author: KIRSCH, Judge.

text:
    Patricia J. BARROW and Charlie Hanka, Appellants-Plaintiffs, v. CITY OF JEFFERSONVILLE, Jeffersonville Planning and Zoning Department, Jeffersonville Board of Zoning Appeals, Jeffersonville Building Commission, MAC Construction and Excavating, and Ingram Land Corp., Appellees-Defendants.
    No. 10A05-1112-PL-647.
    Court of Appeals of Indiana.
    Aug. 31, 2012.
    Rehearing Denied Oct. 31, 2012.

      Elijah D. Baccus, Marilyn L. Widman, Allotta, Farley & Widman Co., LPA, Toledo, OH, Attorneys for Appellants.
    Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Attorney for Appellee MAC Construction and Excavating.
    R. Thomas Lowe, Corporation Counsel, City of Jeffersonville, Jeffersonville, IN, Attorney for Appellee City of Jefferson-ville et al.

      . Ingram Land Corp. is not seeking relief on appeal and has not filed a brief as either appellant or appellee. Pursuant to Indiana Appellate Rule 17(A), however, a party of record in the trial court is a party on appeal.

   OPINION

KIRSCH, Judge.

Patricia J. Barrow (“Barrow”) and Charlie Hanka (“Hanka”) (collectively, “the Plaintiffs”) appeal the trial court’s order granting summary judgment in favor of City of Jeffersonville (“the City”), Jeffer-sonville Planning and Zoning Department, Jeffersonville Board of Zoning Appeals, Jeffersonville Building Commission, MAC Construction and Excavating (“MAC”), and Ingram Land Corp. (collectively, “the Defendants”) on the Plaintiffs’ complaint for declaratory judgment and mandatory injunction. The Plaintiffs raise several issues on appeal, which we consolidate and restate as:

I. Whether the statute of limitations established in Indiana Code section 34-11-2-6 is applicable to this case, specifically whether the Director of the City’s Planning and Zoning Department and the City’s Building Commissioner are public officers; and
II. Whether the Plaintiffs’ cause of action is barred by the statute of limitations.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

During the summer of 2005, Dan Marra (“Marra”), attorney for Liter’s Quarry (“Liter’s”), contacted Chester Hicks (“Hicks”), who was the City’s Director of Planning and Zoning (“the Director”) at the time, regarding a zoning interpretation on the parcel of land located at 1415 Quarry Road, Jeffersonville, Indiana (“the Property”). Liter’s was the leaseholder of the Property and sought a zoning interpretation to allow it to lease a section of the Property to MAC for the operation of an asphalt plant. The Property was operated by Liter’s as a quarry and had been designated as an 11 Business Park/ Light Industrial use under the City’s Zoning Ordinance. In a letter to Marra dated July 14, 2005, Hicks stated that “Article Ten of the Jeffersonville Zoning Ordinance permits the ... Director to allow one nonconforming use to be equally appropriate or more appropriate to the zoning district than the existing one.” Appellants’App. at 28; Ap-pellee MAC’S App. at 40. Hicks further stated that he found the conversion of a part of the Property to an asphalt plant to be “a more appropriate use in the II district because it would generate less noise, vibration, and debris than a quarry operation.” Appellants’ App. at 28; Appellee MAC’S App. at 40. On August 4, 2005, an Improvement Location Permit (“ILP”) was issued for the Property and signed by Russell Segraves (“Segraves”), the City’s Building Commissioner (“Commissioner”).

The duties of Hicks as Director are set forth in the City’s Zoning Ordinance. Hicks testified at his deposition that his duties and responsibilities included the administrative function of interpreting the City’s Zoning Ordinance. Appellee MAC’S App. at 48. He also testified that the Director performed all of the administrative functions of the City’s Planning and Zoning Department. Id. at 50-53. Seg-raves testified at his deposition that the duties of the Commissioner are set out in the City Ordinance 87-OR-53. Id. at 58-59. He further testified that the Commissioner is the sole official in the City’s Building Commission responsible for issuing permits and exercising his authority and that the Commission is not governed by a board. Id. at 59-66.

The Plaintiffs filed a complaint on August 16, 2010, requesting a declaratory judgment action against the Defendants stating that the July 14, 2005 zoning interpretation and the August 4, 2005 ILP were improperly issued and requesting a mandatory injunction revoking both the zoning interpretation and the ILP. MAC filed an answer and motion for judgment on the pleadings, arguing that the action was barred by the statute of limitations set forth in Indiana Code section 34-11-2-6. The trial court held a hearing as to the motion for judgment on the pleadings, and after the hearing, the trial court determined that, before ruling on the motion, it was necessary for a supplemental hearing to hear evidence as to whether Hicks and Segraves were “public officers” for purposes of Indiana Code section 34-11-2-6. On July 25, 2011, MAC filed a motion for summary judgment, again asserting that the Plaintiffs’ claims were barred by the statute of limitations. The Plaintiffs filed a cross-motion for summary judgment. On October 17, 2011, the trial court granted summary judgment in favor of the Defendants, and on November 10, 2011, the trial court signed the final order granting summary judgment. The Plaintiffs now appeal.

DISCUSSION AND DECISION

Standard of Review

On appeal from a grant of summary judgment, our standard of review is the same as that of the trial court. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind.Ct.App.2005). We stand in the shoes of the trial court and apply a de novo standard of review. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind.Ct.App.2006). Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind.Ct.App.2005), trans. denied. Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant issues. Wilcox Mfg., 832 N.E.2d at 562. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind.Ct.App.2005), trans. denied.

A trial court’s grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Cox, 848 N.E.2d at 695-96. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate appellate review, but are not binding upon- this court. Id. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

Statute of Limitations

The statute of limitations at issue in the present ease states:

An action against:
(A) a sheriff;
(B) another public officer; or
(C) the officer and the officer’s sureties on a public bond;
growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty, must be commenced within five (5) years after the cause of action accrues. However, an action may be commenced against the officer or the officer’s legal representatives, for money collected in an official capacity and not paid over, at any time within six (6) years after the cause of action accrues.

Ind.Code § 34-11-2-6.

I. Whether Hicks and Segraves Were Public Officers

The Plaintiffs argue that the trial court erred when it found Hicks and Segraves were public officers protected by the statute of limitations contained in Indiana Code section 84-11-2-6. They contend that Hicks and Segraves were not public officers because they did not meet the necessary criteria to be considered a public officer in Indiana. The Plaintiffs assert that the individual must serve in a position that is either elected or appointed, that such position must have sovereign power prescribed by law not contract, and that the individual must have taken an oath of office within thirty days of taking office. Because Hicks and Segraves did not meet any of these criteria, the Plaintiffs claim that the statute of limitations in Indiana Code section 34-11-2-6 does not apply to the facts of this case.

This case presents an issue of first impression in Indiana as we have found no Indiana authority defining public officer as it applies to Indiana Code section 34-11-2-6. Although both sides cite to Indiana cases and statutes defining public officer, the cited authorities do not specifically define the term public officer as it is used in Indiana Code section 34-11-2-6. In Mosby v. Board of Commissioners of Vanderburgh County, 134 Ind.App. 175, 186 N.E.2d 18 (1962), this court held that a person appointed as a county park manager by the county park board pursuant to statute, and who was required to execute a bond but who did not take an oath, was not an officer but an employee whose three-year contract of employment, which was given before his original contract had expired, was not void under the Indiana rule that an appointment to fill a vacancy in an office is void if there is no vacancy. 134 Ind.App. at 182, 186 N.E.2d at 22. In making such a determination, the court stated that, “[g]enerally, one who holds an elective or appointive position for which public duties are prescribed by law is a ‘public officer.’ ” 134 Ind.App. at 179, 186 N.E.2d at 20. Further, the court stated that “[t]he oath and bond, being merely incidents, and not requirements, of public office, do not serve as absolute guides in determining the character of a position ... [but that] their absence is strong evidence, when considered with other criterion, that the position is one of employment rather than public office.” 134 Ind.App. at 181, 186 N.E.2d at 21.

