author: NAJAM, Judge.

text:
    Richard J. BOND and Janet A. Bond, et al., Appellants-Defendants, v. TEMPLETON COAL COMPANY, INC., Appellee-Plaintiff.
    No. 42A01-1209-PL-419.
    Court of Appeals of Indiana.
    May 15, 2013.

      Jeffrey B. Kolb, Christopher Michael Ripley, Kolb Roellgen & Kirchoff LLP, Vincennes, IN, Attorneys for Appellants.
    Jeffrey A. Lewellyn, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Richard J. Bond and Janet A. Bond (“the Bonds”) appeal the trial court’s grant of summary judgment for Templeton Coal Company, Inc. (“Templeton”) on Temple-ton’s complaint to quiet title to certain mineral interests. The Bonds present a single issue for our review, which we restate as whether Templeton’s use of the mineral interests from 1964 to the present, following a thirty-five-year period of non-use, precludes lapse of those interests under the Indiana Mineral Lapse Act, Indiana Code Sections 32-23-10-1 to -8 (“the Act”). We affirm the trial court’s grant of summary judgment for Temple-ton.

FACTS AND PROCEDURAL HISTORY

The parties stipulated to and designated the following relevant facts. In 1962 and 1976, the Bonds became the owners of certain real property totaling about 173 acres in Knox County. In May of 1929, certain mineral interests, including coal, underlying that property had been severed and conveyed to the Linton-Summit Coal Company (“LSCC”). In February of 1960, Templeton merged with the LSCC and became the owner of the severed mineral interests. From 1964 to the present, Templeton has paid appropriate taxes on its mineral interests.

The Bonds asserted that Templeton’s interests in the minerals had lapsed under the Act due to nonuse for twenty or more consecutive years and, as such, the Bonds were the proper owners of those interests under Indiana law. In November of 2006, Templeton filed a complaint against the Bonds and others to quiet title to the severed mineral interests. After the parties had settled the remainder of their claims, they filed cross-motions for summary judgment on the question of ownership of the mineral interests. In a comprehensive order, the trial court granted summary judgment to Templeton. In particular, the court concluded that the Act applied retroactively to 1951, but not before 1951; that paying taxes on the mineral interests constituted a “use” of those interests under the Act; and that Temple-ton never failed to use its interests for twenty consecutive years during a time-frame to which the Act applied. Accordingly, the court entered summary judgment for Templeton. This appeal ensued.

DISCUSSION AND DECISION

The Bonds appeal the trial court’s grant of summary judgment for Templeton. Our standard of review for summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). Where, as here, the facts are undisputed and the issues presented are pure questions of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App.2004).

This appeal requires us to construe the Act. Our goal in statutory construction is to determine, give effect to, and implement the intent of the legislature. Ind. Pesticide Rev. Bd. v. Black Diamond Pest & Termite Control Inc., 916 N.E.2d 168, 181 (Ind.Ct.App.2009), trans. denied. When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction. Id. We review the statute as a whole and presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. See Curley v. Lake County Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind.Ct.App.2008) (quotation omitted), trans denied. In other words, “we are obliged to suppose that the General Assembly chose the language it did for a reason.” State v. Prater, 922 N.E.2d 746, 750 (Ind.Ct.App.2010), trans. denied.

The only issue in this appeal is whether the Act applies retroactively, which is a question of first impression for this court. As our supreme court has explained: “The general rule of statutory construction is that[,] unless there are strong and compelling reasons, statutes will not be applied retroactively. Statutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well.” State v. Pelley, 828 N.E.2d 915, 919 (Ind.2005) (citations omitted).

The Act is in derogation of the common law. “At common law, an owner of a mineral did not lose it by nonuse, abandonment or cessation in working the mine. However, the legislature altered that rule by enactment of [the Act]. The Act extinguishes mineral rights which have not been ‘used’ for the statutory period.” Consolidation Coal Co. v. Mutchman, 565 N.E.2d 1074, 1080 (Ind.Ct.App.1990) (citation omitted), trans. denied. It is well established that “a statute in derogation of the common law must be strictly construed,” as we “presume that the legislature is aware of the common law and intends to make no changes therein beyond its declaration either by express terms or unmistakable implication.” Clark v. Clark, 971 N.E.2d 58, 62 (Ind.2012) (citations and quotation omitted).

Our legislature passed the Act in 1971 “to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources.” Short v. Texaco, Inc., 273 Ind. 518, 406 N.E.2d 625, 630 (1980), aff'd, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982). Thus, according to Indiana Code Section 32-23-10-2:

An interest in coal, oil and gas, and other minerals, if unused for a period of twenty (20) years, is extinguished and the ownership reverts to the owner of the interest out of which the interest in coal, oil and gas, and other minerals was carved. However, if a statement of claim is filed in accordance with this chapter, the reversion does not occur.

Under Indiana Code Section 32-23-10-4, a “statement of claim under Section 2 of this chapter must: (1) be filed by the owner of the mineral interest before the end of the twenty (20) year period set forth in [Section 2_” And Indiana Code Section 32-23-10-3(a) provides: “A mineral interest is considered to be used when: ... (6) taxes are paid on the mineral interest by the owner of the mineral interest.” In other words, payment of taxes on the mineral interest by the owner tolls the twenty-year dormancy period. Miller v. Weber, 839 N.E.2d 204, 209-10 (Ind.Ct.App.2005), trans. denied.

On appeal, the Bonds assert that Tem-pleton’s mineral interests have lapsed under the Act based on the thirty-five-year period of nonuse between 1929 and 1964. There is no dispute that, from 1964 to the present, Templeton’s payment of taxes on its mineral interests constituted a “use” under Indiana Code Section 32-23-10-3(a)(6). There is also no dispute that Tem-pleton never filed a statement of claim pursuant to the Act. See Ind.Code § 32-23-10-4. Thus, the only question in this appeal is whether the Act applies retroactively to the 1929-1964 time period.

The Act does not explicitly state that our legislature intended for it to apply retroactively. However, the original language of the Act provided that the “statement of claim ... shall be filed by the owner of the mineral interest prior to the end of the twenty (20) year period [described in Section 2] or within two (2) years after the effective date of this act, whichever is later ....” I.C. § 32-5-11-4 (1971) (emphasis added). That statute was subsequently amended to replace “within two (2) years after the effective date of this act” with “before September 3, 1973,” or two years and one day after the effective date of the Act. See Pub. L. No. 187, § 48 (1982); see also Short, 454 U.S. at 518,102 S.Ct. 781 (noting that the effective date of the Act was September 2, 1971).

In light of the original statutory language, it is clear that our legislature intended for the Act to apply retroactively to some behavior that predated the Act. If the Act were intended to be prospective only, the 1971 language that a statement of claim be filed “within two (2) years after the effective date of this act, whichever is later” would serve no purpose. See I.C. § 32 — 5—11—4 (1971). That is, under a purely prospective approach, the end of the twenty-year period would always be later than a date within two years after the effective date of the Act.

Thus, the language “or within two (2) years after the effective date of this act, whichever is later,” makes sense only if our legislature intended for the Act to apply retroactively. When the Act is applied retroactively, there are circumstances in which a date within two years of the effective date of the Act is later than the twenty-year period described in Section 2. And in those circumstances, the Act provided a two-year grace period to file a statement of claim to preserve unused mineral interests. See Am. Land Holdings of Ind., LLC v. Jobe, 655 F.Supp.2d 882, 890 (S.D.Ind.2009), aff'd on other grounds, 604 F.3d 451 (7th Cir.2010). That grace period ended before September 3,1973.

The question remains to what extent the Act applies to behavior that predated the Act. In other words, the Bonds contend that Section 2 of the Act is unambiguous and applies retroactively to all potentially extinguishable interests. They maintain that, in circumstances where there was a remote or “ancient period of non-use,” see Appellee’s Br. at 14, for any twenty-year period following severance of the mineral interest, and that non-use concluded before the effective date of the 'Act, the only manner in which the mineral owner could have preserved that interest was to have filed a statement of claim under Section 4 of the Act before September 3, 1973. Templeton counters that Section 2 is ambiguous and, as such, should be strictly construed to limit its application to the twenty years immediately preceding the effective date of the Act. We agree with Templeton and the trial court.

