author: Brown, Judge. Crone, Judge, concurring in part and dissenting in part.

text:
    FRANKE PLATING WORKS, INC., Appellant-Plaintiff, v. The CINCINNATI INSURANCE COMPANY, Appellee-Defendant.
    Court of Appeals Case No. 49A02-1710-PL-2462
    Court of Appeals of Indiana.
    Filed October 18, 2018
    Attorneys for Appellants: George M. Plews, Sean M. Hirschten, Plews Shadley Racher & Braun LLP, Indianapolis, Indiana
    Attorney for Appellee: Katherine L. Shelby, Cantrell Strenski & Mehringer, LLP, Indianapolis, Indiana
   Brown, Judge.

[1] Franke Plating Works, Inc. ("Franke Plating") appeals the trial court's September 26, 2016 entry of summary judgment and the denial of its motion to correct error. Franke Plating raises several issues which we consolidate and restate as whether after fully investigating, defending, settling, and completing a number of payments relating to four environmental liabilities, it is entitled to indemnity where the first notice given to the insurer occurred no earlier than nine years after it knew of the claims against it. We affirm.

Facts and Procedural History

A. Background

[2] This is an insurance coverage dispute between Franke Plating and the Cincinnati Insurance Company ("Cincinnati") concerning Insurance Policy No. 49 83 32, effective November 1, 1987 (the "1987 Policy"). Indiana corporation Franke Plating has metal finishing, plating, and coating operations that cover parts in zinc and other constituents and which had generated various hazardous and nonhazardous wastes that were shipped to several waste-handling facilities for disposal. In connection to its operations, Franke Plating was named as a potentially responsible party ("PRP") in actions involving environmental cleanups at three landfill sites and a citizen suit filed by Atlantic States Legal Foundation, Inc. ("ASLF") (the four claims collectively, the "Underlying Claims").

1. Four County

[3] The Four County State Cleanup site ("Four County") operated from 1972, when it began accepting municipal wastes, until 1989, when its owners filed for Chapter 11 bankruptcy. In later years, it was licensed to accept other wastes, including industrial and later Resource Conservation and Recovery Act hazardous wastes. Until the late 1980s, the wastes were placed in unlined pits and covered with soil. Investigations found the groundwater under the site to be contaminated with Volatile Organic Compounds, Semi-Volatile Organic Compounds, and metals.

[4] On October 29, 1991, the PRP Ad Hoc Steering Committee sent the PRPs a letter which discussed a final participation agreement and checks which were to be made payable to the Four County Landfill Administrative Fund. On November 5, 1991, Franke Plating entered into the Four County Landfill Group Agreement. On February 20, 1992, the Indiana Department of Environmental Management ("IDEM") sent Franke Plating a Special Notice of Potential Liability.

[5] Ultimately, Franke Plating was alleged to have shipped 1,158,000 converted pounds of waste or 0.1558% of the total waste contribution at Four County. Its allocation was subsequently adjusted to 1,738,800 converted pounds, or 0.2042% of the total waste. On April 6, 1993, Franke Plating signed an Agreed Order, pursuant to which it paid a "percentage of waste that [it] contributed to the site." Appellant's Appendix Volume III at 22. It completed payments and, in total, incurred costs of $32,420.09.

2. Fort Wayne Reduction

[6] The Fort Wayne Reduction Superfund site ("Fort Wayne Reduction"), located in Allen County just east of Fort Wayne, was a chemical recycling factory and operated from 1967 to 1975 as a waste disposal facility. On February 22, 1989, a Consent Decree for Remedial Design/Remedial Action was lodged, the Remedial Design was completed in December 1989, and the construction of the Remedial Action began in July 1991 and was completed in October 1994. Over 27,000 drums were removed from the site and final work was completed in 1996.

[7] Franke Plating was sued as a fourth-party defendant for contribution of response costs associated with remediating Fort Wayne Reduction. Ultimately, Franke Plating was alleged to have contributed 0.1738% of the total material at Fort Wayne Reduction and the demand on it was $14,217.40, plus oversight costs of $1,909.34, for a total demand of $16,126.74. Franke Plating settled the claims against it, paid its share to clean up the site, and incurred total costs of $8,000.

3. Wayne Reclamation

[8] The Wayne Reclamation site covers approximately thirty acres in the southeast part of Columbia City, Indiana. Wayne Waste Oil deposited about one million gallons of oil-related wastes at the Wayne Reclamation site from 1975 to 1980. A de minimis consent decree involving over 800 parties and $5 million was entered in court in August 1997.

[9] Franke Plating's involvement with the Wayne Reclamation site began as early as August 17, 1985, when the United States Environmental Protection Agency ("EPA") sent Franke Plating a letter. On August 26, 1985, the father of Warren Franke ("Warren"), William J. Franke, sent a letter on Franke Plating stationery to the EPA which stated, "We are in receipt of your certified letter dated August 17, 1985, in which we are informed that we may be a responsible party generator with respect to this site and its subsequent clean-up activities." Id. at 5. On November 6, 1985, the EPA sent a letter to the Site Management Section which stated:

U.S. EPA believes that you may be a party responsible for this release or threat of release. Before the government undertakes the necessary action at the site, we offer you the opportunity to perform voluntarily the required work to abate any releases of hazardous substances, pollutants, or contaminants from the site. If private party cleanup is not forthcoming and public funds are expended, you may be liable for the costs incurred....
U.S. EPA intends to perform the following work:
1. Excavate and dispose of approximately 400 drums. Approximately ninety-one of the drums are located above the surface.
2. Remove and dispose of contaminated soil around the drums.
3. Conduct a geophysical survey in order to locate any possible additional buried drums on the site.
4. Install three cluster monitoring wells between the city well field and the sludge ravine.
5. Initiate a sampling program for existing wells.

Appellant's Appendix Volume V at 241-242. On June 16, 1986, Franke Plating signed its agreement to an Administrative Order by Consent proceeding under Section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), which states in part that the respondents agreed to "undertake all actions required by the terms and conditions of this Consent Order" and that they "shall undertake and assure, at their expense, the implementation of the Work Plan incorporated herein." Id. at 188, 195.

[10] On May 26, 1995, the Wayne Reclamation Site Cleanup Settlor sent a demand letter stating that Franke Plating had "received notices over the years concerning its status as a [PRP]" under CERCLA, that "to date, [Franke Plating] has failed to join in the Consent Decree and pay a share of costs of one or more of the three earlier cleanups," that it represented Franke Plating's "final opportunity to settle its share of responsibility for the cleanup of the Site without litigation," and that the "Cleanup Settlors hereby demand the amount(s) set forth ... if settlement is reached not later than June 27, 1995." Appellant's Appendix Volume III at 214-215. On November 13, 1996, Franke Plating's attorney, Mark A. Thoma, sent a letter concerning the Wayne Reclamation site which enclosed "the original of a signature page for the proposed de minimis [c]onsent [d]ecree signed by Warren T. Franke" as the representative of Franke Plating. Id. at 220. Franke Plating signed a consent decree relating to Wayne Reclamation and made the refund payments. In total, its response costs at Wayne Reclamation amounted to $49,676.83.

4. ASLF Citizen Suit

[11] ASLF filed a citizen suit on April 9, 1991, in the United States District Court for the Northern District of Indiana, styled American States Legal Foundations, Inc. v. Franke Plating Works, Inc. , Cause No. F 91-00083 ("Cause No. 83"), alleging that Franke Plating violated its Industrial Discharge Permit No. FT 00350, issued pursuant to the authority of sections 301(a), and 307(d) of the Federal Water Pollution Control Act, 33 U.S.C. 1311(a), 1317(d) (the "Clean Water Act"), to "discharge to the [public-owned treatment works]." Appellee's Appendix Volume II at 38.

[12] ASLF citizen suits, like that filed in Cause No. 83, were common and recurring throughout the 1980s and 1990s. ASLF is a not-for-profit organization that, according to its complaint in Cause No. 83, is "dedicated to protecting and restoring the natural resources, particularly the water resources, of the United States and its territories." Appellant's Appendix Volume VII at 216. During the 1990s, ASLF obtained public records of permitted facilities and initiated citizen suits against companies that experienced exceedances of the discharge limits of their National Pollution Discharge Elimination Systems ("NPDES") or Industrial Discharge permits. The Clean Water Act allowed ASLF to recover attorney fees, daily penalties, and other costs in such cases.

[13] On June 30, 1992, Franke Plating and ASLF entered a Revised Consent Decree in Cause No. 83, wherein Franke Plating agreed to pay a $20,000 penalty to the United States Treasury Department and a $50,000 payment to the Nature Conservancy in Indiana "to put to use in its Fish Creek Watershed preservation project," as well as to reimburse ASLF "in the amount of $5,000 for its efforts in monitoring [Franke Plating's] compliance with both the Clean Water Act and the terms of this settlement" and "its fees and costs ... up to a maximum of $20,000." Appellant's Appendix Volume III at 234-235. Franke Plating made the payment pursuant to the Revised Consent Decree from August 17, 1992, through April 23, 1993, and, in total, incurred costs in the ASLF suit of $90,002.24.

B. The 1987 Policy

[14] Franke Plating seeks coverage under only the 1987 Policy, a comprehensive general liability policy, which provides in relevant part:

4. Insured's Duties in the Event of Occurrence, Claim or Suit
(a) In the event of an occurrence,[ ] written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
(c) The insured shall cooperate with the company and, upon the company's request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidences and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident.

Appellant's Appendix Volume II at 114.

