author: BARNES, Judge.

text:
    Anthony D. GORMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1110-CR-556.
    Court of Appeals of Indiana.
    June 13, 2012.

      Lisa M. Johnson, Brownsburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Anthony Gorman appeals his convictions for two counts of Class B felony robbery while armed with a deadly weapon. We affirm.

Issues

The two issues before us are:

I. whether there is sufficient evidence to identify Gorman as the perpetrator of the robberies; and
II. whether there is sufficient evidence that a deadly weapon was used during the robberies.

Facts

At about 2:30 a.m. on August 14, 2010, husband and wife Byron and Samantha Daniels returned to their apartment complex in Indianapolis. They were sitting in their vehicle smoking a cigarette with the windows down when a man and a woman they did not know approached and asked for a light. After Byron and Samantha provided a light, the man and woman walked away. Soon thereafter, the man returned and pointed a handgun at Byron’s temple through the driver’s side window. He demanded that Byron and Samantha give them money and jewelry. After Samantha gave the man $5 and Byron gave him an earring, he ran away.

The Danielses called police immediately after the robbery, but the police were unable to locate a suspect at that time. Several weeks after the robbery, Samantha saw a person — Gorman—sitting on a neighbor’s porch whom she believed to be the robber. After contacting police, Samantha was presented on October 10, 2010, with a police photo array that included Gorman’s picture, and she identified Gorman as the robber. Police did not find any other evidence connecting Gorman with the robbery, such as the gun he used or the proceeds from the robbery.

On October 27, 2010, the State charged Gorman with two counts of Class B felony robbery while armed with a deadly weapon. At Gorman’s bench trial on September 8, 2011, Samantha identified him as the person who had robbed her and Byron and stated she was “a hundred percent” certain that Gorman was the robber. Tr. p. 32. Byron was unable to identify Gor-man as the robber because he had been looking straight forward during most of the incident while the gun was aimed at his head. As for the gun, Byron, who stated he was familiar with guns, believed it looked like a 9mm semiautomatic. Samantha, who said she was not familiar with guns, could only describe the gun as smaller than a typical police officer’s gun. The trial court found Gorman guilty as charged and sentenced him accordingly. Gorman now appeals.

Analysis

Both of Gorman’s arguments raise challenges to the sufficiency of the evidence supporting his convictions. When reviewing the sufficiency of the evidence to support a conviction, we do not reweigh the evidence or judge the credibility of the witnesses, and respect the fact-finder’s exclusive province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375 (Ind.2010). We consider only the probative evidence and reasonable inferences therefrom that support the conviction. Id. We will affirm if the probative evidence and reasonable inferences from that evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

I. Identification Evidence

Gorman asserts that there is insufficient evidence to support Samantha’s identification of him as the person who robbed her and Byron. He argues that in a case involving a sole eyewitness’s identification of a stranger as the perpetrator of a crime, there should be some evidence corroborating the identification in order for there to be sufficient evidence to support a conviction. As Gorman acknowledges, there is longstanding precedent from our supreme court holding that where a defendant’s conviction is based upon his or her identification as the perpetrator by a sole eyewitness, such identification is sufficient to sustain a conviction if the identification was unequivocal. Richardson v. State, 270 Ind. 566, 569, 388 N.E.2d 488, 491 (1979). See also Scott v. State, 871 N.E.2d 341, 344-45 (Ind.Ct.App.2007) (collecting and analyzing cases from our supreme court and holding that if identification evidence by a sole eyewitnesses is equivocal, the identification must be corroborated by circumstantial evidence), trans. denied. Here, Samantha’s in-court identification of Gorman as the robber was unequivocal, in that she stated that she was “a hundred percent” certain of the identification. Tr. p. 32. Under established precedent of our supreme court, this alone was sufficient to support Gorman’s convictions. We cannot reconsider or declare invalid that precedent. See Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind.Ct.App.2005).

Although we cannot overrule Richardson, it would not be inappropriate for us to question its validity or to suggest to our supreme court that the rule therein be reconsidered. See id. at 694-95. Gorman argues that basing his conviction solely upon the basis of one eyewitness’s uncorroborated testimony violates his rights to due process, to a fair trial, and to due course of law under the United States and Indiana Constitutions. As we recently acknowledged, this court is “very cognizant of the close scrutiny eyewitness identification in criminal cases has received in recent years....” Woodson v. State, 961 N.E.2d 1035, 1044 (Ind.Ct.App.2012), trans. denied. Gorman directs us to a number of cases and studies that have examined reliability issues that may arise with eyewitness identifications. There are also, we cannot deny, a number of reported instances of persons having been falsely convicted on the basis of inaccurate eyewitness identifications. See, e.g., Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487, 1490 (2008).

The New Jersey Supreme Court recently undertook a very thorough examination of the current state of scientific research regarding eyewitness identifications and listed a number of factors that may affect the reliability of an identification. See State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011). First, high levels of stress tend to diminish a witness’s ability to make an accurate identification. Id. at 904. Second, the use of a visible weapon during a crime can distract a witness from the perpetrator and reduce the reliability of an identification. Id. at 904-05. Third, the duration of a criminal event, which witnesses tend to overestimate, may affect reliability. Id. at 905. Fourth, as common sense would indicate, the greater the distance and the poorer the lighting conditions, the less reliable an identification tends to be. Id. at 906. Fifth, characteristics of the witness may impact reliability, with either very young or older witnesses and, of course, witnesses under the influence of drugs or alcohol, tending to be less accurate. Id. Sixth, changes in facial features between the time of initial observation and a subsequent identification will reduce reliability, as may (unsurprisingly) the use of a disguise by the perpetrator. Id. at 907. Seventh, because of “memory decay,” the greater the period of time between observation and identification to law enforcement, the greater the chance of identification error, although the amount of time needed to pass before a person’s recall becomes unreliable is not scientifically established. Id. Eighth, cross-racial identifications tend to be less accurate. Id. Ninth, influence or feedback from co-witnesses about identification of a perpetrator can affect reliability. Id. at 908-09. Finally, as this court observed in Scott, there are studies finding that there is no correlation between a witness’s stated confidence in his or her identification of a defendant and the actual accuracy of that identification. Scott, 871 N.E.2d at 345 n. 7.

Gorman argues that a number of the factors identified in Henderson weigh against the reliability of Samantha’s identification of him as the robber, including a highly stressful event, the presence of a gun, poor lighting conditions, an allegedly short duration for the event, and the passage of time between the event and her initial identification of Gorman. He also argues that no weight should be given to Samantha’s stated “a hundred percent” certainty that he was the robber, given the studies identified in footnote seven of Scott. Tr. p. 82. On the other hand, there are several factors identified in Henderson that were not present here, including the close proximity between Samantha and the robber, the fact that this was not a cross-racial identification, that she apparently is of an age group whose identifications tend to be more reliable, there is no evidence the robber used a disguise, and there is no evidence of co-witness influence on her identification, as Byron never identified Gorman as the robber. We also note that, as stated in Henderson, a factor such as poor lighting conditions is a matter of common knowledge; also, factors such as the duration of the event and the passage of time between the event and identification are not readily quantifiable in terms of how they impact identifications.

In sum, we have just described a process of weighing evidence and judging witness credibility, in which appellate courts should not engage. We believe it would be unwise to alter the rule stated in Richardson to provide appellate courts essentially with the ability to second-guess a fact-finder’s assessment of an eyewitness’s testimony, or to require proof in addition to such testimony, in contravention of well-established legal principles. We find support for this position in a recent decision from the United States Supreme Court, Perry v. New Hampshire, — U.S. -, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012).