The parties first dispute the scope of various statements made by the Indiana Supreme Court and the United States Supreme Court in their respective opinions in ShoH. In that case, certain mineral interests were severed from the surface rights of 132 acres of land in Gibson County in 1942, 1944, and 1954. In each scenario, the parties stipulated that the purported owners of the mineral interests never used their interests within the meaning of the Act and never filed statements of claims to secure their interests. Short, 454 U.S. at 521-22, 102 S.Ct. 781. In 1977, the surface owners informed the purported owners of the mineral interests of the lapse of those interests under the Act. The owners of the mineral interests filed suit to quiet title, and the Gibson Circuit Court declared the Act unconstitutional.

On direct appeal, the Indiana Supreme Court held that the Act was not unconstitutional. In particular, the court held that the Act did not violate due process or equal protection and that the Act did not constitute a taking without just compensation. Short, 406 N.E.2d at 627-32. The court assumed that the Act had some retroactive application based on the facts of the case, but the court did not expressly consider that issue.

On further appeal, the United States Supreme Court, in a 5-4 decision, affirmed the decision of the Indiana Supreme Court. The United States Supreme Court also did not expressly consider the degree to which the Act applied retroactively, though the Court did recognize that the Act had some retroactive application. In particular, the Court noted that the Act “contained a 2-year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim.... ” Short, 454 U.S. at 518-19, 102 S.Ct. 781 (emphasis added). Later, the Court stated:

We have concluded that appellants [the purported owners of the mineral interests] may be presumed to have had knowledge of the terms of [the Act]. Specifically, they are presumed to have known that an unused mineral interest would lapse unless they filed a statement of claim. The question then presented is whether, given that knowledge, appellants had a constitutional right to be advised — presumably by the surface owner — that their 20-year period of nonuse was about to expire.
In answering this question, it is essential to recognize the difference between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did in fact occur. As noted by appellants, no specific notice need be given of an impending lapse. If there has been a statutory use of the interest during the preceding 20-year period, however, by definition there is no lapse — whether or not the surface owner, or any other party, is aware of that use.

Id. at 533-84, 102 S.Ct. 781 (emphasis added).

Here, Templeton asserts that the emphasized language above demonstrates that the Act has limited retroactive application, namely, to only the twenty years preceding its effective date. The Bonds assert that the Court’s comments were fleeting and not binding on this court’s interpretation of Indiana law. See, e.g., Kirby v. Ashland Oil Inc., 463 N.E.2d 1127, 1129 n. 3 (Ind.Ct.App.1984) (noting that “we are not bound by [the Court’s] interpretation of Indiana statutory law”). Instead, the Bonds continue, the fact that both the Indiana Supreme Court and the United States Supreme Court applied the Act to interests created as early as 1942 demonstrates that the Act applies to the time when the mineral interests are created, not only to within twenty years of the Act’s effective date.

We are not persuaded by either Temple-ton’s or the Bonds’ use of the two Short opinions. Neither the Indiana Supreme Court’s opinion nor the United States Supreme Court’s opinion is binding authority in this appeal. Neither court expressly considered the scope of the Act’s retroactive effect. Further, the purported owners of mineral interests in Short had never used their interests. Thus, the holdings of the Indiana Supreme Court and the United States Supreme Court would have been the same regardless of whether the Act’s retroactive effect was limited to twenty years before its effective date. Here, on the other hand, it is not disputed that Templeton used its mineral interests from 1964 to the present by paying appropriate taxes, but that that use followed a thirty-five-year period of nonuse.

The only court to have expressly considered the scope of the Act’s retroactive effect concluded that our legislature intended to limit the Act’s reach to the twenty-year period preceding the Act’s effective date. Specifically, the United States District Court for the Southern District of Indiana has reasoned as follows:

the Court determines that the twenty-year period of non-use must have occurred beginning on or after September 8, 1951, which is twenty years prior to the effective date of the Act.[] The language of the Act is ambiguous; it refers to the extinguishment of an interest “if unused for a period of twenty years,” which could either mean “an interest that has not been used for the past twenty years” or “an interest that has not been used for any twenty-year period since its creation.”
... In this case, the reading urged by the Defendants [that any twenty-year gap in use prior to 1973 causes a lapse of the interests] clearly is the less reasonable of the two and would lead to an unjust result. Requiring the owner of a mineral interest to either ensure that some act of use had occurred during the past twenty years or file a statement of claim is one thing; requiring that same owner to file a claim unless it could be certain that there was no twenty-year gap in “use” from the time of severance to 1973 is quite another.
More importantly, the purpose of the statute is wholly fulfilled by the former reading; the State would gain nothing further by adopting the latter.... When, as in this case, the owner of the mineral interest had resumed use prior to the enactment of the Act, any uncertainty in title or other “mischief’ caused by a prior period of misuse had been remedied, and requiring the now-active owner to file a statement of claim would add nothing. Therefore, the Court declines to read the Act as imposing such a requirement. Even if the mineral interests in this case were not “used” from 1925 to 1954, the fact that they have been used from 1955 to the present would have kept them from being extinguished by operation of the Act.

Am. Land Holdings, 655 F.Supp.2d at 891-92 (footnote omitted).

The Bonds assert, and we acknowledge, that the district court’s assessment of Indiana statutory law is not binding on this court, see, e.g., Kirby, 463 N.E.2d at 1129 n. 3, and, further, was “pure dictum,” see Appellant’s Br. at 16. Nonetheless, the district court’s reasoning and conclusion are persuasive, and we agree with the court’s assessment.

As the district court concluded, the scope of Section 2’s retroactive application is ambiguous. The statutory language says: “An interest in coal, oil and gas, and other minerals, if unused for a period of twenty (20) years, is extinguished and the ownership reverts to the owner of the interest out of which the interest in coal, oil and gas, and other minerals was carved....” I.C. § 32-23-10-2. As the district court explained, that language can reasonably be read to mean either any twenty-year period after the creation of the mineral interests or only the twenty-year period immediately preceding the Act’s effective date. Am. Land Holdings, 655 F.Supp.2d at 891.

The Bonds assert that the district court’s reasoning is “wrong” and offer the following hypothetical in response:

Assume a mineral interest created in 1984 is not used for a period of time up to and through 2005[,] which is a twenty-one (21) year period of time of no use. However, taxes are paid in 2007 and thereafter using the mineral interest for those years. Even under Templeton’s argument and the trial court’s conclusion, the expiration of the twenty (20) year period of time of nonuse and the failure to file a statement of claim during that twenty (20) year period causes the mineral interest to lapse whether or not there has been any use after that twenty (20) year period of time. There is no reason why there should be any different treatment for a period of no use for a mineral interest created in 1929.

Appellant’s Br. at 16-17.

The problem with the Bonds’ hypothetical, which the Bonds disregard on appeal, is that there is no question that the Act applies to the time frame presented in it. That the Act applies to present circumstances does not dictate that it applies retroactively to all circumstances. Indeed, the Bonds fail to consider that, at the time Templeton’s interests were not used, 1929-1964, that nonuse was wholly consistent with the common law. See Consolidation Coal Co., 565 N.E.2d at 1080. As an act in derogation of the common law, the Act must be strictly construed. Clark, 971 N.E.2d at 62. And, again, the purpose of the Act was “to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources.” Short, 406 N.E.2d at 630.

Considering Section 2’s ambiguity, the rule to strictly construe acts in derogation of the common law, and the Act’s underlying purposes, we hold that Section 2 is limited in its retroactive application to only the twenty-year period immediately preceding the effective date of the Act, or September 2, 1951. A broad reading of Section 2 is not warranted by either the language or the purposes of the Act, as thoroughly explained by the district court. Am. Land Holdings, 655 F.Supp.2d at 891-92. In addition to the district court’s reasons, permitting the Act to apply broadly to any time period before its effective date could lead to absurd results, which we will not permit. See Curley, 896 N.E.2d at 34. For example, if an owner of mineral interests failed to use those interests from, say 1900 to 1921, but then actually mined them and exhausted them before 1971, it would be absurd to say that the 1971 Act retroactively stripped the owner of its interests, or its profits from those interests, based on the nonuse from 1900 to 1921. Moreover, such an interpretation would create uncertainty in the ownership of mineral interests, which is exactly what the Act seeks to prevent.

