text:
    In the Matter of Kevin W. MARSHALL, Respondent.
    No. 45S00-1211-DI-628.
    Supreme Court of Indiana.
    June 30, 2014.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable T. Edward Page, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: The underlying facts found by the hearing officer are essentially undisputed. Respondent represented plaintiffs in a lawsuit in the Lake Superior Court. Pursuant to a case management plan, counsel for the parties were required to submit a joint pretrial order by June 25, 2009. Counsel for the parties failed to agree on a joint pretrial order due to lack of cooperation from counsel for the defendants. Instead of cooperating with Respondent in filing a joint proposed pretrial order, on June 24, 2009, the defendants filed their own pretrial order, which was signed on page 18 by the defendants’ attorneys.

Sometime later, Respondent personally tendered a proposed pretrial order with his signature on behalf of the plaintiffs. The last page of Respondent’s proposed order was a photocopy of page 18 of the defendant’s pretrial order with the signatures of the defendants’ attorneys, which Respondent used without the knowledge or consent of counsel for the defendants. The proposed pretrial order was not file-stamped and was not acted on by the court.

The proposed order tendered by Respondent included materials from the defendants’ proposed pretrial order supplemented by the plaintiffs’ pretrial order material. The attachment of the signature page from the defendants’ proposed pretrial order was impulsive and the result of acting under pressure to comply with the trial court’s case management order. Respondent’s motive in tendering his proposed pretrial order was not to affect the outcome of the case, to obtain financial gain, or to gain any advantage over the other parties.

Aggravating and mitigating facts. In aggravation, we note that Respondent has a history of prior discipline. See Matter of Marshall, 902 N.E.2d 249 (Ind.2009). That prior discipline arose from a fee dispute and did not involve a claim that Respondent acted dishonestly.

The Court finds the following facts in mitigation: (1) Respondent was cooperative with the Commission in its investigation and prosecution of this case, admitting both to all the allegations of the complaint and also that he had committed the violation charged; (2) throughout the proceedings, Respondent accepted full responsibility for misconduct and has expressed genuine remorse; (3) Respondent has acknowledged the harm he has caused to his clients, to opposing counsel, to the trial court, and to the legal system; (4) attorneys who have worked with Respondent established at the hearing that Respondent has a reputation as competent, hardworking, ethical, and honest; and (5) while this action was under consideration, Respondent informed the other judges of the Lake Superior Court of his transgression and apologized for the harm had caused to the court.

Violation: Respondent admits and the Court finds that Respondent violated Professional Conduct Rule 8.4(c), which prohibits engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Discipline: The accuracy of documents used by a tribunal in a proceeding is of the utmost importance to the administration of justice and the submission of falsified or fraudulent documents by an officer of the court is therefore severe misconduct. See Matter of Darling, 685 N.E.2d 1066, 1068 (Ind.1997). In some cases, such misconduct has resulted in suspension without automatic reinstatement, see Matter of Drook, 855 N.E.2d 989 (Ind.2006), which requires the attorney to present clear and convincing evidence of his or her remorse, rehabilitation, and fitness before resuming the practice of law, see Admis. Disc. R. 23(4)(b). In the current case, however, the hearing officer recommends and the Commission agrees that suspension with automatic reinstatement is appropriate. In light of the substantial mitigating facts in this case, the Court will impose suspension with automatic reinstatement.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning August 8, 2014. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


source: Caselaw Access Project

license: Public Domain

text:
    Stephen W. ROBERTSON, Commissioner of the Indiana Department of Insurance and Administrator of the Patient's Compensation Fund, Plaintiff, v. The MEDICAL ASSURANCE COMPANY, INC. n/k/a Proassurance Indemnity Company, Inc., Defendant.
    No. 94S00-1406-CQ-378.
    Supreme Court of Indiana.
    June 30, 2014.
   PUBLISHED ORDER ACCEPTING CERTIFIED QUESTION

The District Court for the Northern District of Indiana has certified a question of Indiana state law for this Court’s consideration. The question arises in Robertson v. Medical Assurance Co., Inc. n/k/a Proassurance Indemnity Co., Inc., Case No. 2:13-CV-107 JD (N.D.Ind.). The question is as follows:

Does Indiana law allow the Patient’s Compensation Fund to pursue a claim against an insurer for the insurer’s breach of its duty of good faith to its insured, through the doctrine of equitable subrogation?

The certified question, which each member of this Court has considered, is hereby ACCEPTED.

The Court further directs as follows:

a) There shall be simultaneous briefing of this matter. There shall be no responsive briefing thereafter. The Plaintiff’s brief shall be bound with a blue cover; the Defendant’s brief with a red cover. The briefs shall, to the extent reasonably practicable, conform to the provisions of Appellate Rules 43, 44, and 46, except that they may not exceed the greater of twenty (20) pages or 9,000 words, and any brief exceeding twenty (20) pages shall conform to the word count and certification requirements found in Appellate Rules 46(C), 46(E) and 46(F). The two briefs, and the appendix (see below), must be filed by Monday, July 28, 2014.
b) If the parties believe there are documents from the bankruptcy case necessary or helpful for deciding the certified question, then the parties shall file an appendix containing copies of those documents and also including, if applicable, the items listed in Appellate Rule 50. It is anticipated that the parties will confer and agree on the materials to be included in an appendix, if one is filed. The parties should avoid unnecessary inclusion in the appendix of memorandums of law or briefs filed in the district court, since all necessary legal arguments should be presented to this Court in the briefs described in the preceding paragraph. The cover of the appendix shall be blue and labeled “Plaintiffs Appendix.” The original and eight (8) copies of each brief, the original appendix, and any other filings in this matter shall be filed with the Clerk of the Indiana Supreme Court.
c) In addition to the service requirements contained in Appellate Rule 24, the parties shall also serve each other, no later than the date the document is filed, via electronic mail.
d) The parties shall file appearance forms within twenty (20) days of this order or contemporaneously with the first document filed by the appearing party, whichever comes first, as required by Appellate Rule 16(C). The appearance forms shall include electronic mail addresses for each attorney appearing in this case. These email addresses shall be used in this case for transmission of all orders, opinions, and notices from the Clerk of this Court. See Ind. Appellate Rule 26.
e) Extensions of time will be granted only in truly extraordinary circumstances and any motion seeking an extension of time must be made jointly by the parties.
f) An order scheduling oral argument in this matter shall be issued at a later date.
g) No later than two (2) weeks after the conclusion of this matter before this Court, the parties shall supply, in “.pdf’ format via CD-Rom, file-stamped copies of all documents filed in this case, including the orders and opinions issued by this Court, to the Clerk of the United States District of Court for the Northern District of Indiana.

The Clerk is directed to send a copy of this order to the Hon. Jon E. DeGuilio, Judge of the United States District Court for the Northern District of Indiana; to the Hon. Robert N. Trgovich, Clerk of the U.S. District Court for the Northern District of Indiana; to all counsel listed on the U.S. District Court Civil Docket Sheet submitted in this matter by the District Court; and to the Supreme Court Administration Office. The Clerk is also directed to post this order to the Court’s website, and Thomson Reuters is directed to publish this order in the bound volumes this Court’s decisions.


author: PER CURIAM.

text:
    In the Matter of Steve L. BREJENSKY, Respondent.
    No. 29S00-1205-DI-277.
    Supreme Court of Indiana.
    July 2, 2014.

      Steve L. Brejensky, Respondent pro se.
    G. Michael Witte, Executive Secretary, David E. Griffith, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
   PER CURIAM.

We find that Respondent, Steve L. Bre-jensky, engaged in attorney misconduct by committing a crime reflecting adversely on Respondent’s honesty and failing to report his conviction to the Commission. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least one year without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action.” Respondent’s 1988 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

Background

Procedural background. The Commission filed a “Verified Complaint for Disciplinary Action” against Respondent on May 22, 2012. Respondent filed an answer that was late and not in proper form. Respondent failed to respond to the Commission’s requests for admission. The hearing officer therefore granted an application by the Commission for judgment on its complaint. See Admis. Disc. R. 23(14)(c).

The hearing officer filed his report on April 11, 2014. Neither party filed a petition for review of the hearing officer’s report (although the Commission filed a brief on sanctions). When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000).