In Perry, the Court was asked to hold that the Due Process Clause required “trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances,” regardless of whether law enforcement arranged the suggestive circumstances. Perry, — U.S. at -, 132 S.Ct. at 725. The Court rejected this argument in an 8-1 decision, holding that no such prescreen-ing was required where law enforcement did nothing to arrange any suggestive circumstances regarding the identification. Id., 132 S.Ct. at 730. In reaching this holding, the Court did “not doubt either the importance or the fallibility of eyewitness identifications.” Id., 132 S.Ct. at 728. It stated, however, “the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.” Id., 132 S.Ct. at 728. It further recognized that a fact-finder, not a court (unless of course, as here, it is the fact-finder), “traditionally determines the reliability of evidence.” Id., 132 S.Ct. at 728. It then listed a number of procedural safeguards against fact-finders placing undue weight on potentially unreliable eyewitness testimony, including the Sixth Amendment right to confront and cross-examine eyewitnesses, the right to the effective assistance of counsel and to present opening and closing argument regarding eyewitness credibility, and the right to conviction only upon proof beyond a reasonable doubt. Id., 132 S.Ct. at 728-29. It also noted the possibility of giving jury instructions that list factors to consider in weighing eyewitness testimony, of trial judges excluding evidence whose probative value is substantially outweighed by the danger of unfair prejudice, and that “[i]n appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence.” Id., 132 S.Ct. at 728-29.

Here, trial counsel did extensively cross-examine Samantha regarding her identification and argued to the trial court regarding the reliability of her identification. We also presume the trial court as fact-finder was well aware that Gorman could be convicted only upon proof beyond a reasonable doubt. All of Gorman’s constitutional rights to challenge the evidence against him were adequately preserved. The reliability of particular evidence must be gauged by the fact-finder, not this court. Any potential errors in eyewitness identification must be resolved during trial, not on appeal.

We further observe, “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). There would be potentially substantial criminal justice costs if a sole eyewitness’s identification of a defendant were not enough to sustain a conviction. Often times, despite the efforts of law enforcement, there simply is no other evidence to be found. We decline to recommend to our supreme court that it alter the rule stated in Richardson that a sole eyewitness’s unequivocal testimony identifying a defendant as the perpetrator of a crime alone is sufficient to sustain a conviction.

II. Deadly Weapon

Next, Gorman asserts that even if Samantha accurately identified him, there is insufficient evidence that he possessed a deadly weapon when he robbed the Dan-ielses. Robbery is a C felony that may be elevated to a B felony, as here, if there is proof that it was committed while armed with a deadly weapon. Ind.Code § 35-42-5-1. Gorman was specifically alleged to have been armed with a gun, which is a statutorily-defined deadly weapon. See I.C. § 35 — 41—1—8(a)(1). Gorman notes that the purported gun he used during the robbery was never recovered and that Samantha and Byron seemed to be inconsistent in their descriptions of the weapon. Thus, he claims, there is a lack of sufficient evidence that what he possessed was an actual, functioning firearm or deadly weapon, as opposed to possibly a toy.

In order to prove that a weapon was used in the commission of a crime, it is not necessary to introduce the weapon into evidence at trial. Gray v. State, 903 N.E.2d 940, 943 (Ind.2009). There must, however, be some proof that the defendant was actually armed with a deadly weapon at the time of the crime. Id. at 943-44. It is not enough if a victim merely feared that the defendant was armed with a deadly weapon, but no such weapon was shown or displayed and/or the defendant made no statements that he or she was armed. Id. at 943-44. However, a victim’s testimony that he or she saw the defendant use what was believed or “figured” to be a gun is, by itself, sufficient proof of the use of a deadly weapon. Harvey v. State, 542 N.E.2d 198, 200-01 (Ind.1989).

Here, Byron testified that he was familiar with firearms and that the robber possessed what looked like a 9mm semiautomatic handgun. Gorman argues that Samantha’s description of the weapon was inconsistent with Byron’s description of it. She also testified that she was not very familiar with firearms, unlike Byron; in any event, she also indicated that Gorman possessed a handgun of some type, which is consistent with Byron’s testimony. It was for the trial court here as fact-finder to consider and weigh any discrepancies between Samantha’s and Byron’s testimony. That testimony was, by itself, sufficient to prove that Gorman committed the robberies while armed with a deadly weapon.

Conclusion

There is sufficient evidence to support Gorman’s convictions for two counts of Class B felony robbery. We affirm.

Affirmed.

BAKER, J., and BROWN, J., concur.

      . Gorman does not argue for such a rule where the eyewitness knows the identified person.

      . Trial counsel did not elect to obtain an expert to testify regarding eyewitness identifications, although such testimony is permitted in Indiana under certain circumstances. See Cook v. State, 734 N.E.2d 563, 570 (Ind.2000).

      . We note that although Gray clarified the law regarding the quantum of proof necessary to establish possession of a deadly weapon by a defendant, it cited Harvey with approval and there is no indication Harvey is not still valid authority. See Gray, 903 N.E.2d at 945.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    David ASHABRANNER, Appellant-Respondent, v. Sandy WILKINS, f/k/a Ashabranner, Appellee-Petitioner.
    No. 22A01-1109-DR-411.
    Court of Appeals of Indiana.
    June 15, 2012.

      Karen Yvonna Renfro, New Albany, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

David Ashabranner (“Father”) appeals a trial court order denying emancipation of his child, Cassandra Ashabranner, and continuing his obligation to pay child support. Father raises three issues which we restate as: 1) whether the trial court erred in declaring Cassandra not emancipated, 2) whether the trial court erred in not ordering Sandy Ashabranner Wilkins (“Mother”) to pay child support, and 3) whether the trial court erred in calculating the amount of child support without considering Cassandra’s income and ability to partially provide for herself. We conclude that, based on the evidence presented, the trial court did not err in declaring Cassandra to be unemancipated. We further conclude that the trial court did err in failing to order Mother to pay child support but did not err in refusing to consider Cassandra’s income or ability to partially provide for herself. Accordingly, we affirm in part and remand in part.

Facts and Procedural History

When Father and Mother divorced in 1994, their minor child, Cassandra Asha-branner, lived with Mother alone, and Father was ordered to pay child support. In March 2011, Father filed a petition to terminate child support, alleging Cassandra was emancipated. The trial court held a hearing on this motion on May 26, 2011. At the hearing Cassandra testified to the following facts. She was nineteen years old, she graduated and received her high school diploma from Reisz Adult Learning Center a week earlier, on May 20, 2011, and she had submitted an application to enroll at Ivy Tech Community College and begin classes in August 2011. She had not received notice of acceptance from Ivy Tech, but was working with staff there to complete her application for financial aid. Regarding her not yet receiving notice of acceptance to Ivy Tech, Cassandra stated:

I’ve already been accepted to one college and they sent me something, but Ivy Tech, they’re a little different ‘cuz it is a community college. I mean, they’ll send out a formal letter maybe, just say hey, let you know you got in, but it’s not — it’s really not like you’re applying to Harvard or anything, you know. It’s more, a little different, so.

Transcript at 12.

At the time of the hearing Cassandra was living in an apartment in Clarksville, Indiana, and had lived there for approximately five years, the former part of which with Mother and the latter part of which alone. From late-2010 until at least the date of the hearing on May 26, 2011, Cassandra lived physically and mostly financially independent of her parents and, aside from federal assistance with her monthly rent, she had been paying the entirety of her rent (which includes cable and water), electric, and cellular phone bills. Up until Father filed his motion in March 2011, he had been paying court-ordered weekly support of forty-five dollars to Mother, who then turned over each check to Cassandra. In addition, Cassandra testified that she works as a server at a restaurant and that her hours, wages, and tips vary greatly, but her income (and Section 8 assistance) has so far been “just enough to pay [her] bills.” Id. at 16.

Mother lived with Cassandra in the Clarksville apartment until late-2010. Cassandra explained how it came to be that Mother moved out and Cassandra began living alone in the apartment:

She [(Mother)] has a, you know, a friend that she goes with. They got a place together — ... ‘cuz they have land and she is sick. And when she dies she wants to leave something to me. So she was like, if I can do this on my own and do this for you, will you take the Section 8 [federal assistance] if you’re allowed to, and stay here, that way you have a place and I don’t have to worry about you getting into trouble, you know, bouncing home to home ‘cuz that’s, you know, she knows that I’ll have a stable environment. So I can go to school, so I can work, and so I can do those things.

