author: BROWN, Judge. PYLE, Judge,

text:
    David MATHEWS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 01A02-1203-CR-207.
    Court of Appeals of Indiana.
    Oct. 23, 2012.

      Victoria L. Bailey, Beech Grove, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

David Mathews appeals his convictions for public intoxication as a class B misdemeanor and intimidation as a class D felony and being an habitual offender. Mathews raises two issues which we revise and restate as:

I. Whether the trial court abused its discretion by denying Mathews’s request for a mistrial; and
II. Whether the evidence is sufficient to sustain his conviction for public intoxication as a class B misdemeanor.

We affirm.

The relevant facts follow. On May 12, 2011, Mathews worked all day for a construction company, did not eat that day, purchased “a thirty pack of Natty Ice and a half pint of Admiral Nelson,” and drank all of his purchases. Transcript at 189. At around 10:00 p.m., the Adams County Sheriffs Department dispatched Decatur Police Officers to a disturbance in the street on Piedmont Lane in Decatur, Adams County, Indiana, in reference to a fight or domestic issue involving Mathews. The Decatur Police Department informed Adams County Sheriffs Deputy Trevor Callahan, who was on his way to the address given by dispatch, that Mathews had left the area and that Callahan should proceed one street west of the area. Deputy Callahan went to Evergreen Lane, which was one street west of Piedmont Lane.

Deputy Callahan looked between “the residences on Evergreen Lane and towards the back where Flemings Apartments would be, a few houses North,” and located Mathews. Id. at 129. Deputy Callahan turned on his spotlight, and Mathews turned around. Deputy Callahan yelled at Mathews, and Mathews stopped immediately and walked toward him. Deputy Callahan handcuffed Mathews, smelled the odor of an alcoholic beverage when Mathews spoke, and observed that Mathews’s speech was slurred. Based upon his experience as a jailer and a deputy, Deputy Callahan thought that Mathews was intoxicated.

Deputy Callahan performed an initial patdown and other officers arrived on the scene. Initially, Mathews was cooperative, but when Deputy Callahan moved Mathews’s backpack from the hood of his squad car so that it would not scratch the car, Mathews became belligerent, irate, and “flew off the handle.” Id. at 131. Mathews was being loud, cursing, “being very very -vulgar,” and said that Deputy Callahan was looking through his bag and trying to steal from him. Id. Deputy Callahan walked over to Decatur Police Officer Jonathan Wenzel’s vehicle to place Mathews inside, and Mathews pulled away from him so much that at one point Deputy Callahan had to restrain him against the back of the vehicle so that officers could open the door. Deputy Callahan told Mathews to enter the vehicle, and Mathews began taunting him and told him to put him in the vehicle. Another officer calmed Mathews down enough so that the officers did not have to physically place Mathews in the car.

Officer Wenzel transported Mathews to the Adams County Jail. At some point during the drive, Mathews became combative, kicked the cage in the squad car, began cursing, and threatened to go to Officer Wenzel’s house and take his wife and children. At the book-in counter, there was “some bets going on about the level of intoxication [Mathews] would have” to keep some sort of a sense of humor so that no one would become too upset, and Mathews “thought he [could] do better than what he did before.” Id. at 171. At one point Mathews told Officer Wenzel that he wanted to kill him.

On May 16, 2011, the State charged Mathews with intimidation as a class D felony and public intoxication as a class B misdemeanor. The charging information alleged that Mathews was found at 211 Evergreen Lane in Adams County in a state of intoxication. In June 2011, the State filed a notice of intent to seek habitual substance offender status. The State filed an amended information in September 2011.

After a jury trial before Judge Patrick Miller, Mathews was found guilty of both counts as charged. Prior to the beginning of the habitual offender phase of the jury trial, Mathews informed Judge Miller that he had acted as his attorney for one of the underlying charges for the habitual offender status and requested a mistrial. After recessing for the evening and hearing arguments the following morning, Judge Miller denied Mathews’s motion for mistrial. Specifically, Judge Miller stated: “My representation of you on an underlying offense that has never been presented to the jury as of yet has no impact on the first phase of this trial so I will deny the request for mistrial.” Id. at 262. Judge Miller recused himself and reassigned the case to Judge Frederick Schurger. The jury found Mathews to be an habitual offender. The court sentenced Mathews to two and one-half years for intimidation as a class D felony enhanced by four years for Mathews’s status as an habitual offender, and to 180 days for his conviction for public intoxication and ordered that it be served concurrent with his sentence for intimidation for an aggregate sentence of six and one-half years.

I.

The first issue is whether the trial court abused its discretion by denying Mathews’s request for a mistrial. Generally, the decision to grant or deny a motion for mistrial lies within the discretion of the trial court. Francis v. State, 758 N.E.2d 528, 532 (Ind.2001). “The grant of a motion for mistrial is an extreme remedy that is warranted only when less severe remedies will not satisfactorily correct the error.” Id. “On appeal, the trial judge’s discretion in determining whether to grant a mistrial is afforded great deference because the judge is in the best position to gauge the surrounding circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253, 260 (Ind.2004), reh’g denied, cert. denied, 546 U.S. 831, 126 S.Ct. 53, 163 L.Ed.2d 83 (2005). “[T]o succeed on appeal from the denial of a mistrial, a defendant must demonstrate that the conduct complained of was both error and had a probable persuasive effect on the jury’s decision.” Booher v. State, 773 N.E.2d 814, 820 (Ind.2002).

Mathews argues that Judge Miller should have granted a mistrial because he was required to recuse under Rule 2.11(A)(6) of the Indiana Code of Judicial Conduct and the habitual offender enhancement is part and parcel of the underlying conviction. The State argues that an underlying conviction phase of a trial and the habitual offender phase are separate and distinct, there is no per se violation when a judge does not make a disclosure of former representation, and Mathews has failed to make a showing of prejudice.

Rule 2.11(A) of the Indiana Code of Judicial Conduct provides:

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality! ] might reasonably be questioned, including but not limited to the following circumstances:
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

Under the circumstances, we cannot say that the portion of the trial addressing Mathews’s charges for public intoxication and intimidation are the same “matter in controversy” for purposes of disqualification or that reversal is required. See Den-ton v. State, 496 N.E.2d 576, 581 (Ind.1986) (“While in the usual habitual offender determination the same jury hears both the felony charge and the recidivist charge in a bifurcated proceeding, we have previously held that it is permissible for a different jury than the one who heard the case on the underlying felony charge to determine a defendant’s habitual offender status.”), reh’g denied; Gunter v. State, 605 N.E.2d 1209, 1210-1211 (Ind.Ct.App.1993) (holding that while it was error for the regular judge to disqualify himself for only the habitual phase of the trial, the error was harmless), trans. denied. Given that Judge Miller did not serve as a lawyer in the matter in controversy, i.e., the matter involving the public intoxication or intimidation charges, we cannot say that Rule 2.11(A)(6) required recusal prior to the habitual offender phase of the trial or that the trial court abused its discretion by denying Mathews’s request for a mistrial.

II.

The next issue is whether the evidence is sufficient to sustain Mathews’s conviction for public intoxication. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070,1072-1078 (Ind.1991).

Mathews argues only that the evidence is insufficient to support his conviction for public intoxication. The offense of public intoxication is governed by Ind. Code § 7.1-5-1-3, which provides that “[i]t is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35^18-1-9).” Thus, to convict Mathews of public intoxication as a class B misdemeanor, the State needed to prove that Mathews was in a public place or a place of public resort in a state of intoxication.

We initially address Mathews’s argument that “there was no evidence that [he] was in a state of intoxication” and that “the State offered no evidence regarding when the incident giving rise to the dispatch occurred, when Mathews was drinking in relation to that time, when Mathews left the Piedmont Lane area, or how long he had been near Evergreen Lane when he was found.” Appellant’s Brief at 3, 9. The State argues that the intoxication element was sufficiently proven on Mathews’s admission that he was highly intoxicated.

On May 12, 2011, Mathews worked all day and then drank “a thirty pack of Natty Ice and a half pint of Admiral Nelson.” Transcript at 189. The police were dispatched to a disturbance involving Mathews around 10:00 p.m. Deputy Callahan testified that he responded to the call around 10:00 p.m., but never made it to the address on Piedmont Lane because he was directed to proceed one street west as Mathews had left the area. Deputy Callahan proceeded one street west to Evergreen Lane and observed Mathews. The envelope containing the video of what occurred at the jail lists the date as May 12, 2011, and the time as 22:20. Based upon a number of factors, including the odor of an alcoholic beverage coming from Mathews, his demeanor, his slurred speech, and his bloodshot, watery, and glassy eyes, multiple officers testified that based upon their experience Mathews was intoxicated. Also, Mathews testified that he was “highly intoxicated” and “wasn’t in [his] right state of mind” when he' threatened Officer Wenzel. Id. at 190, 200, 202. During closing argument, Mathews’s counsel stated: “First of all [Mathews] admits he was drunk. Inebriated, plastered, on a bender, he admits it. He said he drank thirty beers. All right.” Id. at 226. We cannot say that the evidence is insufficient on this basis.