Although not directly associated with Indiana Code section 34-11-2-6, many definitions of public officer may be found in Indiana law. Under Indiana Code section 5-13-4-21, which is applicable to Article 13, the Investment of Public Funds, public officer is defined as:

any person elected or appointed to any office of the state or any political subdivision. “Public officer” includes an officer of all boards, commissions, departments, institutions, and other bodies established by law to function as a part of the government of the state or political subdivision that are supported wholly or partly by appropriations of money made from the treasury of the state or political subdivision or that are supported wholly or partly by taxes or fees. “Public officer” does not include an officer of an independent body politic and corporate set up as an instrumentality of the state but not constituting a political subdivision.

Ind.Code § 5-13-4-21. In the context of defamation, Indiana courts have stated that the designation of “public official” “applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Beeching v. Levee, 764 N.E.2d 669, 676 (Ind.Ct.App.2002). Further, “[w]here a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees,” the defamation standards applicable to public officials apply. Id.

Additionally, although there is no state law defining public officer as it applies to Indiana Code section 34-11-2-6, in Blake v. Katter, 693 F.2d 677 (1982), overruled on other grounds, the Seventh Circuit, applying Indiana law, analyzed whether a state police officer was a public officer under Indiana Code section 34-1-2-2(2), the predecessor to the statute at issue here. In that case, the Seventh Circuit defined a public officer as “one who held an office having special duties prescribed by law to serve a public purpose, and that those duties were invested with ‘some of the functions pertinent to sovereignty.’” Blake, 693 F.2d at 680 (quoting Bottos v. Avakian, 477 F.Supp. 610, 614 (N.D.Ind.1979)). Applying this definition, the court found that a state police officer was a public officer.

Taking all of these authorities into consideration, we believe that in order for an individual to be a public officer under Indiana Code section 34-11-2-6, it must be determined that the individual holds a position for which duties are prescribed by law to serve a public purpose. We further conclude that the taking of an oath is not required to be a public officer, but the fact that one has been taken is a strong indicator of the position being one of a public officer. Having established a definition of public officer to be used when applying Indiana Code section 34-11-2-6, we now proceed to apply the definition to the present case.

Here, the evidence shows that both the position of Director and the position of Commissioner were established by ordinance. The duties of Hicks as Director were set forth in Article 11 of the City’s Zoning Ordinance, which stated that the Director “will have the principal responsibility for administration and enforcement (or coordination of enforcement) of this Ordinance within the Plan Commission’s planning jurisdiction.” Appellee MAC’S App. at 42^44. Hicks testified at his deposition that his duties and responsibilities included the administrative function of interpreting the City’s Zoning Ordinance. Id. at 48. He also testified that the Director performed all of the administrative functions of the City’s Planning and Zoning Department. Id. at 50-53. Segraves testified at his deposition that City Ordinance 87-OR-53 gives the authority for the Commissioner to perform his duties. Id. at 58-59. The Ordinance stated, “[t]he ... Commissioner and his duly authorized representatives are hereby authorized and directed to administer and enforce all of the provisions of this Code.” Id. at 45. He further testified that the Commissioner is the sole official in his department responsible for issuing permits and exercising his authority and that the department is not governed by a board. Id. at 59-66. We therefore conclude that, based on the designated evidence, Hicks and Segraves, as Director and Commissioner respectively, were public officers because both held positions for which duties are prescribed by law to serve a public purpose. Further, although the evidence did not establish that either Hicks or Segraves took an oath, this is of no moment based on the other evidence presented.

Additionally, the Plaintiffs argue that liability cannot be imposed on either Hicks or Segraves, and consequently, the statute of limitations under Indiana Code section 34-11-2-6 could not apply, because neither man was named individually in the complaint. The allegations in the complaint were based upon actions of Hicks and Segraves taken in their official capacity. Indiana Code section 34-11-2-6 applies to all actions involving a public officer performing an act in an official capacity. Omitting the names of Hicks and Segraves from the complaint does not change the nature and substance of the cause of action at hand. Our Supreme Court has stated that “ ‘it is the nature or substance of the cause of action, rather than the form of the action, which determines the applicability of the statute of limitations.’ ” Shideler v. Dwyer, 275 Ind. 270, 276, 417 N.E.2d 281, 285 (1981) (quoting Koehring Co. v. Nat’l. Automatic Tool Co., 257 F.Supp. 282, 292 (S.D.Ind.1966)). Therefore, as the Plaintiffs’ complaint is based upon the actions of Hicks and Segraves in their respective official capacities as public officers, the absence of their names as individual parties has no effect on the nature or substance of the Plaintiffs’ cause of action or relief sought.

The Plaintiffs also contend that Seg-raves as Commissioner did not sign or authorize the issuance of the ILP, and therefore the statute of limitations under Indiana Code section 34-11-2-6 is not applicable. However, in their complaint in paragraph 33(B), the Plaintiffs stated that the City’s Building Commission “issued a permit for the construction and operation of an asphalt plant on a quarry that already had a Legal Non-Conforming use under [the City’s] Zoning Ordinance.” Appellants’ App. at 16. Additionally, in paragraph 38, they stated that the Building Commission “issued an [ILP] for an I-2 use, i.e., the asphalt plant, in an area zoned I — 1, in violation of [Indiana Code section] 36-7-4-801.” Id. at 17. In his deposition, Segraves testified that the terms Building Commission and Building Commissioner were synonymous and that, if the Building Commission does something, he, as Commissioner, is the one who actually does it. Appellee MAC’s App. at 59. The permit issued on August 4, 2005 was attached to the complaint and contained Segraves’s signature as Commissioner. Therefore, the Plaintiffs’ contention that Segraves, as Commissioner, did not authorize or approve the ILP, is not supported by the evidence. The trial court did not err when it determined that Hicks and Segraves were public officers and that the statute of limitations in Indiana Code section 34-11-2-6 was applicable to this case.

II. Whether Cause of Action is Barred by Statute of Limitations

The Plaintiffs argue that the trial court erred in granting summary judgment in favor of the Defendants because the Plaintiffs’ cause of action was not barred by the five-year statute of limitations under Indiana Code section 34-11-2-6. They contend that their cause of action could not have accrued until they knew or, in the exercise of ordinary diligence, should have known of the injury alleged. The Plaintiffs therefore assert that neither July 14, 2005, the date of the letter from Hicks to Marra, nor August 4, 2005, the date the ILP was issued, can be used as the date on which their cause of action accrued because they could not have learned of these actions on those dates as they were not public occurrences. They claim that the earliest date on which they could have learned of the construction of the asphalt plant was November 30, 2005, the date of the public hearing regarding the Indiana Department of Environmental Management (“IDEM”) permit, and as that is the proper date on which their cause of action accrued, their complaint (filed on August 16, 2010) was filed within the statute of limitations.

Under Indiana Code section 34-11-2-6, an action against a public officer growing out of liability incurred by doing an act in the public officer’s capacity must be commenced within five years after the cause of action accrues. Statutes of limitation seek to provide security against stale claims, which in turn promotes judicial efficiency and advances the peace and welfare of society. Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1279 (Ind.2009). Under Indiana’s discovery rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in exercise of ordinary diligence should have known of the injury. Pflanz v. Foster, 888 N.E.2d 756, 759 (Ind.2008). For an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred. Id.‘The exercise of reasonable diligence means simply that an injured party must act with some promptness where the acts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.’ ” Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind.Ct.App.2006) (quoting Mitchell v. Holler, 311 S.C. 406, 429 S.E.2d 793, 795 (1993)).

Here, the complained of events, the zoning interpretation letter and the issuance of the ILP, occurred on July 14, 2005 and August 4, 2005, respectively. The July 14 letter was written by Hicks and addressed to Marra, the attorney representing Liter’s, and Hicks’s decision regarding the zoning interpretation was not communicated to the public. The Plaintiffs could not have learned of this letter on July 14, 2005 with the exercise of reasonable diligence, and the statute of limitations did not begin to run on that date. The ILP was issued on August 4, 2005, but the designated evidence does not establish that either Seg-raves or the Commission notified the public of the issuance of this permit on that date. Therefore, even with the exercise of reasonable diligence, the Plaintiffs could not have discovered this action by Seg-raves on August 4, 2005.