Id. at 18. Cassandra added that, “If I could stay at home till I was twenty-one? Man, I would be home. I’d be home going to school and working. I’d be doing it. But, instead, I’m going to have Section 8 and I’m gonna work and go to school[.]” Id. at 19; id. at 31 (Cassandra stating that if she could have it her way, she would rather live with a parent than alone in the Clarksville apartment). She also added that without Section 8 federal assistance she would not be financially able to live on her own. Id. at 21.

Following the hearing, the trial court issued an order which is a fill-in-the-blank form of the Floyd County Superior Court. The order states:

Comes now the Original Petitioner, [Mother], in Person and the Prosecuting Attorney, and the original Respondent, [Father], appearing, and with/without counsel, ... appearing for a hearing on Modification
⅜: * *

THE COURT FINDS THAT:

X Original Respondent shall (continue to) pay child support in the amount of $42.00 per week....
X Other: Pet to EmancipatioN DenieD All pymts to be made to child Cassandra Ashabranner eff. 5-27-11....

Appellant’s Appendix at 8-9.

Father filed a motion to correct error, which the trial court denied. Father now appeals. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

We review rulings regarding emancipation and child support for clear error. Liddy v. Liddy, 881 N.E.2d 62, 66 (Ind.Ct.App.2008), trans. denied. We neither reweigh the evidence nor judge the credibility of witnesses, and will only find the judgment clearly erroneous where there is a complete lack of evidence in support of the ruling or where the evidence is undisputed and leads to a contrary conclusion. Id.

II. Terminating Child Support

Certain statutes govern termination of a parent’s duty to support a child, and Indiana Code chapter 31-16-6 generally obligates a parent to pay child support until the child reaches twenty-one years of age. Ind.Code § 31-16-6-1 et seq.; Cubel v. Cubel, 876 N.E.2d 1117, 1119 (Ind.2007).

Indiana Code section 31-16-6-6 provides:

(a) The duty to support a child under this chapter ceases when the child becomes twenty-one (21) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming twenty-one (21) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(2) The child is incapacitated....
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and
(C) is or is capable of supporting himself or herself through employment.
In this case the child support terminates upon the court’s finding that the conditions prescribed in this subdivision exist. However, if the court finds that the conditions set forth in clauses (A) through (C) are met but that the child is only partially supporting or is capable of only partially supporting himself or herself, the court may order that support be modified instead of terminated.
(b) For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:
(1) is on active duty in the United States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.

It is clear that Cassandra does not fall under (a)(2) because she is not incapacitated or under (a)(3) because she attended a secondary school within four months of the hearing. We then look to (a)(1), under which Cassandra may be emancipated under the terms of (b)(3). In other words, if Cassandra is “not under the care or control of ... either parent[ ] or ... an individual or agency approved by the court,” the trial court must find that she is emancipated and terminate Father’s court-ordered child support.

Our supreme court’s opinion in Dunson v. Dunson, 769 N.E.2d 1120 (Ind.2002), guides us in determining this case by explaining when sub-paragraph (b)(3)(A) applies. In Dunson, the court stated that emancipation of a minor “requires that (1) the child initiate the action putting itself outside the parents’ control and (2) the child in fact be self-supporting.” Id. at 1128-24. The court also noted that “[t]he purpose and policy of [31-16-6 is] to provide child support,” id. at 1124 (quoting Ind.Code § 31-16-1-2) (alterations in original), and that it believes the legislature’s intent in enacting this statute is to “require that parents provide protection and support for the welfare of their children until the children reach the specified age or no longer require such care and support.” Id. Finally, the court stated that to allow “automatic emancipation” without the two requirements would allow parents to “ ‘divorce their children’ and avoid paying child support simply by sending their children to live with a third party or, worse yet, just throwing the child out of the house.” Id.

Of the two issues Dunson highlights, we find the first dispositive: whether Cassandra initiated the action resulting in her being outside her parents’ control. It does not appear disputed that Cassandra is actually outside her parents’ control. The “action” which led Cassandra to be outside Father’s control occurred in or around 1994, and although circumstances regarding this action were not included in the evidence, it does not appear either argues that Cassandra initiated that action. The relatively recent action which put Cassandra outside Mother’s control is Mother’s moving out of the Clarksville apartment. Mother’s move was a deliberate action on Mother’s part, which resulted in Cassandra being left alone to fend for herself. While Mother and Cassandra are comforted by Mother’s stated reason for moving — to provide a future real property inheritance for Cassandra — this move nonetheless left Cassandra alone and formally beyond the control of her parents. This move was not initiated by Cassandra, and therefore she is not emancipated.

III. Mother’s Child Support Obligation

Father next argues that if we affirm the trial court order continuing his child support obligation, which we do, then Mother should also be ordered to pay child support. We agree.

First, the somewhat unique circumstances of this case warrant repeating. Father and Mother divorced in 1994 and around that time Father was ordered to pay child support because he no longer lived with Cassandra, and Mother was not ordered to pay child support because Cassandra lived with her. In late-2010, Mother left Cassandra to fend for herself, and the evidence does not indicate Mother provided Cassandra with any financial or other material support, aside from handing over Father’s payments.

Child support in Indiana is based upon the income shares model of child support. Thompson v. Thompson, 868 N.E.2d 862, 866 (Ind.Ct.App.2007). Our child support obligations worksheet determines how much each parent should pay based on a variety of factors. Generally, the custodial parent does not actually pay their obligation in cash because the custodial parent provides food, clothing, and shelter for the child residing in his or her home. Where the child lives on her own, however, as is the case here, both parents should be required to contribute to the child’s support.

The State argues further modification to order Mother to pay child support would be improper because Father did not file a motion for modification of support. We disagree because Father’s petition to terminate support due to Cassandra’s emancipation is essentially a motion for modification, and the trial court in fact did modify prior support orders by properly ordering that Father make his payments directly to Cassandra rather than to Mother. The trial court abused its discretion in not also modifying child support by ordering Mother to make child support payments.

While a court does not have authority to modify child support without a party’s motion raising the issue, a petition to terminate support payments is essentially a motion to modify the amount of weekly support payments downward to zero. Indeed, the following cases refer to modification of child support due to emancipation: Beckler v. Hart, 660 N.E.2d 1387, 1389 (Ind.Ct.App.1996); Kirchoff v. Kirchoff, 619 N.E.2d 592, 596 (Ind.Ct.App.1993), disapproved, of on other grounds by Merritt v. Merritt, 693 N.E.2d 1320, 1324 n. 4 (Ind.Ct.App.1998), trans. denied. In sum, we remand this case to the trial court for calculating the correct amount of Mother’s child support obligation and enter an order requiring Mother to pay accordingly. To the extent that such calculation warrants modification of the amount of Father’s obligation, the trial court is ordered to make the appropriate adjustment.

IV. Cassandra’s Contribution

Father also argues the trial court abused its discretion in not considering Cassandra’s income and ability to provide for herself when determining the amount of child support he should continue paying. But this argument is not consistent with Indiana’s child support statutes, which provide a shared model between parents. A child who is not yet emancipated is not responsible for providing for him or herself, and his or her income should not be considered by a court determining the amount of child support owed. See Jendreas v. Jendreas, 664 N.E.2d 367, 372 (Ind.Ct.App.1996) (“The income shares model ... apportions the cost of children between the parents according to their means, and is based upon the premise that children should receive the same portion of parental income after a dissolution that they would have received if the family remained intact.”), trans. denied.

It is prudent to note here that the only reason the trial court should not consider Cassandra’s- income at this point is because the issue before it is one of basic child support and not one of post-secondary education expenses. If the trial court had before it a petition for post-secondary education expenses, Cassandra’s income would necessarily be fair game for the trial court’s consideration. See Ind. Child Support Guideline 8(b) (“[T]he court should consider post-secondary education to be a group effort, and weigh the ability of each parent to contribute to payment of the expense, as well as the ability of the student to pay a portion of the expense.”).

Conclusion

Cassandra did not initiate the action which led to her living on her own, and therefore she is not emancipated. Father must continue to pay child support, but Mother must also be ordered to pay child support. We applaud Cassandra for her courage and determination to seek an education and provide for herself financially, and we refuse to hold her efforts and resolve to do so against her. The trial court shall not consider her income in determining the amount of financial support she receives from her parents.