We next turn to Mathews’s argument that the evidence was insufficient because he was not in a public place or place of public resort. Mathews argues that while the State relied on evidence that the only way to reach Evergreen Lane from Piedmont Lane would be to cross Bellmont Road, the charging information did not charge- Mathews with being intoxicated on Bellmont Road. The State argues that the sequence .of events, and the layout of the streets,in Decatur lead to the natural inference that Mathews was drunk when he was fighting in the street on Piedmont Lane and that, when the call went out that someone had called the police, he then crossed Bellmont Road in an intoxicated state and was ultimately found in a person’s yard on Evergreen Lane. Thus, the. State argues that “on at least two occasions, the jury could reasonably have concluded that [Mathews] was intoxicated in a p.ublic place — once on Piedmont and once as he. crossed Bellmont.” Appellee’s Brief at 9. The State also argues that “[i]n charging Defendant with public intoxication alleging a specific date, time and location, a defendant should be placed on notice that the sequence of events that led to his arrest at that location at that time is the allegation for which he must prepare a defense.” Id. at 11.

The Indiana Supreme Court “stated many years ago, ‘The purpose of the law is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition.’ ” State v. Jenkins, 898 N.E.2d 484, 487 (Ind.Ct.App.2008) (quoting State v. Sevier, 117 Ind. 338, 20 N.E. 245, 246-247 (1889)), trans. denied. “A ‘public place’ does not mean only a place devoted to the use of the public.” Jones v. State, 881 N.E.2d 1095, 1097 (Ind.Ct.App.2008) (citing Wright v. State, 772 N.E.2d 449, 456 (Ind.Ct.App.2002)). “It also means a place that ‘is in point of fact public, as distinguished from private, — a place that is visited by many persons, and usually accessible to the neighboring public.’” Id. “A private residence, including the grounds surrounding it, is not a public place.” Moore v. State, 634 N.E.2d 825, 827 (Ind.Ct.App.1994).

The facts most favorable to the conviction reveal that the police were dispatched to a fight involving Mathews occurring in the street on Piedmont Lane. Deputy Callahan discovered Mathews “between the residences on Evergreen Lane and towards the back where Flemings Apartments would be, a few houses North.” Transcript at 129. In order to reach on foot the location where Mathews was observed by Deputy Callahan, Mathews would have had to cross Bellmont Road, which is a public street. To the extent that the charging information listed Evergreen Lane, the State does not point to evidence and our review of the record does not reveal whether Mathews was ever on or crossed Evergreen Lane or whether the exact location where Mathews was observed by Deputy Callahan was a public place. Thus, the evidence and reasonable inferences therefrom indicate only that Mathews was intoxicated in the public places of Piedmont Lane and Bellmont Road. Accordingly, we must address Mathews’s argument that the evidence at trial materially varied from the charging information.

Mathews essentially argues that there is a material variance between the charging information and the evidence produced at trial which resulted in insufficient evidence to convict him as charged. See Rupert v. State, 717 N.E.2d 1209, 1211-1212 (Ind.Ct.App.1999) (addressing the defendant’s argument of whether a variance between the information and the evidence was fatal in the context of the issue of whether the evidence was insufficient to support the defendant’s conviction).

An information must be “a plain, concise, and definite written statement of the essential facts constituting the offense charged,” Ind.Code § 35-34-1-2(d), and “must be sufficiently specific to apprise the defendant of the crime for which he is charged and to enable him to prepare a defense.” Bonner v. State, 789 N.E.2d 491, 493 (Ind.Ct.App.2003) (quoting Jones v. State, 467 N.E.2d 1236,1241 (Ind.Ct.App.1984)). “A criminal defendant has the right to be advised of the nature and cause of the accusation against him. There must be consistency between the allegations charged and the proof adduced. ...” Simmons v. State, 585 N.E.2d 1341, 1344 (Ind.Ct.App.1992) (citation omitted). A variance is an essential difference between proof and pleading. Allen v. State, 720 N.E.2d 707, 713 (Ind.1999). Not all variances are material or fatal, however. Id. The test to determine whether a variance between the proof at trial and a charging information or indictment is fatal is as follows:

(1) was the defendant misled by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in the future criminal proceeding covering the same event, facts, and evidence against double jeopardy?

Mitchem v. State, 685 N.E.2d 671, 677 (Ind.1997) (quoting Harrison v. State, 507 N.E.2d 565, 566 (Ind.1987)). In other words, to award relief on the basis of a variance between allegations in the charge and the evidence at trial, the variance must be such as to either have misled the defendant in the preparation and maintenance of his defense with resulting harm or prejudice or leave the defendant "vulnerable to double jeopardy in a future criminal proceeding covering the same event, facts, and evidence. Winn v. State, 748 N.E.2d 352, 356 (Ind.2001).

Mathews cites Moore v. State, 634 N.E.2d 825 (Ind.Ct.App.1994). In that case, James Moore parked his car in the driveway of the residence of his former wife and her husband. 634 N.E.2d at 825-826. An altercation occurred between Moore and his former wife’s husband. Id. at 826. Moore appealed his conviction for public intoxication and argued that he was not in a public place at the time of his arrest. Id. The State argued that Moore was not in a public place when arrested, but contended that the conviction was supported because Moore must have driven on public roads to reach his former wife’s residence. Id.

The court held:
The charging information states that Moore was in a state of intoxication at 10421 Hills Dale Drive ([the former wife’s] residence), not on the public roads going to the residence. Further, it is uncontroverted that Moore was only observed in [the former wife’s] driveway or backyard. We reject the State’s suggestion that we broaden the charging information and infer evidence which was not actually presented at trial. Moore’s public intoxication conviction is reversed.

Id. at 827. Although we noted that the charging information in Moore listed only the address for a private residence, our holding was also based on the fact that the arresting officer had not seen the defendant in a public place. Here, while the record does not reveal whether the officers saw Mathews in a public place, the officers were called to a fight involving Mathews occurring in the street on Piedmont Lane and subsequently located Mathews near Evergreen Lane, and Mathews must have crossed Bellmont Road to reach that location. Thus, Moore is distinguishable.

In any event, Moore should not be read to hold that an intoxicated person first seen on public property, eventually found on private property, and charged with intoxication at that address is exempt from prosecution for public intoxication. Although not directly on point, our decision in Vickers v. State, 653 N.E.2d 110 (Ind.Ct.App.1995), is instructive. In that case, an off-duty officer stopped Vickers after observing his vehicle weaving across lanes. 653 N.E.2d at 112. Vickers fled from the traffic stop, and a high-speed chase ensued. Id. Eventually the chase led to a “densely populated residential area.” Id. Vickers pulled into Rockford Court, and an officer parked his car to block the exit from that road. Id. Upon attempting to leave Rockford Court, Vickers struck the officer’s vehicle and was arrested. Id.

On appeal, Vickers challenged his convictions and sentences for three alcohol related charges: driving while intoxicated, operating a vehicle with a BAC of .10% or more, and public intoxication. Id. at 114. Specifically, he argued that the evidence did not support a conviction for all three offenses. Id. We disagreed, holding in relevant part that “Vickers was charged with public intoxication based on his intoxicated condition after he ran into [the officer’s] vehicle. Vickers has failed to convince us that the conduct underlying his convictions for driving while intoxicated and public intoxication was so continuous and uninterrupted as to constitute a single transaction.” Id. at 115 (footnote omitted). In a footnote, we noted that Vickers had been charged with public intoxication as follows: “Ray W. Vickers, on or about October 23, 1993, was found at 10335 Rockford Ct., a public place in Marion County, Indiana, in a state of intoxication. ...” Id. at 115 n. 1. Thus, we held that the evidence was sufficient, even though the charging information had listed only a street address, because the officer testified that he had observed Vickers in the public roadway. Id. at 115.

Similarly, here, the circumstantial evidence indicates that Mathews was on Piedmont Lane and crossed Bell-mont Road. Such evidence is sufficient to show that Mathews was intoxicated in a public place. Mathews does not specifically contend that the allegations misled him in his defense. Indeed, the probable cause affidavit mentions that Officer Wenzel was dispatched to Piedmont Lane, that Mathews left an address on Piedmont Lane, and was later discovered near Evergreen Lane. Mathews also does not contend that he would be subject to future criminal proceedings covering the same event, facts, and evidence. Under the circumstances, we cannot say that the variance was material. See Parahams v. State, 908 N.E.2d 689, 693 (Ind.Ct.App.2009) (addressing a situation in which the charging information alleged one act of resisting law enforcement against one officer while the evidence at trial revealed that it was another officer that the defendant resisted, and concluding that the variance was not fatal to the State’s case). We conclude that the State presented evidence of a probative nature from which a reasonable trier of fact could have found that Mathews was guilty of public intoxication as a class B misdemeanor.