C. Procedural History

[15] On March 1, 2007, Franke Plating filed a complaint against Cincinnati and other insurers for declaratory relief and damages. At the time when the complaint was filed, there was no ongoing defense being undertaken for any of the Underlying Claims. On October 31, 2015, Franke Plating sought summary judgment and designated materials in support of its motion including the revised affidavits of Warren and Frank Deveau.

[16] Warren's revised affidavit contained attached copies of Damage Summary and Pre-Judgment Interest spreadsheets pertaining to the Underlying Claims. Combining the incurred response costs with the corresponding pre-judgment interest, as calculated and presented in the designated spreadsheets, produced the following:

Pre-Judgment Underlying Claim Cost Interest (as of Total Oct. 1, 2015) Four County $ 32,420.09 $ 20,159.56 $ 52,579.65 Fort Wayne Reduction $ 8,000.00 $ 13,020.05 $ 21,020.05 Wayne Reclamation $ 49,676.83 $ 73,271.28 $ 122,948.11 ASLF $ 90,002.24 $ 164,870.97 $ 254,873.21 Totals $ 180,099.16 $ 271,321.86 $ 451,421.02

See Appellant's Appendix Volume IV at 33-37.

[17] Deveau's revised affidavit provides that he was a partner at Taft Stettinius & Hollister LLP, in Indianapolis, Indiana; that liability under CERCLA is retroactive, joint and several, strict, and onerous; that defenses to liability are few; and that the EPA "has long adhered to an 'enforcement first' strategy," has authority to issue unilateral orders to compel cleanups, and "frequently is able to compel PRPs to settle cleanup and cost reimbursement claims." Id. at 49-50. The affidavit also provides that there is no minimum threshold amount to impose liability under CERCLA, and that the Clean Water Act governing the ASLF citizen suit "likewise is a strict liability regime" that "imposes strict liability and statutory penalties for NPDES exceedances." Id. at 51. It also states, in part, that Deveau became familiar with both the Underlying Claims involving Franke Plating and the litigation between it and Cincinnati, that the "response, contribution and indemnification costs Franke Plating incurred resolving its liability ... were reasonable, appropriate, and necessary," and that it was "highly unlikely that the costs Franke Plating incurred ... could have been further reduced or minimized." Id. at 59.

[18] On December 2, 2015, Cincinnati filed its own motion for summary judgment and a brief in opposition to Franke Plating's motion and in support of its motion.

Cincinnati designated evidence, including Franke Plating's response to Cincinnati's Interrogatory No. 5.f, affidavits of Brian Keipert and Debra Davis, and excerpts from Deveau's deposition.

[19] Deveau's deposition includes testimony that he did not ask Attorney Thoma for a copy of his file in the ASLF litigation or discuss with him any defenses that were put forth by Franke Plating; that he did not have a copy of the ASLF complaint that was filed before his first affidavit was signed; and that he did not believe that a copy of the fourth-party amended complaint in Fort Wayne Reduction was provided to him but he remembered being "part of the group that prepared and filed it." Appellee's Appendix Volume IV at 34. In response to the question of whether he asked Attorney Thoma for a copy of his files for any of the sites in which he represented Franke Plating in the Underlying Claims, Deveau testified, "Yeah. We talked about his files.... I'm pretty sure he said they couldn't find anything. Certainly, as to Atlantic States, he said they couldn't find anything." Id. at 32. When asked, with regard to Fort Wayne Reduction, where he obtained information for the statement in his original affidavit that Franke Plating's total response costs were $14,250.00, he stated it "was a number provided to me by counsel" and that he did not look at any documentation in preparing the affidavit that supported that number, and that he made the assumption that "the numbers provided by counsel for this payment ... was the payment" made for Fort Wayne Reduction Site. Id. at 36. Deveau also agreed that he had not reviewed the shipping records for Franke Plating and stated, "I think as to Wayne Reclamation, there were some payment documents, or some record of payments for shipments sent there that I saw." Id. at 38.

[20] On April 18, 2016, the trial court held a hearing on the summary judgment motions and, on September 26, 2016, granted Cincinnati's summary judgment motion and denied Franke Plating's motion. The court's September 26, 2016 order excerpted the "Insured's Duties in the Event of Occurrence, Claim or Suit" section of the 1987 Policy and found that paragraph 4(a) set "forth the insured's responsibility for an occurrence"; paragraph 4(b) set forth "the insured's responsibilities for a claim or lawsuit"; and paragraph 4(c) set forth "the insured's cooperation clause." Appellant's Appendix Volume II at 37. It additionally stated in relevant part:

It is undisputed that [Cincinnati] first learned of the four [Underlying Claims] against Franke Plating when the lawsuit was filed. (Aff. Of Brian Keipert, ... p.1, ¶ 3.)
It is undisputed that Franke Plating failed to provide notice of a loss to [Cincinnati] until it filed this declaratory judgment action. There is also no dispute that Franke Plating paid all sums resulting from the [Underlying Claims] before [Cincinnati] was notified of the claims.
DECISION
The Parties to this case make arguments based on the Policy's notice requirement and the cooperation clause. [Cincinnati] urges that recent decisions compel this Court to find the presumption of harm becomes irrebutable when untimely notice is given, such as notice after a settlement. Or, in Judge Posner's words, "when notice is that late the insurer is off the hook." Nat'l Union Fire Ins. Co. of Pittsburgh v. Mead Johnson & Co. LLC , 735 F.3d 539, 544 (7th Cir. 2013) (Court found Indiana adhered to rebuttable presumption of harm even if notice of loss occurred after verdict[).]
In[ ] Dreaded, Inc. v. St. Paul Guardian Ins. Co. , 904 N.E.2d 1267 (Ind. 2009), our Supreme Court held an insured who failed to comply with a notice requirement could not prevail in a cause of action claiming its insurer breached a duty to defend because an insurer "cannot defend a claim of which it has no knowledge." Dreaded at 1273. Under this holding, the insurer bears no responsibility for pre-notice costs.
In Travelers Ins. Companies v. Maplehurst Farms, Inc. [,] 953 N.E.2d 1153 (Ind. Ct. App. 2011) [,] trans. denied [ (" Maplehurst Farms I ") ], and the case on remand, Travelers Cas. And Sur. Co. v. Maplehurst Farms, Inc. [,] 18 N.E.3d 311 (Ind. Ct. App. 2014) [,] trans. denied [ (" Maplehurst Farms II ") ], the Indiana Court of Appeals held an insurer was not responsible for any costs incurred by the insured prior to receiving notice of the loss. Travelers Cas. And Sur. Co. v. Maplehurst Farms, Inc. [,] 18 N.E.3d [at 313].
[Cincinnati] argues recent decisions treat an insured's notice requirement clause as a condition precedent to the insurer's duty to defend, [ Dreaded , 904 N.E.2d 1267, 1271 fn.1 ]. The Maplehurst Court abandoned a prejudice requirement when a genuine issue of fact that late notice did not prejudice an insurer was of no consequence. [ Maplehurst Farms I ,] 953 N.E.2d [at 1163]. Under this analysis, an insurer is absolved of responsibility for expenses incurred by an insured before the insurer receives policy notice regardless of prejudice.
The Court, following recent precedent, finds that Franke Plating's failure to forward notice of the four claims and Franke Plating's payment and settlement of the claims prior to [Cincinnati's] receipt of notice of a claim, excuse [Cincinnati] from any obligation to pay Franke Plating for settlement costs or interest thereon.

Id. at 37-39. Franke Plating filed a motion to correct error which, after a hearing, the court denied.

Discussion

[21] The issue is whether the trial court erred in entering summary judgment in favor of Cincinnati and against Franke Plating. The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Sheehan Const. Co., Inc. v. Continental Cas. Co. , 938 N.E.2d 685, 689 (Ind. 2010) (citing Bushong v. Williamson , 790 N.E.2d 467, 474 (Ind. 2003) ), reh'g denied . Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Id. (citing Stephenson v. Ledbetter , 596 N.E.2d 1369, 1371 (Ind. 1992) ). If the opposing party fails to meet its responsive burden, the court shall render summary judgment. Id. (citing Bushong , 790 N.E.2d at 474 ). We construe all factual inferences in the nonmoving party's favor and resolve all doubts as to the existence of a material issue against the moving party. Reed v. Reid , 980 N.E.2d 277, 285 (Ind. 2012). "The fact that the parties have filed cross-motions for summary judgment does not alter our standard for review."

Asklar v. Gilb , 9 N.E.3d 165, 167 (Ind. 2014) (citing Reed , 980 N.E.2d at 289 ). Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

[22] An insurance policy is a contract, and as such is subject to the same rules of construction as other contracts. Dunn v. Meridian Mut. Ins. Co. , 836 N.E.2d 249, 251 (Ind. 2005) (citations omitted). Interpretation of a contract is a pure question of law and thus, is reviewed de novo . Harrison v. Thomas , 761 N.E.2d 816, 818 (Ind. 2002). When construing the language of an insurance policy, a court "should construe the language of an insurance policy so as not to render any words, phrases or terms ineffective or meaningless." State Farm Mut. Auto. Ins. Co. v. Jakubowicz , 56 N.E.3d 617, 619 (Ind. 2016) (citing Wert v. Meridian Sec. Ins. Co. , 997 N.E.2d 1167, 1170 (Ind. Ct. App. 2013) (citation omitted) ).

