author: Riley, Judge.

text:
    Jose ANDRADE, Appellant-Plaintiff, v. CITY OF HAMMOND and Hammond Board of Public Works and Safety, Appellees-Defendants.
    Court of Appeals Case No. 18A-MI-1199
    Court of Appeals of Indiana.
    Filed November 15, 2018
    Attorney for Appellant: Patrick B. McEuen, Portage, Indiana
    Attorneys for Appellees: David C. Jensen, John M. McCrum, Robert J. Feldt, Kevin T. McNamara, Eichhorn & Eichhorn, LLP, Hammond, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Jose Andrade (Andrade), appeals the trial court's order affirming the decision of Appellee-Defendant, Hammond Board of Public Works and Safety (the Board), to restore the 6609 Jefferson Avenue Home (the Home) owned by him to a single-family dwelling.

[2] We affirm.

ISSUES

[3] Andrade presents us with three issues on appeal, which we restate as:

1) Whether the Board exceeded its statutory authority when it ordered Andrade to restore the Home to a single-family dwelling;
2) Whether the Board's finding that the Home was originally built as a single-family residence was supported by substantial evidence; and
3) Whether the failure of the City of Hammond (the City) to produce the 1927 Hammond building code in response to Andrade's subpoena duces tecum merits reversal.

FACTS AND PROCEDURAL HISTORY

[4] Andrade is a landlord who owns thirty-two properties with a total of sixty-two rental units. The Home was constructed in Hammond in 1927 and was purchased by Andrade in 1998. The Home was divided into five separate apartments before Andrade purchased it, and he continued to rent the five units. The City first inspected the Home on March 13, 2013. That inspection yielded a Notice of Violation mailed on May 10, 2013, (the 2013 Notice) which provided that the Home had been found to be an unsafe building in violation of Indiana's Unsafe Building Law (the UBL). The 2013 Notice listed various Hammond Municipal Code and International Building Code violations that the City relied upon to conclude that the Home was unsafe. All five of the units of the Home were marked as uninhabitable by the City. On May 14, 2015, the Board held a hearing on the 2013 Notice in Andrade's absence, which the Lake County Superior Court subsequently found had taken place without proper notice to Andrade. The Lake County Superior Court remanded the matter to the Board for further proceedings.

[5] Because of the amount of time that had elapsed since the first inspection, the City had the Home re-inspected on September 8, 2016, by Building Commissioner Kurtis Koch (Koch). As a result of that inspection, the City issued Andrade a second Notice of Violation (the 2016 Notice) which provided that the Home had been found to be an unsafe building pursuant to the UBL. The 2016 Notice identified twelve groupings of impaired structural conditions, eleven groupings of fire hazards, and six groupings of "a violation of a statute or ordinance concerning building condition or maintenance" all of which, under the UBL, rendered the Home an unsafe building. (Appellant's App. Vol. II, p. 42).

[6] A hearing on the 2016 Notice was scheduled for January 12, 2017. On January 4, 2017, Andrade served the City's Chief of Inspections Kelly Kearney (Kearney) with a subpoena duces tecum requesting that he bring to the hearing all "regulations, ordinances, and/or statutes" used by him to support his previous testimony before the Board at the first hearing regarding various unsafe conditions at the Home. (Appellant's App. Vol. II, pp. 44-45). The City did not comply with Andrade's subpoena.

[7] The January 12, 2017, hearing took place before the three-member Board. Koch testified regarding various unsafe conditions in the home, including the Home's balloon framing which was typically used in single-family homes built around 1927. This was a significant safety concern because that type of framing allowed fire and smoke to travel through a home unimpeded. Koch also testified that the Home's rear stairway was unsafe under the UBL because the stair width was inadequate to accommodate any first responders and their gear in an emergency. Koch identified other unsafe conditions in the home, such as the basement entrance which could not accommodate first responders, the fact that the bedroom basement lacked windows preventing escape in case of fire, and a chimney chase with inadequate fire stopping. Koch concluded that the Home was built in 1927 as a single-family home because it was built to the same standards as hundreds of other single-family homes in the area and had none of the structural elements which would have been present in a multi-family structure built in 1927. It was Koch's opinion that, in its current configuration, the Home was unsafe. Andrade's counsel cross-examined Koch on a variety of topics, including the width of the stairs in the rear stairway, the Home's water heater for which Andrade also had been cited, inaccuracies in the City's permitting lists, and the similarities between the two inspection reports which formed the basis of the 2013 and 2016 Notices of Violation.

[8] Kearney testified at the January 12, 2017, hearing that the City's ledger of building permits showed that the Home was issued a building permit for a "[n]ine room frame" which indicated to him that the Home had been constructed as a single-family home. (Appellee's App. Vol. II, p. 103). Kearney noted that during that era, if a structure was to be built with multiple apartments, it would have been indicated in the ledger entry. It was Kearny's opinion that the Home was unsafe because it had impaired structural conditions, fire hazards, and ordinance violations. Kearny requested on behalf of the City that the Board remove any apartments from the Home that were unsafe.

[9] On cross-examination, Andrade's counsel asked Kearney questions about what the 1927 Hammond building code would have required in terms of basement window height, the use of wooden support beams in the home, kick plates on stairs, hallway doors, basement ceiling height, and electrical meters. A discussion ensued between Andrade's counsel and the City's counsel regarding the City's failure to bring to the hearing the documents Andrade sought in his subpoena duces tecum . The City posited that it was not required to bring the requested documents for a variety of reasons, including that the material sought was publicly available. The discussion ended as follows:

Andrade's Counsel: But I asked for the ones that particularly he relied on in particular.
City's Counsel: Which are identified in the notice that's already been offered in the exhibit.
Andrade's Counsel: Let's move on. Let's move on.

(Appellee's App. Vol. II, p. 120).

[10] Andrade offered testimony and documentary evidence to the Board that he contended proved that the Home was built as a multi-family unit in 1927. Andrade's counsel argued to the Board during Andrade's testimony that "if this house is ruled a single-family house, [Andrade] knows that, you know, it's over for him with this house." (Appellee's App. Vol. II, pp. 182-83).

[11] At the end of the hearing, the City argued to the Board that, regardless of whether the Home was built as a single or multi-family home, the UBL gave them the authority to act to address unsafe buildings. During his closing remarks to the Board, Andrade's counsel noted that "[o]pposing counsel has indicated that the issue is the [UBL], which we understand." (Appellee's App. Vol. III, p. 2). Andrade's counsel also argued

And [Andrade] understood that his building was a single-family home - was not - excuse me - was not a single-family home when constructed. And I want to focus your Board on that - the Board on that issue. Because if it is not a single-family home, then it will stay the way it is depending on what you do in your decision.
However, if it is ruled that it was a single-family home, then this property can't exist economically.

(Appellee's App. Vol. III, p. 2).

[12] On March 9, 2017, the Board issued twenty-five findings of fact and its conclusions of law in which it found in relevant part as follows:

5. The property as currently configured contains five apartment units, including one in the basement, two on the main floor, and two on the second floor.
* * * *
7. Commissioner Koch found that the cellar apartment was unsafe, as were two second floor apartments and one first floor apartment.
* * * *
19. The ledger entry in the City of Hammond records reflects that the building at 6609 Jefferson was built as a nine-room frame construction.
20. There are no building permits to show that the property was lawfully converted to a multi-dwelling property at any point in its history.
21. The building was not erected as a multi-unit structure in 1927 and was never legally converted to a multi-unit apartment building thereafter.
22. The property at 6609 Jefferson is currently zoned Rl-U, which is Urban Single Family Residential District, and as such allows for two-family attached dwelling units not to exceed twenty percent (20%) of the dwelling units on the block.
23. The Inspections Department seeks to have the unsafe units removed on the property pursuant to the Indiana Unsafe Building Law, as adopted by local ordinance.
* * * *
25. Mr. Andrade has made some general repairs to the property since he bought it in 1998; however, there is no evidence that Mr. Andrade has made or has caused to be made major structural repairs that would remove the unsafe conditions existing on and within the premises.

(Appellant's App. Vol. II, pp. 187, 189-90). The Board concluded that "[a]s currently configured, [the Home] contains structural conditions and fire hazards that are dangerous to its occupants, rendering the premises unsafe and in violation of [the UBL]." (Appellant's App. Vol. II, p. 194). In addition, the Board concluded that the apartments in the Home were never lawfully constructed and cited to case law pertaining to the zoning law concept of a lawful non-conforming use. The Board found that the apartments could not be lawfully occupied in the Home's present condition but that "[s]hould proper zoning approval be obtained, the maximum number of units permitted at this location is two units." (Appellant's App. Vol. II, p. 195). The Board ordered Andrade to restore the Home to a single-family dwelling.

[13] Andrade sought judicial review of the Board's orders. On February 8, 2018, the trial court held an evidentiary hearing on Andrade's request for review. On March 28, 2018, the trial court entered its findings of fact and conclusions of law in which it found in relevant part:

11. The Hammond building inspectors offered opinion testimony to the Board in 2017 that [Andrade's] building "does not meet any Code for multi-family dwellings in 1927", but the failure to produce the Code, as subpoenaed by [Andrade], precluded any cross examination as to the grounds for those opinions.

(Appellant's App. Vol. II, pp. 15-16). The trial court found that the Board's findings, namely that the Home had the unsafe conditions of inadequate fire stopping, lack of fire blocking, flammable support beams, inadequate fire separation, improperly braced stairs of inadequate width, lack of basement apartment bedroom windows, low basement ceilings that would contribute to smoke accumulation and prevent egress in an emergency, and inadequate smoke detectors, were well-supported by the record. The trial court concluded that the original permitting of the Home as either single-family or multi-family was not determinative of whether the Home was unsafe as defined by the UBL and as found by the Board. The trial court upheld the Board's order that Andrade restore the Home to a single-family dwelling.

