author: DAVID, Justice.

text:
    Kenneth Dwayne VAUGHN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 45S05-1112-CR-684.
    Supreme Court of Indiana.
    July 25, 2012.

      Kristin Mulholland, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

This case involves a trial court’s discretion in granting a mistrial. Defendant vacillated back and forth throughout the trial seeking to proceed pro se and at other times wanting court-appointed counsel. Ultimately, the relationship between defendant and his counsel reached its low point when later in the trial defendant testified. After being non-responsive to the first question his counsel asked, defendant began to complain to the jury about his counsel’s trial strategy. Defendant’s response to counsel’s question was also irrelevant and risked a mistrial.

Within a matter of a few moments, the judge had instructed the defendant four times to stop speaking before directing the jury to be removed from the courtroom. Before the jury left the courtroom, the judge directed the bailiff to cover the defendant’s mouth so that the defendant would stop talking. Later, after the defendant had calmed down and expressed his willingness to follow the judge’s direction, the jury was brought back into the courtroom, and defendant completed his direct and cross-examinations without incident. Only after defendant completed his testimony did defense counsel move for a mistrial. The trial court refused to grant a mistrial. Because we find the defendant did not suffer actual harm from the bailiff restraining him, we affirm the trial court’s decision.

Facts and Procedural History

On September 5, 2008, Tyaisha Gardner was working as a teller for the Fifth Third Bank in Merrillville, Indiana, when a gentleman approached the counter, stating he wanted to open an account. The individual dropped a plastic bag on the counter and, in a threatening voice, told Gardner to “fill it up.” Gardner was afraid the man had a gun due to his movements and keeping his arm at his side. Gardner filled the bag with money, including a stack of “bait” money and pressed the security button under the counter.

Police were notified of the bank robbery and a description of the vehicle in which the bank robber fled. Officer Daniel Vesc-hak quickly noticed a vehicle that matched the description and began to follow it. Officer Veschak activated his emergency lights, which prompted the other vehicle to accelerate. A high-speed chase ensued. After running several stop signs in the chase, the driver slowed down and bailed out of the vehicle, crashing the vehicle into a building. The driver fled on foot. Police apprehended the driver, Kenneth Dwayne Vaughn, who had a large amount of money on him, including some of the bank’s “bait” money.

When police inventoried the vehicle, they identified even more money in the vehicle as well as a plastic bag. Officer Veschak identified Vaughn as the person who fled the vehicle. Gardner and fellow bank teller Jennifer Wilcox identified Vaughn as the bank robber.

Vaughn was charged with robbery, theft, and two counts of resisting law enforcement. Prior to trial, Vaughn vacillated between proceeding pro se and having his court-appointed counsel represent him. The trial court described Vaughn as “flimflamming back and forth.”

It is important to look at the entirety of Vaughn’s case to provide context for the events leading up to the request for mistrial. The court convened on October 31, 2008. The first order of business that day was to address defendant’s motion to proceed without counsel. Vaughn’s counsel addressed the court and acknowledged his frustration, stating, “Mr. Vaughn some months ago elected to proceed pro se and the Court just last week appointed me back to the case after he indicated he wanted counsel.” Vaughn’s desire to proceed pro se apparently stemmed from a disagreement in trial strategy involving a witness, Maurice Burge. The trial court judge was frustrated, speaking to Vaughn, “first you want [counsel] and then you don’t.... Then you don’t. And then you do want him.... And then now the Friday before trial you say you don’t want him. And then here we are the morning of trial and you do want him.”

The conversation between the trial court judge and Vaughn continued, with Vaughn wanting assistance only in picking a jury, yet wanting to proceed pro se during the trial. Then the trial judge and Vaughn had the following dialogue:

THE COURT: All right. Well before you are allowed to proceed pro se, which is certainly your right, Mr. Vaughn, and a right that I want to afford you if that is what it is that you want to do, you have you [sic] to be very clear of what you want to do. And so far you haven’t been clear. You keep changing your mind back and forward. So what I need for you to do is I need for you to make a final decision as to how you want to proceed this morning with your trial.
BY THE DEFENDANT: I want to proceed pro se.

Vaughn then said he understood that by proceeding pro se he would receive no assistance in jury selection. The trial court next went into a narrative of various rights Vaughn had and various penalties if he would be found guilty of his crime. Vaughn then asked the trial court for a brief break to speak with his counsel. After taking a ten-minute recess, the court reconvened, and Vaughn informed the court he wished to proceed with representation by counsel.

After finalizing Vaughn’s, decision to proceed with counsel, the court began its business, going through pretrial motions, discussing the scheduling of the trial, and finally selecting the jury. When the trial resumed on November 5, 2008, prior to the State’s first witness, defense counsel notified the court that yet again Vaughn wished to proceed pro se. Vaughn’s counsel stated, “[a]fter speaking with my client here, apparently he is entertaining notions of going pro se. So I know we have been back and forth with that before, but I think it is my duty to advise the Court.” The trial court and Vaughn again held a lengthy discussion, before ultimately the trial court denying his request, stating,

The defendant’s request to proceed pro say [sic] is denied because the defendant has not made an unequivocal decision to proceed pro se and in fact, he changes his mind on a repetitive basis. The Court does not know what his motivations for doing that are, however, it is my personal feeling and belief, having done this for a number of years,, involved in the criminal justice system that if I allowed him to proceed pro se today, tomorrow he will come in and tell me that he wants his lawyer back. Also, in his motion filed October 31, he did not make an unequivocal motion to proceed pro se, because in that motion, he indicated that he wanted somebody to help him with jury selection. Bring in the jury.

Following lunch that day, the judge found a written motion to proceed pro se that Vaughn placed on the judge’s chair, without knowledge of his defense counsel. The trial court judge notified counsel and then read it into the record,

Comes now the defendant, Kenneth Vaughn, and motions this Honorable Court of Lake County to allow him to proceed pro se.- I know that I pulled out my last motion, but I didn’t know what I know now. Maurice Burge, a witness in this case, was going to testify on my behalf and says that my public defender, Noah Holcomb, approached him prior to the start of my jury selection and tried to persuade him to leave. Mr. Burge states that Mr. Holcomb called him “crazy” and tried to tell him not to testify on my behalf because of past events., Mr. Burge testified against me in 2006, he was the victim of the crime I was convicted on [sic]. He says Mr. Holcomb told him he shouldn’t testify for me because I tried to kill him. Mr. Holcomb also got into verbal disagreement with me because I asked him why he didn’t give an opening statement and he told me, “I’m not paying him, so I can’t tell him how to fight this case.” I really do mean this when I say I’m not comfortable with Mr. Holcomb being my attorney. Please grant me this Motion as a citizen of the United States. I have the right to cross examine any and every witness that the State may won’t [sic] to have present to testify against me and I elect to act on that right, because it’s not a privilege, it’s a right that I have. Sorry for the inconvenience, but I won’t [sic] to finish this trial on my on [sic].

The record reflects this was again a difference in trial strategy. Vaughn informed the court he wanted questions asked on cross-examination of previous witnesses, and Vaughn’s counsel clearly felt such questions would potentially incriminate Vaughn or be improper strategy.

The trial court again denied this motion. Defense counsel then noted to the trial court that Vaughn placed a white envelope on the counsel’s desk marked “Indiana Supreme Court Disciplinary Commission” that Vaughn “refuse[d] to let [counsel] pick up from the table.” Without objection from anyone, the trial proceeded without further incident that day.

During defendant’s case-in-chief, Vaughn was the only witness called. Following lunch on the third day of trial, Vaughn’s counsel informed the Court,

BY MR. HOLCOMB: Your Honor, during our conference between me and my client, my client indicates that he does not want me to argue for any kind of a lesser included. Concede the issue of identify [sic] and solely concentrate on the issue whether or not force or threat of force or fear was used in this incident. And he insists that I focus on the issue of identity alone. I believe that to be contrary to his best interest. But, of course, he is the defendant. I am just pointing that out and making a record of that. So that apparently is what happened.
THE COURT: Okay. Go ahead, Mr. Vaughn.
BY THE DEFENDANT: If you want to make a record or something, are you going to make a record that, that bait money, that is just a picture. They didn’t videotape any money coming out of my pocket. They could have went and got that money from the bank and sat it on the table and photographed it. I asked you to argue that. Did you want to argue that? Did you want to argue that the lady said that the man had a beard? Did you want to argue any of the other things I had? But you want to argue that I did something. That is what you want to argue, trying to railroad me. I asked you not to be on this case. I asked the Judge to take you off this case. And you have totally violated my rights to have a fair trial and to be presented fairly by someone who wants to see the truth come out, not someone who told me I am guilty. You told me I am guilty. How are you going to tell me what I have done?
BY MR. HOLCOMB: I am ready for the jury now, Your Honor.
BY THE DEFENDANT: I am, too.
THE COURT: All right. Bring the jury in.

