author: BRADFORD, Judge.

text:
    RIVIERA PLAZA INVESTMENTS, LLC and Haresh Shah, Appellants-Defendants, v. WELLS FARGO BANK, N.A., Appellee-Plaintiff.
    No. 02A03-1308-MF-323.
    Court of Appeals of Indiana.
    May 15, 2014.

      Aaron J. Butler, Fort Wayne, IN, Attorney for Appellant.
    Mark D. Gerth, Peter A. Velde, Kight-linger & Gray, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

On July 7, 2006, Appellant-Defendant Riviera Plaza Investments, LLC executed a fixed rate promissory note (“Note”) by which it promised to pay Citibank N.A., a national banking association, successor, by merger, to Citibank, FSB, a federal savings bank (“Citibank”) the sum of $2,925,000.00 plus interest. On that same date and in connection to the Note, Riviera also executed a mortgage on certain real estate owned by Riviera, and any improvements located thereon (“Mortgage”), and Appellant-Defendant Haresh Shah executed a loan guaranty (“Guaranty”). Riviera subsequently defaulted on the loan.

The Note, Mortgage, and Guaranty (collectively the “Loan Documents”) were eventually assigned to Appellee-Plaintiff Wells Fargo Bank, N.A. (“Wells Fargo”), which then became involved in ongoing collection and foreclosure proceedings against Riviera and Shah (collectively, “Appellants”). On May 13, 2013, the trial court issued its order of judgment. With regard to Riviera, the trial court granted Wells Fargo’s motion for summary judgment. With regard to Shah, the trial court entered judgment in favor of Wells Fargo and against Shah.

On appeal, Appellants contend that the trial court erred in finding in favor of Wells Fargo. Specifically, Appellants claim that the record does not support the trial court’s determination that (1) the Loan Documents were properly assigned to Wells Fargo, (2) Wells Fargo was entitled to recover from Appellants, (3) the assignment of the right, title, and interest of the Loan Documents did not amount to a material alteration of the Loan Documents which would release Shah from his obligation under the Guaranty, and (4) Wells Fargo was entitled to an award of interest. Finding no error by the trial court, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 7, 2006, Riviera, by Shah, for value received, executed and delivered a Note by which it promised to pay Citibank the sum of $2,925,000.00 in monthly installment payments of principal plus interest in the sum of $19,166.33 per month at an annual rate of 6.85 percent. On the same date, Riviera, again by Shah, executed a Mortgage in order to secure the payment of the Note. Also on that date, Shah executed a Guaranty in favor of Citibank. Pursuant to the terms of the Guaranty, Shah guaranteed the prompt, complete, and full payment and performance of Riviera’s obligations in accordance with the terms of the Note.

Riviera failed to make the scheduled monthly payments on the Note. As a result of Riviera’s failure to make the scheduled monthly payments on the Note, Citibank informed Riviera that it was in default and, on August 27, 2010, initiated foreclosure proceedings against Riviera. On October 28, 2010, Riviera filed a motion for judgment on the pleadings/objection to prosecution of case by a plaintiff who is not a real party in interest, claiming that Citibank had sold the loan at issue to a third party and was no longer the real party in interest. The trial court scheduled a hearing on Riviera’s motion for November 23, 2010.

On November 17, 2010, LSREF2 Nova Investments, LLC (“Nova”) filed an appearance and a request to be substituted as the plaintiff due to an assignment by Citibank to Nova of Citibank’s right, title, and interest in the Loan Documents. The trial court scheduled a hearing on Nova’s motion for the same time as the hearing that was previously scheduled for Riviera’s motion for judgment on the pleadings. On November 22, 2010, Riviera informed the trial court that it did not object to Nova’s motion to substitute. The trial court thereafter granted Nova’s motion and vacated the hearings scheduled for November 28, 2010.

On December 14, 2010, Nova filed a motion for leave to amend its complaint to add Shah as an additional defendant based upon his execution of the Guaranty. The trial court issued an order stating that Nova’s motion would be granted unless either Riviera or Shah objected within ten days. Neither Riviera nor Shah objected, and, on January 4, 2011, the trial court 'granted Nova’s motion to amend its complaint to include Shah as an additional defendant.

On February 3, 2011, Appellants filed their answer to the amended complaint. Appellants did not deny or challenge the validity of Citibank’s assignment of the Loan Documents to Nova in this pleading.

On February 9, 2011, Wells Fargo filed a request to be substituted as the plaintiff due to an assignment by Nova to Wells Fargo of Nova’s right, title, and interest in the Loan Documents. Neither Riviera nor Shah objected to Wells Fargo’s motion, and, on February 16, 2011, the trial court granted Wells Fargo’s motion. Neither Riviera nor Shah took any subsequent steps to set aside the trial court’s order or seek reconsideration of the order. In addition, neither Riviera nor Shah filed any subsequent pleadings in which they denied that Wells Fargo was the real party in interest or challenged the authenticity of the assignment.

Wells Fargo subsequently filed a motion for summary judgment which was denied by the trial court on November 21, 2011. On May 2, 2012, Riviera filed a bankruptcy petition. With respect to Riviera, the trial court stayed the case pending the conclusion of the bankruptcy proceedings. With respect to Shah, the trial court conducted an evidentiary hearing on June 19, 2012. Following the conclusion of the presentation of evidence, the trial court took the matter under advisement.

In October of 2012, Wells Fargo notified the trial court of the dismissal of Riviera’s bankruptcy proceedings and filed a renewed motion for summary judgment. On November 12, 2012, the trial court conducted a hearing on Wells Fargo’s motion for summary judgment. On May 13, 2013, the trial court issued its order of judgment. With regard to Riviera, the trial court granted Wells Fargo’s motion for summary judgment. With regard to Shah, the trial court entered judgment in favor of Wells Fargo and against Shah. On July 15, 2013, the trial court entered a decree of foreclosure. This appeal follows.

DISCUSSION AND DECISION

I. Standard of Review

A. Summary Judgment Against Riviera

With respect to Riviera, the trial court granted Wells Fargo’s motion for summary judgment.

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. When reviewing a decision to grant summary judgment, this court applies the same standard as the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). We must determine whether there is a genuine issue of material fact requiring trial, and whether the moving party is entitled to judgment as a matter of law. Id. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id.
A party seeking summary judgment bears the burden to make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. American Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind.Ct.App.1996). Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the non-moving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id. A trial court’s grant of summary judgment is “clothed with a presumption of validity,” and the appellant bears the burden of demonstrating that the trial court erred. Best Homes, Inc., 714 N.E.2d at 706 (quoting Barnes v. Antich, 700 N.E.2d 262, 264-65 (Ind.Ct.App.1998)).

Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887-88 (Ind.Ct.App.2002).

B. Judgment Against Shah Following Evidentiary Hearing

With respect to Shah, the trial court made findings of facts and conclusions thereon following an evidentiary hearing. Where a trial court has entered findings of fact and conclusions thereon, we engage in the following two-tiered standard of review:

“We must first determine whether the evidence supports the findings of fact and then whether the findings support the judgment. We will not reverse the trial court’s findings and judgment unless they are clearly erroneous. Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences from the evidence to support them. The judgment is clearly erroneous when it is unsupported by the findings of fact and conclusions entered on the findings. In making these determinations, we will neither reweigh the evidence nor judge witness credibility, considering only the evidence favorable to the judgment and all reasonable inferences therefrom.
While we defer substantially to findings of fact, we do not do so for conclusions of law. We apply a de novo standard of review to conclusions of law and owe no deference to the trial court’s determination of such questions.”

Gates v. Houston, 897 N.E.2d 532, 534-35 (Ind.Ct.App.2008) (quoting Mueller v. Karns, 873 N.E.2d 652, 657 (Ind.Ct.App.2007)).

II. Whether the Trial Court Erred in Ruling in Favor of Wells Fargo

On appeal, Appellants contend that the trial court erred in ruling in favor of Wells Fargo. Specifically, Appellants claim that the trial court erred in ruling in favor of Wells Fargo because Wells Fargo failed to prove (1) a valid assignment of the Loan Documents, (2) that it was entitled to recover from Appellants, (3) that the assignment of the Loan Documents did not constitute a material alteration which would release Shah from his obligation under the Guaranty, and (4) that it was entitled to an award of interest.