The hearing officer’s findings of fact. Following a bench trial on October 21, 2011, Respondent was convicted of Conversion, a class A misdemeanor. Respondent has never appealed or otherwise challenged his conviction. He did not send a copy of the finding of guilt to the Commission.

The hearing officer found no facts in mitigation. The hearing officer found the following facts in aggravation: (1) Respondent has failed to keep current his address on the Indiana Roll of Attorneys, evidenced by the Postal Service’s return of multiple mailings sent to him during this proceeding; (2) Respondent filed an answer to the Commission’s complaint only after the hearing officer ordered him to do so, and it did not comply with the requirements of Admis. Disc. R. 23(14)(b); (3) Respondent failed to comply with filing deadlines; even when granted extensions of time; and (4) the contents of Respondent’s answer show a lack of remorse for and lack of insight into the nature of his wrongful conduct.

The Court notes, as an additional fact in aggravation, that Respondent has the following disciplinary history:

• Continuing legal education noncompliance suspension, April 17, 2001; reinstated, September 28, 2001.
• Cause No. 29S00-1201-DI-25: Show cause petition for noncooperation with the Commission filed January 18, 2012; dismissed with costs, February 27, 2012.
• Cause No. 94S00-1308-MS-505: Suspended for failure to pay costs in above case, effective October 6, 2013. This suspension is still in effect.

Discussion

In Respondent’s late, nonconforming answer, Respondent argues that he is not guilty of conversion, arguing that he was wrongly accused of taking a bag of mulch from a gas station without paying for it. He also recounts alleged irregularities in this trial, but, as noted, he has not appealed or otherwise challenged his conviction. Moreover, he has not filed a petition for review of the hearing officer’s report. The Court therefore approves the hearing officer’s findings of fact.

The Court concludes that Respondent violated these rules prohibiting the following misconduct:

Ind. Professional Conduct Rules:

8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Ind. Admission and Discipline Rule 23(ll.l)(a)(2): Failure to notify the Commission of a guilty finding.

Given the seriousness of Respondent’s misconduct and the substantial facts in aggravation, the Court concludes that Respondent should be suspended for at least one year, after which he may be reinstated only after proving his remorse, rehabilitation, and fitness to practice law.

Conclusion

The Court concludes that Respondent violated his professional duties as an attorney by committing a crime reflecting adversely on Respondent’s honesty and failing to report his conviction to the Commission.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, effective immediately. Respondent is already under suspension for failure to pay costs in a noncooperation proceeding. Respondent shall fulfill all the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, cures the causes of all suspensions then in effect, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Patrick H. STERN, Respondent.
    No. 49S00-1205-DI-255.
    Supreme Court of Indiana.
    July 2, 2014.

      Patrick H. Stern, Indianapolis, IN, Respondent pro se.
    G. Michael Witte, Executive Secretary, John P. Higgins, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
   PER CURIAM.

We find that Respondent, Patrick H. Stern, engaged in attorney misconduct by failing to provide competent representation, representing clients with conflicting interests, asserting frivolous legal positions, and engaging in deceptive practices with a court and the Commission. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least 18 months without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and on the post-hearing briefing by the parties. Respondent’s 1987 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const, art. 7, § 4.

Procedural Background and Facts

The Commission filed its verified complaint against Respondent on May 9, 2012, which was amended on April 29, 2013. After an evidentiary hearing, the hearing officer filed his Report on February 5, 2014, which we now adopt and summarize.

Persons involved in the events alleged by the Commission. The Commission’s allegations of misconduct center primarily on Respondent’s actions in several cases involving the condemnation and demolition of a building. The three people primarily involved in these allegations, in addition to Respondent, are the following.

• DR, an elderly woman, was the owner of a commercial building in Indianapolis in poor condition (“the Building”). DR’s greatest fear was that the City of Indianapolis was going to impose financial liability on her because of the Building.
• JS, alleged to be DR’s common law husband, had no ownership interest in the Building.
• JH, a convicted murderer, began working in Respondent’s law office after his release from prison as a “contract paralegal,” not an employee. Respondent compensated JH with cash and in-kind compensation, e.g., free representation in two criminal cases and a divorce, free lodging, and free use of Respondent’s office equipment.

The First Lawsuit. Before DR retained Respondent, the Indianapolis Department of Metropolitan Development (the “DMD”) obtained an order to demolish the Building as an unsafe structure. DR then retained Respondent for $800 to represent her in the matter. In addition, Respondent would retain 50% of any recovery by DR against the City of Indianapolis (“the City”).

On February 15, 2008, Respondent filed a complaint for judicial review against the DMD (“First Lawsuit”) on behalf of both DR and JS, even though JS had no interest in the Building. The complaint for judicial review did not comply with the requirements of Indiana Code § 86-7-9-8(b) that the complaint be verified and filed within 10 days of the date the action was taken.

In an attempt to prevent the City from imposing financial liability on DR, Respondent drafted a quitclaim deed by which DR transferred the Building to JH. Respondent began representing JH as well as DR. Because DR quitclaimed her fee simple interest to JH after the unsafe building order was issued, the transfer resulted in DR and JH being jointly and severally responsible for demolition and administrative costs. See Ind.Code § 36-7-9-12(a). Thus, the transfer of the Building to JH did not relieve DR of financial liability, and it created a conflict of interest between of JH and DR.

Respondent filed a “Counter-Complaint for Damages” in the First Lawsuit without leave of court, improperly adding as defendants two city employees (“City Employees”) and additional legal theories of recovery. Respondent repeatedly referred to the Building as DRs property, even though he knew DR no longer owned the Building. The first time the court became aware of the transfer of the Building was at a May 7, 2008, hearing when opposing counsel asked DR whether she still owned the Building.

On May 16, 2008, the court affirmed the Order to Demolish, for lack of standing among other reasons. The City demolished the Building in July 2008. DR was assessed $17,200 for the demolition costs for the Building. No appeal was taken.

The Second Lawsuit. On August 6, 2008, Respondent filed a new lawsuit on behalf of DR seeking damages for trespass and destroying her property (“Second Lawsuit”). Respondent named the City Employees as defendants, but he failed to include allegations against them required by Indiana Code section 34-13-S-5(c). Respondent then filed a tort claim notice on behalf of DR on September 8, 2008. Because it alleged violations occurring more than 180 days prior, it was untimely. See Ind.Code § 34-13-3-8. The defendants filed a motion for judgment on the pleadings based on untimeliness, governmental immunity, and failure to state a claim. The Second Lawsuit was dismissed in its entirety.

The Third Lawsuit. On January 8, 2009, JH and JS filed a pro se lawsuit against the Director of Metropolitan Development in his official capacity (“Third Lawsuit”), alleging that the City violated their federal and state constitutional rights. After the defendant removed the Third Lawsuit to federal court, Respondent appeared for both JH and JS.

DR was required by statute to notify the DMD within five days of her transfer of the Building to JH, which she failed to do. JH’s claim was premised on the allegation that the City had demolished the Building without giving him notice. If JH obtained a judgment against the DMD based on lack of notice, and that lack of notice was caused by DR’s failure to inform the DMD of the transfer, DR would be liable to the DMD for the amount of the judgment. See Ind.Code § 36-7-9-27(b). Thus, Respondent pursued a case on behalf of one client (JH) which, if successful, would make his other client (DR) liable for the judgment.

The district court granted summary judgment to the defendants, citing multiple grounds, including failure to exhaust state remedies. The Seventh Circuit Court of Appeals affirmed, finding that Respondent’s' “claims were not ripe and otherwise meritless.”

Respondent’s relationship with JH. In the course of its investigation, the Commission asked several times about Respondent’s relationship with JH. For over two years, Respondent failed to disclose any professional relationship with JH, falsely implying that Respondent had no working relationship with JH. In response to the Commission’s eventual allegation that Respondent. had concealed the true extent of his relationship with JH, Respondent finally disclosed that JH worked in his office as a paralegal.