In addition to obtaining the zoning interpretation from Hicks and the ILP from Segraves, MAC was also required to obtain a permit from IDEM in order to construct and operate the asphalt plant. Although it is not clear from the evidence when it was issued, a “Notice of Public Hearing” regarding the IDEM permit set the date for such public hearing as November 30, 2005. Appellee’s MAC App. at 170. Therefore, the Plaintiffs could have discovered their complained of injury through the exercise of reasonable diligence as of the date of November 30, 2005. We conclude that the earliest date on which the Plaintiffs could have known of the injury on which they based their complaint was November 30, 2005, which is the date upon which their cause of action accrued. The statute of limitations began running on that date, and under Indiana Code section 34-11-2-6, their action was required to be commenced within five years of that date. The Plaintiffs filed their complaint on August 16, 2010, which was within five years of the date on which the cause of action accrued. Therefore, the Plaintiffs’ complaint was timely filed within the statute of limitations, and the trial court erred in granting summary judgment in favor of the Defendants.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and BROWN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alice LEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1112-CR-1090.
    Court of Appeals of Indiana.
    Aug. 31, 2012.

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

KIRSCH, Judge.

Alice Lee (“Lee”) appeals her conviction for attendance at an animal fighting contest as a Class A misdemeanor. On appeal, Lee raises the following restated issue: whether Indiana Code section 35-46-3-10, which defines the offense, is unconstitutionally vague.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 6, 2010, Tyrus Williams (“Williams”) and Shinitara Kemp (“Kemp”) hosted a dog fight in the garage at their home on West 60th Street in Indianapolis. The fight began around 10:00 p.m. Once the fight was underway, a confidential informant who was attending the event alerted the police. At approximately 10:20 p.m., law enforcement officers used their previously obtained “no-knock” warrant to enter the house and the attached garage. Tr. at 23.

Inside the house and garage, officers found pit bulls and a room devoted to the training and care of fighting dogs. The garage contained a fighting ring with two exhausted dogs fighting in it and approximately twenty-four spectators, including Lee. Police found Lee’s pit bull in her vehicle in the driveway of the residence. The other guests’ vehicles were parked in the driveway of the residence and on the grass.

On August 10, 2010, the State charged Lee with (1) Class D felony promotion of, use of animal at, or attendance with animal at an animal fighting contest, and (2) Class A misdemeanor attendance at an animal fighting contest. At trial, Lee claimed that she had been at the home only fifteen minutes before the police arrived because she was picking up her pit bull from Williams and Kemp, who had been watching her dog for a few days. Lee denied any knowledge of the dog fighting contest or of training fighting dogs. She claimed the police discovered her in the garage within the fighting area only because she fled from the house into the garage when she realized the police had arrived.

Lee’s bench trial commenced on October 24, 2011, and after the State rested, Lee moved for an involuntary dismissal as to both counts. The trial court granted Lee’s motion for involuntary dismissal on the Class D felony, but found her guilty of Class A misdemeanor attendance at an animal fighting contest. Lee now appeals.

DISCUSSION AND DECISION

Lee contends that Indiana Code section 35-46-3-10 is unconstitutionally vague because its language fails “to inform an ordinary person of what conduct is prohibited.” Appellant’s Br. at 7. Additionally, Lee contends that the statute authorizes or encourages arbitrary or discriminatory enforcement. Id. at 9. The State responds by contending that Lee waived this issue when she failed to file a motion to dismiss, advancing the contention of unconstitutionality, before the trial court. Appellee’s Br. at 4.

Addressing the State’s contention of waiver first, we agree that generally the failure to file a proper motion to dismiss raising a constitutional challenge waives the issue on appeal. Baumgartner v. State, 891 N.E.2d 1131, 1135 (Ind.Ct.App.2008) (citing Ind.Code §§ 35-34-1-6 and - 4). Thus, Lee’s claim is waived. However, even considering Lee’s vagueness argument on the merits, her claim fails.

Whether a statute is unconstitutional is a question of law and is reviewed de novo. Shepler v. State, 758 N.E.2d 966, 968 (Ind.Ct.App.2001), trans. denied (2002). Appellate courts approach such questions with the presumption that the statute is constitutional, and the challenger is burdened to prove otherwise. Lock v. State, 971 N.E.2d 71, 74 (Ind.2012). “Any reasonable doubts and constructions as to the statute’s validity are resolved in favor of constitutionality.” Id. (citing State v. Lombardo, 738 N.E.2d 653, 655 (Ind.2000)).

“A fundamental aspect of our nation’s jurisprudence is that criminal statutes must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Id. (internal quotations omitted). Accordingly, our Supreme Court has said that “due process requires that a penal statute ‘clearly define its prohibitions.’ ” Id. (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind.2007)). “If it fails ‘to provide notice enabling ordinary people to understand the conduct that it prohibits’ or ‘authorizes or encourages arbitrary or discriminatory enforcement’ then it is subject to invalidation.” Id. at 74-75 (quoting Brown, 868 N.E.2d at 467). “Additionally, ‘there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur.’ ” Id. (quoting State v. Downey, 476 N.E.2d 121, 123 (Ind.1985)). “ ‘It cannot be left to juries, judges, and prosecutors to draw such lines.’ ” Id. (quoting Downey, 476 N.E.2d at 123).

The following sections of the Indiana Code are pertinent to our analysis. Indiana Code section 35-46-3-10, in pertinent part, provides: “A person who knowingly or intentionally attends a fighting contest involving animals commits cruelty to an animal, a Class A misdemeanor.” (Emphasis added). “[An] ‘animal fighting contest’ means a conflict between two (2) or more animals. The term does not include a conflict that is unorganized or accidental.” Ind.Code § 35-46-3-4. Indiana Code section 35-46-3-3 provides: “As used in this chapter, “animal” does not include a human being.”

Lee contends that the word “attends” is so vague as to make the statute unconstitutional. Lee suggests that various meanings of the word have criminalized “being present at, taking care of, providing services at, watching over, or paying attention to a fighting contest involving animals.” Appellant’s Br. at 8. She further suggests that the vagueness of the statute has made it unclear whether it is a crime to watch a dog fight on the internet, watch the simulation of a dog fight made for a movie, watch a friend feed a mouse to his pet snake, or attend a circus and watch a man box with a kangaroo or wrestle with a bear. However, the statute as written makes clear the answer to each of these questions. The word “animal” does not involve a human being, therefore, watching a human fight or wrestle any animal would not fall within the prohibitions of Indiana Code section 35-46-3-10, which requires a conflict between two or more animals. Most dog fights viewed on the internet would not fall within the prohibitions of section 35-46-3-10 because the person could not be said to be attending the fight in the traditional sense of the word. Likewise, a person who watches his friend feed a mouse to a snake is not watching an organized event, and a simulated fight between animals that, presumably, are not hurt, could not truly be said to be an animal fighting contest.

As applied to this offense, Lee’s vagueness argument amounts to claiming that the statute’s failure to further define “attend” authorizes the prosecution of anyone who is in the vicinity of an animal fighting contest without regard to their intent. However, in determining whether a statute is unconstitutionally vague, this court is mindful that “[n]o statute need avoid all vagueness, and ‘because statutes are condemned to the use of words, there will always be uncertainties for we cannot expect mathematical certainty from our language.’ ” Logan v. State, 836 N.E.2d 467, 473 (Ind.Ct.App.2005) (quoting Helton v. State, 624 N.E.2d 499, 507 (Ind.Ct.App.1993), trans. denied, cert. denied, 520 U.S. 1119, 117 S.Ct. 1252, 137 L.Ed.2d 333 (1997)), trans. denied (2006). Here, it is a sufficiently-clear warning to say that erimi-nal liability attaches to someone who knowingly or intentionally attends an animal fighting contest. As the standard implies, cases will be decided on their own facts.

Lee also contends that the statute in question invites arbitrary enforcement. Appellant’s Br. at 9. Intent may be proved by circumstantial evidence. E.H. v. State, 764 N.E.2d 681, 683 (Ind.Ct.App.2002) (citing Johnson v. State, 593 N.E.2d 208, 209 (Ind.Ct.App.1992)), trans. denied. Intent can be inferred from a defendant’s conduct and the natural and usual sequence to which such conduct logically and reasonably points. Id. The fact finder is entitled to infer intent from the surrounding circumstances. Id. at 683. This does not mean that the finding of intent, and thus enforcement, is arbitrary. As our Supreme Court noted in Brorni v. State, ‘“there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrest and convictions for trivial acts and omissions will not occur.’ ” 868 N.E.2d at 467 (quoting Downey, 476 N.E.2d at 123). Here, there is no such concern. The statute under which Lee was charged “eonvey[ed] sufficiently definite warning[s] as to the proscribed conduct when measured by common understanding.” Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind.1985), overruled on other grounds, Stout v. State, 528 N.E.2d 476 (Ind.1988). Further, it “provided[d] a constraining and intelligible enforcement standard for those charged with enforcing the statutes.” Johnson v. State, 648 N.E.2d 666, 670 (Ind.Ct.App.1995) (citing Price v. State, 622 N.E.2d 954, 967 (Ind.1993)).

