack does not argue that the prosecutor's comment by itself resulted in fundamental error, we need not address the propriety of the prosecutor's comment and whether any error resulted.

      . The record before us does not reveal what Ludack was arrested for on that date. His motion in limine states that he was arrested by federal marshals. Appellant's App. at 46.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    In the Matter of V.C., Child Alleged to be in Need of Services. V.S., Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner.
    No. 79A02-1112-JC-1172.
    Court of Appeals of Indiana.
    April 27, 2012.

      Harold E. Amstutz, Lafayette, IN, Attorney for Appellant, V.S.
    Luminita Nodit, Robert J. Henke, Indiana Department of Child Services,
    Central Administration, Indianapolis, IN, Attorneys for Appellee, Indiana Department of Child Services.
   OPINION

BRADFORD, Judge.

Appellant-Respondent V.S. ("Father") appeals the juvenile court's determination that V.C. is a Child in Need of Services ("CHINS"). On appeal, Father contends that the juvenile court erroneously denied his procedural due process rights by denying his requests to issue a subpoena to a potential witness and for a continuance of the fact-finding hearing. Father also contends that a CHINS determination was unnecessary because a suitable relative placement existed at the time V.C. was removed from Mother's care. We affirm.

FACTS AND PROCEDURAL HISTORY

The Indiana Department of Child Services ("DCS") was involved with Mother and V.C. prior to the initiation of the instant CHINS proceedings. V.C. had previously been determined to be a CHINS because Mother's mental state had deteriorated to the point where Mother could no longer care for V.C. The prior CHINS proceeding was successfully terminated after Mother's mental state improved to the point where DCS representatives believed that Mother could adequately care for V.C. At the conclusion of the prior CHINS proceedings, Mother was instructed to continue certain services on her own, and her sister, V.C.'s maternal aunt, was approved to care for V.C. for short periods of time if Mother's mental state deteriorated to the point that Mother required a short break from V.C.

On or about August 26, 2011, Mother contacted the Lafayette Police Department and reported that she required assistance because her mental state had deteriorated to the point where she could no longer provide suitable care for V.C. Officer James Jarred spoke with Mother and contacted Michael Taje of DCS. Taje spoke to Mother who again reiterated that her mental state had deteriorated to the point that she was unable to provide suitable care for V.C. Mother informed Taje that V.C.'s father was incarcerated and that she had family members who may be willing to accept custody of V.C., but refused to provide Taje with these family members' names.

As a result of Taje's conversations with Mother, on August 30, 2011, DCS filed a Request for Taking Custody and a Request for Filing of CHINS with the juvenile court. On this same date, the juvenile court entered an order finding that Father would be incarcerated in the Department of Correction ("DOC") until approximately September 22, 2016, and ordered that Father should appear at all hearings tele-phonically. On August 31, 2011, DCS filed a petition alleging that V.C. is a CHINS. The juvenile court conducted a detention hearing at the conclusion of which it found that probable cause existed to believe that V.C. is a CHINS and granted DCS temporary wardship over V.C.

On September 9, 2011, the juvenile court conducted an initial hearing at which Mother admitted the CHINS allegations. Father denied the CHINS allegations, asserted that he was aware of his rights, and stated that he did not need an attorney. The juvenile court set the matter for a fact-finding hearing.

On September 30, 2011, Father request, ed that the juvenile court issue a subpoena to V.C.'s maternal aunt and filed an affidavit asserting that he believed that maternal aunt would testify to a willingness to accept custody of V.C. Father did not include maternal aunt's address or any other contact information for maternal aunt in his affidavit. The juvenile court did not issue the subpoena because Father had failed to provide the court with maternal aunt's address.

On October 13, 2011, the juvenile court conducted a fact-finding hearing at which Father appeared telephonically. Father requested a continuance of the hearing for the purpose of securing maternal aunt's testimony regarding her potential willing ness to accept custody of V.C. DCS agreed to stipulate that maternal aunt would indicate a willingness to be considered as a relative placement of V.C. The juvenile court denied Father's request for a continuance, went forward with the fact-finding hearing, and heard evidence presented by both DCS and Father. At the conclusion of the fact-finding hearing, the juvenile court determined that V.C. was a CHINS. The juvenile court proceeded to conduct a disposition hearing following which it ordered that V.C. remain in foster care. On December 14, 2011, Father filed a Motion to Correct Error, which was denied by the juvenile court. This appeal follows.