Affirmed in part, remanded in part.

BAILEY, J., and MATHIAS, J., concur.

      . In Father's pro se petition, he checked a box which states the reason for Cassandra’s emancipation:
      Cassandra L. Ashabranner is at least eighteen (18) years of age; has not attended secondary or post-secondary school for the past four (4) months and is not enrolled in a secondary or post-secondary school; and is or is capable of supporting himself/herself through employment.
      Appellant’s Appendix at 4.

      . Cassandra explained that upon transferring high schools at least twice — it is not clear for what reason — a local school did not accept some of her credits, so she completed her coursework at Reisz and ‘‘still got [her] New Albany High School diploma.” Tr. at 9.

      3. In this paragraph, “in Person” is handwritten and the remainder is typed. In addition, the word "appearing,” as it refers to Father, and the word "with” appear to have been circled by hand. The emphasis of "Modification” appears in the original.

      4. The "X” and the "42.00” appear to be handwritten, and in addition, above this finding the trial court wrote “Now Payable to Cassandra Ashabranner,” and circled "continue to.” No one raises an issue as to the trial court ordering $42 payments as opposed to $45, which is referred to in the transcript of the hearing.

      5.This finding is handwritten.

      6. This section was recently amended to allow termination of child support, except for support for educational needs, once a child becomes nineteen years of age. This amendment becomes effective July 1, 2012, and does not affect the disposition of this appeal.

      . Cassandra is not married or on active duty in the United States armed forces.


text:
    Shepell ORR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1107-CR-308.
    Court of Appeals of Indiana.
    June 18, 2012.

      Thomas W. Vanes, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Following a jury trial, Shepell Orr appeals his two convictions of murder, which are felonies. He raises a single issue, which we restate as whether the trial court committed reversible error in allowing the State to attempt to impeach a witness with extrinsic evidence of a prior inconsistent statement. Concluding the trial court did not reversibly err, we affirm.

Facts and Procedural History

On December 30, 2009, as Orr was leaving an apartment building of a friend and while he was walking past Tyray Tolbert, LaTonya Burnette, Steven Williams, and Joshua Haywood, a verbal dispute arose between Williams and Orr. Orr retrieved a gun from his truck and opened fire. Tol-bert and Burnette ran, and Williams and Haywood were soon found dead with eleven total gunshot wounds.

The State charged Orr with two counts of murder. At the jury trial, Burnette testified that she did not see a gun or altercation that night and only heard gunshots. Apparently this conflicted with what Burnette told others on the night of the incident. Following a hearing outside the presence of the jury, the State called Michelle Jones to testify regarding what Burnette told Jones on the night of the incident. In addition, one of Orr’s fellow inmates while Orr awaited trial testified that Orr admitted to him that he committed the murders. The jury found Orr guilty as charged and, following a hearing, the trial court entered a judgment of conviction as to both counts of murder and sentenced Orr to two consecutive terms of fifty-five years, for a total of one hundred and ten years. Orr now appeals his convictions. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

A trial court has “inherent discretionary power” in determining the admission of evidence, and we review its decisions for an abuse of discretion. Vasquez v. State, 868 N.E.2d 473, 476 (Ind.2007) (quotation omitted). When a defendant fails to make a contemporaneous objection to the admission of evidence at trial, however, any error is generally waived for purposes of appeal. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.2000).

The purpose of requiring a contemporaneous objection is to afford the trial court an opportunity to make a final ruling on the matter in the context which the evidence is introduced. Id. This is why, for example, pointing to a motion to suppress, a hearing thereon, or other similar hearing, does not satisfy this requirement. See id. Similarly, the rule allows trial court judges to consider the issues in light of any fresh developments — in the law, facts of the case, or anything related to the trial itself — as may be appropriate, and to correct any errors in prior rulings on the issues. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010).

Nonetheless, Orr makes the following statement in a footnote of his appellate brief:

[Michelle] Jones[,] [the witness whose testimony Orr now challenges,] was the first witness to testify on May 6, 2011. Late the previous afternoon, after the jury was excused, the trial court conducted a lengthy hearing on the hearsay and impeachment issues that would surface when Jones testified. In that hearing, counsel for Orr noted that Burnett [sic] had never been confronted with her purported statements to Jones, a foundational requirement for impeachment. The trial court summarily rejected that argument....
When Jones testified first thing the following morning before the jury, no objection was then lodged by Orr to Jones’ testimony about Burnett’s [sic] hearsay statements. Orr contends, however, the hearing conducted at the close of business the previous afternoon sufficiently demonstrated Orr’s objection to admission of the statements for impeachment purposes and the trial court’s clear opportunity to address same. In short, Orr contends that the previous day’s hearing contains his “contemporary” objection to the admission of the testimony at issue her. [sic]

Brief of Appellant at 5-6 n.2 (citations to transcript omitted).

At the hearing to which Orr refers, the trial court stated:

I’m going to keep that [(its decision concerning the issue Orr now raises) ] as a ruling right now. I will give you until Michelle [Jones] testifies to give me case law of some sort that would suggest to me otherwise. The issue is not closed. I mean, everything that I’m talking about is open for further discussion and that’s how I typically run things. Make the offer of proof and we will go forward.

Transcript at 635.

Orr’s attorney responded: “I would— before we put Michelle [Jones] on, I will make my offer to prove about that....” Id. But Orr’s attorney did not object or make an offer of proof the next day, either before or during Jones’s testimony.,

Upon considering the rationale for the rule requiring an objection be contemporaneous (and especially in light of the trial court’s explicit reminder that Orr must raise the issue again), we conclude that Orr’s statements on the matter at an earlier hearing do not constitute a contemporaneous objection. Where a party fails to object at the time statements are introduced into evidence, any error in allowing statements into evidence must rise to the level of fundamental error to warrant reversal. Brown, 929 N.E.2d at 207. Fundamental error is an exception to the general rule requiring contemporaneous objection that is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. This exception applies only to “egregious circumstances,” and must either “make a fair trial impossible” or constitute “clearly blatant violations of basic and elementary principles of due process.” Id. (citations omitted). Anything less than fundamental error is, in this case, harmless error and not grounds for reversal. See Munford v. State, 923 N.E.2d 11, 17 (Ind.Ct.App.2010).

II. Extrinsic Evidence of Prior Inconsistent Statement of Witness

Orr argues on appeal that the State failed to satisfy a prerequisite for introducing extrinsic evidence of a prior inconsistent statement of Burnette. The specific extrinsic evidence Orr challenges is testimony by Michelle Jones. As noted above, this issue was anticipated and discussed at a hearing on the record and outside the presence of the jury after Burnette’s testimony and prior to Jones’s testimony. At the close of this hearing, the trial court decided that Jones would be allowed to testify regarding what Burnette told Jones on the night of the incident. Essentially, Orr now complains that while Burnette testified she was not confronted with the statements she apparently made to Jones and given an opportunity to explain or deny the same.

The relevant rule, Indiana Evidence Rule 613(b), provides:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to statements of a party-opponent as defined in Rule 801(d)(2).

It is notable that Burnette was not confronted at or before trial with the statements she made to Jones, but Rule 613(b) does not require Burnette actually explain or deny the prior inconsistent statement. Rather, the rule requires Burnette to have been “afforded an opportunity” to do so, or that the “interests of justice otherwise require.” Id. The significance of these two portions of the rule warrant further discussion.

First, Evidence Rule 613(b) generally requires Burnette to have been afforded an opportunity to explain or deny the prior inconsistent statements of which the admission into evidence is at issue, but the rule does not specify the timing of that opportunity. Our research has not revealed an Indiana appellate opinion on the timing aspect of this rule, but federal courts have discussed this issue in great detail. Because of the similarity between the Indiana Rules of Evidence and the Federal Rules of Evidence, a federal court’s interpretation of the Federal Rules of Evidence “may be of some utility.” Palacios v. State, 926 N.E.2d 1026, 1032 n. 3 (Ind.Ct.App.2010) (citation omitted).