Conversely, if an owner of mineral interests on September 2, 1951, failed to use those interests during the twenty-year period between then and the effective date of the Act, the Act granted the owner an additional two-year grace period to file a statement of claim to preserve its interests. But if the owner began to use its mineral interests after September 2, 1951, and before the effective date of the Act, there is no twenty-year period of nonuse for purposes of the Act and, hence, no lapse of the interests.

The latter scenario is what the parties’ stipulated facts demonstrate happened here. After a thirty-five-year period of nonuse from 1929 to 1964, Templeton began paying appropriate taxes on its mineral interests, which is a “use” of those interests under Indiana Code Section 32-23-10 — 3(a)(6). Templeton has paid its taxes on those interests every year since 1964. The trial court entered a detailed and well-reasoned order for summary judgment on the issue of retroactivity, and we agree with the court that on the stipulated facts Templeton holds the record title to the mineral interests and that there has been no lapse of the mineral interests under the Act. Therefore, we affirm.

Affirmed.

ROBB, C.J., and CRONE, J., concur.

      . Defendant-Intervenor Vectren Fuels, Inc. has joined Templeton's brief on appeal. The other named defendants below do not participate in this appeal.

      . The Act is also known as the Dormant Mineral Act.

      .The parties agree that their respective interests in the real property and the minerals were properly recorded by numerous documents. Because the record dates are not relevant to this appeal, for ease of discussion we discuss only the parties’ stipulated dates of ownership.

      . Though the parties’ motions were styled as motions for partial summary judgment, there is no dispute that their settlement of all other claims rendered the court’s entry of summary judgment a final judgment. Further, the court expressly entered its summary judgment as a final judgment pursuant to Trial Rule 54.

      . There is no dispute that the exception for remedial statutes, that is, statutes intended to cure a defect or mischief that existed in a prior statute, does not apply here. See Pelley, 828 N.E.2d at 919.

      . Section 2 of the Act has not been materially changed since 1971.

      . Justice Brennan, writing for the four dissenting Justices, asserted that retroactive application of the Act was unconstitutional. Short, 454 U.S. at 554, 102 S.Ct. 781 (Brennan, J., dissenting).

      . For the same reason, we do not consider McCoy v. Richards, 771 F.2d 1108 (7th Cir.1985), which relied in substantial part on the United States Supreme Court’s opinion in Short.

      .For the same reason we need not consider this court’s holding in Consolidation Coal Company, in which the mineral interests were created in 1943 and the owner of those interests used them by paying appropriate taxes every year following their creation. 565 N.E.2d at 1080. As the trial court noted, in Consolidation all taxes had been paid to date since the tax sale of the mineral interests in 1943, by the same persons who claimed an interest in the mineral estate, and on those facts no reversion of the coal estates occurred in favor of the surface owners under the Act.

      . As discussed above, the date twenty years before the effective date of the Act was September 2, 1951, not September 3.

      . On this issue, the district court held: "there was no twenty-year period from [the year of the creation of the interests] to the present during which the mineral taxes on the Subject Property went unpaid. However, even if there were, the Court does not believe that the mineral interests] would have been extinguished by the Act....” Am. Land Holdings, 655 F.Supp.2d at 890. The court then went on to consider the Act’s retroactive effect in support of the alternative, hypothetical scenario that there had been a twenty-year period in which the taxes on the interests had gone unpaid. Id. at 891-92.

      . The trial court acknowledged the extraordinary quality of the lawyering in this case as follows:
      The Court commends counsel for the parties on what is truly a shining example of masterful lawyering on behalf of their clients that distilled down to one count of the complaint the central issue in a massive, complex piece of litigation involving thousands of acres, thousands of pages of title and tax documentation, and an area of the law that is a matter of first impression in Indiana state courts concerning the interpretation and application of the Mineral Lapse Act.
      Appellant's App. at 24.


source: Caselaw Access Project

author: BROWN, Judge. BRADFORD, Judge,

license: Public Domain

text:
    Jason Lee SOWERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 08A02-1208-CR-640.
    Court of Appeals of Indiana.
    May 16, 2013.

      Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Jason Lee Sowers appeals his convictions for criminal recklessness as a class D felony, resisting law enforcement as a class D felony, and his adjudication as an habitual offender. Sowers raises two issues, one of which we find dispositive and restate as whether the communication between the bailiff and the foreperson resulted in fundamental error. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Terri Dean, Sowers’s mother, started noticing that Sowers, who was born on November 29, 1976, was experiencing mental health issues in the middle of 2005. Sowers’s mental health condition, personal hygiene, and finances worsened. In September 2008, Sowers “took a swing” at his brother, and Dean called the police. Transcript at 222. Sowers was in jail for seven days and then transferred to the Kokomo Mental Hospital and placed on a psychotic drug called Risperidone, which is a time released medication and is administered every two weeks. The medication helped, and Sowers switched from injections to pills about six months later.

In April or May 2010, Sowers’s behavior started to change and his personal hygiene declined to the extent that he would go weeks without a shower or washing his hair. Dean discovered that Sowers had quit taking his medication. She began visiting Sowers three times a day. In April 2011, Dean contacted the Frankfort Community Counseling Center and asked for assistance but was unable to receive any help.

On June 30, 2011, one of Sowers’s friends sent a text message to Dean and told her that Sowers was “talking strange, and look[ed] strange,” and that the friends were very uncomfortable. Id. at 282. Dean, her husband, Sowers’s cousin, and two brothers waited until Sowers was asleep, and then forcefully picked him up, and transported him to the St. Vincent Frankfort Hospital Emergency Room. Dean alerted the police that they were taking Sowers to the hospital, and about seven law enforcement officers showed up to help transport him into the hospital. Sowers refused to allow the emergency room personnel to do anything. An emergency detention order was obtained, the hospital gave him a shot, and Sowers was transferred to Howard Regional Mental Health Center in Kokomo.

On July 8, 2011, the Clinton Superior Court entered an order of temporary commitment following the emergency detention which found that Sowers was suffering from “schizo-[a]ffective and bipolar disorder,” was gravely disabled, and was in need of commitment to an appropriate facility for a temporary period not to exceed ninety days. Defendant’s Exhibit W. Sowers was taken to Howard Regional Health System and was given an injection of Ris-peridone. From Dean’s observations in the past when Sowers was on the medication, she was aware that it “usually took about three shots going towards the fo[u]rth one before he really leveled out.” Transcript at 238.

On July 10, 2011, a counselor called Dean and told her that Sowers was going to be released the next day. Dean told the counselor that she thought it was too soon to release Sowers, that she knew it took three doses of medication “really close to the fo[u]rth one coming before he was safe to be around and if she released him the next day she was setting him up and everybody else around him up for a disaster because he wasn’t ready.” Id. at 239. Howard Regional Health System released Sowers on July 11, 2011.

The second shot was supposed to take place at the Frankfort Community Counseling Center on July 21, 2011. Dean went over to Sowers’s residence and told him that he needed to shower and to go to the clinic for his second shot, and Sowers told her that he would drive himself. Dean later called the clinic and discovered that Sowers had not received his second shot. Dean returned to Sowers’s residence and asked him why he did not go for his second shot, and Sowers was very agitated and said that they made him mad. Dean tried to take Sowers to the clinic but was unable to take him. She returned to Sowers’s residence that night, and he became “mean to where [Dean] was fearful of him.” Id. at 245.

Dean did not initially contact the court because she was under the impression that it was the clinic’s responsibility. On the following Thursday, Dean called the court reporter for the judge that entered the order of temporary commitment, and she was told that she needed to call the clinic and that the clinic was ordered to let the court know if Sowers did not appear for shots. Dean took that step but nothing happened. Dean’s husband was concerned and made her turn her cell phone on, place it in her pocket, and leave it on when she went to Sowers’s residence.

A friend of Sowers called Dean and told her that Sowers had followed her home from work and made her very uncomfortable and that if he continued that she was going to have to put a restraining order against him. That Friday, Dean went to Sowers’s residence, and Sowers met her at the door. Dean asked Sowers why he followed his friend, and Sowers denied it and slapped Dean and told her it was time to go. Dean left and returned later to offer Sowers lunch and dinner.

On August 1, 2011, Sowers entered Dean’s residence and Dean saw that he had the “most horrific look in his eyes.” Id. at 252. Sowers told Dean that he had a flat tire, and Dean started to stand up from her chair, but Sowers forcefully put himself right in front of her and told her that he did not need her help and called her “some not so nice names” and said some “pretty rude nasty things.” Id. Dean told Sowers that he needed to leave because she was scared. Sowers left in his vehicle and Dean noticed that one of the tires was completely “gone.” Id.