[23] Clear and unambiguous terms are given their clear and ordinary meaning, Jernas v. Gumz , 53 N.E.3d 434, 444 (Ind. Ct. App. 2016), trans. denied , in order "to accomplish the primary goal of contract interpretation: 'to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties.' " Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co. , 983 N.E.2d 574, 577-578 (Ind. 2013) (quoting First Fed. Sav. Bank of Ind. v. Key Markets, Inc. , 559 N.E.2d 600, 603 (Ind. 1990) ). Insurance policies with directly conflicting terms are ambiguous. Jakubowicz , 56 N.E.3d at 619 (citing Wert , 997 N.E.2d at 1171 ). Under Indiana law, an insurance policy is ambiguous if reasonable persons may honestly differ as to the meaning of the policy language. Eli Lilly & Co. v. Home Ins. Co. , 482 N.E.2d 467, 470 (Ind. 1985) (citing Benefit Tr. Life Ins. Co. v. Waggoner , 473 N.E.2d 646 (Ind. Ct. App. 1985) ; Huntington Mut. Ins. Co. v. Walker , 181 Ind.App. 618, 392 N.E.2d 1182 (1979) ). Where there is ambiguity, insurance policies are construed strictly against the insurer, and the policy language is viewed from the standpoint of the insured. Jakubowicz , 56 N.E.3d at 619 (citing Allstate Ins. Co. v. Dana Corp. , 759 N.E.2d 1049, 1056 (Ind. 2001) ).

[24] In a case involving a claim for indemnification under a standard commercial general liability policy, the Indiana Supreme Court has provided:

Requiring prompt notice allows insurers the opportunity to investigate the circumstances surrounding claimed losses in a timely and adequate manner. P.R. Mallory & Co. v. Am. Cas. Co. of Reading, Pa. , 920 N.E.2d 736, 746 (Ind. Ct. App.2010), trans. denied . In Miller v. Dilts , this Court determined that "[p]rejudice to the insurance company's ability to prepare an adequate defense can therefore be presumed by an unreasonable delay in notifying the company about the accident or about the filing of the lawsuit." 463 N.E.2d 257, 265 (Ind. 1984) (emphasis added). Once prejudice is presumed, the burden is on the insured to "establish some evidence that prejudice did not occur in the particular situation." Id. ; see also Askren Hub States Pest Control Svcs., Inc. v. Zurich Ins. Co. , 721 N.E.2d 270, 279 (Ind. Ct. App. 1999) ("The presumption of prejudice essentially means that if the delay in giving the required notice is unreasonable, the injured party or the insured has the burden to produce evidence that prejudice did not actually occur in the particular situation."). The duty to notify is a condition precedent to the insurance company's liability to its insured. Miller , 463 N.E.2d at 263. "Where prejudice is created by the insured's noncompliance with the policy's provisions, the insurance company is relieved of its liability under the policy." Id. at 261.

Sheehan Const. Co., Inc. , 938 N.E.2d at 689.

[25] Franke Plating characterizes the instant case as one of forfeiture, or where an insurer "seeks to work a forfeiture due to late notice," Appellant's Brief at 32, and argues that "barring coverage absent a showing of prejudice" is an extreme remedy. Id. at 18. It also argues that Dreaded and Maplehurst Farms I do not control, because the 1987 Policy lacks a consent requirement, and that the trial court should have instead relied on Governmental Interinsurance Exch. v. City of Angola , 8 F.Supp.2d 1120, 1134-1135 (N.D. Ind. 1998), which it asserts involved the same policy language used in the 1987 Policy and which held that the voluntary payments provision involved therein did not operate to bar coverage. It contends that without a consent requirement "the only issue under the voluntary payments clause is whether the liability costs paid are 'voluntary payments' " and it is "reasonable to construe the clause as City of Angola did, barring only truly 'voluntary' payments." Appellant's Brief at 27, 30. It contends that Dreaded dealt with defense costs and not indemnity costs, and asserts that "[b]ecause the duty to defend is broader than the duty to indemnify, and requires the involvement of the insurer, ... it makes sense that late notice of a defense claim would be more problematic than late notice of an indemnity claim." Id. at 33.

[26] In response, Cincinnati argues that Dreaded and Maplehurst Farms I found "pre-notice defense and indemnity costs were not covered due to failure to comply with the notice requirements of the policies." Appellee's Brief at 22. It argues that Franke Plating's settlements and indemnity payments were voluntarily made and contends that, even with the additional language of "without our consent" in the voluntary payments clause in Maplehurst Farms I , the "costs must still be voluntarily made before the 'without our consent' language would apply." Id. at 31. Cincinnati points to several actions of Franke Plating, including its joining of the Land County Landfill PRP Group in 1991, signing of the "1986 Consent Order" concerning the Wayne Reclamation site, and settling of the Fort Wayne Reduction lawsuit "brought against it by other PRPs, not the EPA," and asserts that Franke Plating's conduct in the Underlying Claims contradicts the argument that its actions were not voluntary. Id. at 32-33.

[27] We first find that the plain language of Sections 4(a) and 4(b) of the 1987 Policy is clear regarding the provision of notice to Cincinnati by Franke Plating, and unambiguously requires that, in the event of an occurrence, written notice containing particulars shall be given by or for Franke Plating to Cincinnati "as soon as practicable" and that, if a claim is made or suit is brought against Franke Plating, it "shall immediately forward to [Cincinnati] every demand, notice, summons or other process received." Appellant's Appendix Volume II at 114 (emphasis added). Per the record, it is undisputed that the first notice of any loss that Franke Plating gave to Cincinnati was when it filed the March 1, 2007 complaint. With respect to the Wayne Reclamation site the first notice was given to Cincinnati either, at the very least, nine years or, at the very most, twenty-two years after it had knowledge of any loss. We also note that Franke Plating did not give notice until more than eleven years had passed after making the June 20, 1995 payment with respect to Fort Wayne Reduction; thirteen years had passed after signing the April 6, 1993 Agreed Order with respect to Four County;

and fourteen years had passed after starting to pay pursuant to the June 20, 1992 Revised Consent Decree with respect to the ASLF citizen suit. Accordingly, we cannot say that Franke Plating satisfied the 1987 Policy's section 4(a) and 4(b) notice provisions.

[28] We further find that Franke Plating's delay in giving Cincinnati notice was unreasonable and that prejudice is, therefore, presumed here. See Sheehan Const. Co., Inc. , 938 N.E.2d at 689. At oral argument, counsel for Franke Plating admitted that Franke Plating breached the 1987 Policy and indicated that "nothing prevented it from giving notice except a lack of understanding of [its] legal rights." Oral Argument at 7:53-7:58.

[29] Franke Plating's arguments concerning remedies - and characterizing the instant case as one involving forfeiture - essentially assert, at their core, that the notice provisions, as conditions precedent, should be excused because enforcement would otherwise cause it to suffer a disproportionate forfeiture. In its brief and at oral argument, Franke Plating referred to Restatement (Second) of Contracts § 229 (1981) in support of this position. Section 229 provides:

To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.

Section 229 of the Restatement requires performance by the party seeking to avoid the forfeiture. Hoosier Energy Rural Elec. Co-op., Inc. v. Amoco Tax Leasing IV Corp. , 34 F.3d 1310, 1320 (7th Cir. 1994). Comment b of Section 229 provides: "[F]orfeiture is used to refer to the denial of compensation that results when the obligee loses his right to the agreed exchange after he has relied substantially, as by preparation or performance on the expectation of that exchange...." In this case, Franke Plating did not prepare to perform or perform in any way: after having learned of the Underlying Claims, it waited until after it had fully investigated, defended, settled, and paid on each of the claims before eventually notifying Cincinnati of its losses. Accordingly, Franke Plating's argument about remedies does not overcome the plain language of the 1987 Policy.

[30] For these reasons, we conclude that Franke Plating has not met its burden of establishing evidence that prejudice did not occur in the particular situation and the trial court did not err in entering summary judgment in favor of Cincinnati.

Conclusion

[31] For the foregoing reasons, we affirm the trial court's entry of summary judgment.

Bailey, J., concurs.

Crone, J., concurs in part and dissents in part.

Crone, Judge, concurring in part and dissenting in part.

[32] Citing Sheehan , 938 N.E.2d at 689, the majority finds that "Franke Plating's delay in giving Cincinnati notice was unreasonable and that prejudice is, therefore, presumed here[,]" and holds that Franke Plating failed to designate sufficient evidence to rebut that presumption. Slip op. at 22, 23. I believe that Deveau's affidavit is sufficient to establish genuine issues of material fact regarding whether Cincinnati was prejudiced by Franke Plating's delay. Denying Franke Plating the coverage that it paid for in the absence of any prejudice to Cincinnati would result in a disproportionate forfeiture, and "forfeitures are generally disfavored by the law."

Gates v. Houston , 897 N.E.2d 532, 536 (Ind. Ct. App. 2008).

[33] For its part, Cincinnati relies on Maplehurst Farms I , in which a divided panel of this Court stated that "where an insured enters into a settlement agreement without the insurer's consent in violation of a voluntary payment provision , that obligation cannot be recovered from the insurer, and prejudice is irrelevant." 953 N.E.2d at 1161 (emphasis added). This begs the question, unanswered by my colleagues, of whether Franke Plating entered into its settlement agreements in violation of the 1987 Policy's voluntary payment provision. Franke Plating argues that it did not, and I believe that it designated enough evidence to establish genuine questions of fact on this issue.

[34] There is a fundamental difference between not being able to recover defense costs and forfeiting the indemnification rights pursuant to the policy. Upon remand, Cincinnati would still be permitted to argue prejudice sufficient to warrant forfeiture of their indemnification obligation, but I do not think that summary judgment on that issue is appropriate on this record. In sum, I would reverse the trial court's entry of summary judgment for Cincinnati, affirm its denial of summary judgment for Franke Plating, and remand for further proceedings.