A. Proof of Assignment of Loan Documents to Wells Fargo

Initially, we note that in claiming that the trial court erred in ruling in favor of Wells Fargo, neither Riviera nor Shah contest the execution of the Loan Documents. Rather, they argue that the trial court erred in ruling in favor of Wells Fargo because the record does not prove that the Loan Documents were assigned to Wells Fargo.

1. Riviera

Riviera claims that issues of material fact remains as to whether there had been a valid assignment of the Note and Mortgage to Wells Fargo. Specifically, Riviera argues that proof of the assignment was not included in the designated evidence and, alternatively, that Wells Fargo failed to prove a proper chain of title with respect to ownership of the right, title, and interest in the Note and Mortgage. Wells Fargo, for its part, claims that no issues of material fact remain that would preclude summary judgment with regard to the assignment of the Note and Mortgage. .We agree with Wells Fargo,

i. Assignment of Note and Mortgage

The designated evidence demonstrates that Citibank assigned its right, title, and interest in the Note and Mortgage to Nova. The pleadings further demonstrate that Nova subsequently assigned its right, title, and interest in the Note and Mortgage to Wells Fargo. We have previously recognized that a trial court may take judicial notice of a fact that is not subject to reasonable dispute, including judicial notice of the pleadings and exhibits attached thereto in the very case that is before the court. See Brown v. Jones, 804 N.E.2d 1197, 1201-02 (Ind.Ct.App.2004), trans. denied,. Riviera does not point to any authority suggesting that the general rule allowing the trial court to take judicial notice of the pleadings and exhibits attached thereto does not apply in the context of a request for summary judgment.

Further, we have held that a party has the discretion to designate the material either in the summary judgment motion itself, in a separate filing, or in a brief in support of or in opposition to the motion for summary judgment, and that the party acts within its discretion as long as it informs the trial court of the specific material upon which it relies in support of its motion for summary judgment. Am. Mgmt., Inc., 666 N.E.2d at 429. Here, Wells Fargo referred to the exhibit evidencing the assignments in the brief and reply brief that it filed in support of its motion for summary judgment. As such, we conclude that the trial court properly considered the exhibit that was attached to the pleadings, and that said exhibit, coupled with the designated evidence, demonstrates that the Note and Mortgage were assigned from Citibank to Nova and then from Nova to Wells Fargo.

ii. Chain of Title

As to Riviera’s alternative claim, the designated evidence demonstrates a proper chain of title as the Note and Mortgage were transferred from Citibank to Nova and from Nova to Wells Fargo. In making this alternative claim, Riviera argues that the designated evidence contains a reference to an assignment of the Note and Mortgage to a third party, Lone Star Funds, which Riviera argues creates an issue of material fact as to whether the assignment of the Note and Mortgage from Nova to Wells Fargo is valid. However, despite Riviera’s claim that there was an assignment to an unrelated third party, our review of the designated evidence reveals that the so-called reference to an unrelated third party in the designated evidence is in actuality a reference to Nova.

The full legal name of Nova included on all legal documents and pleadings that were filed in the trial court is LSREF2 Nova Investments, LLC. LSREF2 is an abbreviation for “Lone Star Real Estate Funds 2.” The designated evidence demonstrates that although Lone Star Funds and Nova are technically separate entities, with respect to the Note and Mortgage, the reference to “Lone Star Funds” was a shorthand reference to Nova. Accordingly, we conclude that the designated evidence does not create an issue of material fact as to the chain of title from Citibank to Nova and Nova to Wells Fargo. Because we conclude that no issues of material fact remain as to whether there was a valid assignment of the Note and Mortgage from Citibank to Nova and then Nova to Wells Fargo, we conclude that the trial court did not err in granting Wells Fargo’s request for summary judgment in this regard.

2. Shah

Shah claims that the record is devoid of evidence demonstrating that there had been a valid assignment of the Guaranty to Wells Fargo. Again, we have previously recognized that a trial court may take judicial notice of a fact not subject to reasonable dispute, including judicial notice of the pleadings and exhibits attached thereto in the very case that is before the court. See Brown, 804 N.E.2d at 1201-02. Further, Indiana Rule of Trial Procedure 9.2(B) provides that “[w]hen a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleadings or by an affidavit filed therewith.” (Emphasis added).

In the instant matter, copies of the Note and Mortgage were attached to the complaint filed by Citibank. Nova attached a copy of the assignment, allonge, and bill of sale of the Loan Documents from Citibank to Nova to its motion to substitute itself as the proper plaintiff on the previously filed complaint. Nova subsequently filed a motion to amend the complaint to add Shah as a defendant due to his execution of the Guaranty. Nova attached a copy of the Guaranty to its amended complaint. The bill of sale specifically mentions “all guaranties ... executed and/or delivered to Seller in connection with the Loan.” Appellants’ App. p. 172.

In addition, Wells Fargo attached a copy of the assignment of the Loan Documents from Nova to Wells Fargo in its motion to substitute itself as the proper plaintiff on the previously filed amended complaint. The assignment specifically referenced the Note, Mortgage, and all “claims secured thereby.” Appellants’ App. p. 176. Furthermore, with respect to assignments, the Guaranty provides as follows:

This Guaranty shall inure to the benefit of the successors and assigns of Lender. Lender may transfer or assign all or any part of this Guaranty or any interest therein without liability or notice to or consent of Guarantor; and this Guaranty shall inure to the benefit of such transferee or assignee to the extent so assigned and Lender may further, without liability or notice to or consent of Guarantor, disclose to any prospective transferee or assignee any and all information, financial or otherwise, which Lender may have about Guarantor, Borrower, the Loan, the Property, this Guaranty, or the performance or nonperformance of any obligations of Borrower or guarantor. This Guaranty shall follow the Note and Security Instrument and, in the event that the Note and the Security Instrument are sold, transferred, assigned or conveyed by Lender, this Guaranty may be likewise sold, transferred, assigned or conveyed by Lender to the holder of the Note and the Security Instrument, and, in such event, the holder of his Guaranty may enforce this Guaranty just as if said holder had been originally named as Lender hereunder. The terms of this Guaranty shall bind the heirs, legal representatives, successors and assigns of Guarantor, provided, however, that Guarantor may not assign this Guaranty, or assign or delegate any of its rights or obligations under this Guaranty, without the prior written consent of Lender in each instance, which may be given or withheld in the sole and absolute discretion of Lender.

Appellee’s App. pp. 7-8 (emphasis added). Furthermore still, the record indicates that Shah did not object to the substitution of Wells Fargo as the real party in interest and plaintiff on the amended complaint. In light of the language in the assignment referring to all “claims secured thereby,” Appellants’ App. p. 176, the language of the Guaranty indicating that the Guaranty “shall follow the Note and Security Instrument,” Appellee’s App. p. 7, and Shah’s failure to object to the substitution of Wells Fargo as the real party in interest and plaintiff on the amended complaint, we conclude that the trial court did not err in determining that Wells Fargo held a valid assignment of the Guaranty. As such, we further conclude that the trial court did not err in finding in favor of Wells Fargo in this regard.

B. Proof that Wells Fargo Was Entitled to Recover from Appellants

In claiming that the trial court erred in ruling in favor of Wells Fargo, Appellants also argue that Wells Fargo failed to prove that it was entitled to recover from Appellants. Specifically, Appellants argue that Wells Fargo failed to prove that Riviera defaulted on the Note. Appellants also argue that Wells Fargo failed to prove the amount due as a result of Riviera’s alleged default.

1. Riviera

Initially, we note that the Appellants’ argument on appeal does not raise any allegation that the designate evidence failed to establish that Riviera defaulted on the Note or the amount due and owing under the terms of the Note. Appellants’ arguments relate only to the evidence presented during the evidentiary hearing that was conducted by the trial court on June 19, 2012. As such, these arguments will be discussed only with regard to Shah.

However, notwithstanding Appellants’ failure to raise an argument pertaining to the trial court’s award of summary judgment against Riviera, we observe that the designated evidence demonstrates that Riviera defaulted on the Note by failing to make the scheduled loan payments and that Riviera was aware of this default on or before March 10, 2010. Riviera was given an opportunity to cure its default but did not do so. The designated evidence also demonstrates that as of September 1, 2012, Riviera owed the sum of $4,012,199.99 on the Note and Mortgage, broken down as follows:

a. Principal in the amount of $2,832,626.81;

b. Accrued interest from July 1, 2009 to September 1, 2012 in the amount of $614,443.97;

c. Accrued interest at the default rate from August 1, 2009 to September 1, 2012 in the amount of $443,384.78;

d. Accrued late changes in the amount of $41,399.28; and

e. Advances for the payment of real estate taxes in the amount of $80,345.15.

