author: BROWN, Judge.

text:
    Rodney MELTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1212-CR-1008.
    Court of Appeals of Indiana.
    Aug. 21, 2013.

      Matthew D. Anglemeyer, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Rodney Melton appeals his conviction and sentence for dissemination of matter harmful to minors as a class D felony and his sentence for child molesting as a class C felony. Melton raises three issues which we consolidate and restate as:

I. Whether the evidence is sufficient to sustain Melton’s conviction for dissemination of matter harmful to minors; and
II. Whether Melton’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

Melton was the boyfriend of Gloria Davis and lived with her and her two children, one of whom was C.D., born on September 19, 2000. C.D. called Melton “Keno or daddy.” Transcript at 46. One day in January 2012, C.D. was awakened by Melton sucking on her chest and touching her chest with his hands. C.D. told Melton to stop, and Melton “was like no” and then Melton said “you better stop before I kill you.” Id. at 49. C.D. felt like she “just better listen to him.” Id. Davis then came upstairs and asked Melton what he was doing, and Melton said that he was waking C.D. C.D. did not tell Davis what had happened because she was scared and shocked.

Later that month, N.J., who was born on January 26, 1997 and was the daughter of one of Davis’s friends, spent time at Davis’s house. One morning, N.J., was sleeping on the couch in the living room and woke up to discover that Melton was rubbing her arms, legs, and chest. N.J. described the touching as “[sjexually” and “just like to entice me kind of.” Id. at 29. N.J. was confused and looked around but did not see anyone other than Melton. N.J. asked Melton why he was touching her, and Melton stated: “It’s okay. We won’t get caught.” Id. at 30. Melton then lay on a mattress which was in front of the couch in the living room and told N.J. to sit next to him. N.J. sat on the couch and waited for Davis to return home. Melton then started to look at pornographic videos on his phone and showed them to N.J. In the first video, a man and a woman were having sex. The second video was of Melton and Davis in which Davis was performing oral sex on Melton. N.J. asked Melton where Davis and her children were, and Melton stated that they were gone, they would be back later, and that “it’s okay.” Id. at 32. Melton then “kind of like tried to tell [N.J.] to come next to him and stuff and then he pulled his penis out of his pants” and began masturbating. Id. at 33. N.J. did not go next to Melton and told him: “I’m ready to go. Where’s — where’s my mom. Where’s [Davis].” Id. at 33. Melton then “kind of brushed it off,” went in the kitchen, and said “everything’s okay,” and N.J. went upstairs. Id. at 34.

At some point, Davis returned to the house, but N.J. did not tell her what happened because she did not feel that Davis would handle the situation correctly. Davis’s children eventually came home from school. When N.J.’s mother came to the house, N.J. told Davis’s children what had happened, and C.D. told N.J. “other stuff that happened to her.” Id. at 35. N.J. decided to tell an adult and told C.D.’s eighteen-year-old cousin. N.J. then told her mother that Melton had touched her, and Davis called the police.

On March 15, 2012, the State charged Melton with child molesting as a class C felony and dissemination of matter harmful to minors as a class D felony. The jury found Melton guilty as charged.

The court found Melton’s history of mental health issues and the facts that he had been diagnosed as bipolar and suffered from depression as mitigating factors. The court found Melton’s position of trust with C.D. and to a lesser extent with N. J., “that this happened in the home with another minor present,” that Melton threatened to kill C.D. if she disclosed the offense, and Melton’s criminal history, including the fact that he had previously been sentenced to probation which was revoked, as aggravating factors. Id. at 175. The court found that the aggravators outweighed the mitigators and sentenced Melton to eight years for child molesting as a class C felony and three years for dissemination of matter harmful to minors as a class D felony. The court ordered the sentences to be served consecutive to each other for an aggregate sentence of eleven years.

I.

A. DISCUSSION

The first issue is whether the evidence is sufficient to sustain Melton’s conviction for dissemination of matter harmful to minors. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

The offense of dissemination of matter harmful to minors is governed by Ind.Code § 35-49-3-3, which provides that “a person who knowingly or intentionally ... engages in or conducts a performance before minors that is harmful to minors ... commits a Class D felony.” Ind.Code § 35-49-1-7 defines “performance” as “any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one (1) or more persons.” Ind.Code § 35-49-2-2 provides:

A matter or performance is harmful to minors for purposes of this article if:

(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
(2). considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.

The State charged that Melton “did knowingly or intentionally engage in, or conduct, a performance before minors that is harmful to minors specifically: Showing pornography to N.J. and/or showing N.J. his penis.” Appellant’s Appendix at 23. Thus, to convict Melton of dissemination of matter harmful to minors as a class D felony, the State needed to prove that Melton knowingly or intentionally engaged in or conducted a performance by showing pornography to N.J. and/or showing N.J. his penis and that such act was harmful to minors.

Without citation to the record, Melton argues that he was in his own private residence when he engaged in the conduct at issue. He asserts that “[bjecause [his] acts occurred in a private area, he did not engage in a ‘performance,’ and his conviction must be reversed,” relying on Riffel v. State, 549 N.E.2d 1084 (Ind.Ct.App.1990), trans. denied, and Low v. State, 580 N.E.2d 737 (Ind.Ct.App.1991). Appellant’s Brief at 12.

In Riffel, the State charged Luke Riffel with Count II, conducting a performance harmful to a minor, Count III, obscene performance, and Count IV, obscene performance. 549 N.E.2d at 1085. The alleged incidents took place during Riffel’s visitation period with his five-year-old son M.R. at the camping trailer residence of Riffel. Id. at 1085-1086. With respect to Count IV, the State alleged that Riffel stuck his finger in Tina Cramer’s vagina and then placed his finger before the nose of M.R. and told M.R. to smell his finger. Id. at 1085. This Court found that the charges in Counts II and III rested entirely upon the repudiated statements of M.R. and that accordingly the evidence was insufficient to sustain the convictions on Counts II and III. Id. at 1088. The Court then sua sponte addressed whether the facts alleged in Count IV constituted an obscene performance, and reviewed Ind. Code § 35^19-1-7 which defines performance and the statutes related to obscene performances. Id. The Court indicated that it was “[e]ver mindful that criminal statutes are to be construed strictly against the State and may not be enlarged by construction, implication, or intendment beyond the fair meaning of the language used.” Id. The Court held “the purpose of those statutes, and the legislative intent revealed by the language used, is to prohibit obscene performances of a theatrical, show, or entertainment nature, performed live, or on film or video, before an audience, and not to ban an act in a private setting, no matter how disgusting, such as the act charged against Riffel in Count IV.” Id. at 1088. The Court also observed: “Riffel’s conduct may or may not have constituted some other offense, a matter we need not decide. The crucial issue is that it did not constitute an obscene performance as defined by Indiana statutes. We may not expand the statutory definition.” Id. Judge Hoffman dissented and stated:

If the legislature had intended that the obscene performance statute not apply to those obscene performances done in a private setting, it could have so limited the statute. Likewise, the legislature could have confined the statute to only those obscene performances of a theatrical, show, or entertainment nature. However, the legislature did not restrict the statute in these ways and thus, it applies to obscene performances in private settings.

Id. at 1089-1090 (Hoffman, J., dissenting).