The first question Vaughn was asked by his counsel was, “[a]nd, Mr. Vaughn, do you have anything to say to the jury with regards to what led to these charges being filed against you?” Vaughn’s answer was, “What I want to say is that ah—I ask you to argue something and you didn’t argue it.” The court immediately attempted to get Vaughn to stop speaking; the record reflects the judge instructed Vaughn to be quiet four times. The court ordered the jury out of the courtroom, and the bailiff briefly placed his hand over Vaughn’s mouth in an attempt to quiet Vaughn.

With the jury outside the courtroom, after dialogue between Vaughn and the trial judge, Vaughn eventually agreed to act appropriately and only respond to the questions asked. Vaughn testified. After he testified, and outside the presence of the jury, defense counsel moved for a mistrial due to Vaughn being restrained in the presence of the jury. The trial court denied the motion for mistrial, and a jury subsequently found Vaughn guilty on all counts. A divided panel of the Court of Appeals reversed and remanded, holding the trial court abused its discretion in denying Vaughn’s motion for mistrial. Vaughn v. State, 954 N.E.2d 482, 489 (Ind.Ct.App.2011).

Vaughn’s Motion for Mistrial

The decision to grant or deny a mistrial motion is left to the sound discretion of the trial court. Taylor v. State, 587 N.E.2d 1293, 1299 (Ind.1992). We will reverse the trial court’s determination on the issue only for an abuse of discretion. Me- Manus v. State, 814 N.E.2d 253, 260 (Ind.2004). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Kirby v. State, 774 N.E.2d 523, 534 (Ind.Ct.App.2002), trans. denied. We afford great deference to the trial court because it is in the best position to gauge the circumstances and impact on the jury. Taylor, 587 N.E.2d at 1299. “[T]he declaration of a mistrial is an extreme action and is warranted only when no other action can be expected to remedy the situation.” Bedwell v. State, 481 N.E.2d 1090, 1093 (Ind.1985).

The sole issue raised by defendant is whether a mistrial should have been granted because the bailiff, at the direction of the trial court, placed his hands over Vaughn’s mouth in front of the jury.

The trial court has a duty “to manage the proceedings and take responsible steps to ensure that proper discipline and order exist in the courtroom.” Mengon v. State, 505 N.E.2d 788, 792 (Ind.1987). However, that distinction is not without limitation. The trial court does not abuse its discretion in denying a mistrial motion where the defendant is placed in restraints in front of the jury unless the defendant demonstrates actual harm. Kocielko v. State, 938 N.E.2d 243, 252 (Ind.Ct.App.2010) trans. denied. Thus, the issue is whether Vaughn suffered actual harm.

The exact transcript of the incident is as follows:

Q. And, Mr. Vaughn, do you have anything to say to the jury with regards to what led to these charges being filed against you?
A. What I want to say is that ah—I ask you to argue something and you didn’t argue it.
THE COURT: Hold on a second.
THE WITNESS: I asked him—
THE COURT: Stop.
THE WITNESS: To tell you about-
THE COURT: Stop.
THE WITNESS: To tell you about this photograph.
THE COURT: I told you to stop. Ladies and gentlemen, retire to the jury room. Remove him from the courtroom.
WHEREUPON THE JURY RETIRED TO THE JURY ROOM.
THE WITNESS: He don’t [sic] want to tell you.
THE COURT: Remove him from the courtroom. Cover his mouth.

Vaughn was visibly restrained in front of the jury with the bailiff covering his mouth.

We note that upon the jury returning to the courtroom, the judge had the following conversation with the defendant:

All right. At the break, Mr. Holcomb, you asked a question, the answer was non responsive, the Court felt it necessary to stop the testimony as to the non responsive nature of the question. The Court has explained the expectations of what it has for the defendant at the break. Mr. Holcomb, will you ask your question again, please.

In our view, that was not an inappropriate response for the trial court judge to have this discussion with the defendant, both acknowledging the incident but trying to minimize any prejudicial impact on the jury.

The issue is whether the defendant suffered actual harm. We would first note that defense counsel did not immediately move for a mistrial once the jury was excused but waited until after defendant finished testifying. In ruling against granting the mistrial, the trial court stated,

The Court has had an opportunity to view the defendant and the defendant’s positions throughout this entire case since it was filed. What occurred on the stand was something that I believe that the defendant knew was not acceptable and was something that was being done by the defendant in what prior to that event occurring the Court had already concluded that the defendant is trying to somehow create error, appealable error, reversible error, or a mistrial in this cause even though he filed a Motion for a Speedy Trial.
When the defendant started to give a non responsive answer to Mr. Holcomb’s very clearly open ended question, which invited the defendant to give his version of the events, as I recall the situation, I told him to be quiet or something to that effect and thereafter, I think I might have even told him to shut up. But at least on two occasions I believe that I had tried to stop the proceedings to bring them back into order.
At the point that it became clear to me that the defendant was not going to stop talking, I called the court staff in. Immediately upon Mr. Kelley coming into the courtroom, as I observed, Mr. Kelly then told him to be quiet at least once, maybe another time, at which point he did not stop talking. At which point I believe I commanded Mr. Kelley to put his hand over the defendant’s mouth. That situation is an unfortunate situation and something that I never intended to have occur in front of this jury. But nevertheless based on what I observed, I don’t feel that this Court caused that to occur.
This Court, from the very beginning of this case, has gone way out of its way to allow Mr. Vaughn the opportunity to talk, to express his opinions on things, and I have tried, even though it is not really my job and may be something I ought not to do in most situations, but I try to intervene between the attorney/client privilege in an effort to somehow try to make that attorney/client relationship somewhat better or make an attempt to explain to Mr. Vaughn the proceedings and the different things that were going on with his case and how things were.
So having said all of that, while it was an unfortunate situation that occurred before the jury, it is not something that this Court caused. And the Motion for Mistrial is denied.

A defendant certainly has the right to appear in front of a jury without physical restraints, unless necessary to prevent the defendant’s escape, protect those in the courtroom, or maintain order during the trial. Wrinkles v. State, 749 N.E.2d 1179, 1193 (Ind.2001). Whenever a defendant is placed in restraints in front of the jury, the trial court shall make a statement on the record concerning the reasons. Kocielko, 938 N.E.2d at 252.

In this case the defendant did not appear in front of the jury with restraints, nor was he placed in restraints. However, he was briefly restrained by the bailiff placing his hands over Vaughn’s mouth. Hindsight is twenty-twenty, but we believe the better practice would have been to warn the defendant that if he did not stop talking then he would be prevented from talking. Here, no such warning was given.

It appears there was no bailiff or security officer in the courtroom when defendant took the witness stand. The better practice would be to have security in the courtroom, particularly where an uncooperative defendant has already been identified. Since the defendant and his counsel’s relationship had been less than favorable since before the trial started, perhaps the trial judge should have considered establishing on the record and outside the presence of the jury the rules or expectations for the defendant’s behavior in front of the jury. The trial judge could have made clear to him the potential consequences the judge was prepared to impose if necessary to control the defendant’s conduct in the courtroom.

Here, while we believe that the trial court judge did not handle the situation in a manner as we might have liked it to be handled, we find that there was no actual harm to the defendant. We find no actual harm because the incident was so brief, taking place in literally just a few moments. The bailiff only briefly placed his hand over the defendant’s mouth, and the jury was quickly taken out of the courtroom. The incident was so minor, in fact, that counsel did not immediately object, only raising the objection after defendant concluded his testimony. Furthermore, defendant neither objected when he was brought back into the courtroom nor objected shortly thereafter following the trial court’s conversation with him. We find no actual harm given the facts before us.

As the United States Supreme Court noted, “It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes.” Illinois v. Allen, 397 U.S. 337, 346, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). We believe the record indicates this is the type of behavior Vaughn was engaged in, which should not be rewarded. It was his own behavior throughout the trial that showed a disregard for the procedure of our trial courts, vacillating from his desire to proceed pro se and his desire to be represented. And it was Vaughn who did not directly respond to his counsel’s question, and continued to speak, when being ordered by the trial judge to stop.

We have looked at a similar issue before. In Avant v. State, 528 N.E.2d 74, 77 (Ind.1988), the defendant was upset and unruly during the trial, complaining about the trial strategy and performance of his counsel. After excusing the jury, and the defendant refusing to remain quiet, the judge had tape placed over the defendant’s mouth and his hands tied. This remained throughout the rest of the trial. This Court then wrote that the defendant’s own actions led to the appropriate remedy, and that the judge “was justified in employing extreme measures to deal with an extremely recalcitrant defendant.” Id. at 77-78. This court concluded, “[a] defendant who creates his own cause for mistrial presents no error.” Id.