Discussion

Violations. The Court finds that Respondent violated the following Indiana Professional Conduct Rules by the following misconduct:

Misconduct during the First, Second, and Third Lawsuits:
• 1.1: Failing to provide competent representation to DR, JS, and/or JH.
• 1.7(a): Representing DR, JS, and JH when the representations involved a concurrent conflict of interest.
• 3.3(a)(1): Knowingly making and failing to correct a false statement of material fact made to the court in a First Lawsuit by continuing to refer to the Property as DR’s after she transferred the Property to JH.
• 3.1: Asserting positions for which there was no non-frivolous basis in law or fact.
Misconduct involving JH’s position as a paralegal:
• 5.3 and Guideline 9.1: Using a non-lawyer legal assistant who was not an employee.
• 1.6: Improperly revealing information relating to Respondent’s representation of clients to JH, by allowing JH unsupervised access to such information.
Misconduct during the Commission’s investigation:
• 8.1(b): Failing to disclose to the Commission Respondent’s professional relationship with JH to correct the misapprehension created by Respondent that there was no such relationship.

Discipline. Our analysis of appropriate discipline entails consideration of the nature of the misconduct, the duties violated by the respondent, any resulting or potential harm, the respondent’s state of mind, our duty to preserve the integrity of the profession, the risk to the public should we allow the respondent to continue in practice, and matters in mitigation and aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind.2011).

In this case, we find the following substantial facts in aggravation: (1) Respondent has previously been disciplined for incompetence and bringing frivolous lawsuits, see Matter of Stern, 776 N.E.2d 1208 (Ind.2002); (2) Respondent’s conduct was part of a pattern of misconduct that included failing to attain minimum competence in representing clients, filing multiple frivolous lawsuits, and misleading the court in the First Lawsuit and the Commission in its investigation; (3) instead of accepting responsibility for his actions, Respondent blames the judges in the lawsuits, the Commission, and others; and (4) Respondent has shown no insight into his misconduct.

We also observe that Respondent has shown a lack of basic competence in representing himself in this disciplinary proceeding. For instance, he has filed documents that are riddled with typographical and grammatical errors and that are very difficult to understand. In response to the Commission’s verified complaint, Respondent asserted a number of frivolous affirmative defenses. In responding to the Commission’s discovery requests, Respondent repeatedly deleted, renumbered, and added paragraphs to the requests. Despite several opportunities to correct deficiencies in discovery responses, he still failed to respond to some discovery requests, and he gave incomplete, inaccurate or incomprehensible responses to others. In his answer to the amended complaint, Respondent failed to respond to some allegations, responded falsely to some, and responded “denied admitted” to others. Respondent himself could not explain what “denied admitted” meant. Even after several attempts and, according to his own testimony, answering the allegations to the best of his ability, Respondent was unable to draft a legally sufficient responsive pleading.

In light of his serious deficiencies in representing clients and himself and his refusal to acknowledge any misconduct on his part, the Court has grave concerns about Respondent’s current fitness to represent clients in the practice of law. We therefore conclude that Respondent should be suspended from practice and undergo a reinstatement proceeding before resuming practice.

Conclusion

The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by failing to provide competent representation, representing clients with conflicting interests, asserting frivolous legal positions, and engaging in deceptive practices with a court and the Commission.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 18 months, without automatic reinstatement, beginning August 13, 2014. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

In addition, the Court denies Respondent’s motions to investigate the conduct of one of the Commission’s staff attorneys.

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

DICKSON, C.J., and RUCKER, MASSA, and RUSH JJ., concur.

DAVID, J., concurs in part but dissents regarding the discipline imposed, believing it to be insufficient.


author:
BROWN, Judge.
      BARNES, Judge,

text:
    Gary SISTRUNK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1211-CR-567.
    Court of Appeals of Indiana.
    May 19, 2014.
    Ordered Published June 18, 2014.

      Timothy J. O’Connor, O’Connor & Auersch, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Gary Sistrunk appeals his convictions for robbery and criminal confinement as class B felonies. Sistrunk raises two issues, which we revise and restate as follows:

I. Whether his convictions for robbery and criminal confinement violate Indiana’s prohibition against double jeopardy; and
II. Whether the trial court erred in denying his request for an order for public funds to pay for an expert witness.

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

FACTS AND PROCEDURAL HISTORY

At approximately 7:00 p.m. on February 5, 2012, Sistrunk entered a gas station in Marion County, Indiana, where Christina Busch was working alone in the store. Sistrunk asked Busch for “a black [inaudible] cigar,” and Busch handed him the cigar. Transcript at 25. Sistrunk placed a one-dollar bill on the counter, Busch told him that the cigar was $1.17, and he “threw out a quarter out of his pocket.” Id. Busch opened the cash register and placed the cash in the drawer, looked up before handing the change back to Sis-trunk, and observed that “he had a gun sitting at me.” Id. Sistrunk leaned over the counter closer to Busch, pointed the gun at her, and ordered her to give him all of the money in the drawer. Busch asked “are you serious,” and Sistrunk said “I’m not playing with you.” Id. Busch handed all of the money in the cash drawer to him. He ordered her to give him the money out of the safe, and Busch told him that she was unable to open the safe, that she “had 2 safe drops sitting there that he could have,” that “[i]f he wanted to come back there he could look,” and that she “didn’t want him shooting [her].” Id. Sistrunk took the two safe drops. As Busch was giving Sistrunk the money, he “kept telling [her] not to press the button,” which she took to mean the emergency button for the store. Id. at 26. Sistrunk “told [Busch] to sit on the ground and [she] sat on the ground, he stood there for a minute and then [] walked out the door,” and she “waited for about 2 minutes to call the police.” Id. Beech Grove Police Detective Jill Lieter responded to the robbery and spoke with Busch at the police station. Detective Lieter obtained a copy of a video surveillance recording of the suspect from the general manager of the gas station and, through Crime Stoppers, obtained the name of Sistrunk as the person in the recording. On February 9, 2012, Detective Lieter presented a photo array to Busch, informed her that the suspect’s photograph may or may not be included in the array and that she should not identify any photograph if she was unsure, and Busch identified Sistrunk as the person who committed the robbery.

On February 14, 2012, the State charged Sistrunk with robbery and criminal confinement as class B felonies. On March 9 and March 23, 2012, represented by private counsel, Sistrunk filed motions which requested the court to order the County Public Defender’s Office to pay for the reasonable expenses of an expert witness on the issue of eyewitness identification. At a pretrial conference on July 23, 2012, the Marion County Public Defender (“MCPD”) indicated to the trial court that it did not support Sistrunk’s request for public funds, and the court denied Sis-trunk’s application. On October 4, 2012, the court conducted a bench trial at which Busch and Detective Lieter testified and the State presented the video recording of the robbery. In closing arguments, Sis-trunk’s defense counsel argued: “I think this is kind of a classic eyewitness ID case. The person is told, I picked the right person and at that point their confidence goes to 100 percent.” Id. at 64. The court stated:

[T]here is no doubt that the identification alone and the video alone are not proof beyond a reasonable doubt. However, in conjunction [sic] when I watched the video — the reason I went back and watched it is because the second scene of Mr. Sistrunk walking into the shop is nearly the identical angle that I have right here, it’s transposed, but nearly identical. And I found it to be very good evidence that Mr. Sistrunk is in fact the person that Christina Busch pointed out. So while I agree that there are all sorts of ID issues, if it was just her or if it was just the video — together the State has proven their case beyond a reasonable doubt....

Id. at 65. The court found Sistrunk guilty of robbery and criminal confinement as charged and later sentenced Sistrunk to six years for each conviction to be served concurrently with each other and consecutive to his sentence under Cause No. 61.

DISCUSSION

I.

The first issue is whether Sis-trunk’s convictions for robbery and criminal confinement as class B felonies violate Indiana’s prohibition against double jeopardy. The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” Ind. Const, art. 1, § 14. The Indiana Supreme Court has held that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999).

Sistrunk argues that his convictions for robbery and criminal confinement violate Indiana’s prohibition against double jeopardy based upon the actual evidence test. Under the actual evidence test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Lee v. State, 892 N.E.2d 1231, 1234 (Ind.2008). To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. Id. The Indiana Supreme Court has determined the possibility to be remote and speculative and therefore not reasonable when finding no sufficiently substantial likelihood that the trier of fact used the same evidentiary facts to establish the essential elements of two offenses. Hopkins v. State, 759 N.E.2d 633, 640 (Ind.2001) (citing Long v. State, 743 N.E.2d 253, 261 (Ind.2001); Redman v. State, 743 N.E.2d 263, 268 (Ind.2001)).