[14] Andrade now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[15] This matter comes before us on appeal from a judicial review of an administrative order. The City and the Board are not subject to the Administrative Orders and Procedures Act (AOPA), which specifically excludes political subdivisions. Ind. Code § 4-21.5-1-3 (excluding political subdivisions from the definition of "agency"). The City and the Board are political subdivisions pursuant to Indiana Code sections 36-1-2-13 and -10. Nevertheless, Indiana courts have applied general administrative law principles to contexts outside of administrative agency actions governed by AOPA, and so, as in those cases, we will apply those principles here. See City of Jasper v. Collingnon , 789 N.E.2d 80, 87 (Ind. Ct. App. 2003) (applying administrative law principles to action taken by a city and its Wage Committee), trans. denied .

[16] The UBL provides that an action taken to enforce its provisions is subject to judicial review, which is done de novo . Ind. Code § 36-7-9-8(a), (c). Under the de novo standard of review, a court

may, to a limited extent, [weigh] the evidence supporting the finding of fact by an administrative agency. But it may negate that finding only if, based upon the evidence as a whole, the finding of fact was
(1) arbitrary,
(2) capricious,
(3) an abuse of discretion,
(4) unsupported by the evidence or (5) in excess of statutory authority.

Kollar v. Civil City of South Bend , 695 N.E.2d 616, 619 (Ind. Ct. App. 1998), trans. denied . A trial court may not substitute its judgment for that of the agency, and the facts are to be determined but once. Id. at 619-20. What is more, when, as in this case, the trial court enters special findings of fact pursuant to Indiana Trial Rule 52(D), we conduct a two-step review wherein we first determine whether the evidence supports the findings and then whether the findings support the judgment. Foursquare Tabernacle Church of God in Christ v. Dep't of Metro. Dev. of Indianapolis , 630 N.E.2d 1381, 1386 (Ind. Ct. App. 1994), trans. denied . We will reverse the trial court's judgment only if it is clearly erroneous, and a judgment is clearly erroneous only if it is unsupported by the findings of fact and conclusions of law entered on those findings. Id.

II. The Board's Authority

[17] Andrade contends that the Board exceeded its statutory authority by acting as a zoning authority when it ordered him to restore the Home to a single-family dwelling. The City counters that it acted within the authority provided to it by the UBL. Administrative entities are creatures of statute and cannot exercise power beyond that given in their creation. Adkins v. City of Tell City , 625 N.E.2d 1298, 1302 (Ind. Ct. App. 1993). Thus, in order to address Andrade's argument, we must examine the language of the UBL itself to discern what authority it provided to the Board to act. Statutory interpretation is a question of law reserved to the courts. City of Kokomo v. Iseminger , 868 N.E.2d 1169, 1171 (Ind. Ct. App. 2007), trans. denied . "If the language of the statute is clear and unambiguous, it is not subject to judicial interpretation." Id. In other words, an appellate court must give an unambiguous statute its clear and plain meaning. McCabe v. Commissioner, Indiana Dep't of Ins. , 949 N.E.2d 816, 819 (Ind. 2011).

[18] The UBL provides a statutory framework for a city, town, or county to address unsafe buildings. I.C. § 36-7-9 et seq. The UBL defines an unsafe building one that is

(1) in an impaired structural condition that makes it unsafe to a person or property;
(2) a fire hazard;
(3) a hazard to the public health;
(4) a public nuisance;
(5) dangerous to a person or property because of a violation of a statute or ordinance concerning building condition or maintenance; or
(6) vacant or blighted and not maintained in a manner that would allow human habitation, occupancy, or use under the requirements of a statute or an ordinance[.]

I.C. § 36-7-9-4(a). The statute is written in the disjunctive, meaning that a building may be considered unsafe if it falls into any one of the six categories listed in the statute. See Bourbon Mini-Mart, Inc. v. Commissioner, Indiana Dep't of Envtl. Mgmt. , 806 N.E.2d 14, 20 (Ind. Ct. App. 2004) (noting that "or" is a function word to indicate an alternative). If a premises is unsafe under Section 4, the UBL provides that the enforcement authority may issue an order requiring action relative to the unsafe premises, including, in relevant part:

(1) vacating the unsafe building;
* * *
(6) demolition and removal of part of an unsafe building.

I.C. § 36-7-9-5(a). Thus, the enforcement authority may order the unsafe building to be vacated and partially demolished and removed.

[19] Here, the Board entered an order granting the City's request that the four unsafe apartments in the Home be removed. That process would necessitate the vacating, demolition, and removal of the unsafe apartments, all of which would effectively return the Home to a single-family home. Thus, the action ordered by the Board falls squarely within the ambit of the UBL's unambiguous provisions.

[20] In addition, we cannot agree with Andrade's characterization of the Board's order, as affirmed by the trial court, as one which sought to "merely enforce the Hammond Zoning Ordinance." (Appellant's Br. p. 16). Both Notices of Violation were issued pursuant to the UBL, not local zoning ordinances. The 2016 Notice alleged twelve groupings of impaired structural conditions, eleven groupings of fire hazards, and six groupings of statute or ordinance violations that did not pertain to zoning, so Andrade's contention that the City only asserted zoning ordinance violations as the basis for its enforcement action is factually incorrect. The Board exhibited no indication at the hearing in this matter that it acted under any other authority apart from the UBL. In its decision, the Board made detailed findings regarding conditions in the Home which rendered it unsafe under the UBL, including that the Home had impaired structural conditions and fire hazards. Findings and conclusions made by the Board that the Home was not a legal, non-conforming use or that the Home did not conform to current zoning laws may have been pertinent to explaining the history of how the Home came to be unsafe, but they did not convert this matter from one addressing unsafe conditions in the Home into a zoning enforcement action.

[21] We also note that Andrade's arguments on appeal are somewhat inconsistent with his counsel's acknowledgement at the Board hearing that the proceedings were based on the UBL and with his request that the Board focus on Andrade's contention that the Home was constructed as a multi-family structure. Andrade's counsel made it clear to the Board that the Home would no longer be profitable to Andrade if it were declared a single-family home. The Board's reference in its decision to the fact that the home was zoned for two units was pertinent to addressing that concern. Because the UBL provided the authority for the action ordered by the Board and the Board did not make any impermissible findings to support that action, we conclude that the Board did not exceed its statutory authority when it ordered Andrade to restore the Home to a single-family dwelling.

III. Sufficiency of the Evidence Supporting the Board's Order

[22] Andrade challenges the Board's finding, as upheld by the trial court, that the Home was constructed as a single-family home. Andrade contends that "[t]he Board's Order is without substantial evidence and not in accordance with law" because he met his burden of proof to show that the Home was constructed as a multi-family unit. (Appellant's Br. p. 19). Andrade's argument on this point is based upon his erroneous assertion that the Board acted as a zoning enforcement entity and that proof that the Home was originally built as a multi-family structure would bar the Board's order that he restore the Home to a single-family home.

[23] We agree with Appellees that this argument is misplaced, because the UBL provides that any order issued to address an unsafe building "supersedes any permit relating to building or land use , whether that permit is obtained before or after the order is issued." I.C. § 36-7-9-5(a) (emphasis added). Thus, for purposes of the UBL, it is of no moment how the property was originally built or zoned.

[24] Nevertheless, we will address the merits of Andrade's argument. Evidence was presented to the Board that the home was originally issued a building permit in 1927 for a nine-room frame, which indicated to Kearney that the home was built as a single-family home. The original building permit issued for the Home did not note that there would be apartments there, which Kearney indicated would typically have been noted if it were to be built as a multi-family structure. Koch testified that the Home did not have any structural elements typical of a multi-family structure built in 1927. Koch found the home comparable to many other single-family homes in the area built around 1927, and he expressed his opinion that the Home was built in 1927 as a single-family home. In light of this evidence that supports the Board's findings as affirmed by the trial court, we cannot say that the trial court's conclusion that the home was built in 1927 as a single-family home was clearly erroneous. Foursquare Tabernacle , 630 N.E.2d at 1386. Andrade simply directs our attention to evidence in the record that does not support the Board's and the trial court's conclusions, which is unpersuasive given that we do not substitute our judgment for that of the Board or redetermine the facts of the case. Kollar , 695 N.E.2d at 619.

IV. Discovery Violation

[25] Andrade's final argument is that the Board's order should be reversed because the City did not comply with his subpoena duces tecum , which he claims resulted in his inability to cross-examine the City's experts, Koch and Kearney. As a result of this non-compliance, Andrade contends that the "Board's decision was made without observance of procedure required by law." (Appellant's Br. p. 23). At the outset, we note that, contrary to Andrade's assertion on appeal, the trial court did not find that he had been "wholly precluded" from cross-examining the City's expert witnesses. (Appellant's Br. p. 25). Rather, the trial court found that the City's non-compliance merely had precluded Andrade from cross-examining the experts regarding their opinion that the Home did not meet the standards of the 1927 building code for multi-family dwellings.

[26] Pretrial discovery is meant to promote the interests of justice and prevent unfair surprise by allowing the defense adequate time to prepare. Jacobs v. State , 640 N.E.2d 61, 66 (Ind. Ct. App. 1994) (emphasis added), trans. denied . As a general matter, the proper remedy for a discovery violation is a continuance. Warren v. State , 725 N.E.2d 828, 832 (Ind. 2000). A failure to request a continuance upon moving to exclude evidence constitutes a waiver of any alleged error pertaining to noncompliance with a discovery order. Id. Here, although Andrade objected at the Board hearing on the basis that the City had not complied with his subpoena, he did not request a continuance or seek to exclude either Kearney's or Koch's testimony before the Board. Therefore, we conclude that Andrade has waived his claim.