DISCUSSION AND DECISION

I. Whether the Juvenile Court Denied Father's Procedural Due Process Rights

Father contends that the juvenile court denied his procedural due process rights by erroneously denying his requests to issue a subpoena to V.C.'s maternal aunt and for a continuance of the fact-finding hearing. Indiana Code section 31-82-2-3(b) (2011) provides that during a CHINS proceeding, a parent is entitled to (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence by compulsory process, and (8) introduce evidence on his behalf. In the instant matter, Father alleges that the juvenile court's denial of his request to issue a subpoena to maternal aunt and its subsequent denial of his request for a continuance of the fact-finding hearing violated his procedural due process rights because the denials limited his opportunity to obtain witnesses by compulsory process and to introduce evidence on his behalf.

A. Issuance of a Subpoena

Father argues that the juvenile court erroneously failed to issue his requested subpoena to maternal aunt. Father claims that it was necessary to subpoena maternal aunt because he believes that maternal aunt would have indicated a willingness to accept eustody of V.C. rather than having V.C. placed in foster care. The juvenile court denied Father's request to issue a subpoena to maternal aunt because Father "failed to provide addresses for persons he wishes to subpoena." Appellant's App. p. 35.

Father concedes that he did not provide the juvenile court with maternal aunt's address, but argues that the juvenile court erred by failing to conduct its own investigation into maternal aunt's contact information after Father provided her name to the court as well as possible avenues for obtaining the necessary information. In support, Father argues that "Mother, DCS or the sheriff, through NCIC, know or can obtain [maternal aunt's] address at this Court's discretion." Appellant's App. p. 34. Father argues that he was unable to obtain maternal aunt's address himself because "these people won't let me out for a period of time, out of prison so I could go hunt for it." Tr. p. 69. Father, however, does not demonstrate that his incarceration prevented him from contacting Mother or DCS to obtain maternal aunt's contact information or that he did not have access to research databases where he might have been able to find maternal aunt's contact information.

During the fact-finding hearing, the juvenile court informed Father that the subpoena was not issued because in light of Father's failure to provide the court with maternal aunt's address, "there was no valid address" at which the court could serve the subpoena to maternal aunt. Tr. p. 70. The juvenile court further informed Father that "it's not DCS's responsibility or the Court's responsibility to go out and find this person." Tr. p. 66. Father has provided no authority asserting that the juvenile court has such a responsibility, and we find none. Thus, we agree with the juvenile court that it is not the court's responsibility to "go out and find" the person named in the subpoena.

Trial Rule 45(C) provides that service of a subpoena "shall be made by delivering a copy thereof to" the person named in the subpoena. Service can be made on the individual or the individual's agent either in person or by mail. See Trial Rules 4.1, 4.16, and 5(B). Thus, even if the juvenile court had issued the subpoena, here, in light of Father's failure to provide the juvenile court with maternal aunt's address, the juvenile court would likely have been unable to serve the subpoena upon maternal aunt. As such, we cannot say that the juvenile court erroneously denied Father's request to issue a subpoena to maternal aunt.

B. Continuance of the Fact-finding Hearing

Father also argues that the juvenile court erred in denying his request for a continuance of the fact-finding hearing. Father argues that a continuance was nee-essary to allow Father the opportunity to secure maternal aunt's testimony regarding whether she would be willing to accept custody of J.C. Indiana Trial Rule 58.5 provides that a hearing may be continued at the discretion of the court upon a showing of good caused by affidavit or other evidence. The granting or denial of a continuance is clearly within the discretion of the trial court. Hallberg v. Hendricks Cnty. Office of Family & Children, 662 N.E.2d 639, 646 (Ind.Ct.App.1996). Denial of the motion is an abuse of discretion only if the movant demonstrates good cause for granting the motion. Id. We conclude that Father has failed to do so.

Father argues that the juvenile court abused its discretion in denying his request for a continuance because he successfully demonstrated good cause for said continuance. In support, Father claims that maternal aunt's testimony relating to her potential willingness to accept custody of V.C. was essential to his argument that no CHINS petition should have been filed because DCS had "set up a plan in the prior CHINS case that, if the [MJother's mental health deteriorated, [V.C.] would be placed with his aunt." Appellant's Br. p. 9. Father also claims that nothing in the record suggests that the continuance would cause any undue delay or hardship.