      Franke Plating's Notice of Appeal states that, in addition to appealing the trial court's entry of summary judgment, it appeals the trial court's September 28, 2017 order on its Motion to Compel Discovery, but its Brief and Reply Brief make no arguments to that effect.

      We heard oral argument in this case on August 15, 2018, in Indianapolis. We commend counsel for the quality of their oral advocacy and written presentations in this matter.

      In portions of his deposition, Warren Franke ("Warren"), Franke Plating's President, indicated he understood PRP to mean "[t]hat [Franke Plating has] a pretty good chance of having our material on that property, so, therefore, we are partially responsible for the waste at this location." Appellee's Appendix Volume II at 29.

      The record contains a copy of the "FOUR COUNTY LANDFILL SITE PRP STEERING COMMITTEE AGREEMENT," which is stamped "DRAFT" and provides in part: "All Members of the PRP Steering Committee shall make an initial contribution of $1,000.00 for those members ranked number 1 through number 58 inclusive on the attached Four County Landfill PRI Volumetric List." Appellee's Appendix Volume II at 136, 144. Warren's deposition indicates that Franke Plating was "No. 48 on the list." Id. at 55.

      The designated Volumetric Rating defines "converted pounds" as the "waste equivalent in pounds for all volume types given in the annual waste volume reports." Appellant's Appendix Volume II at 213.

      In its April 4, 2016 Supplemental Submission and Designation of Evidence in Support of its Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment, Cincinnati included excerpts from the Deposition of Frank Deveau regarding response, removal, and remedial costs, which indicate that "[r]esponse costs are costs to investigate or remediate contamination" that may be in the soil and groundwater; that response costs can include oversight costs for the agency as well. Appellee's Appendix Volume IV at 84. Deveau also states in his affidavit that he would include costs of removal in the "overall term of 'response costs' "; that removal and remedial costs "ALL fall under the umbrella of response costs"; that removal costs are "something that may be done to remove sort of, on an expedited basis, drums or whatever is located at a site"; and that remedial costs differ from removal costs in that "generally, remedial are costs that are incurred after a remedy has been selected, and those costs involve implementing the remedial [action]." Id. at 84-85.

      On December 16, 1994, Franke Plating paid $1,000 to the Fourth-Party Defense Fund, and on June 20, 1995, paid $7,000 in settlement. It was dismissed from the lawsuit in October 1995.

      In the federal arena, the EPA is statutorily authorized to enforce remediation of environmental pollution. CERCLA provides several ways for the EPA to accomplish its objectives, 42 U.S.C. § 9601 et seq , and empowers the EPA to respond to contamination and then shift liability for "response costs" to those parties responsible. Hartford Acc. & Indem. Co. v. Dana Corp. , 690 N.E.2d 285 (Ind. Ct. App. 1997) (citing 42 U.S.C. § 9607 ), trans. denied .

      The record contains a copy of a document signed by Warren T. Franke on November 13, 1996, for "Defendant Franke Plating Works, Inc. ... in A.H. Choitz action" which indicates Mark A. Thoma as the agent authorized to accept service on behalf of Franke Plating. Appellant's Appendix Volume VI at 123.

      The record contains a copy of a December 22, 1997 consent decree in U.S. v. A.H. Choitz , Cause No. 1:97-CV-362.

      The designated revised affidavit of Frank Deveau states that NPDES permits set "limits on water discharges by regulating point sources that discharge pollutants into waters of the United States. An Industrial Discharge Permit is issued pursuant to the NPDES program, typically as authorized by a local ordinance. Discharges are self-reported and data is publicly available." Appellant's Appendix Volume IV at 58.

      The 1987 Policy provides that:
      The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
      Coverage A. bodily injury or
      Coverage B. property damage
      to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage ....
      Appellant's Appendix Volume II at 128. The 1987 Policy defines "property damage" in part as "(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom," and "personal injury" to include "wrongful entry or eviction or other invasion of the right of private occupancy." Id. at 113, 133.

      To the extent that Franke Plating maintains on appeal that it seeks to limit its argument to indemnification costs, see Appellant's Brief at 15 ("[I]ndemnification costs are the subject of this case. Franke Plating is not seeking defense costs."), we observe the statements in Franke Plating's complaint that it "was for declaratory relief and damages" and that Cincinnati was "obligated under each of their policies to pay defense costs incurred by Franke Plating and/or all sums, subject only to policy limits, incurred by Franke Plating for response, contribution, and/or settlement costs incurred as a result of the Underlying Claims." Appellant's Appendix Volume II at 95, 98. It also requested, in part, that the court "requir[e] [Cincinnati] to defend and indemnify Franke Plating in the Underlying Claims." Id. at 99.

      Franke Plating maintains it seeks the incurred response costs which, along with the pre-judgment interest, constitute "total indemnification costs." Appellant's Brief at 15.

      Cincinnati's December 2, 2015 submission and designation of evidence states that it "hereby submits and designates ... 2. [Franke Plating's] Answers to Interrogatories, Interrogatory No. 5.f., attached hereto as Exhibit A." Appellee's Appendix II Volume 2 at 2. The included Response to Interrogatory No. 5 states in part that, "[w]ith regard to f, Franke Plating has not sought coverage with respect to any of the Underlying claims." Id. at 13.

      As did Judge May in her dissent, I disagree with the Maplehurst "majority's apparent premise that after [Dreaded v. St. Paul Guardian Insurance Co. ], reasonableness is no longer a permissible consideration in our analysis of late-notice disputes[,]" because "[s]uch a premise is inconsistent with the explicit language of [Miller v. Dilts ], and nothing in [Dreaded ] suggests reasonableness must, should, or can be disregarded." 953 N.E.2d at 1163 (May, J., dissenting).

      The voluntary payment provision in Maplehurst Farms I reads, "No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. " 953 N.E.2d at 1156 (emphasis added). The italicized phrase is absent from the 1987 Policy in this case. I do not agree with Franke Plating that the absence of this phrase is dispositive of whether it violated the 1987 Policy's voluntary payment provision, but I do believe that it militates against a denial of coverage.

      I believe that genuine issues of material fact exist regarding whether the "known loss" doctrine applies to the Wayne Reclamation claim, whether the Atlantic States claim involves "property damage," and whether Franke Plating is entitled to prejudgment interest.


source: Caselaw Access Project

author: May, Judge.

license: Public Domain

text:
    Gregory Wayne PARKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-151
    Court of Appeals of Indiana.
    Filed October 18, 2018
    Attorney for Appellant: Susan D. Rayl, Smith Rayl Law Office, LLC, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Laura Anderson, Deputy Attorneys General, Indianapolis, Indiana
   May, Judge.

[1] Gregory Wayne Parks ("Gregory") appeals his convictions of Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony dealing in marijuana, and two counts of Level 6 felony possession of a controlled substance. Gregory argues the State did not present sufficient evidence he constructively possessed the gun and drugs found in a bag behind the driver's seat of the truck in which Gregory was riding. We affirm.

Facts and Procedural History

[2] At approximately 10:45 p.m. on June 5, 2016, Indianapolis Metropolitan Police Department Officers Matthew Plummer and Austin Birch initiated a traffic stop after they observed a truck without a driver's side headlight. When the officers approached the stopped truck, the driver, Michelle Parks ("Michelle"), attempted to exit the truck. The officers ordered the occupants to stay inside the truck but, as the officers were issuing these commands, Gregory attempted to exit the passenger side of the truck. After hearing the officers' commands, both Michelle and Gregory complied and re-entered the truck.

[3] As Officer Plummer approached the truck, he detected an odor of raw marijuana. Once he made contact with Gregory, Officer Plummer observed two marijuana joints positioned next to a live nine-millimeter round of ammunition on the center console in plain view. Officer Plummer advised Gregory and Michelle of the reason for the stop, asked for their identifications, and asked to whom the truck belonged. After submitting their identification, both Gregory and Michelle stated simultaneously that the truck was "ours" and they were "getting mechanical work [done] to the truck." (Tr. Vol. II at 12.)

[4] Officer Plummer returned to his vehicle and ran Gregory's and Michelle's identification to confirm their identities. He learned neither had a valid driver's license. Based on this lack of driver's licenses, coupled with the odor of raw marijuana, Officer Plummer and Officer Birch handcuffed Gregory and Michelle and searched their truck.

[5] In addition to the marijuana joints and ammunition Officer Plummer initially observed on the center console, he found another joint on the front passenger seat. Behind the passenger seat, he found mail addressed to Gregory and Michelle. Behind the driver's seat, Officer Plummer found a black messenger bag on top of a gas can. He opened the flap of the bag and found a "brick of marijuana inside of that bag." (Id. at 14.) Officer Plummer then found a Smith and Wesson nine-millimeter handgun in the side pocket of the same bag.

[6] After finding the gun, Officer Plummer stopped his search and placed Gregory and Michelle under arrest. Officer Plummer then called another officer to the scene to process the gun. While they waited for that officer to arrive, Michelle indicated she did not know anything about the bag or its contents; Gregory similarly stated he did not know anything about the contents of the bag and said, "if he didn't know about it, he shouldn't be arrested." (Id. at 15.) Officer Brycen Garner arrived and processed the gun.

[7] Officer Plummer then continued his search of the black messenger bag. He located a digital scale with methamphetamine residue on it; two smaller baggies containing small amounts of marijuana; and a baggie containing several smaller baggies, four tablets of Diazepam, which is a Schedule IV controlled substance, and eighteen tablets of Clonazepam, which is a Schedule IV controlled substance. Officer Plummer also searched Gregory incident to his arrest and found $390.00 in small denominations and a cell phone in Gregory's pocket.