Finally, we agree with Judge Friedlan-der’s dissent that Vaughn’s actions led both the trial court and defénse counsel to believe he was attempting to declare a mistrial. As the trial court judge said to Vaughn once the jury was removed from the courtroom following the incident, “I think you’re trying to intentionally cause a mistrial, Mr. Vaughn. And you have been since the beginning. I have been patient with you, but I am not going to let you make a mockery out [of] this system, which is exactly what you’re trying to do.” And earlier in the trial, when discussing Vaughn’s motion to proceed pro se, defense counsel stated, “I still have my job to do and I have my professional reputation to uphold. So it will not bother me one way or the other. What I surmise here is Mr. Vaughn is doing his best to create reversible error[.]” As the dissent noted, “[t]he administration of criminal justice is not to be delivered into the hands of those who gain only from its subversion.” Vaughn, 954 N.E.2d at 493 (Friedlander, J., dissenting) (citing State v. Guy, 82 N.M. 483, 483 P.2d 1323, 1324 (N.M.Ct.App.1971)).

Vaughn was no stranger to the criminal justice system. In one of his pro se motions earlier in the case, he indicated he was familiar with trial procedures from having represented himself in 2006. He lost the trial, but he stated he learned from his mistakes. Vaughn stated during his incarceration he read up on trial procedure and now knows what he did wrong and will no longer make those same mistakes. It is clear to us he knew his way around the criminal justice system and had the knowledge to attempt to create his own mistrial.

Conclusion

A defendant has the right to appear in front of a jury without any physical restraints. However, a trial court judge also has the responsibility of managing the proceedings so proper order exists in the courtroom. While there may have been other options the judge could have exercised to prevent the necessity of ordering the bailiff to put his hand over the defendant’s mouth, the judge’s decision was not an abuse of discretion in denying the motion for mistrial. We find no harm was done, and affirm the trial court.

DICKSON, C.J., and RUCKER and MASSA, JJ., concur.

SULLIVAN, J., dissents, believing the decision of the Court of Appeals to have been correct.

      . Vaughn believed Burge would be a valuable witness for his defense. Counsel believed Burge would hurt the defense as Burge was a victim of a previous crime committed by Vaughn, and Burge could not provide the alibi identification that Vaughn believed he would.


source: Caselaw Access Project

author: MASSA, Justice. RUCKER, Justice,

license: Public Domain

text:
    Michael J. LOCK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 35S04-1110-CR-622.
    Supreme Court of Indiana.
    July 26, 2012.

      Matthew G. Grantham, Huntington, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew A. Kobe, Tamara L. Weaver, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   MASSA, Justice.

Indiana’s motor vehicle statutes provide a carve-out through which individuals whose driving privileges are suspended may still commute—provided the device they use to do so meets certain requirements. One requirement is that the “maximum design speed” of such a device may not exceed twenty-five miles per hour.

When the only evidence admitted at trial as to this requirement is that the defendant was traveling forty-three miles per hour on a flat, dry surface, is that evidence sufficient to sustain his conviction? We think so.

Facts and Procedural History

On June 27, 2009, Indiana State Police Trooper Pornteb Nathalang, on his motorcycle, pulled up behind Michael Lock on U.S. Highway 24 in Huntington County. Lock was riding a 2009 Yamaha Zuma with no license plate. Trooper Nathalang followed Lock for a quarter-mile at a constant speed on a flat, level surface and determined that Lock was traveling forty-three miles per hour.

Trooper Nathalang then pulled Lock over and learned that Lock’s driving privileges were suspended for being a habitual traffic violator. Lock was arrested and charged with operating a motor vehicle as a habitual traffic violator, a class D felony, and the State also cited him for two traffic infractions. At his bench trial, Lock and the State stipulated that Lock’s Zuma had two wheels, an internal combustion engine with a cylinder capacity of forty-nine cubic centimeters, an engine rating of not more than two horsepower, and an automatic transmission. The parties also stipulated to Trooper Nathalang’s radar track of forty-three miles per hour.

The trial court found Lock guilty of the class D felony, sentenced him to 180 days, and revoked his driving privileges for life. Lock appealed, arguing first that the habitual traffic violator statute is unconstitutionally vague and second, that the evidence was insufficient to support his conviction.

In a split opinion, the Court of Appeals reversed. Lock v. State, 952 N.E.2d 280, 281 (Ind.Ct.App.2011). Without addressing the constitutional challenge, it found that the State’s evidence of the Zuma’s speed—standing alone—was too speculative to affirm a conviction. Id. at 283. We granted transfer, thereby vacating the opinion of the Court of Appeals. Lock v. State, 962 N.E.2d 650 (Ind.2011) (table).

Standard of Review

In reviewing the sufficiency of the evidence, we examine only “the probative evidence and reasonable inferences” that support the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Id. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and “affirm the conviction unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Id. at 146-47 (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000)). This evidence need not overcome every reasonable hypothesis of innocence; it is sufficient so long as “ ‘an inference may reasonably be drawn from it to support the verdict.’” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind.Ct.App.2001)).

A constitutional challenge, however, is reviewed de novo. But we are “a court and not a ‘supreme legislature.’ We have no right to substitute our convictions as to the desirability or wisdom of legislation for those of our elected representatives.” State v. Downey, 476 N.E.2d 121, 122 (Ind.1985). Thus, we approach such questions with the presumption that the statute is constitutional, and the challenger is burdened to prove otherwise. Brown v. State, 868 N.E.2d 464, 467 (Ind.2007). Any reasonable doubts and constructions as to the statute’s validity are resolved in favor of constitutionality. State v. Lombardo, 738 N.E.2d 653, 655 (Ind.2000); Brady v. State, 575 N.E.2d 981, 984 (Ind.1991).

I. The Statutory Scheme Is Not Unconstitutionally Vague.

A fundamental aspect of our nation’s jurisprudence is that criminal statutes must “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” Brown, 868 N.E.2d at 467 (quoting Healthscript, Inc. v. State, 770 N.E.2d 810, 816 (Ind.2002)); see also Jordan v. DeGeorge, 341 U.S. 223, 230, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (“This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.”). Accordingly, we have said that due process requires that a penal statute “clearly define its prohibitions.” Brown, 868 N.E.2d at 467. If it fails “to provide notice enabling ordinary-people to understand the conduct that it prohibits” or “authorizes or encourages arbitrary or discriminatory enforcement” then it is subject to invalidation. Id. Additionally, “there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur.” Downey, 476 N.E.2d at 123. “It cannot be left to juries, judges, and prosecutors to draw such lines.” Id.

Lock argues that Section 9-30-10-16 is unconstitutionally vague because it failed to put Lock on reasonable notice that driving the Zuma was illegal. (Appellant’s Br. at 5-9.) The relevant portion of the statute provides that “[a] person who operates a motor vehicle ... while the person’s driving privileges are validly suspended ... and the person knows that the person’s driving privileges are suspended ... commits a Class D felony.” Ind.Code § 9-30-10-16(a). Lock appears to concede that this statute is constitutionally sufficient on its face, (Appellant’s Br. at 6), but instead contends that it is unconstitutionally vague as applied to him because of its interplay with several related provisions.

First, the Indiana Code provides that, for the purposes of Chapter 9-30-10, the definition of motor vehicle “does not include a motorized bicycle.” Ind.Code § 9-13-2-105(d) (2010). A “motorized bicycle,” in turn, is defined as

a two (2) or three (3) wheeled vehicle that is propelled by an internal combustion engine or a battery powered motor, and if powered by an internal combustion engine, has the following:
(1) An engine rating of not more than two (2) horsepower and a cylinder capacity not exceeding fifty (50) cubic centimeters.
(2) An automatic transmission.
(3)A maximum design speed of not more than twenty-five (25) miles per hour on a flat surface.
The term does not include an electric personal assistive mobility device.

Ind.Code § 9-13-2-109 (2010) (emphasis added). There is, however, no statutory definition of “maximum design speed,” nor have our courts defined the phrase. This definition gap is the focus of Lock’s constitutional argument because “the Zuma’s ‘maximum design speed’ determines whether it is a ‘motorized bicycle,’ which in turn ultimately determines whether [he] ran afoul of the habitual traffic violátdr statute.” (Appellant’s Br. at 7.)