Despite Father's claim to the contrary, we agree with DCS's claim that maternal aunt's testimony was not essential because Father misconstrues the evidence relating to the prior case plan. Father called former case manager Kirstin Meadows as a witness during the fact-finding hearing for the purpose of establishing that a safety plan was in place to grant maternal aunt custody of V.C. if Mother's mental health deteriorated. Meadows was the case manager assigned to Mother's prior CHINS case and was most familiar with the safety plan put in place at the conclusion of the prior CHINS case. While testifying, Meadows clarified that maternal aunt had not been approved to take custody of V.C. for long periods of time, but rather had only been approved to provide short-term temporary care for V.C., essentially babysitting, if Mother's mental state necessitated a short break from the children. In addition, with respect to placement, DCS agreed to stipulate that maternal aunt would be willing to be considered as a relative placement for V.C. despite her failure to respond to DCS's inquires as to the same, and, if necessary, indicated a willingness to investigate whether maternal aunt would be a suitable placement for v.C.

In light of Meadows testimony refuting Father's claim that no CHINS determination was necessary because maternal aunt had been approved to accept custody of V.C., as well as DCS's stipulation to Father's desired testimony that maternal aunt would be willing to be considered as a relative placement for V.C., we conclude that Father has failed to demonstrate good cause for granting his request for a continuance. Hallberg, 662 N.E.2d at 646. As such, we conclude that the juvenile court acted within its discretion in denying Father's request for a continuance.

Having concluded that the trial court did not err in failing to issue the requested subpoena to maternal aunt after Father failed to provide the juvenile court with maternal aunt's address, and that the juvenile court acted within its discretion in denying Father's request for a continuance, we further conclude that the juvenile court did not violate Father's procedural due process rights as set forth in Indiana Code section 31-32-2-3(b).

II. Whether a CHINS Determination was Necessary

Father also contends that the juvenile court erroneously determined that V.C. is a CHINS. Specifically, Father contends that no CHINS determination was necessary because a suitable relative placement was available. Father's entire argument, however, is based on the false premise that maternal aunt had previously been approved to take custody of V.C. if Mother's mental state deteriorated. Again, Meadows testified that despite Father's claim to the contrary, maternal aunt had not been approved to take custody of V.C. for long periods of time, but rather had only been approved to provide short-term temporary care for V.C., ie. that maternal aunt had been approved to babysit for V.C. Because the evidence demonstrates that there was no approved suitable relative placement available to take custody of V.C. at the time when Mother contacted the Lafayette Police Department and informed DCS that she was unable to provide suitable care for V.C., and that Father was incarcerated in the DOC until at least 2016, we cannot conclude that a CHINS determination was unnecessary. See In re T.S., 881 N.E.2d 1110, 1114 (providing that the trial court had no option but to declare child a CHINS where there was no evidence for finding that grandmother would be a viable placement alternative).

The judgment of the juvenile court is affirmed.

VAIDIK, J., and CRONE, J., concur.

      . Mother admitted below that V.C. is a CHINS, and, as such, does not appeal the juvenile court's determination to that effect.

      . Father does not argue that he was denied the ability to cross-examine DCS's witnesses.

      . Despite Father's failure to provide the juvenile court with the necessary contact information, the juvenile court granted Father's request to subpoena DCS caseworker Meadows.

      . The record reveals that Father's incarceration did not prevent him from conducting research into legal precedent which he believed supported his position at the fact-finding hearing.

      . We note that Father does not challenge the sufficiency of the evidence supporting the juvenile court's determination that V.C. is a CHINS, but rather merely asserts that no CHINS determination was necessary. Thus, having concluded that in light of the circumstances, a CHINS determination was indeed necessary because there was no approved suitable relative placement available at the time that DCS again became involved with V.C., we need not review the sufficiency of the evidence supporting the juvenile court's determination that V.C. was a CHINS.


text:
    Walter B. DUNCAN, Appellant-Cross-Appellee-Plaintiff, v. The GREATER BROWNSBURG CHAMBER OF COMMERCE, INC., Appellee-Cross-Appellant-Defendant.
    No. 32A01-1109-CC-429.
    Court of Appeals of Indiana.
    April 30, 2012.