[8] On June 8, 2016, the State charged Gregory with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony dealing in marijuana, Level 5 felony possession of methamphetamine, and two counts of Level 6 felony possession of a controlled substance. Gregory was tried before the bench on December 11, 2017, and the trial court found him guilty on all charges except the Level 5 felony possession of methamphetamine. On January 4, 2018, the trial court sentenced Gregory to an aggregate sentence of nine years incarcerated.

Discussion and Decision

[9] When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court's decision. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder's role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court's ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court's decision. Id. at 147.

[10] Possession can be actual or constructive. Lampkins v. State , 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g on other grounds , 685 N.E.2d 698 (Ind. 1997). As Gregory did not have actual possession of the contraband in question, we must determine whether the State proved he constructively possessed it. For the State to prove constructive possession, it must prove the defendant had the intent and capability to maintain dominion and control over the contraband. Id. To prove intent to maintain dominion and control, there must be additional circumstances supporting the inference of intent. Id.

[11] Proof of dominion and control, and therefore knowledge, of contraband has been found through a variety of means: (1) incriminating statements by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant's plain view, and (6) the mingling of the contraband with other items owned by the defendant. Henderson v. State , 715 N.E.2d 833, 836 (Ind. 1999). Where a passenger is charged with possession, the evidence is more likely to be sufficient when the passenger could see the contraband and was in the best position to access it, and when no evidence clearly indicates it belonged to or was under the control of another occupant of the vehicle. Deshazier v. State , 877 N.E.2d 200, 208 (Ind. Ct. App. 2007), trans. denied . "When constructive possession is alleged, the State must demonstrate the defendant's knowledge of the contraband." Bradshaw v. State , 818 N.E.2d 59, 63 (Ind. Ct. App. 2004). Gregory argues the State did not provide sufficient evidence Gregory knew the contraband was in the vehicle. We disagree.

[12] Regarding any incriminating statements Gregory made, upon arrest, he told officers that "if he didn't know about it, he shouldn't be arrested." (Tr. Vol. II at 15.) The State argues this statement, "[t]hough not an incriminating statement at first blush, demonstrated [Gregory's] underlying assumption that denying ownership might help him avoid arrest and punishment. His statement was a calculated choice of phrasing that lends itself more to an inference of guilt than an honest denial of ownership." (Br. of Appellee at 15.)

[13] Regarding the location of the black messenger bag behind the driver's seat, Gregory's position in the passenger's seat indicated he could easily reach the black messenger bag. See Holmes v. State , 785 N.E.2d 658, 661 (Ind. Ct. App. 2003) (Holmes constructively possessed marijuana found in a vinyl bag resembling a diaper bag on the floor behind the driver's seat because it was within his reach). When considering the location of the drugs in a setting that would suggest manufacturing, we note the black messenger bag contained a large brick of marijuana, as well as multiple small baggies, which Officer Plummer testified suggested repackaging of contraband for sale. See Ind. Code § 35-48-1-18(2)(A) (2014) (defining "manufacturing" in relevant part as "packaging and repackaging"). Additionally, Officer Plummer found $390 in small bills in Gregory's pocket, which Officer Plummer testified was indicative of dealing. (Id. at 49-50.)

[14] The State contends also "it is difficult to imagine how [Gregory] could not have been aware of the presence of the contraband in light of the strong odor of marijuana emanating from the vehicle." (Br. of Appellee at 16.) The State directs us to Corrao v. State , 154 Ind. App. 525, 290 N.E.2d 484 (1972), in which our court imputed knowledge of marijuana found in the trunk of a vehicle to the vehicle's driver and the vehicle's owner who was a passenger based on the smell of raw marijuana coming from the vehicle and their possessory interests in the vehicle. Similarly here, Gregory indicated a possessory interest in the truck when he answered "ours" simultaneously with Michele when asked to whom the truck belonged. (Tr. Vol. II at 12.)

[15] Finally, the items located in plain view, the joints and 9mm bullet, link Gregory with the contraband and 9mm handgun found in the black messenger bag. In Lampkins , 682 N.E.2d at 1275, our Indiana Supreme Court held Lampkins' proximity to contraband, there a Tylenol bottle containing crack cocaine, combined with other factors, proved Lampkins constructively possessed the contraband. Id. Further, in Woods v. State , 471 N.E.2d 691 (Ind. 1984), reh'g denied , our Indiana Supreme Court held the presence of ammunition matching the gun found in the vehicle, combined with other factors, proved Woods constructively possessed the gun in question. Id. at 694.

[16] Considering Gregory's incriminating statements, the strong odor of raw marijuana, the presence of items suggestive of manufacturing and dealing, Gregory's proximity to the black messenger bag containing the contraband, and the items in plain view linking Gregory to the contraband, we hold the State presented sufficient evidence he had the ability and intent to possess the black messenger bag and its contents, and thus the State proved Gregory constructively possessed the black messenger bag. See Deshazier , 877 N.E.2d at 208 (totality of circumstances supported conviction based on constructive possession).

[17] Gregory's alternate explanations regarding the factors of constructive possession are invitations for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Drane , 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the credibility of witnesses). Further, this case was tried to the bench, and we presume the judge knows and properly applies the relevant law to the facts of the case. Laughlin v. State , 101 N.E.3d 827, 830 (Ind. Ct. App. 2018).

Conclusion

[18] The State presented sufficient evidence to prove Gregory constructively possessed the drugs and gun found in the black messenger bag. Accordingly, we affirm his convictions.

[19] Affirmed.

Najam, J., and Bailey, J., concur.

      Ind. Code § 35-47-4-5(c) (2014).

      Ind. Code § 35-48-4-10(d) (2014).

      Ind. Code § 35-48-4-7(b) (2014).

      We held oral argument on this case on September 28, 2018, at North Decatur High School. We thank school staff and students for their hospitality and counsel for their able presentations.

      Ind. Code § 35-48-4-6.1(b) (2014).


text:
    In the Matter of the Civil Commitment of: L.J., Appellant-Respondent, v. HEALTH AND HOSPITAL CORP. d/b/a Eskenazi Health CMHC, Appellee-Petitioner
    Court of Appeals Case No. 18A-MH-152
    Court of Appeals of Indiana.
    Filed October 18, 2018
    Attorney for Appellant: Joel M. Schumm, Indianapolis, Indiana
    Attorneys for Appellee: Bryan H. Babb, Sarah Thompson Parks, Bose McKinney & Evans LLP, Indianapolis, Indiana
   May, Judge.

[1] L.J. appeals an order of regular commitment signed only by the commissioner who held the hearing on the commitment petition. L.J. argues the order is invalid because the trial court judge failed to "enter the final order" as is required by Indiana Code section 33-23-5-9(a).

[2] Rather than sign the commitment order, the trial court judge signed an order under a separate cause number that purported to approve all decisions entered by commissioners and magistrates during the week L.J.'s commitment hearing was held. That separate order contained no reference to L.J.'s civil commitment. Nor does the Chronological Case Summary ("CCS") for L.J.'s civil commitment contain any reference to the judge's entry of the business record order purporting to approve the commissioner's actions during the week of L.J.'s commitment.

[3] Under these facts, we hold the trial court judge's order was ineffective to demonstrate the sitting judge considered the merits of L.J.'s case and entered the final order as required by statute. As there is no final order from which L.J. could appeal, we dismiss this appeal. On remand the trial court judge should review whether the evidence in the record supports the commissioner's determination and enter a final order as to L.J.'s civil commitment.

Facts and Procedural History

[4] On December 27, 2017, under cause number 49D08-1712-MH-047185, Health and Hospital Corporation, d/b/a Eskenazi Health Midtown Community Mental Health (hereinafter "Eskenazi"), filed an application for emergency detention of L.J. based on alleged mental illness. The next day, Eskenazi filed a report that included a doctor's statement regarding L.J.'s condition, diagnosis, and recommended treatment.

On January 2, 2018, the judge reviewed the filings, found probable cause to continue L.J.'s detention, and set an evidentiary hearing for two days later.

[5] On January 4, 2018, the commissioner held the hearing on the petition for regular commitment of L.J. At the conclusion of that hearing, the commissioner concluded L.J. should be involuntarily committed based on her findings L.J. was "gravely disabled" and "dangerous to others." (App. Vol. 2 at 6.) The commissioner signed and dated an order of regular commitment that same day. The line on which the commissioner signed indicated the order was to have been signed by the judge, (id. at 7), but the judge's signature does not appear on that document. The CCS indicates the commissioner's entry of that order and her submission of that order to NICS, but nothing in the record indicates the commissioner was appointed special judge or judge pro tem for this case. There were no further CCS entries indicating the judge reviewed the case or entered a separate final order.

Discussion and Decision

[6] L.J. appeals the validity of the order committing her to Eskenazi because it was signed by the commissioner but not by the judge. Commissioners can be appointed to assist with the Probate Court's caseload:

An appointed probate hearing judge or probate commissioner shall be vested by the judge of the probate division with suitable powers for the handling of all probate matters of the court, including the following:
(1) Fixing of all bonds.
(2) Auditing accounts of estates, guardianships, and trusts.
(3) Accepting reports, accounts, and settlements filed in the court.
(4) Appointing personal representatives, guardians, and trustees.
(5) Probating wills.
(6) Taking or hearing evidence on or concerning matters described in this subsection or any other probate, guardianship, or trust matters in litigation before the court.
(7) Enforcing court rules.
(8) Making reports to the court concerning the judge's or commissioner's doings in the proceedings described in this subsection, including reports concerning the commissioner's findings and conclusions regarding the proceedings.
However, all matters handled by a hearing judge or commissioner under this subsection are under the final jurisdiction and decision of the judge of the probate division.

