author: BARTEAU, Senior Judge.

text:
    Dennis and Jeremy COCHRAN, Appellants-Defendants, v. Zeroffos HOFFMAN and John Dye, Appellees-Plaintiffs.
    No. 15A01-1109-SC-00015.
    Court of Appeals of Indiana.
    June 26, 2012.

      Kevin J. Mitchell, Faegre Baker Daniels LLP, Fort Wayne, IN, Attorney for Appellants.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Dennis and Jeremy Cochran appeal the small claims court’s judgment regarding the scope of an easement on the property of Zeroffos Hoffman. We affirm in part and reverse in part.

ISSUES

Dennis and Jeremy raise two issues for our review, which we restate as:

I. Whether the small claims court erred by concluding that the easement granted to Dennis and Sandy Cochran does not include a right to park within the easement.
II. Whether the small claims court erred by not awarding damages to Jeremy.

FACTS AND PROCEDURAL HISTORY

Dennis Cochran and his wife, Sandra, own a large tract of real estate (“the Cochran property”) in Dearborn County, Indiana, on which they live. Dennis and Sandra’s son, Jeremy, and his wife (collectively, “the Cochrans”) also live on the Cochran property. Due to the Cochran property being landlocked, the Cochrans access their property via an easement across property owned by Hoffman (“the Hoffman property”). Over the years, the Cochrans have parked their vehicles on the easement. The easement is on a hill, so during inclement weather the Cochrans park on the easement because some of their vehicles cannot surmount the hill. In February 2011, John Dye, who lives' on the Hoffman property, had the Cochrans’ vehicle towed because it was, at least partially, parked on the Hoffman property outside of the easement.

In March 2011, Hoffman and Dye filed this action against Dennis and Jeremy in small claims court. The Cochrans filed a counterclaim for damages for conversion as a result of their car being towed. Following a trial, the court entered judgment stating that the easement did not grant the Cochrans the right to park on the easement and that neither party was entitled to monetary damages against the other. In its order, the court found the following pertinent facts:

5. Defendants may have parked motor vehicles on the easement, partially on the easement, and on the real estate being purchased by Zeroffos Hoffman and Paul Vinson; the parking of cars as referenced above may have on occasion blocked Claimants’ access to their real estate.

Appellants’ App. p. 5. The court then concluded:

1. Defendants Dennis Cochran and Jeremy Cochran, as owners of the easement as described by the evidence, are limited to the purpose for which the easement was granted, that being ingress and egress, or as the language in Plaintiffs’ Exhibit 2 states, “a right of way for the width of 16 feet for all purposes of travel”; such right of way does not grant Defendants the right to park on or block any portion of the easement.
2. Claimants shall not block or impair Defendants’ use of the easement in question.

Id. at 6. Subsequently, Dennis and Jeremy filed a motion to correct error with the small claims court. The motion was deemed denied, and Dennis and Jeremy filed a notice of appeal.

DISCUSSION AND DECISION

In entering its judgment, the small claims court issued findings of fact and conclusions of law. Our standard of review is well-settled: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. S.C. Nestel, Inc. v. Future Constr., Inc., 836 N.E.2d 445, 449 (Ind.Ct.App.2005). The trial court’s findings and conclusions will be set aside only if they are clearly erroneous. Id. “Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.” St. John Town Bd. v. Lambert, 725 N.E.2d 507, 518 (Ind.Ct.App.2000). Moreover, we will not reweigh the evidence or assess witness credibility. S.C. Nestel, Inc., 836 N.E.2d at 449.

We note that Hoffman and Dye have not filed a brief with this Court. When an appellee fails to submit a brief, an appellant may prevail by making a pri-ma facie case of error. Ford v. Ford, 953 N.E.2d 1137, 1142 (Ind.Ct.App.2011). Pri-ma facie error is error at first sight, on first appearance, or on the face of it. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). Where an appellant is unable to show prima facie error, we will affirm. Id. This rule serves to protect this Court and to take from us the burden of controverting arguments advanced for reversal, a duty which remains with the ap-pellee. Ford, 953 N.E.2d at 1142. Still, we are obligated to correctly apply the law to the facts in order to determine whether reversal is required. Id.

I. SCOPE OF EASEMENT

Dennis and Jeremy argue that the small claims court erred by determining that their easement does not include the right to park. It has long been established that easements are limited to the purpose for which they are granted. McCauley v. Harris, 928 N.E.2d 309, 314 (Ind.Ct.App.2010), trans. denied. The dominant estate owner possesses all rights necessarily incident to the enjoyment of the easement. Id. The servient estate owner may use his property in any manner and for any purpose consistent with the enjoyment of the easement, and the dominant estate cannot interfere with the use. Id. It is the duty of the servient owner to permit the dominant owner to enjoy his easement without interference, and the owner of the dominant estate cannot subject the servient estate to extra burdens. Id.

When construing an instrument granting an easement, the trial court must ascertain and give effect to the intention of the parties, which is determined by proper construction of the language of the instrument from an examination of all the parts thereof. Drees Co. v. Thompson, 868 N.E.2d 32, 38 (Ind.Ct.App.2007), trans. denied. Dennis and Jeremy contend that the grant of the easement is unambiguous, and we also find no ambiguity. Therefore, we interpret the grant of the easement as a matter of law, and we apply the plain and ordinary meaning of its language. See McCauley, 928 N.E.2d at 314. Any doubt as to the construction of the language of the easement will ordinarily be construed in favor of the grantee. Id. at 315.

The Cochrans acquired their right to the easement when they purchased the Cochran property. The easement was originally conveyed by Frank and Ellen Transfer to Adam and Caroline Transfer in 1896 and states as follows:

A right of way of the width of Sixteen feet for all purposes of travel over land of said grantors situate in Dearborn County Indiana, and said way being particularly described as follows: to-wit: Beginning in the Southwest corner of the Northeast quarter of Section 9 Town 5, Range 3 West, and at the Southwest side of the new Highway ordered opened by the Board of Commissioners of said County at their December Session 1896 and at that point which is nearest to the mouth on the branch of the present private way of said Adam and Caroline Transfer; thence in a straight line Southwestwardly to intersect the mouth and end on the Branch of said present private road of said Adam and Caroline Transfer, said road to be and remain an open way and to be for the use of the land of said Adam and Caroline Transfer and when said road shall be permanently abandoned if it ever is their said land to revert to the grantor, This right of way run with the land.

Plaintiffs’ Ex. 2.

Here, we are presented with the grant of a “right of way of the width of Sixteen feet for all purposes of travel.” This language clearly reflects the grantors’ intent to create a general easement. The language does not limit the scope of the easement in any way. More particularly, the language does not limit the easement to ingress and egress, which has generally been found to prohibit parking. See, e.g., Kwolek v. Swickard, 944 N.E.2d 564, 572 (Ind.Ct.App.2011) (holding that language of instrument conferring “right-of-way over and across” and “intended to grant ... an ingress and egress to their property” granted an easement specifically limited in its scope to ingress and egress and did not include the right to use the right-of-way to park vehicles), trans. denied. In contrast, the easement in the instant case was written in the general terms of a right of way. A right of way easement created by a conveyance in general terms and without restrictions on its use is to be construed as broad enough to permit any use that is reasonably connected with the reasonable use of the land. McCauley, 928 N.E.2d at 315 (citing 28A C.J.S. Easements § 198 (2008)); see also Kwolek, 944 N.E.2d at 573-74 (discussing case of Appellate Court of Connecticut, Hagist v. Washburn, 16 Conn.App. 83, 546 A.2d 947 (1988), where appellate court held that instrument was written in general terms and, as such, parking was not prohibited by general grant of right-of-way). Thus, where the easement is a general right of way, parking is not prohibited, and the small claims court erred by concluding that the right of way easement “for all purposes of travel” granted in favor of Dennis and Sandy does not include the right to park within the boundaries of the easement.