In Low, members of the Carmel Police Department were engaged in the investigation of suspected prostitution activity in Hamilton County. 580 N.E.2d at 738. As part of the investigation, the Department rented two adjoining rooms in a hotel. Id. Working undercover, Officer Roger Conn telephoned the “Yes, We Do” escort service and requested an escort. Id. Rose Low arrived at the hotel and eventually performed a “bed dance” whereby the officer lay on the bed in his underwear while she danced over him and exposed her breasts. Id. Low then inserted her finger in her vagina, and Officer Conn gave a code phrase which tipped the officers listening in the adjoining room to come in and make the arrest. Id. At the close of the State’s evidence, Low moved to dismiss the charge of obscene performance, and the court denied the motion. Id. Low was convicted of obscene performance under Ind.Code § 35-49-3-2. Id.

On appeal, Low argued that she was not engaging in a “performance” within the meaning of the statute. Id. at 739. This Court observed that the decision in Riffel was “clearly based upon the fact that Rif-fel’s conduct occurred in a private forum, rather than a public forum” and held:

Low correctly points out that if the statute is not narrowly construed, conduct similar to the acts in this case occurring between consenting married adults would fall within the purview of the statute. We may give a narrow construction to statutes to save them from nullification if the construction does not establish a new or different policy basis and is consistent with legislative intent. State v. Downey (1985), Ind., 476 N.E.2d 121, 123, reh’g denied. The construction of the obscene performance statute in Riffel is consistent with the clear intent of the legislature. To hold differently in the present case might allow the extension of the proscriptive reach of the statute to conduct which is constitutionally protected. Eisenstadt v. Band (1972), 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349; Stanley v. Georgia (1969), 394 U.S. 557, 568, 89 S.Ct. 1243, 1249-1250, 22 L.Ed.2d 542; Griswold v. Connecticut (1965) 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510.

Id. at 739-740 (footnotes omitted). The Court concluded that the trial court erred in denying Low’s motion to dismiss, as conduct such as that charged and proved by the State, when it occurs in a private setting, does not violate Indiana Code § 35-49-3-2, and reversed Low’s conviction for obscene performance. Id.

The State argues that as Low “did not involve an appeal from a conviction for dissemination of matter harmful to minors, those same policy considerations are not present in this case.” Appellee’s Brief at 10. The State also contends that “[w]hile Melton suggests that Riffel stands for the proposition that a person can commit whatever vile acts he or she desires in front of a minor so long as those acts are committed in a private setting, this Court has more recently declined to interpret Riffel in such a broad fashion” and cites Sloan v. State, 794 N.E.2d 1128 (Ind.Ct.App.2003), trans. denied. Id. at 11. The State’s position is that Melton’s act of removing his penis from his pants and masturbating in front of N.J. constituted an exhibition or presentation performed before an audience of one or more persons, and that Melton’s acts “may have been done in a private setting — i.e., the home that he shared with C.D.’s mother — but they were not done in private. Indeed, he showed pornography and masturbated in front of an audience: fourteen-year-old N.J.” Id. The State also alleges that Melton did not enjoy any expectation of privacy when he engaged in these acts but instead encouraged N.J. to sit next to him while he viewed pornographic videos and gratified himself. The State further maintains that Melton should not escape criminal liability simply because he committed the crime inside his home instead of in public, and that there is no statutory requirement that the exhibition or presentation be performed in public.

In Sloan, John Sloan broke into the home of Melissa Holt where eight-year-old A.R., the daughter of Holt’s boyfriend, was sleeping on the couch. 794 N.E.2d at 1130. A.R. awoke when she felt someone pull down her underwear. Id. She saw a man on the couch exposing and manipulating his penis. Id. The man then left the room, and A.R. went to tell her father, but the intruder was no longer in the home. Id. Holt noticed that a window had been removed in the room where A.R. had been sleeping. Id. Fingerprints taken from the window matched Sloan’s fingerprints. Id.

The State charged Sloan with burglary and conducting a performance harmful to minors. Id. After the State presented its evidence, Sloan moved for a directed verdict and argued that the acts he was alleged to have committed did not constitute a “performance” as defined by statute. Id. The trial court denied the motion, and the jury found Sloan guilty as charged, but the trial court entered judgment of conviction only as to the burglary. Id.

On appeal, Sloan argued that the trial court erred in denying his motion for a directed verdict. Id. at 1131. In discussing Sloan’s argument, this Court observed that “[bjecause the trial court did not enter a judgment of conviction upon Count II, the only issue before us is whether the evidence is sufficient to sustain Sloan’s Burglary conviction.” Id. at 1132. The Court held that the question of whether Sloan engaged in a performance is relevant to the burglary conviction in that conducting a performance harmful to minors was the felony which Sloan allegedly intended to commit when he broke and entered the home. Id. The Court clarified that the question was not precisely whether Sloan actually engaged in a performance, but whether he intended to conduct such a performance when he broke and entered the home. Id. The Court discussed Riffel and Low and held:

If we were to read Riffel and Low broadly, we might agree with Sloan that what he did inside the Holt home, and what he intended to do when he broke into the house, was not a “performance” within the meaning of the statute because it did not take place “in public.” However, we perceive a subtle yet substantial difference between the factual situations present in Riffel and Low and the case at bar. In Riffel, the defendant’s conduct was done in his own private residence. 549 N.E.2d at 1086. In Low, although the conduct at issue did not occur in a private residence, it did take place in a hotel room which had been rented by the police. 580 N.E.2d at 738. In both cases, the incidents took place in private areas in which the participants had a right to be. This is not so in the present situation.
Here, Sloan violated the privacy of Ms. Holt and her guests by breaking into the home. The privacy interests with which the Riffel and Low courts were so concerned are therefore not implicated by Sloan’s actions. A defendant may not avail himself of the privacy of another by breaking and entering into the other’s home. To accept Sloan’s argument would be to allow him to benefit and seek refuge in the privacy of the home which he had invaded. We will not do so. Here, the evidence reveals that Sloan broke into the Holt home and pulled down A.R.’s underwear. Sloan then sat on the couch and exposed and manipulated his penis. This was an exhibition or presentation performed before an audience of one or more persons. See I.C. § 35-49-1-7. We do not read Riffel and Low to hold that a “performance” must be done in public, and to the extent that they suggest otherwise, we respectfully disagree. So long as the conduct at issue was not done in private, we hold that it may constitute a performance.
Of course, if something is done in private, it usually follows that it was not done in public. Here, however, we are presented with a perhaps unusual situation; although Sloan’s acts were not done in public, neither were they done in the privacy of his own home or any place where he had a right to be. We therefore hold that the actions Sloan engaged in inside a home into which he broke and entered constituted a performance, and from this the jury could reasonably infer that when Sloan broke and entered the home, he intended to commit the felony of conducting a performance harmful to minors. The evidence is sufficient to support Sloan’s conviction for Burglary, and the trial court did not err in denying his motion for a directed verdict.

Id. at 1134.

B. DECISION

To the extent that Melton cites Low, we find that case distinguishable. As pointed out by the State, Low did not involve an appeal from a conviction for dissemination of matter harmful to minors. Rather, Low involved two adults in a hotel room and a charge of an obscene performance under Ind.Code § 35 — 49-3-2. With respect to Riffel, we observe that the discussion in Riffel related to engaging in an obscene performance and not dissemination of matter harmful to minors. To the extent that the majority’s discussion of a performance in Riffel suggests that a performance involved in a charge of dissemination of matter harmful to minors must occur in public, we disagree. As pointed out by Judge Hoffman in his dissent in Riffel, there is no requirement in the statute defining performance that the performance take place in public. 549 N.E.2d at 1089 (Hoffman, J., dissenting). Rather, the statute provides that a “performance” is “any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one (1) or more persons.” Ind.Code § 35-49-1-7 (emphasis added). We are also mindful that the legislature listed defenses to prosecution for dissemination of matter or conducting performance harmful to minors in Ind.Code § 35-49-3-4 and did not mention that merely being in a private place is a defense. Accordingly, we conclude that the evidence was sufficient to sustain Melton’s conviction for dissemination of matter harmful to minors as a class D felony.