Application of this test requires the court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the fact-finder’s perspective. Lee, 892 N.E.2d at 1234. “[Ujnder the ... actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 832-833 (Ind.2002). In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel. Lee, 892 N.E.2d at 1234; Spivey, 761 N.E.2d at 832. Generally, double jeopardy does not prohibit convictions of confinement and robbery when the facts indicate that the confinement was more extensive than that necessary to commit the robbery. Merriweather v. State, 778 N.E.2d 449, 454 (Ind.Ct.App.2002) (citing Hopkins, 759 N.E.2d at 639; Thy Ho v. State, 725 N.E.2d 988, 993 (Ind.Ct.App.2000)).

Sistrunk specifically argues that he ordered an employee to sit on the floor, paused for a moment, and then walked out the door, that every act of robbery will, of necessity, involve some amount of confinement, and that there was a reasonable possibility that the trial judge used the same evidence to convict him of both robbery and criminal confinement. The State argues that Sistrunk did not give the order for Busch to sit down on the floor until he had committed all the elements of robbery by taking the safe drops from Busch’s presence, that the confinement charge was drafted to ensure that only interference with Busch’s liberty occurring independently of the robbery could be used to convict Sistrunk of confinement, and thus that Sistrunk’s convictions do not violate Indiana’s prohibition against double jeopardy.

Robbery consists of taking property “by using or threatening the use of force” or “by putting any person in fear.” Ind.Code § 35-42-5-1. Criminal confinement consists of confining a person or removing them by force or threat of force from one place to another. Ind.Code § 35-42-3-3. The Indiana Supreme Court has stated that “where the confinement of a victim is greater than that which is inherently necessary to rob them, the confinement, while part of the robbery, is also a separate criminal transgression.” Hopkins, 759 N.E.2d at 639. The State’s charging information for robbery alleged that Sistrunk “on or about February 5, 2012, did knowingly, while armed with a deadly weapon, that is: a handgun, take from the person or presence of Christina Busch property, that is: United States currency, by putting Christina Busch in fear or by using or threatening the use of force on Christina Busch.” Appellant’s Appendix at 34. The charging information for criminal confinement alleged that Sistrunk “on or about February 5, 2012, did knowingly, while armed with a deadly weapon, that is: a handgun, confine Christina Busch, without the consent of Christina Busch, by ordering her to sit down on the floor.” Id.

The evidence presented at trial shows that Sistrunk’s confinement of Busch extended beyond what was necessary to rob her. The evidence shows that Sistrunk held a gun to Busch and ordered her to hand over all the money in the cash drawer, that he ordered her to retrieve the money from the safe, and that, after she explained that she could not access the safe but that he could take the safe drops, Sistrunk took the safe drops. As Busch was giving Sistrunk the money, he “kept telling [her] not to press the button.” Transcript at 26. After he had taken the safe drops, Sistrunk “told [Busch] to sit on the ground,” she “sat on the ground,” Sis-trunk “stood there for a minute,” and then he walked out the door. Id. In light of Sistrunk’s actions of threatening Busch by pointing a handgun at her, of taking the cash from the register drawer and the safe drops, and by instructing her not to press the emergency button, it was not necessary for Sistrunk to further require Busch to sit down on the floor in order to rob her. His actions to effectuate the robbery and that of ordering Busch to sit on the floor were separate criminal transgressions.

Under the circumstances, we find no sufficient substantial likelihood, and thus cannot say that Sistrunk has demonstrated a reasonable possibility, that the trial court based its determination of guilt on the criminal confinement count upon the evidence used to find him guilty of robbery. Accordingly, Sistrunk’s convictions do not violate his right against double jeopardy. See Hopkins, 759 N.E.2d at 640 (holding that the defendant’s confinement of his victims extended beyond what was necessary to rob them and noting that it was not necessary to force the victims into the basement or later to stay in the basement to rob them and that the confinement was a separate criminal transgression from the robberies themselves).

However, we also note that the same evidence, namely, Sistrunk’s. act of being armed with a deadly weapon, was used to enhance both his robbery conviction and his criminal confinement conviction to class B felonies. See Ind.Code § 35-42-5-1 (governing the offense of robbery and noting the offense is a class C felony except that “the offense is a Class B felony if it is committed while armed with a deadly weapon”); Ind.Code § 35-42-3-3 (governing the offense of criminal confinement and noting that the offense is a class D felony except as provided in subsection (b) and that, under subsection (b), the offense is “a Class B felony if it [] is committed while armed with a deadly weapon”).

In Miller v. State, the defendant placed a knife to the victim’s throat and then later pressed the knife on her back while he committed various offenses. 790 N.E.2d 437, 438 (Ind.2003). The defendant was convicted of burglary as a class A felony, two counts of criminal deviate conduct as class A felonies, criminal confinement as a class B felony, robbery as a class B felony, resisting law enforcement as a class A misdemeanor, and battery as a class A misdemeanor. Id. On appeal, the defendant claimed a violation of the double jeopardy provision of the Indiana Constitution because his use of a single weapon was used to elevate the sentencing classification of several of his convictions. Id. The Indiana Supreme Court observed that “[although not raised by the parties, we have recognized a series of rules of statutory construction and common law that supplements the constitutional protections afforded by the Indiana Double Jeopardy Clause,” id. at 439 (citing Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002); Spivey, 761 N.E.2d at 834), that “Pierce applied the rule that two crimes may not be enhanced by the same bodily injury,” and that “[t]his was an application of the broader rule previously expressed by Justice Sullivan prohibiting conviction and punishment ‘for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.’ ” Id. (citing Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). The Court held that “[t]he repeated use of a weapon to commit multiple separate crimes is not ‘the very same behavior’ precluding its use to separately enhance the resulting convictions” and that “[rjather, the use of a ‘single deadly weapon during the commission of separate offenses may enhance the level of each offense.’” Id. (citing Gates v. State, 759 N.E.2d 631, 633 n. 2 (Ind.2001)). The Court thus declined to find error in the defendant’s enhanced sentences. Id.

In his concurring opinion, Justice Sullivan noted that “[w]hat justifies the multiple enhancements here is the repeated use of the knife by the defendant in committing crimes for which he was convicted,” that “[h]ad the defendant merely been armed with the weapon while committing multiple crimes, and not actually used it (or used it only once), I think it would be improper to impose more than one enhancement,” and that, “[i]n such a circumstance, the multiple enhancements would be for the ‘very same behavior’ and thus violate the rule against multiple enhancements to which this Court subscribed in Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (citing Pierce [], 761 N.E.2d [at] 830[ ], citing in turn Richardson [ ], 717 N.E.2d [at] 55[] (Sullivan, J., concurring); id. at 57 (Boehm, J., concurring in result)).” Id. (Sullivan, J., concurring).

In this case, Sistrunk did not repeatedly use the handgun or use it more than once in committing the offenses for which he was convicted. Busch testified that Sistrunk pointed the gun at her and ordered her to give him the money from the register drawer. Busch also testified that, after Sistrunk had taken the safe drops, he told her to sit on the ground, but she did not testify that he used the weapon a second time. While Sistrunk was still armed with the weapon, the evidence does not show that he used it repeatedly or more than once, and thus, in light of Miller, it is improper here to impose more than one enhancement based on the “very same behavior” of pointing the gun once and then remaining armed throughout the incident. See id. at 438-439. Accordingly, we remand with instructions to enter Sis-trunk’s conviction for criminal confinement as a class D felony and to impose a sentence consistent therewith, to be served concurrent with his sentence for the robbery conviction, resulting in no impact on Ms aggregate sentence.

II.