[27] However, even if he had not waived his claim, we would not reverse the Board's decision. This matter commenced in March of 2013. Kearney testified at the first Board hearing on May 14, 2015, and the Lake County Superior Court remanded the matter for further proceedings on June 23, 2016, almost six months before the second hearing before the Board on January 12, 2017. In addition, Andrade deposed Koch on at least one occasion during the pendency of this matter. Despite being aware of the substance of Kearney's opinions, at no time did Andrade seek an order that the City comply with his subpoena or request that the Board exclude Kearny's or Koch's testimony or seek a continuance when the matter of the City's non-compliance came up during the January 12, 2017, hearing. Andrade provides us with no authority for his apparent proposition that the Board had an obligation, sua sponte , to enforce his discovery request. Given the length of time that Andrade was aware of the City experts' opinions and his failure to seek a remedy before or during the hearing in this matter, we conclude that Andrade was not unfairly surprised by the City's failure to comply with his subpoena.

[28] In addition, in his subpoena Andrade sought material relied upon by Kearney to form opinions relevant to iron support beams, rear stairway conditions, ceiling heights, electric meters, balloon framing, and basement window height. In its decision the Board found that the Home's chimney chase, inadequate fire separation among the floors of the Home, the lack of basement bedroom windows, and inadequate smoke detectors were all conditions that rendered the Home unsafe under the UBL. Those conditions had nothing to do with the materials sought by Andrade in his subpoena, and Andrade does not claim his ability to cross-examine the experts on those matters was limited. As a result, we find that the trial court's decision to uphold the Board's order, despite the City's lack of compliance with Andrade's subpoena, was not clearly erroneous.

Foursquare Tabernacle Church , 630 N.E.2d at 1386.

CONCLUSION

[29] Based on the foregoing, we conclude that the Board did not exceed its statutory authority when it ordered Andrade to restore the Home to a single-family dwelling. We also conclude that the Board's finding, as upheld by the trial court, that the Home was constructed as a single-family dwelling was supported by substantial evidence. Lastly, we conclude that the City's failure to comply with Andrade's discovery request does not merit reversal.

[30] Affirmed.

[31] Vaidik, C.J. and Kirsch, J., concur

      Andrade's contentions that the Board's actions were in violation of the Takings Clause and were an abuse of discretion are undeveloped and unsupported by cogent authority in contravention of Indiana Appellate Rule 46(A)(8)(a) (appellate argument must be supported by cogent argument supported by citations to authority). Those arguments are waived for our review. See Price v. Review Bd. of Indiana Dep't of Workforce Dev. , 2 N.E.3d 13, 16-17 (Ind. Ct. App. 2013) (finding appellant's argument waived for failure to provide cogent argument).

      The City argues that Andrade waived the issue of whether this matter was governed by the UBL, but it does not argue that Andrade waived his claim that the Board acted in excess of its statutory authority provided by the UBL.

      After Appellees filed their brief but before Andrade's Reply brief was due, the court handed down City of Charlestown v. Charlestown Pleasant Ridge Neighborhood Ass'n Corp. , No. 10A01-1712-CT-2896, 111 N.E.3d 199, 204-07, 2018 WL 4290649 (Ind. Ct. App. Sept. 10, 2018), which concerned interpretation of subsection (5) relating to buildings which are deemed unsafe due to a statutory or ordinance violation, which is only one of the six enumerated conditions which can cause a building to be considered unsafe under the UBL.

      Because Andrade only challenges that sufficiency of the evidence supporting these specific findings and not the Board's findings and conclusion regarding the actual unsafe conditions in the Home, we do not address the totality of the evidence supporting the Board's decision as upheld by the trial court.

      Inasmuch as Andrade raises a claim of impropiety or bias on the part of one of the Board members, we find that this argument was not raised at the trial court level and, therefore, is waived for our review. See Kollar , 695 N.E.2d at 622 ("A party may only obtain judicial review of issues that were properly raised to the trial court.").

      The portion of Andrade's argument based on Indiana Evidence Rule 705 was not raised to the trial court and is, therefore, waived for our review. Kollar , 695 N.E.2d at 622.


source: Caselaw Access Project

author: Najam, J., concurs.

license: Public Domain

text:
    J.S., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-826
    Court of Appeals of Indiana.
    FILED November 19, 2018
    Case Summary
    [1] J.S. was adjudicated a delinquent child with true findings for: (1) Dangerous Possession of a Firearm, a Class A misdemeanor; and (2) Resisting Law Enforcement, an act that would be a Class A misdemeanor if committed by an adult. J.S. now challenges the sufficiency of the evidence supporting his true finding for Dangerous Possession of a Firearm. We affirm.
    Facts and Procedural History
    [2] On October 18, 2017, the Indianapolis Metropolitan Police Department learned that a juvenile-other than J.S.-had stolen a vehicle and a firearm from his parents. That evening, Officer Nicholas Snow ("Officer Snow") encountered a vehicle matching the description of the stolen vehicle, with three occupants inside. Officer Snow began following the vehicle and contacted additional officers. The plan was to conduct a tactical stop for officer safety, ordering the occupants out of the vehicle one at a time. Among the responding officers was Officer William Hornaday ("Officer Hornaday"), who assisted with the stop.
    [3] The officers first ordered the driver out of the vehicle. Thereafter, the front passenger ran from the vehicle. Officer Hornaday ran after the individual. Meanwhile, Officer Snow took note of the individual's appearance, observing that the individual was a Hispanic male wearing white shoes, dark pants, and a white shirt under a sweatshirt. The individual was holding a black object. Although Officer Snow could not readily identify the object, whether it was through his training-or "the way [the individual] was holding whatever it was"-Officer Snow "believed it to be a gun so much so that [he] got on the radio and ... said that [the individual] was armed." Tr. Vol. II at 16-17.
    [4] Officer Hornaday pursued the individual through a residential area, into a dark area between houses. Officer Hornaday lost sight of the individual, but then found a black gun on the ground nearby. A few blocks away, Officer Ryan Deakin ("Officer Deakin") saw a Hispanic male running toward him wearing white shoes, dark pants, and a white t-shirt. Officer Deakin arrested the person-later identified as J.S.-who complained that he was cold. When Officer Deakin said that J.S. should not have taken off his sweatshirt, J.S. laughed. At this time, J.S. did not have a firearm but did have a cell phone that kept ringing. J.S. was transported to the area of the vehicle stop, where Officer Snow identified J.S. as the passenger who fled. J.S. was sweating and was uncooperative with the officers. Around that time, J.S. was near the two other individuals who had been in the vehicle. J.S. tried to make eye contact with them. Eventually, the three of them were placed together inside a transport vehicle, and a conversation ensued in Spanish. One individual called J.S. a dumbass, and J.S. said "I can't believe they got me" or "I thought that I was going to get away and not get caught." Id. at 81. At some point, law enforcement recovered contraband from the center console of the stolen vehicle.
    [5] The State filed a petition alleging that J.S. was a delinquent child for conduct related to the firearm, the contraband in the console, and the flight from law enforcement. After a denial hearing, the juvenile court entered true findings for Dangerous Possession of a Firearm and Resisting Law Enforcement. The juvenile court adjudicated J.S. a delinquent child and placed him on probation with a suspended commitment to the Indiana Department of Correction.
    [6] J.S. now appeals.
    Discussion and Decision
    [7] A true finding "must be based upon proof beyond a reasonable doubt." I.C. § 31-37-14-1. When reviewing a challenge to the sufficiency of evidence supporting a true finding, "we do not reweigh the evidence or judge witness credibility." B.T.E. v. State , 108 N.E.3d 322, 326 (Ind. 2018). Rather, "[w]e consider only the evidence favorable to the judgment and the reasonable inferences supporting it." Id. We will affirm the judgment so long as there is "substantial evidence of probative value ... from which a reasonable fact finder could conclude beyond a reasonable doubt" that the juvenile engaged in the unlawful conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008).
    [8] J.S. challenges only his true finding for Dangerous Possession of a Firearm. Indiana Code Section 35-47-10-5(a) provides, in pertinent part, that "[a] child who knowingly, intentionally, or recklessly possesses a firearm ... commits dangerous possession of a firearm, a Class A misdemeanor." Moreover, "[a] person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." I.C. § 35-41-2-2.
    [9] At the denial hearing, J.S. pursued a defense of mistaken identity-but the State presented ample evidence that J.S. was the person who fled. Indeed, among the evidence was testimony from Officer Snow, who identified J.S. as the person he saw running from the vehicle. There was also evidence of the incriminating conversation between J.S. and the others from the vehicle. In now pursuing his appeal, J.S. does not focus on evidence of his identity. Rather, he challenges whether the State presented sufficient evidence that he possessed a firearm.
    [10] It is well-settled that possession can be actual or constructive, with "[a]ctual possession occur[ing] when a person has direct physical control over the item." Henderson v. State , 715 N.E.2d 833, 835 (Ind. 1999). According to J.S., a theory of actual possession cannot support his true finding because he "was not found in direct physical control of the gun." Br. of Appellant at 13. Yet, the evidence favorable to the adjudication indicates that law enforcement found a black firearm along the route J.S. took when he fled-shortly after Officer Snow saw J.S. clutching a black object, and suspected the object was a firearm. A fact-finder may consider flight to be "circumstantial evidence of consciousness of guilt." Myers v. State , 27 N.E.3d 1069, 1077 (Ind. 2015) (quoting Brown v. State , 563 N.E.2d 103, 107 (Ind. 1990) ). Furthermore, there was no explanation for the firearm on the ground, other than pure coincidence.
    [11] J.S. minimizes the evidence against him, arguing that it "establishes a possibility J.S. may have possessed a firearm but it falls far short of proof beyond a reasonable doubt." Br. of Appellant at 13. As to any inference to be drawn from his flight, J.S. argues that he could have fled for other reasons-"because he knew drugs and paraphernalia would be found in the vehicle"-and that, "[w]hatever his motive, at best it has a tenuous connection to possession of a firearm." Id. at 15. J.S. also speculates that the object might have been a cell phone, "which could readily have been mistaken for a weapon during the heightened tensions present in a 'high risk' traffic stop." Id. at 14. J.S. also focuses on other exculpatory evidence, including evidence that he was "excluded ... as the source" of fingerprints found on the firearm. Id. at 15.
    [12] Yet, we cannot reweigh the evidence, from which a reasonable fact-finder could conclude-beyond a reasonable doubt-that when J.S. fled from the vehicle, he knowingly and actually possessed the black firearm recovered along his route. Thus, we conclude that there is sufficient evidence to support the true finding.
    [13] Affirmed.