Lee has failed to carry her “heavy burden” of proving that Indiana Code section 35-46-3-10 is unconstitutionally vague. The evidence supports the trial court’s judgment of guilt.

Affirmed.

NAJAM, J., and MAY, J., concur.

      . See Ind.Code§ 35-46-3-10.

      . We do not address whether this activity would fall within the prohibitions of Indiana Code section 35-46-3-12, which prohibits the beating of vertebrate animals or Indiana Code section 35-46-3-7 which prohibits the abandonment or neglect of vertebrate animals. Likewise we do not address whether this activity would fall within the exception that the chapter does not apply to “Conduct not resulting in serious injury or illness to the animal that is incidental to exhibiting an animal for show, competition, or display, or that is incidental to transporting the animal for show, competition, or display." Ind.Code § 35-46-3-5(a)(13).

      . We reserve for another day the question of whether a person who pays to watch an animal fight live on the internet can be said to be attending an animal fighting contest.


author: BAILEY, Judge.

text:
    Troy WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A02-1202-CR-88.
    Court of Appeals of Indiana.
    Sept. 6, 2012.

      Michael Frischkorn, Frischkorn Law LLC, Fortville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Troy Wilson (“Wilson”) was convicted after a jury trial of Possession of Marijuana, as a Class A misdemeanor , and Driving While Intoxicated, as a Class A misdemeanor. He now appeals his conviction for Driving While Intoxicated.

We affirm.

Issue

Wilson presents two issues for our review, which we restate as a single issue: whether the trial court abused its discretion when it did not permit Wilson to elicit testimony concerning the reliability of toxicology test results from the Indiana Department of Toxicology (“the Department”), as reflected in an audit of testing performed by the Department from 2007 to 2009.

Facts and Procedural History

At around 2:52 a.m. on December 6, 2009, Wilson was driving his car eastbound on 286th Street in Cicero. Cicero Police Department Officer Bradley Gorgas (“Officer Gorgas”) was on patrol in the same area, driving westbound on 236th Street.

Wilson and Officer Gorgas both turned onto a side street, with Wilson’s car in front of Officer Gorgas’s. Officer Gorgas twice saw Wilson’s car briefly cross over the centerline of the road and immediately swerve back toward the right-hand fog line. Officer Gorgas matched the speed of his police car to the speed of Wilson’s car, and determined that Wilson was travelling around fifty-five miles per hour in a forty mile-per-hour speed zone. Officer Gorgas therefore initiated a traffic stop.

Wilson pulled his vehicle over after driving for another two blocks. When Officer Gorgas reached the car, Wilson rolled his window down, and Officer Gorgas immediately smelled the odor of an alcoholic beverage. Wilson’s speech was slurred and his eyes were bloodshot and glassy.

Wilson was belligerent and refused to comply with Officer Gorgas’s request to conduct a field sobriety test. Wilson agreed to submit to a portable breath test for alcohol, but refused to comply with Officer Gorgas’s request that he exit the car until Officer Gorgas opened the car door himself. Once Wilson exited the car, Officer Gorgas moved to handcuff Wilson, who clutched his chest and claimed to be having a heart attack. Officer Gorgas called an ambulance and secured Wilson to wait for the ambulance.

Once the ambulance arrived, paramedics began to treat Wilson while Officer Gorgas performed an inventory search of Wilson’s car. The search recovered a small wooden “dugout” box that contained a small amount of a substance that was later determined to be marijuana. (Tr. at 104.) The ambulance transported Wilson to Riv-erview Hospital in Noblesville, and Officer Gorgas followed the ambulance on the ten-minute drive.

Wilson, accompanied by Officer Gorgas, was placed in the hospital’s emergency room and received treatment for approximately one hour. Wilson had agreed to submit to a blood draw to test for the presence of alcohol in his system. At around 4:09 a.m., nurse Stacia Malloch (“Malloch”) performed the blood draw using a testing kit provided to Officer Gorgas by the Cicero Police Department, which kit the Police Department had received from the Indiana State Department of Toxicology. Officer Gorgas sealed the kit and took Wilson to the Hamilton County Jail, where he passed out unconscious on a bench in the booking room while Officer Gorgas completed paperwork. The testing kit was placed into evidence at the Cicero Police Department and was transported for testing and analysis at the Indiana State Department of Toxicology’s laboratory.

On August 5, 2010, Wilson was charged •with Possession of Marijuana, as a Class A misdemeanor (“Count I”); Operating a Vehicle While Intoxicated Endangering a Person, as a Class A misdemeanor (“Count II”); and Operating a Vehicle With an Alcohol Concentration Equivalent of 0.08 grams or more, as a Class C misdemeanor (“Count III”).

On September 22, 2010, Wilson filed a demand for a jury trial, which the trial court granted on September 28, 2010. After several continuances, a jury trial was conducted on December 8 and 9, 2011. During the trial, Wilson sought to introduce testimony from Scott Kriger, Ph.D. (“Dr. Kriger”), the Department’s Director, concerning audits conducted of testing results produced by the Indiana State Department of Toxicology during 2007, 2008, and 2009. The State objected to the relevance of the proffered testimony. The trial court sustained the State’s objections and ruled the testimony inadmissible.

At the conclusion of the trial, the jury found Wilson guilty of all charges. On January 4, 2012, the trial court entered judgments of conviction on Counts I and II and sentenced Wilson to 365 days imprisonment with 351 days suspended and 365 days of probation as to both Count I and Count II, with the sentences to run concurrently.

This appeal followed.

Discussion and Decision

Standard of Review

Wilson’s appeal challenges the trial court’s rulings that precluded him from eliciting testimony from Dr. Kriger concerning the results of audits conducted at the Indiana State Department of Toxicology Laboratory. We review a trial court’s rulings on the admissibility of evidence at trial for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010), tram, denied. An abuse of discretion occurs when the trial court’s decision is contrary to the logic and effect of the facts and circumstances before it, or when the trial court errs on a matter of law. Id. We do not reweigh evidence and consider any conflicting evidence in favor of the trial court’s ruling, though we also consider any uncontested evidence favorable to the defendant. Lindsey v. State, 916 N.E.2d 230, 238 (Ind.Ct.App.2009), trans. denied.

Further, even where the trial court has abused its discretion, we do not reverse the judgment on appeal where the trial court’s error is harmless, that is, where the appealing party’s substantive rights were not prejudiced by the trial court’s decision. Ind. Trial Rule 61.

Analysis

Wilson’s contention on appeal is that the trial court violated his confrontation rights under the Constitutions of the United States and the State of Indiana when it precluded him from eliciting Dr. Kriger’s testimony concerning results of the audit of the Department’s laboratory.

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution provides, in relevant part, that “the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Indiana Constitution extends a similar guarantee. See Ind. Const, art. 1, § 13. In a line of cases beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause precluded from admission into evidence against a criminal defendant out-of-court testimonial statements except where the statement was made by an unavailable witness whom the defendant had a prior opportunity to cross-examine. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354.

A subsequent case in the Crawford, line, Melendez-Diaz, held that the right of confrontation encompasses a requirement that defendants be able to cross-examine laboratory analysts who created certificates of analysis concerning the nature of a particular substance — in that case, cocaine. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The Supreme Court later held that “surrogate testimony” of one analyst for another was not sufficient to satisfy this right, Bullcoming v. New Mexico, 564 U.S. -, 131 S.Ct. 2705, 2714, 180 L.Ed.2d 610 (2011), and thus in almost any event “the analysts who write reports that the prosecution introduces must be made available for confrontation.” Id. at 2715. This is because the defendant may seek to “expose any lapses or lies on the certifying analyst’s part” during a cross-examination of that analyst. Id.