Ind. Code § 33-33-49-16(a). As that statute indicates, a commissioner in probate court has the authority to hear evidence and report findings and conclusions, but the "final jurisdiction and decision" belong to the judge. Id.

[7] Another subsection of that same statute provides:

A master commissioner appointed by the court under this section has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-23-5-9. A master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned or as designated by rules of the court.

Ind. Code § 33-33-49-16(e). As to the power of magistrates, the Indiana Code in relevant part provides:

(a) Except as provided under subsection (b), a magistrate shall report findings in an evidentiary hearing, a trial, or a jury's verdict to the court. The court shall enter the final order .
(b) If a magistrate presides at a criminal trial or a guilty plea hearing, the magistrate may do the following:
(1) Enter a final order.
(2) Conduct a sentencing hearing.
(3) Impose a sentence on a person convicted of a criminal offense.

Ind. Code § 33-23-5-9 (emphasis added). Based thereon, our Indiana Supreme Court has stated:

Magistrates may enter final orders in criminal cases, but otherwise may not enter a final appealable order unless sitting as a judge pro tempore or a special judge. Instead they may only report findings, while the court shall enter the final order.

In re Adoption I.B. , 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (internal citations and quotations omitted). Thus, a commissioner does not have the authority to enter a final order of regular commitment.

[8] Eskenazi "does not dispute that under ordinary circumstances and with some exceptions, a magistrate judge on his or her own does not have the authority to issue a final appealable order." (Br. of Appellee at 12) (formatting in original). Instead, Eskenazi asserts we should hold the trial court judge "sufficiently indicated his approval of the Order" by entering an order under a separate cause number. (Id. )

[9] On January 10, 2018, under cause number 49D08-1708-CB-030844, the probate court judge signed an "APPROVAL ORDER FOR RECORD OF JUDGMENTS AND DAILY ORDERS." (App. Vol. 2 at 8) (capitalization in original). That order provides:

The court being advised by the magistrate, commissioner and/or referee of this court approves the findings and recommendations of the magistrate, commissioner and/or referee and adopts the findings and recommendations as the order in all cases heard 1-2-2018 through 1-5-2018[.]

(Id. ) The "CB" in the cause number on that order indicates the case is a "Court Business record-i.e. court orders that refer to non-case matters such as the appointment of judge pro tem, drawing the jury, etc." Ind. Administrative Rule 8(B)(3). That business record order contains no reference to L.J.'s civil commitment such that we could confirm the sitting judge intended to affirm the commissioner's decision as the final order. Nor does the CCS for L.J.'s involuntary commitment action contain an entry indicating the judge reviewed this case and then entered the affirmation of the commissioner's work under that business record cause number. For all these reasons, we reject the entry of a business record order as a method for meeting the statutory requirement that the court "enter the final order" in each trial conducted by a commissioner or magistrate. Ind. Code § 33-23-5-9(a).

[10] The Indiana Legislature has made clear which decisions may be made by a commissioner or magistrate alone and which decisions by a commissioner or magistrate must be reviewed by a judge. Compare I.C. §§ 33-23-5-5 & 33-23-5-9(b)with I.C. §§ 33-33-49-16(a) & 33-23-5-9(a). The use of a business record order to summarily affirm multiple unspecified decisions by a commissioner in no way suggests the trial judge considered the merits of those decisions. In such a circumstance, we are left without any assurance that the court fulfilled its obligation to review and "enter the final order." I.C. § 33-23-5-9(a). Because "[r]eview of final orders by the presiding judge is not a mere technicality[,]" In re Hawkins , 902 N.E.2d 231, 240 (Ind. 2009) (judge and commissioner sanctioned in disciplinary proceedings for "unlawful practice of permitting a commissioner to enter final PCR orders"), "[w]e trust the court will observe this necessity" in all future cases. I.B. , 32 N.E.3d at 1173 n.6 (demanding trial court observe necessity of court entering final order on remand).

Conclusion

[11] Because we reject the trial court's entry of a business record order with no reference to specific case numbers as a method for adopting the findings and conclusions of a magistrate or commissioner as to any specific case heard during a specified time period, the commitment order challenged by L.J. is not a final order. Accordingly, we dismiss this appeal and remand for the probate court judge to review the matter and enter a final order.

[12] Dismissed and remanded.

Baker, J., and Robb, J., concur.

      NICS is the "National Instant Criminal Background Check System," which is maintained by the FBI. https://www.fbi.gov/services/cjis/nics (last visited October 2, 2018).

      The CCS contains an additional entry on January 4, 2018, that in its entirety provides:
      Mentally Ill and Dangerous or Gravely Disabled (Judicial Officer: Eichholtz, Steven R)[.]
      (App. Vol. 2 at 11) (formatting in original). Neither party addresses this entry in its brief. As the vague nature of that entry leaves us uncertain its meaning, and as neither party has so asserted, we decline to infer therefrom that the judge reviewed and confirmed the commissioner's decision as the court's final order.

      Indiana Code section 33-23-5-5 provides a list of eighteen activities a magistrate "may do," such as compel the attendance of witnesses, administer oaths, punish contempt, enforce court rules, and conduct trials. That section does permit magistrates to enter final orders in some specified causes of action, none of which are relevant here. See I.C. § 33-23-5-5 (providing power to enter final order in some criminal, small claims, and protective order cases).

      Eskenazi also asserts we should hold L.J. waived the opportunity to appeal the judge's failure to enter the final order by not objecting at the hearing. However, the commissioner had authority to conduct the hearing and enter findings and conclusions. See Ind. Code § 33-33-49-16(a)(6) & (a)(8). Thus, an objection to the commissioner at the hearing would have been untimely. Furthermore, as this case involves the peculiar use of a court business record, which we disapprove, we choose to address this cause on the merits.


text:
    Damon L. MAFFETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 82A04-1711-CR-2679
    Court of Appeals of Indiana.
    Filed October 23, 2018
    Attorney for Appellant: Karen M. Heard, Vanderburgh County Public Defender's Office, Evansville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Michael G. Worden, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Damon L. Maffett appeals his conviction of and sentence for Level 4 felony unlawful possession of a firearm by a serious violent felon. He presents two issues for review, which we restate as:

1) Whether the trial court abused its discretion when it admitted three minutes of a videotaped police interview of Maffett and police testimony about the presence of handgun ammunition in the apartment; and
2) Whether Maffett's ten-year sentence is inappropriate.

We affirm.

Facts and Procedural History

[2] On February 8, 2017, Evansville Police Detective Peter DeYoung went to an apartment to contact Maffett for legitimate law enforcement purposes. Detective DeYoung requested assistance from patrolmen in this endeavor. When asked to come out of the apartment, Maffett would not comply. Maffett's significant other, Danielle Burke, who was the registered lessee of the apartment, exited the apartment and confirmed Maffett was inside. Burke told Detective DeYoung no guns were present inside the apartment.

[3] When police notified Maffett that a K-9 unit was present and was going to enter, Maffett warned the officers that, if the K-9 unit was sent in, he would "blast it." (Tr. Vol. II at 80.) After approximately an hour, Maffett surrendered himself. With a search warrant, the police searched the apartment and found a loaded Mossberg shotgun under the mattress and two types of handgun ammunition elsewhere in the apartment. They also found male clothing in one of the closets of the apartment. Burke confirmed the clothing belonged to Maffett.

[4] After the State charged Maffett, Burke told Detective DeYoung she had lied about the absence of guns in the apartment. Burke maintained her father had given her the shotgun three years earlier. She also stated Maffett did not "actually live" at the apartment. (Ex. Vol. IV at 93.) At trial, Burke testified Maffett had helped her clean the shotgun.

[5] After the crime scene investigators examined the shotgun, they determined the registered owner was Wesley Morgan. Morgan confirmed the shotgun belonged to him and gave a detailed description of the shotgun. Morgan testified he was unaware it was missing from his collection and he had last used it "probably a few months before" the police contacted him about it. (Tr. Vol. II at 73.)

[6] The State charged Maffett with Level 4 felony unlawful possession of a firearm by a serious violent felon. Maffett filed a motion to bifurcate the enhancement based on his status as a serious violent felon from the underlying charge of unlawful possession of a firearm. The trial court granted the motion.

[7] Prior to trial, Maffett filed a motion in limine objecting to the use of the video from an interview Detective DeYoung conducted with Maffett because it included references to both drug-dealing activity and possession of handgun ammunition. Maffett argued the references were prejudicial because they implicated him for prior bad acts. The State agreed that most of the interview was prejudicial, so it redacted all but approximately three minutes, with part of that segment muted.

[8] Maffett still objected to the introduction of the three minutes of videotaped interview, arguing a reference to obtaining the bullets when "a MF'r come wanting 3," (id. at 176), was an admission of selling ".3 grams of drugs in exchange for the box of 9-millimeter bullets[.]" (Id. at 41-42.) The State argued it had not made that connection. The trial court decided it "didn't hear that or make that connection either," (id. at 42), and it overruled Maffett's objection to admission of that portion of the interview.

[9] As the video was played, the court reporter transcribed what she heard. During the interview, Maffett stated he "didn't have no gun." (Id. at 130) (errors in original). When asked why he told the police he did, Maffett said, "[i]t was kind of one of them moments like you stay up all night (inaudible) like this, I was just, you know what I'm saying, I was just like popping Adderall, feel me?" (Id. ) (errors in original). Detective DeYoung asked Maffett about the shotgun police found during the search. Detective DeYoung asked, "Is that yours?" (Id. at 131.) Without being made aware of the make of the shotgun, Maffett replied, "A Mossberg?" and then stated it was a "possibility[.]" (Id. ) Detective DeYoung asked Maffett whether "if [he] had a gun like a shotgun, that's just for protection right, you're not, you're not trying to shoot the police or nothing like that?" (Id. ) To which Maffett replied, "No." (Id. ) The interview also touched on the presence of the handgun ammunition.