      Edward R. Hannon, Steuerwald Hannon Zielinski & Witham, Danville; IN, Attorney for Appellant.
    Charles E. Hostetter, Matthew E. Dumas, Hostetter & O'Hara, Brownsburg, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Cross-Appellee-Plaintiff Walter B. Duncan appeals from the trial court's judgment, following a bench trial, in favor of Appellee-Cross-Appellant-De-fendant The Greater Brownsburg Chamber of Commerce, Inc. ("the Chamber"). Duncan contends that the trial court's judgment was clearly erroneous and that it also erred in denying his summary judgment motion. The Chamber ecross-ap-peals, contending that the trial court erred in denying its summary judgment motion. Concluding that the trial court should have entered summary judgment in favor of the Chamber, we reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On March 5, 2009, Duncan entered into an employment agreement with the Chamber for the position of Executive Director, which provided, in part, that "[elither party may cancel this agreement for cause or convenience with 30-day written notice to the other party." Plaintiffs S.J. Ex. 1 at 2. Duncan's yearly salary was $50,400.00. Plaintiffs S.J. Ex. 1 at 1. During a meeting of the Chamber's Board of Directors on March 18, 2010, the Board voted "to terminate for convenience the Employment Agreement of the Executive Director, subject to the terms of the agreement, effective immediately." Plaintiff's S.J. Ex. 2 at 3.

Later on March 18, 2010, Dunean met with two members of the Board at a McDonald's restaurant who informed him that he was to be terminated for convenience but that his resignation would be accepted in lieu of termination. That same day, Duncan executed and delivered a "Formal Notice of Resignation" to the Chamber president, which indicated that he would work with the Chamber for one additional week and then take a three-week paid vacation. Appellee's App. p. 72. Duncan's daily salary for 2010 was $138.09 per day, meaning that he would have been due $14,775.63 salary for working through April 18, 2010. Pursuant to the contact, Duncan was also reimbursed for his mobile telephone and, as of November 19, 2010, was paying $46.62 per month for the service. Defendant's S.J. Ex. C at 2. Duncan was paid a total of $15,507.69 by the Chamber in 2010. Defendant's S.J. Ex. C at 2.

On September 29, 2010, Duncan filed a breach-of-contract claim against the Chamber. On January 31, 2011, the Chamber and Duncan filed summary judgment motions. On April 29, 2011, the trial court denied both parties' summary judgment motions. On July 19, 2011, the trial court conducted a bench trial. On September 2, 2011, the trial court entered judgment in favor of the Chamber, finding, inter alia, that Duncan suffered no damages as a result of the Chamber's alleged breach.

DISCUSSION AND DECISION

Duncan contends that the trial court's judgment in favor of the Chamber was clearly erroneous and that it erred in denying his summary judgment motion. The Chamber contends that that trial court erroneously denied its summary judgment motion. We agree with the Chamber, finding its argument to be dispositive.

A. Summary Judgment Standard of Review

When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party's claim. Id. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

B. Damages in Breach of Contract Claims

It is well-settled that "[tlo recover for a breach of contract, a plaintiff must prove that: (1) a contract existed, (2) the defendant breached the contract, and (3) the plaintiff suffered damage as a result of the defendant's breach." Collins v. McKinney, 871 N.E.2d 363, 370 (Ind.Ct.App.2007). The Chamber contends, inter alia, that Duncan failed to designate any evidence of damages because the evidence shows that he was ultimately paid in excess of what he was owed for the thirty days following the decision to terminate him. Duncan, however, contends that the proper measure of damages should include salary, expenses, and reimbursement for medical insurance pursuant to the contract from the date of the alleged breach and continuing for the term of the contract.

Essentially, the Chamber is asking us to adopt the general proposition that damages for breach of a notice requirement are limited to compensation for the notice period, which proposition was implicitly adopted by the Indiana Supreme Court in City of Indianapolis v. Bly, 39 Ind. 373, 375 (1872). In Bly, the plaintiff contracted with Indianapolis to be a lamplighter, which contract contained a provision that Indianapolis could terminate the contract with one month's notice. Id. at 373. Bly brought suit on the contract, presumably after the contract was terminated without the required one month's notice. Id. The trial court instructed the jury regarding damages, in part, as follows:

'It is of the contract between plaintiff and defendant that the defendant should have the right to declare the contract at an end after giving the plaintiff one month's notice in writing of such fact; and it is for you to find from the evidence whether such notice was given, then, after one month from the time when such notice was given, the defendant was no longer liable to plaintiff,

Id. at 374. The Indiana Supreme Court rejected Indianapolis's challenge to the instruction, implicitly adopting the proposition that damages for breach of notice provisions are limited to compensation for the notice period. Id. at 375. We have little hesitation in explicitly adopting the proposition, and therefore do not accept Duncan's argument, which, if adopted, would entitle him to what could only be called the windfall of being compensated for the remainder of the contract term-for services he did not provide-as though he had never been terminated.