Appellants’ App. pp. 361-62. Riviera did not designated any evidence that would create an issue of material fact as to whether it was in default of the Note or whether the stated sums owed by Riviera on the specified dates were inaccurate. As such, the trial court did not err in awarding summary judgment in favor of Wells Fargo in this regard.

2. Shah

i. Default

With respect to Shah, Appellants argue that Wells Fargo failed to establish that Riviera defaulted on the Note. However, contrary to Shah’s claim, the record contains evidence that Riviera did in fact default on the Note. The record demonstrates that Riviera failed to make the scheduled monthly payments beginning in August of 2009. Riviera and Shah were notified that Riviera was in default and given the opportunity to cure said default but failed to do so. Shah testified that he sent two additional payments after August of 2009 but failed to provide any documentation supporting this claim and conceded that the alleged payments were never cashed. The trial court, acting as the trier-of-fact, was free to believe or disbelieve Shah’s testimony regarded these claimed additional payments and to weigh said testimony accordingly. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004); McClendon v. State, 671 N.E.2d 486, 488 (Ind.Ct.App.1996); Moore v. State, 637 N.E.2d 816, 822 (Ind.Ct.App.1994), trans. denied.

ii. Competency of Witnesses

The trial court also heard the testimony of numerous witnesses who serviced the loan on behalf of Citibank, Nova, and Wells Fargo. These witnesses each testified regarding Riviera’s default of the Note. Specifically, these witnesses testified that Riviera failed to make the loan payments scheduled for the loan after August of 2009 and during the time each witness serviced the loan. On appeal, Shah relies on case law from Florida and Wisconsin to challenge whether these witnesses were competent to testify, claiming that the witnesses lacked the requisite personal knowledge about the Loan Documents, and therefore should not have been allowed to testify about such. The Florida and Wisconsin cases cited by Shah, however, are unavailing because in the instant matter, unlike the cases cited by Shah, the record demonstrates that each of the challenged witnesses did have the requisite personal knowledge and was, as a result, competent to testify.

Indiana authority indicates that a witness’s personal knowledge of a situation can be inferred from his or her position or relationship to the fact set forth in his or her testimony or affidavit. Miller v. NBD Bank, N.A., 701 N.E.2d 282, 286 (Ind.Ct.App.1998); see also Skaggs v. Merchs. Retail Credit Ass’n, Inc., 519 N.E.2d 202, 203 (Ind.Ct.App.1988) (providing that an affi-ant’s competence to testify regarding payments and credits made on phone bills could be inferred from the affiant’s position in the plaintiffs billing and collections office). We have concluded that personal knowledge could be inferred from an affi-ant’s position as a recovery specialist for a loan servicer. See DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 701 (Ind.Ct.App.2012). Moreover, specifically relevant to the instant matter, we have noted that personal knowledge relating to a debt and payment of said debt by an asset manager of an authorized representative of a creditor and his possession of files relating to the debut justifies admission of the asset manager’s affidavit or testimony concerning a defendant’s default and the amounts owned on a debt. See Am. Mgmt., Inc., 666 N.E.2d at 429 n. 2.

Here, each of the challenged witnesses testified that Riviera failed to make scheduled loan payments during the time in which each serviced the loan pursuant to their positions in loan recovery for the appropriate loan services. Each of the challenged witnesses further testified to the amount owed and indicated that they had personal knowledge of the loan and serviced the loan in a manner consistent with the policies employed in the loan ser-vicers’ normal courses of business. As such, we conclude that the trial court did not err in determining that each of the challenged witnesses held the requisite personal knowledge to testify about Riviera’s default of the loan.

iii. Amount Due and Owing Under Note

Appellants also argue that Wells Fargo failed to properly establish the amount that was due and owing under the Note. However, despite Appellants’ claim to the contrary, the record demonstrates that the evidence admitted during the June 19, 2012 evidentiary hearing indicated that, as of June 19, 2012, the balance due and owing was as follows:

Principal Outstanding: $2,832,626.81

Interest from 7/1/2009 TO: 4/4/2011 at 6.850% $341,178.11

Default Interest 8/1/2009 TO: 4/2/2011 at 5.000% $240,379.86

Tax Advantage $80,280.15

Late Charges $21,849.62

Prepayment Premium $28,326.27

Processing Fee/Document Preparation Fee $500.00

TOTAL DUE $3,545,140.82

Tr. p. 67, Deposition of Sanjay Patel, Ex. E. The evidence also demonstrated that the interest and default interest increased at a combined per diem rate of $932.41. The above-stated evidence is sufficient to prove the amount due and owning on the loan as of the date of the June 19, 2012 evidentiary hearing. Accordingly, we conclude that the trial court did not err in finding in favor of Wells Fargo in this regard,

C. Assignment of Loan Documents Does Not Constitute a Material Alteration that Would Release Shah from His Obligation Under the Guaranty

Appellant’s also claim that the assignment of the Loan Documents constituted a material alteration of the Loan Documents that would release Shah of his obligation under the Guaranty. Under Indiana common-law principles, when parties cause a material alteration of an underlying obligation without the consent of the guarantor, the guarantor is discharged from further liability whether the change is to his or her injury or benefit. S-Mart, Inc. v. Sweetwater Coffee Co., Ltd,., 744 N.E.2d 580, 586 (Ind.Ct.App.2001) (citing Goeke v. Merchs. Nat. Bank & Trust Co. of Indpls., 467 N.E.2d 760, 765 (Ind.Ct.App.1984)). “A material alteration which will effect a discharge of the guarantor must be a change which alters the legal identity of the principal’s contract, substantially increases the risk of loss to the guarantor, or places the guarantor in a different position.” Id. (citing Cunningham v. Mid State Bank, 544 N.E.2d 530, 534 (Ind.Ct.App.1989), trans. denied). “The change must be binding.” Id. (citing Houin v. Bremen State Bank, 495 N.E.2d 753, 759 (Ind.Ct.App.1986)).

In support of their claim that the assignment of the Loan Documents amounted to a material alteration which would release Shah from his obligation under the Guaranty, Appellants cite to this court’s opinion in Keesling v. T.E.K. Partners, LLC, 861 N.E.2d 1246 (Ind.Ct.App.2007). Keesling, however, is easily distinguishable from the instant matter. In Keesling, the parties executed a second note which significantly expanded the guarantors’ potential liability. 861 N.E.2d at 1253-54. The guarantors did not sign the second note. Id. at 1254. Thus, with respect to the guarantors, the second note constituted a material alteration of their original obligation, and, accordingly, the guarantors were released from their obligation under the guaranty. Id. at 1254-55.

While it is true that guarantors are exonerated if the creditor alters the obligation of the principal -without the guarantor’s consent, id. at 1251, in the instant matter, the assignment of the Loan Documents did not alter Riviera’s obligation under the terms of the Note. In the instant matter, the plain language of the Guaranty suggests that an assignment of the Guaranty does not constitute a material alteration that would excuse Shah from his obligation. Again, the Guaranty specifically states that the lender

may transfer or assign all or any part of this Guaranty or any interest therein without liability or notice to or consent of Guarantor; and this Guaranty shall inure to the benefit of such transferee or assignee to the extent so assigned and Lender may further, without liability or notice to or consent of Guarantor, disclose to any prospective transferee or assignee any and all information, financial or otherwise, which Lender may have about Guarantor, Borrower, the Loan, the Property, this Guaranty, or the performance or non-performance of any obligations of Borrower or Guarantor. This Guaranty shall follow the Note and Security Instrument and, in the event that the Note and the Security Instrument are sold, transferred, assigned or conveyed by Lender, this Guaranty may be likewise sold, transferred, assigned or conveyed by Lender to the holder of the Note and the Security Instrument, and, in such event, the holder of his Guaranty may enforce this Guaranty just as if said holder had been originally named as Lender hereunder.