II.

A. DISCUSSION

The next issue is whether Melton’s sentence is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Our review of the nature of the offense reveals that Melton awakened C.D., who called Melton “Keno or daddy” and was the daughter of his girlfriend, by sucking on her chest and touching her chest with his hands. Transcript at 46. When C.D. asked Melton to stop, Melton “was like no” and then Melton said “you better stop before I kill you.” Id. at 49. While N.J., the daughter of Davis’s friend, was staying over at Davis’s house, Melton woke her up by rubbing her arms, legs, and chest. N.J. asked Melton why he was touching her, and Melton stated: “It’s okay. We won’t get caught.” Id. at 30. Melton then laid on the mattress which was in front of the couch in the living room and told N.J. to sit next to him. Melton then started to look at pornographic videos on his phone and showed them to N.J. In the first video, a man and a woman were having sex. The second video was of Melton and Davis in which Davis was performing oral sex on Melton. When N.J. asked Melton where Davis and her children were, Melton stated that they were gone, they would be back later, and that “it’s okay.” Id. at 32. Melton then “kind of like tried to tell [N.J.] to come next to him and stuff and then he pulled his penis out of his pants” and began masturbating. Id. at 33. N.J. did not go next to Melton and told him: “I’m ready to go. Where’s — where’s my mom. Where’s [Davis].” Id. Melton then “kind of brushed it off,” went into the kitchen, and said “everything’s okay.” Id. at 34.

Our review of the character of the offender reveals that, according to the pre-sentence investigation report (“PSI”), Melton was twenty-two years old at the time of sentencing and had a lengthy criminal history. He admitted to using marijuana, cocaine, and ecstasy on a daily basis. Melton is bipolar and suffers from depression. As a juvenile, in 2004 a true finding was entered against Melton for “Motor Vehicle — Unlawful—2 Year (Misdemeanor).” PSI at 4. In 2005, a true finding was entered against Melton for “Unlawful Driving Away” as a felony and receiving and concealing stolen property as a felony. Id. As an adult, Melton has convictions for possession of “Marijuana/Hash Oil/Hashish/Salvia/Synthetic Cannabinoid” in 2008; carrying a concealed weapon as a felony and receiving stolen property as a felony in 2009; and felony theft and misdemeanor carrying a handgun without a license in 2011. Id. at 5. In 2010, Melton was charged with two counts of criminal confinement as class B felonies, two counts of robbery resulting in bodily injury as class B felonies, and carjacking as a class B felony, but these counts were dismissed. In 2011, Melton’s probation was revoked after a violation was filed alleging that he failed to report to probation as directed, failed to maintain a verifiable address, and failed to make a good faith effort toward paying court ordered fees. In April 2012, Melton was charged with rape as a class A felony, two counts of criminal deviate conduct as class A felonies, two counts of criminal confinement as class B felonies, robbery resulting in bodily injury as a class B felony, and intimidation as a class D felony, and these charges were pending at the time the PSI was completed.

B. DECISION

After due consideration of the trial court’s decision, including Melton’s serious and escalating criminal history despite his young age, and the depravity of the offenses, we cannot say that the sentence imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender. See Leffingwell v. State, 810 N.E.2d 369, 372 (Ind.Ct.App.2004) (focusing on the nature, extent, and depravity of the offense and what it reveals about the defendant’s character, and holding that the trial court’s decision to impose the maximum sentence of eight years for child molesting as a class C felony was not inappropriate).

CONCLUSION

For the foregoing reasons, we affirm Melton’s conviction for dissemination of matter harmful to minors as a class D felony and his aggregate sentence.

Affirmed.

NAJAM, J., and MATHIAS, J., concur.

      . The charge of child molesting as a class C felony related to C.D., and the charge of dissemination of matter harmful to minors related to Melton’s conduct with N.J.

      . Ind.Code § 35-49-3-3(4).

      . Ind.Code § 35-49-3-2.

      . Specifically, the Court reviewed Ind.Code § 35-49-3-2 and Ind.Code § 35-49-2-1. 549 N.E.2d at 1088. At that time, Ind.Code § 35-49-3-2 provided: "A person who knowingly or intentionally engages in, participates in, manages, produces, sponsors, presents, exhibits, photographs, films, or videotapes any obscene performance commits a Class A misdemeanor. However, tire offense is a Class D felony if the obscene performance depicts or describes sexual conduct involving any person who is or appears to be under sixteen (16) years of age.” Ind.Code § 35-49-2-1 provided: "A matter or performance is obscene for purposes of this article if: (1) the average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex; (2) the matter or performance depicts or describes, in a patently offensive way, sexual conduct; and (3) the matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

      . Ind.Code § 35-49-3-4 provides in part:
      (a) It is a defense to a prosecution under section 3 of this chapter for the defendant to show:
      (1) that the matter was disseminated or that the performance was performed for legitimate scientific or educational purposes;
      (2) that the matter was disseminated or displayed to or that the performance was performed before the recipient by a bona fide school, museum, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10, or by an employee of such a school, museum, or public library acting within the scope of the employee’s employment;
      (3) that the defendant had reasonable cause to believe that the minor involved was eighteen (18) years old or older and that the minor exhibited to the defendant a draft card, driver's license, birth certificate, or other official or apparently official document purporting to establish that the minor was eighteen (18) years old or older; or
      (4) that the defendant was a salesclerk, motion picture projectionist, usher, or ticket taker, acting within the scope of the defendant’s employment and that the defendant had no financial interest in the place where the defendant was so employed.
      (b) Except as provided in subsection (c), it is a defense to a prosecution under section 3 of this chapter if all the following apply:
      (1) A cellular telephone, another wireless or cellular communications device, or a social networking web site was used to disseminate matter to a minor that is harmful to minors.
      (2) The defendant is not more than four (4) years older or younger than the person who received the matter that is harmful to minors.
      (3) The relationship between the defendant and the person who received the matter that is harmful to minors was a dating relationship or an ongoing personal relationship. For purposes of this subdivision, the term "ongoing personal relationship” does not include a family relationship.
      (4) The crime was committed by a person less than twenty-two (22) years of age.
      (5) The person receiving the matter expressly or implicitly acquiesced in the defendant's conduct.

      . Melton argues that the trial court abused its discretion by not considering his drug and alcohol abuse as a mitigator and finding "that this happened in the home with another minor present” and his criminal history as ag-gravators. Transcript at 175. However, "even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007), trans. denied; see also

        Windhorst v. State, 868 N.E.2d 504, 507 (Ind.2007) (holding that in the absence of a proper sentencing order, we may either remand for resentencing or exercise our authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind.Ct.App.2013) (holding that "even if the trial court did abuse its discretion by failing to consider the alleged mitigating factor of residual doubt, this does not require remand for resentencing”), trans. denied. Accordingly, we need not discuss Melton’s contentions that the court abused its discretion in sentencing him if we determine that his sentence is not inappropriate.
      Melton also cites Article 1, Section 18 of the Indiana Constitution and argues that the judicial branch should seek to follow this legislative goal in its sentencing pronouncements. To the extent that Melton suggests that his sentence violates Article 1, Section 18 of the Indiana Constitution, which provides that "[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice,” we note that the Indiana Supreme Court has held that "particularized, individual applications are not reviewable under Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges.” Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind.1998), reh’g denied.


source: Caselaw Access Project

author: BROWN, Judge. RILEY, J. dissenting

license: Public Domain

text:
    Jeremiah WALLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A05-1211-CR-603.
    Court of Appeals of Indiana.
    Aug. 22, 2013.