The next issue is whether the trial court abused its discretion in denying Sis-trunk’s request for funds for an expert witness. Sistrunk’s March 23, 2012 motion states that, in each of the four, cases against him, the State’s evidence would rest largely on eyewitness testimony, that none of the witnesses recognized the robber from previous interactions, that it was defense counsel’s understanding that nothing that was found during the search of Sistrunk’s house had been linked to any of the crimes, and that some of the witnesses stated that they were close to one hundred percent certain that the picture of Sistrunk is of the same man that robbed them. The motion states:

If an expert witness were allowed to testify, defense counsel expects the expert witness would testify as follows: When people are under extreme stress, adrenaline interferes with the ability to form accurate long term memories. As a result, the ability to make an accurate eyewitness identification is reduced. When a gun is involved, the ability to make an accurate eyewitness identification is further reduced, because people have a tendency to focus on the gun rather than the face of the person holding the gun. When an individual is shown a photo lineup of individuals, the individual often picks the person that looks most like the robber. The individual then, because they are not under extreme stress, forms a new memory based on the photograph in the photo array. When asked to make an in court identification, the person uses their memory of the photo-array to make the in court identification rather than their memory of the actual robbery. Most importantly, there is little to no correlation between a testifying witnesses [sic] confidence and accuracy. In other words, a witness who testifies that they are 100% certain about ID is no more accurate than a witness who says that they are 50% certain about ID. Additionally, the testifying witness appears extremely credible. The witness is not being dishonest. The witness is merely unaware of the psychological process that has occurred in their own mind.

Appellant’s Appendix at 61-62. The motion further stated that eyewitness testimony will be the only real substantive evidence of guilt, that according to the Department of Correction (“DOC”) it costs $20,000 to incarcerate a person for a period of one year, and that if he were sentenced to the absolute minimum and received good credit time the cost of incarceration would be $60,000. The motion also stated that the hourly rate of Dr. Roger Terry, Sistrunk’s proposed expert witness, was $100 and that, if a flat fee were preferred and the cases were not joined for trial, he would charge $5,000 to review all of the evidence and to give an opinion on what factors might have affected the witnesses’ ability to make an accurate identification, and if he were asked to begin preparing for testimony at trial this would cost an additional $10,000. The motion stated that security footage existed and that, depending on the quality of the footage, expert testimony regarding eyewitness testimony could become more or less helpful.

At the pretrial conference on July 23, 2012, the court noted that Sistrunk requested the court to order the MCPD to expend budgeted funds on his behalf and that it was the understanding of the court that there was a protocol or process that the MCPD followed in determining whether such a request would be granted. The court asked the MCPD, represented by Robert Hill, to help with the record. Hill testified that the MCPD requires a defendant to show a legitimate need for the requested service and that budgeted funds must be available. Hill further testified that the MCPD did not have any funds remaining in its budget for the request and that he did not believe there had been an adequate showing of need and a demonstration that the requested funds would in fact be beneficial to the case. Hill indicated that an eyewitness expert is a legitimate area of inquiry in the right case but that he did not think this was the right case. The court then stated a familiarity with some literature that experts in this area “will not say the witness is right or wrong” and “[tjhey’ll simply highlight the possibility of mistake.” Supplemental Transcript at 70. Sistrunk’s counsel agreed that the expert “raises his answers in terms of these are potential problems because he can’t offer an opinion on whether or not a witness has testified truthfully.” Id. The court denied Sistrunk’s request for public funds.

Sistrunk contends that the court abused its discretion and violated his right to a fundamentally fair trial in denying his application for public funds. He submits that the only contested issue was the identity of the perpetrator of the robbery, that the court concluded it was only the combination of the video and eyewitness identification that allowed the finding of guilt, that had he been provided the benefit of an expert to discredit the eyewitness’s identification, the only remaining evidence of identity would have been the recording, which by the court’s admission would not have been sufficient to support his conviction. Sistrunk asserts that he demonstrated an expert was necessary pursuant to the factors set forth in Scott v. State, 593 N.E.2d 198, 199 (Ind.1992), that the expert’s services would be directed to a substantial question, and that the expert’s testimony would be admissible at trial. He argues that the severity of the possible penalty militates in favor of an expert, which suggests that a defendant with means facing the possibility of lengthy incarceration would be willing to spend a great deal on an expert. He notes that his proposed expert would have charged an hourly fee of $100 or a single flat fee of $10,000 to prepare for and testify at trials in all four cases, that neither the trial court nor the MCPD suggested that those fees were excessive, and that the amount is a fraction of what it would cost to incarcerate him for one year. He also argues that, without an identification expert, it was virtually impossible for him to attack the testimony of Busch and that “[t]he help of an expert who could have illuminated what is counterintuitive but true — that eyewitnesses, even when they report being ‘certain,’ are often mistaken — would have been invaluable in this case.” Appellant’s Brief at 19. He contends that the procedure used by the trial court was fundamentally unfair and an abuse of discretion, that the MCPD’s involvement in the decision on his request is troubling because the agency was, at least nominally, his lawyer, that the MCPD took an adversarial position against him, that a public defender is fundamentally an advocate not the court’s investigator or advisor, and that the procedure which pitted him against the MCPD was fundamentally unfair.

The State maintains that the court did not abuse its discretion and argues that Sistrunk misunderstands a number of the factors in Scott “by conflating all of them into a hypothetical discussion of the significance of an issue to a defendant’s case.” Appellee’s Brief at 10-11. The State argues that an application for an expert identification witness raises particular concerns under Scott’s criteria regarding “whether the requested expert services could nonetheless be performed by counsel” through cross-examination. Id. at 11-12 (citation omitted). The State further argues that, when records such as photographs or video recordings “are present, the utility of opinion testimony regarding other eyewitness identification is greatly lessened, or even eliminated.” Id. at 13. The State additionally contends that Sistrunk’s proposed expert did not appear to be qualified to testify to the matters identified by his motion, that the proposed expert’s resume “contains virtually no indication that he was qualified to offer expert evidence on the issue of eyewitness identification,” and that the resume did not identify any scholarly work or publications in the areas of identification, memory processes, or stress or adrenaline reactions. Id. at 17. The State argues that it did not rely on an expert and this fact does not favor Sis-trunk’s request. The State further contends that Sistrunk argues only that no one claimed the proposed expert’s fee was excessive, but that his burden was to affirmatively show the fee was reasonable and that he did not do so by comparing the fee to the costs of incarceration. The State notes that defense counsel cross-examined Busch as to aspects of the robbery which could be used to impeach her identification of him and that the record does not support his assertion that an expert witness would have made an error in Busch’s identification more or less likely. The State also argues that Sistrunk’s claims regarding the practice of involving the public defender in the appointment of experts for indigent defendants are waived because Sistrunk and his private counsel never objected or presented arguments against the procedure to the trial court and that, even if not waived, there is no basis for Sis-trunk’s claim that the MCPD did not review his request for an expert witness under the relevant standard.

Indiana Evidence Rule 702 permits expert witness testimony “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” The appointment of experts for indigent defendants is left to the trial court’s sound discretion. McConniel v. State, 974 N.E.2d 543, 558 (Ind.Ct.App.2012) (citing Beauchamp v. State, 788 N.E.2d 881, 888 (Ind.Ct.App.2003) (citing Jones v. State, 524 N.E.2d 1284, 1286 (Ind.1988))), trans. denied. It is within the trial court’s discretion to determine whether the requested service would be needless, wasteful or extravagant. Id. The trial court is not required to appoint at public expense any expert that the defendant might find helpful. Id. The defendant requesting the appointment of an expert bears the burden of demonstrating the need for the appointment. Id.

The central inquiries in deciding this issue are whether the services are necessary to assure an adequate defense and whether the defendant specifies precisely how he would benefit from the requested expert services. Id. (citing Scott v. State, 593 N.E.2d 198, 200 (Ind.1992)). A defendant cannot simply make a blanket statement that he needs an expert absent some specific showing of the benefits that the expert would provide. Id. “The trial court may consider whether the proposed expert’s services would bear on an issue for which expert opinion would be necessary or the request for an expert appears to be exploratory only, whether the expert services will go toward answering a substantial question or simply an ancillary one, the severity of the possible penalty the defendant faces, the cost of the expert services, and the complexity of the case.” Id. at 557-558 (citing Scott, 593 N.E.2d at 200-202). The circumstances under which expert testimony regarding eyewitness identification is permitted are fact sensitive and must be assessed on a case-by-case basis. Cook v. State, 734 N.E.2d 563, 570 (Ind.2000), reh’g denied.