Appellee’s App. p. 7. As such, in light of the language contained in the Guaranty expressly providing that the Loan Documents could be assigned to another lender with or without notice to Shah and that the Guaranty shall follow the Note and Mortgage in the event the Note and Mortgage were assigned by Citibank, we conclude that the assignment of the Loan Documents did not constitute a material alteration which would release Shah from his obligation under the Guaranty and preclude recovery by Wells Fargo. Thus, the trial court did not err in ruling in favor of Wells Fargo in this regard.

D. Award of Interest

Appellants last claim that Wells Fargo should be precluded from making a claim for interest because Citibank allegedly charged interest in a manner that was not consistent with the terms of the Note. Appellants, however, cite to no authority in support of this claim. Moreover, the record demonstrates that the trial court heard evidence that Citibank and the subsequent assignees of the Loan Documents charged interest consistent with the terms of the Note. Again, the trial court acting as the trier-of-fact was free to believe or disbelieve witnesses and evidence as it sees fit. See Thompson, 804 N.E.2d at 1149; McClendon, 671 N.E.2d at 488; Moore, 637 N.E.2d at 822. As such, we conclude that the trial court did not err in finding in favor of Wells Fargo in this regard.

CONCLUSION

In sum, we conclude that the trial court properly granted Wells Fargo’s motion for summary judgment against Riviera. In addition, the trial court’s determination that Shah was liable under the terms of the Guaranty is not clearly erroneous. As such, we affirm the judgment of the trial court.

The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.

      . We note that Appellants made a request for oral argument on the cover of their Appellants’ Brief. We remind Appellants and Appellants’ counsel that proper procedure for requesting oral argument is to file a separate request with the court. See generally Ind. Appellate Rule 52. Nevertheless, because we determine that oral argument is not necessary for the resolution of the instant appeal, we deny Appellants' request for oral argument in an order handed down on the same date as this memorandum decision.

      . “A guaranty is defined as a promise to answer for the debt, default, or miscarriage of another person.” Grabill Cabinet Co. v. Sullivan, 919 N.E.2d 1162, 1165 (Ind.Ct.App.2010) (internal quotation and citation omitted). "It is an agreement collateral to the debt itself and represents a conditional promise whereby the guarantor promises to pay only if the principle debtor fails to pay.” Id. (internal quotations omitted).

      . Glarum v. LaSalle Bank Nat’l Assn., 83 So.3d 780, 782 (Fla.Ct.App.2011) (providing that witness who did not know who, how, or when certain data entries were made did not have personal knowledge to testify as to whether the entries were made in the regular course of business).

      . Bank of N.Y. v. Cano, 2011 WI App 27, ¶ 16, 331 Wis.2d 731, 795 N.W.2d 493 (unpublished disposition providing that affidavit provided by an attorney for the bank lacks proof that the attorney’s averments regarding the defendants’ failure to make scheduled mortgage payments lacked an indication that the attorney’s averments as to the defendants' payment history is based on personal knowledge).

      . Wells Fargo also asserts that the award of summary judgment against Riviera was proper because judgment against Shah collaterally estopped Riviera from disputing liability and damages. However, we need not consider the merits of this assertion because the designated evidence does not create any issue of material fact which would preclude an award of summary judgment in favor of Wells Fargo. The designated evidence demonstrates that Wells Fargo holds title to the Note, Riviera defaulted on the Note, and Riviera was liable for the amounts claimed by Wells Fargo.


source: Caselaw Access Project

author: VAIDIK, Chief Judge. RILEY, Judge,

license: Public Domain

text:
    Jacob HERRON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 56A03-1306-CR-210.
    Court of Appeals of Indiana.
    May 21, 2014.

      Joseph E. Morrison, Roselawn, IN, Attorney for appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for appellee.
   OPINION

VAIDIK, Chief Judge.

Case Summary

Trials should primarily proceed on the basis of in-court testimony, not statements or affidavits obtained before trial. Yet at Jacob Herron’s trial for burglary and receiving stolen property, the State called a witness solely to impeach her with a pretrial statement, and did so by reciting segments of that statement. Because this statement was admitted solely for impeachment, the jury could not use it as substantive evidence. But given the lack of evidence against Herron, we conclude that the jury did rely on this evidence to convict him. For this reason, we reverse Herron’s convictions.

Facts and Procedural History

One evening in March 2012, Teresa Beever went to Earl’s restaurant in Brook, Indiana, for dinner. When Beever returned home, she noticed that a window had been broken and pushed in, so she called police. After authorities allowed Beever to inspect her home, she reported jewelry and other valuables missing.

During their investigation, authorities spoke to Herron’s girlfriend, Kelly Tebo, who gave a statement implicating Herron. Tebo said that she was waitressing at Earl’s on the night of the break-in. While at work, Tebo said she sent Herron a text message implying that the Beever home was unoccupied because Teresa Beever was eating at Earl’s and her husband Reid was out of town. Tebo also said that when she saw Herron after her shift, he was carrying two bags, one of which he said contained things stolen from the Beever home. Herron was arrested and charged with Class B felony burglary and Class D felony receiving stolen property.

At Herron’s jury trial, the State offered three glove prints found at the Beever home into evidence. Sergeant Duane Datzman, the crime-scene technician who processed the prints, testified that the prints appeared to have a “series of letters,” an “ ‘M’ and possibly ⅛,’ ‘c.’ ” Tr. p. 168. From this, Sergeant Datzman concluded that the gloves that left the prints were “the brand Mechanic or Mechanix.” Id. When asked how widely Mechanix-brand gloves are sold, Sergeant Datzman said he did not know. Id. at 202. The State then admitted four pairs and one single black Mechanix-brand glove recovered from Herron’s house. Id. at 211-12. The town marshal, Charles Flahive, testified that the single glove taken from Her-ron’s house was “capable” of leaving the crime-scene prints. Id. at 214. When asked how widely Mechanix-brand gloves are sold, Marshal Flahive also said he did not know. Id. at 215-16.

The State then called Tebo as a witness. When Tebo took the stand, she confirmed that she was waitressing at Earl’s on the night of the break-in. She also confirmed that she texted Herron to make “small talk” during her shift, but she said that she did not say anything about the Beev-ers. Id. at 227-28. She explained that after her shift ended, she and Herron traveled out of town for a bridal shower, and Herron brought luggage that she recognized as his. Id. at 228-29. Tebo said that Herron said nothing about stolen items from the Beever’s. Id. at 229.

The State sought to impeach Tebo with her pretrial statement over Herron’s objection. Although counsel for the State admitted that he could not “sit here and read line[-]for[-]line what her [pretrial] statement says,” id. at 239,-he proceeded to do just that:

THE STATE: Ms. Tebo, before we took a break I was asking you a question regarding ... your written statement. ... [I] believe I asked you at that point [if] the [written] statement actually said that [ ] Herron had text-ed me asking if the Beevers were eating dinner. Do you remember me asking that question?
TEBO: I do remember.
THE STATE: And your written statement in fact does say that, does it not?
TEBO: It does say that.
THE STATE: And that’s not the way you testified today, is it?
TEBO: That is not. That isn’t accurate.
THE STATE: The same written statement goes on to say that “I let [Her-ron] know though a text message that Teresa Beever was at [the restaurant] with her friend and that Reid Beever was out of town.” There’s no disagreement that your written statement [] said that, is that correct?
TEBO: The statement I wrote saying that Teresa Beever ... that is incorrect.
THE STATE: I’m just trying to make sure everything is clear. The portion of the statement that I just read to you—
TEBO: Could you repeat that?
THE STATE: I will. We don’t have a dispute, do we, that the statement, the written statement that you gave ... says, “I let [Herron] know though a text message that Teresa Beever was at [the restaurant] with her friend and that Reid Beever was out of town.” The written statement that you hold in your hand says that, does it not?
TEBO: It does say that.
THE STATE: And that’s not what you testified to today, is it?
TEBO: Correct.
THE STATE: I think you also testified today that you did not text [Herron] and tell him that Teresa Beever was leaving [the restaurant]?
TEBO: That is correct.
THE STATE: But in your written statement ... you in fact said, “I text[ed] [Herron] and told him that Teresa was leaving [the restaurant].”
TEBO: I did write that. And that is incorrect as well.
THE STATE: As I recall, your earlier testimony after you had gotten off of work that evening, you went back to your residence that you share with [Herron] ... and the two of you then got in [a vehicle] ... and then going up to [sic] Gary?
TEBO: We did.
THE STATE: And that [Herron] had thrown a couple bags into the vehicle prior to you leaving?
TEBO: Right. He loaded the vehicle.
THE STATE: Okay. Today you testified that [Herron] — I’m sorry, that you didn’t know what was in either of those bags and that [Herron] had not told you what was in those bags?
TEBO: I don’t remember testifying to that exactly. If I recall, you asked if [Herron] said what was in the bags.
THE STATE: Okay and you said no?
TEBO: And I said no. I assumed what was in there was our clothes.
THE STATE: On your written statement though ... you indicated that he told me one bag was change [sic] and one bag was stolen stuff from the Beever’s home.
TEBO: I did write that.