      Ind. Code § 35-47-10-5(a).

      I.C. § 35-44.1-3-1(a)(3).

      On October 25, 2018, we held oral argument at Princeton Community High School in Gibson County. We thank the staff and students for their hospitality, and thank counsel for their skilled advocacy.

      An officer who overheard this conversation offered both statements as possible translations.

   Najam, J., concurs.

May, J., concurs in result with opinion.

May, Judge, concurring in result.

[1] I write separately to note the discrepancy between Officer Snow's testimony at trial and his Probable Cause Affidavit. In the Probable Cause Affidavit, Officer Snow reported:

[T]he passenger of the vehicle the front seat passenger fled on foot. The male was described as a Hispanic male approximately 5-09 wearing a blue sweatshirt with a white undershirt and black jeans. Officer Snow observed this male to be gripping his waist band as he ran east bound from the location of the traffic stop. Officer Hornaday gave chase on foot and began yelling loud verbal commands to the male, identifying himself as the police and commanding the male to stop running. While Officer Hornaday was giving chase, Officer Hornaday located a black semi-automatic Springfield 9mm XD-9 handgun with serial number MG727669 and a magazine loaded with 6 live 9mm rounds, in front of 6038 Allendale Dr, in the direct path of where the male was running.

(App. Vol. II at 18) (errors in original).

[2] However, at trial Officer Snow testified, regarding the same series of events:

[Prosecutor]: And when the suspect who was in the vehicle ran, did you get a look at him?
[Officer Snow]: I did sir. He was wearing a blue hooded sweatshirt, a white shirt. I remember it being out from underneath the blue hooded sweatshirt. Dark blue jeans and white tennis shoes and he was clutching a black object in his hand. And when he ran he turned and looked at me to the point where I could see from this side of his nose to his ear as he turned. I couldn't readily identify exactly what was in his hand. I was, through my training experience the way he was holding whatever it was, I believed it be to a gun so much so that I got on the radio and I said that he was armed.
[Prosecutor]: After the suspect ran, what did you do?
[Officer Snow]: There was another officer to my right, Officer Hornaday, he gave chase....

(Tr. Vol. II at 16-7.) On cross-examination, J.S.'s counsel questioned Officer Snow about the details of the encounter, but counsel did not attempt to impeach Officer Snow with the discrepancies in his iterations of the events, specifically, the lack of information regarding something he believed to be a gun in J.S.'s hand when he fled from the passenger side of the vehicle.

[3] As a result of the failure to point out the difference between Officer Snow's account of the incident in the Probable Cause Affidavit and his testimony at trial, the only evidence heard by the trial court judge was that Officer Snow observed a black object, which he believed to be a gun, in J.S.'s hand. Because of our standard of review, I concur in result.


author: Vaidik, Chief Judge.

text:
    Oscar FLORES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1632
    Court of Appeals of Indiana.
    Filed November 21, 2018
    Attorney for Appellant: David Becsey, Zeigler Cohen & Koch, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Oscar Flores was convicted of two counts of Level 4 felony child molesting of his niece-one for fondling and the other for touching. He now appeals, arguing that the fondling and touching occurred during a single transaction and therefore one of his convictions should be vacated under the continuous-crime doctrine. We agree with Flores and therefore reverse and remand with instructions for the trial court to vacate one of his convictions.

Facts and Procedural History

[2] Flores is C.G.'s uncle by marriage. One night in the spring of 2016, twelve-year-old C.G. spent the night at her aunt and Flores's house. After helping get her younger cousins to sleep, C.G. went to sleep alone in her cousin's bed. Later that night, C.G., who was sleeping on her side, woke up when she heard a zipper and felt "somebody touch[ing] [her]" from behind. Tr. Vol. II p. 39. C.G.'s pants and underwear were about halfway down in the back. C.G. then felt a penis touching "in between" her "butt cheeks" and fingers touching her vagina under her pants but on top of her underwear. Id. at 43. Scared, C.G. rolled off the bed, at which point she saw that Flores was the one who had touched her.

[3] The State charged Flores with two counts of Level 4 felony child molesting under Indiana Code section 35-42-4-3(b), one for "fondling" C.G. with the intent to arouse or satisfy sexual desires and the other for "touching" C.G. with the intent to arouse or satisfy sexual desires. Appellant's App. Vol. II p. 20. A jury trial was held. During closing arguments, the State argued that Flores "touched and fondled" C.G. during an "event" where he touched C.G.'s butt cheeks and vagina. Tr. Vol. II pp. 175-78. The jury found Flores guilty on both counts, and the trial court sentenced him to concurrent terms of ten years.

[4] Flores now appeals.

Discussion and Decision

[5] Flores contends that his two convictions for Level 4 felony child molesting violate the continuous-crime doctrine.

The continuous-crime doctrine is a rule of statutory construction and common law limited to situations where a defendant has been charged multiple times with the same "continuous" offense. Hines v. State , 30 N.E.3d 1216, 1219 (Ind. 2015). The doctrine does not seek to reconcile the double-jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant's conduct amounts only to a single chargeable crime. Id. A crime that is continuous in its purpose and objective is deemed to be a single uninterrupted transaction. Id. at 1220. In addition, offenses are deemed to be one continuous transaction when they are closely connected in time, place, and continuity of action. Id.

[6] Flores argues that Chavez v. State , 988 N.E.2d 1226 (Ind. Ct. App. 2013), trans. denied , is controlling. We agree. In Chavez , the defendant was alone in a room with eight-year-old K.W. when he kissed K.W. on the mouth and inserted his tongue into her mouth. While kissing her, the defendant placed his hand underneath K.W.'s shirt and rubbed her nipple and held his hand on her buttocks. K.W. then left the room. K.W. later returned to the room, and a second encounter ensued. The defendant again kissed K.W. on the mouth and inserted his tongue into her mouth. While kissing her, the defendant placed his hand, over K.W.'s clothes, on her vagina. As to the first encounter, the State charged the defendant with three counts of Class C felony child molesting (touching or fondling with intent to arouse or satisfy sexual desires), citing the acts of kissing K.W., touching her nipple, and touching her buttocks. As to the second encounter, the State charged the defendant with two counts of Class C felony child molesting (touching or fondling with intent to arouse or satisfy sexual desires), citing the acts of kissing K.W. and touching her vagina over her clothes. The defendant was convicted on all five counts.

[7] On appeal, the defendant argued that his five acts were "one chargeable crime" under the continuous-crime doctrine. Id. at 1228. We concluded that the defendant committed two chargeable acts of child molesting, not five. Id. at 1229. As to the first encounter, we acknowledged that the defendant committed three different acts; however, we concluded that the acts of touching K.W.'s nipple and buttocks "[w]hile kissing her " were closely connected in time, place, and continuity of action and therefore constituted a single transaction. Id. We applied the same logic and reasoning to the second encounter. See id. at 1229-30. We therefore reversed and remanded with instructions for the trial court to vacate three of the defendant's five convictions.

[8] The reasoning and logic of Chavez apply here. That is, the evidence shows that Flores put his penis between C.G.'s butt cheeks while he touched her vagina over her underwear. See Tr. Vol. II pp. 43-44. Just as in Chavez , these acts were closely connected in time, place, and continuity of action and therefore constitute a single transaction. 988 N.E.2d at 1229-30. Despite Flores's heavy reliance on Chavez , the State makes no effort at all to distinguish the two cases. Because Flores's conduct amounts only to a single chargeable crime, we reverse and remand with instructions for the trial court to vacate one of his convictions.

[9] Reversed in part and remanded.

Mathias, J., and Crone, J., concur.

      The transcript refers to the victim as "Alleged Victim" or "A.V." See Tr. Table of Contents p. 2.

      Indiana case law alternates between "continuing" crime doctrine and "continuous" crime doctrine. Because the Indiana Supreme Court referred to it as the "continuous" crime doctrine in its 2015 decision in Hines v. State , 30 N.E.3d 1216 (Ind. 2015), so do we.


author: Pyle, Judge.

text:
    Michael HODGES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-MI-78
    Court of Appeals of Indiana.
    FILED November 21, 2018
    Attorney for Appellant: Matthew Abels, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
   Pyle, Judge.

Statement of the Case

[1] Michael Hodges ("Hodges") appeals the trial court's order granting the State's motion to transfer $60,990 of his money to the United States. Hodges argues that the seizure of his money was unlawful because it exceeded the scope of the search warrant. Concluding that the seizure was unlawful, we reverse the trial court's order granting the State's motion to turn the currency over to the United States and remand with instructions to the trial court to order the return of the money to Hodges.

[2] We reverse and remand with instructions.

Issue

Whether the trial court's order granting the State's motion to transfer Hodges' money to the United States was erroneous.