For the foregoing reasons, we affirm Mathews’s convictions for intimidation as a class D felony and public intoxication as a class B misdemeanor and his status as an habitual offender.

Affirmed.

FRIEDLANDER, J., concurs.

PYLE, J., concurs with separate opinion.

PYLE, Judge,

concurring with opinion.

I concur with my colleagues. However, I also think it is important to note that Mathews’s argument regarding the trial court’s denial of his motion for mistrial fails because he did not demonstrate how he was deprived of a fair trial. His argument is solely based on Rule 2.11 of the Indiana Code of Judicial Conduct. This rule places an affirmative duty upon a judge to disqualify when his or her impartiality might reasonably be questioned. See Voss v. State, 856 N.E.2d 1211 (Ind.2006). The language and examples provided with the rule presuppose that a judge has knowledge of an event that calls into question his or her ability to be fair and impartial. In this case, the record reveals that neither the judge, prosecutor, defense counsel, nor Mathews himself was aware of the judge’s prior representation of Mathews until after the completion of the first phase of the trial. At that point, the judge correctly disqualified himself from the case. Therefore, because there was no knowledge during the trial, there was no duty to disqualify.

      . Mathews cites Calvert v. State, 498 N.E.2d 105 (Ind.Ct.App.1986). In Calvert, the trial judge appeared on two occasions for the prosecution when the case involving forgery was originally filed and had, as the prosecutor, obtained a court order for a sample of the defendant’s handwriting which was admitted into evidence. 498 N.E.2d at 106. On appeal, the court held that a trial judge must disqualify himself from a proceeding in which he has actively served as an attorney for one of the parties regardless of whether actual bias or prejudice exists. Id. at 107. Unlike Calvert, Judge Miller did not serve as an attorney in the case involving the pending charges of public intoxication or intimidation. Thus, we do not find Calvert instructive.

      . Subsequently amended by Pub.L. No. 93-2012, § 2 (eff. July 1, 2012); and Pub.L. No. 117-2012, § 1 (eff. July 1,2012).

      . The Court in Mitchem noted:
      Applying this test is essential because it addresses two constitutional guaranties of the accused in criminal prosecutions. Part one of the test meets the requirements under Art. 1, § 13 of the Indiana Constitution which entitles defendant "to demand the nature and cause of the accusation against him, and to have a copy thereof.” The second part of the test for variance meets the requirements of Art. 1, § 14 of the Indiana Constitution which provides that "no person shall be put in jeopardy twice for the same offense.” See Madison [v. State, 234 Ind. 517, 545-546, 130 N.E.2d 35, 48 (1955),] (concurring opinion of Ar-terburn, J., in which three other justices concurred).
      685 N.E.2d at 677 n. 8.

      . If Mathews (1) had been aware that the presiding judge had previously represented him in an unrelated criminal matter, and (2) failed to disclose that fact until after the first phase of the trial was completed, then he would have consented to the perceived error. Hope v. State, 903 N.E.2d 977 (Ind.Ct.App.2009); Stein v. State, 166 Ind.App. 133, 334 N.E.2d 698 (1975) trans. denied.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    Leslie BRIDGES, individually and as Class Representative of all those similarly situated, Appellant-Plaintiff, v. VEOLIA WATER INDIANAPOLIS, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Department of Waterworks, Appellees-Defendants.
    No. 49A02-1112-CC-1097.
    Court of Appeals of Indiana.
    Nov. 1, 2012.

      Peter S. Kovacs, Stewart & Irwin, P.C., Indianapolis, IN, Attorney for Appellant.
    Robert D. MaeGill, T. Joseph Wendt, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellees Veolia Water Indianapolis, LLC and Veolia Water North America Operating Services, LLC.
    Karl L. Mulvaney, Brian W. Welch, Carl A. Hayes, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Ap-pellee City of Indianapolis, Department of Waterworks.
   OPINION

BRADFORD, Judge.

After Veolia Water twice turned her water off for non-payment, appellant Leslie Bridges filed a class action seeking return of her $25 reconnection fee and other unspecified damages and attorney’s fees. The trial court dismissed, concluding that Bridges had failed to exhaust the administrative remedies available at the Indiana Utilities Regulatory Commission. We conclude that the trial court was correct to hold that Bridges was obliged to seek those remedies before seeking judicial relief.

FACTS AND PROCEDURAL HISTORY

In or about March of 2002, the City of Indianapolis, Department of Waterworks (the “Department”) acquired the waterworks assets of IWC Resources Corporation. In acquiring the waterworks assets, the Department explicitly agreed that it would remain subject to the jurisdiction of the Indiana Utility Regulatory Commission (“IURC”) for purposes of rates and charges, and that it would operate the waterworks systems in accordance with the IURC’s rules of service. The purchase was approved by the IURC on March 28, 2002 (the “2002 Order”). The 2002 Order reiterated that the Department would remain subject to the IURC’s jurisdiction for purposes of rates and charges and that the Department would operate the waterworks systems in accordance with the IURC’s rules of service.

The Department is a municipal water utility. Veolia Water Indianapolis, LLC and Veolia Water North America Operating Service, LLC (collectively, “Veolia”) is an independent contractor who, at all times relevant to this appeal, managed and operated all water treatment and distribution facilities owned by the Department. Under the terms of its contract, Veolia managed and operated all meter reading, billing, and collection functions. Veolia was responsible for handling all customer complaints and service requests. Veolia was also responsible for performing any disconnection of residential water service for nonpayment.

The services provided to residential customers by Veolia were governed by a tariff (the “Tariff’). The Tariff was approved by the IURC on September 11, 2002, and contained approved fees and procedures relating to the disconnection of residential water service for nonpayment. According to the terms of the Tariff, the procedure for involuntary disconnection was as follows:

(D) Procedure for Involuntary Disconnection of Residential Customers. Immediately preceding the disconnection of service to a residential customer, the Department’s employee designated to perform such function will attempt to identify himself to the residential customer or other responsible person then at the premises. The employee will announce the purpose of the visit, and a record of the visit will be maintained for at least thirty (30) days. The employee will also attempt to inform the residential customer or other responsible person of the reason for disconnection including, if the reason for disconnection is nonpayment, the amount of any delinquent bill. The employee will request from the residential customer any available verification that the reason for disconnection of service is no longer valid (such as, but not limited to, written evidence that the delinquent bill has been paid or evidence that the conditions, circumstances or practices which caused the disconnection have been corrected) or that the reason of disconnection is currently in dispute and under review, pursuant to Rule 11. The employee will not be required to accept payment in order to prevent the service from being disconnected for nonpayment; however, the Department’s 24-hour payment agreement will be offered as an option to disconnection should the customer or other responsible party offer such payment. Upon the presentation of satisfactory evidence or acceptance by the customer or other responsible party of the Department’s 24-hour payment agreement, service will not be disconnected. When the employee has disconnected the service, he will give to a responsible person at the residential customer’s premises, or if no one is at home, will leave at an entry way on the premises, a notice stating that service has been disconnected and the address and telephone number of the Department where the customer may arrange to have service reconnected.

Appellant’s App. pp. 46-47. The Tariff also provided that a residential customer would be subject to a $25 re-connect fee after having their water service involuntarily disconnected for nonpayment. Further, in addition to its other terms, the Tariff set forth the administrative process to be utilized by aggrieved customers. Specifically, the Tariff provided as follows:

(A) Complaint. A customer may complain to the Department at any time about any bill which is not then delinquent, a security deposit, a disconnection notice, or any other matter relating to the Department’s service and may also request a conference about such matters. The complaints may be made in person, in writing, or by completing a form available from either the [IURC] or from the Department at its business office. A complaint shall be considered filed upon receipt by the Department, except mailed complaints shall be considered filed as of the postmark date. In making a complaint or requesting a conference (hereinafter “complaint”), the customer shall state his name, service address and the general nature of his complaint.
(B) Investigation of Complaint and, Notification of Proposed Disposition. Upon receiving each such complaint, the Department will investigation [sic] the matter, confer with the customer when requested and notify him, in writing, of its proposed disposition of the matter. Such written notification will advise the customer that he may, within seven days following the date on which such notification is mailed, request a review of the Department’s proposed disposition by the [IURC]. If the customer requests a special meter reading, the first reading of the customer’s meter by the Department during its investigation shall not be subject to the charge for a special meter reading prescribed in the Department’s rate schedules. Subsequent readings, however, if requested by the customer, will be subject to the charge.

Appellant’s App. p. 63. The IURC has also established and made available procedures for the handling of complaints against a utility.