In Reed v. State, the defendant wished to present expert testimony on the subject of the reliability of eyewitness identification, and the trial court refused. 687 N.E.2d 209, 211 (Ind.Ct.App.1997), reh’g denied. On appeal, the court noted that the defendant was convicted solely upon the testimony of one witness. Id. at 212. The court then stated:

In Hopkins [v. State, 582 N.E.2d 345, 353 (Ind.1991) ], the Indiana Supreme Court recognized the trend of cases recognizing the “built-in potential for error in eyewitness cases.” [ ] The court also noted that the admissibility of such expert testimony is favored by the weight of authority. Judge Posner, in Krist v. Eli Lilly & Co. (1990) 7th Cir., 897 F.2d 293 pointed out some problems inherent in witness testimony. “An important body of psychological research undermines the lay intuition that confident memories of salient experiences ... are accurate and do not fade with time unless a person’s memory has some pathological impairment.” Id. at 296.
Although not taking issue with the contention that eyewitness accounts are less reliable than once thought, the Seventh Circuit, perhaps too sweepingly, noted in United States v. Larkin (1992) 7th Cir., 978 F.2d 964, 971, cert. denied (1993) 507 U.S. 935, 113 S.Ct. 1323, 122 L.Ed.2d 709:
“[Ejxpert testimony regarding the potential hazards of eyewitness identification-regardless of its reliability-‘will not aid the jury because it addresses an issue of which the jury already generally is aware, and it will not contribute to their understanding’ of the particular factual issues posed, (citations omitted). These hazards are well within the ken of most lay jurors, and [defendant’s] counsel was granted ample opportunity to discuss those hazards and cast doubt upon the witnesses’ eyewitness identification of his client.”
The holding indicates the view that “experts” do nothing more than highlight the fact that witnesses often misidentify individuals, a concept well within the realm of understanding of the average juror.

Id. at 212-213. After reviewing several opinions in other states, the court held that “we suggest that trial courts might be well advised to permit such expert testimony in order to assist the jury in its evaluation of the evidence,” that “[njevertheless we are reminded that, at least with regard to experts paid from public funds, [the] defendant has the burden of demonstrating that ‘the services [requested] are necessary to assure an adequate defense,’ ” that “[w]hile expert testimony is surely helpful in many cases, it will be truly necessary in far fewer instances,” and that “[t]he concept that eyewitness identification is flawed or subject to serious question in a.particular instance may be placed within the jury’s realm of understanding by careful cross-examination and by counsel’s argument to the jury.” Id. at 213-214 (quoting Scott, 593 N.E.2d at 200).

In Cook, the defendant wished to present the testimony of Dr. Terry as an expert on the subject of the reliability of eyewitness identification, and the trial court did not permit Dr. Terry to testify before the jury. 734 N.E.2d at 569. The Court noted that none of the witnesses who identified the defendant was equivocal in his or her testimony and held that the trial court did not abuse its discretion in refusing to allow the expert testimony. Id. at 571.

In Farris v. State, the defendant sought to present the testimony of Dr. Terry as an expert on the subject of the reliability of eyewitness identification, and the trial court refused. 818 N.E.2d 63, 67 (Ind.Ct.App.2004), trans. denied. The Court initially noted that Indiana Evidence Rule 704(b) provides that “[wjitnesses may not testify to opinions concerning ... whether a witness has testified truthfully....” Id. The Court then held that the trial court had found that, based on the evidence presented and Farris’s cross-examination of the witnesses, Dr. Terry’s testimony was not necessary to place the concept of eyewitness misidentification within the jury’s realm of understanding and that “[t]his was a valid ground for excluding Dr. Terry from testifying.” Id. at 68. The Court found that there were two eyewitnesses and that “[t]heir accounts of the robbery were consistent and supported by the gas station’s surveillance video” and held the trial court did not abuse its discretion by excluding Dr. Terry from testifying. Id.

In this case, as noted by Sistrunk, Busch was the sole eyewitness to the armed robbery. However, the record reveals that Sistrunk’s counsel was able to thoroughly cross-examine Busch regarding her memory of the robbery and her identification of Sistrunk as the robber. Specifically, Sis-trunk’s counsel questioned her regarding her vision, the fact that she felt scared and was worried she would be shot at the time of the robbery, the trauma of experiencing the robbery and the fact that she- quit her job a few days afterwards, the jacket and hat worn by the person who robbed her, the eyebrows of the person, the reason she picked the photograph of Sistrunk from the array, the fact that she looked at the photographs closely, that at that time she was seventy or eighty percent sure that Sistrunk was the person who robbed her, that after she signed the array and the detective had stated she picked the right guy she became one hundred percent sure, and that Sistrunk had a scar above his right eyebrow and Busch did not remember seeing the scar at the time of the robbery. Busch also indicated that she was in shock when the robbery happened, and when asked if “[i]t’s hard to remember exactly what you saw during the robbery,” she replied “[i]t’s hard, it is, yes.” Transcript at 47. In addition, the State admitted two versions of a video recording taken from a camera at the gas station showing the robbery, which at a minimum favors a finding that the trial court did not abuse its discretion in determining that Dr. Terry’s testimony was not necessary under the circumstances. See Farris, 818 N.E.2d at 68 (noting that the eyewitness accounts of the robbery were supported by the gas station’s surveillance video). In closing arguments, Sistrunk’s defense counsel argued that the video recording did not show Sistrunk’s mark above the eyebrow or the tattoo on his hand and that, although the video does not exclude Sistrunk as a possible suspect, it is not enough to make an identification of him. Defense counsel also argued that Busch was in shock, did not have a good look at the person who robbed her, picked the person in the photo array because he had the darkest skin, and she was seventy to eighty percent sure that she had picked the right person. We also note that the State did not rely upon an expert and the relative cost of the proposed expert testimony at trial.

We also note that this case was tried to the court as the trier of fact, that judges are presumed to know the law, that the concept that eyewitness identifications may be mistaken or questionable in certain circumstances is within the realm of understanding of the court, and that additional testimony related to that concept in certain circumstances, such as here where the court was able to assess Busch’s testimony and the video recording, may be of limited utility.

Based upon the record, Sistrunk failed to meet his burden of demonstrating that the testimony of his proposed expert was necessary to assure an adequate defense, and we cannot say the trial court abused its discretion in denying his request for public funds to pay for the fees of the proposed expert. See Reed, 687 N.E.2d at 211-214 (noting the defendant was convicted solely upon the testimony of one witness and holding that the defendant did not meet his burden of demonstrating that the expert testimony regarding the subject of the reliability of eyewitness identification was necessary to assure an adequate defense and that the concept that eyewitness identification is flawed or subject to serious question in a particular instance may be placed within the jury’s realm of understanding by careful cross-examination and by counsel’s argument to the jury).

To the extent that Sistrunk asserts the court erred in involving the MCPD or Hill in the process of determining whether to grant his request for funds for an expert, Sistrunk, who was represented by private counsel, did not raise the issue before the trial court and thus waived the issue. See In re Larry L. Thompson Revocable Trust, 954 N.E.2d 1056, 1061 (Ind.Ct.App.2011) (“A party must show that it gave the trial court a bona fide opportunity to pass upon the merits of a claim before seeking an opinion on appeal.”). Waiver notwithstanding, Sis-trunk does not demonstrate that the recommendation of the MCPD was based solely on budgetary grounds, that the trial court relied exclusively on the MCPD’s statement and failed to evaluate the necessity of the requested expert, or that he was prejudiced by the court taking into consideration the statements made by Hill. Sistrunk is not entitled to reversal of his convictions on this basis.

CONCLUSION

For the foregoing reasons, we remand with instructions to enter Sistrunk’s conviction for criminal confinement as a class D felony and to impose a sentence consistent therewith to be served concurrent with his sentence for robbery, and in all other respects we affirm.

Affirmed in part, reversed in part, and remanded.

ROBB, J., concurs.

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

BARNES, Judge,

concurring in part and dissenting in part with separate opinion.

Although I agree with the majority’s conclusion that the trial court did not abuse its discretion in denying Sistrunk’s request for expert witness funds, I respectfully dissent from its conclusion that the robbery and confinement were separate criminal transgressions. Ordering Busch to sit on the floor after Sistrunk took the money was inherently part of the robbery because it effectuated his getaway. This is not to say I view all actions that effectuate a getaway as inherently part of a robbery. But here, where Sis-trunk did not order Busch to another location or otherwise restrain her and only ordered her to sit behind the counter while he left the store, does not, in my view, rise to the level of a separate crime. This was something that simply was needed to carry out the original robbery. Sistrunk has demonstrated that the confinement was not greater than what was needed to carry out the robbery. Accordingly, I would vacate the confinement conviction entirely.