Our position on this question is consistent with the weight of authority nationwide.

In general, where a contract of ordinary employment stipulates for, or where usage requires, a certain period of notice, the employment may be cancelled on shorter notice or with none at all upon payment of wages or salary for the period of notice. And it seems that if a shorter notice is given, it becomes effective at the expiration of the requisite period thereafter.

Raynor v. Burroughs Corp., 294 F.Supp. 238, 242 (E.D.Va.1968) (citing 9 Williston on Contracts § 1017 (rd Ed. 1957)). See also, e.g., Farias v. Bexar Cnty. Bd. of Trs. for Mental Health Retardation Servs., 925 F.2d 866, 877 (5th Cir.1991) (concluding that allowing plaintiff to work for thirty days and paying ninety days' severance pay satisfied 120-day notice requirement); Nolan v. Lantz Samitary Laundry Co., 85 Colo. 247, 274 P. 931, 931 (1929) (concluding that employee who accepted two weeks' pay upon termination waived reliance on contractual provision providing for two weeks' notice) Bryant & Stratton Bus. Coll. v. Walker, 155 Ky. 707, 160 S.W. 241, 242 (1913) ("Where by its terms a contract of employment may be terminated at any time upon giving a specified notice, the damages for a wrongful discharge can be no more than the wages which would have acerued under the contract after the notice, had one been given."); but see Leslie v. Robie, 84 N.Y.S. 289, 289 (N.Y.App. Term 1908) {concluding that had actress not been given two weeks' notice as stipulated in contract, she would have been entitled to stipulated salary for entire remaining term of contract). So, today we adopt the majority rule that "[the summary discharge of an employee entitled under the employment contract to a specified period of notice ordinarily[] permits him to recover his compensation for the notice period only and not for the entire balance of the contract period." W.C. Crais III, Annotation, Effect of attempt to terminate employment or agency contract upon shorter notice than that stipulated in contract, 96 A.L.R.2d 272 (1964).

Here, then, the most Duncan was entitled to in the event of a breach by the Chamber of the notice requirement was thirty days' compensation, whether salary or in some other form. Even assuming, arguendo, that the Chamber did breach the contract, the designated evidence does not create a genuine question regarding damages. The undisputed designated evidence indicates that Duncan was entitled to be paid $14,775.63 salary for 2010 had he worked through April 18, and we shall assume that his mobile telephone bill for his last month, for which he was to be reimbursed, was $46.62. This comes to $14,882.25, which is still $685.44 less than the $15,507.69 he was actually paid for 2010. In short, Duncan was paid more that he was entitled to receive had the notice requirement been breached and so failed to generate a genuine question of material fact regarding damages. As such, we need not address the question of whether the Chamber actually breached the notice requirement. We note that the trial court reached the same result following bench trial but nonetheless should have entered summary judgment in favor of the Chamber. Therefore, we reverse and remand with instructions to enter summary judgment in favor of the Chamber.

VAIDIK, J., and CRONE, J., concur.

      . There are two recognized exceptions to the general rule: (1) where breach of a notice requirement would result in the forfeiture of an already existing right over and above normal compensation, or (2) where the breach denied the party a contractually provided right to negate the other party's termination. W.C. Crais III, Annotation, Effect of attempt to terminate employment or agency contract upon shorter notice than that stipulated in contract, 96 A.L.R.2d 272 (1964). Duncan does not contend that either one of these exceptions applies in this case, and there is no indication in the record to that effect.

      . The employment agreement also provided that "Medical insurance will be obtained by the Executive Director through the plan of his choice. It shall be the Executive Director's responsibility to pay the premiums for said insurance. The Chamber shall reimburse the premiums for said insurance up to a maximum annual reimbursement of $4,500.00." Plaintiff's S.J. Exhibit 1 at 2. Although there is designated evidence that Duncan paid $3831.03 in insurance premiums during 2010, there is no evidence that he made any payments between March 18 and April 18. Defendant's S.J. Ex. C at 2. In any event, even if we assume that the $3831.03 was paid in twelve monthly, equal premiums, Duncan's monthly outlay for 2010 would have been $319.25. This figure added to the salary he was due and the mobile telephone bill for which he was entitled to be reimbursed comes to $15,201.50, which is still over 300 dollars less than he was actually paid for 2010.


author: NAJAM, Judge.

text:
    D.A., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1108-JV-692.
    Court of Appeals of Indiana.
    April 30, 2012.