On March 4, 2011, Bridges filed a complaint in the trial court alleging that Veolia and/or the Department (collectively, the “Appellees”) committed a breach of contract by violating the terms of the Tariff governing the service provided to residential customers. Specifically, Bridges alleged that Veolia turned off her residential water service without following the procedures set forth in the Tariff on two separate occasions. In bringing the suit, Bridges sought damages, attorneys’ fees, and costs. Bridges also requested that the trial court impose an injunction prohibiting Veolia from continuing to disconnect residential water service in a manner not permitted by the Tariff.

On May 16, 2011, the Department moved to dismiss Bridges’s complaint alleging that the trial court lacked subject matter jurisdiction over the matter because Bridges had failed to exhaust the administrative remedies available to her through the Tariff. Bridges filed a response to the Department’s motion to dismiss on June 13, 2011, in which she argued that the trial court had jurisdiction because she presented her claim as a breach of contract action and also that utilization of the Tariff-prescribed administrative remedies would have been futile. On June 21, 2011, Veolia joined the Department’s motion.

The trial court heard argument on the Appellees’ motion to dismiss on July 22, 2011. At Bridges’s request, the trial court provided the parties with the opportunity to file additional post-hearing submissions. On August 25, 2011, the trial court granted the Appellees’ motion to dismiss. Bridges filed a motion to correct error on September 26, 2011, which was denied by the trial court on November 9, 2011. This appeal follows.

DISCUSSION AND DECISION

On appeal, Bridges contends that the trial court abused its discretion in denying her motion to correct error after the trial court granted the Appellees’ motion to dismiss her complaint for lack of subject matter jurisdiction pursuant to Indiana Trial Rule 12(B)(1).

Motions to correct error are governed by Trial Rule 53.3. Trisler v. Executive Builders, Inc., 647 N.E.2d 390, 393 (Ind.Ct.App.1995), trans. denied. “That rule provides that a motion to correct error ‘shall be deemed denied’ if a trial judge fails to rule upon it ‘within thirty (30) days’ after it was heard or forty-five (45) days after it was filed, if no hearing is required.... ” Ind. Trial Rule 53.3(A). “This denial is automatic; it is ‘self-activating upon the passage of the requisite number of days.’ ” Trisler, 647 N.E.2d at 393 (quoting Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 936 (Ind.Ct.App.1994)). Trial Rule 53.3(A) further provides, “Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.” T.R. 53.3(A).
Generally, a trial court has wide discretion to correct errors, and we will reverse only for an abuse of that discretion. Paulsen v. Malone, 880 N.E.2d 312, 313 (Ind.Ct.App.2008). An abuse of discretion occurs when the trial court’s action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom, or is based on impermissible reasons or considerations. Id.

Wurster Const. Co., Inc. v. Essex Ins. Co., 918 N.E.2d 666, 671 (Ind.Ct.App.2009).

In arguing that the trial court abused its discretion by denying her motion to correct error, Bridges claims that the IURC did not have exclusive jurisdiction over her claim. Alternatively, Bridges claims that even if the IURC did have exclusive jurisdiction over her claim, her failure to exhaust the available administrative remedies should be excused because the exhaustion of said remedies would have been futile. For their part, the Ap-pellees argue that the IURC did have exclusive jurisdiction over Bridges’s claim. Appellees further argue that exhaustion of the available administrative remedies would not have been futile, and, as such, Bridges’s failure to exhaust said remedies should not be excused.

A. Whether Bridges Was Required to Exhaust the Available Administrative Remedies Before Bringing the Underlying Action in the Trial Court

The General Assembly created the [IURC] primarily as a “fact-finding body with the technical expertise to administer the regulatory scheme devised by the legislature.” United Rural Elec. Membership Corp. v. Indiana & Mich. Elec. Co., 549 N.E.2d 1019, 1021 (Ind.1990) (“UREMC”). Its authority “includes implicit powers necessary to effectuate the statutory regulatory scheme.” Office of Utility Consumer Counselor v. Public Serv. Co., 608 N.E.2d 1362, 1363-64 (Ind.1993). Still, as a creation of the legislature, the Commission may exercise only that power conferred by statute. UREMC, 549 N.E.2d at 1021.

United States Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 790, 795 (Ind.2000).

Any attack on the validity or application of a utilities’ tariff approved by the utility commission is within the exclusive jurisdiction of the Public Service Commission (now the IURC). Indiana Bell Tel. Co., Inc. v. Friedland (1978), 175 Ind.App. 622, 373 N.E.2d 344, cert. denied, [(1979)], 440 U.S. 916, 99 S.Ct. 1233, 59 L.Ed.2d 465. Where the legislature has provided an exclusive administrative remedy, the courts are without jurisdiction until the statutory procedure has been exhausted or denied. Indiana Forge and Machine Co., Inc. v. Northern Indiana Public Service Co. (1979), Ind.App., 396 N.E.2d 910. The exhaustion of administrative remedies is the necessary precursor to judicial review. Id.

Haggard v. PSI Energy, Inc., 575 N.E.2d 687, 690 (Ind.Ct.App.1991).

“It has long been Indiana law that a claimant with an available administrative remedy must pursue that remedy before being allowed access to the courts.” Turner v. City of Evansville, 740 N.E.2d 860, 861 (Ind.2001). “If a party fails to exhaust administrative remedies, the trial court lacks subject matter jurisdiction.” Id. at 861-62. The rationale underlying this policy is that administrative bodies have specialized expertise and, as such, are better suited to settle disputes between customers and regulated utilities. State v. Sproles, 672 N.E.2d 1353, 1358 (Ind.1996). “Even when neither statute nor agency rule specifically mandates exhaustion as a prerequisite to judicial review, the general rule is that a party is not entitled to judicial relief from an alleged or threatened injury until the prescribed administrative remedy has been exhausted.” Austin Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 644 (Ind.1995).

The Indiana Supreme Court has, on several occasions, articulated that the reasoning behind the policy of requiring exhaustion of administrative remedies before review by the courts is permitted is that “[pjremature litigation may be avoided, an adequate record for judicial review may be compiled, and agencies retain the opportunity and autonomy to correct their own errors.” Advantage Home Health Care, Inc. v. Ind. State Dep’t of Health, 829 N.E.2d 499, 503 (Ind.2005); Turner, 740 N.E.2d at 862; State Bd. of Tax Comm’rs v. Montgomery, 730 N.E.2d 680, 684 (Ind.2000). “Even if the ground of complaint is the unconstitutionality of the statute, which may be beyond the agency’s power to resolve, exhaustion may still be required because administrative action may resolve the case on other grounds without confronting broader legal issues.” Turner, 740 N.E.2d at 862 (internal quotation omitted).

“The exhaustion doctrine is intended to defer judicial review until controversies have been channeled through the complete administrative process.” Austin Lakes, 648 N.E.2d at 644.

The exhaustion requirement serves to avoid collateral, dilatory action of the likes of the instant action and to ensure the efficient, uninterrupted progression of administrative proceedings and the effective application of judicial review. It provides an agency with the opportunity to correct its own errors, to afford the parties and the courts the benefit of [the agency’s] experience and expertise, and to compile a [factual] record which is adequate for review.

Id. (internal quotations omitted).

Again, Bridges argues that the trial court abused its discretion in denying her motion to correct error because her claim against the Appellees did not fall within the exclusive jurisdiction of the IURC, and, as such, she was not required to exhaust the available administrative remedies before bringing her claim in the trial court. Alternatively, Bridges argues that even if required, her failure to exhaust the administrative remedies should be excused because exhaustion would have been futile. Therefore, upon review, in order to determine whether the trial court acted within its discretion in denying Bridges’s motion to correct error, we must determine whether Bridges’s claim fell within the type of claims covered by the exclusive jurisdiction of the IURC, thus requiring exhaustion of the available administrative remedies. If so, we must further determine whether exhaustion of said remedies would have been futile.

It is undisputed that the Department is a municipal utility and that the IURC’s jurisdiction over municipal utilities is somewhat more limited than its jurisdiction over public utilities. In the instant matter, Bridges asserts that the Appellees committed an unreasonable act, i.e., disconnecting her residential water service in violation of both the Tariff and 170 IAC 6-1 — 16(f). Thus, Bridges argues that her claim against the Appellees is governed by Indiana Code sections 8-1-2-34.5 or 8-1-2-54.

Indiana Code section 8-1-2-34.5 reads, in relevant part, as follows:

(a) The [IURC] shall establish reasonable rules and regulations to govern the relations between public utilities and any or all classes of their customers. Those rules and regulations shall cover the following subjects:
(1) extension of service;
(2) extension of credit;
(3) deposits, including interest thereon;
(4) billing procedures;
(5) termination of service;
(6) complaints; and
(7) information and notice to customers of their rights under the rules.
(b) Notwithstanding IC 8-1-2-45, the [IURC] may investigate and enter orders on complaints filed by individual customers arising under this section. The [IURC] may establish an appeals division to act on its own behalf regarding individual customer complaints. The decision of the division shall be binding on all parties to the complaint. The [IURC] shall review decisions of the appeals division upon timely request by an affected party.