      . This appeal was taken from cause number 49G05-1202-FB-010112 ("Cause No. 112”). We also issue an opinion in Sistrunk v. State, No. 49A04-1210-CR-527, 2014 WL 2095345 (Ind.Ct.App. May 19, 2014), an appeal taken from Sistrunk's convictions for robbery and criminal confinement under cause number 49G05-1202-FB-10061 ("Cause No. 61”).

      . There were approximately seven video cameras in the gas station.

      . These motions were filed and the July 23, 2012 hearing was held under Cause Nos. 112, 61, 62, and 63.

      . A video recording of the robbery was admitted as State’s Exhibit 2 and a slow-motion version of the recording was admitted as State's Exhibit 2A.

      . This court has noted that "[simultaneous convictions of robbery and confinement charges do not violate Indiana’s statutory elements test.” Merriweather v. State, 778 N.E.2d 449, 454 (Ind.Ct.App.2002) (citation omitted).

      . In support of his argument, Sistrunk points to Vanzandt v. State, in which this court concluded that the defendant's convictions for robbery and criminal confinement violated double jeopardy as there was “an absence of evidence to establish the essential elements of confinement of [the victim] independent of the robbery of [the victim]” and that "[t]he force or threat of force exerted by Vanzandt against [the victim] was that exerted to accomplish the robbery.” 731 N.E.2d 450, 455 (Ind.Ct.App.2000), trans. denied. "The evidence adduced at trial disclosed that Van-zandt, armed with a handgun, ordered [the two victims] to lie down on the floor while he effected his robbery and obtained access to the getaway vehicle.” Id. There is no indication that the confinement in Vanzandt went beyond that necessary to effectuate the robbery. Sistrunk ordered Busch to the floor after the robbery was complete. We find Vanzandt distinguishable.


author: NAJAM, Judge.

text:
    Larry D. RUSSELL, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A01-1312-CR-532.
    Court of Appeals of Indiana.
    June 5, 2014.

      Cara Schaefer Wieneke, Special Assistant to the State Public Defender, Plain-field, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Larry D. Russell, Jr. appeals his sentence following his convictions for five counts of neglect of a dependent, as Class C felonies, and two counts of criminal confinement, as Class C felonies, pursuant to a guilty plea. Russell presents a single issue for our review, namely, whether the trial court sentenced Russell as provided in the plea agreement. But our resolution of this issue requires us to address a more fundamental issue sua sponte, namely, whether Russell’s plea agreement is void and unenforceable as a matter of law.

We hold that the sentencing provision in Russell’s plea agreement is contrary to law, and we reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Russell and his wife adopted three teenaged children: P.G., B.J., and T.D. (“the children”). Between August 23 and November 23, 2012, Russell engaged in repeated acts of extreme abuse and neglect of the three children. The children lived together in one bedroom, and Russell locked the doors to that bedroom with several padlocks on the outside of the doors. There were no light fixtures in the bedroom, and the windows were covered with plywood. Russell would sometimes lock the children in the bedroom for eighteen to twenty-four hours per day. Russell deprived the children of food and access to a bathroom for extended periods of time. The children devised a way of reaching the kitchen to get food by climbing through a loose panel in the wall and burrowing a tunnel through the inside of the walls and ceiling.

The children would typically urinate in a plastic bottle and store it in a hole in the bedroom wall. When Russell and his wife discovered the bottle of urine, they proceeded to pour the urine over the children’s heads. Russell and his wife also rubbed a product called “Icy Hot” on the children’s genitals and rectums, and they would duct-tape diapers to the children before the children went to bed. Russell also tied the children to the beds with duct tape and rope. Russell waterboarded the children and bound their arms behind their backs with a belt. Finally, when Russell wanted to make certain that the children would stay quiet, he placed a rolled sock in the mouth of each child and secured it with duct tape.

On November 23, P.G. freed himself from the rope and duct tape Russell had used to keep him in bed, pried the plywood from a window, broke the window, and jumped from the second-story window to the ground below. P.G. then made his way to a hospital and reported the abuse. At that time, P.G. was seventeen years old but weighed only eighty-two pounds.

The State charged Russell with five counts of neglect of a dependent, as Class C felonies; two counts of criminal confinement, as Class C felonies; three counts of criminal confinement, as Class D felonies; and neglect of a dependent, as a Class D felony. On September 25, 2013, Russell pleaded guilty to five counts of neglect of a dependent, as Class C felonies, and two counts of criminal confinement, as Class C felonies, pursuant to a plea agreement. In exchange for his plea, the State agreed to dismiss the remaining four counts. The plea agreement left sentencing open to the trial court’s discretion, but capped the sentence at ten years “pursuant to Indiana Code Section 35 — 50—1—2(c).”

The trial court accepted the plea agreement and sentenced Russell as follows:

The following statutory aggravating factors have been proven: the harm, injury, loss and damage suffered by the victims in this case is significant, greater than the elements necessary to prove the commission of the crimes, and ongoing; the defendant has a history of criminal or delinquent behavior; and the defendant recently violated the conditions “of any probation, parole, pardon, community corrections placement, or pretrial release” in that on May 30, 2012[,] he was released OR on charges of Domestic Battery, subsequently placed on deferred prosecution in that matter on September 10, 2012, and the instant offenses were committed from August 23, 2012[,] to November 23, 2012.
The court finds the following statutory mitigating factors: defendant agrees to pay restitution. The court finds the evidence does not establish mitigating factors under I.C. § 35 — 38—1—7.1(b)(2), (b)(6), (b)(7), (b)(8) or (b)(10). The court acknowledges defendant’s acceptance of responsibility and his expression of remorse, but finds these factors outweighed by the aggravating factors, and undermined by his statement upon arrest that anyone with children like the victims would have done the same thing.
The nature and circumstances of the crimes are extreme and aggravate the sentence. These were not single, isolated incidents of simply going too far with discipline, or bad parenting skills. The victims in this case were foster children needing a safe, loving, nurturing home. What they got, after being adopted by defendant, was a prison cell, without the amenities, and an existence involving torture, starvation, padlocks, deadbolts, and escape. Defendant’s actions were deliberate and time consuming.
While the rest of defendant’s home contained reasonably clean and safe living quarters, including a kitchen with enough food for the family, this was not the case for the victims, whose room can only be described as cold, dark, sparse and depressing. It is evident the defendant planned and executed his crimes over a significant period of time. He spent a considerable amount of time turning part of his home into a penal facility for the three victims. One entrance to their room was boarded, with nails, by a large piece of plywood. Defendant affixed to the outside of the other door a series of latches and padlocks, and an elaborate, homemade, “deadbolt” locking bar passing through the door jamb. There were holes in the ceiling tiles, both upstairs and down, where one of the victims attempted to tunnel through the walls, out of his cell, and into the kitchen to obtain food. At night, the children were restrained to their beds with duct tape and rope.
It is apparent the prison-like accommodations were the norm for the victims. They endured inhumane conditions when what they needed, what they wanted, was parents to love and care for them after they had been taken away from their biological parents. Each of the victims deserves justice. The court finds the following to be an appropriate sentence. On each of Counts 1, 4 and 9 involving P.G., the defendant is sentenced to the Department of Correction for eight (8) years, concurrent with one another. On each of Counts 2, 5 and 10, involving B.J., the defendant is sentenced to the Department of Correction for eight (8) years, concurrent with each other, but consecutive to Counts 1, 4 and 9. On Count 3, involving T.D., the defendant is sentenced to the Department of Correction for eight (8) years, consecutive to Counts 1, 4 and 9 and Counts 2, 5 and 10. However, pursuant to the limitation imposed by I.C. § 35-50-1-2, defendant’s aggregate, consecutive sentence is limited to ten (10) years. ...

Appellant’s App. at 97-98 (emphases added). This appeal ensued.