Id. at 253-54. When asked if she ever discussed the burglary with anyone other than the authorities, Tebo said no. Id. at 255. Later, however, the State called Teresa Beever as a witness. Over Her-ron’s objection, Beever testified that she spoke to Tebo before the trial, and Tebo admitted texting Herron on the night of the burglary when Beever arrived at Earl’s and when she left. Id. at 303. Beever also testified that “[Tebo] told me that she picked [Herron] up at their home and he got in the car and threw a couple of bags in the backseat and stated that the bags contained coins and stuff from our house.” Id.

The jury convicted Herron of Class B felony burglary and Class D receiving stolen property. Herron was sentenced to fifteen years for burglary and eighteen months for receiving stolen property, to be served concurrently. Herron now appeals.

Discussion and Decision

Herron contends that the trial court erred in allowing the State to impeach Tebo. His argument is three-fold: the State put Tebo on the stand solely to impeach her, which is impermissible; the State’s method of impeachment was improper; and the jury used impeachment evidence as substantive evidence in convicting him, which is also impermissible.

We review a trial court’s decision regarding the admission of evidence for an abuse of discretion. Gray v. State, 982 N.E.2d 434, 437 (Ind.Ct.App.2013) (citation omitted). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id.

The State certainly had the right to impeach Tebo, its own witness. See Ind. Evidence Rule 607. But the State may not put a witness on the stand for the sole purpose of introducing otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 124 (Ind.2001); see also Griffin v. State, 754 N.E.2d 899, 904 (Ind.2001) (“[T]he rule allowing a party to impeach his own witness may not be used as an artifice by which inadmissible matter may be revealed to the jury through the device of offering a witness whose testimony is or should be known to be adverse in order, under the name of impeachment, to get before the jury a favorable extrajudicial statement previously made by the prior witness.”), aff'd on reh’g, 763 N.E.2d 450 (Ind.2002), (citation omitted). We must therefore determine whether calling Tebo as a witness served any legitimate non-impeachment purpose.

Our Courts have declined to find that a witness was called for the sole purpose of impeachment where the witness observed the underlying crime and provided, on the stand, other relevant testimony. See Appleton, 740 N.E.2d at 125 (impeached witness owned the home where the events at issue began and observed the attack on the victims); Edmond v. State, 790 N.E.2d 141, 146 (Ind.Ct.App.2003) (witness was present at the scene of the crime and gave a first-hand account of the event), trans. denied, Kendall v. State, 790 N.E.2d 122, 127 (Ind.Ct.App.2003) (impeached witness saw shooting that gave rise to trial for attempted murder), trans. denied. But Tebo did not witness the burglary of the Beever home. And we are not persuaded by the State’s argument that Tebo’s testimony was needed to corroborate Marshal Flahive’s testimony that he spoke to her and that the interview provided the information necessary for a search warrant. Appellee’s Br. p. 7. This is course-of-investigation evidence, which we have recognized as generally irrelevant in that it does not make it more or less probable that the defendant committed the crime alleged. Kindred v. State, 973 N.E.2d 1245, 1255 (Ind.Ct.App.2012), trans. denied.

Put simply, the record belies the State’s argument that Tebo’s testimony served a legitimate non-impeachment purpose. The State knew before trial that Tebo’s testimony would be inconsistent with her pretrial statement. Tebo’s direct examination spans thirty-five pages, thirty of which pertain to her pretrial statement, and the remaining pages do not contain substantive testimony. These facts, when considered in light of the minimal evidence tying Herron to the burglary, lead us to conclude that the State’s only purpose in calling Tebo as a witness was, in fact, impeachment. See Griffin, 754 N.E.2d at 904-05 (defense witness called solely for impeachment where he did not witness any of the relevant events, did not provide any substantive testimony, and the defense’s actions indicated a singular intent to impeach).

Herron also argues that the State’s method of impeachment was improper. We agree. Tebo readily admitted that her testimony was inconsistent with her pretrial statement. Despite admitting herself a liar, the State drove the point home by reading, line-by-line, from her pretrial statement. Supra pp. 554-56. This was improper and unnecessary. See Appleton, 740 N.E.2d at 126 (“Once [the witness] admitted that he made a police statement prior to trial that was inconsistent with his testimony ... impeachment was complete. [The witness] had admitted himself a liar. Reciting segments of [the] pretrial statement was thus superfluous. The only purpose such recitation could have would be to get the details of [the witness’s] former statement before the jury as substantive evidence ....”) (citation omitted); see also Martin v. State, 779 N.E.2d 1235, 1245 (Ind.Ct.App.2002) (“[T]he State basically led [the witness] through his prior statement and in that way, used the statement as substantive evidence rather than impeachment evidence. We agree [ ] that this was improper. The trial court should not have allowed the State to conduct its direct examination [ ] in this way.”), trans. denied.

But that does not end our inquiry; we are to disregard errors in the admission of evidence as harmless unless they affect a party’s substantial rights. VanPatten v. State, 986 N.E.2d 255, 267 (Ind.2013) (citations omitted). “In determining whether error in the introduction of evidence affected the defendant’s substantial rights, this Court must assess the probable impact of the evidence upon the jury.” Id. (citation omitted). When a conviction is supported by substantial evidence of guilt sufficient to satisfy this Court that there is no substantial likelihood that the questioned evidence contributed to the conviction, the error is harmless. Ware v. State, 816 N.E.2d 1167, 1175 (Ind.Ct.App.2004) (citation omitted).

To convict Herron of Class B felony burglary, the State had to prove that he broke and entered the Beever home with the intent to commit a felony inside, see Ind.Code § 35-43-2-1, and to convict him of receiving stolen property, the State had to prove that he knowingly or intentionally received, retained, or disposed of the Beever’s stolen property, see Ind.Code § 35 — 43^4—2(b). The State offered the following substantive evidence at Herron’s trial:

• Glove prints from the Beever home that appeared to have a “series of letters,” an “ ‘M’ and possibly ⅛,’ ‘c,’ ” leading the crime-scene technician to conclude that the prints were from Mechanic or Mechanix-brand gloves;
• Four pairs and one single black Me-chanix-brand glove recovered from Herron’s house;
• Marshal Flahive’s testimony that a glove taken from Herron’s house was “capable” of leaving the crime-scene prints;
• Tebo’s testimony that she worked the night of the break-in and texted Her-ron during her shift but said nothing about the Beevers; and
• Tebo’s testimony that after her shift ended, she and Herron traveled out of town for a bridal shower, and Herron brought luggage that she recognized as his.

Critically, the jury could not use Tebo’s pretrial statement as substantive evidence against Herron because it was admitted solely for impeachment. See Lawrence v. State, 959 N.E.2d 385, 389 (Ind.Ct.App.2012) (evidence admitted only for impeachment may not be used as substantive evidence) (citation omitted), trans. denied. But when a witness is impeached as Tebo was — by reciting portions of the witness’s pretrial statement — there is a very real threat that the impeachment evidence will be used as substantive evidence. See Appleton, 740 N.E.2d at 126 (“Reciting segments of [the] pretrial statement was [] superfluous. The only purpose such recitation could have would be to get the details of [the] former statement before the jury as substantive evidence.... ”); Martin, 779 N.E.2d at 1245 (“[T]he State basically led [the witness] through his pri- or statement and in that way, used the statement as substantive evidence rather than impeachment evidence.”). That danger was certainly present in this case, where the evidence against Herron was insubstantial and wholly circumstantial. And that danger only increased when— after it had already impeached Tebo with her pretrial statement — the State used Teresa Beever to impeach Tebo further about statements she made before Her-ron’s trial. Supra pp. 555-56. Having reviewed the record, including the evidence set forth above, we must conclude that the jury used impeachment evidence as substantive evidence in this case. Because the questioned evidence contributed to Herron’s convictions, his convictions must be reversed. See Ware, 816 N.E.2d at 1175.