Facts

[3] In October 2017, Indianapolis Metropolitan Police Department Detective Brian Thorla ("Detective Thorla") was inspecting unopened packages at a local parcel shipping company when he noticed a suspicious package addressed from Hodges in Illinois to Christopher Smith in California. Specifically, Detective Thorla concluded that the package was suspicious because: (1) the shipping cost was paid in cash; (2) no signature was required at the time of the package's delivery; (3) additional tape was added to a self-sealing box; and (4) the shipping box was a new box from the shipping company. Detective Thorla set the package aside, and his K9 partner, Hogan ("K9 Hogan"), later conducted a dog sniff of it. After K9 Hogan gave a positive alert to the package, which indicated the presence of the odor of controlled substances, the detective sought and received a search warrant, which authorized law enforcement officers to open the package and search for: "Illegal Controlled substances (Marijuana, Methamphetamine, Cocaine, Heroin, MDMA) also records of drug trafficking and proceeds of drug trafficking, bulk cash smuggling, money laundering, involving the proactive attempts of concealing currency as listed in the affidavit; as well as money orders and gift cards." (App. 23). The search warrant also authorized law enforcement officers to "seize such property, or any part thereof, found on such search." (App. 23).

[4] When Detective Thorla opened the package, he discovered vacuum sealed packets of United States currency. The packets contained a large quantity of twenty-dollar bills, which were wrapped tightly in rubber bands. The seized currency was removed from the sealed packets and hidden in another room where K9 Hogan gave another positive alert, which indicated the presence of the odor of controlled substances on the currency. Based on his training and experience, Detective Thorla recognized these factors to be indicators that the currency was the proceeds of drug trafficking.

[5] In November 2017, the State filed a motion to transfer the seized money to the United States. Specifically, pursuant to INDIANA CODE § 35-33-5-5, the State alleged that during the execution of a search warrant, "U.S. Currency was discovered and confiscated as proceeds of narcotics trafficking under Ind. Code Ann. 35-48-4-1 and money laundering under Ind. Code Ann. 35-45-15-4 [.]" (App. 6). Based on the allegation, the State "move[d] the [trial] court to issue a Turnover Order authorizing the State to turn over to the appropriate federal authority certain property seized from [Michael Hodges] and held by the State for forfeiture." (App. 6).

[6] Hodges filed an answer objecting to the State's motion to transfer wherein he argued that the seizure of the $60,990 was unlawful because it exceeded the scope of the search warrant. In support of his objection, Hodges cited Bowman v. State , 81 N.E.3d 1127 (Ind. Ct. App. 2017), modified on denial of rehearing, trans. denied, cert. denied , which involved the same detective and facts similar to his own case.

[7] Specifically, in Bowman , Detective Thorla obtained a search warrant to open and search two suspicious parcels "for controlled substances, records of drug trafficking, and proceeds of drug trafficking." Bowman , 81 N.E.3d at 1128. One parcel was sent by Bowman in Illinois to Jacob Murphy ("Murphy") in California, and the second parcel was sent by Tommy Maurry ("Maurry") in Illinois to Murphy in California. Law enforcement officials found $15,000 in each parcel and seized the $30,000. The State filed motions to transfer the $30,000 to the United States. After concluding that the appearance of the parcels, the excessive taping, the type of shipping and payment, the multiple parcels to the same destination in a known controlled substance import-export state, the positive K9 alert to the presence of the odor of controlled substances, and the reasonable inferences to be drawn therefrom constituted probable cause to authorize the seizure, the trial court granted the State's motion.

[8] On appeal, Bowman, Murphy, and Maurry argued that the seizure of the $30,000 was unlawful because the seizure went beyond the scope of the search warrant. This Court agreed. Id. at 1131. Specifically, we explained that the only evidence that this money was obtained through drug trafficking was: (1) the parcels were being shipped to California; (2) they were being sent to the same recipient; (3) they were heavily taped; (4) they were shipped priority overnight; and (5) a K9 unit alerted to the parcels. Id. at 1130. We further explained the insignificance of this evidence as it related to drug trafficking as follows:

We can easily dispense with the first four pieces of evidence. We are confident that a voluminous number of parcels meeting those criteria and having nothing to do with drug trafficking are shipped in this country every day. If all money shipped in heavily taped parcels mailed to California via priority overnight mail could be seized as proceeds of drug trafficking, many last-minute gift recipients at holiday and birthday time would be sorely disappointed (and surprised).

Id. We also explained that the remaining fact that a K9 unit gave positive alerts on both parcels meant only that at some point, someone handling the parcels transferred an odor of controlled substances to them. Id. We further explained that this could have been the parcels' senders or any number of individuals involved with handling the parcels in transit. Id.

[9] We concluded that where no evidence of drug trafficking or any other unlawful activity was found in the parcels and neither the senders nor the recipient had been charged with any state or federal offenses in connection with the parcels, no reasonable person would conclude that the currency discovered in the parcels was the proceeds of drug trafficking. Id. at 1131. Accordingly, we further concluded that the seizure was unlawful, and the trial court's order granting the State's motion to turn the currency over to the United States was erroneous. Id. We therefore reversed and remanded with instructions to order the return of the currency to the appellants. Id.

[10] In his answer objecting to the State's motion to transfer his $60,990 to the United States, Hodges argued that:

14. The same analysis the Court of Appeals applied in Bowman to reverse the trial court's order granting the turnover order request should apply to this case. Detective Thorla cited the same essential factors in this case for deeming the package suspicious as he did in Bowman . This case involves a positive dog alert but no additional evidence of criminality once the package was opened just as in Bowman . The Court of Appeals in Bowman clearly explained that a positive dog alert could be completely consistent with legal activity ....
15. It makes no difference that the State has amended its search warrant affidavit and/or the search warrant to include a request to seize records or proceeds of "bulk cash smuggling" or "money laundering" in addition to its previous request in Bowman to search for "proceeds of drug trafficking", because the State still has presented insufficient evidence that the money seized in this case is records or proceeds of any of those things. The fact that a dog alerted to the package is no more an indication it is evidence that the money is proceeds of "money laundering or "bulk cash smuggling" no more so than it was considered evidence that the money was proceeds of drug trafficking in Bowman .
16. Based on the holding of Bowman and the information presented in the search warrant and search warrant affidavit of this case, defendant would request the court deny the State's turnover request in this case, because the seizure of the currency was unlawful just as it was in Bowman .

(App. 14).

[11] At a hearing on the turnover order, Hodges testified that he is an NBA agent and that he also owns a company that resells tickets to sporting events. He explained that the $60,990 belonged to him and that he had sent it to a contact in California to purchase a large number of World Series tickets that he had planned to resell. Hodges denied obtaining the $60,990 from selling drugs or other illegal activity. It does not appear that Hodges was charged with any state or federal offenses in connection with the parcel.

[12] After the parties had presented evidence, the following colloquy ensued:

Trial Court: So, in Bowman that it appears from my reading the case that affidavit said proceeds from drug trafficking. So, Bowman had to determine was - were these proceeds from drug trafficking? Here, our affidavit does not say just proceeds of drug trafficking, correct?
State: That's correct.
Trial Court: It says bulk cash smuggling.
State: Correct.
Trial Court: So, do I even need to determine whether this cash is connected to drugs?
State: No, you don't. It could be just bulk cash smuggling.
Trial Court: And did the evidence show bulk cash?
State: Yes, it did.
Trial Court: And would that give me probabl[e] cause to find, okay, this could be - could be legitimate, could not be legitimate, but is this probable cause for bulk cash smuggling?
State: That would be our argument, Judge. That's where we would be coming from.
* * * * * * * *
Trial Court: Bowman does create an exception which is if the seizure went beyond the search warrant. In Bowman , the search warrant was only for proceeds of drug trafficking. In this case, the search warrant was for something greater, specifically identified bulk cash. I think the evidence presented shows that this does not go beyond the search warrant. As such, I think there is probabl[e] cause for the seizure based on the search warrant, based on what was discovered, and I will be Granting the Motion to Transfer this over.

(Tr. 49-50, 55-56).

[13] Hodges now appeals the trial court's grant of the State's motion to transfer his money to the United States.

Decision

[14] At the outset, we note United States Supreme Court Justice Clarence Thomas' recent commentary on forfeiture:

Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes.... [C]ivil forfeiture has in recent decades become widespread and highly profitable.... And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.... This system - where police can seize property with limited judicial oversight and retain it for their own use - has led to egregious and well-chronicled abuses.

Leonard v. Texas , --- U.S. ----, 137 S.Ct. 847, 847-48, 197 L.Ed.2d 474 (2017) (Justice Thomas respecting the denial of certiorari ) (emphasis added).

[15] We now turn to Hodges' argument that the seizure of his money went beyond the scope of the search warrant. This presents a question of law, to which we apply a de novo standard of review. See Bowman , 81 N.E.3d at 1129.

[16] The statute authorizing the turnover of seized property provides as follows:

Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interest of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616(a), or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.

IND. CODE § 35-33-5-5. However, both the Indiana Supreme Court and this Court have held that if the seizure order was unlawful, the turnover order must be reversed. See Membres v. State , 889 N.E.2d 265, 268 (Ind. 2008) ; Bowman , 81 N.E.3d at 1129.

[17] Here, as we did in Bowman , we must determine whether the seizure of Hodges' money was unlawful. Further, as we explained in Bowman :

A search warrant must describe 'with particularity ... the items to be seized.' Pavey v. State , 764 N.E.2d 692, 702 (Ind. Ct. App. 2002). This requirement 'restricts the scope of the search, authorizing seizure of only those things described in the warrant....' Id. An exact description is not required, but the items to be searched for must be described with some specificity. Overstreet v. State , 783 N.E.2d 1140, 1158 (Ind. 2003).

Bowman , 81 N.E.3d at 1129-30.

[18] The search warrant in this case authorized law enforcement officers to open and search the package for "Illegal Controlled substances (Marijuana, Methamphetamine, Cocaine, Heroin, MDMA) also records of drug trafficking and proceeds of drug trafficking, bulk cash smuggling, money laundering, involving the proactive attempts of concealing currency as listed in the affidavit; as well as money orders and gift cards." (App. 23). Therefore, the only way in which the seizure of Hodges' currency falls under the search warrant is if it can reasonably be concluded to be "proceeds of drug trafficking, bulk cash smuggling, [or] money laundering."