II. DAMAGES

Jeremy also claims that the small claims court erred by not awarding him monetary damages for conversion when Dye caused his car to be towed. However, Jeremy points to no evidence showing that his car was parked completely on the easement when it was towed. Rather, the testimony from the small claims trial indicates that the car was parked partially off the easement on Hoffman’s land, and, as Jeremy concedes in his brief, “the location of the vehicle is critical” to this claim. Appellants’ Br. p. 18. Jeremy has not fulfilled his burden of showing prima facie error; therefore, we must affirm the small claims court on this issue. See Trinity, 848 N.E.2d at 1068.

CONCLUSION

Based upon the foregoing discussion and authorities, we conclude the small claims court erred in its determination that the grant of an easement did not include the right to park within the easement, and we reverse the decision of the small claims court as to that issue. Further, we conclude that Jeremy failed to show error with regard to the award of damages, and we affirm the small claims court’s decision not to award damages.

Affirmed in part and reversed in part.

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

      . Paul Vinson is part owner of the property but is not a party to this litigation.

      . Jeremy cites Indiana Code section 34-24-3-1(1) and (2) (1998) in support of his argument.


source: Caselaw Access Project

author: MATHIAS, Judge. VAIDIK, Judge,

license: Public Domain

text:
    Eldon E. HARMON, Appellant, v. STATE of Indiana, Appellee.
    No. 20A03-1110-CR-529.
    Court of Appeals of Indiana.
    June 28, 2012.

      Marielena Duerring, Duerring Law Offices, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Eldon E. Harmon (“Harmon”) was convicted in Elkhart Superior Court of Class A felony dealing in methamphetamine by manufacturing. Harmon appeals and raises two issues, one of which we find disposi-tive: whether the state presented sufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine. We reverse and remand with instructions.

Facts and Procedural History

On the evening of October 4, 2009, Cheyenne Fisher (“Fisher”) drove to Harmon’s residence in Elkhart County. Once there, Fisher asked Harmon whether he had any methamphetamine. Harmon responded that he did not have any methamphetamine, and Fisher stated that if he could obtain a box of pseudoephedrine, he could manufacture the drug. Harmon and Fisher then left Harmon’s residence and purchased three boxes of pseudoephedrine from three separate stores. Some time later, Harmon and Fisher drove to a friend’s house, where they manufactured methamphetamine in the garage. After successfully completing a batch of methamphetamine, Fisher gave Harmon some of the finished product and kept some for himself. Fisher then placed the items he and Harmon had used to manufacture the drug into the trunk of his car. In the early morning hours, Fisher and Harmon returned to Harmon’s residence where they both smoked methamphetamine.

Later that morning, Fisher’s girlfriend, Sonya Sandefur, showed up at Harmon’s residence and tried to persuade Fisher to come home with her. Sandefur detected an odor coming from the house that she associated with the manufacturing of methamphetamine, and Fisher admitted to her that he had been “cooking meth” the night before. Tr. p. 335. Sandefur became angry and called the police because she did not want Fisher to drive while under the influence of methamphetamine. While Sandefur was on the phone, Harmon and Fisher got into Fisher’s car and left. As he was driving away, Fisher spotted a police car. Fisher then pulled the car into a driveway, tossed the keys to Harmon, and took off running. An officer pursuing Fisher saw Fisher throw several plastic baggies. After apprehending Fisher, officers recovered the baggies and determined that two of them contained methamphetamine.

Police subsequently conducted a search of Fisher’s car. The police recovered numerous items used to manufacture and ingest methamphetamine from the trunk of the car, including three empty boxes of pseudoephedrine, cold packs, lithium battery strips, a jar of lye, a bottle of Liquid Fire, cut straws and pen casings, and aluminum foil. Officers also located four coffee filters that contained a white or pink powder, which field-tested positive for methamphetamine. Officers also found three vessels in the trunk, a red thermos, inside of which was a gallon-sized plastic freezer bag containing blue liquid, and two plastic bottles, one containing a blue liquid covering an off-white sludge, and one containing a clear liquid covering the same type of off-white sludge. Samples of the liquid taken from each vessel later tested positive for the presence of methamphetamine. As a result of these events, the State charged Harmon with Class A felony dealing in methamphetamine by manufacturing. The charge was elevated from a Class B felony based on the State’s allegation that Harmon had manufactured three grams or more of the drug.

At trial, Fisher testified that he and Harmon successfully manufactured 1.52 grams of methamphetamine, which they split between themselves, and then placed the items used to produce the methamphetamine in the trunk of his car. Fisher testified further that the methamphetamine he discarded while being pursued by the police was the amount remaining after he and Harmon smoked some of their finished product. The State presented evidence establishing that the total weight of the crystallized methamphetamine recovered from the scene was 1.34 grams. Specifically, the total weight of the methamphetamine in the plastic baggies Fisher threw while being pursued by police was 1.2 grams, and the total measured weight of the methamphetamine found on the coffee filters was 0.14 grams. Samples of liquid taken from each of the vessels described above were also admitted into evidence as State’s Exhibits 15, 16, and 17. The liquid samples were determined by an Indiana State Police Laboratory chemist to contain methamphetamine; however, the chemist did not determine the weights of the samples because it is the laboratory’s policy not to weigh liquids.

In order to establish the weight of the liquid samples and to satisfy the Class A felony element of three grams or more, the State was allowed, over Harmon’s objection, to have Indiana State Trooper Aaron Campbell (“Trooper Campbell”) conduct a demonstration comparing the weight of each sample to the weight of a vial containing three grams of artificial sweetener. Specifically, Trooper Campbell emptied three packets of sweetener, each of which was labeled with a weight of one gram, into a vial similar to those containing the samples of liquid methamphetamine. The vial containing the sweetener was introduced into evidence for demonstrative purposes as State’s Exhibit 39A.

Trooper Campbell then held State’s Exhibit 39A in one hand and State’s Exhibit 15 in the other hand and testified that the vials were of approximately equal weight. He repeated this process of comparison with State’s Exhibits 16 and 17, and testified that each of them weighed approximately the same as State’s Exhibit 39A. He testified further that the samples of liquid methamphetamine base admitted into evidence at trial were only a fraction of the liquid contained in the vessels. Trooper Campbell indicated that the sample taken from the thermos was a small portion of the liquid it contained, and he testified further that he could have taken ten to twenty samples of comparable size from each of the two plastic bottles before emptying them. Photos of the reaction vessels as they appeared on the date they were discovered were admitted into evidence at trial, but the vessels and their remaining contents were destroyed prior to trial due to safety concerns arising from the volatility of the chemicals involved in the manufacture of methamphetamine. After Trooper Campbell finished testifying, the members of the jury were permitted to examine the vials.

At the conclusion of the trial, the jury found Harmon guilty as charged. Harmon was sentenced to forty years, with thirty years executed and ten years suspended to probation. Harmon now appeals.

Discussion and Decision

Harmon contends that the State presented insufficient evidence to support his conviction for Class A felony dealing in methamphetamine. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind.Ct.App.2009). Instead, we consider only the evidence supporting the conviction and the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt, then the verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.Ct.App.2008).

Indiana Code section 35^18^4-1.1(a) provides that a person who knowingly or intentionally manufactures pure or adulterated methamphetamine is guilty of dealing in methamphetamine, a Class B felony. However, the offense is elevated to a Class A felony “if the amount of the drug involved weighs three (3) grams or more.” Ind.Code § 35-48-4-l.l(b)(l). Thus, the weight of the drugs is an essential element of Harmon’s Class A felony conviction.

On appeal, Harmon does not dispute that he knowingly or intentionally manufactured methamphetamine, a B felony offense with a range of possible sentences between six and twenty years. Harmon only disputes whether the State presented sufficient evidence to establish the weight element of the Class A felony offense, which carries a range of possible sentences between twenty and fifty years. Specifically, Harmon notes that because the crystallized methamphetamine introduced into evidence at trial weighed only 1.34 grams, the State was required to present evidence establishing that Harmon manufactured another 1.66 grams of the drug. According to Harmon, because the State did not accurately establish the weight of the liquid methamphetamine base found in the trunk of Fisher’s car, the State failed to prove that the total weight of the drug was at least three grams.