However, a criminal statute does not need to provide an express or explicit list of prohibited' conduct with scientific precision, however much we might think it helpful. “Condemned to the use of words, we can never expect mathematical certainty from our language.” Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222(1972). Instead, we have repeatedly said that a criminal statute survives a vagueness challenge “ ‘if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct.’ ” Brown, 868 N.E.2d at 467 (quoting Klein v. State, 698 N.E.2d 296, 299 (Ind.1998)); see also Lombardo, 738 N.E.2d at 656.

Because our analysis on this issue turns on how an ordinary person would interpret the statute, resort to legal definitions and scientific sources is less desirable than consultation of standard language dictionaries. See Brown, 868 N.E.2d at 467. And doing so shows that a person of ordinary intelligence would interpret this statutory definition of “motorized bicycle” to exclude any devices whose highest possible speed—as conceived of, planned, or devised—is more than twenty-five miles per hour.

But there remains the question of by whom the design must be made—either by a manufacturer or a subsequent modifier, or both. Lock argues that “maximum design speed” is “an integrated scientific phrase that quantifies the speed that the maker of the vehicle intended, not the speed the vehicle could actually go.” (Appellant’s Br. at 10.) But at oral argument, counsel for both sides noted the ability of individuals to modify the engine of a motorized bicycle in order to allow it to exceed twenty-five miles per hour.

This is not an unforeseeable occurrence, and we think it equally reasonable that the legislature assumed this possibility as well—and therefore chose the broader “maximum design speed” language over “maximum manufacturer’s design speed” or Lock’s suggested “maximum design velocity.” (Appellant’s Br. at 10.) Most importantly, we think an ordinary person examining the statute would reach a similar conclusion: that the statutory provision looks initially to the original manufacturer’s maximum design speed, but also encompasses any subsequent modifications or redesigns.

In any event, it seems apparent that the statutory scheme is constitutionally sound in that it fairly informs the general public as to what conduct is prohibited. And it does so in a way that uses plain, ordinary language to draw clear lines between trivial and substantial conduct, using a series of quantifiable terms and provisions.

However, Lock contends that the statute is unconstitutionally vague because—notwithstanding the State’s plausible definition (and the definition we provide today)—“the first time Lock knew his Zuma had a ‘maximum design speed’ of more than 25 miles per hour would have been after he got pulled over going 43 miles per hour. This is not sufficient notice to warn Lock of impending criminal penalties.” (Appellant’s Br. at 8.)

But this argument is not a vagueness challenge—i.e., that an ordinary person would not know what conduct was prohibited. Instead, it says Lock may not have been aware of the capabilities of his Honda Zuma until he was pulled over. This is like a drunk driver asserting a constitutional vagueness challenge because he didn’t know how many beers would render him impaired. The claim goes more to mitigation than constitutionality.

Lock also argues that the statute fails to draw a sufficient line between trivial and substantial conduct because “all Lock [or anyone similarly situated] would have to do in order to avoid a habitual traffic violator charge is not exceed 25 miles per hour, as there was no other indication that Lock’s Zuma had a ‘maximum design speed’ greater than what the statute allows.” (Appellant’s Br. at 8-9.) Therefore, the argument goes, the statutes are arbitrary because a similarly situated person who drove at twenty-five miles per hour or less on the same Zuma would avoid penalty.

This overlooks, however, that the similarly situated person is still breaking the law. He is just not getting caught. This no doubt happens on a daily basis on our streets and highways. Any number of drunk drivers avoid detection, but this does not mean they did not break a law, nor does it render that law unconstitutionally vague.

In sum, Indiana Code § 9-30-10-16 withstands Lock’s constitutional challenge.

II. The Evidence Was Sufficient to Sustain Lock’s Convictions.

Lock and the State stipulated to facts that conclusively establish the Zuma’s compliance with all but one of Section 9-18-2-109’s requirements: the Zuma had “two wheels, an internal combustion engine with a cylinder capacity of 49 cubic centimeters, an engine rating of not more than two horse power, and an automatic transmission.” (Appellant’s Br. at 2-3; Appellee’s Br. at 2); accord Ind.Code § 9-13—2—109(1)—(2). The parties also stipulated that “Trooper Nathalang observed the Defendant and received a radar track on his vehicle of 43 mph. The roadway was flat, level, and dry.” Lock, 952 N.E.2d at 281.

The question remaining is whether this piece of evidence—a sole incident of a single radar track—is sufficient to sustain Lock’s conviction by showing that the Zuma exceeded the final requirement of Section 9-13-2-109 by virtue of a maximum design speed greater than twenty-five miles per hour.

Much of Lock’s argument on the question of proof mirrors his constitutional challenge, by suggesting a stricter definition of “maximum design speed.” (Appellant’s Br. at 9-12.) What he ultimately appears to say, though, is that in order to prove a violation of this provision the State must have shown “that Lock’s Zuma was created with a particular purpose or scheme to the effect that the Zuma would exceed 25 miles per hour on any given day.” (Appellant’s Br. at 12.) Because the State offered no evidence of any such purpose or scheme, Lock says, the evidence of his speed on June 27, 2009, would only allow a court to speculate as to the actual “maximum design speed.” (Appellant’s Br. at 12.) On these facts, we disagree.

The stipulation concerning Trooper Na-thalang’s radar track was plainly relevant in determining whether the Zuma’s maximum design speed exceeded twenty-five miles per hour, because it had at least some tendency to make the existence of that fact more probable than it would be without the evidence. See Ind. Evidence Rule 401. Lock, though, argues that there was no evidence as to the Zuma’s condition following this episode, nor any technical evidence as to the manufacturer’s specifications, nor was there evidence that Lock had modified the Zuma in any way. (Appellant’s Br. at 3, 8.)

But as we have said, in reviewing the sufficiency of the evidence supporting a conviction it is not necessary for that evidence to overcome every conceivable hypothesis of innocence, and we look only at the probative evidence supporting the conviction. And so on the basis of a stipulation that the Zuma was traveling forty-three miles per hour—and in the face of no rebuttal evidence at all—it is impossible to claim that no reasonable fact-finder could find beyond a reasonable doubt that the Zuma had a maximum design speed in excess of twenty-five miles per hour.

Conclusion

Accordingly, we affirm Lock’s conviction and sentence.

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

RUCKER, J., dissents with separate opinion.

RUCKER, Justice,

dissenting.

Because I believe the State did not prove the elements of Class D felony operating a vehicle while suspended, I would reverse the trial court and not reach the constitutional issue.

Indiana Code section 9-30-10-16 provides in relevant part, “A person who operates a motor vehicle ... while the person’s driving privileges are validly suspended ... commits a Class D felony.” In turn a “motor vehicle” is defined as a “vehicle that is self-propelled,” Ind.Code § 9-13-2-105(a); but, for purposes of Indiana Code section 9-30-10-16, a motor vehicle “does not include a motorized bicycle.” I.C. § 9—13—2—105(d)-Among other things a “motorized bicycle” is a vehicle with “[a] maximum design speed of not more than twenty-five (25) miles per hour on a flat surface.” I.C. § 9-13-2-109(3).

If the vehicle Lock was operating qualifies as a “motorized bicycle” then he was not operating a “motor vehicle” for purposes of the driving while suspended statute. We are thus required to determine what is meant by “maximum design speed.” The phrase is not defined by statute and can fairly be interpreted as ambiguous. For example does it mean as the majority suggests, “the original manufacturer’s maximum design speed, but also encompasses any subsequent modifications or redesigns”? Op. at 76. Or does it mean as Lock suggests that the vehicle, “was created with a particular purpose or scheme to the effect that the Zuma would exceed 25 miles per hour on any given day”? Op. at 77 (quoting Appellant’s Br. at 12). Another possibility is the maximum speed at which a motor vehicle can be operated safely on a road in perfect condition. See McGraw Hill Dictionary of Scientific & Technical Terms 580 (6th ed. 2003).

“In construing statutes, words and phrases will be taken in their plain or ordinary and usual sense unless a different purpose is clearly manifest by the statute itself, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.” George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150, 156 n. 8 (Ind.2011) (quoting Ind. Dep’t of State Revenue v. Colpaert Realty Corp., 231 Ind. 463, 109 N.E.2d 415, 418-19 (1952)). In this case the majority appears to apply the “plain or ordinary” meaning component of the foregoing rule. See op. at 76 n. 3. But I am not sure this is adequate to the task. First, it appears to me that “maximum design speed” is a technical phrase. However neither party provides us with any guidance of the phrase’s technical import or how the phrase is used in the auto manufacturing industry. Second, as a matter of statutory interpretation it is obvious the Legislature decided that not all vehicles require an operator’s license for purposes of the driving while suspended statute. So, it carved out an exception for certain vehicles, namely motorized bicycles. Applying the maxim that “penal statutes must be construed strictly against the State,” State v. McGraw, 480 N.E.2d 552, 553 (Ind.1985), I would read Indiana Code section 9-13-2-109 evincing the Legislature’s intent to exclude those motorized bicycles which, among other things, a manufacturer has designed to travel safely at a maximum speed no greater than twenty-five miles an hour. That is not to say that the vehicle is incapable of traveling in excess of that speed. Indeed it may very well do so, even if it means damage to the engine or other component parts. The salient point however is the maximum speed at which the manufacturer designed the vehicle to travel.