[19] The trial court in this case correctly pointed out that although the search warrant in Bowman authorized the seizure of only the proceeds of drug trafficking, the search warrant in this case also included the proceeds of bulk cash smuggling or money laundering. The trial court then concluded that it did not need to determine whether the currency was connection to drug trafficking because there was evidence that it was the proceeds of bulk cash smuggling. Based on this alleged evidence of bulk cash smuggling, the trial court further concluded that the seizure of Hodges' $60,990 was lawful.

[20] First, although the search warrant authorized law enforcement officers to search for the proceeds of drug trafficking, money laundering, and bulk cash smuggling, the State's motion to transfer the seized money to the United States alleged only that the money had been confiscated as proceeds of narcotics trafficking and money laundering. The State's motion no longer mentioned bulk cash smuggling.

[21] We further note that Indiana statutes include neither the offense nor the definition of bulk cash smuggling. Rather, bulk cash smuggling is a federal offense, which is codified at 31 UNITED STATES CODE § 5332. Specifically, this statute provides that it is unlawful to knowingly conceal more than $10,000 in currency or other monetary instruments on a person or in a container and to transport or attempt to transport this currency across the border of the United States with the intent to avoid currency reporting requirements.

[22] Even if we were to apply this definition of bulk cash smuggling to the facts of this case, we find absolutely no evidence that Hodges attempted to transport his money across the United States' border with the intent to avoid currency reporting requirements. Rather, the parties agree that Hodges attempted to ship the currency from Illinois to California. Based on these facts, no reasonable person could conclude that the currency discovered in the parcel was the proceeds of bulk cash smuggling.

[23] With regard to the State's argument that the currency in the parcel was the proceeds of drug trafficking, we note that the facts before us are analogous to those in Bowman . Specifically, without more, Hodges' method of payment, his use of extra tape, his use of a new shipping company box, and his failure to require a delivery signature are not indicative of drug trafficking. See id. We agree with Bowman that many parcels meeting these criteria and having nothing to do with drug trafficking are shipped in this country every day. See id. We further agree with Bowman that the fact that a K9 alerts to a parcel, or even cash, means only that at some point, someone handling the parcels and the cash transferred the odor of controlled substances to them. See id. Based on these facts, no reasonable person could conclude that currency discovered in the parcels was the proceeds of drug trafficking. See id.

[24] Lastly, the State also argues that the currency was evidence of money laundering. INDIANA CODE § 35-45-15-4 provides that money laundering is the knowing or intentional transfer of the proceeds of criminal activity. Where we have already determined that there is no evidence that Hodges' currency was the proceeds of criminal activity, no reasonable person could conclude that the currency discovered in the parcel was the proceeds of money laundering.

[25] As we explained in Bowman , 81 N.E.3d at 1131, where no evidence of unlawful activity was found in the parcel, and there has been no allegation that Hodges has been charged with any state or federal offenses in connection with the parcel, no reasonable person would conclude that the currency discovered in the parcel was the proceeds of bulk cash smuggling, drug trafficking, or money laundering. The seizure of the currency was therefore unlawful, and the trial court's order granting the State's motion to turn the currency over to the United States was erroneous. See id. We therefore reverse and remand this case with instruction to the trial court to order the return of the currency to Hodges.

[26] Reversed and remanded.

Vaidik, C.J., and Barnes, Sr.J., concur.


author: Robb, Judge.

text:
    Jason M. MORRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1738
    Court of Appeals of Indiana.
    FILED November 21, 2018
    Attorney for Appellant: Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issues

[1] After Jason Morris was convicted and sentenced in city court, he sought a trial de novo in superior court. Following a bench trial, the trial court found Morris guilty of public indecency, a Class A misdemeanor, and sentenced him to one year executed. This case presents three issues for our review: (1) whether the evidence is sufficient to sustain Morris' conviction; (2) whether the trial court abused its discretion by imposing a harsher sentence than the city court; and (3) whether Morris' sentence is inappropriate in light of the nature of the offense and his character. Concluding the evidence is sufficient to support Morris' conviction, the trial court did not abuse its discretion in sentencing Morris, and Morris' sentence is not inappropriate, we affirm.

Facts and Procedural History

[2] In April 2016, Morris picked up fourteen-year-old M.Mc. for an arranged sleep over with his stepdaughter, M.M. Morris was accompanied by a friend, Leann, and his younger daughter. Before returning to his house, Morris dropped his younger daughter off at a class and then drove to Goshen General Hospital so Leann could drop something off. Morris parked near the main entrance of the hospital and Morris and M.Mc. remained in his truck while Leann went inside. M.Mc. asked Morris for a cigarette and he asked M.Mc. what she was "going to do for it[?]" Transcript, Volume II at 41. Morris began discussing a 2015 pool party that Morris, his wife, M.Mc., and M.M. attended where Morris' wife had "pantsed him[,]" and M.Mc.

caught a glimpse of Morris' penis. Id. at 40. Morris asked M.Mc. if she "liked seeing [his penis]" and asked her if she would mind seeing it again. Id. at 41. After M.Mc. declined, Morris unzipped his pants and exposed his penis. Id. Although M.Mc. was sitting in the back seat of the truck, she testified that she saw Morris' genitals when he exposed himself to her. M.Mc. looked away, stated she needed to use the restroom, and the two went inside the hospital. After M.Mc. used the restroom, Leann was ready and the three left.

[3] M.Mc. then went to Morris' home for the sleepover with M.M., revealed the incident to M.M., and attempted to contact her mother. The next day, Morris' wife confronted M.Mc. and accused her of stealing cigarettes. Ultimately, M.Mc. went home early, but prior to leaving, someone in Morris' family "threatened to kill [her] family if [she] said anything." Id. at 46. Because M.Mc. was "distraught, shaking, upset, and crying" when she returned, her mother took her to see her therapist and M.Mc. disclosed the incident, which the therapist then reported to child protective services. Brief of Appellee at 7; see also Tr., Vol. II at 67, 77

[4] In December 2016, the State charged Morris with public indecency, a Class A misdemeanor. Morris was first tried in in Goshen City Court on May 25, 2017, and was found guilty of public indecency and sentenced to a one-year suspended sentence with reporting probation. Morris subsequently sought a trial de novo by filing a notice of appeal and the case was transferred to the Elkhart Superior Court. Following a bench trial on June 4, 2018, during which M.Mc. testified, the trial court found Morris guilty and sentenced him to one year executed in the county jail. Morris now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[5] Morris challenges the sufficiency of the evidence supporting his conviction. Specifically, he contends his conviction was based solely on M.Mc.'s testimony, which he alleges was "not substantively corroborated by other evidence in the record" and her "mere allegations[,]" absent corroborating evidence, do not satisfy the burden of proof. Appellant's Brief at 10.

[6] Our standard of review for sufficiency of the evidence claims is well settled. D.J. v. State , 88 N.E.3d 236, 241 (Ind. Ct. App. 2017). Upon review, we do not reweigh the evidence or judge the credibility of the witnesses. Purvis v. State , 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the evidence most favorable to the verdict and the reasonable inferences drawn therefrom. Id. We will affirm a defendant's conviction if "there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Stewart v. State , 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).

[7] To convict Morris, the State was required prove each element of public indecency beyond a reasonable doubt. Ind. Code § 35-41-4-1(a). "A person who knowingly or intentionally, in a public place ... appears in a state of nudity with the intent to arouse the sexual desires of the person or another person ... commits public indecency, a Class A misdemeanor." Ind. Code § 35-45-4-1(a)(3).

[8] After the bench trial, the trial court found:

Considering all of the evidence, the credible testimony of [M.Mc.] and her mother, and the inconsistent and contradictory explanations provided by [Morris], the Court finds, beyond a reasonable doubt, that [Morris] committed the crime of Public Indecency. The Court finds that the parking lot of the Goshen Hospital is a 'public place' under Indiana Code § 35-45-4-1. The Court observed many different individuals in the parking lot, going in and out of the hospital, and driving around near [Morris'] red truck. The Court also finds that in exposing his penis, [Morris] had the intent to arouse the sexual desires of himself or of [M.Mc.].

Appellant's Appendix, Volume 2 at 106.

[9] Morris argues M.Mc.'s testimony, without corroborating evidence, is not sufficient to support his conviction and that reliance solely upon M.Mc.'s testimony is problematic under the incredible dubiosity rule. The incredible dubiosity rule allows this court to "impinge upon a [fact finder's] responsibility to judge the credibility of the witnesses only when confronted with 'inherently improbable' testimony." Moore v. State , 27 N.E.3d 749, 754 (Ind. 2015). The rule is applied in limited circumstances, namely where there is "1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence." Id. at 756. Application of the incredible dubiosity rule is "rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it." Love v. State , 761 N.E.2d 806, 810 (Ind. 2002).

[10] In applying these factors, we conclude the incredible dubiosity rule is inapplicable to the present case as there were multiple testifying witnesses and M.Mc.'s testimony was not inconsistent within itself. See Smith v. State , 34 N.E.3d 1211, 1221 (Ind. 2015) (explaining that the second prong is satisfied "only when the witness's trial testimony was inconsistent within itself, not that it was inconsistent with other evidence or prior testimony"). After hearing the evidence, the trial court explained in its order that it found M.Mc.'s testimony credible:

[Morris] wants the Court to believe that [M.Mc.] made up a story that [Morris] exposed his penis to her; told the false story to her therapist at the Bowen Center; told the same false story to a detective during a formal interview; lied under oath to the Judge of the Goshen City Court during the first bench trial; then lied again, under oath, to this Court. Such a conclusion is not reasonable.