Our supreme court addressed the manner in which the State may prove the weight element of a drug offense in Halsema v. State, 823 N.E.2d 668 (Ind.2005). In Halsema, the defendants were charged with several drug offenses, including Class A felony possession of three grams of methamphetamine within one thousand feet of a school. Id. at 672-73. The State introduced no evidence at trial to establish the weight of the methamphetamine at issue, but argued on appeal that the jurors were able to examine the drugs and use their common sense and experience to determine whether the drugs weighed at least three grams.

Our supreme court disagreed, reasoning that while the jury may rely on its collective common sense and knowledge acquired through everyday experience, a juror’s ability to determine the existence of a fact based on his or her common sense and experience is not unlimited. Id. at 673-74. The court reasoned further that a jury may not infer the existence of a fact based solely on its in-court observations where the jury does not possess the knowledge or expertise necessary to make that inference. Id. at 674. The court went on to hold that “we are not persuaded that the weight of a given quantity of drugs, especially when expressed in a metric unit of measurement, is a matter of general knowledge and. expertise.” Id. Rather, the court held that the matter of the weight of a given quantity of drugs is familiar only to those.who regularly use or deal in the drug, those who enforce laws against it, or those who “ ‘have developed an acute ability to assess the weight of objects down to the ounce[,]’ ” and that the “ ‘average juror does not fall into any of these categories.’ ” Id. (quoting State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24, 28 (1994)). Ultimately, the court held that the State may establish the weight element of a drug offense in one of two ways: (1) by offering evidence of the actual, measured weight of the drugs, or (2) by demonstrating that the quantity of the drugs is so large as to permit a reasonable inference that the element of weight has been established. Id.

Here, the State presented no forensic evidence establishing the actual, measured weight of Exhibits 15, 16, or 17, or the remaining contents of the three vessels. Instead, the State relied on Trooper Cambpell’s in-court demonstration, in which Trooper Campbell compared the weight of Exhibit 39A, a vial holding the contents of three packets of artificial sweetener, to the weights of Exhibits 15, 16, and 17. Trooper Campbell testified that he believed each vial containing liquid methamphetamine base weighed approximately the same as the vial containing the sweetener, and the members of the jury were permitted to handle the vials and conduct their own comparisons.

This evidence was inadequate to establish the “actual, measured weight” of the vials. See Halsema, 823 N.E.2d at 674. First, as Harmon points out, although the labels on the sweetener packets apparently indicated that their contents weighed one gram, the State presented no evidence to establish the accuracy of the labels. And even if we assume that the sweetener packets were accurately labeled, we cannot conclude that either Trooper Campbell or the members of the jury were physically able to gauge the weight of the vial containing the sweetener versus the weight of the vials containing liquid methamphetamine base with sufficient accuracy to constitute proof beyond a reasonable doubt. As Harmon notes, Trooper Campbell and the jury were essentially permitted to act as “human scales” to determine the weight of the samples of liquid methamphetamine base—and there is simply no way to assess the accuracy of their conclusions. Moreover, Trooper Campbell was unable to testify that Exhibits 15, 16, and 17 each weighed precisely the same as Exhibit 39A. Rather, he indicated that Exhibit 15 weighed “probably close to the same” as Exhibit 89A, that Exhibits 16 and 39A were “approximately” the same weight, and Exhibits 17 and 39A “compared in weight.” Tr. p. 492. For all of these reasons, we hold that the State presented insufficient evidence to constitute proof beyond a reasonable doubt of the “actual, measured weight” of the liquid methamphetamine base. See Halsema, 823 N.E.2d at 674.

Nor can we conclude that the State introduced sufficient evidence to establish that the quantity of liquid methamphetamine base was so large as to permit a reasonable inference that the weight element of the charge had been established. See id. We acknowledge that Trooper Campbell testified that the vessels recovered from the trunk of Fisher’s car contained far more liquid methamphetamine base than that contained in Exhibits 15,16, and 17—indeed, Trooper Campbell indicated that the sample taken from the thermos was only a “small portion” of the liquid it contained, and that he could have taken ten to twenty more samples from each of the two plastic bottles before draining them. Tr. pp. 489-91. But it should be noted that the samples contained in Exhibits 15, 16, and 17 are quite small; photographs of the exhibits show that each vial is less than half full. Accordingly, the fact that Trooper Campbell could have taken many more samples of comparable size does not necessarily establish that the vessels contained an especially large amount of methamphetamine base.

Nor do the photographs of the vessels introduced into evidence at trial support a conclusion that the amount of liquid methamphetamine was so great as to permit a reasonable inference that the weight element of the offense had been satisfied. State’s Exhibit 38 depicts the two plastic bottles recovered from the trunk of Fisher’s car. The bottles are the same size, and appear to be beverage containers. Both bottles are approximately half-full. The contents of both bottles consist of roughly equal portions of white or off-white powdery sludge and clear or blue liquid. State’s Exhibit 39 depicts the thermos. The thermos is opaque, and part of a plastic freezer bag can be seen protruding from its top. However, due to the angle of the photograph, it is impossible to tell how much (if any) liquid the thermos and/or bag contains.

We acknowledge that in Halsema, our supreme court gave virtually no guidance as to just how much of a drug is required to establish that the quantity is large enough to permit a reasonable inference that the weight element of a drug offense has been satisfied absent evidence of the drug’s actual, measured weight. Although we decline to set forth a general rule concerning the threshold amount required to permit such an inference, we are not satisfied that the threshold was met here. Because the State failed to present evidence of the actual, measured weight of the liquid methamphetamine base or to demonstrate that the quantity of the liquid was so large as to permit a reasonable inference that the weight element of the offense had been met, pursuant to our supreme court’s decision in Halsema, we conclude that the evidence is insufficient to support Harmon’s Class A felony conviction.

The sole basis for elevating Harmon’s offense from a Class B felony to a Class A felony was the weight of the drug. That is, to support the elevation, the State was required to prove beyond a reasonable doubt that Harmon manufactured at least three grams of methamphetamine. The General Assembly’s insertion of a weight requirement into the Class A felony methamphetamine manufacturing statute requires the State to prove the weight of the drug with precision. But here, the State used an unreliable method to establish the weight element of the Class A felony offense. We acknowledge that, for reasons that are not readily apparent, the State Police Laboratory has a policy against weighing liquids. But there were other, scientific ways the State could have established the actual, measured weight of the samples of liquid methamphetamine base, such as conducting a courtroom demonstration using a balance or scale. Allowing Trooper Campbell and the jury to act as “human scales” was simply not good enough to constitute proof beyond a reasonable doubt. We believe that allowing the State to rely on such imprecise methods to establish the essential element necessary to elevate Harmon’s offense from a Class B to a Class A felony, thereby increasing his maximum possible sentence by thirty years, would be fundamentally unfair and undermine public confidence in our criminal justice system. See Ind.Code § 35-50-2-4 (providing that the maximum sentence for a Class A felony is fifty years); Ind.Code § 35-50-2-5 (providing that the maximum sentence for a Class B felony is twenty years).

Finally, we address the State’s argument that although police only recovered 1.34 grams of crystallized methamphetamine, based on the evidence presented at trial, the jury could have reasonably inferred that Harmon and Fisher’s manufacturing activities yielded more than three grams of the finished product. According to the State, the following evidence, when taken together, supports such an inference: (1) Fisher’s testimony that he and Harmon used one box of pseudoephedrine to-manufacture 1.52 grams of methamphetamine, (2) the evidence that Fisher and Harmon actually purchased and used three boxes of pseudoephedrine, (3) Fisher’s admission that he and Harmon conducted “two cooks” of methamphetamine, and (4) the discovery of more than one reaction vessel in the trunk of Fisher’s car. According to the State, this evidence supports a reasonable inference that each “cook” must have yielded 1.52 grams of methamphetamine, more than enough to satisfy the three-gram threshold necessary to support a Class A felony conviction. We disagree.