(Emphasis added).

Indiana Code section 8-1-2-54 reads as follows:

Upon a complaint made against any public utility by any mercantile, agricultural or manufacturing society or by any body politic or municipal organization or by ten (10) persons, firms, limited liability companies, corporations, or associations, or ten (10) complainants of all or any ■ of the aforementioned classes, or by any public utility, that any of the rates, tolls, charges or schedules or any joint rate or rates in which such petitioner is directly interested are in any respect unreasonable or unjustly discriminatory, or that any regulation, measurement, practice or act whatsoever affecting or relating to the service of any public utility, or any service in connection therewith, is in any respect unreasonable, unsafe, insufficient or unjustly discriminatory, or that any service is inadequate or can not be obtained, the commission shall proceed, with or without notice, to make such investigation as it may deem necessary or convenient. But no order affecting said rates, tolls, charges, schedules, regulations, measurements, practice or act, complained of, shall be entered by the commission without a formal public hearing.

(Emphasis Added).

The clear language of both Indiana Code section 8-1-2-34.5 and 8-1-2-54 limits these sections’ application to complaints against public utilities. In Gypsum, the Indiana Supreme Court held that in light of the clear language of Indiana Code section 8-1-2-54, the IURC’s jurisdiction under Indiana Code section 8-1-2-54 is limited to public utilities and does not extend to municipal utilities like the Department. See 735 N.E.2d at 797.

For their part, the Appellees contend that, Bridges’s claim effectively amounts to a challenge to the imposition of a charge that had been approved by the IURC, and, as a result, relevant statutory authority expressly grants the IURC exclusive jurisdiction over Bridges’s claim against the Appellees. Again, the Appellees acknowledge that the IURC’s jurisdiction in certain circumstances is limited to public utilities. See Ind.Code §§ 8-1-2-34.5 and 8-1-2-54. Appellees, however, argue that this court should look beyond the statutes relied on by Bridges to determine whether any other relevant statutes confer exclusive jurisdiction to the IURC over complaints against a municipal utility like the Department.

This Court has previously determined that the IURC’s power to approve rates and charges for municipal utilities necessarily gives rise to the power to investigate the justness of the application of these rates and charges, make findings, enter orders, and order payment for the expenses of the investigation. See Bloomington Country Club, Inc. v. City of Bloomington Water & Wastewater Utils., 827 N.E.2d 1213, 1219 (Ind.Ct.App.2005), trans. denied. In Bloomington Country Club, the Country Club filed a petition with the IURC claiming that the utility’s application of the water rate was unreasonable and unjustly discriminatory. Id. at 1217. The Utility filed a motion to dismiss claiming that the IURC lacked jurisdiction to grant the Country Club’s request to investigate the reasonableness of the irrigation rate. Id. The IURC denied the Utility’s motion to dismiss. Id. On appeal, the Utility argued that the IURC lacked jurisdiction to investigate the already adopted rates and charges of a municipally owned utility because Indiana Code section 8-1-2-68 does not apply to municipally owned utilities. Id. at 1218-19.

Indiana Code section 8-1-2-68 reads in relevant part:

Whenever, upon an investigation, the commission shall find any rates, tolls, charges, schedules, or joint rate or rates to be unjust, unreasonable, insufficient, or unjustly discriminatory, or to be preferential or otherwise in violation of any -of the provisions of this chapter, the commission shall determine and by order fix just and reasonable rates, tolls, charges, schedules, or joint rates to be imposed, observed, and followed in the future in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory or preferential or otherwise in violation of any of the provisions of this chapter.

Upon review, we noted that Indiana Code section 8-1-2-68 did not explicitly limit its application to “public utilities” and concluded that because it authorized the IURC to act upon an investigation that leads to certain findings, the power to initiate such an investigation was implied. Bloomington Country Club, 827 N.E.2d at 1219. In addition, we further noted that “[a] subsequent section provides for payment of the IURC’s expenses ‘upon any investigation made under the provisions of this chapter, either upon complaint against any municipal utility, or upon the petition of such municipal utility....’” Id. (quoting Ind.Code § 8-1-2-70).

In light of the well-settled principle that “[cjourts will not construe a statute in a manner that will render another a nullity,” we concluded that “[a] reading of the provisions together leads to the conclusion that the IURC has been granted the power to initiate an investigation as to whether a rate is ‘unjust, unreasonable, insufficient, or unjustly discriminatory’ along with its power to issue an order addressing such a finding and to order payment for the expense of its investigation.” Id. We further concluded that “such a conclusion is consistent with the undisputed authority of the IURC to approve the rates being applied by” municipal utilities, id., and that “[g]iv-en the statutory provisions discussed, to hold that the legislature did not grant to the IURC the authority to investigate the municipal utility’s application of rates which it had approved would produce an absurd result, and a statute ‘is to be construed so as to not bring about an absurd result.’” Id. at 1220 (quoting Citizens Action Coal, of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264, 1269 (Ind.Ct.App.2003), trans. denied).

Likewise, we believe that the rationale behind our conclusion in Bloomington Country Club can reasonably be extended to Indiana Code section 8-1-2-69, which, like Indiana Code sections 8-1-2-68 and 8-1-2-70, does not contain language expressly limiting its application to public utilities. Indiana Code section 8-1-2-69 provides in relevant part:

Whenever, upon the investigation made under the provisions of this chapter, the commission shall find any regulations, measurements, practices, acts, or service to be unjust, unreasonable, unwholesome, unsanitary, unsafe, insufficient, preferential, unjustly discriminatory, or otherwise in violation of any of the provisions of this chapter ... the commission shall determine and declare and by order fix just and reasonable measurements, regulations, acts, practices, or service to be furnished, imposed, observed, and followed in the future in lieu of those found to be unjust, unreasonable, unwholesome, unsanitary, unsafe, insufficient, preferential, unjustly discriminatory, inadequate, or otherwise in violation of this chapter, as the case may be, and shall make such other order respecting such measurement, regulation, act, practice, or service as shall be just and reasonable.

Thus, applying the rationale behind our conclusion in Bloomington Country Club, we conclude that Indiana Code sections 8-1-2-68 through 8-1-2-70 grant the IURC exclusive jurisdiction over Bridges’s claim regardless -of whether it is treated as a challenge to and request for reimbursement of the $25 re-connect fee imposed by the Appellees or as a challenge to the Appellees’ allegedly improper act of terminating Bridges’s residential water service in a manner inconsistent with the terms of the Tariff., As such, we conclude that the IURC has exclusive jurisdiction over Bridges’s claim.

Furthermore, to the extent that the Tariff amounts to a contract between the Department and its customers, the Tariff binds customers to exhaust administrative remedies when filing a complaint against the utility or challenging an act of or charge imposed by it. In filing suit in the trial court without first exhausting the available administrative remedies, Bridges is effectively seeking to enforce one portion of the Tariff while disregarding the provision requiring the exhaustion of administrative remedies. Bridges may not do so. See Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501 (Ind.Ct.App.2007) (providing that the language of a contract should be construed so as • not to render any words, phrases, or terms ineffective or meaningless); Francis v. Yates, 700 N.E.2d 504, 506 (Ind.Ct.App.1998) (providing that specific words and phrases found in a contract cannot be read exclusive of other contractual provisions and that the meaning of a contract is to be determined from an examination of all its provision, and not from a consideration of individual words, phrases or even paragraphs read alone).

B. Whether Bridges’s Failure to Exhaust the Available Administrative Remedies Should be Excused

Having concluded that the IURC has exclusive jurisdiction over Bridges’s claim against the Appellees, we must next consider whether Bridges’s failure to exhaust the available administrative remedies should be excused. Again, Bridges argues that even if the IURC did have exclusive jurisdiction over her claim against the Appellees, she should be excused from exhausting the available administrative remedies because the exhaustion of the available administrative remedies would have been futile. Appellees, for their part, argue that exhaustion of the available administrative remedies would not have been futile.

■ While “exhaustion of administrative remedies may be excused if the exercise would be futile,” M-Plan, Inc. v. Ind. Comprehensive Health Ins. Ass’n, 809 N.E.2d 834, 839 (Ind.2004), “the exhaustion requirement ... should not be dispensed with lightly on grounds of ‘futility.’ ” [Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1224 (Ind.2000) ]. To prevail upon a claim of futility, “one must show that the administrative agency was powerless to effect a remedy or that it would have been impossible or fruitless and of no value under the circumstances.” M-Plan, 809 N.E.2d at 840.

Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind.2005).