Dean locked the door and called the clinic and explained that the situation had become very desperate. A nurse at the clinic called Dean back and stated that she was “so sorry that they hadn’t helped [Dean] with [Sowers] and had already called the court and they were going to issue [an] emergency detention order then.” Id. at 253-254. Dean called the Clinton County Sheriff so that they would understand the situation and said that Sowers was “very, very, paranoid[,] he trusts no one. Whatever you do don’t corner him.” Id. at 254.

Clinton County Sheriffs Deputy Tim Dillingham was aware of the emergency detention order for Sowers and that Sowers had made threats to family members. Deputy Dillingham was alerted to Sowers’s position by another deputy, followed Sowers, and eventually activated his lights and siren. Sowers did not stop and continued through Boyleston' and Michigantown. Sowers, who by this time had all four tires fully inflated, eventually sped up and began passing vehicles in no passing zones and was “very close to causing a couple head on collisions in Clinton County.” Id. at 113. Two other law enforcement officers in fully marked vehicles joined the pursuit and one of the officers had a video camera which was activated. At some point, Indiana State Police Trooper Larry Mote attempted to pass Sowers, and Sowers struck the rear panel of Trooper Mote’s vehicle and “spun him out.” Id. at 118. Trooper Mote’s vehicle struck a guard rail, flipped up into the air, went down an embankment, and ended up upside down with all four tires in the air.

Deputy Dillingham continued to follow Sowers, and Sowers abruptly turned into a driveway. Crystal McAninch heard a vehicle pull in her driveway and observed Sowers run out of his car and toward her garage. McAninch then grabbed her son, ran through her garage into her house, and locked the door. Sowers pounded on the back door a couple of times. McAn-inch’s fiance, Kevin Cawvey, grabbed his shotgun, went to the door to the garage, cracked the door open, and noticed that the garage was pitch black. Cawvey asked McAninch if she had closed the garage door and before she could answer, Sowers stated that he closed the garage door. Cawvey turned on the light and opened the garage door. He asked Sowers why he was in the garage, and Sowers said that there were people chasing him and trying to kill him.

Carroll County Sheriffs Detective Kevin Hammond calmly took Sowers away, and Sowers did not resist physically. He told Detective Hammond that somebody had been chasing him and wanted to kill him and that he did not see any police officers behind him. Deputy Dillingham observed that Sowers was “very distant” with a “very blank stare.” Id. at 125. Deputy Dillingham transported him from that location to Howard Regional Hospital in accordance with the emergency detention order.

On August 8, 2011, the State charged Sowers with Count I, battery as a class C felony; Count II, criminal recklessness as a class D felony; and Count III, resisting law enforcement as a class D felony. The charges related to the pursuit on August 1, 2011. The State later alleged that Sowers was an habitual felony offender as Count IV.

On August 26, 2011, Sowers filed a notice of defense of mental disease or defect. On August 29, 2011, the court ordered that Sowers be evaluated by two psychiatrists or psychologists. On December 28, 2011, Dr. Lori Rogers filed a report which concluded that Sowers appeared to meet the criteria for insanity and that he was not criminally responsible for his actions that led up to his arrest on August 1, 2011, due to his severe delusional thinking. On January 19, 2012, Dr. Vernon Little filed a report with the court which concluded that Sowers is schizophrenic, experiencing a severe chronic mental illness, that “at the time of the arrest, his ability to ascertain reality from his own delusional thinking was profoundly deficient,” and that “he was legally insane at the time of the alleged offense.” Court’s Exhibit 1.

Beginning on June 5, 2012, the court held a jury trial. After the State rested, Sowers moved for a directed verdict. Sowers’s counsel argued that “there is no evidence, demeanor evidence, lay witness evidence, law enforcement evidence, psychiatric expert evidence, that does not support by a preponderance of the evidence that he was unable to appreciate the wrongfulness.” Transcript at 217. The prosecutor argued that the question of whether Sowers knew the wrongfulness of his actions was one for the jury. The court denied the motion and stated: “[Wjhile the Court is going to find that the [sic] in fact the defendant at this point may have met its burden the Court’s not going to find that it in fact has.” Id. at 219.

After the defense rested, the court provided the jury with copies of the final instructions. The court also read the instructions and told the jury “you can read along or you can simply listen to the court as the court reads the instructions.” Id. at 266. The court gave the following final instruction:

To return a verdict, each of you must agree to it. Each of you must decide the ease for yourself, but only after considering the evidence with the other jurors. It is your duty to consult with each other. You should try to agree on a verdict, if you can do so without compromising your individual judgment. Do not hesitate to re-examine your own views and change your mind if you believe you are wrong. But do not give up your honest belief just because the other jurors may disagree, or just to end the deliberations.

Appellant’s Appendix at 57; Transcript at 285.

During deliberations, the jury asked whether the video of the pursuit could be reviewed and the meaning of the word insolent. The court informed the jury that it could not provide a definition of the term insolent and the jury reviewed the video. At approximately 4:30 or 4:45 P.M., the jury foreperson asked the bailiff if she could text her children to let them know that she would not be home as scheduled, and the bailiff told her that she could as long as he could read the message so that he would know exactly what she wrote. The foreperson sent a text message to her children and told them that she would not be released until they reached a verdict.

At approximately 6:00 P.M., the foreperson asked the bailiff “if they were to stay and deliberate until they reached a 100 percent agreement with the counts.” Transcript at 355. The bailiff stated: “yes as the Judge stated in there you have to be 100 percent in agreement.” Id. at 355-356. The foreperson stated “okay” and returned to the jury room. Id. at 356. The jury returned to deliberations and then asked again to review the video. The court played the video again.

The jury found Sowers not responsible by reason of insanity on Count I, battery as a class C felony, and guilty but mentally ill of Count II, criminal recklessness as a class D felony, and Count III, resisting law enforcement as a class D felony. Sowers’s counsel asked to poll the jury. When asked whether those were her true verdicts, Juror No. 3 stated: “I have a conscience about it but yes.” Id. at 320.

Sowers waived the right to a jury trial with respect to the habitual offender allegation. The court then discharged the jury. The prosecutor asked the jury if he could speak with the jurors to talk about the case. Sowers’s counsel indicated that he had other matters immediately after the trial and was not going to be able to talk to them but advised the jury to share their thoughts with the prosecutor. The court then found Sowers to be an habitual felony offender.

The prosecutor informed the court that there was an interaction between a juror and the bailiff. Specifically, the prosecutor stated:

In the period of time immediately following the release of the jury, not immediately a few minutes after I went back to talk to the jurors, I believe that all 12 of the jurors were still present. Also back in the jury room with me were Deputy Hammond of the Carroll County Sheriffs Department and Master Trooper Larry E. Mote of the Indiana State Police. During the course of my discussion with the jury I asked the jurors if they had any questions for me. A juror that I know to be from the trial proceedings to be Linda Overman, asked me a question, I don’t know precisely the phrasing of the question but it was something in the general manner or did we have to reach a verdict? And I explained that criminal jury verdicts must be unanimous however it’s not absolutely true that there must be a verdict in that if there’s not a unanimous verdict and there’s a hung jury after a sufficient amount of time the court would declare a mistrial and the trial would be set off perhaps re-tried. The juror, Linda Overman, expressed unhappiness and said that they had been told and I don’t know exactly the phrase she used they had been told that there had to be verdicts. And I asked Ms. Over-man if she had put anything in writing and sent a note to the court. I did not recall such a note, she said no she had not. I asked her if she had received any written notes from the court on the subjects. She said no she had not. I asked her if she spoke to anyone about it she said no the foreperson had talked to the bailiff. The foreperson was there, Ms. Mrs. Minier, and Mrs. Minier either said yes she had or she nodded her head that she acknowledged that she had talked to the bailiff. I did not ask Ms. Overman or Ms. Mrs. Minier what the conversation was in large part because I felt that that probably should be done in the context if the defense felt in the context where the parties would be under oath and I did not discuss with them any further to the best of my memory as to what the proper procedure should have been. Except only to express my explanation to Ms. Overman that there did not have to be a verdict in a particular criminal trial.