As a general matter, a conviction may rest on circumstantial evidence alone. See Gambill v. State, 675 N.E.2d 668, 674 (Ind.1996). But, as we explained above, in Halsema, our supreme court held that the weight element of a drug offense may be established in one of two ways: either by admitting evidence of the actual, measured weight of the drug, or by demonstrating that the amount of drugs is so large as to permit a reasonable inference that the weight element has been satisfied. See Halsema, 823 N.E.2d at 674. We have already concluded that the State presented insufficient evidence to satisfy either standard with respect to the liquid methamphetamine base. The State’s arguments concerning the amount of drugs it believes Harmon and Fisher could have or must have manufactured are likewise insufficient under Halsema.

Moreover, we believe that the State’s inference that Harmon must have manufactured more than three grams of crystallized methamphetamine stretches reason beyond its breaking point. At oral argument, the State made much of Fisher’s testimony that he and Harmon used one box of pseudoephedrine to produce 1.52 grams of methamphetamine and that they carried out two methamphetamine cooks. The State relied on this testimony to argue that each cook must have yielded 1.52 grams. But the State misconstrues Fisher’s testimony. During trial, Fisher and the prosecutor engaged in the following exchange:

Q: How many cooks did you do that night?
A: Just one.
Q: But you indicated that both of the reactionary vessels in your trunk were from that night.
A: Yes.
Q: And there were two of them.[]
A: Yes.
Q: But you only cooked once.
A: Yeah.
Q: Where did the other reactionary vessel come from?
A: Just cooking both at the same time.
Q: Okay. So you did two cooks that night.
A: If you want to call it two cooks.
Q: So there were two reactionary vessels?
A: Yes.

Tr. pp. 364-65 (emphasis added).

It is clear from the above testimony that Fisher was initially referring to the entire methamphetamine manufacturing transaction as a single “cook,” which yielded 1.52 grams of the drug. It was the prosecutor who referred to each' individual reaction vessel as a separate cook, and Fisher merely assented to the prosecutor’s characterization. But this does not change Fisher’s testimony that he and Harmon only used one box of pseudoephedrine and the total yield of methamphetamine was 1.52 grams. Indeed, when asked whether he “only produced 1.5 grams,” Fisher responded affirmatively. Tr. p. 428. Whatever the import of the discovery of two additional empty pseudoephedrine boxes in the trunk of the car, Fisher’s testimony cannot be reasonably understood to support a conclusion that the total yield of finished methamphetamine was at least three grams.

And even if we assume that Fisher’s testimony could support a reasonable inference that the 1.52 grams of methamphetamine he testified to splitting with Harmon was the product of only one of the reaction vessels, there is no evidence or testimony establishing the weight of any methamphetamine derived from any other reaction vessel or indicating that using the additional pseudoephedrine in other reaction vessels would necessarily yield the same or a similar amount of methamphetamine. Any such conclusion on the part of the jury would be pure speculation. For all of these reasons, we conclude that the State’s string of inferences is simply too tenuous to satisfy its burden of proof beyond a reasonable doubt with respect to the weight element of the Class A felony charge.

Notwithstanding the State’s failure to present sufficient evidence to prove Class A felony dealing in methamphetamine, we note that the jury was also instructed on the lesser-included offense of Class B felony dealing in methamphetamine. Specifically, the jury was instructed as follows:

If you find that the State proved beyond a reasonable doubt that the defendant knowingly manufactured methamphetamine and that the amount of the drug involved weighed three (3) grams or more, you should find the defendant guilty of Dealing in Methamphetamine, a Class A felony. If you find that the State of Indiana proved beyond a reasonable doubt that the defendant knowingly manufactured methamphetamine but that amount of the drug involved weighed less than three (3) grams, you should find the defendant guilty of Dealing in Methamphetamine, a Class B felony.

Tr. p. 532. The only difference between the Class A and the Class B felony offenses is that in order to prove the Class A felony, the State must prove that the weight of the drugs was at least three grams. Accordingly, in finding Harmon guilty of the Class A felony, the jury necessarily concluded that Harmon committed the Class B felony. The evidence presented at trial was clearly sufficient to support a Class B felony conviction, and Harmon concedes as much on appeal. See Appellant’s Br. at 9-10 (“The Class A felony conviction must be vacated and this cause should be remanded to the trial court with instructions to enter a conviction for a Class B felony and to re-sentence Harmon accordingly.”). We therefore reverse Harmon’s conviction for Class A felony dealing in methamphetamine and remand to the trial court with instructions to enter a conviction for Class B felony dealing in methamphetamine and to resentence Harmon accordingly.

Reversed and remanded with instructions.

VAIDIK, J., concurs in result with opinion.

BARNES, J., concurs.

VAIDIK, Judge,

concurring in result.

I concur in full with the majority opinion that the State presented insufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine.

I write separately to address the issues with determining generally the amount of methamphetamine that is involved in the manufacturing in a particular case. When the manufacturing process is complete and the methamphetamine is in either a pure or adulterated state, there is not an issue in determining the weight; the methamphetamine is in its final form and the drug can easily be weighed.

Issues arise, however, when the manufacturing process has not been completed and the methamphetamine is still mixed in with liquid ingredients. Varying methods have been used to determine the actual weight of the methamphetamine produced in this situation; one of those methods is weighing the solid methamphetamine and the liquid ingredients used in the manufacturing process together. Hundley v. State, 951 N.E.2d 575 (Ind.Ct.App.2011), trans. denied; Traylor v. State, 817 N.E.2d 611 (Ind.Ct.App.2004), trans. denied. Another method is determining the amount of methamphetamine that will be produced using a conversion ratio based on the amount of ephedrine or pseudoephed-rine that is present. Halferty v. State, 930 N.E.2d 1149, 1153 (Ind.Ct.App.2010), trans. denied,

The majority assumes, but does not hold, that the entire weight of the liquid can be considered when determining the weight of the methamphetamine that Harmon manufactured. Op. p. 677-78 n.2. I find the method of measuring the weight of the methamphetamine and the liquid together to be inherently problematic and to require ascertaining the legislative intent behind the manufacturing-of-methamphetamine statute. I conclude that the legislature did not intend for the liquid byproduct of the manufacturing process to be included in the measurement of the weight of methamphetamine involved.

Indiana Code section 35^8-4-1.1 delineates the different classes of felonies based on the weight of the methamphetamine involved, and the dividing line between a Class A and a Class B felony is three grams. The statute states:

(a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
methamphetamine, pure or adulterated; ... commits dealing in methamphetamine, a Class B felony, except as provided in subsection (b).
(b) The offense is a Class A felony if:
(1) The amount of the drug involved weighs three (3) grams or more;....

Ind.Code § 35-48-4-1.1. The language of the statute itself provides the best evidence of legislative intent, and we strive to give the words in the statute their plain and ordinary meaning. Brown v. State, 912 N.E.2d 881, 894 (Ind.Ct.App.2009).

Using the word “grams” as the unit of measurement in the statute indicates that it is the solid drug that is intended to be measured, not the liquid that is used to manufacture the drug. As the majority indicates, grams are a unit of mass whereas it is a more common practice to measure liquids in units of volume. Op. p. 680 n.3; see, e.g., Using Metric Units and Symbols, Northern Michigan University— Computing for Teachers, http://ellerbruch. nmu.edu/classes/es255w02/cs255students/ MAGNUSO/P9/common.pdf (last visited June 11, 2012) (“It takes about 29 grams to equal one dry ounce.... [A liter] is basically a fluid volume unit as is the smaller metric unit called the milliliter (ml).”) (emphases added).

Also, construing the statute in a way that would include the liquid along with the methamphetamine would defeat .the purpose of delineating Class A and Class B felonies at three grams, as it could potentially eviscerate the Class B felony manufacturing-of-methamphetamine charge. If the methamphetamine was found in the middle of the manufacturing process and the weight of the liquid was included in the total weight of the drug, there would never be an instance where the amount of methamphetamine would be less than three grams. The legislature surely did not mean to create a statute that could never be applicable. Additionally, Class A or Class B felony status would depend on the accident of what stage in the manufacturing process the police found the methamphetamine. This cannot be what was intended.