The statute being thus construed, the actual speed Lock was traveling has no relevance to the question of “maximum design speed.” And having introduced no evidence indicating the speed at which Lock’s vehicle was designed to travel, the State failed to prove Lock was operating a motor vehicle within the meaning of Indiana Code section 9-30-10-16. Stated somewhat differently, the State had the burden proving the exception, namely: that the vehicle Lock was operating was not a motorized bicycle. The State failed to carry its burden. I would therefore reverse Lock’s conviction.

      . Ind.Code § 9-30-10-16(a) (2010).

      . The State agreed to dismiss the two infractions.

      . See, e.g., Webster's Third New International Dictionary 611 (Philip Babcock Gove, ed., 1993) ("design" means to conceive of, plan out, or to devise for a particular use or function). Likewise, "maximum” means "greatest in quantity or highest in degree attainable or attained”. Id. at 1396. Finally, "speed” in this context refers to the object’s "rate of motion.” Id. at 2189.
      The State put forth a definition at trial, based on an online dictionary, and Lock concedes that this definition was plausible. It proposed that "design” refers to "an underlying scheme that governs functioning, developing, or unfolding” or something done aimed at a "particular purpose.” (Appellant's Br. at 11-12.) This is not dissimilar to the definition we give today.

      . More to the point, there is no requirement under these provisions that the State prove Lock knew the Zuma was not a motorized bicycle, or knew it was a motor vehicle. The issue of mens rea only arises under Section 9-30-10-16, in that Lock could only be convicted if it were shown beyond a reasonable doubt that he knew his driving privileges were suspended. Ind.Code §§ 9-13-2-109, 9—30— 10— 16(a)( 1); State v. Cooper, 935 N.E.2d 146, 149 (Ind.2010) (conviction requires proof of "(1) the act of driving; (2) an HTV adjudication; and (3) that the defendant knew or should have known of the suspension.”); State v. Jackson, 889 N.E.2d 819, 822-23 (Ind.2008).

      . Moreover, Lock does not point to affirmative evidence presenting a hypothesis of innocence, but rather to a vacuum in which he presented no evidence and now challenges the State for not actively rebutting his non-evidence. Even if our standard of review were not clear in looking only to the probative evidence supporting the conviction, we will not—post-conviction—invent hypothetical evidence that a defendant could have offered—but didn’t—and then overturn the conviction because the State failed to rebut that evidence.
      Neither does this view impermissibly shift a burden onto Lock to prove that what he drove was a motorized bicycle. See Lock, 952 N.E.2d at 282-83. It was always the State’s burden to prove that the Zuma was not a motorized bicycle, and to that aim it submitted evidence of the Zuma's actual speed on June 27, 2009. Whether or not it could have submitted additional evidence is not the question; apparently it believed the radar track was enough—and Lock, in turn, chose not to challenge this evidence (indeed, he stipulated to it), apparently believing it would not carry the day. That Lock's strategy failed and the State’s succeeded does not raise the specter of an unconstitutional burden-shift.

      . Accord Baird v. State, 955 N.E.2d 845, 848 (Ind.Ct.App.2011) ("[i]t could reasonably be determined that a vehicle capable of going sixty miles per hour has a maximum design speed of more than twenty-five miles per hour on a flat surface”); Annis v. State, 917 N.E.2d 722, 725 (Ind.Ct.App.2009) ("Based on this evidence, the scooter was a self-propelled vehicle that was capable of exceeding twenty-five miles per hour on an uphill surface, let alone a flat surface, and had a cylinder capacity greater than fifty cubic centimeters.”). Though both Baird and Annis had additional evidence (in Baird, in fact, there was even conflicting evidence) showing the particular devices failed the various requirements of Section 9-13-2-109, in both cases the Court of Appeals drew particular attention to the fact that the defendants were driving at speeds in excess of twenty-five miles per hour at the time they were pulled over. Baird, 955 N.E.2d at 848; Annis, 917 N.E.2d at 725; see also Lock, 952 N.E.2d at 283-84 (Baker, L, dissenting). These cases do not reflect unreasonable speculation-they reflect the possibility of a reasonable inference, which is all that is required.

      . See, e.g., Lyles v. State, 970 N.E.2d 140, 142-43 n. 3 (Ind.2012) (citing Russell v. State,
        50 Ind. 174, 174 (1875)). "[I]n determining whether a statutory exception is a material element or an affirmative defense, we assess the location of the exception relative to the location of the definition of the principal offense. If the exception is closely connected with the clause creating the offense, the exception is a material element of that offense and must be proven by the State.” Id. "If, however, the exception is contained in a subsequent clause or statute, the exception is an affirmative defense that must be raised by the defendant.” Id. Here the exception was closely connected with the clause creating the offense.


author: PER CURIAM.

text:
    Roger L. BUSHHORN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 40S01-1206-CR-309.
    Supreme Court of Indiana.
    July 26, 2012.
    R. Patrick Magrath, Madison, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Joseph Y. Ho, Deputies Attorney General, Indianapolis, IN, Attorneys for Appellee.
   PER CURIAM.

Roger Bushhorn coordinated an escape attempt from the Jennings County jail with his cellmate, James Smith, and another inmate, Ryan Renfroe. They were armed with sharpened pieces of metal, or “shanks,” that the men had fashioned from a metal hanger in preparation for the escape attempt. Shortly after midnight, Bushhorn asked 54-year-old jail officer Vicki Day to let him out of the holding cell so he could use the restroom, and Day allowed Bushhorn to exit. Smith asked to leave the cell too, but his request was denied. As Day was shutting the cell door, Smith forced it open and forced Day to the floor. Bushhorn took the keys from the officer, used them to open Renfroe’s cell and handed him one of the shanks. Then Bushhorn handcuffed the officer and took her chemical agent container. At Smith’s direction, Bushhorn used the officer’s radio to tell the jail controller to open the door into another area of the jail or Smith would kill the officer. The door did not open, and Smith began stabbing Day. When two other jail officers, Shawn McDaniel and 67-year-old Walter Peace, entered the area, Bushhorn sprayed the chemical agent at them and handcuffed them. At that point, numerous police officers entered the area and took the three inmates into custody.

Bushhorn was charged with three counts of kidnapping (class A felonies), three counts of criminal confinement while armed with a deadly weapon and resulting in serious bodily injury (class B felonies), one count of attempted escape while armed with a deadly weapon (a class B felony), one count of attempted escape resulting in bodily injury to the officers (a class B felony), and three counts of battery while armed with a deadly weapon and resulting in serious bodily injury (class C felonies).

Bushhorn pled guilty to kidnapping officer Day, the confinement charges relating of officers Peace and McDaniel, and attempted escape. This was an open plea, so sentencing was left to the trial court. The trial court imposed an enhanced 35-year sentence (with three years suspended) for the kidnapping, and minimum 6-year sentences for the four class B felonies. The trial court ordered the kidnapping sentence and the two confinement sentences to be served consecutive to each other, and the attempted escape sentence to be served concurrently with the other sentences. Thus, the aggregate sentence was forty-seven years with three years suspended.

As aggravating factors, the trial court identified: Bushhorn’s criminal history (including possession of alcohol by a minor, three juvenile adjudications for theft-related offenses he committed while a teenager, and the two 2009 theft-related felonies for which he had been serving his sentence during the attempted escape); the planned nature of the escape (including preparing the shanks and learning the routine of jail staff); the selection of the female officer as the first target; Bushhorn’s several opportunities to break off the escape, which he did not take; and other circumstances of the events. As mitigating factors, the trial court noted Bushhorn’s guilty plea; his GED certificate; his remorse (he had apologized in person and by letter to the jail officers); and his relatively young age (he was 20 at the time of the attempted escape).

Bushhorn appealed, arguing that a substantial portion of the aggravating factors relied upon by the trial court were not adequately supported by the record, and that imposition of an aggravated kidnapping sentence plus consecutive sentencing on other counts was an abuse of the trial court’s discretion. In addition, he argued that the aggregate sentence was inappropriate in light of the nature of the offense and the character of the offender. See Appellate Rule 7(B).