In the instant matter, Bridges sought damages, attorneys’ fees, costs, and an injunction prohibiting the Appellees from continuing to disconnect residential water service without following the terms of the Tariff. The request for the injunction is moot, however, because the Department sold the waterworks assets in 2011 and Veolia is no longer involved in the administration of waterworks assets. The damages sought by Bridges appear to be merely the recovery of the $25 re-connect fee that she incurred after one instance when she claims he residential water service was disconnected in violation of the terms of the Tariff.

In Northern Indiana Public Service Co. v. Citizens Action Coalition of Indiana, 548 N.E.2d 153, 160-61 (Ind.1989), the Indiana Supreme Court held that Indiana Code section 8-1-2-69 provided the IURC with the power to order a refund of charges collected by utilities, plus interest.

Furthermore, opinions of the IURC indicate that the IURC has the power, and in fact does, award refunds of charges paid by customers to utilities, including municipal utilities. See, e.g., In re Town of Cedar Lake, IURC Cause No. 43895, 2010 WL 3444551, 2010 Ind. PUC LEXIS 298 (Aug. 25, 2010) (ordering a refund of $9000); In re Easterly v. Ind. Gas Co., IURC Cause No. 43841, 2010 WL 2641675, 2010 Ind. PUC LEXIS 222 (June 23, 2010) (ordering a refund for service and investigation fees); In re Brenston v. N. Ind. Pub. Serv. Co., IURC Cause No. 43708, 2010 WL 2095672, 2010 Ind. PUC LEXIS 169 (May 19, 2010) (ordering a refund of $12.30); In re Park Jefferson v. N. Ind. Pub. Serv. Co., IURC Cause No. 42671, 2005 WL 4000526, 2005 Ind. PUC LEXIS 383 (Nov. 2, 2005) (ordering that Complainant shall be responsible for ½ the disputed amount and the utility shall be responsible for the other half). Thus, because the IURC would have the authority to order the Ap-pellees to refund the damages allegedly suffered by Bridges, it would not have been futile for Bridges to exhaust the administrative remedies available to her.

Furthermore, even if Bridges were to be unsuccessful in an administrative challenge, resort to the IURC may produce a reasoned explanation of the lawfulness of the Appellees’ actions, and that, in and of itself, could be of value before resorting to the courts to resolve such an issue. See Johnson, 829 N.E.2d at 984. The same is true even if Bridges were alleging damages in addition to the refund of the $25 re-connect fee because the IURC would be given the opportunity to use its expertise and experience to determine whether the Appellees acted in a manner inconsistent with the procedure for the disconnection of a customer’s residential water service set forth in the Tariff. If the IURC were to determine that the Appellees did, in fact, violate the terms of the Tariff, Bridges would then have the opportunity to seek any additional damages incurred beyond a refund of the $25 re-connect fee in the trial court.

In sum, having concluded that Bridges’s claim falls within the exclusive jurisdiction of the IURC and that exhaustion of the available administrative remedies would not have been futile, we conclude that the trial court acted within its discretion in denying Bridges’s motion to correct error because the trial court did not have subject matter jurisdiction over Bridges’s claim.

The judgment of the trial court is affirmed.

ROBB, C.J., and SHEPARD, S.J., concur.

      . We heard oral argument in this matter on October 11, 2012, and wish to thank counsel for their presentations.

      . We note that while Bridges asserts that she filed suit individually and as a representative of a class of those similarly situated, there has been no class certification in the instant matter.

      . It is unclear what monetary damages Bridges is alleging, if any, in addition to the $25 re-connect fee that she was charged on one of the two instances that she claims her residential water service was improperly disconnected. When asked at oral argument what these damages might be, counsel for Bridges was unable to articulate any specific additional damages and acknowledged that, with respect to Bridges, there were no easily calculated damages other than the $25 reconnect fee.

      . The parties agree that Bridges's request for an injunction against Veolia is moot because at some point during 2011, the Department sold the waterworks assets to Citizens Energy Group and Veolia is no longer involved with the waterworks functions in Indianapolis.

      . Because Veolia joined the Department's motion, we will hereinafter refer to the motion as "Appellees' motion.”


author: VAIDIK, Judge.

text:
    Dennis VERMILLION, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 13A01-1201-CR-17.
    Court of Appeals of Indiana.
    Nov. 20, 2012.

      Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Dennis Vermillion was convicted of two counts of Class C felony sexual misconduct with a minor after an incident in 2009. He was sentenced to eight years — five years executed and three years suspended to probation — on each count, to run consecutively, for a total sentence of sixteen years. On appeal, Vermillion contends that the trial court erred in admitting prior-misconduct evidence and his convictions violate Indiana’s Double Jeopardy Clause. He also raises numerous arguments regarding his sentence. We find that Vermillion’s convictions do not violate double jeopardy, and while the admission of prior-misconduct evidence was error, it does not amount to fundamental error. We also conclude that the trial court acted within its discretion in ordering Vermillion to serve consecutive sentences. However, we conclude that Vermillion’s total sentence exceeds the cap permitted by Indiana Code section 35-50-l-2(c), which allows, at most, a ten-year sentence in these circumstances. We therefore affirm in part, reverse in part, and remand for resentenc-ing.

Facts and Procedural History

Fourteen-year-old S.H.’s father was friends with Vermillion. S.H. often babysat Vermillion’s infant daughter and helped with tasks at Vermillion’s house, such as painting. S.H. considered Vermillion a friend. In May 2009, Vermillion came to S.H.’s house when S.H. was home alone. While Vermillion and S.H. watched television, Vermillion began rubbing S.H.’s leg. S.H. told him to stop, but Vermillion ignored her and put his hand inside her shirt and bra, touching her breast. He then straddled S.H. and began kissing her neck. S.H. told Vermillion to “get off of her” and again asked him to stop. Tr. p. 102. Vermillion told S.H. to “ask nicely,” and S.H. responded, “please.” Id. Despite S.H.’s request, Vermillion continued kissing her neck. He then began rubbing her vagina through her clothing. S.H. continued to ask Vermillion to stop, telling him that her father would be home soon. Id. Eventually, Vermillion stopped touching S.H. and stood to leave. Vermillion told S.H., “What happens here, stays here.” Id.

S.H. reported the incident to her high-school principal. The State charged Vermillion with two counts of Class C felony sexual misconduct with a minor. One count charged Vermillion with touching S.H.’s breast, while the other charged Vermillion with touching S.H.’s vagina. See Appellant’s App. p. 7.

At trial, S.H. testified about the May 2009 incident:

[I] was just watching TV and then he, he just starts rubbing my leg[,] and I tried to get him to stop. I just say stop and then he is putting his hand up my shirt and up my bra and starts touching my breast and starts kissing on my neck and then he straddles me....

Tr. p. 102. After a pause, she continued:

I ask him to get off and he says, and he says ask nicely. So, I said please. And ... [ ] he doesn’t get off me and he’s still kissing my neck and then I’m wearing what I consider night clothes, a tank top and some shorts and he is trying to rub the outside of my shorts on my vagina area and I’m like[,] my dad should be getting home any minute. Saying that thinking maybe he’d get off me and he didn’t and then after plenty of times of saying please get off me [ ] he tells me to calm down[,] and I tell him I am calm and he tells me to stay still[,] and I didn’t want to kick him or try to push him or anything [be] cause he is a bigger guy than me and I was alone and I was scared. So, eventually he did get off me and before he left, the only thing he could say to me was what happens here, stays here.

Id. at 108. S.H. also testified that on two previous occasions, Vermillion paid her for babysitting and painting with alcohol and cigarettes. Id. at 96. S.H. also described another incident at Vermillion’s home when S.H. asked Vermillion for a cigarette and Vermillion responded, “I’ll give you a whole pack if you show me your tit.” Id. at 125.

Vermillion did not testify at his trial, but his defense counsel argued that the incident S.H. described did not take place because Vermillion was at a church dinner that evening. Counsel also called witnesses, including Vermillion’s wife and mother-in-law, to testify that Vermillion was indeed at the church dinner on the night in question.

The jury found Vermillion guilty on both counts. At sentencing, the trial court identified the following aggravators: (1) Vermillion’s “prior criminal history,” id. at 410, which included past charged offenses dismissed as part of a plea agreement; (2) Vermillion’s position of trust with respect to S.H.; and (8) evidence of Vermillion’s uncharged misconduct involving minors, which included providing them with alcohol and sexually explicit materials. As a mitigating factor, the court noted that Vermillion’s incarceration would be a hardship on his family. The court sentenced Vermillion to eight years — five years executed and three years suspended to probation— on each count, to run consecutively, for a total sentence of sixteen years.

Vermillion now appeals.

Discussion and Decision

Vermillion contends that the trial court erred in admitting prior-misconduct evidence and that his convictions violate Indiana’s Double Jeopardy Clause. He also raises numerous arguments regarding his sentence.