The statute also includes “pure or adulterated” methamphetamine when measuring the amount of methamphetamine involved in the manufacturing process. Another panel of this Court has found that both the liquid and solid should be considered when determining the weight of the drug being manufactured. Hundley, 951 N.E.2d at 581. In Hundley, this Court held that when “the intermediate step is so near the end of the manufacturing process that the final product is present in the chemical compound, that substance qualifies as an ‘adulterated drug’ for purposes of our manufacturing statutes.’ ” Id. I do not agree.

“Adulterate” is defined as “[t]o debase or make impure by adding a foreign or inferior substance.” Black’s Law Dictionary 52 (9th ed. 2009). I do not think this definition is meant to include a drug in the middle of the manufacturing process; it is only meant to refer to a debased final product. So, to add a substance after the manufacturing process is to adulterate a substance, but products used in the manufacturing process do not adulterate the byproduct produced. Accordingly, I do not believe that the legislature intended the liquid ingredients used to manufacture methamphetamine to be included in the calculation of the amount of drugs involved.

A more appropriate method for determining the amount of methamphetamine a person is manufacturing is using a conversion ratio based on the amount of.ephedrine or pseudoephedrine that is present. This method uses a scientifically determined formula to calculate how much methamphetamine would be produced based on the amount of ephedrine or pseu-doephedrine that is used in manufacturing. Using a conversion ratio allows for a reliable measure of the weight of the drug that will be produced without adding in the additional weight of any precursors that are still present in the manufacturing process when the methamphetamine is discovered.

Other jurisdictions around the country have adopted this method, and expert witnesses are employed to apply the conversion ratio due to its case-by-case variability. See, e.g., People v. Wilke, 367 Ill.App.3d 130, 304 Ill.Dec. 933, 854 N.E.2d 275, 278 (2006) (“an agent for the United States Drug Enforcement Administration ... would testify to a mathematical formula used for determining how much methamphetamine could be produced with a given amount of precursor pseudoephed-riñe.”); Hill v. State, 161 S.W.3d 771, 777 (Tex.App.2005) (“[Agent from Deep East Texas Regional Narcotics Task Force] replied that by using the amounts listed on each package, he calculated a total of 5,760 milligrams of pseudoephedrine. He further testified that such an amount of pseu-doephedrine would yield approximately 3.5 grams of methamphetamine after completion of the ‘cooking process.’”); State v. Camerer, 29 S.W.3d 422, 424 (Mo.Ct.App.2000) (“The criminalist explained how pseudoephedrine and anhydrous ammonia are used to manufacture methamphetamine. One gram of pseudoephedrine normally yields one gram of methamphetamine.”). I believe this is the best method to use to determine yield when the methamphetamine is in the middle of the manufacturing process. The State recognized in its oral argument the existence of the conversion ratio. As an alternative argument, the State contends that from the amount of ephedrine used in the manufacturing of the completed product, the jury could extrapolate as to how much methamphetamine the unfinished manufacturing process would produce. I do not agree with the State.

It is essential that an expert witness be present at trial to testify to the conversion ratio and how it applies in each case. As we indicated in Halferty, a conversion ratio between ephedrine/pseudoephedrine to methamphetamine can be used, but it can change “depending on the cooking process, on whether pill binders are stripped from the ephedrine/pseudoephedrine, and on the person who is ‘cooking’ the methamphetamine.” 930 N.E.2d at 1153. With so many ingredients involved in the manufacturing of methamphetamine and so many different factors that can alter how those ingredients affect the yield, determining yield is not a task that should be undertaken by a lay person. When the difference of such a small amount can have such a profound effect on a potential sentence, the trial court needs to be sure that the yield is accurate.

Therefore, while I agree with the majority that there is insufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine, I do not agree with the assumption that my colleagues make about the way in which the yield of methamphetamine can be measured. I would find that only the finished product, pure or adulterated, can be considered when determining the amount of the drug that is being manufactured or that a conversion ratio and an expert witness should be used when the manufacturing process is not complete and the yield is uncertain.

      . We heard oral argument on this cause on May 21, 2012, at Garrett High School in Garrett, Indiana before an audience of students, faculty, and members of the DeKalb County Bar Association. We commend counsel for their superb oral advocacy, and we thank the students and school personnel for their hospitality. We also thank the DeKalb County Bar Association for hosting a pre-argument luncheon at the Auburn Cord Dues-enberg Museum in Auburn, Indiana. Finally, we thank all audience members for their attention and thoughtful post-argument questions concerning Indiana's judicial system.

      . The evidence presented at trial established that the liquid methamphetamine base was not yet in consumable form; rather, it was an intermediate substance created during the process of manufacturing methamphetamine. At that particular step in the process, the liquid was a mixture of methamphetamine and other substances used to malte the drug, such as ether and Coleman fuel. Before the drug could be ingested, it would need to go through another step in the manufacturing process in order to remove these substances and crystallize the drug into its consumable form. For the purposes of this opinion, we will assume (but we do not hold) that the entire weight of the liquid, and not just its pure methamphetamine content, may be considered in determining whether Harmon manufactured at least three grams of "pure or adulterated” methamphetamine. See Ind. Code § 35-48-4-1.1 (prohibiting the manufacture of "pure or adulterated” methamphetamine); Hundley v. State, 951 N.E.2d 575, 581 (Ind.Ct.App.2011) (holding that where an "intermediate step [in the methamphetamine manufacturing process] is so near the end of the manufacturing process that the final product is present in the chemical compound, that substance qualifies as an 'adulterated drug’ for purposes of our manufacturing statutes”), trans. denied.

      . We further note, as discussed during oral argument, that there may be some question as to whether grams are an appropriate unit of measurement for liquids, in the first instance. Grams are a unit of mass and, of course, both solids and liquids have mass. However, the more common practice is to measure liquids in units of volume. Given the fact that reaction vessels containing liquid methamphetamine base, like those at issue in this case, are often found in methamphetamine laboratories, it may be prudent for our General Assembly to consider incorporating an alternative, volume-based measurement for such liquids into the methamphetamine manufacturing statutes.

      . At trial, it appears that the State only referred to the two plastic beverage bottles containing the powdery sludge and liquid methamphetamine base as "reaction vessels." At oral argument, the State did not seem to draw the same distinction between the plastic bot-ties and the thermos. Regardless of whether there were two or three reaction vessels, we conclude that the evidence is insufficient to support an inference that Harmon manufactured at least three grams of finished, crystallized methamphetamine.

      . At first blush, there does not appear to be a split in our Court regarding how to measure the methamphetamine involved; both methods are acceptable. But, if the measurement of the methamphetamine involved can include the liquid, then the weight of the drug will always be greater than three grams and the conversion-ratio method will never be used.

      . One exception would be when the amount of the drugs being manufactured is so large as to permit a reasonable inference that the element of weight has been established. See Halsema v. State, 823 N.E.2d 668 (Ind.2005).


author: BAILEY, Judge.

text:
    Andrew Joseph WORTKOETTER, Appellant-Respondent, v. Amy Jean WORTKOETTER, Appellee-Petitioner.
    No. 30A01-1111-DR-548.
    Court of Appeals of Indiana.
    July 5, 2012.

      Adam G. Forrest, Boston Bever Klinge Cross & Chidester, Richmond, IN, Attorney for Appellant.
    Thomas E.Q. Williams, Greenfield, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Andrew J. Wortkoetter (“Husband”) appeals from the denial of his motion to correct error, which disputed the trial court’s property division following the dissolution of his marriage to Amy J. Wort-koetter (“Wife”).

We affirm with instruction.

Issues

Husband raises two issues, which we restate as:

1. Whether the trial court abused its discretion when it declined to award him his Individual Retirement Account (“IRA”) exclusively and thereby deviate from the statutory presumption for an equal division of marital property; and
2. Whether the trial court’s order of payment from Husband to Wife is clearly erroneous.

Facts and Procedural History

The parties were married on July 11, 1991, and had two children. In 1990, before the marriage, Husband rolled over approximately $2,000 from the State’s Public Employees’ Retirement Fund into an Individual Retirement Account (“IRA”). On March 31, 2011, the account was worth $28,007.