Id. at 349-350. Upon direct examination by Sowers’s counsel, the prosecutor stated that it was his impression that the foreperson took the information from the bailiff back to the jury. The following exchange then occurred:

Defense Counsel: Is it your understanding that once that information was communicated that Mr. [sic] Overman at least took a course of action based upon that information?
Prosecutor: I can’t know that she took a particular course of action but her statements gave me the impression that she felt that that was a very important piece of information that that she might have proceeded differently. I can’t say exactly how she phrased that.
Defense Counsel: She was in fact the juror that was hesitate [sic] when pulled [sic] following the jury verdict being read?
Prosecutor: She is the same person that expressed some question about her conscience when she was originally pulled, [sic] I don’t remember exactly how she phrased it but we are talking about the same women [sic] on the jury yes.
Defense Counsel: And your impression was that had that information not been provided to her she would have taken a different course of action or she would have • understood different courses of action were available to her?
Prosecutor: The real impression I had was that my explanation that one vote for guilty or one vote for not guilty could hold up to a jury verdict was important to her in that she that was not the way that she had understood what she had been told.
Defense Counsel: Was it your impression that she could not hold out, I mean lack of a better phrase, that she had to make a decision with the jury rather than hold out. Was that your impression?
Prosecutor: Not being able to tell what’s in her mind that was the impression that I got from her statements.

Id. at 352-353.

The court then questioned the bailiff. The bailiff testified that Pam Minier, the person he believed to be the foreperson, asked “if they were to stay and deliberate until they reached a 100 percent agreement with the counts.” Id. at 355. The bailiff stated: “yes as the Judge stated in there you have to be 100 percent in agreement.” Id. at 355-356. The bailiff also indicated that he did not instruct the jury to put the question in writing and that Minier stated “okay” and returned to the jury room. Id. at 356. The bailiff also was not sure whether the other jurors heard his answer. After Sowers’s counsel questioned the bailiff, the court asked the parties whether any further record needed to be made, and the prosecutor and Sowers’s counsel indicated that no further record was necessary. The court then scheduled a sentencing hearing.

The court sentenced Sowers to two years for Count II, two years for Count III, and one and one-half years for Count IV. The court ordered that the sentences for Counts II and III run concurrent with each other and that the sentence for Count IV, run consecutive to Counts II and III. The court suspended the sentences for Counts II and III and placed Sowers on supervised probation for a period of two years.

DISCUSSION

The issue is whether the communication between the bailiff and the foreperson resulted in fundamental error. Sowers argues the communication between the bailiff and the jury foreperson was highly improper and misled the jury. Sowers concedes that he “did not make a real objection, or request a mistrial,” and that the issue would normally be waived. Appellant’s Brief at 40. However, Sowers argues that the communication by the bailiff resulted in fundamental error. Sowers contends that the denial of his right to an impartial jury is a violation of Article 1, Section 13 of the Indiana Constitution and that the error is fundamental.

The State argues Sowers waived his claim of improper communication with the jurors because Sowers did not object to the bailiffs communication with the juror or move for a mistrial. The State also argues that the error does not fall within the extremely narrow confines of fundamental error. The State contends that the bailiff simply referred the juror to the instructions that the court had read to the jury and observes that Final Instruction No. 28 stated in part: “To return a verdict, each of you must agree to it.” Appellant’s Appendix at 51. The State asserts that “[bjecause the improper ex parte communication between the bailiff and the juror resulted only in the bailiff reminding the juror of the court’s instruction that the verdicts had to be unanimous, which is simply what the court would have told the jury had a written question been referred to the judge, as would have been the proper procedure, Sowers suffered no harm or prejudice from this improper communication.” Appellee’s Brief at 13.

Generally, “[t]o ensure the right of criminal defendants generally to be present at all stages of a criminal proceeding, Indiana courts have often stated that when communication between a bailiff and a jury occurs outside the defendant’s presence, there is a presumption of harm to the defendant.” Azania v. State, 730 N.E.2d 646, 654 (Ind.2000), reh’g denied. “Reversal may be avoided only if no harm or prejudice to the defendant results.” Baxter v. State, 727 N.E.2d 429, 435 (Ind.2000), reh’g denied. When the trial court has addressed the issue of improper communications, we do not reweigh its determinations as to the credibility of the witnesses. Id. Because this is a factual determination, it is subject to a clearly erroneous standard of review. Id.

The Indiana Supreme Court has held that the “fundamental error” rule is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002), reh’g denied. “When determining whether a defendant suffered a due process violation based on an incorrect jury instruction, we look not to the erroneous instruction in isolation, but in the context of all relevant information given to the jury, including closing argument, and other instructions.” Id. (internal citations omitted). No fundamental error has occurred “where all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law.” Id.

Initially, we observe that Ind.Code § 35-37-2-6(b) provides that “[a]n officer may not communicate with a juror except: (1) as provided in sections 2 and 4 of this chapter; (2) to ask them if they have agreed on a verdict; or (3) when ordered to do so by the court.” Thus, the bailiff improperly communicated with the jury.

We find Coolman v. State, 163 Ind. 503, 72 N.E. 568 (1904), instructive. In that case, the defendant was charged with murder in the first degree. 163 Ind. at 504, 72 N.E. at 568. After the jury had retired to deliberate on their verdict, in the absence of the defendant and his counsel, and out of the presence and hearing of the judge of the court, the foreman of the jury said to the bailiff, who had been called to the door of the room in which the jury were kept, “We can’t agree upon a verdict, and have agreed to disagree.” 163 Ind. at 509-510, 72 N.E. at 570. The bailiff answered that he would go and see the judge. Id. at 510, 72 N.E. at 570. After doing so he returned to the door of the room and said to the foreman: “The judge says that he cannot receive a verdict of disagreement; that he is going out to his cottage at Shriner Lake, and will not be back until between six and seven o’clock; and that if you agree before that time he will receive the verdict when he returns, and, if you have not agreed at that time, he will receive your verdict when you do agree.” Id. The foreman then said to the bailiff, “But we must agree to disagree.” Id. To this, the bailiff replied, “Oh, pshaw, Henry!” and closed the door. Id. The jury found the defendant guilty of murder in the second degree. Id. at 504, 72 N.E. at 568.

On appeal, the Indiana Supreme Court held:

The conduct of the bailiff in holding a conversation with the foreman, in which he told the latter that the judge could not receive a verdict of disagreement; that the judge was going away to be absent until 6 or 7 o’clock, and would, on his return, receive the verdict if they had agreed, and otherwise he would receive it when they did agree; the remark of the foreman, “But we must agree to disagree;” and the response of the bailiff, “Oh, pshaw, Henry!” — were grossly improper.

Id. at 510, 72 N.E. at 570. The Court also held that the prejudicial effect on the minds of the jury may be conclusively presumed. Id. The Court observed that the jury had been deliberating for twenty hours when the conversation with the bailiff took place and that a verdict was agreed upon two hours later. Id. at 510-511, 72 N.E. at 570. The Court also held:

The statement of the bailiff to the foreman that the jury could not agree to disagree; that the judge would return between 6 and 7 o’clock to receive the verdict if they did agree, and, if they had not, he would receive it when they did agree — may well have been understood as a warning from the court that no disagreement would be permitted, and that he would keep them together until they did agree. Coming from the judge himself in the courtroom, in the presence of the defendant and his counsel, such a statement would have been improper. Made by a bailiff at the door of the jury room, in the absence of court, defendant, and counsel, and embellished by a contemptuous reference to the possibility of an honest disagreement, it cannot be too severely condemned.

Id. at 511, 72 N.E. at 571.

Here, we observe that the question was not whether the jurors had to reach 100 percent agreement to reach a verdict, but whether “they were to stay and deliberate until they reached a 100 percent agreement with the counts.” Transcript at 355. Further, the record reveals that the bailiffs comment was told to the foreperson and shared with at least Juror Ov-erman. The prosecutor stated that Juror Overman “said that they had been told and I don’t know exactly the phrase she used they had been told that there had to be verdicts.” Id. at 350 (emphases added). The prosecutor also stated that it was his impression that that the foreperson took the information from the bailiff back to the jury.