[10] As part of its closing argument and without objection from Maffett, the State read from a previously undisclosed transcript of the interview, which was not entered into evidence. The State argued Maffett had said he obtained the ammunition when "a MF'r come wanting 3[.]" (Id. at 176.) The State did not, however, provide any explanation for what that statement meant.

[11] The jury found Maffett guilty of possession of a firearm. Maffett then admitted the serious violent felon enhancement in the charging information, and the court entered his conviction. After hearing evidence, the court found mitigators in Maffett's admission to being a serious violent felon and the fact Maffett has five children, but it found Maffett's criminal history to be an aggravator. The trial court sentenced Maffett to ten years and recommended Maffett be provided drug counseling.

Discussion and Decision

Admission of Evidence

[12] Maffett argues the trial court erred when it admitted three minutes of a tape-recorded interview and police testimony about the presence of handgun ammunition in the apartment. We review evidentiary rulings for an abuse of discretion.

Pavlovich v. State , 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied . An abuse of discretion occurs if the trial court misinterpreted the law or if its decision was clearly against the logic and effect of the facts and circumstances before it. Id.

Videotaped Interview

[13] Maffett argues the admission of the three minutes of videotaped interview violated Evidence Rule 404. Evidence Rule 404(a) prohibits using evidence of a defendant's "character or character trait ... to prove that on a particular occasion the person acted in accordance with that character or trait." This rule is meant to deter a jury from pursuing a path of reasoning that leads to "the forbidden inference," which is that a defendant is guilty of the alleged crime because the defendant possesses a bad character trait. Herrera v. State, 710 N.E.2d 931, 935 (Ind. Ct. App. 1999). Evidence Rule 404(b) prohibits the use of a defendant's "crime, wrong, or other act ... to prove a person's character in order to show that on a particular occasion the defendant acted in accordance with that character." An analysis under Evidence Rule 404(b)"necessarily incorporates the relevancy test of Rule 401 and the balancing test of Rule 403." Sanders v. State , 704 N.E.2d 119, 123 (Ind. 1999).

[14] Maffett argues the trial court erred when it permitted admission of the video recording because it impugned his character with an inference of prior bad acts. In particular, Maffett points to two statements:

1. Detective DeYoung's statement to Maffett that, "so if you got a gun, like a shotgun, it's for protection, you're not trying to shoot the police or nothing like that, if it's like you said, someone rolls up three deep because of what you do, that you own a shotgun to protect yourself." (Tr. Vol. II p. 176 line 2-6).
2. Maffett's statement to Detective DeYoung that "I got a whole box of 9's because a MF'r come wanting a 3, I said cool give me the shells." (Tr. Vol. II p. 176 line 12-13).

(Appellant's Br. at 12-13.)

[15] The State admits the video may create an inference Maffett was engaged in activities for which a gun was required for protection, but it argues a "mere inference" of bad acts does not implicate Evidence Rule 404(b). See Dixson v. State , 865 N.E.2d 704, 712 (Ind. Ct. App. 2007) (holding a "mere inference of prior bad conduct" does not implicate Evidence Rule 404(b) ), trans. denied . We agree with the State and the trial court. The language about which Maffett complains is so vague that we cannot say it demonstrates a bad act that could be prejudicial.

[16] Nevertheless, the State argues, if error was present, it was harmless as other evidence supported Maffett's conviction. "[E]rrors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party." Hoglund v. State , 962 N.E.2d 1230, 1238 (Ind. 2012), reh'g denied . Accordingly, error is harmless "if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction." Id.

[17] To convict Maffett, the State needed to prove he possessed the shotgun found in the apartment. As Maffett was not seen in possession of the shotgun, the State needed to prove constructive possession. Constructive possession occurs when someone has "the intent and capability to maintain dominion and control over the item." Henderson v. State , 715 N.E.2d 833, 835 (Ind. 1999).

[18] The State produced substantial independent evidence Maffett constructively possessed the shotgun. Maffett was inside the apartment where the shotgun was found. Burke initially admitted that Maffett lived with her at the apartment and that Maffett had helped her clean the shotgun. Maffett threatened to "blast" the K-9 unit. (Tr. Vol. II at 80.) During his interview, when Detective DeYoung asked Maffett about a shotgun in the apartment, Maffett asked if it was a Mossberg and said it was possibly his. This evidence was sufficient to infer Maffett was aware the shotgun was in the apartment and he had the capability to use the weapon. See, e.g. , Massey v. State , 816 N.E.2d 979, 989-90 (Ind. Ct. App. 2004) (evidence of defendant living in the house and admitting knowledge of the gun was sufficient to prove constructive possession). In light of the evidence in the record, the admission of a nearly incomprehensible video interview was harmless. See McCorker v. State , 797 N.E.2d 257, 267 (Ind. 2003) (substantial cumulative evidence independent of the evidence at issue renders the court's admission of such evidence harmless).

Testimony about Ammunition

[19] Maffett next argues the trial court abused its discretion by admitting testimony about ammunition found in the apartment because the testimony was not relevant and was more prejudicial than probative. Evidence Rule 401 states evidence is relevant if "(a) it has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Evidence Rule 403 provides a court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence."

[20] Maffett alleges the evidence regarding handgun ammunition admitted during Detective DeYoung's testimony was irrelevant and prejudicial because "nobody possesse[s] bullets without a gun." (Tr. Vol. II at 37.) The trial court distinguished the testimony and video statements about ammunition from photographs of the ammunition, which the court excluded because the firearm for which the ammunition would be used was "not the subject of this case" and would be prejudicial. (Id. at 114.) The trial court found the testimony and videos showed "whether or not [Maffett] knew items in the location where the shotgun was found ... [we]re relevant to show whether [Maffett] maintained dominion and control over that area and maintained dominion and control over the shotgun[.]" (Id. at 113.) Maffett argues the trial court's statement differentiating the testimony and video from photos was in error as nothing in the testimony or video indicated the location of the ammunition in relation to the shotgun.

[21] The State counters Maffett's "possession of the ammunition tended to show that he had knowledge of weapons that were inside the apartment, and that he had the capability to maintain dominion and control over such weapons." (Br. of Appellee at 15.) Therefore, the State argues, the ammunition evidence was relevant to the charged offense. However, the State maintains if there was any error, that error was harmless due to the substantial independent evidence the State presented.

[22] We need not determine whether the evidence of the ammunition should have been admitted. "The improper admission of evidence is harmless error when the reviewing court is satisfied that the conviction is supported by substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction." Meadows v. State , 785 N.E.2d 1112, 1121 (Ind. Ct. App. 2003), trans. denied. As noted above, the State presented evidence Maffett was in the apartment with the shotgun, lived in the apartment, cleaned the shotgun, and threatened to shoot the K-9 unit. The State presented substantial independent evidence sufficient to infer Maffett was aware of the shotgun in the apartment and was able to use it. Any prejudice inferred from the presence of ammunition for which there was not a gun was slight as neither the video nor Detective DeYoung's statements lingered on that point. See Hinesley v. State , 999 N.E.2d 975, 986 (Ind. Ct. App. 2013) (if the evidence as a whole supports the conviction, an inconsequential reference to other evidence does not show prejudice), reh'g denied, trans. denied. Therefore, the admission of the video and testimony briefly mentioning handgun ammunition was harmless. See McCorker , 797 N.E.2d at 267 (substantial cumulative evidence independent of the evidence at issue renders the court's admission of such evidence harmless).

Inappropriate Sentence

[23] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial court's decision, we find the sentence inappropriate in light of the nature of the offense and the character of the offender. Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (2007). We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. Johnson v. State , 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012), reh'g denied . Maffett, as the appellant, bears the burden of demonstrating his sentence is inappropriate. See Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006).

[24] When considering the nature of the offense, the advisory sentence is the starting point for determining the appropriateness of a sentence. Anglemyer , 868 N.E.2d at 494. The sentencing range for a Level 4 felony is "a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years." Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced Maffett to ten years; thus, Maffett received a sentence above the advisory but below the maximum.

[25] Maffett argues his offense was not egregious because he "did not threaten or resist law enforcement with the firearm." (Br. of Appellant at 21.) However, evidence was presented Maffett threatened to "blast" the K-9 unit. (Tr. Vol. II at 80.) Moreover, the evidence suggested the shotgun had been stolen and Maffett knew that. We conclude Maffett's sentence is not inappropriate based on the nature of his offense. See McBride v. State , 992 N.E.2d 912, 921 (Ind. Ct. App. 2013) (although defendant used unloaded guns, the fact he used them "in a threatening manner" supported the sentence given), reh'g denied, trans. denied .

[26] When considering the character of the offender, one relevant fact is the defendant's criminal history. Johnson , 986 N.E.2d at 857. The significance of criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense. Id. Maffett acknowledged he has "several felonies[,]" (Br. of Appellant at 21), but he claims many of the convictions were non-violent.

[27] Contrary to Maffett's assertions, not only did he have six felony convictions and several misdemeanor convictions, but several of the convictions are for violent crimes. Continuing to commit crimes after frequent contacts with the judicial system is a poor reflection on one's character. Rutherford v. State , 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) ; see also Connor v. State, 58 N.E.3d 215, 221 (Ind. Ct. App. 2016) (continued crimes indicate a failure to take full responsibility for one's actions). As such, we cannot agree with Maffett that his sentence is inappropriate based on his character.