      Lisa M. Joachim, Richard A. Mann, Todd D. Small, Richard A. Mann, P.C., Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

D.A. entered into a plea agreement whereby he admitted to battery, as a Class B misdemeanor when committed by an adult, and he "conditionally" agreed to admit to child molesting, as a Class C felony when committed by an adult. Following a hearing, the juvenile court adjudicated D.A. a delinquent on the battery count, ordered him to serve probation on that count, and took the child molesting count under advisement pending D.A.'s successful completion of probation. D.A. presents two restated issues for our review:

1. Whether the juvenile court erred when it accepted his conditional plea on the child molesting count.
Whether the juvenile court abused its discretion and violated his right to due process when it placed him in inpatient treatment.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 20, 2010, the State filed a petition against D.A. alleging his delinquency for having committed child molesting, as a Class B felony when committed by an adult, and child molesting, as a Class C felony when committed by an adult. During a hearing on March 31, 2011, D.A. and the State submitted a plea agreement, whereby the State agreed to dismiss the B felony count in exchange for D.A.'s admission to child molesting, as a Class C felony, and an additional count of battery, as a Class B misdemeanor. The plea agreement was "conditional" on the Class C felony count, meaning that the juvenile court would take D.A.'s admission on that count "under advisement" and, if D.A. sue-cessfully completed the terms of his probation, the State would "move to dismiss that count." Transeript at 2. If, however, the juvenile court "[found] probable cause to believe [D.A.] has violated [the terms of his probation]," the court stated that it would "proceed to disposition as to" the child molesting count. Id..

During the March 31 hearing, the following colloquy occurred in an effort to establish the facts underlying the two counts to be admitted by D.A.:

DEFENSE COUNSEL: Thank you, Judge. [D.A.], you are 18 years old, is that correct?
D.A.: Yes sir.
DEFENSE COUNSEL: Date of birth is April 21, 1997?
D.A.: Yes sir.
DEFENSE COUNSEL: I am going to direct your attention back to September 5, 2010. On that day, you were in Indianapolis, Marion County, Indiana, is that correct?
D.A.: Yes sir.
DEFENSE COUNSEL: And on that day you were in the company of [C.T.], a 38-year-old child, is that correct?
D.A.: Yes sir.
DEFENSE COUNSEL: And on that day you touched [C.T.] in a rude, insolent or angry manner, is that correct?
D.A.: Yes sir.
DEFENSE COUNSEL: And specifical ly, you touched [C.T.] on her vagina, is that correct?
D.A.: Yes sir.
DEFENSE COUNSEL: more questions Judge. I have no
COURT: Questions State?
PROSECUTOR: No Judge.

Transcript at 4. Thereupon, the juvenile court found "a sufficient factual basis to find the petition true." Id. The court ordered a "sex offender evaluation" and scheduled a dispositional hearing. Id.

On June 14, the juvenile court held the dispositional hearing. The probation department submitted a pre-dispositional report recommending formal probation with inpatient placement at Resolute Treatment Facility ("Resolute") for sex offender counseling. Counsel for D.A. submitted into evidence an independent report prepared by a psychologist recommending outpatient treatment for D.A. At the conclusion of the hearing, the juvenile court accepted the recommendation of the probation department and ordered that D.A. be placed at Resolute as an inpatient.

On July 14, D.A. filed a motion to correct error alleging in relevant part:

23. That the Court also erred when it took Count 2 [child molesting] under advisement at the plea hearing and continued to do so after the June 14, 2011[,] Dispositional Hearing.
24. That the record clearly lacks a factual basis in which to find the Respondent guilty of Count 2, Child Molesting, [as al Class C Felony.
25. That during the Plea Hearing, the Respondent admits that he touched [C.T.] in a rude and insolent manner in that he touched her vagina. The factual [basis] fails to establish that the Respondent touched [C.T.] with the intent to arouse or satisfy his sexual desire [or her sexual desire}, a necessary element of the crime.