On April 5, 2011, Wife filed a Petition for Dissolution of Marriage. Based upon the parties’ agreements, the trial court entered a provisional order on May 5, 2011. In an order dated August 29, 2011, the court dissolved the marriage and established child custody and child support. A final hearing on property distribution was held on September 2, 2011, at which time Husband and Wife each testified and proffered one exhibit in support of their respective settlement positions. Regarding his IRA, Husband asked the court to “set that off aside as a non-marital asset.” (Tr. at 33.)

On September 8, 2011, the trial court entered its Order on Property Settlement, specifically finding that the IRA was part of the marital estate and dividing the marital property equally. The court prepared an asset and debt ledger to effect a proper equalization of marital assets and decreed: ‘Wife shall have a judgment for the equalization sum of $12,664.” (App. at 14.) The court also ordered Husband to pay the balance of Wife’s attorney fees in the amount of $1,400.

Proceeding pro se, Husband filed what was deemed a motion to correct error. Wife, also pro se, responded. A hearing was held on October 21, 2011, after which the trial court denied Husband’s motion. Husband now appeals.

Discussion and Decision

Standard of Review

Husband first challenges the equal division of marital property. Technically, however, he appeals from the denial of his motion to correct error. This Court reviews a trial court’s ruling on a motion to correct error under an abuse of discretion standard. Zaremba v. Nevarez, 898 N.E.2d 459, 463 (Ind.Ct.App.2008). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.

The motion to correct error addressed the court’s division of marital property, a matter committed to the sound discretion of the trial court. Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind.Ct.App.2008). A party challenging the trial court’s division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute. Id. Even if the facts and reasonable inferences permit a conclusion different from that reached by the trial court, we will not substitute our judgment for that of the trial court unless its decision is clearly against the logic and effect of the facts and circumstances before it. Perkins v. Harding, 836 N.E.2d 295, 299 (Ind.Ct.App.2005). We consider only the evidence favorable to the judgment and we do not reweigh the evidence or reassess witness credibility. Id. In addition, we will not set aside the findings or judgment unless clearly erroneous. Elkins v. Elkins, 763 N.E.2d 482, 484 (Ind.Ct.App.2002).

Issue One: Property Division

On appeal, Husband concedes that all property, including his IRA, is part of the marital estate, but he disputes the court’s decision to equally divide that estate. Indiana Code § 31-15-7-5, which governs the division of martial property, provides in relevant part:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable: (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
*****
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property....

Here, Husband insists that he rebutted the statutory presumption for equal division of marital property. He points out that the IRA was owned by him individually before the marriage, was acquired without any assistance from Wife, was never commingled with other marital property, and was never treated as marital property by the parties. Even the ten dollar annual maintenance fee was deducted from the account itself rather than being paid with marital funds. Thus, he argues, his IRA should have been allocated exclusively to him, with the remaining property equally divided between the parties.

Husband cites to Maxwell v. Maxwell, 850 N.E.2d 969 (Ind.Ct.App.2006), trans. denied, where the dissolution court effected an unequal division of marital assets by awarding the husband stock and an IRA inherited by him after he had moved out of the marital residence. Thus, the husband was in possession of the inheritance for only a few months of the parties’ marriage that lasted over thirty years. We held that the court did not abuse its discretion when it “set aside” the stock and IRA exclusively to the husband. Id. at 974. Husband also relies upon Castaneda v. Castaneda, 615 N.E.2d 467 (Ind.Ct.App.1993), where this Court concluded that the dissolution court did not abuse its discretion when it allocated to the wife all of an inheritance that she acquired during the course of her marriage. In Castaneda, the wife kept the funds in her name alone, husband did nothing to accumulate the funds, and the account was not treated as marital property or commingled with other assets. Id. at 470.

In both Maxwell and Castaneda, however, the trial courts exercised broad discretion when distributing marital property and, applying our standard of review, we affirmed those decisions. As with the parties challenging the trial courts’ decisions in those cases, Husband in this case must overcome a strong presumption that the trial court complied with the statute, considered Husband’s evidence, and still concluded that an equal division of property was just. See Gaskell v. Gaskell, 900 N.E.2d 13, 19 (Ind.Ct.App.2009). This is one of the strongest presumptions applicable to our consideration on appeal. Id.

Here, although the IRA was established by Husband before the marriage, most of the appreciation occurred during the marriage. Cf. Wanner, 888 N.E.2d at 263 (observing that, even where the trial court properly sets aside the value of premarital assets to one spouse, the appreciation over the course of the marriage is a divisible marital asset). Additionally, the trial court was not required to set aside to Husband the value of the IRA, even though Wife made no contribution to its acquisition. See In re Marriage of Nickels, 834 N.E.2d 1091, 1098 (Ind.Ct.App.2005). Rather, the trial court was required to follow the statutory presumption absent evidence that an equal division would not be just and reasonable. Doyle v. Doyle, 756 N.E.2d 576, 578 (Ind.Ct.App.2001). We conclude that the court acted within its discretion when, in accordance with the statutory presumption, it declined to award Husband his IRA exclusively and, instead, equally divided all property of the parties.

Issue Two: Judgment

Husband also asserts that the trial court’s computation of Wife’s equalization payment is clearly erroneous. His assertion is based upon the following excerpt from the order on property settlement:

Husband’s Net Without Equalization $20,771
Wife’s Net Without Equalization $ 4,557
Disparity is total of nets ($25328) divided by 2 which is $12,664. The difference between the equalization netting and Wife’s Net amounts to $8107. Thus equalization judgment shall enter for wife in the amount of $12,664[.] IT IS THEREFORE ORDERED ADJUDGED AND DECREED that Wife shall have a judgment for the equalization sum of $12,664[.]

(App. at 13-14.)

Here, each party was to receive $12,664 in assets. Husband had in his possession net assets valued at $20,771; Wife possessed net assets of $4,557, for a total of $25,328. Thus, Husband owed Wife $12,664 less $4,557, or $8,107. Although Wife contends that there is no error in the judgment, she agrees that she is owed $8,107 from Husband.

Indiana Trial Rule 58(B)(4) requires the judgment to contain “[a] statement in imperative form which clearly and concisely sets forth the relief granted, any alteration of status, any right declared, or any act to be done or not done.” Generally, the rights of the parties are adjudged by the decretal portion of the judgment. Farley v. Farley, 157 Ind.App. 385, 392, 300 N.E.2d 375, 380 (1973). Thus, critical to a money judgment is that it be a certain and definite statement of the amount due. Henderson v. Sneath Oil Co., 638 N.E.2d 798, 803 (Ind.Ct.App.1994).

While properly setting forth the “difference” as $8,147, the order at issue does not state in imperative form that Husband must pay that amount to Wife. Rather, the order awards Wife a sum of $12,664. As Wife agrees with the amount owed, in the interest of judicial economy and in accordance with Indiana Appellate Rule 66(C)(7), we order correction of the judgment to show an award of $8,107 in favor of Wife and instruct the trial court to amend its records accordingly.

Conclusion

The dissolution court did not abuse its discretion when it included Husband’s IRA in the marital estate and then equally divided that estate. Likewise, the court did not abuse its discretion in denying Husband’s motion to correct error on that basis. Because the court’s order does not clearly state the judgment amount in imperative form, we order correction of the judgment to show an award of $8,107 in favor of Wife and instruct the trial court to amend its records accordingly.

Affirmed with instruction.

ROBB, C.J., and MATHIAS, J., concur.

      . To support her position, Wife cites to two unpublished decisions from this Court. We remind counsel for Wife that, pursuant to Indiana Appellate Rule 65(D), "a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.”


author: BAKER, Judge.

text:
    Mark GAITHER, Appellant-Plaintiff, v. INDIANA DEPARTMENT OF CORRECTION, et al., Appellees-Defendants.
    No. 18A02-1111-MI-1073.
    Court of Appeals of Indiana.
    July 17, 2012.