With respect to the impact of the bailiffs comment, we observe that Juror Over-man expressed unhappiness when the prosecutor informed her that a hung jury and a mistrial were a possibility. Further, the prosecutor stated that Juror Over-man’s statements gave him “the impression that she felt that that was a very important piece of information that that she might have proceeded differently.” Id. at 352 (emphasis added). The prosecutor stated that “[t]he real impression I had was that my explanation that one vote for guilty or one vote for not guilty could hold up to a jury verdict was important to her in that she that was not the way that she had understood what she had been told.” Id. at 353 (emphasis added). The prosecutor acknowledged that Juror Overman was the juror that expressed some question about her conscience when she was originally polled. Lastly, the prosecutor indicated that it was his impression from Juror Overman’s statements that she had to make a decision with the jury rather than hold out. Under the circumstances, we conclude that the error constitutes a blatant violation of basic principles and that the harm or potential for harm is substantial, and the error denied Sowers fundamental due process. See Driver v. State, 594 N.E.2d 488, 493 (Ind.Ct.App.1992) (holding that reversible error occurred when the bailiff gave the tape of the final instructions to the jury), trans. denied; Sparks v. State, 154 Ind.App. 691, 692, 290 N.E.2d 793, 794 (1972) (holding that the conversation between the bailiff and the jury constituted reversible error).

CONCLUSION

For the foregoing reasons, we reverse Sowers’s convictions and remand for proceedings consistent with this opinion.

Reversed and remanded.

RILEY, J., concurs.

BRADFORD, J., dissents with separate opinion.

BRADFORD, Judge,

dissenting.

• Because I believe that the improper communication between the bailiff and the jury foreperson did not amount to fundamental error, I respectfully dissent. In addition, because I believe that Sowers cannot challenge the allegedly inconsistent verdicts on appeal and also that the evidence is sufficient to sustain the jury’s determination that Sowers was guilty but mentally ill of Counts II and III, I would vote to affirm Sowers’s convictions. However, I would vote to remand the matter to the trial court and instruct the trial court to amend the sentencing order to treat the habitual offender enhancement as a sentence enhancement on one of Sowers’s underlying felony convictions rather than treating it as a separate consecutive sentence.

I. Whether the Communication Between the Jury Foreperson and the Bailiff Amounted to Fundamental Error

While it was error for the bailiff to communicate with the jury about the law applicable to the case without notifying the trial court or relaying the jury’s question to the trial court, it was not fundamental error. Sowers concedes that he did not object to or request a mistrial because of the conversation that took place between the jury foreperson and the bailiff when given an opportunity to do so before the trial court. As such, Sowers has waived this claim on appeal unless he can show that the erroneous conversation amounted to fundamental error. See Oldham v. State, 249 Ind. 301, 303, 231 N.E.2d 791, 792 (1967) (providing that failure to make a timely objection waives the right to question matters involving the conduct of the jury); Leslie v. State, 978 N.E.2d 486, 491 (Ind.Ct.App.2012) (providing that issues of juror impropriety are waived where the defendant did not object at trial). Again, the Indiana Supreme Court has emphasized that the fundamental error rule is extremely narrow and, in order to qualify as fundamental error, “the error must be so prejudicial to the rights of the defendant as to make a fair trial impossible.” Conner v. State, 711 N.E.2d 1238, 1246 (Ind.1999).

The record reveals that the jury foreperson approached the bailiff and asked if the jury “had to deliberate until they reached 100 percent agreement.” Tr. p. 354. The jury foreperson did not reduce this question to writing, and the bailiff did not notify the trial court of the jury’s question. Rather, the bailiff responded, “yes as the Judge stated in there you have to be 100 percent in agreement.” Tr. pp. 355-56. Again, at the conclusion of the evidence, the trial court instructed the jury, both verbally and in writing, as follows:

To return a verdict, each of you must agree to it. Each of you must decide the case for yourself, but only after considering the evidence with the other jurors. It is your duty to consult with each other. You should try to agree on a verdict, if you can do so without compromising your individual judgment. Do not hesitate to re-examine your own views and change your mind if you believe you are wrong. But do not give up your honest belief just because the other jurors may disagree, or just to end the deliberations.

Appellant’s App. p. 51 (emphases added). While not a complete restatement of the trial court’s instruction to the jury, the bailiffs answer was not in any way inconsistent with this instruction or the law which requires that verdicts, if reached, be unanimous. Further, it is important to note that the bailiff did not expressly state that the jury was required to reach a verdict.

The communication between the bailiff and the jury foreperson did not make it impossible for Sowers to receive a fair trial. At most, the record suggests that Juror Overman may have relied on the jury foreperson’s recitation of the bailiffs answer regarding whether the jurors had to agree “100%” to return a verdict. Juror Overman had expressed some hesitancy in finding Sowers guilty when polled by defense counsel and seemed disappointed to learn that the jury was not required to return a verdict. However, while the prosecutor stated that he interpreted Juror Overman’s statements as suggesting that she might have proceeded differently if she had known that the trial court could declare a mistrial if the jurors could not all agree on a verdict, nothing in the record indicates that she definitely would have done so.

The prosecutor indicated that he interpreted the statement by Juror Overman to indicate that she apparently thought the jury must return a verdict. However, the prosecutor’s interpretation of Juror Over-man’s mindset is totally speculative. The prosecutor’s statements refer to a secondhand conversation, the specifics of which are vague. Moreover, neither party called the jury foreperson to testify about what she said to the jury, if anything, after speaking to the bailiff. Likewise, neither party called Juror Overman to testify about whether she overheard the jury foreperson’s conversation with the bailiff; what, if anything, the jury foreperson relayed to the members of jury about her conversation with the bailiff; or how Juror Overman’s understanding and interpretation of this conversation impacted her decision to vote to find Sowers guilty. For these reasons, the conversation between the jury foreperson and the bailiff did not constitute fundamental error.

II. Inconsistent Verdicts/Sufficiency of the Evidence

Sowers also challenges the jury’s determination that he was not guilty of Count I by reason of insanity but guilty but mentally ill of Counts II and III. Sowers argues on appeal that these determinations are inconsistent and that the evidence is insufficient to support the determination that he was able to appreciate the wrongfulness of his behavior at the time he resisted arrest and fled from police. However, to the extent that Sowers attempts to challenge his convictions on the ground that the verdicts were inconsistent, the Indiana Supreme Court has held that “[jjury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind.2010). As such, Sowers’s claim should instead be framed as whether the evidence was sufficient to sustain the jury’s determination that Sowers was able to appreciate the wrongfulness of his conduct.

With respect to claims of insanity, the Indiana Supreme Court has held as follows:

The defendant bears the burden of establishing the insanity defense by a preponderance of the evidence. I.C. § 35-41-4-l(b). To meet this burden, the defendant must establish both (1) that he or she suffers from a mental illness and (2) that the mental illness rendered him or her unable to appreciate the wrongfulness of his or her conduct at the time of the offense. See I.C. § 35-41-3-6(a). Thus, mental illness alone is not sufficient to relieve criminal responsibility. See Weeks v. State, 697 N.E.2d 28, 29 (Ind.1998). Rather, a defendant who is mentally ill but fails to establish that he or she was unable to appreciate the wrongfulness of his or her conduct may be found guilty but mentally ill (“GBMI”). See, e.g., Taylor v. State, 440 N.E.2d 1109, 1112 (Ind.1982).
Whether a defendant appreciated the wrongfulness of his or her conduct at the time of the offense is a question for the trier of fact. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004). Indiana Code section 35-36-2-2 provides for the use of expert testimony to assist the trier of fact in determining the defendant’s insanity. Such expert testimony, however, is merely advisory, and even unanimous expert testimony is not conclusive on the issue of sanity. Cate v. State, 644 N.E.2d 546, 547 (Ind.1994). The trier of fact is free to disregard the unanimous testimony of experts and rely on conflicting testimony by lay witnesses. Barany v. State, 658 N.E.2d 60, 63 (Ind.1995). And even if there is no conflicting lay testimony, the trier of fact is free to disregard or discredit the expert testimony. Thompson, 804 N.E.2d at 1149.
Because it is the trier of fact’s province to weigh the evidence and assess witness credibility, a finding that a defendant was not insane at the time of the offense warrants substantial deference from reviewing courts. See Barany, 658 N.E.2d at 63. A defendant claiming the insanity defense should have prevailed at trial faces a heavy burden because he or she “is in the position of one appealing from a negative judgment.” Thompson, 804 N.E.2d at 1149. A court on review will not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact (even though “more reasonable” inferences could have been made). Id. at 1149-50.

Galloway v. State, 938 N.E.2d 699, 708-09 (Ind.2010).