      Glen E. Koch, II, Boren, Oliver & Coffey, LLP, Martinsville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Jeremiah Walls appeals his convictions for two counts of intimidation as class D felonies, resisting law enforcement as a class A misdemeanor, criminal trespass as a class A misdemeanor, battery as a class A misdemeanor, battery as a class B misdemeanor, and disorderly conduct as a Class B misdemeanor. Walls raises four issues, which we revise and restate as:

I. Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his convictions for criminal trespass and intimidation;
II. Whether the trial court properly instructed the jury;
III. Whether the trial court properly limited Walls’s closing argument; and
IV. Whether the voluntary intoxication statute is unconstitutional.

We affirm.

FACTS AND PROCEDURAL HISTORY

On July 1, 2012, at 5:15 am, Walls was in the common area of the Countrywide Apartments in Martinsville, Indiana. He was intoxicated and was falling down, rambling, unable to maintain consciousness, had slurred speech, and believed that he knew people whom he did not know. Walls lay in front of Kristy Zurita’s apartment door and started kicking or tapping on her door with his feet. Zurita had been asleep but woke up and went to the door. After opening it, she saw Walls sleeping in the hallway. She tried to wake him up, asked him to leave, and shut the door. Walls instead knocked on the door, requested to come in and spend the night, and when he was refused entry, began banging on the door and yelling. Zurita believed he was intoxicated and asked him to leave several times, and then threatened to call the police if he didn’t leave. Walls yelled back “[c]all the f--police” and remained in the hallway, yelling. Transcript at 118.

About the same time, in another apartment, Chelsea Wainwright and Kelsie Litton were awakened by the disturbance. When they opened their door, they saw Zurita telling Walls to leave. Walls then started walking toward their door, told them he was drunk, and asked Wainwright if he could come in. She refused. Walls tried to kiss her hand and grabbed her neck. He attempted to enter the apartment and put his foot through the threshold of the apartment. Wainwright and Litton were able to push him out of the apartment and shut the door and locked it. Walls then started banging on the door.

At about that time, Zurita called the police. Officer Gary Wagner with the Martinsville Police Department responded to the call, which was for “a subject that was refusing to leave.” Id. at 251. When he arrived, he found Walls in front of Wainwright’s door. The Officer approached Walls and attempted to have him leave but Walls refused, yelled profanity, and was “coming at him like he was going to kick him.” Id. at 125. At that point, the Officer asked Walls to give him his hands but Walls pulled away. The Officer then reached out for Walls’s hands, and they got into a wrestling match. Eventually, the Officer managed to get behind Walls, asked him to get on the ground, and pulled out his taser. Walls gave the impression that he was going to comply but at the last second, he lunged at the Officer and grabbed the taser. A bystander came to the Officer’s aid and together they wrestled Walls and pinned him on the floor. Eventually, the Officer managed to handcuff Walls. In the scuffle, the Officer’s arm was bruised and Walls had a bleeding nose.

Subsequently, other officers arrived. Officer Gary Wagner’s son, Trent Wagner with the Morgan County Sheriff Department, arrived with the police van and transported Walls to the hospital for treatment and a blood draw. On the way to the hospital, Walls yelled profanities at Officer Trent Wagner, saying “you and your dad are going to f-.pay,” and “I don’t give a f- - - because once you and your dad are dead and gone, you can’t testify against me.” Id. at 214. Additionally Walls said that he was going to have his family kill both Trent Wagner and Gary Wagner. When they arrived at the hospital, Officer Trent Wagner told his father and the other officers what Walls had been saying. Eventually medical personnel cleared Walls for incarceration and he was transported to the police station for booking.

On July 2, 2012, the State charged Walls with: Counts I-IV, intimidation as class D felonies; Count V, resisting law enforcement as a class A misdemeanor; Count VI, criminal trespass as a class A misdemean- or; Count VII, battery as a class A misdemeanor; Count VIII, battery as a class B misdemeanor; and Count IX, disorderly conduct as a class B misdemeanor.

On October 17, 2012, a jury trial was held and the jury found Walls not guilty of Counts I and III, intimidation, but guilty on all remaining Counts. On October 31, 2012, the trial court merged Counts VII and IX into Count V, and sentenced Walls to three years on Count II, three years on Count IV, one year on each of Counts V, VI and VIII, all concurrent, for an aggregate sentence of three years.

Walls now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

Walls contends that the evidence is insufficient to support his conviction for criminal trespass and intimidation. When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-906 (Ind.2005). It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. at 906.

A. Criminal Trespass

Walls argues that the State failed to prove beyond a reasonable doubt that he committed criminal trespass. Pursuant to Ind.Code § 35-43-2-2(a), a person who “not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person’s agent ... commits criminal trespass, a Class A misdemeanor.”

Walls points to Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc., 820 N.E.2d 158 (Ind.Ct.App.2005), reh’g denied, trans. denied, and essentially argues that only Countrywide Apartments or its agent, and not Zurita and Wainwright or other tenants, could ask Walls to leave the common areas of the apartment complex under any condition. In Aberdeen, the court discussed whether a landlord retained a possessory interest in the common areas of an apartment complex for the purposes of asking a person to leave those areas as contemplated by the criminal trespass statute. 820 N.E.2d at 165. The court held that the landlord retained exclusive possession of the common areas and that landlords have “a sufficient possesso-ry interest in the common areas of their properties to maintain an action for trespass to those areas.” Id. at 167. While the holding of Aberdeen related to whether the landlord was able to maintain a trespass action, the court also stated that it found compelling the notion that tenants have a license to use common areas and as such are invitees of the landlord when in the common areas. Id. at 165. We need not resolve the precise nature of tenants’ rights to or status when in the common areas of an apartment complex in this case. We need address only whether Zu-rita and Wainwright had a sufficient interest in their leased apartment units to support their requests for Walls to leave the areas immediately outside their doors.

We observe that Walls was not merely present in the common areas of Countrywide Apartments. While intoxicated, he was in the common areas at 5:15 a.m. in front of Zurita’s apartment door, awakening her by kicking or tapping on her door with his feet. He refused to leave when requested to do so, and instead knocked on the door, requested to come in, and when refused entry, began banging on the door and yelling. Walls then approached Wainwright’s and Litton’s apartment and asked Wainwright if he could enter the apartment. After being refused entry, he attempted to come in and put his foot through the threshold of the apartment. Wainwright and Litton were able to push him out of the apartment and shut the door and locked it, and Walls persisted in banging on their apartment door. Thus, Walls was not merely present in the common areas but also was positioned immediately outside the doors giving access to the leased apartment units, persistently banging on the doors to the units, and in Wainwright and Litton’s case, had his foot through the threshold of the door.

Under the circumstances of this case, the tenants, while not in exclusive control of the common areas, had a sufficient pos-sessory interest in, at a minimum, their apartment doors, the threshold of their apartments, and the immediate adjacent areas by which they accessed their leased apartment units, to request that a person leave that specific area and stop persistently banging on their doors. A rigid rule, applied without exception, that a tenant does not have a sufficient possessory interest in such property would defy logic and lead to an absurd result.