Citing that rule, the Court of Appeals concluded that Bushhorn had met his burden of establishing that the sentence was inappropriate, and it revised the sentence so that the four class B felonies were concurrent with the thirty-five year kidnapping sentence, for an aggregate sentence of thirty-five years. Because of that resolution, the Court of Appeals did not decide whether the trial court had abused its discretion. Bushhorn v. State, No. 40A01-1107-CR-315, slip op., 2012 WL 504772 (Ind.App. Feb. 16, 2012).

•We granted the State’s petition to transfer jurisdiction to this Court and heard oral argument. Having reviewed the matter, our collective judgment is that the trial court’s sentence is not inappropriate under Appellate Rule 7(B) and there was no abuse of discretion. See Cardwell v. State, 895 N.E.2d 1219, 1222-1225 (Ind.2008) (discussing appellate review of sentencing and claims of abuse of discretion in sentencing under the current sentencing scheme); Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.2007) (discussing appellate review of sentences under the current sentencing scheme); (Serino v. State, 798 N.E.2d 852, 856-857 (Ind.2003)) (discussing the adoption of Appellate Rule 7(B)’s present language and noting that enhanced and consecutive sentences can be appropriate when the same offense is committed against two victims).

Accordingly, we affirm the sentence imposed by the trial court and summarily affirm the decision of the Court of Appeals in all other respects. See Ind. Appellate Rule 58(A).

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

SULLIVAN, J., would deny transfer.


author: SULLIVAN, Justice.

text:
    Douglas COTTINGHAM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 06S01-1112-CR-703.
    Supreme Court of Indiana.
    July 26, 2012.

      Deborah K. Smith, Thorntown, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   SULLIVAN, Justice.

Douglas Cottingham was placed on home detention under the supervision of a community-corrections program before a 2010 amendment to Indiana Code section 35-88-2.6-6 took effect. He argues that he is entitled to “good time credit” for his time served on home detention pursuant to that statutory amendment. We conclude that the statutory amendment does not apply to him.

Background

In June, 2009, Douglas Cottingham pled guilty to operating a vehicle while intoxicated endangering a person under Indiana Code section 9-30-5-3. In July, 2009, the trial court sentenced him to three years— one-and-one-half years on home detention with GPS monitoring through Boone County Community Corrections and one- and-one-half years on probation.

On March 10, 2010, Cottingham was arrested in Marion County on a charge of criminal conversion for an incident that involved him possessing alcohol. Consequently, after a hearing held on July 12, 2010, the trial court found that Cotting-ham had violated the terms of his home-detention placement and the terms of his probation and ordered him to serve the remainder of his sentence in the Indiana Department of Correction (“DOC”). The court credited Cottingham 416 days toward his sentence—208 days for the days he had served on home detention (with no good time credit) and 208 days for the 104 days that he had spent incarcerated prior to the hearing (with 104 days’ good time credit).

Cottingham appealed, claiming (1) that the trial court abused its discretion in ordering him to serve the remainder of his sentence; and (2) that the trial court erred in not giving him good time credit for the time he spent on home detention pursuant to amended Indiana Code section 35-38-2.6-6 (which took effect on July 1, 2010). The Court of Appeals rejected Cotting-ham’s first argument, Cottingham v. State, 952 N.E.2d 245, 247-48 (Ind.Ct.App.2011), reh’g denied, but accepted his second, holding that Cottingham was entitled to good time credit under the doctrine of amelioration, id. at 248-49. The panel therefore remanded to the trial court to determine Cottingham’s credit class for good time credit purposes during home detention; to calculate the good time credit to which Cottingham was entitled; and to adjust his sentence accordingly. Id. at 249.

The State sought, and we granted, transfer, Cottingham v. State, 962 N.E.2d 655 (Ind.2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A). In granting transfer, however, we consider only the issue of whether amended Indiana Code section 35-38-2.6-6 applies to persons who have been placed on home detention prior to its effective date. We summarily affirm the Court of Appeals as to issues not addressed in this opinion. App. R. 58(A)(2).

Discussion

As an initial matter, we note that there is a conflict in the Court of Appeals concerning this issue, cf. Brown v. State, 947 N.E.2d 486 (Ind.Ct.App.2011) (holding that amended statute does not apply retroactively), trans. denied, and because of this conflict, we too refrain from disposing of this issue on the basis of waiver, see Cottingham, 952 N.E.2d at 248 (addressing this issue despite waiver).

This appeal and others have stemmed from the Legislature’s 2010 amendment to the Indiana Code section concerning good-time-credit eligibility for persons placed on home detention in community-corrections programs.

Prior to July 1, 2010, Indiana Code section 35-38-2.6-6 provided:

(a) As used in this subsection, “home” means the actual living area of the temporary or permanent residence of a person. The term does not include a:
(1) hospital;
(2) health care facility;
(3) hospice;
(4) group home;
(5) maternity home;
(6) residential treatment facility;
(7) boardinghouse; or
(8) public correctional facility.
A person who is placed in a community corrections program under this chapter is entitled to earn credit time under IC 35-50-6 unless the person is placed in the person’s home.
(b) A person who is placed in a community corrections program under this chapter may be deprived of earned credit time as provided under rules adopted by the department of correction under IC 4-22-2.

Ind.Code § 35-38-2.6-6 (2008) (emphasis added). However, during the 2010 legislative session, the Legislature amended this section, effective July 1, 2010, to provide:

(a) As used in this subsection, “home” means the actual living area of the temporary or permanent residence of a person. A person who is placed in a community corrections program under this chapter is entitled to earn credit time under IC 35-50-6.
(b) A person who is placed in a community corrections program under this chapter may be deprived of earned credit time as provided under rules adopted by the department of correction under IC 4-22-2.

Pub. L. No. 105-2010, § 14, 2010 Ind. Acts 1217, 1232-33 (codified at Ind.Code § 35-38-2.6-6 (Supp.2011)).

Thus, before the amendment to Indiana Code section 35-38-2.6-6, the General Assembly expressly provided that persons placed on home detention in community-corrections programs were not entitled to earn good time credit. But now, after the amendment, there is no statutory language preventing persons placed on home detention from earning such credit. And so we have the issue before the two panels of the Court of Appeals and now before us: whether amended Indiana Code section 35-38-2.6-6 applies to persons who have been placed on home detention prior to its effective date so that they may be entitled to good time credit. In addressing this issue, we consider first the approaches taken by the panels of the Court of Appeals.

On the one hand, the Court of Appeals in the present case resolved this issue under an expansive view of the doctrine of amelioration. Cottingham, 952 N.E.2d at 249. The doctrine of amelioration is an exception to the general rule that the sentence in effect at the time a crime is committed is the proper penalty. Richards v. State, 681 N.E.2d 208, 213 (Ind.1997). The doctrine entitles defendants who are sentenced after the effective date of a statute providing for a more lenient sentence to be sentenced pursuant to that statute, as opposed to the statute in effect at the time the crime was committed. Id. The Court of Appeals concluded that application of the doctrine of amelioration entitled Cottingham to relief here.

But, because Cottingham was sentenced well before the effective date of amended Indiana Code section 35-38-2.6-6, he is not entitled under a strict application of the doctrine of amelioration to benefit from this amendment. See Holsclaw v. State, 270 Ind. 256, 261, 384 N.E.2d 1026, 1030 (1979) (defendant sentenced almost one year before amended statute became effective not entitled to relief under doctrine of amelioration). Cottingham himself has not presented any argument regarding amelioration. And we are not persuaded to adopt a more expansive view of it, like the one apparently applied in the Renfroe case on which the Court of Appeals relied. Cottingham, 952 N.E.2d at 249 (citing Renfroe v. State, 743 N.E.2d 299, 300-01 (Ind.Ct.App.2001)). Unlike Renfroe, Cot-tingham has not been subjected to an ex post facto amendment that would deprive him of good time credit. Id.

On the other hand, the Court of Appeals in Brown took a different approach to this issue. The Brawn court recognized the general rule that statutes are to be applied prospectively, absent clear legislative intent that they are to be applied retroactively as well. 947 N.E.2d at 489-90. And it recognized the exception to this general rule for remedial statutes, which may be applied retroactively when strong and compelling reasons exist to do so. Id. at 490. The Brown court concluded that the amendment was not remedial in nature because the Legislature’s intent was clear in the prior statute that persons placed on home detention were not entitled to receive good time credit, and therefore, the amendment did not correct a defect or mischief in the prior statute. Id. at 491. Nevertheless, the Brown court also went on to conclude that even if the amendment were remedial, there were no strong and compelling reasons to apply it retroactively. Id. at 491-92.