      Ronald K. Smith, Muncie, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy'Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, the Plaintiff was convicted of two counts of child molesting. In 1999, the General Assembly enacted two statutes requiring that sex offenders on probation and/or parole be prohibited from living within 1,000 feet of a school. These statutes were enacted several years after the Plaintiff committed his offenses. Accordingly, Plaintiff contends that the residency restriction placed on him by the statutes violates the Ex Post Facto Clause contained in the Indiana Constitution.

Insofar as conditions of probation must reasonably relate to the offender’s rehabilitation arid the conditions of parole must reasonably relate to the person’s successful reintegration into the community, the trial court and/or parole board could have imposed the residency restriction in the absence of the statutes. Consequently, the residency restriction placed on the Plaintiff presents no ex post facto issue.

Appellant-plaintiff Mark Gaither appeals the trial court’s order on his Motion for Partial Summary Judgment, granting summary judgment in favor of appellees-defen-dants Indiana Department of Correction, et al. (DOC). Specifically, Gaither argues that the trial court erred by concluding that a probation rule prohibiting him from living within 1,000 feet of a school is permissible because the statute authorizing the rule was enacted several years after Gaither committed his offenses. Finding no error, we affirm the decision of the trial court.

FACTS

Between June 1, 1995, and August 6, 1996, Gaither committed the offenses of child molesting, and in August 2008, Gaither was convicted of class B felony child molesting and class C felony child molesting and sentenced to ten years of incarceration, with four years suspended to probation. Gaither was released from incarceration and placed on parole and probation in April 2010. Gaither’s probation term is for four years, but his parole term expired in July 2011.

As a condition of both probation and parole, Gaither was prohibited from residing within 1,000 feet of school property. Gaither owns property that is within 1,000 feet of Northside Middle School in Muncie and wishes to reside at this address. Gaither and his spouse have owned the property for over twenty years.

In August 2010, Gaither filed a complaint seeking, among other things, to have the trial court hold the residency restriction within Indiana Code section 35^12-4-11 unconstitutional as applied to him, and further enjoin the Parole Board and the Delaware County Probation Office from imposing any residency restrictions.

In February 2011, Gaither filed a motion for partial summary judgment on these claims. The DOC conceded that Indiana Code section 354Í2-4-11, which imposes criminal penalties on certain sex offenders for violations of the statute, was unconstitutional as applied to Gaither based upon our Supreme Court’s holding in State v. Pollard, 908 N.E.2d 1145 (Ind.2009). The DOC, however, argued that the same was not true for the probation and parole conditions restricting.Gaither’s ability to reside within 1,000 feet of a school.

On April 28, 2011, the trial court held a hearing on Gaither’s motion for partial summary judgment. Following the hearing, the trial court issued an order concluding that Gaither could not be criminally prosecuted under Indiana Code section 35-42-4-11 for living within 1,000 feet of school property. Nevertheless, the trial court cited to our Supreme Court’s decision in Hevner v. State, 919 N.E.2d 109 (Ind.2010), for the proposition that trial courts enjoy a wide latitude in fashioning terms of a defendant’s probation and that because the trial court could have imposed a residency restriction as a probation condition at the time Hevner committed the molesting offense, no ex post facto issue arose. The trial court analogized Hevner to the instant case and determined that “if Gaither had been arrested and prosecuted for these offenses in 1995 and 1996, the trial court judge at that time could have imposed these same residency restrictions on him as a probation condition.” Appellant’s App. p. 74.

Consequently, the trial court granted partial summary judgment in favor of Gaither, finding that the provisions of Indiana Code section 35-42-4-11 could not be enforced against Gaither based on his existing child molestation convictions. The trial court also granted partial summary judgment in favor of the DOC, finding that the condition of parole and probation restricting Gaither’s ability to reside within 1,000 feet of school property while on parole and probation, could lawfully be imposed. On November 10, 2011, the trial court issued an order directing final judgment for the DOC. Gaither now appeals.

DISCUSSION AND DECISION

I. Standard of Review

Gaither appeals from the trial court’s grant of summary judgment in favor of the DOC with respect to the residency restrictions imposed as a condition of parole and probation. Summary judgment is appropriate only where there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.2005); Ind. Trial Rule 56(C). An appellate court applies the same standard as the trial court when reviewing a motion for summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008). We view the designated evidence in the light most favorable to the nonmoving party. Id. at 608. Nevertheless, the party who lost a motion for summary judgment has the burden of persuading the appellate court that the trial court’s decision was erroneous. Ind. Republican State Comm. v. Slaymaker, 614 N.E.2d 981, 983 (Ind.Ct.App.1993).

II. Mootness

As an initial matter, Gaither notes that his term of parole expired in July 2011 and seems to only challenge the remaining probation condition restricting his residency. Indeed, the parole condition limiting Gaither’s residency no longer applies to him and is therefore moot.

Generally, an issue is moot and this Court lacks jurisdiction when no effective relief can be granted to the parties. Irwin R. Evens & Son, Inc. et al. v. Bd. of Indianapolis Airport Authority et al., 584 N.E.2d 576, 581 (Ind.Ct.App.1992). “However, even when the requested relief is unavailable, this court will review issues under an exception to the general rule when the case involves questions of great public importance.” Id.

In this case, whether a residency restriction can be a condition of a convicted child molester’s parole, when the statute authorizing the imposition of that condition was not in effect at the time he committed the offense is a question of great public importance. Furthermore, it is an issue that is capable of repetition but likely to evade review as defendants complete their parole before their cases ever reach the appellate court. See Horseman v. Keller, 841 N.E.2d 164, 170 (Ind.2006) (reaching the merits of a moot elections issue because it was “capable of repetition, yet evading review”). Moreover, because parole and probation conditions are viewed similarly by the courts, judicial efficiency suggests that they be addressed together.

III. Residency Restriction as a Condition of Probation and Parole

Gaither argues that a trial court may not impose a punitive condition of probation that is inconsistent with the ex post facto prohibition contained in the Indiana Constitution. Gaither maintains that the condition of his probation prohibiting him from living within 1,000 feet of a school, which prevents him from residing in the home he has owned for twenty-four years, violates this prohibition.

The Indiana Constitution provides that “[n]o ex post facto law ... shall ever be passed.” Ind. Const, art. 1, § 24. Our Supreme Court has stated that the “underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Hevner, 919 N.E.2d at 111.

As stated above, Gaither challenges a condition of his probation and parole. Probation is a criminal sanction where the convicted offender agrees to accept conditions upon his behavior in lieu of incarceration. Carswell v. State, 721 N.E.2d 1255, 1258 (Ind.Ct.App.1999). A trial court has broad discretion to impose conditions of probation, with the only limitation being that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. Id. The reviewing court is limited to considering whether the conditions imposed by the court on the accused aid in the furtherance of the goal of “assuring that the probation serves as a period of genuine rehabilitation and that the community is not harmed by a probationer being at large.” Fitzgerald v. State, 805 N.E.2d 857, 864 (Ind.Ct.App.2004). We will not set aside terms of probation unless the trial court abused its discretion. Collins v. State, 911 N.E.2d 700, 707 (Ind.Ct.App.2009).

Parole and probation conditions may be viewed together because “a person on probation occupies a status similar to that of a person on parole.” Carswell, 721 N.E.2d at 1262. The Indiana Parole Board is given authority to impose conditions beyond the standard conditions for a person on parole if the conditions are reasonably related to the parolee’s successful reintegration into the community and do not unduly restrict a fundamental right. Weiss v. Ind. Parole Bd., 838 N.E.2d 1048, 1051 (Ind.Ct.App.2005). “[T]he only practical difference between the two is that ‘probation’ relates to judicial action taken before the prison door is closed, whereas ‘parole’ relates to executive action taken after the door has closed on a convict.” Carswell, 721 N.E.2d at 1262.

In Hevner, a convicted sex offender challenged his requirement to register as a sex offender on the basis that such a requirement was an ex post facto violation under the Indiana Constitution. 919 N.E.2d at 110. Our Supreme Court held that Hevner was not required to register as a sex offender and, for the same reason, could not be subject to' prosecution for violating the statute that prevented him from residing within 1,000 feet from a school. Id. at 112-13.