Thus, a tenant’s possessory interest in a rental unit for the purpose of supporting a criminal trespass action may, under circumstances such as these, extend to an interest in the passageways for ingress and egress to and from the rental unit, to the area in the threshold of the unit, and to the door of the unit. See Columbus v. Parks, 10th Dist. Franklin No. 10AP-574, 2011-Ohio-2164, slip op. at 4, 2011 WL 1781911 (Ohio Ct.App.2011) (noting that a landlord gives up his possessory interest in the rental unit and that similarly “the landlord’s rights in limiting common ingress and egress ways to guests of the tenant must also be generally qualified so as to permit access to the renter’s apartment”) (citation omitted); Com. v. Nelson, 74 Mass.App.Ct. 629, 909 N.E.2d 42, 46 (2009) (stating that a residential tenancy carries with it a limited easement through the common areas for purposes of permitting a tenant’s invited guests access and egress from the apartment and that there is “a defense to a charge of criminal trespass only for those defendants who are in the common areas of an apartment building at the invitation of a tenant and within the scope of that invitation”).

There was sufficient evidence to support the trespass conviction and we therefore affirm Walls’s conviction for criminal trespass as a class A misdemeanor.

B. Intimidation of Officer Gary Wagner

Walls also contends that the State failed to provide sufficient evidence that he intimidated Officer Gary Wagner. Walls communicated to Officer Trent Wagner that Walls’s family was going to kill him and his father, Officer Gary Wagner. Officer Trent Wagner subsequently reported to his father what Walls had said. Walls claims that the State failed to prove that he did in fact threaten Officer Gary Wagner because he did not directly communicate his threats to Officer Gary Wagner.

To prove an intimidation, the State must establish beyond a reasonable doubt that Walls threatened Officer Gary Wagner and with the intent that he be placed in fear of retaliation for a prior lawful act. See Ind. Code § 35 — 45—2—1(a)(2). In Ajabu v. State, Ajabu conveyed threats through the media that “if somebody kills [Ajabu’s son] for something he did not do, then that’ll make me take somebody’s life” and that “I didn’t make the rules. [The prosecutor] made the rules. I’m just playing the game.... I’m saying that if he [Ajabu’s son] is killed for something that he did not do, then I’m going to respond in kind.” 677 N.E.2d 1035, 1038 (Ind.Ct.App.1997), trans. denied. Ajabu conveyed threats through the media toward the mother of murder victims by stating “she [] has reaped the benefit of the death, rape and pillaging of our people and our continent. Is she eligible for the death penalty?” Id. at 1037. Ajabu was convicted for two counts of intimidation. Id. at 1038.

On appeal, Ajabu argued that as a matter of law the statements he made through the media were not communicated to another person in the manner required by the intimidation statute in part because the prosecutor was not present when he made the statements and that, under the statute, a threat must be communicated directly to the victim. Id. at 1042. The court noted that “[t]he text of the intimidation statute does not limit the phrase ‘communicates a threat to another person’ to only those threats made directly to or in the presence of the threatened party,” that “[t]he word ‘communicate’ encompasses those threats made known or transmitted to another person,” and that “the statute does not limit the means utilized to convey the threat.” Id. The court also noted that “Ajabu’s contention that he did not threaten to harm [the prosecutor and the mother of the victims] is not well taken because the intimidation statute applies whether the threat is made to unlawfully injure the person threatened or another person.” Id.

Here there was sufficient evidence to establish that Walls intimidated Officer Gary Wagner. Walls communicated his threat to Officer Trent Wagner, who in turn informed his father. The evidence further supports the conclusion that Walls intended that Officer Gary Wagner be placed in fear of retaliation for a prior lawful act. We therefore affirm Walls’s conviction for intimidation.

II. Jury Instructions

Next, Walls argues that the trial court improperly instructed the jury by failing to include whether the offenses in the instructions were felonies or misdemeanors. Jury instructions lie within the sole discretion of the trial court. Carter v. State, 766 N.E.2d 377, 382 (Ind.2002), reh’g denied. We will reverse only when the instructions amount to an abuse of discretion. Whitney v. State, 750 N.E.2d 342, 344 (Ind.2001). Jury instructions are to be considered as a whole and in reference to each other, and we will not reverse the trial court’s decision as an abuse of discretion unless the instructions as a whole mislead the jury as to the law of the case. Carter, 766 N.E.2d at 382.

It is Walls’s allegation that the jury was not properly instructed by Instruction Number 4 because it should have indicated whether the offense of intimidation was a misdemeanor or a felony. The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001). In reviewing a trial court’s decision to give or refuse a tendered jury instruction, we consider whether the instruction correctly states the law, is supported by the evidence in the record, and is covered in substance by other instructions. Whitney, 750 N.E.2d at 344.

We conclude that the trial court correctly set out the law. A jury decides cases based on the evidence presented to it during trial and it determines guilt and innocence of an accused person. See Brown v. State, 799 N.E.2d 1064, 1067 (Ind.2003). “The jury’s role is to determine guilt and innocence” and “not to act as a legislature for a single event by prescribing the penalties the jury deems appropriate for the defendant appearing before them.” Id. We cannot say that the trial court abused its discretion in instructing the jury.

III. Closing Argument

In a related argument, Walls claims that the trial court abused its discretion by not allowing him to address the levels of offenses in his closing argument. The proper scope of closing argument is within the trial court’s sound discretion. Taylor v. State, 457 N.E.2d 594, 599 (Ind.Ct.App.1983). We will not find that the trial court abused its discretion unless its decision is clearly against the logic and effect of the facts and circumstances before it. Id. In seeking reversal of a conviction, it is incumbent upon the appellant to establish not only the trial court’s abuse of discretion but also any resulting prejudice to his or her rights. Id.

As we stated above, the jury’s role is to determine guilt and innocence. Brown, 799 N.E.2d at 1067. A jury is not meant to act as a legislature for a single event by prescribing the penalties the jury deems appropriate for the defendant appearing before them. Id. Moreover, even if the court abused its discretion when it did not permit Walls to address the level of offenses in his closing argument, Walls failed to show how he was prejudiced by the alleged error. Therefore, we conclude that the trial court did not abuse its discretion by limiting Walls’s closing argument.

IV. Unconstitutionality

Finally, Walls contends that the voluntary intoxication statute materially burdens his constitutional right of selecting what to eat or drink and thus impermissi-bly infringes on his rights under Article I, Section I of the Indiana Constitution.

In Sanchez v. State, 749 N.E.2d 509, 517 (Ind.2001), the Indiana Supreme Court held that “[t]he Indiana intoxication statute eliminates the requirement that the voluntarily intoxicated defendant acted ‘knowingly’ or ‘intentionally’ as to those crimes that include those elements.” Id. (footnote omitted). The Court further held: “But even if there may be an act rendered involuntary by intoxication, itself a doubtful premise in most circumstances, the legislature has decreed that the intoxication, if voluntary, supplies the general requirement of a voluntary act. That is sufficient to place the voluntarily intoxicated offender at risk for the consequences of his actions, even if it is claimed that the capacity has been obliterated to achieve the otherwise requisite mental state for a specific crime.” Id.