In addressing this issue, federal courts have consistently held that the “opportunity to explain or deny the prior inconsistent statement” requirement may be satisfied if the witness is “permitted — at some point” to do so. U.S. v. Young, 86 F.3d 944, 949 (9th Cir.1996). As relevant here, a party who is able to recall a witness to explain or deny prior statements cannot later object on the basis of Rule 613(b). Id.; see U.S. v. Della Rose, 403 F.3d 891, 903 (7th Cir.2005) (“But the rule [ (Federal Rule of Evidence 613(b)) ] itself says only that the witness must have the opportunity to explain or deny his prior statement; it does not say that he must be given that opportunity before extrinsic evidence of the statement is admitted. Thus, the fact that Britz had not been asked about his statement to DeFrancesco on cross-examination did not necessarily preclude the defense from eliciting testimony from DeFraneesco about the statement; the government could have brought Britz back to the stand in its rebuttal case and asked him about the statement at that time.”) (emphasis in original) (citation omitted). The Eleventh Circuit Court of Appeals stated:

Traditionally, prior inconsistent statements of a witness could not be proved by extrinsic evidence unless and until the witness was first confronted with the impeaching statement. Rule 613(b) modifies this approach, however, by merely requiring that the witness be provided an opportunity to explain the statement at some point in the proceedings. There need be no particular sequence or timing, so long as the witness has that opportunity to explain the statement....
... Rule 613(b) does not supplant the traditional method of confronting a witness with his inconsistent statement pri- or to its introduction into evidence as the preferred method of proceeding. In fact, where the proponent of the testimony fails to do so, and the witness subsequently becomes unavailable, the proponent runs the risk that the court will properly exercise its discretion to not allow the admission of the prior statement. For this reason, most courts consider the touchstone of admissibility under Rule 613(b) to be the continued availability of the witness for recall to explain the inconsistent statements.

Wammock v. Celotex Corp., 793 F.2d 1518, 1521-22 (11th Cir.1986) (emphasis in original) (citations omitted).

Indiana appellate courts have not opined on this issue directly. But the federal approach makes sense and is consistent with Indiana appellate opinions regarding a similar issue. For instance, in Clark v. State, 808 N.E.2d 1183 (Ind.2004), our supreme court held that a criminal defendant’s right to an opportunity to cross-examine and confront a witness face-to-face was not violated because the defendant could have recalled that witness to confront and question him regarding a statement introduced into evidence after the witness testified. Id. at 1190. In Fowler v. State, 829 N.E.2d 459, 465 (Ind.2005), cert. denied, 547 U.S. 1193,126 S.Ct. 2862, 165 L.Ed.2d 898 (2006), also addressing the confrontation clause, the supreme court concluded that even though the witness left the stand without the defendant’s cross-examination, the defendant’s failure to explain why he could not have recalled the witness left his appellate challenge wanting.

Therefore, we conclude that under Indiana Evidence Rule 613(b), a witness’s requisite “opportunity to explain or deny” a prior inconsistent statement may be satisfied at any point in the proceedings, with two caveats. The first caveat is that, as stated in Wammock, the traditional method of confronting a witness with the statement before extrinsic evidence is introduced into evidence remains the preferred method. The second caveat, as explained more fully below, is that the trial court has wide discretion in this matter. Indeed, as the rule states, the trial court should rule as “the interests of justice” require.

Further, as relevant here, the record reflects that Orr’s trial attorney was aware of and, at least for a time, considered recalling Burnette as a witness:

THE COURT: Is Burnette excused?
[Orr’s trial attorney]: We have to wait until after Michelle Jones testifies. [State]: Frankly, Judge, I was — from my perspective, I’m not going to call her again, so it’s up—
[Orr’s trial attorney]: But I may have to depending on what Michelle Jones is going to try to say LaTonya Burnette said certain things, [sic]

Tr. at 612. Our holding here is not a departure from the current law or practice in Indiana state courts. We merely clarify the proper — and preferred — procedure under Rule 613(b).

We now discuss a second, significant portion of Indiana Evidence Rule 618(b), the clause which qualifies the general inadmissibility of extrinsic evidence of a prior inconsistent statement unless “the interests of justice otherwise require.” The Regional Advisory Committee Commentary states:

Indiana Rule 613 adopts in major part the text and grammatical style of [Federal Rules of Evidence] 613, and its precursor in the [Uniform Rules of Evidence] 613. As adopted, Rule 613 represents a substantial change in Indiana law as reflected in the common law. Rule 613 moves away from the formalistic, and sometimes mechanical, approach to the impeachment process, and provides greater flexibility to the practitioner and the trial court in utilizing and regulating the use of prior statements during witness testimony.

13A Ind. Prac., Indiana Evid.App. B R 613 (3d ed. 2011).

Trial courts have discretion to admit extrinsic evidence of the prior statement even if the impeachee had no opportunity to explain or deny or if the adverse party had no opportunity to question the statement. 13 Ind. Prac., Indiana Evidence § 613.202 (3d ed. 2011). Trial courts also have discretion to require an impeachee’s opportunity to explain precede admission of extrinsic evidence of the prior statement. Evid. R. 613(b); see Evid. R. 611(a); see also Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 332 at 519-20 (2nd ed. 1994) (“Occasionally, ... courts still insist on laying the foundation first, and it seems probable that they have authority to do so under FRE 611.”) (quoted in Della Rose, 403 F.3d at 903). In determining whether to require a specific sequence, trial courts should consider: the trial court’s inclination to allow the impeachee to be recalled as a witness to explain, the witness’s availability to be recalled, the likelihood of unfair prejudice from repetition of evidence admissible only for impeachment, 13 Ind. Prac., Indiana Evidence § 613.202, and other factors, for example, the importance of the credibility of the impeachee to the resolution of the case.

Here, the trial court allowed Jones to testify before Burnette was confronted with an opportunity to explain or deny her statement to Jones. Orr concedes that “the evidence complained of here ... generally tracks other evidence heard by the jury — the testimony of Tyray Tolbert, who was Burnett’s [sic] companion that evening and who placed Orr at the scene, with a gun, making homicidal threats.” Br. of Appellant at 7. He argues that Tolbert’s credibility at trial was questionable though, and that when Jones impeached Burnette’s credibility, Tolbert’s was also bolstered, to Orr’s detriment. But this scenario, which is unfortunate for Orr, would have been the case even if the State laid the foundation for Jones’s testimony, as Orr seeks and Jones testified, in his view, properly. This scenario that Orr describes is not a direct result of the trial court’s discretionary decisions, and therefore, we cannot conclude that it exercised its discretion in a manner that warrants reversal.

For these reasons, we conclude Orr has failed to demonstrate the trial court committed an error which made a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process.

Conclusion

The trial court did not commit fundamental error in allowing Jones to testify regarding a prior inconsistent statement by Burnette. Therefore, we affirm.

Affirmed.

BAILEY, J„ and MATHIAS, J., concur.

      . At the end of Jones’s direct examination by the State, Orr’s counsel reminded the trial court to give the jury a limiting instruction, which it did. See id. at 649.

      . We note that Orr somewhat confuses the issues by referring to an offer of proof. An offer of proof is made by the proponent of evidence when the trial court declines to allow certain items or statements into evidence. Evid. R. 103(a)(2). Whereas an objection is made by a party challenging the admission into evidence of certain items or statements. Evid. R. 103(a)(1). An offer of proof is irrelevant to this appeal.

      . We note that the Indiana Practice Series suggests that the federal approach would be appropriate in Indiana. See 13 Ind. Prac. Evidence § 613.201 (3d ed. 2011) (citing Della Rose).

      . Orr relies on Hilton v. State, 648 N.E.2d 361 (Ind.1995), disapproved of on other grounds by State v. Wilson, 836 N.E.2d 407, 409-10 (Ind.2005). Hilton states that Rule 613(b) requires a witness be given an opportunity to answer a "question [which] adequately calls the [prior inconsistent] statement to the witness’s attention and enables him to form a sufficient recollection.” (citation omitted). Hilton does not discuss the sequence of such questioning. Nor does Hilton explicitly state whose burden it is to ensure that an opportunity is taken advantage of.