Here, Wilson’s blood sample was taken on December 6, 2009 and analyzed by Dawn Golden (“Golden”), an analyst with the Department’s laboratory, in May and June 2011. Wilson cross-examined Golden concerning her work in the analysis of his blood sample. Wilson also cross-examined Dr. Kriger, who was the Director of the Department at the time Golden performed the analysis on Wilson’s blood sample in May and June 2011. Both Golden’s and Dr. Kriger’s testimony concerned the basic and applied science underlying the operation of the gas chromatography instruments used to analyze and produce a result from Wilson’s blood sample and Golden’s analysis of the sample. Wilson was able at trial to elicit testimony from both witnesses concerning such matters as the calibration and maintenance of the gas chromatography machine, the meaning of the expiration dates printed on the testing kit issued to Officer Gorgas, and the specific laboratory and chain of custody protocols associated with the testing of the blood sample. From this, we conclude that Wilson was afforded the opportunity to cross-examine the analyst responsible for the test results showing the alcohol content of his blood, and thus there was no denial of his right to confrontation.

Wilson also argues that even if the trial court’s decision to preclude certain lines of questioning with Dr. Kriger did not violate the Confrontation Clause, the trial court nevertheless erred when it concluded that the evidence he sought to elicit from Dr. Kriger was irrelevant. Relevant evidence is that evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ind. Evidence Rule 401. Only relevant evidence is admissible at trial. Evid. R. 402.

Here, Wilson sought to examine Dr. Kriger concerning the results of audits performed at the Department’s laboratory. During Wilson’s offer of proof, he examined Dr. Kriger concerning the audit results. Dr. Kriger testified that the audits covered testing of substances for marijuana, cocaine, and alcohol performed from 2007 to 2009. The portion of the audits covering marijuana and cocaine tests had been completed. The portion of the audits covering blood-alcohol testing had been suspended, and Dr. Kriger had not received any information concerning the preliminary results of the blood-alcohol testing audit. Numerous personnel changes had occurred between the 2007 through 2009 testing period covered by the audit and Dr. Kriger’s arrival at the Department in February 2011, and Dr. Kriger had introduced numerous changes to the testing and analysis procedures followed by the Department.

At the conclusion of the offer of proof, Wilson argued that this testimony was relevant to the jury’s consideration of the results of the 2011 blood-alcohol testing performed on his blood sample. The trial court concluded that because the audit applied only to tests conducted in the years 2007, 2008, and 2009, any audit results would have no bearing upon the tests Golden performed on Wilson’s blood sample in 2011. Wilson argues that these matters bear upon the jury’s assessment of the credibility of the Department’s analysis of his blood sample because his test “could have been part of an audit” and the audit had previously found problems with the analysis of samples for cocaine. (Appellant’s Br. at 8.) Wilson contends that his samples were excluded from the audit because both the chronological scope of the audit and the decision to suspend the audit were arbitrary, and these decisions “went directly to the credibility of Dr. Kriger, the credibility of the Department ... and the credibility of the test results received from the Department.” (Appellant’s Br. at 8.)

We do not agree. The discontinuation of the audit on blood-alcohol samples and the period of time covered by the audits generally may bear upon the credibility of the Department’s testing results from 2007 to 2009. But it is not clear that these questions bear upon the credibility of the Department’s analysis here, where different procedures were executed by different analysts serving under a different Director more than 1 1/2 years beyond the chronological scope of the audits. Thus, we cannot conclude that the trial court abused its discretion when it determined that the testimony Wilson sought to introduce was not relevant to the question of the reliability of Golden’s testing and excluded that testimony from evidence.

Conclusion

Because Wilson’s confrontation rights were not violated and the exclusion of irrelevant testimony by Dr. Kriger regarding the Department’s audit results was not error, we affirm Wilson’s convictions.

Affirmed.

RILEY, J., and CRONE, J., concur.

      . Ind.Code§ 35-48-4-11(1).

      . I.C. § 9-30-5-2(a) & (b).

      . See I.C. § 9-30-5-1 (a).

      . Indeed, we observe that Golden’s analysis was in fact the second time testing had been performed on Wilson’s sample and complied with the Department's procedures requiring that such occur once the analyst who performed the first testing on Wilson’s blood in 2010 was no longer employed by the Department. That is, the Department’s procedures properly contemplated the need for new analysis, and implemented those procedures in advance of and separate from the Supreme Court’s ruling in Bullcoming.


author: CRONE, Judge.

text:
    In re ADOPTION OF M.L.; J.H., Appellant-Respondent, v. J.L. and C.L., Appellees-Petitioners.
    No. 29A02-1201-AD-54.
    Court of Appeals of Indiana.
    Sept. 7, 2012.

      Shelley Hiles Haymaker, Noblesville, IN, Attorney for Appellant.
    Charles P. Rice, Boveri Murphy Rice, LLP, South Bend, IN, Attorney for Appel-lees.

      . At the trial level, this case was captioned In re Adoption of M.L. and concerned J.L. and C.L.’s petition to adopt two children, M.L. and L.H. J.H. is the father of L.H. but not M.L.; therefore, although M.L. is a party of record, this appeal concerns only the adoption of L.H.

   OPINION

CRONE, Judge.

Case Summary

In 2008, J.L. and C.L. (collectively, “the Adoptive Parents”) became concerned that their grandson, M.L., and his half-brother, L.H., were not being properly supervised. The Adoptive Parents obtained a guardianship over M.L. and L.H. L.H.’s father, J.H. (“Father”), consented to the guardianship due to his inability to take care of his son at that time. Since then, L.H. and M.L. have remained in the Adoptive Parents’ care.

In October 2010, the Adoptive Parents filed a petition to adopt L.H., which Father contested. The Adoptive Parents argued that Father’s consent was not necessary because he had failed to communicate significantly with L.H. for a period of one year, had failed to support L.H. for a period of one year when he was able to do so, and was unfit to be a parent. After an evidentiary hearing, the trial court found that the Adoptive Parents had established all three grounds for dispensing with Father’s consent. The trial court found that adoption was in L.H.’s best interests and granted the Adoptive Parents’ petition.

Father appeals, arguing that the evidence is insufficient to prove that his consent was not required and that adoption was in L.H.’s best interests. Given Father’s history of substance abuse, his history of depression, his reluctance to follow treatment recommendations, his lack of insight, and his instability in housing and employment, we conclude that there is sufficient evidence that Father is unfit to parent; therefore, we need not address the alternate grounds for dispensing with his consent. In addition, the evidence favorable to the judgment indicates that L.H. lacks a bond with Father, but is bonded with the Adoptive Parents and M.L.; that the Adoptive Parents have provided a stable home, which L.H. views as his home; and that the Adoptive Parents have been successfully addressing L.H.’s developmental issues. This evidence is sufficient to show that adoption is in L.H.’s best interests. Therefore, we affirm.

Facts and Procedural History

In March 2005, Father started living with T.C. (“Mother”) and her son, M.L. Although he is not the biological father of M.L., Father viewed himself as M.L.’s father. Around January 2006, Father and Mother were evicted from their apartment. Although Mother was pregnant with L.H. at this time, she and Father went their separate ways for a while. L.H. was born on July 6, 2006, and Father resumed living with Mother and the children around this time. In November 2007, Father and Mother split up again, and Mother took the boys with her.

In the summer of 2008, J.L., who is the paternal grandfather of M.L., became concerned that M.L. and L.H. were not being properly supervised. The Adoptive Parents took M.L. and L.H. into their home, and in the fall of 2008, with the biological parents’ consent, they became the boys’ guardians.

During this timeframe, Father was under the strain of losing his mother, losing a job, losing his girlfriend (Mother), and losing the boys. Father was drinking “rather heavily” — half a gallon of hard liquor each week. Tr. at 106. Father was charged with operating while intoxicated in July 2008. In September 2008, Father twice attempted to commit suicide within a short period of time. Father was hospitalized and diagnosed with depressive disorder, alcohol dependence, and cannabis dependence. He was later referred to Aspire, where he had an assessment on December 23, 2008. The assessment indicates that Father’s longest period of sobriety had been one month, that Father did not view drug use as a problem, and that he lacked insight into his condition. He was diagnosed with polysubstance dependence, depressive disorder, and alcohol dependence. Father received treatment from Aspire from May to August 2009. Due to the turmoil in his life, Father visited with L.H. only a few times between October 2008 and December 2009.

In February 2009, Father began living with his father and stepmother, B.H. and J.H. For a few months, B.H. made arrangements with the Adoptive Parents to have L.H. overnight every other Saturday. At this time, Father’s license was suspended, so he got a job at Embry’s Market, which was within walking distance. He generally worked on weekends and did not return home until everyone was asleep; thus, he did not have much interaction with L.H. at home. However, Father claimed that Mother would bring the boys to Embry’s to see him.