I. Prior-Misconduct Evidence

Vermillion challenges the admission of S.H.’s testimony that he offered to pay her for babysitting and painting with alcohol and cigarettes and tried to bribe her with cigarettes to expose her breasts. Vermillion argues that this prior-misconduct evidence was improperly offered to show that he “groomed” S.H. The State, however, argues that the evidence was not offered for this purpose, but instead, to show Vermillion “intended to have some kind of sex with [S.H.] at some point in time.” Appellee’s Br. p. 12.

At trial, Vermillion did not object to the testimony he now challenges. His claims are therefore waived unless he can show that fundamental error occurred. Kimbrough v. State, 911 N.E.2d 621, 634 (Ind.Ct.App.2009). The fundamental-error rule is extremely narrow. Id. Fundamental error occurs 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.

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

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

The State argues that the evidence at issue was admissible under the intent exception. However, “the intent exception to Rule 404(b) is available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of contrary intent, whether in opening statement, cross-examination, or presentation of his own case-in-chief.” Udarbe v. State, 749 N.E.2d 562, 564 (Ind.Ct.App.2001) (citing Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993)). We have concluded that a trial court errs in admitting prior-misconduct evidence to show intent where the defendant does not advance a claim of contrary intent. Id. (defendant maintained his innocence. throughout the trial and denied that the charged acts ever took place); see also Sundling v. State, 679 N.E.2d 988, 992 (Ind.Ct.App.1997) (trial court erred in admitting evidence of defendant’s prior uncharged molestations of victim where defendant’s defense was that the molestations never occurred).

Here, Vermillion never advanced a defense theory of contrary intent. Instead, Vermillion maintained that the charged acts did not occur, and he even called witnesses to testify that on the night S.H. claimed he fondled her, he was actually at a church dinner. Because Vermilion’s intent was not at issue, the prior-misconduct evidence would not have been admissible on that basis.

Because Vermillion did not object to the prior-misconduct evidence at trial, it is not clear whether the evidence was offered, improperly or not, to show that he groomed S.H. as Vermillion argues on appeal. Even assuming that the evidence was offered for this purpose and its admission was error, Vermillion has not met his burden of showing that he was denied a fair trial. Contrary to his assertion, the admission of this evidence did not require him to defend against both the charged conduct and the prior-misconduct evidence. He was required only to defend against the two counts of sexual misconduct with a minor, and on that issue, the jury heard unequivocal testimony from the victim, S.H. Because Vermillion has failed to show fundamental error, his claim is waived.

II. Double Jeopardy

Vermillion next contends that his convictions violate the Double Jeopardy Clause of the Indiana Constitution. Specifically, he claims that they fail the actual evidence test. Whether convictions violate double jeopardy is a question of law which we review de novo. Grabarczyk v. State, 772 N.E.2d 428, 482 (Ind.Ct.App.2002).

Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32 (Ind.1999), our Supreme Court concluded that two or more offenses are the same offense in violation of Article I, Section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Under the actual evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To find a double-jeopardy violation under this test, we must conclude that there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id.

Vermillion was convicted of two counts of Class C felony sexual misconduct with a minor. In order to prove Vermillion guilty of Count I, the State was required to show that Vermillion touched S.H.’s breast with the intent to arouse or satisfy either his or S.H.’s sexual desires. Ind.Code § 35-42-4 — 9(b)(1). To establish Count II, the State had to show that Vermillion touched S.H.’s vagina with intent to arouse or satisfy either his or S.H.’s sexual desires. Id.

S.H.’s testimony established distinct evidence for each count, punctuated by her repeated requests that Vermillion stop touching her. That is, S.H. testified that Vermillion initiated contact with her by rubbing her leg. She asked him to stop. Instead, he straddled her and began touching her breast underneath her shirt. Again, S.H. asked him to stop. He did not, and instead initiated another form of contact: he began rubbing S.H.’s vagina over her clothing. S.H.’s repeated requests that Vermillion stop touching her illustrate Vermillion’s “separate, albeit continuing” efforts, through a series of different touches, to arouse or satisfy his or S.H.’s sexual desires. Appellee’s Br. p. 17.

We conclude that the State established that Vermillion committed two separate offenses based on distinct facts. Because there is no reasonable possibility that the jury used the same evidentiary facts to establish both the essential elements of Counts I and II, there is no double-jeopardy violation.

III. Sentencing

Vermillion also raises numerous arguments regarding his sentence. He claims that: (1) the trial court erred in ordering that he serve consecutive, rather than concurrent sentences; (2) his total sixteen-year sentence exceeds the statutory cap for consecutive sentences; and (3) his sentence is inappropriate.

A Consecutive or Concurrent Sentences?

We first address Vermillion’s claim that the trial court should have ordered him to serve his sentences concurrently rather than consecutively. Vermillion bases his claim upon this Court’s opinion in Kocielko v. State, 938 N.E.2d 243 (Ind.Ct.App.2010), and its opinion on rehearing, Kocielko v. State, 943 N.E.2d 1282 (Ind.Ct.App.2011), trans. denied. To address Vermillion’s claim, it is necessary to provide context for Kocielko.

Before Richardson supplied the current double-jeopardy standard, our Supreme Court held in a series of cases that “the imposition of two sentences for the same injurious consequences sustained by the same victim during a single confrontation” violated both the federal and state double-jeopardy prohibitions. Bowling v. State, 560 N.E.2d 658, 660 (Ind.1990); see also Watkins v. State, 575 N.E.2d 624, 625 (Ind.1991); Ellis v. State, 528 N.E.2d 60, 61 (Ind.1988); Bevill v. State, 472 N.E.2d 1247, 1254 (Ind.1985). When Richardson was decided in 1999, it abrogated a number of cases that articulated the “single incident” reasoning found in Bowling. However, Richardson made no mention of Bowling.

Richardson ⅛ effect on Bowling was not examined until 2010, in Kocielko. In Ko-cielko, the defendant got into bed with his teenage stepdaughter, placed her hand on his penis, and moved it in circles. He also pulled down her shorts and penetrated her anus with his penis. Kocielko, 938 N.E.2d at 248. Kolcielko was convicted of two counts of sexual misconduct with a minor, one count as a Class B felony, and one count as a Class C felony. He was also adjudicated a habitual offender. On appeal, another panel of this Court, the Ko-cielko Court, reversed the ruling of the trial court, concluding that under Bowling, Kolcielko could not receive separate sentences for the two acts of sexual misconduct “when the acts took place in one confrontation involving one victim.” Id. at 251. The Kocielko Court remanded with instructions that the trial court set aside Kolcielko’s Class C felony conviction. Id.

Kocielko was revisited in early 2011 on rehearing. There, the State argued that Richardson, which provided, among other things, the statutory-elements and actual-evidence tests, had overruled Bowling's, “single incident” analysis. The Kocielko Court disagreed, explaining that Bowling had not been expressly overruled and therefore continued to stand for the proposition that “a sentence must reflect the episodic nature of the crimes committed.” Kocielko, 943 N.E.2d at 1282. However, the Court reinstated Kolcielko’s Class C felony conviction it had earlier vacated and affirmed the trial court’s order that the sentences run concurrently. Our Supreme Court denied transfer in Kocielko in May 2011.

Kocielko is not easily applied here. Consecutive sentencing was never at issue. Double jeopardy was. To the extent that Kocielko may be read to suggest that our trial courts may not impose consecutive sentences for crimes that arise out of a single confrontation involving a single victim, we cannot agree. A trial court may impose consecutive sentences for separate and distinct crimes that arise out of a single confrontation involving the same victim — subject to Richardson’s, double-jeopardy protections, other sentencing mandates, and our abuse-of-discretion review.

We have already concluded that Vermillion’s convictions do not violate double jeopardy. And we believe that the trial court did not abuse its discretion in ordering consecutive sentences based upon the facts of this case, where two separate and distinct crimes were committed against S.H. We now consider whether Vermillion’s sentences comport with other sentencing requirements.

B. Indiana Code section 35-50-1-2

Vermillion argues, and the State agrees, that the trial court erred when it sentenced Vermillion to an aggregate term of sixteen years for his two convictions. Vermillion contends that this sentence exceeds the cap allowed by Indiana Code section 35-50-l-2(c).

When a court orders a defendant to serve consecutive sentences for multiple felony convictions, as the trial court did here, the court must comply with the following statutory directive:

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

Ind.Code § 35-50-l-2(e). The section also defines which crimes constitute a “crime of violence” and defines “episode of criminal conduct” as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(a), (b). It is undisputed that neither of Vermillion’s convictions are crimes of violence. It is also undisputed that Vermillion’s crimes constitute a single episode of criminal conduct. Therefore, Vermillion’s sentence cannot exceed the advisory sentence for a Class B felony, which is ten years. See I.C. § 35-50-2-5. The trial court abused its discretion by imposing a sentence greater than what is allowed by statute.