But ultimately we think that this issue is resolved by the language of the statute. “[0]ur primary goal of statutory construction is to determine, give effect to, and implement the intent of the Legislature.” City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007) (citation omitted). Here, we believe that the Legislature’s intent is made clear by its language: “A person who is placed in a community corrections program under this chapter is entitled to earn credit time under IC 35-50-6.” Ind.Code § 35-38-2.6-6 (Supp. 2011) (emphasis added); cf. Purcell v. State, 721 N.E.2d 220, 223 (Ind.1999) (relying on language of prior statute to conclude that although good time credit is not available for those placed on home detention, credit for time served is). By using “is placed” (or by not amending that language as it existed in the prior statute), we think that the Legislature intended for this amendment to apply only to those persons who “are placed” on home detention on or after the amendment’s effective date. If the Legislature intended for the amendment to apply to persons who had already been placed on home detention, it would have used language to include such persons—language like “a person who has been placed” or even “a person who is in community corrections.”

Based on the language of this statute, we hold that the amendment to Indiana Code section 35-38-2.6-6 applies to those who are placed on home detention on or after its effective date. Cottingham was placed on home detention before the statute’s effective date and so he is not eligible for good time credit.

Suppose, however, an offender committed an offense before the statute’s effective date and was placed on home detention but not until after the statute’s effective date. This offender is eligible for good time credit under the rule announced in this case. Accord Arthur v. State, 950 N.E.2d 343, 346 (Ind.Ct.App.2011) (concluding that offender placed on home detention on July 30, 2010, after trial court modified commitment from work release to homé detention was entitled to earn good time credit), trans. denied. In this respect, the “is placed” rule announced in this case operates as an exception to the general rule that the credit time statutes applicable in respect of an offense are those in force on the date the offense was committed. Purcell, 721 N.E.2d at 222 n. 2.

Conclusion

The judgment of the trial court is affirmed.

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

      . The facts in Brown are similar to the present case: In 2009, Brown pled guilty to a motor vehicle offense and was ordered to serve a three-year sentence in the Marion County Community Corrections Home Detention Electronic Monitoring program. On July 22, 2010, the trial court found Brown in violation of the terms of his placement and ordered Brown to serve the remainder of his sentence in the DOC. The court credited Brown 412 days that he had served on home detention, but no good time credit. 947 N.E.2d at 488-89. Brown appealed, arguing that the amendment to Indiana Code section 35-38-2.6-6 applied to him retroactively. The Court of Appeals rejected this argument. Id. at 492.

      . The Court of Appeals in Brown pointed out that the Indiana Code uses the language "credit time” and not "good time credit” to refer to the statutory reward an offender receives for good behavior, etc. 947 N.E.2d at 488 n. 2. We take note of this point, but for consistency, follow the language of the Court of Appeals in this case and continue to use "good time credit.”

      . We concluded in Purcell v. State, 721 N.E.2d 220, 223 (Ind.1999), that "credit time under IC 35-50-6” as used in Indiana Code section 35-38-2.6-6(a) means "good time credit.”

      . The Brown court rejected in dicta the proposition that Brown would be entitled to good time credit under the doctrine of amelioration. 947 N.E.2d at 489 n. 4.


text:
    Robert SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S02-1109-CR-529.
    Supreme Court of Indiana.
    July 26, 2012.

      Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   SULLIVAN, Justice.

Robert Smith was placed on home detention under the supervision of a community-corrections program in January, 2010. He argues that the introduction of certain hearsay evidence at the hearing revoking his community-corrections placement violated his due process right to confrontation. Because we conclude that the hearsay evidence introduced at the hearing was substantially trustworthy, we affirm the judgment of the trial court.

Background

On January 28, 2010, Robert Smith pled guilty to operating a motor vehicle after having his license forfeited for life under Indiana Code section 9-30-10-17. On the same day, the trial court sentenced him to 730 days to be served on home detention through Marion County Community Corrections.

On May 17, 2010, Smith’s Community Supervision Manager filed a Notice of Community Corrections Violation alleging eight counts—counts one through five alleged that Smith had tested positive for cocaine and marijuana on five separate dates; counts six and seven alleged that Smith had failed to submit urine screens on two separate dates; and count eight alleged that Smith had failed to comply with his monetary obligation. The trial court held a bifurcated hearing on the alleged violations on June 10 and June 24, 2010. During these hearings, the State offered into evidence State’s Exhibit l, which consisted of five lab reports showing that Smith had tested positive for cocaine and marijuana on five separate occasions and an affidavit from Megan R. Jones, who was the supervisor at the lab that performed Smith’s drug tests, attesting to the positive results of those tests. Smith objected to the admission of State’s Exhibit 1 on the grounds that it denied him his due process right to confrontation and that it was not reliable because it spoke only to the general lab procedures and not to the specific test results in this case.

The trial court overruled Smith’s objection and admitted State’s Exhibit 1. It specifically found that the information contained in State’s Exhibit 1 was reliable:

The affidavit of Ms. Jones establishes her expertise in the area of drug analy-ses. The laboratory performs thousands of urine drug screens on probationers under the supervision of Marion Superi- or Court. The procedures and protocols used by Global Drug Testing Labs were set forth in the exhibit. Ms. Jones personally reviewed the records kept in regard to the Defendant’s tested urine samples. Ms. Jones attested that all procedural steps were followed in the testing of these samples and the results of said tests were highly reliable.

Appellant’s App. 51. Thus, in an order dated June 24, 2010, the trial court found that Smith had violated the terms of his community-corrections placement by testing positive for cocaine and marijuana. As a result, it revoked Smith’s community-corrections placement and ordered him to serve two years’ imprisonment in the Indiana Department of Correction. The court credited Smith 98 days for the 49 days that he had spent incarcerated (with 49 days’ good time credit) and 117 days for the days he had served on home detention (with no good time credit).

Smith appealed, claiming (1) that his due process right to confrontation was violated by the admission of State’s Exhibit 1; and (2) that the trial court committed fundamental error by not giving him good time credit for the time he spent on home detention pursuant to amended Indiana Code section 35-38-2.6-6 (which took effect on July 1, 2010). In response, the State filed a Motion to Dismiss Smith’s appeal as untimely, which the Court of Appeals granted.

Smith sought, and we granted, transfer, Smith v. State, 962 N.E.2d 641 (Ind.2011) (table), thereby vacating the dismissal order of the Court of Appeals and reinstating Smith’s appeal. Ind. Appellate Rule 58(A). Both parties have submitted briefs on the merits in this case, which we consider below.

Discussion

I

As an initial matter, we briefly address the “State’s Second Motion to Dismiss” filed on February 1, 2012, which is pending before the Court. In that motion, the State argues that we should dismiss this appeal because it is moot. For his part, Smith concedes that he has served his sentence and so his argument related to the application of amended Indiana Code section 35-38-2.6-6 in which he claims that he is entitled to home-detention good time credit toward his sentence is in fact moot. See Lee v. State, 816 N.E.2d 35, 40 n. 2 (Ind.2004) (validity of sentence rendered moot after sentence has been served). Thus, we decline to address Smith’s arguments related to this amendment’s retroactive application and equal protection implications. We do note, however, that in another case handed down today, Cottingham v. State, 971 N.E.2d 82 (Ind.2012), we hold that amended Indiana Code section 35-38-2.6-6 applies to those who are placed on home detention on or after its effective date of July 1, 2010, and in this case, Smith was placed on home detention in January, 2010.

II

Nevertheless, we will consider Smith’s argument that his due process right to confrontation was violated by the admission of State’s Exhibit 1. As mentioned above, the trial court’s finding that Smith had violated the terms of his community-corrections placement was based on this exhibit. And a finding that Smith violated the terms of his community-corrections placement may have negative collateral consequences. See Ind.Code § 35-38-1-7.1(a)(6) (2008) (violation of community-corrections placement may be a statutory aggravating factor in the event Smith is sentenced for committing another crime); see also Hamed v. State, 852 N.E.2d 619, 621-22 (Ind.Ct.App.2006) (addressing merits of claim because of possible negative collateral consequences).

A

We have recognized that persons facing revocation of their community-corrections placements are entitled to certain due process rights at their revocation hearings, including a right to confrontation. See Cox v. State, 706 N.E.2d 547, 549-50 & n. 6 (Ind.1999) (the due process requirements applicable in probation-revocation hearings also apply in community-corrections-revocation hearings); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (the Due Process Clause applies to probation-revocation hearings). This is so even though the Sixth Amendment and the U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), on the Sixth Amendment right to confrontation do not apply to such proceedings. See Reyes v. State, 868 N.E.2d 438, 440 n. 1 (Ind.2007) (Crawford is not implicated in revocation hearings because they are not criminal trials); see also United States v. Kelley, 446 F.3d 688, 691 (7th Cir.2006) (“Because revocation proceedings are not criminal prosecutions, Sixth Amendment rights are not implicated.” (citation omitted)).