In June 2009, Father and his current girlfriend, E.R., began living with family friends, Phil and Brenda Hendricks. In February 2010, Father and E.R. started living with E.R.’s parents, G.R. and P.R.

In April 2010, Father’s license was reinstated and he was able to take a better job, where he is still employed. Father set up a weekly visitation schedule with the Adoptive Parents. The Adoptive Parents allowed Father to have unsupervised visits with L.H. and M.L. for two to three and a half hours each week. In August 2010, Father and E.R. got their own apartment and soon thereafter had a baby girl.

In October 2010, the Adoptive Parents filed petitions to adopt M.L. and L.H. The two cases were eventually consolidated. In November 2010, the Adoptive Parents decided to stop allowing Father to take the boys, but did allow him to continue weekly visits in their home. In January 2011, the Adoptive Parents reduced visits to every other week because they and the boys were busy with family activities. On February 22, 2011, Father came to the Adoptive Parents’ home for a visit. Father did not feel comfortable participating in the family dinner, so he excused himself and went outside, although it was a cold day. While he was at the Adoptive Parents’ house, he also made several long trips to the bathroom. The Adoptive Parents were concerned about what he was doing while he was alone and felt that his behavior was odd. In a letter dated March 3, 2011, the Adoptive Parents informed Father that they were suspending his visitation. In April 2011, the Adoptive Parents began allowing Father to see L.H. at a restaurant for about one hour every other week.

On September 19 and 20, 2011, the court held an evidentiary hearing on the Adoptive Parents’ petition to adopt L.H. By this time, Mother had been dismissed from the proceedings, and the court had dismissed Father’s motion to contest the adoption of M.L. Thus, the primary issue was whether Father’s consent to the adoption of L.H. was required.

At the hearing, it was established that Father had a long history of drug use, mental health issues, frequent moves, and frequent changes in employment. Father identified his parents’ divorce when he was eight as the starting point of his troubles. Father testified that there were “periods of verbal abuse” by his father. Id. at 27. At the age of twelve, Father began struggling with depression, cutting himself, and using marijuana. During his high school years, Father lived with his mother in Arizona. She suffered from multiple sclerosis, fibromyalgia, and glaucoma. She smoked marijuana on a daily basis and allowed Father to smoke it with her. Father also experimented with a variety of drugs, including inhalants, methamphetamine, cocaine, and hallucinogens. Father admitted that he was “self-medicating” and “just doing what I knew felt good just to improve the way I felt about life.” Id. at 82. Father graduated high school in 2000 and continued to live with his mother, do drugs, and drink alcohol while he shifted from job to job. In July 2002, he moved to Arcadia to live with his father, who had also smoked marijuana in the past.

In September 2003, Father moved to Valparaiso to be near his mother, who by this time was in very poor health and needed assistance. In February 2004, he started working for Valparaiso University. In July 2004, he found out that his girlfriend was cheating on him with one of his coworkers. Father punched a wall in his apartment and broke his hand. He then went to work, confronted his coworker, and threw a table at a window. As a result, Father was fired. After that, Father continued to shift from job to job.

In October 2004, Father was arrested for public intoxication and assault. His medical records indicate that he was taken to St. Anthony Memorial Health because he had attempted to kill himself with a knife and had also brandished the knife at a friend who tried to intervene. Father had little memory of the incident because had consumed alcohol and Klonopin, for which he did not have a prescription. Father was diagnosed with major depressive disorder, dysthymic disorder, alcohol abuse, and a self-inflicted chest wound. Father reported that he had been drinking a six-pack of beer or more three to four nights a week. He had thirty-five to forty scars on his chest and arms from cutting himself.

Father was discharged after a couple days. At that time, he indicated that he was planning to move to Oklahoma City with his half-brother and would follow up with treatment there. Instead, he moved to Noblesville to live with his father, and he did not follow through with treatment until he was ordered to do so as a result of his criminal charges. On December 1, 2004, he began treatment with Community Addictions Services of Indiana (“CASI”). He was diagnosed with alcohol dependence and cannabis abuse and was found to have poor judgment and insight. He was successfully discharged in April 2005, although Father admitted that he continued to drink during the time that he was receiving treatment from CASI.

Father testified that he continued to use marijuana until at least 2008 and that he had not used “hard” drugs (by which he meant drugs other than marijuana or alcohol) since 2002, except in conjunction with his suicide attempt in 2004. He stated that there was a period of time after the boys were no longer living with him where he was using drugs daily, but he claimed that “otherwise it was very, very intermittent.” Id. at 35. He does not feel that it is necessarily bad to smoke marijuana. He acknowledges that he has been advised to stop drinking multiple times, but he did not feel that his alcohol use was “as serious as they [medical professionals] try to make it.” Id. at 72. He feels that it is “okay” to use alcohol as long as “it doesn’t interfere with my life.” Id. at 73-74. In response to the Adoptive Parents’ interrogatories, Father admitted that he was drinking half a pint of whiskey or vodka several nights a week between February 2009 and February 2010. Due to the tolerance that he has developed, Father testified that this amount of alcohol gives him “just a mild buzz.” Id. at 218. He testified that he currently goes one to three weeks without drinking, but still uses it as “a way to unwind in the evening” when he can afford to do so. Id. at 178. Father believes that he is not currently depressed or dependent on alcohol. He does not like to take medication for depression and prefers to deal with it on his own. He testified that he had not cut himself since 2008. He felt that 2008 was the hardest period of his life and that, since then, he has realized that he can “act out” based on his feelings. Id. at 193.

In 2008, Father earned about $6000 in income. In 2009, he earned approximately $13,000, and in 2010, he earned approximately $20,000. Father received food stamps from September 2010 until February or March 2011. As of August 2011, he was living paycheck-to-paycheck and had only a few dollars in his bank accounts. When Father had visitation with L.H. or with both boys, he paid for their meals and transportation as well as some small gifts. Father paid the Adoptive Parents a total of $60 in support during the time that L.H. lived with them, and he also paid $60 toward L.H.’s soccer registration fee. Father wavered about his ability to provide for L.H. from 2008 on, but agreed that, at a minimum, the money that he spent on alcohol could have been used to support L.H.

Father testified that he consented to the guardianship because, at the time, he “wasn’t in a position to properly take care of the boys.” Id. at 131. He stated that he did not visit the boys between October and December 2008 because of his suicide attempts and he did not “think it was good for the boys to see me when I was struggling so hard and not thinking clearly.” Id. at 132. Father acknowledged that, as far as he was aware, the Adoptive Parents had given L.H. a “stable, nurturing environment.” Id. at 99. He feels that L.H. and M.L. “should have a lifelong brotherly bond” and that they “should always have an opportunity to know each other.” Id. at 101.

L.H. refers to the Adoptive Parents as Nana and Pop-Pop. When he first started living with the Adoptive Parents, L.H. had developmental delays in his growth and speech, both of which have improved since living with the Adoptive Parents. J.L. testified that, because he owns his own business and works out of his home, he is usually L.H.’s caregiver during the day. C.L. comes home from work around 6:00 p.m. and helps L.H. with school work. Adoptive Parents, L.H., and M.L. have dinner as a family, followed by family activities such as reading or playing games. The Adoptive Parents have five grandchildren, and L.H. has become close to them, especially a granddaughter who attended the same preschool as L.H.

The Adoptive Parents each testified to behavior by Father that made them concerned about his emotional stability. J.L. testified that Father has some “odd behaviors,” such as “[g]lazed looks,” a “sullen appearance,” or a “lack of response.” Id. at 269, 289. C.L. acknowledged that Father would play with the boys, but it seemed “like he wasn’t really there.” Id. at 307. She described Father as “a very sullen individual. He comes across very polite, but it’s almost as if he’s kind of a shell of a person.... I just find him a little bizarre.” Id. at 307-08. C.L. testified that L.H. is always glad to see Father, but is “always very glad to see most everybody.” Id. at 310. The Adoptive Parents do not believe that L.H. is bonded to Father and do not see signs that he is missing Father. C.L. testified that they stopped allowing Father to visit L.H. outside of their home because they were concerned that the adoption proceedings “might be a stressor for him,” and in light of Father’s past methods of dealing with stress, they were concerned for L.H.’s safety. Id. at 319.