Conclusion

[28] Any possible error in the admission of evidence was, at most, harmless. Maffett has not demonstrated his sentence is inappropriate in light of his character and his offense. Accordingly, we affirm.

[29] Affirmed.

Najam, J., and Bailey, J., concur.

      Ind. Code § 35-47-4-5 (2016).

      We held oral argument on this matter on September 11, 2018, at Castle High School in Newburgh, Indiana. We thank Castle High School staff and students for their hospitality and counsel for their able presentations.

      Additionally, Maffett argues that, even if admission of the tape recording itself was not prejudicial, the trial court had allowed it in partially based on the fact that much of it was inaudible or unclear. However, during closing, the State produced a transcript of the interview and read it to the jury. Maffett did not object to the reading of the transcript during closing argument; thus, any issue this could raise is waived for our review. See Tesfamariam v. Woldenhaimanot , 956 N.E.2d 118, 122 (Ind. Ct. App. 2011) (when complaining party does not object, the issue is waived for appellate consideration). An exception to the doctrine of waiver arises when errors are so blatant and serious that to ignore them would constitute a denial of fundamental due process, i.e. , when fundamental error has occurred. Madden v. State , 656 N.E.2d 524, 526 (Ind. Ct. App. 1995), trans. denied .
      We assume a jury follows the instructions it is given. See Weisheit v. State , 26 N.E.3d 3, 20 (Ind. 2015) (appellate court assumes a properly instructed jury follows the instructions given), reh'g denied, cert. denied --- U.S. ----, 136 S.Ct. 901, 193 L.Ed.2d 796 (2016). The jury here was instructed to rely only on the evidence presented, "which may be either witness testimony or exhibits." (App. Vol. II at 59.) The jury also was instructed the attorneys would make opening and closing arguments but those arguments were not to be considered evidence. (Id. at 44, 45.) Even though the closing arguments may have clarified for some jurors what was said on the tape, the admission remains harmless because the statements were vague and substantial independent evidence was presented to prove Maffett constructively possessed the shotgun.

      Maffett's felony convictions include: Class D felony dealing in a substance represented to be a controlled substance, Class C felony battery committed by means of a deadly weapon or resulting in serious bodily injury, Class D felony battery resulting in bodily injury with a victim of less than fourteen years old, Class D felony domestic battery, three counts of Class D felony intimidation, and Class C felony escape.


author: Crone, Judge.

text:
    Malcolm R. DEPRIEST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1176
    Court of Appeals of Indiana.
    Filed October 24, 2018
    Attorneys for Appellant: Scott L. Barnhart, Brooke Smith, Keffer Barnhart LLP, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Malcolm R. DePriest appeals his convictions for level 4 felony unlawful possession of a firearm by a serious violent felon ("SVF") and class A misdemeanor resisting law enforcement. He argues that the trial court committed fundamental error by instructing the jury that there would be a second phase of the trial if the jury found beyond a reasonable doubt that he knowingly or intentionally possessed a firearm. Finding no error, we affirm.

Facts and Procedural History

[2] On September 28, 2017, an Evansville police officer responded to a report of an incident in progress involving a man with two guns. The officer saw DePriest exit a building, get on a bicycle, and ride away. The officer activated his emergency lights and followed DePriest. DePriest looked back twice at the officer. The officer briefly activated his siren twice. DePriest started peddling faster. The officer saw DePriest take a handgun from his waistband and throw it. DePriest was eventually stopped and arrested, and the handgun was recovered.

[3] The State charged DePriest with level 4 felony unlawful possession of a firearm by a SVF and class A misdemeanor resisting law enforcement and alleged that he was a habitual offender. At trial, the trial court provided the jury with the following preliminary instruction:

In Count 1, the Defendant is charged with Possession of a Firearm in Violation of Indiana Code. The trial will be in two (2) stages. In the first stage, there will be a trial on the issue of whether the Defendant knowingly or intentionally possessed the firearm as charged in Count 1. If you find beyond a reasonable doubt that the Defendant knowingly or intentionally possessed the firearm as charged in Count 1, there will be a second stage of the trial. In the second stage, there will be a trial of the issue whether the Defendant committed a crime by possessing a firearm.

Appellant's App. Vol. 2 at 50. Neither party objected to the instruction.

[4] The jury found that DePriest knowingly or intentionally possessed a firearm and found him guilty of resisting law enforcement. DePriest admitted that he was a SVF and a habitual offender. The trial court sentenced DePriest to six years for unlawful possession of a firearm by a SVF, with a seven-year enhancement for being a habitual offender and a concurrent one-year sentence for resisting law enforcement. This appeal ensued.

Discussion and Decision

[5] DePriest asserts that the preliminary instruction on bifurcation constituted fundamental error. We observe that "[t]he manner of instructing a jury is left to the sound discretion of the trial court. We will not reverse the trial court's ruling unless the instructional error is such that the charge to the jury misstates the law or otherwise misleads the jury." Quiroz v. State , 963 N.E.2d 37, 41 (Ind. Ct. App. 2012) (citation omitted), trans. denied .

[6] Because DePriest failed to object to the jury instruction, he may obtain reversal only if the instruction constituted fundamental error. See Knapp v. State , 9 N.E.3d 1274, 1281 (Ind. 2014) ("Failure to object at trial waives an issue on appeal unless the appellant can show fundamental error."), cert. denied (2015). The fundamental error exception to the contemporaneous objection rule 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. The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. This exception is available only in egregious circumstances.

Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010) (citations and quotation marks omitted).

[7] Specifically, DePriest contends that the instruction constitutes fundamental error because "any reference to the second stage is prejudicial and improperly alludes to the automatic requirement of a second stage and defendant's prior criminal history or the possibility that he or she has one." Appellant's Br. at 9. We disagree. In Williams v. State , 834 N.E.2d 225 (Ind. Ct. App. 2005), another panel of this Court upheld a substantively identical instruction that stated:

The Defendant is charged with Illegal Possession of a Firearm. The trial of charge [sic] will be in two (2) stages. In the first stage, there will be a trial on the issue of whether the Defendant knowingly or intentionally possessed the firearm as charged. If you find beyond a reasonable doubt that the defendant knowingly or intentionally possessed the firearm as charged, there will be a second stage of the trial. In the second stage, there will be a trial of the issue whether the Defendant committed a crime by possessing a firearm.

Id. at 228. In concluding that the instruction was proper, the Williams court reasoned as follows:

With bifurcation ... comes the difficulty of explaining to a jury why the defendant is facing trial for merely possessing a firearm. To the extent the trial court's instruction informed the jury that Williams was alleged to have possessed the firearm illegally for some reason, such was likely already the common sense conclusion of the jurors . The instruction also is clear that there would be a second phase of the trial if, and only if, the jury first concluded beyond a reasonable doubt that Williams had knowingly or intentionally possessed a firearm. It did not, as Williams argues, imply that a second phase of the trial was inevitable.
.... Here, the trial court circumvented legitimate concerns regarding fairness by avoiding reference to Williams as a "serious violent felon" until after the jury had decided whether he had knowingly or intentionally possessed the AK-47. ....
In sum, we conclude the trial court here struck the proper balance between advising the jury that Williams had indeed been charged with a firearm-related crime and avoiding identifying Williams as a "serious violent felon" from the outset of trial. Although current precedent does not require trial courts to bifurcate SVF trials, we believe that the bifurcation procedure serves the ends of justice in such trials and urge our state's trial judges to use this procedure in SVF cases.

Id. at 227-28 (emphasis added).

[8] To the extent DePriest argues that mentioning a second phase of the trial suggests it is automatic, we reach the same conclusion as the Williams court. Here, the instruction clearly states that there would be a second phase of the trial only if the jury first concluded beyond a reasonable doubt that DePriest knowingly or intentionally possessed a firearm. As to DePriest's argument that the instruction's reference to a second phase suggests that the defendant has or might have a criminal history, we disagree. The instruction simply states that in the second stage the jury would consider whether the defendant committed a crime by possessing a firearm; there is no mention of any facts or circumstances or law as to what makes possessing a firearm a crime. We are unpersuaded that the instruction is prejudicial.

[9] We observe that the Williams court's reasoning in upholding the instruction and advocating bifurcation in SVF cases was endorsed by our supreme court in Russell v. State , 997 N.E.2d 351, 354 (Ind. 2013), which addressed a claim of improper trial bifurcation rather than the propriety of a jury instruction. In arguing that bifurcation was improper, Russell argued that "instructing the jury on the non-existent offense of 'unlawful possession of a firearm' was prejudicial because most jurors would know that possession of a firearm, by itself, is not a criminal offense [and] jurors would infer a second phase of trial." Id. The supreme court concluded that this argument failed "[b]ecause the trial court instructed the jury to consider whether Russell had 'unlawfully' possessed a firearm and whether Russell was a SVF in two separate phases of trial." Id. In reaching this conclusion, the supreme court observed that "this argument was rejected in Williams v. State , where the Court of Appeals held that by bifurcating the defendant's SVF trial so that the jury would consider knowing possession of a firearm and the defendant's SVF status separately, the trial court 'avoid[ed] identifying [the defendant] as a 'serious violent felon' from the outset of trial.' " Id. (quoting Williams , 834 N.E.2d at 228 ) (brackets in Russell ).

[10] Based on the foregoing, we conclude that the trial court did not commit error, let alone fundamental error, in giving the challenged instruction. Therefore, we affirm.

[11] Affirmed.

Najam, J., and Pyle, J., concur.