Appellant's App., Vol. 2 at 105.

[11] Moreover, M.Mc.'s testimony cannot be considered "inherently improbable" because evidence presented at trial corroborated her testimony. First, M.Mc.'s mother testified that M.Mc. was "distraught," shaking, and crying when she picked M.Mc. up and drove her to the Bowen Center to see her therapist where M.Mc. disclosed the incident to her mother and her therapist. Tr., Vol. II at 77. Second, the detective assigned to the case conducted a formal interview with M.Mc. and testified that M.Mc. told him that Morris exposed himself to her in the parking lot of Goshen Hospital. Lastly, the State introduced a Goshen Hospital surveillance video from the date of the incident showing Morris and M.Mc. walking into the hospital together, substantiating M.Mc.'s testimony.

[12] Even absent any corroborating evidence of M.Mc.'s testimony, however, it is well settled that the uncorroborated testimony of a single witness can be sufficient to sustain a conviction on appeal, Bailey v. State , 979 N.E.2d 133, 135 (Ind. 2012), and Morris concedes this in his brief. See Appellant's Br. at 11-12. Therefore, M.Mc.'s testimony alone is sufficient to sustain Morris' conviction.

[13] Additionally, Morris contends that it is our role "to assess the caliber and quality of the relevant evidence[.]" Id. at 12. In its order, the trial court stated it had "consider[ed] each witness' ability and opportunity to observe; the behavior of each witness while testifying; any interest, bias, or prejudice each witness may have; any relationship each witness had with others involved in the case; and the reasonableness of each witness' testimony considering the other evidence" in making its findings, ultimately finding M.Mc.'s testimony credible. Appellant's App., Vol. 2 at 105. Morris' argument is an improper invitation for this court to reweigh the evidence, which we cannot accept. See Purvis , 87 N.E.3d at 1124.

[14] The record reveals "substantial evidence of probative value" supporting each element of public indecency from which a reasonable trier of fact could have found Morris guilty beyond a reasonable doubt. Stewart , 866 N.E.2d at 862. Therefore, the evidence is sufficient to support Morris' conviction.

II. Sentencing

A. Abuse of Discretion

[15] Morris contends the trial court abused its discretion by imposing a harsher sentence than what the city court imposed because doing so is contrary to Indiana law and violates due process. Sentencing decisions are within the sound discretion of the trial court and this court reviews only for an abuse of discretion. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g , 875 N.E.2d 218 (2007). A trial court abuses its discretion when its decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Stokes v. State , 947 N.E.2d 1033, 1036 (Ind. Ct. App. 2011), trans. denied .

[16] Morris relies on three Indiana cases from the 1970s which "stand for the proposition that the trial court's imposition of a more severe sentence than the Goshen City Court sentence in this case is improper and should be corrected." Appellant's Br. at 17. Although the cases Morris cites precluded the imposition of a greater sentence on retrial after an appeal from a lower court, these cases were decided prior to our supreme court's adoption of the Indiana Trial De Novo Rules, effective January 1, 1998. These rules were adopted pursuant to Indiana Code section 34-8-1-3, which authorizes the supreme court to

adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana. These rules must be promulgated and take effect under the rules adopted by the supreme court and thereafter all laws in conflict with the supreme court's rules have no further force or effect.

[17] A defendant is entitled to appeal a city court judgment to "the circuit, superior, or probate court of the county and [be] tried de novo." Ind. Code § 33-35-5-9(a) ; see also Ind. Trial De Novo Rules. Under the Trial De Novo Rules, following a misdemeanor trial in city or town court, "[a] defendant who has a statutory right to an appeal after a trial for a misdemeanor in a city or town court may request and shall receive the trial de novo as provided in this Rule." Ind. Trial De Novo Rule 3(A). The court to which the case is assigned has "full jurisdiction of the case and of the person" once the request for a trial de novo is filed. Ind. Trial De Novo Rule 3(C)(2).

[18] The adoption of the Indiana Rules of Evidence guides our interpretation of the relationship between the Trial De Novo Rules and common law. After our supreme court adopted the Rules of Evidence in 1994, our supreme court acknowledged that the Rules of Evidence "generally superseded previously existing common law[.]" Specht v. State , 734 N.E.2d 239, 240 (Ind. 2000) (explaining that when the supreme court's committee proposed the adoption of a particular rule of evidence, the committee specifically stated its proposed rule "preserves prior Indiana Law" on that issue). Similarly, we conclude the Trial De Novo Rules supersede existing case law as it pertains to trials de novo. Well aware of the existing case law, the court adopted the Trial De Novo Rules, which do not bar a court from imposing a greater sentence than an inferior court after retrial on appeal.

[19] Common sense reinforces this conclusion. The very definition of a trial de novo trial means a "new trial on the entire case - that is, on both questions of fact and issues of law - conducted as if there had been no trial in the first instance." Black's Law Dictionary (10th ed. 2014). Restraining a court's ability to sentence a defendant by prohibiting the court from imposing a greater sentence is inherently inconsistent with the nature and definition of a trial de novo. Therefore, we cannot conclude the trial court abused its discretion by imposing a greater sentence than the city court.

B. Inappropriate Sentence

[20] Alternatively, Morris argues the nature of the offense and his character do not warrant his one-year sentence, which is the maximum possible sentence for a Class A misdemeanor. See Ind. Code § 35-50-3-2. Morris contends his sentence is inappropriate because his criminal history is minor and his offense was brief and non-violent.

[21] Indiana Appellate Rule 7(B) provides this court the authority to "revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is in appropriate in light of the nature of the offense and the character of the offender." The question is not whether another sentence is more appropriate, but whether the sentence imposed is inappropriate. Fonner v. State , 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Although we may consider any factors in the record when conducting 7(B) review, Croy v. State , 953 N.E.2d 660, 664 (Ind. Ct. App. 2011), sentencing is "principally a discretionary function" of the trial court to which we afford considerable deference. Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). On appeal, the defendant must persuade this court that his or her sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). Ultimately, whether a defendant's sentence is inappropriate is based on "our sense of culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell , 895 N.E.2d at 1224.

[22] Morris argues the nature of the offense does not warrant the maximum sentence because the nature of his offense "meets the very definition of public indecency[,]" was of "limited duration," and did not involve violence or threats of violence. Appellant's Br. at 18. We begin our analysis of the nature of the offense with the advisory sentence. Reis v. State , 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017). Although the sentencing range for a Class A misdemeanor does not include an advisory sentence, it provides for a maximum allowable sentence of one year. Ind. Code § 35-50-3-2.

[23] The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein. Perry v. State , 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, the trial court described Morris' offense as "egregious" given that his victim was only fourteen years old. Tr., Vol. II at 156. Morris was also in a position of trust when he committed the offense, as the victim was his stepdaughter's friend and M.Mc.'s mother entrusted Morris to safely take her daughter to a sleepover with his step-daughter. See Bennett v. State , 883 N.E.2d 888, 894 (Ind. Ct. App. 2008) (considering a defendant used his position of trust as a father to commit sex crimes in the nature of the offense portion of a 7(B) analysis), trans. denied . Although Morris contends that the non-violent nature of his offense supports a lesser sentence, our supreme court has held that the "absence of physical harm is not an automatic mitigating circumstance such that it would require a lesser sentence than would otherwise be imposed." Neale v. State , 826 N.E.2d 635, 638 (Ind. 2005). The circumstances surrounding Morris' offense do not render his sentence inappropriate.

[24] Morris contends his sentence is inappropriate in light of his character. A defendant's life and conduct are illustrative of his or her character. Washington v. State , 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied . "Even a minor criminal record reflects poorly on a defendant's character," Reis , 88 N.E.3d at 1105, and the significance of the prior record "varies based on the gravity, nature, and number of prior offenses in relation to the current offense." Rutherford v. State , 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). As to Morris' character, his criminal history is comprised of a felony conviction for sexual misconduct with a minor, charges for disseminating obscene materials, and check deception. While this matter was pending, Morris pled guilty to theft and check deception and entered into a diversion agreement for violating the compulsory school attendance requirement. The record reveals that Morris also failed to satisfactorily complete probation for the theft charge.

[25] At the sentencing hearing, the trial court focused on the gravity of Morris' criminal history:

It's troubling to me, sir, that when I look at your record, you were charged with possession of obscene material and literature and sexual misconduct with a minor in the late 90s and you were convicted as a felon of sexual misconduct with a minor. And the victim in this case was a minor and that's very, very troubling. In addition, you have those two charges for check deception and you have a conviction for theft ....
As you stand here right now, according to your records check, you've got a pending compulsory school attendance violation case .... While all of this is going on, you go out and pass a bad check to Menards and now you're here today on that and on the displaying your genitals to a 14-year-old. I echo some of the comments by the State. This is serious. Yes, you can say this is just a misdemeanor. This is a very serious offense; I take this very seriously. It is absolutely inappropriate for you to engage in that behavior; to sit in a truck and expose your penis to a 14-year-old. And it's inappropriate, especially, in the light of the fact that you have the prior conviction for sexual misconduct with a minor.

Tr., Vol. II at 155.

[26] Morris attempts to minimize the significance of his previous conviction of sexual misconduct with a minor by arguing that it was his only felony conviction and is remote, occurring "nearly twenty (20) years ago, mere months after [he] turned eighteen (18)." Appellant's Br. at 19. Despite these factors, however, the trial court found this prior offense significant in relation to the current offense. In addition to his previous criminal history, the trial court noted that while this matter was pending, Morris committed additional crimes to which he plead guilty. Despite Morris' history with our justice system and his previous felony conviction for a similar crime against a juvenile, he was not deterred from committing the current offense. See Rutherford , 866 N.E.2d at 874. The trial court sentenced Morris within the statutory range, a task within its discretion, and Morris has failed to persuade us that his sentence is inappropriate in light of the nature of the offense and his character.