Here, while Doctors Little and Rogers were both of the opinion that Sowers was unable to appreciate the wrongfulness of his actions, Detective Ronald Blackwell opined otherwise. The record reveals that Detective Blackwell testified that he believed that Sowers knew he was being followed by police because Sowers initially operated his vehicle in an appropriate manner while Officer Dillingham, who was in uniform and was following Sowers in a marked police vehicle with his police lights and siren activated, followed immediately behind Sowers’s vehicle. Officer Dilling-ham was subsequently joined by other marked police vehicles in his pursuit of Sowers. The weather was dry and sunny and there was nothing in the record indicating elements that would inhibit or impair Sowers’s vision of the officers or make it difficult for him to hear the sirens. In addition, when police finally caught up with Sowers, Detective Blackwell did not remember Sowers being overly agitated or anything strikingly unusual about Sowers’s appearance. Detective Blackwell testified that Sowers denied knowing that police were behind him, but that he “[did] not believe that.” Tr. p. 156.

Again, it was for the jury to weigh the evidence and assess witness credibility. Galloway, 938 N.E.2d at 709. The jury reviewed the reports submitted by Drs. Little and Rogers indicating that each believed that Sowers was unable to appreciate the wrongfulness of his conduct, but apparently did not agree with the Drs. Little’s and Roger’s opinions. The doctors’ opinions were “merely advisory” and were not conclusive on the issue of sanity, and it was within the province of the jury to credit Detective Blackwell’s testimony over the doctors’ opinions regarding Sowers’s sanity. See id. Because the reasonable inferences made by the jury with respect to witness credibility and the weight of witness testimony should not be disturbed on appeal, Sowers’s convictions should be affirmed on this ground.

In sum, I would conclude that conversation between the jury foreperson and the bailiff did not rise to the level of fundamental error. I would also conclude that the evidence is sufficient to support the jury’s determination regarding Sowers’s mental state. Accordingly, I respectfully dissent and would vote to affirm Sowers’s convictions. However, as is stated above, I would vote to remand the matter to the trial court and instruct the trial court to amend the sentencing order to treat the habitual offender enhancement as a sentence enhancement on one of Sowers’s underlying felony convictions rather than treating it as a separate consecutive sentence. See Harris v. State, 964 N.E.2d 920, 927 (Ind.Ct.App.2012) (providing that a finding that one is a habitual offender is a sentence enhancement imposed upon the conviction of a subsequent felony and should not be treated as a separate sentence), trans. denied.

      . Count I alleged that Sowers did knowingly touch Trooper Mote in a rude, insolent, or angry manner by means of a deadly weapon, a motor vehicle. Count II alleged that Sowers "did recklessly, knowingly, or intentionally with a deadly weapon, to wit: a vehicle, perform an act, to-wit: flee from Larry E. Mote, run into Larry E. Mote’s car, or run Larry E. Mote off the road that created a substantial risk of bodily injury to Larry E. Mote.” Appellant’s Appendix at 12. Count III alleged that Sowers "did knowingly or intentionally flee from Jill Hammond, Larry E. Mote, or Tim Dillingham-” Id. at 14.

      . The trial court erroneously entered a separate sentence for the habitual offender finding to be served consecutive to the sentences for Counts II and III. It is well settled that a habitual offender finding does not constitute a separate crime, nor does it result in a separate sentence. See Ind.Code § 35-50-2-8. Rather, a habitual offender finding results in a sentence enhancement imposed upon the conviction of a subsequent felony. Hendrix, v. State, 759 N.E.2d 1045, 1048 (Ind.2001).

      . The State cites Napier v. State, 445 N.E.2d 1361, 1365 (Ind.1983), in which the Court addressed the defendant’s claims that the trial court committed reversible error when, during deliberations, it gave the jury what has been referred to as an "Allen” charge. The Court had previously explained that an "Allen” charge was "a designation given to a supplemental charge given by a trial judge to an apparently deadlocked jury, [and] is named after the first major case which considered such a charge, Allen v. United States, (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.” Lewis v. State, 424 N.E.2d 107, 109 (Ind.1981). The Court held that to preserve error in instructions one must lodge a specific objection at trial and that absent a timely objection and tender of an alternative instruction, the issue is waived on appeal. 445 N.E.2d at 1365. The State argues that “[c]onsidering the significance of such an instruction on the jury’s deliberations, the fact that our Supreme Court has held that a defendant can waive an instruction telling the jury to continue deliberations for as long as it takes by not objecting provides support for finding that what occurred in the present case did not constitute fundamental error.” Ap-pellee’s Brief at 14. We do not find Napier instructive as the Court did not address the issue of fundamental error.

      . Ind.Code § 35-37-2-2 governs the order of the trial and Ind.Code § 35-37-2-4 governs preliminary instructions, admonition by the court, and separation.

      . We acknowledge that the court provided the following instruction both orally and in writing:
      To return a verdict, each of you must agree to it. Each of you must decide the case for yourself, but only after considering the evidence with the other jurors. It is your duty to consult with each other. You should try to agree on a verdict, if you can do so without compromising your individual judgment. Do not hesitate to re-examine your own views and change your mind if you believe you are wrong. But do not give up your honest belief just because the other jurors may disagree, or just to end the deliberations.
      Appellant's Appendix at 57; Transcript at 285. We also acknowledge that the Indiana Supreme Court relied upon a similar instruction in rejecting a plaintiff's arguments that reversal was required based upon the trial court's response to a juror's question without first informing counsel and that the response created an impression that a hung jury would not be permitted. Henri v. Curto, 908 N.E.2d 196, 200-202 (Ind.2009). We note that the Court in Henri was addressing a jury verdict adverse to the plaintiff's civil damage claim for rape and in favor of the defendant’s counterclaim for tortious interference with his university contract as a result of his expulsion. Further, unlike in Henri. Juror Overman did not merely answer "Yes” when polled after the verdict, but stated: "I have a conscience about it but yes.” Transcript at 320. Unlike in Henri in which a juror made a private statement and inquiry to the bailiff, here the foreperson asked the bailiff the question regarding 100 percent agreement, and the bailiff's comment was told to the foreperson and shared with at least Juror Overman. Lastly, while the record does not clearly reveal the amount of time that elapsed between the beginning of the jury deliberations and the point at which the foreperson asked the bailiff if they were to stay and deliberate until they reached a 100 percent agreement with the counts, the record reveals that the elapsed time was at least an hour and not the twenty minutes mentioned in Henri.

      . Moreover, I disagree with the majority’s belief that Coolman v. State, 163 Ind. 503, 72 N.E. 568 (1904), is instructive because I believe that there are important and substantial differences between the comments attributed to the bailiff in the instant matter and those attributed to the bailiff in Coolman.


author: MAY, Judge.

text:
    David F. WOOD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1207-CR-615.
    Court of Appeals of Indiana.
    May 20, 2013.

      Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen M. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

David F. Wood appeals his conviction of Class B felony unlawful possession of a firearm by a serious violent felon (SVF) and the sentence he received for five convictions of Class D felony possession of child pornography. Wood claims his firearm conviction violated his right to be free from double jeopardy and was barred by collateral estoppel. In addition, Wood asserts the five-year cumulative sentence he received for five counts of Class D felony possession of child pornography exceeded the cap provided by Ind.Code § 35-50-1-2 for consecutive sentences from a single episode of criminal conduct. We reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

On October 4, 2011, Wood’s wife contacted police because she had found, among Wood’s things, photo albums that contained pictures of naked girls, and she thought the photographs might be illegal. Police obtained a search warrant for Wood’s house and executed it when Wood was at home. Wood advised the police that there were two guns in the house, and police found two .38 caliber revolvers in the closet on a shelf underneath adult male clothing. Police also found binders and albums containing full-frontal pictures of girls under the age of sixteen who are not wearing any clothing.

The State charged Wood with one count of Class B felony possession of a firearm by a SVF and ten counts of Class D felony possession of child pornography. The trial court ordered a bifurcated trial. After the first phase of the trial, the jury found Wood guilty of five of the ten counts of possession of child pornography. The jury also returned a form entitled “VERDICT” (App. at 125 (emphasis in original)), on which the jury was to determine whether “Wood knowingly or intentionally possessed a firearm,” (id.), and on which the jury foreman marked the box for “NO.” (Id., emphasis in original)

Despite that verdict and concerns raised by Wood’s counsel and the deputy prosecutor, the trial court determined the State would be allowed to present additional evidence during a second phase of the trial to demonstrate Wood possessed firearms while being a SVF. Just prior to the jury returning for that second phase of the trial, Wood announced he would plead guilty to Class B felony possession of a firearm by a SVF. The State then offered, in open court, to cap his possible sentence for that crime at six years, which is the minimum sentence for a Class B felony. The trial court accepted that plea and entered Wood’s convictions.