        Hilton approaches the issue from an angle different than that of Orr. In Hilton, the trial court refused to allow the defendant to introduce extrinsic evidence to impeach the State’s witness: in Orr’s case, the trial court allowed the State to introduce extrinsic evidence to impeach its own witness. In Hilton, the defendant did not cross-examine a State's witness in such a way as to call attention to that witness’s prior inconsistent statement, and the trial court declined to allow the defendant to introduce extrinsic evidence of that witness's prior inconsistent statement. That de-cisión was within the trial court’s discretion. Hilton does not discuss the facts surrounding that decision and the supreme court opinion upholding that decision does not bind us here. Admittedly, Orr would have had no reason to cross-examine Burnette in such a way as to call Burnette’s attention to her prior inconsistent statement because Burnette’s testimony supported Orr’s theory of the case. The trial court exercised its discretion in allowing the State to introduce extrinsic evidence (in the form of Jones's testimony) of Burnette’s prior inconsistent statement, and then Orr had both an opportunity to cross-examine Jones (to mitigate the effect of her testimony) and to recall Burnette as a witness (to rebut Jones’s testimony attacking Burnette’s credibility). Orr’s decision to not recall Burnette might have been a matter of trial strategy, and a reasonable one at that. In any event, the trial court appears to have properly exercised its discretion in Orr’s case, just as it apparently properly exercised its discretion in a different way in Hilton. Hilton is not helpful to Orr’s cause on appeal.

      . This last factor, the importance of the credibility of the impeachee to resolution of the case, might become relevant in appellate consideration of whether a trial court’s abuse of discretion warrants reversal or constitutes harmless error because sufficient, independent evidence of guilt was presented. quate. He did not object to the adequacy at trial, and as a result, he has waived this error for our review. See Stahl v. State, 616 N.E.2d 9, 13 (Ind.1993).

      . Orr also seems to argue that the trial court’s limiting instruction to the jury was inade-


author: PER CURIAM.

text:
    Rondell WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 34S02-1206-CR-346.
    Supreme Court of Indiana.
    June 20, 2012.
    Derick W. Steele, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition To Transfer from the Indiana Court of Appeals, No. 34A02-1101-CR-612

PER CURIAM.

Rondell Walker was charged with four counts of drug crimes and two related offenses after he was stopped by police for a traffic infraction within 1,000 feet of a family housing complex. He pleaded guilty to possession of cocaine as a Class B felony and was initially referred to Drug Court. His participation in that program was later terminated, and the trial court sentenced him to twenty years, the maximum term. He appealed, claiming that he was deprived of due process during his drug court termination and sentencing hearings and that his sentence was inappropriate in light of the nature of the offense and his character. The Court of Appeals affirmed the termination and the sentence in a Memorandum Decision. See Walker v. State, No. 34A02-1101-CR-612, 2012 WL 828487, slip op. (Ind.Ct.App. March 13, 2012).

Having reviewed the matter, we grant transfer of jurisdiction, and direct revision of the sentence from twenty years to twelve years. See Abbott v. State, 961 N.E.2d 1016, 1017-1019 (Ind.2012) (“but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine.”); Ind. Appellate Rule 7(B). In all other respects, the decision of the Court of Appeals is summarily affirmed. See Ind. Appellate Rule 58(A).

DICKSON, C.J., and SULLIVAN, RUCKER, and DAVID, JJ., concur.

MASSA, J., would deny transfer.


text:
    In the Matter of Ryan L. STRUP, Respondent.
    No. 49S00-1107-DI-429.
    Supreme Court of Indiana.
    June 20, 2012.
   PUBLISHED ORDER REVOKING PROBATION AND IMPOSING SUSPENSION

On December 9, 2011, the Court entered an order approving a conditional agreement under which Respondent was suspended from the practice of law for a period of 90 days, all stayed subject to completion of at least two years of probation with monitoring by the Judges and Lawyers Assistance Program. The agreement provides that if Respondent violates his probation, the Commission will file a motion to revoke his probation and request that Respondent actively serve his suspension without automatic reinstatement.

On May 7, 2012, the Commission filed a verified motion to revoke Respondent’s probation, pursuant to Admission and Discipline Rule 23(17.2)(a), asserting Respondent violated the conditions of probation by consuming alcohol. Respondent filed no response. His failure to file an answer to the Commission’s motion will be deemed to be an admission to the Commission’s averments. See Admis. Disc. R. 23(17.2)(b).

Being duly advised, the Court GRANTS the motion and revokes Respondent’s probation. Respondent shall be suspended from the practice of law for a period of not less than 90 days, without automatic reinstatement, beginning August 1, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). The costs of this proceeding are assessed against Respondent.

The Court directs the Clerk to serve a copy of this Order upon Respondent and the Executive Secretary by personal service or by certified mail return receipt requested. The Court further directs the Clerk to forward a copy of this Order to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Timothy D. FREEMAN, Respondent.
    No. 49S00-1112-DI-694.
    Supreme Court of Indiana.
    March 7, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On December 20, 2011, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is already under suspension orders entered in Cause Nos. 49S00-1103-DI-168, 49S00-1105-DI-287, and 49S00-1106-DI-345. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $522.16 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Lee C. BUCKLEY, Respondent.
    No. 49S00-1201-DI-39.
    Supreme Court of Indiana.
    March 7, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Based on an incident on May 23, 2010, Respondent was charged with possession of marijuana and possession of paraphernalia, both class A misdemeanors. The parties do not disclose the current status of the criminal case, but for purposes of this proceeding, Respondent admits that he committed the crimes charged.

The parties cite Respondent’s 1996 private administrative admonition as a fact in aggravation. The parties cite the following facts in mitigation: (1) Respondent was cooperative with the Commission; (2) Respondent contacted the Indiana Judges and Lawyers Assistance Program (“JLAP”) after his arrest and has executed an interim monitoring agreement with JLAP; (3) Respondent has also participated successfully in treatment at Fairbanks Hospital and support groups such as Alcoholics Anonymous and Narcotics Anonymous; and (4) according to JLAP reports, Respondent is conscientious and committed to his recovery program and continued sobriety.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning on the date of this order, all stayed subject to completion of two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall refrain from all mind-altering substances except as prescribed, shall continue his participation in support programs, shall enter into and comply with a long-term JLAP monitoring agreement, and shall comply with the Rules of Professional Conduct.
(2) If Respondent violates his probation, the stayed suspension will be actively served with automatic reinstatement, and additional discipline may be imposed if appropriate for acts in violation of his probation.

Notwithstanding the expiration of the term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DAVID, J., who dissents, believing suspension on violation of probation should be without automatic reinstatement.


text:
    In the Matter of Timothy D. FREEMAN, Respondent.
    No. 49S00-1103-DI-168.
    Supreme Court of Indiana.
    March 8, 2012.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION

On July 19, 2011, pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. The Disciplinary Commission has now moved to convert Respondent’s suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission’s motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noncooperation with the disciplinary process. Accordingly, the Court concludes that Respondent’s suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; to the Disciplinary Commission; and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Beau J. WHITE, Respondent.
    No. 27S00-1109-DI-582.
    Supreme Court of Indiana.
    March 13, 2012.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Brian D. Hutchinson, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: The Commission filed a “Verified Complaint for Disciplinary Action” against Respondent on September 28, 2011. Respondent was served by certified mail on September 30, 2011, and has not appeared or responded. Accordingly, the Commission filed an Affidavit and Application for Judgment on the Complaint” on November 14, 2011, and the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c).

Neither party filed a petition for review of the hearing officer’s report. When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000).