Appellant's App. at 28. The juvenile court denied that motion. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Conditional Plea

D.A. first contends that the juvenile court's acceptance of his conditional plea on the child molesting count was an abuse of discretion and violated his due process rights because there was an inadequate factual basis to support the plea. And D.A. asks that we "reverse the Juvenile Court's acceptance of D.A.'s plea" on that count. Brief of Appellant at 7. For the reasons set out below, we do not reach the merits of D.A.'s contention on this issue.

D.A. maintains that there was an insufficient factual basis to support his conditional plea on the child molesting count. A court may not accept a guilty plea unless the court determines that a sufficient factual basis exists to support the plea. Rhoades v. State, 675 N.E.2d 698, 700 (Ind.1996) (citing Ind.Code § 35-35-1-3) A factual basis may be established by relatively minimal evidence about the elements of the crime from which the court could reasonably conclude that the defendant is guilty. Id. A trial court's finding of an adequate factual basis is presumptively correct. Id. Additionally, the standard for a sufficient factual basis to support a guilty plea is less rigorous than that required to support a conviction. Id. at 702. "Reasonably concluding" that a defendant is guilty for purposes of a factual basis is not the same as concluding guilt beyond a reasonable doubt. Id.

Here, in an effort to establish a factual basis for the conditional plea on the child molesting count, defense counsel asked D.A. whether he touched C.T. on her vagina. D.A. responded in the affirmative, and defense counsel rested. The State did not ask D.A. any questions, but sought clarification whether the court was "satisfied ... [that] a factual basis has been given for count 3 and count 2[.]" Transcript at 5. In response, the juvenile court stated, "I think there has been a sufficient factual basis for count 2 [child molesting] or count 8 [battery] since the nature of his plea [sic] and withholding judgment as to count 2, I think it's probably sufficient. Does everyone [agree] with that?" Id. Defense counsel responded, "Yes sir." Id.

On appeal, D.A. contends that the factual basis is insufficient to show his intent to arouse or to satisfy his sexual desires, which is an element of the crime of child molesting. See Ind.Code § 35-42-4-3; Addendum to Appellant's App. at 97. Indeed, the transcript reveals that the juvenile court did not hear any evidence on the element of D.A.'s intent with regard to his touching C.T.'s vagina, other than the fact that he did so in a rude, insolent or angry manner. There was no testimony or mention during the plea hearing regarding the intent to arouse or satisfy sexual desires element of child molesting. Thus, there is not even minimal evidence from which the court could reasonably conclude that D.A. committed child molesting. See Rhoades, 675 N.E.2d at 700.

However, we do not have jurisdiction to resolve this issue. Because D.A.'s plea on the child molesting count was conditional, the juvenile court took the plea under advisement pending his successful completion of probation. A conditional plea is equivalent to a withheld judgment, and, thus, there is no final judgment or appealable final order from which to appeal. See Ind. Appellate Rule 5. Likewise, and for the same reason, D.A. had no grounds to file a motion to correct error on the child molesting count, and, thus, the juvenile court did not err when it denied that motion as it pertained to the conditional plea. See Ind. Trial Rule 59(C) (stating a motion to correct error, if any, shall be filed not later than thirty days after the entry of a final judgment is noted in the Chronological Case Summary). The juvenile court's order accepting D.A.'s conditional plea is interlocutory, and D.A. has not sought certification of the issue for our review. See Ind. Appellate Rule 14(B).

Issue Two: Disposition

D.A. next contends that the juvenile court erred in several respects with regard to the dispositional hearing and his placement at Resolute. D.A. maintains that the juvenile court was required to hold an evidentiary hearing to determine disposition and that no such hearing was held. In particular, he alleges that "no evidence was presented by the State or Probation at the disposition hearing" and that he was not afforded an opportunity to present evidence to rebut or cross-examine the probation officer who prepared the predisposition report. Brief of Appellant at 18. Further, DA. asserts that the juvenile court "did not balance the safety of the community and D.A.'s best interest" in ordering placement at Resolute. Id. at 11. And D.A. contends that placement at Resolute was error because it was not the least harsh disposition. We cannot agree.

choice of the specific disposition of a juvenile adjudicated a delinquent child is a matter within the sound discretion of the juvenile court and will only be reversed if there has been an abuse of that discretion. The juvenile court's discretion is subject to the statutory considerations of the welfare of the child, the safety of the community, and the policy of favoring the least harsh disposition. An abuse of discretion occurs when the juvenile court's action is clearly erroneous and against the logic and effect of the facts and cireumstances before the court or the reasonable, probable, and actual inferences that can be drawn therefrom. Hence, the juvenile court is accorded wide latitude and great flexibility in its dealings with juveniles.