Hevner also challenged the condition of his probation requiring that he not live within 1,000 feet of a school. Id. at 113. Our Supreme Court reached a different result on this issue, concluding that “having been convicted of ... a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that ‘have a reasonable relationship to the treatment of the accused and protection of the public.’” Id. (quoting Hale v. State, 888 N.E.2d 314, 319 (Ind.Ct.App.2008)).

Gaither attempts to distinguish Hevner on two grounds. The first one is somewhat convoluted; however, Gaither seems to argue that Carswell, a decision that the Hevner Court cited as support, was itself supported by a statute authorizing the probation rule. This statute was in effect when Hevner committed his offenses but not when Gaither committed his offenses. This argument is misplaced, inasmuch as the Hevner Court specifically held that because Hevner had been convicted of a sex offense, he was subject to conditions of probation that were reasonably related to his treatment and protection of the public, which included being prohibited from residing within 1,000 feet of a school. Hevner, 919 N.E.2d at 113. Thus, this argument fails.

Gaither also attempts to distinguish Hevner by highlighting the fact that he owned his home before he committed his offenses. Accordingly, Gaither claims that his probation condition restricting his residency is unduly restrictive on his property interests in his home.

First, the Hevner Court made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public.

Notwithstanding the above, when an offender claims that a probation condition is unduly intrusive on a constitutional right, the court must balance the following factors: (1) the purpose to be served by placing the offender on probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be afforded to those on probation;- and (3) the legitimate needs of law enforcement. Fitzgerald, 805 N.E.2d at 865.

Carswell is instructive in balancing these factors in the instant case. Carswell argued that a condition of his probation forbidding him from living within two blocks of a school, playground, or any area where children congregate was an “exaggerated response” to the State’s concerns. 721 N.E.2d at 1259. A panel of this Court disagreed, concluding that “[t]his type of condition is a protective measure for children who go to such places and it will assist Carswell in his rehabilitation.” Id. The panel reasoned that “[c]hild molesters molest children to whom they have access .... Conditions of probation that reduce the potential for access to children are reasonable.” Id.-

Moreover, probation conditions may impinge upon a probationer’s right to exercise an otherwise constitutionally protected right. Purdy v. State, 708 N.E.2d 20, 22 (Ind.Ct.App.1999) (stating that “probationers simply do not enjoy the freedoms to which ordinary citizens are entitled”).

Here, Gaither is a convicted child molester. Although limiting Gaither’s residency will not limit his access to all children, it will certainly reduce such access. And home ownership does not determine whether a condition restricting residency is permissible. Rather, to be permissible, the condition restricting residency must be reasonably related to the offender’s rehabilitation. And as discussed above, Indiana courts have held that prohibiting a sex offender from living within 1000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible. Consequently, Gaither’s argument fails, and we affirm the decision of the trial court.

.The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.


author: ROBB, Chief Judge.

text:
    Anthony W. BROWNING, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 49A05-1110-CR-540.
    Court of Appeals of Indiana.
    July 17, 2012.
    Robert D. King, Jr., The Law Office of Robert D. King. Jr., P.C., Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

After a jury trial, Anthony Browning was found guilty and convicted of five counts of child exploitation, all Class C felonies. Browning raises one issue for our review: whether sufficient evidence supports his convictions. Concluding the evidence is sufficient, we affirm.

Facts and Procedural History

In June 2010, Detective Darin Odier of the Indianapolis Metropolitan Police Department, who focuses on child pornography investigations, conducted an internet investigation in search of individuals possessing and sharing child pornography. By using a file-sharing program, Detective Odier finds suspicious files shared by others and then locates the computer sharing the files. To find the computer from which particular files were shared from, Detective Odier first determines the computer’s Internet Protocol (“IP”) address, which, at the very least, can locate the computer within a geographic area. To find the exact computer, Detective Odier traces the Global Unique Identifier (“GUID”), a thirty-two character identifier that functions as a computer fingerprint. Finally, Detective Odier is able to trace the files based on each file’s Secure Hash Algorithm (“SHA1”) value, which is a fixed-length identifier associated with one specific file or image.

On this particular occasion, he identified a computer sharing 1,638 files through Li-meWire, a file-sharing program, forty-two of which he deemed suspicious. Detective Odier downloaded some of these files. Four files contained photographs of the exposed genitalia of young girls, and one file contained a video of a young girl engaged in sexual intercourse. The filen-ames of the first two pictures included references to nine-year-old girls, the third referenced an eight-year-old “preteen girl” being raped and included the word “porn,” the fourth included references to a twelve-year-old girl and to child pornography, and the video’s filename referenced pedophilia. State’s Exhibits 3 through 7.

Detective Odier identified the computer as belonging to Browning based on the IP address and GUID. Detective Odier and other officers searched Browning’s home pursuant to a search warrant and obtained his laptop computer. The GUID on Browning’s laptop matched the GUID connected to the suspicious files Detective Odier found during his investigation. Examining the laptop, officers found the same files on Browning’s computer.

Police officers then took a statement from Browning, in which he stated he used LimeWire to download and share files, including pornography. He acknowledged that using a file-sharing program and having his own downloaded material stored in a shared folder would enable others to access and download the files, and although he stated he would delete child pornography whenever he downloaded it, he stated that if any child pornography was still on the computer it would be in his shared folder.

Browning was charged with five counts of child exploitation, all Class C felonies, and five counts of possession of child pornography. The State thereafter moved to dismiss the possession charges, and the trial court granted the State’s motion. A jury found Browning guilty of all five counts of child exploitation, and the trial court entered a judgment of conviction. Browning now appeals. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

Our standard of reviewing claims of sufficiency of the evidence is well settled. When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. We do not reweigh the evidence or assess witness credibility. We consider conflicting evidence most favorably to the trial court’s ruling. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. A conviction may be based upon circumstantial evidence alone.

Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010) (citations omitted), irons, denied.

II. Sufficiency of the Evidence

Indiana Code section 85-42-4-4(b) provides:

(b) A person who knowingly or intentionally:
(2) disseminates, exhibits to another person, offers to disseminate or exhibit to another person, or sends or brings into Indiana for dissemination or exhibition matter that depicts or describes sexual conduct by a child under eighteen (18) years of age; ...
commits child exploitation, a Class C felony.

Browning argues the State presented insufficient evidence that he knowingly disseminated child pornography. At most, he argues, the evidence supports a charge of possession of child pornography, which he was originally charged with before the State dismissed such charges. To disseminate for the purposes of the statute means “to transfer possession for free or for a consideration.” Ind.Code § 35-42-4-4(a)(1). A person knowingly engages in conduct when he is aware of a high probability that he is doing so. Gale v. State, 882 N.E.2d 808, 816 (Ind.Ct.App.2008).

Detective Odier testified at trial and explained file-sharing programs such as Li-meWire:

[T]he whole purpose of the file sharing program is in its name; you share files with other people. You can access files from other people on LimeWire and they can access what you determine you want to have shared. And part of the setup of LimeWire is determining ... what folder you want your files to go into that you’re going to share with the world.... You specify a folder that has files in it that you will share with other people using this program.

Transcript at 59-60.

Browning’s statement to police officers reveals he knew his files on LimeWire were capable of being downloaded by others using the program. He acknowledged downloading child pornography in the past on at least one occasion, but he claimed he would delete such files rather than keep them on his computer. Nevertheless, he downloaded the files, they were on his computer when police officers retrieved it, and he knew files on his computer could be shared. Even if Browning did not open and view the files once they were downloaded, their filenames included several references indicating their contents were child pornography. Further, because he kept them in a folder to share with others, he should have known there was a high probability others would download the files. And Detective Odier did in fact download the files. The evidence sufficiently demonstrates Browning knowingly disseminated child pornography.

Conclusion

Sufficient evidence exists to support Browning’s convictions for child exploitation. We therefore affirm.

Affirmed.

BAILEY, J., and MATHIAS, J„ concur.

      . Browning’s statement was recorded, admitted as evidence, and published to the jury.