In December 2009, a client hired Respondent to represent him in a paternity action for $400. Respondent did not appear at the paternity hearing. The trial court entered an order establishing paternity with the provision that the client could file a motion to reconsider within 30 days in light of Respondent’s absence. Respondent did not respond to the client’s repeated calls and emails and did not advise him of the 30-day period to file a motion to reconsider. No such motion was filed. After the client filed a grievance with the Commission, Respondent expressed a willingness to refund $400 to the client, but he has not done so.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.2(a): Failure to abide by a client’s decisions concerning the objectives of representation.
1.3: Failure to act with reasonable diligence and promptness.
1.4(a): Failure to keep a client reasonably informed about the status of a matter and respond promptly to reasonable requests for information.
1.16(d): Failure to refund an unearned fee upon termination of representation.

Discipline: For neglect of a single case, it is not uncommon for an attorney to receive a private or public reprimand. However, Respondent’s failure to respond in any way the Commission’s verified complaint leads us to conclude that, in the interests of protecting the public and the profession, he should be required to demonstrate his fitness before being permitted to resume his status as an attorney in this state. See Matter of Miller, 759 N.E.2d 209, 211-12 (Ind.2001).

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 60 days, without automatic reinstatement, beginning April 20, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Ayeshah F. JOHNSON, Respondent.
    No. 29S00-1103-DI-163.
    Supreme Court of Indiana.
    March 13, 2012.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable James R. Detamore, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: Neither party filed a petition for review of the hearing officer’s report. When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000).

In March 2005, Respondent began a solo family law practice. Respondent relied on a paralegal’s instructions regarding setting up a client trust account and establishing the means for clients to make credit card payments. She admits that she made a mistake in not exercising her own judgment in these matters.

Respondent failed to maintain complete trust account records for a period of five years. She failed to keep records that explained all receipts and withdrawals from her trust account. Respondent wrote checks on the trust account made payable to “Self’ or to “Cash” with no identified purpose. She deposited funds from her business account and from credit card payments into her trust account without any records of purpose of the funds or to whom they belonged. She deposited funds for a filing fee from a client into the trust account, but she never paid a filing fee for the client from the account. She paid herself earned fees from client funds in her trust account by a monthly electronic transfer to her business account. On multiple occasions, the withdrawals did not match the amount of earned fees shown on the client invoices. On occasion, she failed to deposit unearned fees in the trust account, and she failed to promptly withdraw earned fees. As a result of her accounting failures, Respondent used funds maintained for some clients to pay other clients’ expenses. She did not maintain a nominal balance in the trust account to pay credit card processing fees. Her attorney trust account became overdrawn, apparently as a result of the automatically withdrawn credit card processing fees.

The hearing officer found the following fact in aggravation: Respondent was not initially cooperative with the Commission’s investigation, and when she did respond, she provided inaccurate and misleading information.

The hearing officer found the following facts in mitigation: (1) Respondent has no disciplinary history (except for the CLE suspension noted below); (2) Respondent’s misconduct was not due to a dishonest or selfish motive; (3) no client suffered financial loss because of Respondent’s negligence; (4) Respondent has educated herself regarding the proper handling and safeguarding of client’s funds and the management of trust accounts; (5) Respondent was relatively inexperienced in the practice of law and law office management; (6) at the time of the misconduct, Respondent was suffering from personal and emotional problems; and (7) there is no evidence that Respondent used her trust account for personal use or that she intentionally misappropriated funds.

Violations: The Court finds that Respondent violated these rules prohibiting the following misconduct:

Ind. Professional Conduct Rules:
1.15(a): Failure to safeguard property of a client.
1.15(a): Failure to maintain and preserve complete records of client trust account funds.
1.15(c): Failing to deposit unearned legal fees into client trust account, and withdrawing funds from client trust account without earning fees or incurring expenses.
Ind. Admission and Discipline Rules:
23(29)(a)(2): Failure to maintain and preserve clear record of date, amount, source, and explanation for funds held in trust.
23(29)(a)(5): Making withdrawals from a trust account without written withdrawal authorization stating the amount and purpose of the withdrawal and the payee, and making withdrawals from a trust account by checks payable to “cash.”

Discipline: For Respondent’s professional misconduct, the Court imposes a public reprimand.

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Thomas N. NUTTLE, Respondent.
    No. 20S00-1112-DI-698.
    Supreme Court of Indiana.
    March 15, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On December 20, 2011, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is already under a suspension for continuing legal education noneompliance. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $569.67 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of James D. NAFE, Jr., Respondent.
    No. 71S00-1111-DI-663.
    Supreme Court of Indiana.
    March 15, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On November 22, 2011, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $522.16 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Anthony T. ADOLF, Respondent.
    No. 02S00-1007-DI-401.
    Supreme Court of Indiana.
    March 22, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: The first two counts in this disciplinary action relate to misconduct also charged against attorney Roger W. Hultquist, Cause No. 02S00-1007-DI-400, who received an agreed public reprimand for his misconduct.

Facts pertaining to both Counts 1 and 2. Two couples retained Hultquist to file a bankruptcy petition for them before certain amendments to the Bankruptcy Code became effective on October 17, 2005. Without the clients’ knowledge, Hultquist arranged to pay an employee in Respondent’s office to prepare and file the petitions electronically using software and court authorization Hultquist lacked. This would result in Respondent being shown as the clients’ counsel. The two attorneys agreed that Respondent would file the petitions and Hultquist would later be substituted as counsel for the couples.

Count 1. Respondent’s employee prepared the first couple’s petition for filing, but it was misplaced and not filed. After the couple inquired into the status of their case in March 2006, Hultquist contacted Respondent, who then discovered the petition had not been filed. As a result, the couple had to file their petition after the bankruptcy amendments took effect.

Count 2. Respondent filed the petition and schedules for the second couple on September 13, 2005. The documents generated by Respondent’s software contained false representations, including that Respondent was authorized to execute documents for the couple and that he had counseled them about their options under the Bankruptcy Code. Respondent, rather than Hultquist, appeared at the first meeting of creditors to represent the couple, although they knew nothing about his involvement in the case to that point. The bankruptcy was successfully concluded.

Count 3. In December 2008, Respondent obtained a $6000 default judgment on behalf of a client against “RR” and “PH.” Both moved to set aside the default judgment, and Respondent commence proceedings supplemental. A hearing was set for February 23, 2009.

Respondent reached a settlement agreement with RR, and RR delivered a $2500 check for release of the judgment against him. Rather than requesting a continuance of the February 23 hearing as he had agreed, Respondent told the court that the parties were only in settlement discussions, and the court denied RR’s motion to set aside the judgment for failure to appear at the hearing. When RR’s attorneys learned that the motion had been denied, Respondent then falsely told them that he had informed the court about the settlement and that he had asked for a continuance. Respondent misrepresented to RR’s attorney that he would file the release of judgment they provided. Instead, without notice to RR’s attorneys, he modified the release of judgment, omitting the amount RR had paid under the settlement.

RR sought sanctions against Respondent, including attorney fees. Respondent filed a motion to dismiss and his own motion for sanctions. After a hearing, the trial court “dismissed” Respondent’s motions, found bad faith on the part of Respondent, and ordered him to pay RR $1500 for attorney fees.

Regarding PH, Respondent had unilaterally secured a docket entry reading: “continued for Garnishment Order to issue.” On February 23, 2009, Respondent tendered a garnishment order, but the court’s judicial assistant refused to accept it, recalling that PH’s motion to set aside the default judgment had not been heard. Respondent requested that the court require PH to post a $6000 bond, failing to disclose to the court or PH’s counsel that his client had already received $2500 from RR in partial satisfaction of the judgment. After a hearing on March 16, 2009, the court denied the request, set aside the default judgment against PH, and set the matter for trial.

Count Jp. Respondent filed a chapter 7 bankruptcy petition for a husband and wife on December 15, 2009. Less than two weeks later, he filed a divorce petition on behalf of the husband and prepared an order for provisional relief, which wife, who was unrepresented in the divorce action, refused to sign. Respondent appeared for both husband and wife at the first meeting of creditors in the bankruptcy case in January 2010. After the wife retained counsel in the divorce proceeding, Respondent prepared a revised provisional order and final settlement agreement for the husband to present to the wife, without the consent of wife’s attorney to communicate with her about these documents. The divorce court eventually ordered Respondent to withdraw his appearance on behalf of the husband.