R.A. v. State, 936 N.E.2d 1289, 1291 (Ind.Ct.App.2010) (citations and quotations omitted).

The standard for determining what due process requires in a particular juvenile proceeding is "fundamental fairness." S.L.B. v. State, 434 N.E.2d 155, 156 (Ind.Ct.App.1982). Here, at the dis-positional hearing, the juvenile court incorporated by reference the predisposition report of the probation officer recommending inpatient treatment at Resolute. Also during that hearing, the probation officer explained the reasons for the probation department's recommendation. D.A. and his mother were present, and D.A. was represented by counsel. D.A. did not request an opportunity to cross-examine the probation officer. Moreover, D.A. submitted into evidence the report of an independent evaluator who concluded that outpatient therapy would be optimal for D.A. And D.A.'s counsel made a thorough argument in support of the juvenile court's adoption of that report over the probation department's report. The juvenile court, having considered the arguments and evidence from both sides, followed the recommendations of probation and rejected the report submitted by D.A. D.A. cannot show that the dispositional hearing violated fundamental fairness.

Neither did the juvenile court abuse its discretion. Although the juvenile court is given wide latitude and great flexibility in determining the disposition of a delinquent child, its discretion is cireum-seribed by statute. R.A., 986 N.BE.2d at 1291. Indiana Code Section 31-87-18-6 provides in relevant part that, "[i]f consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that ... is ... in the least restrictive (most family[-]like) and most appropriate setting available" and "provides a reasonable opportunity for participation by the child's parent[.]" Id.

Again, D.A. alleges that the juvenile court did not properly balance the safety of the community with his best interests. And D.A. maintains that placement at Resolute was not the least restrictive placement available, as evidenced by the report of the independent evaluator. But in its dispositional order, the juvenile court stated that it had considered both "[t]he interests of the child and the public" and "[allternatives of care, treatment, or rehabilitation for the juvenile." Appellant's App. at 11. In addition, the juvenile court explained that placement at Resolute "is consistent with the safety and best interest of the child and is the least restrictive and most appropriate setting available close to the parent(s) home[.]" Id. Finally, the juvenile eourt explained that placement at Resolute is in D.A.'s best interests. The predisposition report supports the juvenile court's findings in each of these respects, and D.A. has not demonstrated an abuse of discretion..

Finally, to the extent that D.A. contends that his placement at Resolute constitutes eruel and unusual punishment under the U.S. and Indiana Constitutions, that contention is without merit. A punishment is excessive and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment but rather constitutes only purposeless and needless imposition of pain and suffering, or (2) is grossly disproportionate to the severity of the crime. Douglas v. State, 481 N.E.2d 107, 112 (Ind.1985). While D.A. obviously disagrees with the contents of the predisposition report recommending placement at Resolute, that report supports the juvenile court's determination that D.A. should be placed there. D.A. asserts that his placement "imposes 'purposeless and needless ... pain and suffering'" on him in that he is separated from his family and placed in a "hostile environment with juveniles who are presumably sex offenders." Brief of Appellant at 18. But our review of the record reveals that D.A.'s placement at Resolute is consistent with the goals for D.A.'s rehabilitation. On these facts, we cannot say that the juvenile court abused its discretion in ordering inpatient treatment for D.A.

Affirmed.

ROBB, C.J., and VAIDIK, J., concur.

      . D.A. filed a motion to correct error asking in relevant part that the juvenile court "correct the addressed errors" in its order, including the acceptance of the conditional plea on the child molesting count. But a motion to correct error is not the proper vehicle for a juvenile challenging his conditional plea. See M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind.Ct.App.1997) (observing that the proper challenge to a plea in a juvenile case is made in a Trial Rule 60(B) motion).

      . Indiana Code Section 31-32-1-1 provides that the procedures governing criminal trials apply in all matters not covered by the juvenile law. Here, we rely on case law relevant to factual bases in adult criminal matters because there is no corresponding rule in the juvenile code.

      . Counsel's agreement does not establish a factual basis where there was none in the record.

      . And, again, we note that a motion to correct error was not the proper vehicle to challenge his conditional plea.

      . Neither is a conditional plea held under advisement appealable as a matter of right under Indiana Appellate Rule 14(A).