Father presented testimony from his father, his stepmother, E.R.’s parents, and Brenda Hendricks. These witnesses testified that they thought that Father was a good father and had made improvements in his life since 2008. However, each of these witnesses was either unaware that Father was continuing to drink alcohol or unaware that he was drinking to the extent that he had admitted in his answers to the Adoptive Parents’ interrogatories. For their part, the Adoptive Parents felt that they had not seen any changes since 2008 and expressed concern that Father would continue his patterns of instability and substance abuse. The Adoptive Parents felt that it was in L.H.’s best interests to be adopted because he had come to view them as his parents and felt comfortable in their home.

On December 29, 2011, the trial court issued an order finding that Father’s consent was not required and that adoption was in L.H.’s best interests; therefore, the court granted the adoption petition. The court concurred with the Adoptive Parents’ description of Father’s demeanor: “On the stand, [Father] was polite but had a disturbing [ajffect which, in the Court’s opinion as the finder of fact, is reflective of his failure to obtain treatment for his serious psychological problems.” Appellant’s App. at 18. The trial court gave limited credit to the testimony of B.H., J.H., Brenda Hendricks, and E.R.’s parents because they had limited opportunity to observe Father’s parenting skills and/or were unaware of the extent of Father’s drinking. The court found that Father’s consent was not required because he had failed to communicate significantly with L.H., had failed to provide for L.H. when he was able to do so, and because he was unfit. The court also found that adoption was in L.H.’s best interests. Father now appeals.

Discussion and Decision

“When reviewing the trial court’s ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.” In re Adoption of M.B., 944 N.E.2d 73, 76 (Ind.Ct.App.2011). We do not reweigh the evidence on appeal, but instead we examine the evidence most favorable to the trial court’s decision together with reasonable inferences drawn therefrom, to determine whether sufficient evidence exists to sustain the decision. Id. Moreover, we generally give considerable deference to the trial court’s decision in family law matters, as we recognize that the trial judge is in the best position to judge the facts, determine witness credibility, get a feel for the family dynamics, and get a sense of the parents and their relationship with their children. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind.2005).

The Adoptive Parents alleged that Father’s consent to the adoption was not required pursuant to Indiana Code Section 31-19-9-8, which provides in relevant part as follows:

(a) Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
(11) A parent if:
(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and
(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.

The Adoptive Parents, as the petitioners, had the burden of proving by clear and convincing evidence that consent was not required. In re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind.Ct.App.2004). The provisions of Indiana Code Section 31 — 19— 9-8 are written in the disjunctive; therefore, they each provide independent grounds for dispensing with parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind.Ct.App.2006). Regardless of which provision is relied on, adoption is granted only if it is in the best interests of the child. Ind.Code § 31 — 19—11—1(a).

We will address Father’s fitness first. The statute does not provide a definition of “unfit.” The interpretation of a statute is a pure question of law, which we review de novo. M.S. v.C.S., 938 N.E.2d 278, 282 (Ind.Ct.App.2010). “In construing a statute, our primary goal is to determine and effectuate the legislative intent.” Id. We give words and phrases their plain and ordinary meaning. Id. at 284.

Black’s Law Dictionary defines “unfit” as “[u]nsuitable; not adapted or qualified for a particular use or service” or “[mjorally unqualified; incompetent.” Black’s Law Dictionary 1564 (8th ed. 2004). Father and the Adoptive Parents have both looked to cases where parental rights have been terminated as a result of a petition made by the Department of Child Services (“DCS”) for guidance. In termination cases, DCS is required to allege, inter alia, that there is “a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied,” that there is “a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child,” or that the child “has, on two (2) separate occasions, been adjudicated a child in need of services.” Ind.Code § 31-35-2-4(b)(2). Although Indiana Code Section 31-35-2^4 does not use the word “unfit,” we have frequently referred to its provisions as indicators of a parent’s fitness, and termination cases clearly deal with a parent’s suitability or competence to be a parent. See, e.g., In re A.B., 924 N.E.2d 666, 670 (Ind.Ct.App.2010) (“In determining whether the conditions that led to a child’s removal will not be remedied, the trial court must judge a parent’s fitness to care for her child at the time of the termination hearing ...”). The termination statutes and adoption statutes strike a similar bal-anee between the parent’s rights and the child’s best interests.

Therefore, we agree that termination cases provide useful guidance as to what makes a parent “unfit.” In these cases, we have considered factors such as a parent’s substance abuse, mental health, willingness to follow recommended treatment, lack of insight, instability in housing and employment, and ability to care for a child’s special needs. See In re J.S., 906 N.E.2d 226, 235 (Ind.Ct.App.2009) (affirming termination of parental rights based on parents’ drug use and inability to maintain stable housing and employment); C.T. v. Marion Cnty. Dep’t of Child Servs., 896 N.E.2d 571, 582 (Ind.Ct.App.2008) (affirming termination of parental rights based on mother’s pattern of failing to address mental health deficiencies, long-standing addiction to drugs, and past and present inability to provide safe, stable, and nurturing home), trans. denied (2009); In re A.B., 887 N.E.2d 158, 169-70 (Ind.Ct.App.2008) (affirming termination of parental rights based on mother’s instability, lack of participation in counseling, and inability to provide permanency for special needs child); In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258 (Ind.Ct.App.2004) (affirming termination of parental rights where mother failed to follow through with treatment for mental health issues and substance abuse), trans. denied; In re J.T., 742 N.E.2d 509, 512-13 (Ind.Ct.App.2001) (affirming termination of parental rights based on mother’s lack of progress and insight), trans. denied.

Each of these factors is present in this case. Father has a long history of depression and self-medicating with drugs and alcohol. He is reluctant to follow treatment advice for his mental health issues or substance abuse issues. He minimizes the seriousness of these issues and believes that he can control them on his own despite the fact that his untreated conditions have resulted in suicide attempts, cutting himself, arrests, loss of his license, and difficulty maintaining employment and stable housing. Father has hidden the extent of his drinking from his friends and family members, and the trial court also found that Father attempted to downplay the extent of his drinking and drug use in his testimony. See Appellant’s App. at 15 (in paragraphs 47-49 of its order, the court compares Father’s testimony with statements made in his deposition and answers to interrogatories, which were admitted as exhibits). There is no indication that Father intends to quit drinking. The Adoptive Parents expressed concern that his demeanor was indicative of ongoing mental health issues. The trial court found that his demeanor on the stand was consistent with what the Adoptive Parents described.

In L.H.’s six years of life, Father has had eight different addresses and five different jobs. L.H. came to the Adoptive Parents with developmental delays in his speech and growth, which have been improving under their care. Father has contributed little to L.H.’s support and continues to struggle financially. He has not been able to provide the stable home that L.H. needs.

Father points out that he has had fewer changes in his employment and living situation in recent years and has avoided a meltdown of the sort that he experienced in 2008. Even if Father’s conduct from 2009 forward has arguably improved, the evidence favorable to the judgment reflects that Father remains in denial about the seriousness of his alcohol use and mental health issues and is therefore vulnerable to a recurrence of his past problems. Father’s argument essentially asks us to reweigh the evidence, which we will not do. We conclude that there is sufficient evidence to support the trial court’s conclusion that Father is not a fit parent. Therefore, we need not address the court’s alternate grounds for dispensing with Father’s consent.

We turn then to L.H.’s best interests. The primary concern in every adoption proceeding is the best interests of the child. In re Adoption of J.B.S., 843 N.E.2d 975, 977 (Ind.Ct.App.2006).

The State has a strong interest in providing stable homes for children. To this end, early, permanent placement of children with adoptive families furthers the interests of both the child and the State. An adoption enables a child to be raised in a stable, supportive, and nurturing environment and precludes the possibility of state wardship.

Id. (citations omitted). It is undisputed that the Adoptive Parents have provided L.H. with a stable, nurturing environment. It is also undisputed that L.H. has a strong bond with M.L. L.H. views the Adoptive Parents as his parents and their home as his home. L.H. is not bonded with Father on that level. The Adoptive Parents are able to provide for all his needs, including his special developmental needs. This evidence supports the trial court’s conclusion that adoption is in L.H.’s best interests. Therefore, we affirm.

Affirmed.

RILEY, J., and BAILEY, J., concur.