After a sentencing hearing, the court imposed five one-year sentences for the five convictions of possession of child pornography and ordered them served consecutively to one another and to the six-year sentence for possession of a handgun by a SVF, for an aggregate sentence of eleven years.

DISCUSSION AND DECISION

1. Possession of a Firearm

Wood challenges the trial court’s decision to permit the State to present additional evidence of Wood’s knowing or intentional possession of a firearm, after the jury returned a verdict acquitting Wood of such possession. Wood asserts our federal constitution’s prohibition against double jeopardy and the doctrine of collateral estoppel prohibited the trial court from deciding the State would be given a second chance, in a second phase of the trial, to prove he possessed the same handguns. We agree.

As our Indiana Supreme Court explained:

The Double Jeopardy Clause contained in the Fifth Amendment to the United States Constitution provides, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Collateral es-toppel (also referred to as issue preclusion) has been characterized as an “awkward phrase” however “it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Collateral estoppel is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy. “The traditional bar of jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion simply forbids the government from relitigating certain facts in order to establish the fact of the crime.” In essence the doctrine of collateral estoppel “precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.” To decipher what a jury necessarily decided in a prior trial, courts should “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”

Coleman v. State, 946 N.E.2d 1160, 1164—65 (Ind.2011) (internal citations omitted).

As the trial court and parties discussed the procedure by which the State would try Wood for the possession of a handgun while an SVF charge, the court and the State referred to the form that was to be sent to the jury after the first phase of the trial as a “special verdict form.” (See, e.g., Tr. at 212, 216, 245.) We note, however, that “[s]pecial verdicts and interrogatories to the jury [were] abolished,” Indiana Trial Rule 49, “to eliminate the confusion and lack of finality generated by a maze of potentially confusing subsidiary questions.” Wilkes v. State, 917 N.E.2d 675, 687 (Ind.2009). In Wilkes, our Indiana Supreme Court held the death penalty statute’s provision calling for “special verdicts” by a jury as to the existence of possible aggravators did not contradict T.R. 49 because those statutorily-required “special verdicts” did not ask for “preliminary or subsidiary findings leading to the ultimate verdict,” but rather such a form “sets out the jury’s findings as to the ultimate facts required to be resolved by the jury in a death penalty case.” Id.

Thus, to avoid violating T.R. 49, any verdict form sent to Wood’s jury needed to be determining “ultimate facts required to be resolved by the jury.” Id. The ultimate facts being determined by Wood’s jury in the first phase of his trial were whether Wood “knowingly or intentionally possessed a firearm.” (App. at 125.)

As we have explained, a bifurcated trial of SVF charges “serves the ends of justice” and “cireumvent[s] legitimate concerns regarding fairness by avoiding reference to [a defendant] as a ‘serious violent felon’ until after the jury had decided whether he had knowingly or intentionally possessed” a firearm, Williams v. State, 834 N.E.2d 225, 228 (Ind.Ct.App.2005), but that does not mean that a second phase of the trial is “inevitable.” Id. Rather, there should be a second phase of the trial “if, and only if, the jury first concluded beyond a reasonable doubt that [the defendant] had knowingly or intentionally possessed a firearm.” Id.

The trial court made an error of law when it instructed the State it could proceed to second phase of trial even after the jury returned a verdict finding Wood had not knowingly or intentionally possessed the firearms. If the court had not made that legal error, Wood would not have been placed in the position of deciding whether to plead guilty before the second phase of trial. Because Wood could not face a second jury trial for possession of those firearms, neither could he plead guilty to that crime, and we reverse his conviction. See Menna v. N.Y., 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (“Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.”).

2. Sentence

Wood also challenges the five-year cumulative sentence imposed for his five convictions of Class D felony possession of child pornography. A trial court generally has discretion to determine a defendant’s sentence, and we may not reverse absent an abuse of that discretion. Massey v. State, 816 N.E.2d 979, 990 (Ind.Ct.App.2004). Nevertheless, a court may not order a sentence in excess of the statutory limits prescribed by the legislature. Id.

Indiana law provides:

[T]he court shall determine whether terms of imprisonment shall be served concurrently or consecutively.... However, except for crimes of violence, the total of the consecutive terms of imprisonment ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

Ind.Code § 35-50-l-2(c). That same statute explains that an “episode of criminal conduct” is “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” Ind.Code § 35-50-l-2(b).

Wood argues his five convictions for possession of child pornography were a single episode of criminal conduct, and he notes those convictions were all Class D felonies. A felony one Class above a Class D felony is a Class C felony, which has an advisory sentence of four years. Ind.Code § 35-50-2-6(a) (“A person who commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years.”). Based thereon, Wood asserts the court erred by ordering a cumulative sentence that exceeded four years.

The State appears to agree, as it does not argue otherwise, that the cumulative sentences for the five convictions of Class D felony child pornography cannot run longer than four years. Accordingly, we reverse Woods’ sentences and remand for the trial court to fashion, in its discretion, a sentence that does not exceed four years.

CONCLUSION

We reverse Wood’s conviction of Class B felony possession of a firearm by a SVF as that conviction was entered after a jury had already acquitted Wood of possessing those same firearms. We also reverse Wood’s five-year cumulative sentence for the five counts of Class D felony possession of child pornography, because that sentence violates the cap imposed by Ind. Code § 35-50-1-2, and we remand for the trial court to enter a new sentence that does not exceed four years.

Reversed and remanded.

BAKER, J., and DARDEN, Sr. J., concur.

      . Ind.Code § 35-47-4-5. A "serious violent felon” is a person who has committed one of the crimes our legislature defined as a "serious violent felony,” which includes such crimes as murder, aggravated battery, kidnapping, rape, criminal confinement, child molesting, robbery, carjacking, and incest. Id.

        . Ind.Code § 35-42-4-4.

      . The Indiana Constitution contains a similarly worded provision that prohibits double jeopardy. See Ind. Const, art. 1, § 14 ("No person shall be put in jeopardy twice for the same offense.”). However, Wood’s argument rests on only the federal provision, and thus we need not further address our state provision.

      . Pursuant to Ind.Code § 35-50-2-9(a), the jury must find the existence of one or more statutorily-defined aggravators "before a defendant is eligible for the death penalty.” Wilkes, 917 N.E.2d at 687. The finding of those aggravators by a jury is also a necessary step required by the Sixth Amendment. Id.

      . The State argues Wood waived any possible argument regarding his firearm conviction for direct appeal by pleading guilty, and we acknowledge "direct appeal is not the proper procedural avenue for a defendant to attack a plea agreement.” Mapp v. State, 770 N.E.2d 332, 333 (Ind.2002) (citing Tumulty v. State, 666 N.E.2d 394, 395 (Ind.1996)). Nevertheless, we also note that one of the main policy reasons for that rule is that review of claims underlying the validity of a plea "often require a factual inquiry which appellate courts are not equipped to conduct.” Id. at 334.
      When we held oral argument in this cause, counsel for the State urged us to presume just resolution of this case required a factual inquiry that could only be conducted by a post-conviction court because Wood may have had a valid reason for pleading guilty to a crime for which he had already been acquitted. When pushed by the court to identify a possible valid reason for such a plea, counsel for the State acknowledged such a reason was "unimaginable.” As we also cannot imagine circumstances that could justify pleading guilty to a crime after a jury acquittal, we reject the State's assertion that findings by a post-conviction court are required to determine the validity of Wood’s plea agreement. See Menna v. N.Y., 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) ("Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.”).

      . The State argues only that Wood’s sentence does not violate the statutory prohibition outlined in Ind.Code § 35-50-l-2(c) because his episode of criminal conduct includes his Class B felony possession of a firearm conviction, which makes the cap for his sentence the thirty-year advisory sentence for a Class A felony. See Ind.Code § 35-50-2-4 ("A person who commits a Class A felony shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years.”). As we reversed Wood’s conviction of possession of a firearm by a serious violent felon, the State’s argument is moot.