This conclusion leads us to the question of whether the State may retry Herron. Where the evidence actually presented at trial is insufficient as a matter of law to sustain a conviction, the defendant may not be retried on those charges. Rhone v. State, 825 N.E.2d 1277, 1285 (Ind.Ct.App.2005) (citing Carpenter v. State, 786 N.E.2d 696, 705 (Ind.2003)), trans. denied. However, “if all the evidence, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charge.” Id. (emphasis added) (citations omitted). The United States Supreme Court has explained why this is so:

A reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary “trial errors” as the “incorrect receipt or rejection of evidence.” While the former is in effect a finding “that the government has failed to prove its case” against the defendant, the latter “implies nothing with respect to the guilt or innocence of the defendant,” but is simply “a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.”

Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (quoting Burks v. United States, 437 U.S. 1, 14-16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). Put differently, had the trial court sustained Herron’s impeachment objections, the State would have been put on notice that it needed to present additional evidence to support the charges against Herron.

Because there was evidence — albeit inadmissible — to establish that Herron committed the charged crimes, the State may retry him.

Reversed.

MAY, J., concurs.

RILEY, J., dissents with separate opinion.

RILEY, Judge,

dissenting.

I respectfully concur in part and dissent in part. While I agree with the majority that the State’s procedure for impeaching the witness might have been improper, the error was harmless. Though no direct evidence was presented at trial, I find that there was enough circumstantial evidence to prove Herron committed the offenses.

It is well established that “circumstantial evidence will be deemed sufficient if inferences may reasonably be drawn that enable the trier of fact to find the defendant guilty beyond a reasonable doubt.” Pratt v. State, 744 N.E.2d 434, 437 (Ind.2001). Tebo testified at trial that she worked at Earl’s on the night of the burglary and that she texted Herron while she was on duty. Tebo also testified that after getting off from work that night, she met with Herron at her residence, and he put two bags in the car. When Tebo met with Marshal Flahive on May 22, 2012, she implicated Herron to the burglary and thereafter a search warrant was issued. During their search of Herron’s residence, the officers found several gloves and one of the gloves matched the photographic imprint taken at the Beever’s residence. Lastly, Marshal Flahive testified at trial that one of the gloves found at Herron’s residence had letters on the back that matched the glove imprint found on the opened patio door at Beever’s residence.

As such, it is only proper to conclude that the jury might have reasonably inferred from the evidence presented at trial that: Tebo texted Herron that night stating Beever was at the restaurant having dinner, hence her house was unoccupied; the gloves found at Herron’s residence were used to break and enter into the Beever’s residence; and that two bags Herron put in his car that night, might have contained stolen items from Beever’s residence. Thus, I conclude that sufficient evidence of probative value exists from which the jury could have found Herron guilty beyond a reasonable doubt of burglary and receiving stolen property. Moreover, I find that even though the evidence was wholly circumstantial, I presume that the jury followed the trial court’s instructions, and only considered the circumstantial evidence.

Lastly, I disagree with the majority’s argument that the State knew that Tebo was going to recant her prior out-of-court written statement, thus making her an invaluable witness. The record shows that Tebo was a valuable witness even if determined to recant her written statement. I therefore agree with the State’s argument that had the State not called Tebo as a witness, the jury would have wondered why such a valuable witness was being kept away from the stand. See Impson v. State, 721 N.E.2d 1275, 1282 (Ind.Ct.App.2000). For these reasons, I find that the trial court did not abuse its discretion in permitting the State to call Tebo as a witness.

      . See Tr. p. 233 (Tebo: “I told the [prosecutor] that when I came to court, that I was going to be honest and tell the truth under oath.... [I] told him what I was going to say.”), 235 (Defense counsel: "[T]he State ... knew after talking to [Tebo] on Friday this is what she was going to say. They called her to the stand today knowing what she was going to say ... that's why [the State] spoke about the statement in opening to get this inadmissible hearsay in.”).

      . We acknowledge that the trial court instructed the jury that Tebo's pretrial statement was not to be used as substantive evidence, see Tr. p. 268, and a jury is presumed to follow a trial court's instructions. Morgan v. State, 903 N.E.2d 1010, 1019 (Ind.Ct.App.2009), trans. denied. But after reviewing the record and in light of the dearth of evidence against Herron, we must conclude that the jurors did not follow the court’s instruction.

      . Because we reach this conclusion, we do not address Herron’s claims regarding certain comments made by the trial court.


author: CRONE, Judge.

text:
    INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, Appellant-Respondent, v. Donald A. PROUT, Appellee-Petitioner.
    No. 49A04-1305-CR-236.
    Court of Appeals of Indiana.
    May 29, 2014.
    Rehearing Denied July 31, 2014.
    Julia Blackwell Gelinas, Anthony W. Ov-erholt, Maggie L. Smith, Emily K. Creme-ans, Frost Brown Todd LLC, Indianapolis, IN, Amanda J. Griffith, Brandon P. El-ward, Office of Corporation Counsel, City of Indianapolis, Attorneys for Appellant.

      Michael E. Morken, Indianapolis, IN, Attorney for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Donald A. Prout, a full-time deputy with the Marion County Sheriffs Office (“MCSO”), also worked security part time at a grocery store and a bus station. An MCSO detective was asked to investigate accusations that Prout was being paid by MCSO while he was working his other jobs. The detective obtained documents from MCSO and Prout’s other employers indicating that his work schedules overlapped on four occasions. Prout was asked to explain the discrepancies, but he refused. The detective filed a probable cause affidavit, which resulted in Prout being charged with four counts of class D felony theft. Those charges were later dismissed due to unspecified evidentiary problems.

Prout filed a petition to expunge his arrest record, asserting that the charges against him were dropped because no offense was committed and there was no probable cause. The Indianapolis Metropolitan Police Department (“IMPD”) objected to Prout’s petition. At a hearing on the petition, Prout presented evidence that his work schedules had not overlapped. The trial court issued an order granting Prout’s petition, finding that he had committed no offense and that no probable cause existed to support either the filing or the prosecution of the charges.

On appeal, IMPD argues that the issue of whether probable cause existed to file charges is irrelevant and that Prout failed to carry his burden to establish that no probable cause existed when the charges were dismissed and that no offense was committed. We conclude that the trial court did not abuse its discretion in concluding that no offense was committed and therefore affirm.

Facts and Procedural History

Prout was hired by MCSO in 2006 and was a member of the STAR Team, which “would assist in serving particularly dangerous warrants.” Tr. at 15. In 2011, the commanding officer of MCSO’s criminal investigation section, Captain Michael Hubbs, asked Detective Sergeant (now Lieutenant) Wayne Sharp to investigate accusations that Prout “was being paid by the Sheriffs Department while working at other places[.]” Id. at 182. In addition to working full time for MCSO, Prout worked security part time for Kroger and Greyhound Bus Lines. Lieutenant Sharp obtained documents regarding Prout’s work schedules at MCSO, Kroger, and Greyhound. Official MCSO time cards signed by both Prout and his supervisor, Sergeant Kenny Sanders, indicated that Prout worked his normal 3:00 p.m.-to-ll:00 p.m. shift on October 27, 2011, and February 6, 7, and 27, 2012. Respondent’s Ex. 1-3. A document from Kroger indicated that Prout worked from 4:53 p.m. to 12:00 a.m. on October 27, 2011. Respondent’s Ex. 6. A document from Greyhound indicated that Prout worked from 8:30 a.m. to 4:00 p.m. on February 6, from 12:00 p.m. to 4:00 p.m. on February 7, and from 8:00 a.m. to 4:00 p.m. on February 27. Respondent’s Ex. 7A.

Lieutenant Sharp also obtained Prout’s computer-assisted dispatch (“CAD”) records, which indicate an officer’s location and activity (such as “marking” on and off duty) as recorded by the officer on a computer. The computer does not verify the officer’s actual location or activity, however. At the expungement hearing, Prout acknowledged that the CAD system could have allowed him to “be at the Greyhound [station] and mark on duty with the Sheriffs Department!.]” Id. at 96. Prout’s CAD record for October 27, 2011, indicated that he marked on duty at 7:49 a.m. at MCSO’s training facility on North Post Road and apparently marked himself out of his vehicle (“OUTVEH”) at 4:48 p.m. Petitioner’s Ex. I.