Relying on Sanchez, Walls asserts that: Because imbibing intoxicated drinks is a core constitutional value, the voluntary intoxication statute cannot stand with respect to Walls if it creates a material burden on [ ] his liberty to decide what he drinks.
⅜ ⅜ ⅝ ⅜ ⅜
By providing that imbibing intoxicated beverages can satisfy the intent element of all crimes, the legislature has, in effect, criminalized constitutionally protected conduct. At the very least, it has attached “more serious penal consequences to an activity that the legislature may view as reprehensible in itself if it produces greater harm than it typically does.”

Appellant’s Brief at 22-23 (citing Sanchez, 749 N.E.2d at 517-518).

First, the intention of the legislature was not to bar intoxication as reprehensible, but only to penalize the conduct that “produces greater harm than it typically does.” See Sanchez, 749 N.E.2d at 518. Thus, the voluntary intoxication statute is triggered only given a state of intoxication that produces more harm than usual. Second, no part of that statute introduces an outright ban that a person cannot drink alcohol. “The purpose of the [public intoxication statute] is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition.” Jones v. State, 881 N.E.2d 1095, 1098 (Ind.Ct.App.2008).

Therefore, we conclude that the voluntary intoxication statute does not impose a substantial obstacle to drinking intoxicating beverages. Walls had the right to drink intoxicating beverages. The police got involved only after Walls’s state of intoxication and his conduct produced more harm than would be usual to the tenants of Countryview Apartments. Therefore, we fail to see how his constitutional right to drink alcoholic beverages was infringed. We find the voluntary intoxication statute to be constitutional.

CONCLUSION

For the foregoing reasons, we conclude that: (1) the State provided sufficient evidence to establish that Walls committed criminal trespass; (2) the State provided sufficient evidence to establish that Walls intimidated Officer Gary Wagner; (3) the trial court did not abuse its discretion in instructing the jury; (4) the trial court did not abuse its discretion when it disallowed Walls to address the levels of offenses in his closing argument; and (5) the voluntary intoxication statute is not unconstitutional.

Affirmed.

BRADFORD, J., concurs.

RILEY, J., dissents in part and concurs in part with separate opinion.

RILEY, J. dissenting

in part and concurring in part.

While I concur with the majority in that (1) there was sufficient evidence to find Walls intimidated Officer Wagner; (2) the trial court properly instructed the jury; (3) the trial court did not abuse its discretion by limiting Walls’ closing argument; and (4) the voluntary intoxication statute was constitutional, I respectfully dissent with the majority’s decision to affirm Walls’ conviction and sentence for criminal trespass.

The majority veered off from our holding in Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc. 820 N.E.2d 158, 164 (Ind.Ct.App.2005), and instead relied upon out-of-state case law. Our court has already established ease law on this issue, and though it may seem “absurd”, this court has strictly interpreted the criminal trespass statute which requires that entry on property be denied by either the owner or its agent. See I.C. § 35-43-2-2(a)(1); Op. p. 267. This court held in Aberdeen that a landlord held a possessory interest in the common areas. In distinguishing the interest of the tenant and the landlord, we stated that a landlord “has a sufficient possessory interest in the common areas of an apartment complex to bring an action for trespass whereas tenants retain a mere license to the common areas.” Id. at 165.

In this regard, we noted that only the landlord can exclude a trespasser from the common areas:

[t]he landlord grants to tenants’ rights of exclusive possession to designated portions of the property, but the landlord retains exclusive possession of the common areas. The landlord grants to tenants a license to use the common areas of the property. Tenants pay for this license as part of their rent. Therefore, tenants are invitees of the landlord while in the common areas, because the landlord has received a pecuniary benefit for licensing their presence.

Id. (citing Stanley v. Town Square Coop., 203 Mich.App. 143, 512 N.W.2d 51, 54 (1994)). Moreover, we followed Aberdeen in Glispie v. State, 955 N.E.2d 819 (Ind.Ct.App.2011). In that case, we considered whether a police officer who was neither an owner of the property or an agent of the owner could ask the defendant to leave the property. This court held that “[t]he State failed to show the elements necessary for an agency relationship. As such, the State failed to prove an essential element of criminal trespass, namely, that the owner or its agent had denied Glispie entry into the owner’s property.” Id. at 823.

By relying on out-of-state case law, the majority conclude that under the circumstances of this case, tenants have a sufficient possessory interest in immediate adjacent areas to their apartment for purposes of the criminal trespass statute. I find that this result leaves the fact finder in the unenviable position to determine how “adjacent” and “immediate” an area should be for a tenant to be able to request a person to leave. See Op. p. 267. Pursuant to Aberdeen, I, however, find that as tenants of Countryview Apartments, Zurita and Wainwright only had exclusive possession of the apartments they leased and not of the common areas. They could therefore not ask Walls to leave the common areas of the apartment.

In light of the foregoing, I disagree with the majority’s finding and I conclude that the State failed to prove the essential element of the crime. I would therefore reverse Walls’ conviction for criminal trespass.

      . Ind.Code § 35-45-2-1.

      . Ind.Code§ 35-44.1-3-1.

      . Ind.Code § 35-43-2-2.

      .Ind.Code§ 35-42-2-1.

      . Ind.Code§ 35-42-2-1.

      . Ind.Code § 35-45-1-3.

      . In a separate opinion in Aberdeen, Judge Baker dissented from the majority’s criminal trespass analysis and, specifically, the statements that tenants have only a license to the common areas and are invitees of the landlord while in the common areas. 820 N.E.2d at 170-171.


author: RILEY, Judge. BROWN, Judge,

text:
    Alexander David TORADZE, Appellant-Respondent, v. Susan Blake TORADZE, Appellee-Petitioner.
    No. 71A05-1212-DR-623.
    Court of Appeals of Indiana.
    Aug. 22, 2013.

      Judy M. Tyrrell, Indianapolis, IN, Attorney for Appellant.
    Mark J. Torma, South Bend, IN, Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

AppellanL-Respondent, Alexander David Toradze (Father), appeals the trial court’s denial of his motion to dismiss for lack of jurisdiction in favor of Appellee-Petitioner, Susan Blake Toradze (Mother).

We affirm.

ISSUE

Father raises one issue on appeal, which we restate as follows: Whether the trial court properly decided it had jurisdiction to enter an educational needs order pursuant to Ind.Code § 31-16-6-6.

FACTS AND PROCEDURAL HISTORY

Mother and Father were divorced on May 24, 2002. During the marriage, two children were born: D.T., born on November 30, 1991 and A.T., born on April 21, 1993. The Decree of Dissolution included an order for child support but was silent on the issue of college educational expenses. Both children were emancipated by operation of law on July 1, 2012.

On October 17, 2012, Mother filed a petition to modify child support requesting an apportionment of post-secondary educational expenses between the parties. On October 25, 2012, Father filed a motion to dismiss for lack of jurisdiction. After hearing the parties’ arguments on November 14, 2012, the trial court denied Father’s motion.

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Father contends that the trial court lacks jurisdiction to decide Mother’s request to apportion the children’s post-secondary educational expenses between the parties based on I.C. § 31-16-6-6. The applicable standard of review for Trial Rule 12(B)(1) motions to dismiss for lack of subject matter jurisdiction is a function of what occurred in the trial court. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001). That is, the standard of review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a paper record. Id. Where, as here, the facts before the trial court are not in dispute, the question of subject matter jurisdiction is purely one of law. Id. Under those circumstances no deference is afforded the trial court’s conclusion because appellate courts independently, and without the slightest deference to the trial court determination, evaluate those issues they deem to be questions of law. Id.