C. Aggravators and Mitigators and Appropriateness

In light of our resolution of the previous issues, we must now determine what sentence is appropriate. Vermillion argues that the trial court improperly considered past charged offenses that were dismissed as part of a plea agreement, as well as uncharged misconduct, as aggravators. He asks that we revise his sentence to two, five-year sentences, with two and one-half years suspended to probation. The State argues that the trial court did not err in considering these as aggravating factors and asks that Vermillion receive ten years, the maximum sentence allowed by Section 35-50-l-2(c). To that end, Vermillion argues that a maximum sentence would be inappropriate in light of the nature of the offenses and his character.

In general, sentencing lies within the discretion of the trial court. Henderson v. State, 769 N.E.2d 172, 179 (Ind.2002). As such, we review sentencing decisions only for an abuse of discretion, including a trial court’s decision to increase the presumptive sentence because of aggravating circumstances. Id. “When enhancing a sentence, a trial court must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific reasons why each circumstance is aggravating or mitigating; and (3) evaluate and balance the mitigating against the aggravating circumstances to determine if the mitigating offset the aggravating circumstances.” Bailey v. State, 763 N.E.2d 998, 1004 (Ind.2002). We examine both the written sentencing order and the trial court’s comments at the sentencing hearing to determine whether the trial court adequately explained its reasons for the sentence. Matshazi v. State, 804 N.E.2d 1232, 1238 (Ind.Ct.App.2004), trans. denied.

In sentencing Vermillion, the trial court identified two aggravators. The trial court first referred to Vermillion’s “prior criminal history,” including past charged offenses related to child molesting that were dismissed as part of a plea agreement. The second aggravator was uncharged misconduct involving minors. Vermillion argues that the court erred when it considered charges that were dismissed due to a plea agreement, relying on this Court’s holding in Puckett v. State, 956 N.E.2d 1182 (Ind.Ct.App.2011). Vermillion also argues that the court erred in considering uncharged misconduct. In making this argument, he asks that we depart from our Supreme Court’s holding in Russelburg v. State, 529 N.E.2d 1193, 1197 (Ind.1988), which permits consideration of such evidence.

As to Vermillion’s first argument, the State contends that his reliance on Puckett is misplaced. In Puckett, the defendant pled guilty to one count of Class C felony child molesting. After he later admitted to violating his probation, the trial court imposed the entirety of his previously suspended sentence. In doing so, the trial court expressed displeasure with Puckett’s plea agreement, which it described as generous, and found that Puckett had committed a more serious offense than the one to which he pled guilty. The court also referenced probation-violation allegations that had been dismissed. On appeal, Puckett challenged the imposition of the entire previously suspended sentence, arguing that the trial court had erred in many ways, including by considering charges dismissed as part of a plea agreement. Another panel of this Court reversed the trial court, noting in part that “a defendant who enters into a plea agreement is entitled to the benefits of that bargain.... ” Puckett, 956 N.E.2d at 1187. This Court also held that the trial court erred by “relyfing] upon dismissed probation violation allegations when deciding what sentence to impose ....” Id.

Puckett is distinguishable from this case in more than one way. As the State points out, Puckett is a probation-revocation case. Puckett also involves sentencing that stems directly from the plea agreement at issue. That is not the case here. In this case, the trial court considered charges dismissed in a past plea agreement, separate and distinct from the underlying offense and resulting sentencing. Thus, Puckett does not govern our analysis. Moreover, the trial court’s words in sentencing show that the court was considering these past charged offenses in the context of Vermillion’s criminal history, or arrest record. See Tr. p. 410 (“One, the prior criminal history of the defendant.”).

Our Supreme Court has held that “A record of arrest, without more, does not establish the historical fact that a defendant committed a criminal offense and may not be properly considered as evidence of criminal history.” Cotto v. State, 829 N.E.2d 520, 526 (Ind.2005). However, an arrest record, especially a lengthy one, may indicate that a defendant has not been deterred from criminal activity even after extensive contact with the criminal justice system. Id. “Such information may be relevant to the trial court’s assessment of the defendant’s character in terms of the risk that he will commit another crime.” Id. Our review of the trial court’s sentencing statement reveals that the trial court considered Vermillion’s arrest record as evidence of his criminal history. While this was error, we conclude that it was harmless as this evidence may be considered as it relates to Vermillion’s character. Further, we believe the court would have imposed the same sentence in light of the remaining aggravators and mitigators — Vermillion’s abuse of a position of trust, previous uncharged misconduct, and the impact of his incarceration on his family. See Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007) (trial court’s abuse of discretion in considering Roney’s substance abuse as an aggravating factor was harmless error because his sentence remained the same based on the weighing of other aggravators and miti-gators), trans. denied.

As to Vermillion’s argument that the trial court erred in considering prior uncharged misconduct, we reject his request to revisit our Supreme Court’s holding in Russelburg and our own subsequent holdings allowing a trial court to consider such evidence when determining a defendant’s sentence. Id.; see also Singer v. State, 674 N.E.2d 11, 14-15 (Ind.Ct.App.1996). Here, a number of witnesses testified that Vermillion had provided alcohol and sexually explicit materials to minors. The trial court did not err in considering this uncharged misconduct as an aggravating factor.

Finally, we consider Vermillion’s argument that a maximum sentence is inappropriate in light of the nature of the offense and his character. Our rules authorize revision of a sentence “if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case. id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed by the trial court in sentencing the defendant, including whether a portion of the sentence is suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010).

A person who commits a Class C felony shall be imprisoned for a fixed term between two and eight years, with the advisory sentence being four years. Ind.Code § 35-50-2-6. Because Vermillion’s sentences will be served consecutively, the maximum sentence permitted by statute is ten years. See Ind.Code § 35-50-2-5.

As to the nature of the offense, fourteen-year-old S.H. testified that before this incident, she had considered Vermillion as a friend with whom she could talk and laugh. Vermillion abused this position of trust when he went to S.H.’s house when she was alone, began rubbing her leg, and then straddled her, kissed her, and fondled her breasts. S.H. asked Vermillion to stop touching her. He ignored her and then began touching her vagina through her clothing, despite her repeated pleas that he stop. When he was done touching S.H., Vermillion told S.H. not to tell anyone about what happened.

In considering Vermillion’s character, we note that he has a history of engaging in inappropriate conduct with minors. This history includes a prior misdemeanor conviction for dissemination of material harmful to minors. He also has a pending charge for child molesting in another county. His criminal history indicates he has not been deterred from criminal activity, particularly as it relates to minors.

We conclude that the maximum total sentence permitted by statute, ten years, is appropriate in this case. This is in line with Vermillion’s own request that he receive two, five-year sentences, although we reject his request to order these sentences to run concurrently. We remand this cause to the trial court with instructions for the court to enter an order that Vermillion serve five years — four years executed and one year suspended to probation — on each count, to run consecutively, for a total executed sentence of eight years.

Affirmed in part, reversed in part, and remanded.

MATHIAS, J., and BARNES, J., concur.

      . " ‘Grooming’ is 'the process of cultivating trust with a victim and gradually introducing sexual behaviors until reaching the point’ where it is possible to perpetrate a sex crime against the victim.” Piercefield v. State, 877 N.E.2d 1213, 1216 (Ind.Ct.App.2007) (quoting United States v. Johnson, 132 F.3d 1279, 1283 n. 2 (9th Cir.1997)).

      . Although the State also notes that the evidence could be used to show Vermillion’s motive, the argument emphasizes the intent exception, so we address that claim.

      . Vermillion's argument that his touching of S.H.'s neck or leg could have been used to satisfy the intent element of Counts I or II is not persuasive. The State was not required to prove that Vermillion did either of these things to arouse sexual his or S.H.’s desires. Moreover, under Richardson's, actual evidence test, there is no double-jeopardy violation when the evidentiary facts establishing the essential elements of one offense also establish only one or even several of the essential elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002).

      . Notably, however, at least one panel of this Court concluded before Kocielko that our Supreme Court had rejected Bowling’s "single incident” reasoning. See Ward v. State, 736 N.E.2d 265, 269 n. 4 (Ind.Ct.App.2000), reh'g denied.

      . We note that a single aggravating circumstance may support the imposition of consecutive sentences. Diaz v. State, 839 N.E.2d 1277, 1279 (Ind.Ct.App.2005) (citing Smyliev. State, 823 N.E.2d 679, 686 (Ind.2005)). Here, the trial court properly found two ag-gravators.

      . Vermillion also asks that we order these sentences to run concurrently, but we have already rejected this argument.

      . Our treatment of the sentencing issues discussed above resolves Vermillion’s claim that the trial court's sentencing order is ambiguous.