Conclusion

[27] For the foregoing reasons, we conclude the evidence sufficiently supports Morris' conviction, the trial court did not abuse its discretion in sentencing Morris to the maximum possible sentence, and his sentence is not inappropriate. Accordingly, we affirm.

[28] Affirmed.

Baker, J., and May, J., concur.

      See Whited v. State , 256 Ind. 618, 271 N.E.2d 513 (1971) ; Eldridge v. State , 256 Ind. 113, 267 N.E.2d 48 (1971) ; and Anderson v. State , 155 Ind. App. 465, 293 N.E.2d 222 (1973).


author: Najam, Judge.

text:
    Trey A. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1023
    Court of Appeals of Indiana.
    FILED November 26, 2018
    Attorney for Appellant: Michael P. DeArmitt, Columbus, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Laura R. Anderson, Deputy Attorneys General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Trey Smith appeals his convictions for theft, as a Level 6 felony, and criminal mischief, as a Class B misdemeanor, following a jury trial. Smith presents a single issue for our review, namely, whether the trial court abused its discretion when it admitted certain testimony over his objections. We also address a second issue sua sponte , namely, whether Smith's convictions violate his right to be free from double jeopardy. We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] On December 6, 2017, at approximately 8:20 p.m., Melissa Shafer left her office and walked out to the parking lot, where she found a man lying on the ground next to her car. Shafer asked the man what he was doing, but he did not reply. She asked him a second time, and he responded, "Let me get out of your way." Tr. at 25. Shafer then saw the man pull up a tarp and gather some tools, and he ran past her toward the office building and out of sight. Shafer got in her car and started the engine. She immediately noticed that the engine was "very loud" and she "knew the mechanics had been messed with." Id. at 27. Accordingly, she promptly called 9-1-1 and gave a description of the man she had seen next to her car. She saw that the man was wearing "dark colored or black pants and a black zip up hoodie with white lettering on the back of it." Id. at 34. A police officer arrived at the scene within three to five minutes and found that the catalytic converter on Shafer's car had been cut and was "hanging down and touching the ground." Id. at 51.

[3] Within three minutes of hearing the suspect's description over his radio, Officer Ron May of the Columbus Police Department, who was patrolling in the area, saw a man fitting the suspect's description "jogging across the road in a southeasterly direction" near the intersection of U.S. 31 and Washington Street. Id. at 39. Officer May saw the man near a Village Pantry, but he lost sight of him. Officer May soon saw the man again walking to the south of a nearby building. Officer May then stopped and talked to the man, who identified himself as Smith.

[4] Officer May asked Smith "where he was coming from," and Smith replied that he had just been at Chris Chaplin's residence at 3220 Washington Street. Id. at 43. While Officer May was talking to Smith, Officer Tony Kummer, who had responded to the scene at Shafer's office parking lot, drove Shafer to the location where Officer May and another officer were talking to Smith. Shafer identified Smith as the man she had seen next to her car. Officers arrested Smith. At some point, Officer May went to the residence at 3220 Washington Street and talked to the owner, who stated that he did not know Smith.

[5] The State charged Smith with attempted theft, as a Level 6 felony, and criminal mischief, as a Class B misdemeanor. At Smith's ensuing jury trial, Officer May testified in relevant part that he had found no one at the residence at 3220 Washington Street who knew Smith, and Smith timely objected to that testimony on hearsay grounds. The trial court permitted the testimony over Smith's objections. The jury found him guilty as charged, and the trial court entered judgment of conviction and sentenced him accordingly. This appeal ensued.

Discussion and Decision

Issue One: Hearsay

[6] Smith contends that the trial court abused its discretion when it admitted Officer's May's testimony as evidence over Smith's hearsay objections. We review a trial court's evidentiary rulings "for an abuse of discretion." Snow v. State , 77 N.E.3d 173, 176 (Ind. 2017). "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances." Id.

[7] Hearsay is a statement "not made by the declarant while testifying at the trial or hearing" that is "offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). And a "statement" means "a person's oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion." Evid. R. 801(a). At trial, during the State's direct examination of Officer May, Smith made two hearsay objections during the following colloquy:

Q: Um, after you talked to [Smith,] later on did you go to that house [at 3220 Washington Street] where he said he was [prior to his arrest]?
A: Yes.
Q: And did you find anyone in the residence who knew the defendant?
[Defense counsel]: Objection that's calling for hearsay.
Q: I'm not asking what they said Judge I'm just asking if anyone knew of him.
COURT: Ok, overruled.
Q: Did you find anybody at the house who knew the defendant?
A: No.
* * *
Q: And you did speak with owner of the house is that correct?
A: I did.
Q: Um did that person know Trey Smith?
[Defense counsel]: Objection once again I mean he's only going to know him by answering a question that the officer asked, hearsay.
COURT: Response?
Q: Again I'm not asking for him to repeat what he said I'm asking if, if the individual knew who Trey Smith was.
COURT: Overruled.
Q: Did he know who Trey Smith was?
A: No.

Tr. at 43-45.

[8] On appeal, Smith asserts that the trial court abused its discretion when it permitted the testimony over his timely objections. He maintains that, because Officer May could not have learned whether anyone at the residence knew Smith without having asked them, Officer May "was merely a conduit for the out-of-court statements made by those persons present" at the residence. Appellant's Br. at 12. Thus, he contends that those statements constitute inadmissible hearsay. The State responds that the challenged testimony did not constitute hearsay because "Officer May did not testify about anyone's statement ... [or] repeat anyone's assertion." Appellee's Br. at 7. We agree with Smith.

[9] While Officer May did not repeat a declarant's statement, per se , he testified to information that could only have been obtained through statements made by the person or persons he had questioned at the residence Smith claimed to have visited before his arrest. Thus, those out of court statements were embedded in Officer May's testimony and were the predicate for that testimony, which was equivalent to repeating the declarant's out-of-court statements. And Officer May's testimony was offered to discredit Smith with proof that no one at the residence knew Smith; that is, the testimony was offered for the truth of the matter asserted. Accordingly, we hold that the challenged testimony was hearsay, and the trial court abused its discretion when it overruled Smith's timely objections.

[10] However, it is well settled that the erroneous admission of hearsay testimony does not require reversal unless it prejudices the defendant's substantial rights. Blount v. State , 22 N.E.3d 559, 564 (Ind. 2014). To determine whether an evidentiary error was prejudicial, we assess the probable impact the evidence had upon the jury in light of all of the other evidence that was properly presented. Id. If we are satisfied the conviction is supported by independent evidence of guilt such that there is little likelihood the challenged evidence contributed to the verdict, the error is harmless. Id.

[11] Here, we are convinced that there is little likelihood that Officer May's testimony that no one at 3220 Washington Street knew Smith contributed to the verdict. Although the evidence discredited Smith's statements to officers on the scene, at trial Smith did not assert an alibi defense but instead argued only that Shafer had misidentified him as the man she had seen in the parking lot next to her car. Because Smith did not contend at trial that he had been visiting someone at that residence before his arrest, Officer May's hearsay testimony was not integral to Smith's defense.

[12] While Officer May's hearsay testimony prejudiced Smith in that it was impeaching, the independent evidence of Smith's guilt persuades us that the evidence of Smith's untruthfulness did not likely contribute to the guilty verdict. In particular, Shafer testified that, when the officers drove her to the location of Smith's arrest shortly after the incident, she was "100%" certain that he was the man she had seen in the parking lot. Tr. at 30. While Smith points out that it was dark at the time of the offense and Shafer has a vision impairment in one eye, the State presented evidence that the parking lot and exterior of the office building were well lit at the time of the offenses, and Shafer testified that she wears glasses and has "no problem seeing anything[.]" Id. at 34. In addition, Officer May found Smith, who fit the description given by Shafer, within three minutes of hearing the suspect's description over his radio and at a location near Shafer's office building. Thus, we hold that the trial court's admission of Officer May's hearsay testimony was harmless error.

Issue Two: Double Jeopardy

[13] We next address, sua sponte , whether Smith's convictions violate his right to be free from double jeopardy under Indiana law. Article 1, Section 14 of the Indiana Constitution provides that "[n]o person shall be put in jeopardy twice for the same offense." Our Supreme Court has interpreted that clause to prohibit multiple convictions based on the same "actual evidence used to convict." Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999). Our Supreme Court has also "long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy[ ] but are not governed by the constitutional test set forth in Richardson ." Guyton v. State , 771 N.E.2d 1141, 1143 (Ind. 2002) (quotation marks omitted). One such rule prohibits "[c]onviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished." Id. In Taylor v. State , we acknowledged that the very same act test is different than the actual evidence test, and we held that the very same act test applies when the defendant's "behavior" underlying one offense is "coextensive with the behavior ... necessary to establish an element of" another offense. 101 N.E.3d 865, 872 (Ind. Ct. App. 2018).

[14] Here, Smith's behavior underlying the attempted theft is coextensive with the behavior necessary to establish an element of criminal mischief. See id. In particular, the only evidence showing that Smith took a substantial step toward theft of the catalytic converter from Shafer's car was his partial removal of it. See Ind. Code § 35-43-4-2.5(b) (2017). And that same behavior was also the only evidence that Smith had damaged or defaced Shafer's car, which was the basis for his criminal mischief conviction. See I.C. § 35-43-1-2(a). Thus, we reverse Smith's criminal mischief conviction. We remand with instructions that the trial court vacate Smith's criminal mischief conviction.

[15] Affirmed in part, reversed in part, and remanded with instructions.

Bailey, J., and Altice, J., concur.

      We held oral argument in this case on November 5, 2018, at Tri-West High School in Lizton. We thank counsel for their excellent advocacy and extend our appreciation to the faculty, staff, and students of Tri-West High School for their hospitality.