Based on the discrepancies among these documents, Lieutenant Sharp “concluded that there was overlapping hours and double play [sic].” Tr. at 188. Lieutenant Sharp attempted to discuss the discrepancies with Prout, who “said he had counsel and didn’t want to visit with [him].” Id. at 191. On April 4, 2012, Lieutenant Sharp drafted a probable cause affidavit that reads in pertinent part as follows:

Deputy Prout aside from his regular duties at the Marion County Sheriffs Office, works part time jobs. One job is for Kroger’s Grocery and one for the Greyhound Bus Station.
Records for the MCSO and for the employers shows that for some hours, Prout was getting paid by two places at the same time.
Records show that on October 27, 2012 [sic] Prout[’]s records show he was in training at the Academy for eight hours. Kroger records show Prout was working from 4:35 [sic] PM till Midnight for Kro-gers. Prout did not attend classes for the MCSO that day.
On February 6, 2012, records show that Prout worked 3:00 PM till 11 PM on the MCSO but also worked 12:00 PM till 4:00 PM at Greyhound Bus Security. On February 7, 2012, records, [sic] showed Prout got off duty at the MCSO [sic] at 4:00 PM but started work at Greyhound [sic] at 3:00 PM.
Finally on February 27, 2012, Prout started work at the MCSO at 3:00 PM but worked till 4:00 PM at Greyhound. Losses for the MSCO [sic] come to $185.00 in which Donald Prout was supposed to be on duty for the department, but was actually working for part time employers.
On March 28, 2012, Donald Prout failed to show for an interview.
Deputy Prout is assigned to the MCSO Warrant Division during his regular work hours. Documentation and records from both the MCSO and private employers shows [sic] a pattern of overlapping hours and getting paid by two employers at the same time.

Petitioner’s Ex. Gl. Judge Annie Christ-Garcia signed the affidavit, indicating a finding of probable cause.

That same day, Prout was charged with four counts of class D felony theft. See Ind.Code § 35-43-4-2(a) (“A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.”). The charging information alleged that on each of the aforementioned dates, Prout “did knowingly exert unauthorized control over the property, that is: United States currency, of the Marion County Sheriffs Office, with intent to deprive the Marion County Sheriffs Office of any part of the value or use of said property!.]” Petitioner’s Ex. Gl. Prout was arrested sometime before April 12. On September 7, 2012, a deputy prosecutor filed a motion to dismiss all charges against Prout, citing “Evidentiary Problems” as the reason for dismissal without further explanation. Petitioner’s Ex. H. Judge Christ-Garcia granted the motion.

On December 19, 2012, Prout filed a verified petition for expungement of arrest record pursuant to Indiana Code Section 35-38-5-1, which reads as follows:

(a) Whenever:
(1) an individual is arrested but no criminal charges are filed against the individual; or
(2) all criminal charges filed against an individual are dropped because:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;
the individual may petition the court for expungement of the records related to the arrest.
(b) A petition for expungement of records must be verified and filed in the court in which the charges were filed, or if no criminal charges were filed, in a court with criminal jurisdiction in the county where the arrest occurred. The petition must set forth:
(1) the date of the arrest;
(2) the charge;
(3) the law enforcement agency employing the arresting officer;
(4) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;
(5) the date of the petitioner’s birth; and
(6) the petitioner’s Social Security number.
(c) A copy of the petition shall be served on the law enforcement agency and the state central repository for records.
(d) Upon receipt of a petition for ex-pungement, the law enforcement agency shall notify the court of the name and address of each agency to which any records related to the arrest were forwarded. The clerk shall immediately send a copy of the petition to each of those agencies. Any agency desiring to oppose the expungement shall file a notice of opposition with the court setting forth reasons for resisting the expungement along with any sworn statements from individuals who represent the agency that explain the reasons for resisting the expungement within thirty (30) days after the petition is filed. A copy of the notice of opposition and copies of any sworn statements shall be served on the petitioner in accordance with the Rules of Trial Procedure. The court shall:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on information contained in sworn statements submitted by individuals who represent an agency, the petitioner is not entitled to an expungement of records.
(e) If a notice of opposition is filed and the court does not summarily grant or summarily deny the petition, the court shall set the matter for a hearing.
(f) After a hearing is held under this section, the petition shall be granted unless the court finds:
(1) the conditions in subsection (a) have not been met;
(2) the individual has a record of arrests other than minor traffic offenses; or
(3) additional criminal charges are pending against the individual.

In his petition, Prout asserted that the charges against him “were dropped because no offense was in fact committed and there was an absence of probable cause.” Appellant’s App. at 5. IMPD filed a verified objection and notice of opposition to Prout’s petition, asserting that the State dismissed the charges “due to evidentiary problems and not one of the statutory reasons for which and [sic] expungement is permitted.” Id. at 8.

On February 13, 2013, the trial court held a hearing on Prout’s petition. At the hearing, Prout testified that he was ordered to attend a STAR Team training session at the Post Road facility on October 27, 2011, from 8:00 a.m. to 4:00 p.m., instead of working his regular shift. Prout offered into evidence a text message from Deputy Justin Kaufman dated October 26, 2011, reminding him about the training session. Petitioner’s Ex. L. Prout testified that he attended the entire session. Sergeant Sanders testified that he and Prout were at the session all day, as did Deputy Brad Allen and Deputy Gregory McWhirter, the training coordinator. Prout offered into evidence Deputy McWhirter’s and Sergeant Sanders’s CAD records, which showed that they marked on at the Post Road facility before 8:00 a.m. on October 27. Deputy McWhirter’s CAD record showed that he stayed at the facility all day. Petitioner’s Ex. B. Sergeant Sanders’s CAD record showed that he marked in at the Post Road facility at 7:20 a.m., marked off at 7:47 a.m., and then marked on at MCSO’s headquarters on South Alabama Street less than a minute later. Petitioner’s Ex. C. Prout also offered into evidence a computer-generated training roster, which indicated the date and title of the training session and listed the names of the attendees, including Prout, Sergeant Sanders, and Deputies Allen and McWhirter. Petitioner’s Ex. U.

Major Scott Mellinger, director of MCSO’s training section, expressed “concern” that the roster had not been signed and hand-dated by Deputy McWhirter to affirm that “the information contained [on the roster was] complete and accurate to the best of [his] knowledge and belief.” Tr. at 116; Petitioner’s Ex. U. Evidence was presented that Deputy McWhirter had signed and dated rosters for other training sessions, Petitioner’s Ex. U, and Deputy McWhirter acknowledged that he had “apparently” failed to make a hard copy of the roster or email it to the training facility receptionist after the session, as was his custom. Tr. at 131-32. Deputy McWhirter’s testimony suggests that he did not become aware of these oversights until after Lieutenant Sharp asked him if he “had any training records[.]” Id. at 130. According to Lieutenant Sharp, he did not ask Deputy McWhirter for the records until after Prout was arrested. Id. at 210.

Captain Hubbs also expressed “concerns” about the roster and testified that several deputies who had attended the training session stated that they did not remember if Prout was there. Id. at 141. He acknowledged, however, that he had appeared at the training session for half an hour to an hour and saw Prout there. Id. at 144-45. He also acknowledged that Lieutenant Sharp never specifically asked him if Prout had attended the session. Deputies McWhirter and Allen and Sergeant Sanders testified that Lieutenant Sharp did not ask them if Prout had attended the session until after Prout was arrested.

Prout acknowledged that he signed an official time card indicating that he worked from 8:00 p.m. to 11:00 p.m. instead of 8:00 a.m. to 4:00 p.m. on October 27, 2011, and therefore received a “shift differential” of seventy cents per hour (totaling $5.60) to which he would not have been entitled for the earlier shift. Id. at 27. Prout testified that he “space[d]” changing his time card to reflect the actual hours of the training session. Id. at 83. He also testified that he worked at Kroger from “|j]ust before 5:00 [p.m.] up until midnight.” Id. at 25. Sergeant Sanders acknowledged that he approved Prout’s time card even though Prout did not actually work from 8:00 p.m. to 11:00 p.m. Id. at 167.