In this case, Smith concedes that he does not have a Sixth Amendment/CV<m>ford right to confrontation in his revocation hearing. Nevertheless, he argues that we should find that his due process right to confrontation requires confrontation as defined in Crawford, and that the trial court denied Smith his due process right to confrontation by admitting State’s Exhibit 1.

We reject the argument that Smith’s due process right to confrontation should be the same right to confrontation as defined in Crawford for purposes of the Sixth Amendment; moreover, we reject any argument that Crawford changed the due process analysis we employ in revocation proceedings. Cf. State v. Rose, 144 Idaho 762, 171 P.3d 253, 258 (2007) (rejecting argument that Crawford applies with equal force to a probationer’s due process right to confrontation); State v. Marquis, 292 Kan. 925, 257 P.3d 775, 778-79 (2011) (rejecting argument that Crawford changed due process analysis applicable to probation-revocation proceedings).

In Reyes, we adopted the “substantial trustworthiness” test for determining when hearsay evidence should be admitted at probation-revocation hearings. 868 N.E.2d at 441 (following Kelley, 446 F.3d at 692). In adopting this test, we considered the U.S. Supreme Court’s decisions holding that the Due Process Clause applies to parole and probation revocation hearings. See Gagnon, 411 U.S. 778, 93 S.Ct. 1756 (probation-revocation hearings); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole-revocation hearings). We wrote:

Morrissey outlined the minimum requirements to satisfy due process in a parole revocation hearing. Though the Supreme Court listed the confrontation right as one of those minimum requirements—holding in a parenthetical that a hearing officer may only deny the right with good cause—the Court also issued a caveat: ‘We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489 [92 S.Ct. 2593]. In Gagnon, in which the Supreme Court applied the requirements of Morrissey to probation revocation hearings, the Court clarified the confrontation right of probationers: “While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morris-sey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.” Gagnon 411 U.S. at 782-83 n. 5, 93 S.Ct. 1756.

Reyes, 868 N.E.2d at 440 (emphasis added). Thus, we held in Reyes that a defendant’s due process right to confrontation is satisfied upon a finding that the hearsay evidence is substantially trustworthy because that is the equivalent of Morrissey’s good-cause showing. Id. at 442.

Notwithstanding Reyes, Smith argues that, because Crawford disapproved of dispensing with the right of confrontation based upon reliability, we should not base our admission of hearsay evidence in revocation hearings on the reliability or substantial trustworthiness of such evidence. See Crawford, 541 U.S. at 61, 124 S.Ct. 1354 (“[W]e do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ”). Crawford, which was decided more than three years before our decision in Reyes, held that the Sixth Amendment generally prohibits denying criminal defendants the right to confront out-of-court declarants whose statements are testimonial in nature regardless of the reliability of such statements. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (“Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”); accord Rose, 171 P.3d at 257. But, again, we note that the holding of Crawford was based on the Sixth Amendment; it “changed nothing with respect to revocation hearings.” Kelley, 446 F.3d at 691. Thus, as we implicitly recognized in Reyes, because the holdings in Morrissey and Gagnon were based on due process concerns, they were not affected by the holding in Crawford. See also id. at 691 (“Morrissey’s articulation of a limited confrontation right in revocation proceedings was explicitly grounded in considerations of due process, not the Sixth Amendment. ... [N]othing in [Crawford ] can be read to suggest that Morrissey and Gag-non have been implicitly altered....”); Rose, 171 P.3d at 258-59 (“Crawford does not change the due process standard for confrontation in a probation revocation hearing” (citing Reyes and Kelley, among others)); Marquis, 257 P.3d at 778-79 (test for determining good cause grounded in minimum due process requirements set forth in Morrissey and Gagnon, and Crawford did not change that analysis). And as Morrissey held, due process does not require that persons like Smith be granted an absolute right of confrontation in revocation hearings, but rather a limited right that may be denied for good cause. 408 U.S. at 488-89, 92 S.Ct. 2593; see also Cox, 706 N.E.2d at 549 (“[P]robationers are not entitled to the full array of constitutional rights afforded defendants at trial.” (citations omitted)); accord Rose, 171 P.3d at 258. Accordingly, in Reyes, we adopted the substantial-trustworthiness test for the admission of hearsay evidence in revocation proceedings to meet Morris-sey’s due process concerns.

Further, we note that there are strong policy reasons for not equating the due process right to confrontation applicable in revocation hearings with the Cranford right to confrontation applicable in criminal trials. As we wrote in Cox, the flexible approach outlined in Morrissey serves public policy in a variety of ways:

This [flexible approach] is necessary to • permit the court to exercise its inherent power to enforce obedience to its lawful orders.
There are also sound policy justifications for such flexibility. Alternative sentences such as probation and community corrections serve the humane purposes of avoiding incarceration and of permitting the offender to meet the offender’s financial obligations. But for sentencing alternatives to be viable options for Indiana judges, judges must have the ability to move with alacrity to protect public safety when adjudicated offenders violate the conditions of their sentences. Put differently, obstacles to revoking an alternative sentence may diminish the likelihood of community corrections placements being made in the first place.

Cox, 706 N.E.2d at 550 (internal citation omitted). We therefore reject Smith’s argument that his due process right to confrontation in revocation hearings requires confrontation as defined in Crawford.

B

Our inquiry does not end there, however. We must now address whether Smith’s due process right to confrontation was in fact violated by the admission of State’s Exhibit 1. In doing so, we consider whether the evidence supports the trial court’s finding that State’s Exhibit 1 was substantially trustworthy (or in the trial court’s terms, reliable). See, e.g., Reyes, 868 N.E.2d at 442 (considering whether the evidence adequately supports the finding that hearsay affidavits were substantially trustworthy). We conclude that it does.

As mentioned above, State’s Exhibit 1 consists of five lab reports showing that Smith had tested positive for cocaine and marijuana on five separate occasions and an affidavit from Megan R. Jones, who was the supervisor at the lab that performed Smith’s drug tests. In her affidavit, Jones attested to a number of things:

• She is the Lab Supervisor of Global Drug Testing Labs (“Lab”), and in that capacity, she is familiar with the procedures utilized by the employees to ensure the integrity of the chain of custody of the specimens submitted to the Lab and in the testing of the specimens.
• The procedures employed by the Lab, including the urine specimen’s submission; the storage and transportation of the specimen; the chain of custody and labeling; and the testing and retesting of specimens.
• She reviewed the records kept in the Lab with regard to the urine specimens submitted by Robert Smith on February 2, 2010; March 3, 2010; April 9, 2010; April 19, 2010; and April 26, 2010, and all the procedural steps were followed in analyzing this specimen according to the documentation kept in the normal course of business of the Lab.
• The various analyses of the specimen provided by Smith tested positive for cocaine and THC (marijuana).

State’s Ex. 1, at 3-5. The affidavit was made under oath, was signed by Jones, and was notarized.

After reviewing the record, we conclude that the evidence adequately supports the trial courts findings that State’s Exhibit 1 is substantially trustworthy. Cf. Reyes, 868 N.E.2d at 442 (affidavits found to be substantially reliable when the affiant was director of lab, was familiar with procedures employed to ensure chain of custody and validity of testing, and had reviewed records with regard to drug test at issue). Thus, Smith’s due process right to confrontation was not violated by the admission of this exhibit.

Conclusion

We affirm the judgment of the trial court.

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

      . In its order, the trial court referred to this exhibit as State’s Exhibit A, but we understand the court to mean State's Exhibit 1.

      . The trial court found that the other allegations of Smith violating the terms of his community-corrections placement had not been proved by a preponderance of the evidence.

      . On September 12, 2011, Smith filed "Appellant’s Verified Motion to Dismiss State's Cross-Appeal,” which is still pending before the Court. In its cross-appeal, the State argues that we should dismiss this appeal for lack of jurisdiction for reasons related to Smith’s utilizing Trial Rule 60(A) in this proceeding. After having granted transfer and having reinstated Smith’s appeal following its dismissal by the Court of Appeals, we reject the State’s argument that this Court should similarly dismiss it on jurisdictional grounds.

      . Moreover, we note that the decision by the panel of the Court of Appeals in Brown v. State, which we discuss at length in Cotting-ham. rejected the same equal protection argument presented in this case—namely, that not applying amended Indiana Code section 35-38-2.6-6 retroactively violates the Equal Protection Clause of the Fourteenth Amendment. 947 N.E.2d 486, 492-93 (Ind.Ct.App.2011), trans. denied. We also note that Smith’s counsel in this case was also the defendant’s appellate counsel in Brown.