Other facts. The parties cite the following facts in aggravation: (1) Respondent’s misconduct was due to a dishonest or selfish motive with regard to Count 3; and (2) Respondent had been practicing sufficiently long enough to have known his conduct was improper.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; and (3) with respect to Counts 1 and 2, Respondent’s misconduct was not due to a dishonest or selfish motive, but rather resulted from a desire to help a colleague in the confusing and difficult time preceding the effective date of the bankruptcy amendments.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

Count 1:
1.3: Failure to act with reasonable diligence and promptness.
Count 2:
3.3(a)(1): Knowingly making a false statement of fact to a tribunal.
Count 3:
3.3(a)(1): Knowingly making a false statement of fact to a tribunal.
3.4(a): Unlawfully concealing material having potential evidentiary value.
4.1(a): Knowingly making a false statement of material fact to a third person in the course of representing a client.
4.4(a): Using means in representing a client that have no substantial purpose other than to embarrass or burden a third person.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
Count ⅛:
1.7(a)(1): Representing a client when the representation is directly adverse to another client.
4.2: Improperly communicating with a person the lawyer knows to be represented by another lawyer in the matter.

Discipline: The parties propose the appropriate discipline is suspension for 180 days with automatic reinstatement. Respondent engaged in serious professional misconduct that included multiple acts of deception in Count 3. “The reliability of lawyers’ representations is an integral component of the fair and efficient administration of justice.” Fire Ins. Exchange v. Bell, 643 N.E.2d 310, 313 (Ind.1994). The discipline the Court would impose for Respondent’s misconduct would likely be more severe had this matter been submitted without an agreement. However, in light of the Court’s desire to foster agreed resolutions of lawyer disciplinary cases, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning May 4, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Danny Ray HILL, Respondent.
    No. 71S00-0509-DI-416.
    Supreme Court of Indiana.
    March 30, 2012.
   PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT AND IMPOSING FINE

On January 10, 2006, Respondent was found in contempt and suspended indefinitely for noncooperation with the Indiana Supreme Court Disciplinary Commission in multiple investigations. See Matter of Hill, 840 N.E.2d 316 (Ind.2006). After he was suspended in Indiana, his Illinois law license was also suspended.

The Commission filed a “Verified Petition for Rule to Show Cause” on January 6, 2012, alleging that in September 2008, Respondent sent a letter to a couple in Illinois on letterhead with a South Bend address identifying himself as “Attorney.” In this letter, Respondent indicated that he had reviewed living trust and related documents prepared for the couple, and he advised the couple on the legality and effectiveness of these documents.

The Court entered a show cause order on January 13, 2012, ordering Respondent to show cause in writing why he should not be held in contempt for disobedience to the Court’s order suspending him from the practice of law in this state. Respondent filed a response on January 27, 2012, in which he admits sending the letter at issue and states: (1) he believed in good faith that he was still licensed to practice law in Illinois he wrote and sent the letter; and (2) he was not attempting or purporting to practice law in Indiana.

This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law, see Miller v. Vance, 463 N.E.2d 250, 251 (Ind.1984), but it is clear the core element of practicing law is the giving of legal advice to a client, see State ex rel. Indiana State Bar Ass’n v. Northouse, 848 N.E.2d 668, 672 (Ind.2006); State ex rel. Disciplinary Comm’n v. Owen, 486 N.E.2d 1012, 1013 (Ind.1986). Respondent admits the Commission’s allegation that his letter advised the couple on the legality and effectiveness of the documents he had reviewed. This constitutes the practice of law by giving legal advice.

Even though the recipients of Respondent’s letter were in Illinois, Respondent’s actions were in Indiana. He sent the letter from Indiana on letterhead with an Indiana address identifying himself as an attorney. We conclude that Respondent was practicing law in Indiana in violation of this Court’s suspension order.

This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id. The evidence before us establishes no more that a single act of misconduct in 2008. Under the circumstances, the Court concludes that a fine of $250.00 is sufficient discipline for Respondent’s contempt of court by practicing law in Indiana while suspended. The Court will, however, take this incident into, consideration in any future disciplinary or reinstatement actions concerning Respondent.

The Court therefore ORDERS that Respondent be fined the sum of $250.00. Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys. The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Timothy D. FREEMAN, Respondent.
    Nos. 49S00-1103-DI-168, 49S00-1105-DI-287, 49S00-1106-DI-345.
    Supreme Court of Indiana.
    April 3, 2012.
   PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURTi IMPOSING FINE, ORDERING DISGORGEMENT OF RETAINER, AND CONDITIONALLY DIRECTING IMPRISONMENT

Since November 2010, Respondent has been the subject of five show cause proceedings for noncooperation with the Commission. He has been suspended for noncooperation in Cause No. 49S00-1103-DI-168 since July 19, 2011. Suspension orders were later entered in Cause Nos. 49S00-1105-DI-287 and 49S00-1106-DI-345.

The Commission filed a “Verified Motion for Rule to Show Cause” on January 6, 2012, later amended on January 10, 2012, alleging the Respondent continued to practice law in seven eases after he was suspended. His actions included sending correspondence to opposing counsel, serving discovery requests, appearing in court, filing documents in pending cases, and initiating a new case by filing an appearance and a complaint. In addition, he accepted a retainer of $500 from an existing client for new work and a $3500 retainer from new clients. The new clients recovered the retainer by reversing the charges on their credit cards. Respondent has not responded to the existing client’s demand for a refund.

The Court entered a show cause order on January 13, 2012, ordering Respondent to show cause in writing why he should not be held in contempt for disobedience of the Court’s order suspending him from the practice of law in this state. Certified mail sent to his office address was returned unclaimed on February 9, 2012. Service by certified mail at Respondent’s home address was made on February 17, 2012. It has been over 15 days since service of the Order to Show Cause, and Respondent has not responded.

The documents attached to the Commission’s motion provide compelling evidence that Respondent continued to practice law unabated in multiple cases in heedless disregard of this Court’s suspension orders. Even if a few of the acts may have occurred before Respondent was aware of his suspension, others occurred months later, including his acceptance of a new case and $3500 retainer in December 2011.

This Court has inherent and statutory authority to punish contempt of court by fíne and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id.

For Respondent’s egregious violations of this Court’s suspension order over several months, the Court concludes that Respondent should pay a substantial fíne, disgorge the $500 retainer he received while suspended, and be imprisoned for a period of thirty (30) days unless he pays the fíne and disgorges the retainer by the deadlines set forth below. In addition, the Court will take Respondent’s contempt into consideration in any future disciplinary or reinstatement actions concerning Respondent.

The Court therefore ORDERS that Respondent be fined the sum of $2,500.00. Respondent shall remit this amount within ten (10) days of service of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.

The Court further ORDERS that Respondent disgorge the $500 retainer described above, within ten (10) days of service of this order, and that Respondent file and serve a verified report that the retainer has been refunded to the client within five (5) days of making the refund.

If Respondent fails to comply with this Order by the deadlines set forth above, Respondent will be ordered to serve a term of imprisonment for a period of thirty (30) days, without the benefit of good time, and the Sheriff of the Supreme Court of Indiana will be directed to take Respondent into custody and turn him over to the Indiana Department of Correction.

The Clerk of this Court is directed to serve a certified copy of this Order upon Respondent or his counsel by delivering a certified copy personally, or by sending a certified copy of it by registered or certified mail, return receipt requested. The Clerk is directed to forward a copy of this Order to the Indiana Supreme Court Disciplinary Commission. The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur; except DAVID, J., who dissents in part, believing that longer imprisonment should be required; and MASSA, J., not participating.


text:
    In the Matter of Barbara L. BARKAS, Respondent.
    No. 49S00-1104-DI-219.
    Supreme Court of Indiana.
    April 10, 2012.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On April 3, 2012, the Executive Secretary of the Disciplinary Commission filed a “Certificate of Compliance,” stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent’s suspension from the practice of law terminated as of the date the certifícate was filed.

The Court therefore ORDERS that Respondent’s suspension from the practice of law for failure to cooperate in this case be shown as terminated as of April 3, 2012, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.