Regarding the February 2012 allegations, Prout testified that his supervisor at Greyhound, IMPD Sergeant Kevin Bandy, would let him leave before the scheduled 4:00 p.m. end of his shift at Greyhound to report for his 3:00 p.m. shift at MCSO, and then he would make up that time on another shift. Prout offered into evidence an affidavit from Sergeant Bandy that reads in pertinent part as follows:

2. I am now the Director of security for Greyhound Bus Lines and I held this position and employment with Greyhound Bus Lines on February 6, 2012, February 7, 2012 and February 27, 2012.
3. That Donald Prout was employed or contracted by Greyhound Bus Lines (and myself) to provide security services for the Greyhound Bus Station [in Indianapolis].
4. That while Donald Prout was working security on February 6, 2012, February 7, 2012, and February 27, 2012, he reported to me the hours that he had worked for these days, and he was paid for those hours on those days as reported.
5. That as Director of Security I would permit, on occasion, in 2012 our security officers, (including Donald Prout) to leave the Greyhound Bus Station and their security duties. I would permit and have permitted Donald Prout to leave the Greyhound Bus Station when Donald Prout was called upon to work at his primary employment with the Marion County Sheriffs Office.

Petitioner’s Ex. T. Lieutenant Sharp acknowledged that he did not ask Sergeant Bandy if he let Prout leave Greyhound to begin his shift with MCSO. When asked if he thought “that might have been an important question to ask[,]” Lieutenant Sharp replied, “I think they should have put down the correct hours that he worked, whatever it is.” Tr. at 213.

Prout also offered into evidence CAD records showing that on February 6, 2012, he marked off duty at Greyhound at 2:57 p.m. and marked on duty at MCSO’s Concord Office at 2:59 p.m. Petitioner’s Ex. M. He served a warrant from Shelby County during his shift; the last CAD entry for that date is 10:33 p.m. Petitioner’s Exs. M and S. Prout testified that on February 7, 2012, he was scheduled to work at Greyhound from noon until 4:00 p.m., but he “was there for about an hour before [he] was forced to leave” for a “mandatory meeting” at 1:00 p.m. at MCSO’s headquarters on South Alabama Street. Tr. at 66, 62. He testified that after the meeting, he participated in approximately an hour and a half of physical fitness training at the Post Road facility and then went on duty until “[j]ust after midnight.” Id. at 66. Prout supported this testimony with a CAD record for that date. Petitioner’s Ex. N. As for February 27, 2012, Prout testified that he left his Greyhound shift early and stopped at Riverside Garage just after 3:00 p.m. to have his vehicle’s headlight fixed. Just after 4:00 p.m., he picked up warrants at the Concord Office and served them. Again, Prout supported this testimony with a CAD record for that date. Petitioner’s Ex. O.

Captain Hubbs testified that he ordered several STAR Team members, including Deputies Kaufman, McWhirter, and Allen and Sergeant Sanders, to be interviewed by Lieutenant Sharp on April 12, 2012. According to Captain Hubbs, “There were frankly different statements given by different deputies.... [TJhey didn’t all say the same thing and that’s the problem we had with the one particular date [October 27, 2011].” Tr. at 157. Lieutenant Sharp opined that the deputies are “loyal to each other, that they count on each other for their lives, they defend each other no matter what.” Id. at 208-09. He further opined that time cards are “chiseled in granite” and that “[y]ou’ve got to sign the card exactly showing when you worked.” Id. at 198, 212. Also, Lieutenant Sharp acknowledged that the probable cause affidavit contained several typographical errors.

On March 19, 2013, the trial court issued an order that reads in pertinent part as follows:

[T]he Court, after having received evidence at the hearing on February 13, 2013, and after due consideration, now finds that no offense was actually committed by Prout and there was an absence of probable cause to support the filing of the criminal (theft) charges against Prout in this cause....
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that there was no offense actually committed by Donald Prout and that there was no probable cause for the issuance of the warrant and the prosecution of theft against Donald A. Prout in the above entitled cause of action,
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Petition for Expungement filed by [Prout] is hereby granted pursuant to Indiana Code § 35-38-5-1.

Appellant’s App. at 2. IMPD filed a motion to correct error, which the trial court denied. This appeal followed.

Discussion and Decision

Indiana Code Section 35-38-5-1 is “the ‘exclusive means’ for expunging arrest records when no charges were filed or the charges were dropped.” Zagorac v. State, 943 N.E.2d 384, 389 (Ind.Ct.App.2011) (quoting State ex rel. Ind. State Police v. Arnold, 906 N.E.2d 167, 169 (Ind.2009)). “The petitioner bears the burden of proof when requesting the expungement of his record.” State v. Sotos, 558 N.E.2d 909, 911 (Ind.Ct.App.1990), trans. denied (1991). We review a trial court’s ruling on a petition for expungement for an abuse of discretion. See Arnold, 906 N.E.2d at 171 (“We do not believe that the Legislature intended to give the trial court almost unfettered discretion to grant summarily or to deny summarily a petition for ex-pungement without a hearing, only to take away that discretion completely when the court decides to conduct a fact-finding hearing.”) (citation omitted).

IMPD first argues that “the trial court erred in drawing any conclusions as to whether there was probable cause to issue the arrest warrant .... because the appropriate frame of reference under § 35-38-5-1 deals with whether probable cause exists when the charges are dropped — not when the arrest warrant is issued.” Appellant’s Br. at 9. We need not address this argument, however, because we conclude that the trial court did not abuse its discretion in concluding that no offense was committed.

IMPD points out the numerous conflicts in the testimony and documents regarding Prout’s work hours as evidence that Prout failed to carry his burden and says,

even assuming that all of Deputy Prout’s testimony regarding his erroneous reporting of hours is true, Deputy Prout admitted under oath that he was paid more than was due to him because his paycheck included a shift differential pay increase for working the middle and late shifts — shifts he admits he never worked. As a result, he admitted that he knowingly received money from the Sheriffs Office that he was not entitled to receive and that he kept that money.
And while this additional compensation that he kept is not a substantial amount, there is no exception for the crime charged if the theft is de minimis. The crime for which Deputy Prout was charged is that he “knowingly or intentionally exert[ed] unauthorized control over property of another person [“Currency of the Marion County Sheriffs Office”], with intent to deprive the other person of any part of its value or use.” Ind.Code § 35-43-4-2(a).
Deputy Prout’s own admissions at the expungement hearing show that these elements are met. The fact that unknown “Evidentiary Problems” led the State to eventually dismiss the charges against Deputy Prout does not support the trial court’s grant of Deputy Prout’s Verified Petition for Expungement.

Id. at 17 (citations to record omitted).

We note, however, that Prout received the shift differential pay increase only for October 27, 2011. Moreover, as Prout correctly observes, the theft charges were not based on his receipt of the pay increase, but rather “for not working at all for MCSO on October 27, 2011, and working less than required of him on each of the three days in February, 2012.” Appellee’s Br. at 16. We agree with Prout that “IMPD’s new arguments about shift differential were never charges brought against him and thus are improper grounds for opposing the expungement.” Id.

To the extent that IMPD challenges the sufficiency of the evidence supporting the trial court’s determination that no offense was committed, we note that we may neither reweigh evidence nor judge witness credibility and may “consider only the evidence most favorable to the judgment. We will not reverse the trial court’s decision where there is substantial evidence of probative value supporting the judgment.” Sotos, 558 N.E.2d at 912. As indicated by our recitation of the evidence adduced at the expungement hearing, the trial court’s judgment is supported by substantial evidence of probative value. Therefore, we affirm.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . We heard oral argument on April 10, 2014, at Indiana University SouthBend. We thank counsel for their participation and the school for its hospitality.

      . Indiana Code Section 35-38-5-1 was repealed in March 2014 upon passage of House Enrolled Act ("HEA”) 1155. The statutes revised or created by HEA 1155 do not mention probable cause or the other options listed in Indiana Code Section 35-38-5-l(a)(2).

      . Prout testified that Captain Hubbs met with the STAR Team at the end of the training session from approximately 4:00 p.m. to 4:30 p.m. Tr. at 35.

      . Because the legislature has repealed Indiana Code Section 35-38-5-1 and probable cause is no longer a consideration in expungement proceedings, and because we decide this case on other grounds, we express no opinion on the trial court’s findings regarding probable cause.