      . The trial court's order granting the petition to adopt indicates that Mother was dismissed "for failing to prosecute [her] Motion to Contest without unreasonable delay pursuant to I.C. 31-19-9-18.” Appellant's App. at 10.


author: MAY, Judge.

text:
    Aaron YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A05-1111-CR-650.
    Court of Appeals of Indiana.
    Sept. 11, 2012.
    Neil L. Weisman, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Aaron Young appeals his conviction of and sentence for three counts of Class A felony child molestation. He presents two issues for our review:

1. Whether the State presented sufficient evidence to prove he committed Class A felony child molestation; and
2. Whether the trial court erred when it found him to be a credit restricted felon.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Young is the father of A.Y., born October 22, 1997. Young and A.Y.’s mother separated in 2005, and A.Y. visited Young “at least every other weekend[.]” (Tr. at 309). In 2010, when A.Y. was in seventh grade, she told two of her friends Young had been sexually molesting her. Her friends convinced her to tell a counselor, and the counselor reported the incidents to Child Protective Services.

The State charged Young with two counts of Class A felony child molestation. On October 7, 2011, a jury found Young guilty as charged. On November 9, the trial court sentenced Young to thirty years incarcerated for each count, to be served concurrently, and ordered him to register as a sex offender. On November 10, the trial court issued a supplemental sentencing order that classified Young as a credit restricted felon based on A.Y.’s age at the time of some of the crimes.

DISCUSSION AND DECISION

1. Sufficiency of the Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

To prove Young committed Class A felony child molesting, the State had to prove Young was at least twenty-one years old and performed or submitted to sexual intercourse with a child under fourteen years of age. Ind.Code § 35-42-4-3(a). “Sexual intercourse” is “any penetration of the female sex organ by the male sex organ.” Ind.Code § 35^11-1-26. Young acknowledges he was over twenty-one and A.Y. was under fourteen at the time of the offense, but he argues A.Y.’s testimony was incredibly dubious and the State did not present evidence of penetration. We disagree.

a. Incredible Dubiosity

Under the “incredible dubiosity rule” we may “impinge on the jury’s responsibility to judge the credibility of the witness only when it has confronted ‘inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.’ ” Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind.1981). We will reverse a conviction if the sole witness presents inherently improbable testimony and there is no circumstantial evidence of the defendant’s guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind.1999).

Young argues inconsistencies between A.Y.’s testimony at trial and her testimony during a deposition make her testimony incredibly dubious. “The fact that a witness gives trial testimony that contradicts earlier pre-trial statements does not necessarily render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406, 409 (Ind.2002). A.Y. testified in detail regarding multiple incidents during which Young digitally penetrated her or forced her to engage in sexual intercourse with him. Young has not indicated, nor do we observe, any of AY.’s testimony that is “inherently improbable.” As a conviction of child molesting may rest on the uncorroborated testimony of the victim, Barger v. State, 587 N.E.2d 1304, 1308 (Ind.1992), reh’g denied, we hold AY.’s testimony was not incredibly dubious.

b. Sufficiency of Evidence

Indiana courts have consistently held, and Young concedes, “the slightest penetration is enough to support a conviction.” Dinger v. State, 540 N.E.2d 39, 40 (Ind.1989). During Young’s trial, A.Y. testified:

[Prosecutor]: Were there times when things would happen of a sexual nature with your dad?
[A.Y.]: Yes.
[Prosecutor]: Can you tell us what kinds of things would happen of a sexual nature with your dad?
[A.Y.] My dad would rape me and finger me.
[Prosecutor]: [A.Y.], when you use the word “rape,” what does that word mean to you?
[A.Y.] When he stuck his penis in my vagina.
[Prosecutor]: And when you say “finger” you, what do you mean?
[A.Y.]: He would put his finger on my vagina.
[Prosecutor]: Inside of it?
[A.Y.]: Inside and out.

(Tr. at 329-30.) In his brief, Young points to portions of AY.’s testimony where she seemed confused and gave inconsistent testimony, and suggests those inconsistencies prove he did not penetrate A.Y. Young’s argument is an invitation to reweigh the evidence, which we may not do. See Drane, 867 N.E.2d at 146 (on appeal, we will not reweigh the evidence, and we consider only the facts most favorable to the trial court’s conclusion). The State presented sufficient evidence Young committed Class A felony child molesting. See Smith v. State, 779 N.E.2d 111, 116 (Ind.Ct.App.2002) (“a conviction for child molesting will be sustained when it is apparent from the circumstances and the victim’s limited vocabulary that the victim described an act which involved penetration of the sex organ”), trans. denied.

2. Credit Restricted Felon

Pursuant to Ind.Code § 35-31.5-2-72, an offender is a “credit restricted felon” if he has been convicted of “Child molesting involving sexual intercourse or deviate sexual conduct (IC 35-42-4-3(a)), if: (A) the offense is committed by a person at least twenty-one (21) years of age; and (B) the victim is less than twelve (12) years of age.” A credit restricted felon earns “one (1) day of credit time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” Ind.Code § 35-50-6-3.

In its supplemental sentencing statement, the trial court found:

The Court, having taken the State’s request that it find the defendant to be a “Credit Restricted Felon” under advisement, and the Court having the occasion to review the transcript of testimony at trial in this matter, the Court now finds that the victim was under the age of twelve (12) years at the time the acts alleged in Count II occurred. Accordingly, the Court finds the defendant to be a “Credit Restricted Felon” as that term is defined by I.C. 35-41-1-5.5.

(App. at 7.) Count II alleged:

On or between the 1st day of January, 2009, to the 30th day of June, 2010, in St. Joseph County, State of Indiana, AARON YOUNG, a person twenty-one (21) years of age or older, to-wit: thirty to thirty-one (30-31) years of age with a date of birth of September 1, 1978, did perform sexual intercourse, to-wit: by placing his penis in the sex organ of [A.Y.], a child then under the age of fourteen (14) years, to-wit: eleven to twelve (11-12) years of age[.]

(Id. at 8.) Young argues the trial court erred when it determined he was a credit restricted felon because the acts alleged in Count II did not occur prior to A.Y.’s twelfth birthday. We agree.

During trial, A.Y. testified Young had sexual intercourse with her on three occasions: “a few weeks before my cousin’s birthday in April; and then the second time would have been a few weeks after Independence Day; and the third time would have been after his birthday, but before my cousin [J] ’s birthday.” (Tr. at 339.) A.Y. then clarified those dates occurred in “2010.” (Id. at 340.) A.Y. turned twelve years old on October 22, 2009. Based thereon, we hold the trial court erred when it decided Young was a credit restricted felon because the State did not present evidence he committed any actions under Count II while A.Y. was under the age of twelve. See Ind.Code § 35-31.5-2-72 (for crimes of child molestation and sexual deviate conduct, victim must be “less than twelve (12) years of age”). Accordingly, we reverse the trial court’s classification of Young as a credit restricted felon and remand for recalculation of his credit time.

CONCLUSION

We hold A.Y.’s testimony was not incredibly dubious, and the State presented sufficient evidence to prove Young committed two counts of Class A felony child molestation. However, the trial court erred when it declared Young to be a credit restricted felon because the State did not prove he engaged in sexual intercourse with A.Y. when she was less than twelve years old. Accordingly, we reverse the determination that Young is a credit restricted felon, and remand for recalculation of Young’s credit time.

Affirmed in part, reversed in part, and remanded.

KIRSCH, J., and NAJAM, J., concur.

      . Ind.Code § 35-31.5-2-72 was formerly located at Ind.Code § 35-41-1-5.5. It was reco-dified effective July 1, 2012, with the language of the statute remaining the same.

      . Ind.Code § 35-50-6-3 sets forth the credit time structure based on class. Pursuant to Ind.Code § 35-50-6-4(b), a credit restricted felon is eligible for credit time under Class IV.

      . The State argues “to the extent that the trial court referenced Count II instead of Count I in its Supplemental Sentencing order when it found A.Y. was under the age of twelve when the charged molestations occurred, it was likely a scrivener's error and otherwise harmless.” (Br. of Appellee at 13.) A scrivener's error is an "error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” Black’s Law Dictionary 563 (7th Ed. 1999). As the designation of Young as a credit restricted felon is particularly fact sensitive, de-pendant upon judicial determination, and has a significant impact on Young's sentence, we decline to categorize the trial court’s reference to Count II in the Supplemental Sentencing Order as a "minor mistake.” Thus, we cannot agree with the State’s assessment of the error.