Under Indiana law, there is no absolute legal duty on the parents to provide a college education for their children. Scales v. Scales, 891 N.E.2d 1116, 1119 (Ind.Ct.App.2008). However, the statutory authorization for the divorce court to order either or both parents to pay sums toward their child’s college education constitutes a reasonable manner in which to enforce the expectation that most families would encourage their qualified children to pursue a college education consistent with individual family values. Id. In determining whether to order either or both parents to pay sums toward their child’s college education, the court must consider whether and to what extent the parents, if still married, would have contributed to the child’s college expenses. Id.

At issue in this appeal is Indiana Code section 31-16-6-6, which governs the termination of child support and emancipation of a child within the procedural framework of a dissolution decree. The purpose of the statute “is to require that parents provide protection and support for the welfare of their children until the children reach the specified age or no longer require such care and support.” Hirsch v. Oliver, 970 N.E.2d 651, 655 (Ind.2012). Prior to July 1, 2012, the award of educational expenses following a divorce proceeding was statutorily mandated as follows:

The duty to support a child under this chapter ceases when the child becomes twenty-one (21) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming twenty-one (21) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age:
(B) has not attended a secondary or postsecondary school for the prior four (4) months and is not enrolled in a secondary or postsecondary school; and
(C) is or is capable of supporting himself or herself through employment.

I.C. § 31-16-6-6(a). Effective July 1, 2012, the legislature amended I.C. § 31-16-6-6, which lowered the presumptive age for termination of child support from twenty-one to nineteen. With the exception of the decrease in age-limit, the statute remained the same. Thereafter, on May 9, 2013, the legislature approved a second amendment of the statute in Public Law 207-2013, § 45, which added a subsection (c), “EFFECTIVE JULY 1, 2012 (RETROACTIVE).” Consequently, the current statute reads, in pertinent part, as follows:

(a) The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming nineteen (19) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age:
(B) has not attended a secondary or postsecondary school for the prior four (4) months and is not enrolled in a secondary or postsecondary school; and
(C) is or is capable of supporting himself or herself through employment.
(c) If a court has established a duty to support a child in a court order issued before July 1, 2012, the:
(1) parent or guardian of the child; or
(2) child; may file a petition for educational needs until the child becomes twenty-one (21) years of age.

I.C. § 31-16-6-6(a) & (c).

The record reflects that both children were emancipated on July 1, 2012 by operation of the statute. Although a child support order had been instituted as part of the dissolution decree in 2002, no separate educational needs order had been requested until Mother’s petition of October 17, 2012. When Mother filed her petition for educational expenses, both children had not yet reached twenty-one years of age. Because the trial court had established a duty to support the children in a court order issued prior to July 1, 2012 and the children were younger than twenty-one years of age, Mother was entitled to file her petition for post-educational expenses based on I.C. § 31-16-6-6(a) & (c). Therefore, we conclude that the trial court had jurisdiction to decide Mother’s request to institute an order for educational needs.

CONCLUSION

Based on the foregoing, we conclude that the trial court acquired jurisdiction with respect to Mother’s request for educational expenses following a dissolution of marriage based on I.C. § 31-16-6-6(a) & (c).

Affirmed.

BRADFORD, J. concurs.

BROWN, J. concurs in result with separate opinion.

BROWN, Judge,

concurring in result.

I concur in the result reached by the majority but write separately to fine tune a point and state my disagreement with the majority’s conclusion that the trial court acquired subject matter jurisdiction to decide Mother’s request to institute an order for educational needs based on the amendments to Ind.Code § 31-16-6-6. The Indiana Supreme Court has held that Indiana trial courts possess two kinds of “jurisdiction.” K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Id. “Personal jurisdiction requires that appropriate process be effected over the parties.” Id. The Court also held that “[ojther phrases recently common to Indiana practice, like ‘jurisdiction over a particular case,’ confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations.” Id. The Court explained that “[r]eal jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or a judgment rendered without any service of process.” Id. at 542. Because the trial court had the power to hear and determine cases of the general class to which Mother’s petition to modify child support belongs, and appropriate process was effected over the parties, I would conclude that the trial court had personal and subject matter jurisdiction and that Ind.Code § 31-16-6-6 provided the statutory basis for providing Mother the requested relief.

      . P.L. 111-2012, effective July 1, 2012.

      . P.L. 207-2013, § 45, was approved after the filing dates of the parties’ appellate briefs.


author: NAJAM, Judge.

text:
    Roger A. BUCHANAN and Susan Buchanan, Appellants-Defendants, v. HSBC MORTGAGE SERVICES, INC., Appellee-Plaintiff.
    No. 39A01-1211-MF-515.
    Court of Appeals of Indiana.
    Aug. 22, 2013.
    Rehearing Denied Nov. 5, 2013.

      James C. Spencer, Dattilo Law Office, Madison, IN, Attorney for Appellants.
    Julia Blackwell Gelinas, Lucy R. Dol-lens, Jacob V. Bradley, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Ap-pellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Roger Buchanan and Susan Buchanan appeal the trial court’s grant of summary judgment in favor of HSBC Mortgage Services, Inc. (“HSBC”) in this foreclosure action. The Buchanans raise two issues on appeal which we restate as:

1. Whether the trial court erred when it found that HSBC is the holder of a promissory note executed by the Buchanans when they purchased their home.
2. Whether the trial court erred when it found that the mortgage is valid despite an allegedly defective ac-knowledgement.

We affirm.

FACTS AND PROCEDURAL HISTORY

On July 28, 2006, the Buchanans executed a promissory note (“the note”) and mortgage for the purchase of a house in Madison for $235,000. The original lender was Accredited Home Lenders, Inc. (“Accredited”), and the mortgage listed Mortgage Electronic Registrations Systems, Inc. (“MERS”) as mortgagee and nominee for Accredited and its successors and assigns. On October 18, 2006, Accredited sold the note to HSBC. And in November 2007, the Buchanans stopped making their monthly mortgage payments. They have made no payments since that time, but have continued to reside in the house.

On December 29, 2008, HSBC filed a complaint to foreclose against the Buchan-ans. And in March 2009, HSBC filed a motion for default and summary judgment. In April, the Buchanans filed their answer, motion to dismiss, affirmative defenses, motion to include Accredited as a party, and response to HSBC’s summary judgment motion. And in January 2010, the Buchanans filed a cross-motion for summary judgment.

Following a hearing on the summary judgment motions in May 2010, the trial court took the matter under advisement. The parties filed supplemental memoranda with the court. In July 2011, the Buchan-ans filed a second summary judgment motion and, in the alternative, a motion for partial summary judgment. Following a hearing on the Buchanans’ second summary judgment motion and motion for partial summary judgment in October 2011, the trial court took the matter under advisement.

On October 26, 2012, the trial court entered summary judgment for HSBC and found and concluded in relevant part as follows:

4. The Buchanans made some payments on the note, but have not made any payments since November of 2007.
5. On December 19, 2008, MERS solely as nominee of the Accredited Home Lenders, Inc., assigned its interest in the mortgage to the Plaintiff HSBC Mortgage Services, Inc. This lawsuit was filed on December 29, 2008.
6. By the terms of the mortgage MERS, as the mortgagee and nominee for Accredited, had the authority to assign the mortgage to HSBC.
7. As between the Plaintiff HSBC and the Defendants Buchanans, HSBC is both the holder of the note and the mortgagee of the mortgage sued upon in this case. The Buchanans are the debtors and mortgagors.
* * ⅜
9. There is no issue of genuine or material fact and the Plaintiff is entitled to judgment against the Defendants as a matter of law.
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that:
1. The Plaintiff HSBC Mortgage Services, Inc. recover from the [Buchanans] the sum of [$269,687.97] owing as of January 21, 2009 plus interest at the rate of 8.9990% per annum ($57.23 per day) from January 22, 2009[,] to the date of this judgment (1373 days) plus attorney’s fees in the amount of $1,500, for a total judgment of [$349,714.76]. Interest shall accrue on the judgment amount at the rate of [8%] per annum after the date of this judgment.
2. The mortgage of the Plaintiff HSBC Mortgage Services, Inc. is hereby foreclosed, and the interests of [the Buchan-ans] are hereby foreclosed as liens junior and subordinate to the lien of the Plaintiff on the [subject real property]....

Appellants’ App. at 340-42. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Our standard of review for summary judgment appeals is well established:

When reviewing a grant [or denial] 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 as 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). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 581-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question 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). While we are not bound by the trial court’s findings and conclusions and give them no deference, they aid our review by providing the reasons for the trial court’s decision. See GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254,1257 (Ind.Ct.App.2000).

Issue One: Assignment of Note

The Buchanans first contend that the trial court erred when it found that HSBC was the holder of the note. The Buchan-ans allege that there are genuine issues of material fact precluding summary judgment on this pivotal question. In essence, the Buchanans maintain that the validity of the assignment of the note to HSBC is in doubt. In support of that contention, the Buchanans assert that: the note attached to HSBC’s complaint did not include an endorsement; the allonge purporting to assign Accredited’s interest in the note to HSBC is not dated and is not affixed to the note; and HSBC has not yet provided an original of the note to the trial court. The Buchanans also allege that there is a genuine issue of material fact whether the person who signed the allonge on behalf of Accredited was authorized to transfer Accredited’s interest in the note.

In support of summary judgment, HSBC designated as evidence an allonge showing that the promissory note was endorsed in blank. As such, the note was converted into a bearer instrument pursuant to Indiana Code Section 26-1-3.1-109(a)(2) (“A promise or order is payable to bearer if it: ... (2) does not state a payee.”) Thus, HSBC demonstrated that it was the holder of the bearer instrument, and it was entitled to enforce the instrument pursuant to Indiana Code Section 26-1-8.1-301(1), which states that a “ ‘[p]erson entitled to enforce’ an instrument means ... the holder of the instrument.” A “holder” means “the person in possession of a negotiable instrument that is payable ... to bearer.” Ind.Code § 26-1-1-201(20)(A). HSBC also designated evidence showing that it was assigned the mortgage by MERS.

The undisputed designated evidence shows that Accredited transferred the note to HSBC in 2006. And the Buchanans do not direct us to any authority to support their assertions that the lack of a date on the allonge renders it invalid, that HSBC’s failure to attach the allonge to its complaint is fatal to its claim, or that an original of a note is required to be attached to a complaint. Indeed, HSBC has designated as evidence an affidavit stating that it has the original note in its possession and will make it available to the trial court upon request. And while Indiana Code Section 26-1-3.1-204 requires that the allonge be affixed to the note, there is no evidence in the record to indicate that the allonge is not so affixed. HSBC did not include the allonge when it filed its complaint, but under Trial Rule 9.2(F), a plaintiff may amend its complaint to correct the omission of a required written instrument. See, e.g., Wilson v. Palmer, 452 N.E.2d 426, 430 (Ind.Ct.App.1983). Here, while HSBC did not amend its complaint, it designated evidence with its motion for summary judgment that was the functional equivalent of an amendment.

Finally, the Buchanans’ contention that Jacquelyn Rohrscheib may not have had the authority to execute the allonge is not supported by the designated evidence. The only evidence in support of that contention is a list dated June 1, 2009, purporting to contain the names of then-current and former officers with Accredited. But that list was prepared in the course of a bankruptcy proceeding in response to a request to identify current officers and “each member [of Accredited] who withdrew from the [business] within one year immediately preceding the commencement of this case.” Appellants’ App. at 324. Because Accredited’s bankruptcy proceeding commenced in 2009, the list of former officers would not have included those whose employment ended prior to 2008. And because Accredited sold the note to HSBC in 2006, Rohrscheib could have executed the allonge at that time and ceased working for Accredited before 2008. In sum, the list of former Accredited officers is by its terms not an exhaustive list and does not support the Buchanans’ contention that there is a genuine issue of material fact whether Rohrscheib had authority to execute the allonge.

The Buchanans have not demonstrated the existence of any genuine issue of material fact precluding summary judgment. The trial court did not err when it found that HSBC is the holder of the note.

Issue Two: Acknowledgement

The Buchanans also contend that the “mortgage lacked the requisite ac-knowledgement and was unenforceable.” Brief of Appellants at 20. In support of that contention, the Buchanans point out that the notary public who acknowledged their execution of the mortgage “had no power to take acknowledgements in Indiana nor did he have the power to take oaths given outside of his commission by the State of Kentucky.” Id. at 21-22. The Buchanans rely on this court’s opinion in Frazer v. McMillin & Carson, 94 Ind.App. 431, 179 N.E. 564, 567 (1932), where we observed that “the official activities of a notary public are limited to the political division for which he is appointed and commissioned, and that his acts outside his territorial limits are void.”

But for purposes of this appeal, we need not decide whether the mortgage was properly acknowledged. The Buchanans do not deny that they executed the mortgage and note when they purchased their home in 2006. And it is well settled that “[a]n unacknowledged instrument is binding between parties and their privies.” Hunter v. Milhous, 159 Ind.App. 105, 305 N.E.2d 448, 458 n. 3 (1973). In other words, as between the Buchanans, Accredited, and Accredited’s remote assignee, HSBC, the notarial acknowledgement is insignificant. The Buchanans’ contention on this issue is without merit.

Affirmed.

MATHIAS, J., and BROWN, J., concur.

      . Our supreme court has explained that in the 1990s "a consortium of investment banks” created MERS to maintain "a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the United States.” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 809 (Ind.2012). MERS member banks list MERS as both "nominee” for Lender and as "mortgagee” on their mortgage documents. Id. MERS member banks can then buy and sell the note among themselves without recording an assignment of the mortgage. Id. In the event of default, MERS simply assigns the mortgage to whichever member bank currently owns the note, and that bank forecloses on the borrower. Id.

      . The Buchanans had not yet filed an answer to the complaint, but had requested an extension of time to do so.

      . An "allonge” is a paper "attached to a negotiable instrument for the purpose of receiving further endorsements when the original is filled.” Black’s Law Dictionary 76 (7th ed. 1999). Here, it was not necessary to use an allonge, as the original did not contain any endorsements. But we are not aware of any reason to prohibit the use of an allonge in this case.

      . Under Trial Rule 9.2(F), had the Buchanans moved to dismiss on the basis that HSBC had not complied with Trial Rule 9.2(A), the trial court could have ordered the amendment. And while the Buchanans filed a motion to dismiss on April 1, 2009, the motion does not mention Trial Rule 9.2 or otherwise indicate any concern regarding the missing allonge.

      . HSBC contends that the Buchanans did not timely designate this evidence in opposition to summary judgment, but HSBC did not object to the submission of the list at the summary judgment hearing and cannot now complain.

      .Because we hold that HSBC is the holder of the note, as a matter of law, we need not address the Buchanans' contention that HSBC did not have standing to file the foreclosure complaint. And because the undisputed designated evidence shows that Accredited transferred its interest in the note to HSBC, we need not address the Buchanans’ contention that MERS did not have authority to transfer the note.