DISCUSSION AND DECISION

Russell contends that “the sentencing order and abstract of judgment issued in this case are confusing and somewhat misleading regarding what sentence Russell was actually given.” Appellant’s Brief at 4. And he maintains that the trial court “was prohibited from entering any sentence other than 10 total years” pursuant to Indiana Code Section 35-50-l-2(c). Id. Russell asserts that the Department of Correction is treating him “as if he was serving a 24-year sentence with all but 10 years suspended. This has negatively affected his classification status, requiring him to serve his sentence in a more restrictive setting than he otherwise would have.” Id. On this argument, we agree with the State that the sentencing order and abstract of judgment are clear that the trial court imposed a ten-year aggregate sentence.

That said, the parties and the trial court are mistaken that Russell’s sentence is limited to ten years as a matter of law. Indiana Code Section 35-50-l-2(c) provides in relevant part that, except for crimes of violence, the total of the consecutive terms of imprisonment to which the defendant is sentenced for multiple felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony that is one class of felony higher than the most serious of the felonies for which the person has been convicted. “Episode of criminal conduct” means offenses or a connected series of offenses that are closely related in time, place, and circumstance. I.C. § 35-50-1-2(b).

Our supreme court has explained that, in determining whether multiple offenses constitute an episode of criminal conduct, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature of the crimes. See Reed v. State, 856 N.E.2d 1189, 1200 (Ind.2006). Our courts have also held that, where a complete account of a crime can be given without referring to the other offense, the offenses are not an “episode of criminal conduct.” Tedlock v. State, 656 N.E.2d 273, 276 (Ind.Ct.App.1995). Here, the factual basis for Russell’s guilty plea encompasses the evidence of multiple acts of neglect and confinement that occurred repeatedly over the course of three months. Russell’s crimes do not constitute an episode of criminal conduct. Therefore, the law does not require that Russell’s sentence be limited.

In Lockhart v. State, 671 N.E.2d 893, 904 (Ind.Ct.App.1996), we .held that the trial court “improperly found Lockhart’s molestations of [the child victim] to constitute an ‘episode of criminal conduct’ and, thereby, erroneously reduced the sentence in accordance with [Indiana Code Section 35-50-1-2].” And we explained that,

[a]lthough the trial court has broad discretion in sentencing, it must act within statutorily prescribed limits. Niece v. State, 456 N.E.2d 1081, 1084 (Ind.Ct.App.1983). A sentence which is contrary to, or violative of, the penalty mandated by the applicable statute is an illegal sentence. Id. When the sentence imposed by the trial court is found to be improper, it is the general if not unanimous rule that the trial court has the power to vacate the illegal sentence and impose a proper one. Williams v. State, 494 N.E.2d 1001, 1004 (Ind.Ct.App.1986); see Devaney v. State, 578 N.E.2d 386, 389 (Ind.Ct.App.1991) (holding that it is the duty of the appellate courts to bring illegal sentences into compliance even if the correction subsequently increases the sentence). Imposition of the corrected sentence does not run afoul of the prohibition against double jeopardy. Id.
The application of I.C. § 35-38-1-7.1 is only required when the defendant engages in an “episode of criminal conduct.” Because Lockhart’s actions do not constitute an “episode,” the sentence originally imposed by the trial court contravened the statute and is an illegal sentence. See Niece, 456 N.E.2d at 1084. Accordingly, we remand this cause to the trial court with instructions to impose a statutorily authorized sentence.

Lockhart, 671 N.E.2d at 904-05 (emphases added); see also Young v. State, 901 N.E.2d 624, 626 (Ind.Ct.App.2009) (holding sua sponte that defendant’s sentence was illegal and ordering an increase to the executed portion of his sentence), trans. denied.

Likewise here, Russell’s ten-year sentence was based solely on an erroneous application of Indiana Code Section 35-50-1-2. Russell’s offenses do not constitute an “episode” subject to the limitations imposed by Indiana Code Section 35-50-1-2. On these facts, the sentence imposed by the trial court contravened the statute and is an illegal sentence. See Lockhart, 671 N.E.2d at 904-05.

In their supplemental briefs, the parties concede that Russell’s crimes do not constitute an episode of criminal conduct under the statute. Nevertheless, they contend that the plea agreement is valid and enforceable. We cannot agree.

Our supreme court has held that

a plea agreement is contractual in nature, binding the defendant, the state and the trial court. The prosecutor and the defendant are the contracting parties, and the trial court’s role with respect to their agreement is described by statute: If the court accepts a plea agreement, it shall be bound by its terms.

Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.1994) (citation and quotation omitted). But, “as a general proposition[,] a contract made in violation of a statute is void and unenforceable.” Lee v. State, 816 N.E.2d 35, 38 (Ind.2004).

However, it is also true that if a contract contains an illegal provision that can be eliminated without frustrating the basic purpose of the contract, the court will enforce the remainder of the contract. Harbour v. Arelco, Inc., 678 N.E.2d 381, 385 (Ind.1997); see also 17A C.J.S. Contracts 297 (1999) (“[T]he fact that one part of an agreement may be void or unenforceable does not render the entire agreement void, if the prohibited and valid provisions are severable, and if the parties would have entered the bargain absent the illegal portion of the original agreement ”). These principles apply even where the illegal or otherwise objectionable provision is prohibited by statute.

(Some citations omitted; emphasis added).

Here, the parties attempt to treat the ten-year sentence as severable. But sentencing is a material element of every plea agreement, and we cannot say either that Russell would have pleaded guilty under the plea agreement without the ten-year cap on his sentence or that the State would have agreed to the terms of the plea agreement without its erroneous understanding of Indiana Code Section 35-50-1-2. And we reject Russell’s other arguments in his supplemental brief that the plea agreement, including the sentencing cap, should be upheld. In particular, Russell states:

Neither Russell nor the State wished to undo the agreement they reached. Doing so would expose Russell to a much greater overall sentence, and it would require the State to spend a great deal of time and money taking the case to trial. Most importantly, declaring the plea agreement void and unenforceable in this case would require the young victims, who likely took comfort in knowing that the matter had finally been resolved, to appear in court and testify about their abuse.

Appellant’s Supp. Brief at 9.

To the contrary, the parties’ desire for expediency has no bearing on the validity of the plea agreement. Moreover, while we acknowledge the local prosecutor’s discretion in such matters, there is no question that this case is exactly the type of case that the State should be expending its time and resources prosecuting. And we cannot sanction an illegal sentence. While we respect the consideration that the victims should be spared the burden of testifying at trial, this concern does not justify enforcement of an illegal agreement.

The parties also maintain that the mis-characterization of Russell’s crimes as an episode of criminal conduct is harmless because a ten-year sentence could otherwise be lawfully imposed with these convictions, and the parties could have agreed to cap his sentence at ten years without invoking the statute. Thus, they contend that the plea agreement survives because the references to the statutory limitation in the plea agreement and the sentencing order were surplusage. But we are not inclined to ignore the parties’ intent as expressed in the plain language of the agreement. The parties based their plea agreement on a statute that they both now concede does not apply.

Further, and significantly, the trial court likewise relied on the statute when it accepted the plea agreement and imposed Russell’s sentence. The parties assume that the trial court would have approved the plea agreement with the sentence capped at ten years without the stated statutory limitation, but we read the trial court’s sentencing order differently. The trial court found that, “the nature and circumstances of the crime are extreme and aggravate the sentence.” Appellant’s App. at 97. And the court imposed three sets of concurrent eight-year sentences with the three sets to be served consecutively, for a total executed sentence to the Department of Correction of twenty-four years, after which the court stated, “However, pursuant to the limitation imposed by IC § 35-50-1-2, defendant’s aggregate, consecutive sentence is limited to ten (10) years[.]” Id. at 98. The sentencing statement indicates that, but for the statutory limitation, the trial court would have sentenced Russell to twenty-four years executed. Thus, expressly relying on the language of the parties’ plea agreement, the trial court incorrectly applied the statutory limitation imposed by Indiana Code Section 35-50-1-2. Accordingly, as it stands now, the mistaken statutory reference cannot be severed because it was a material element of both the plea agreement and the sentence, and we cannot say that Russell, the State, or the trial court would have agreed to or accepted the plea without the erroneous language that purported to cap Russell’s sentence. We must conclude that the misapplication of the statute was not harmless and, therefore, not sev-erable.

In sum, the plea agreement and sentence were based on the faulty premise that Russell’s sentence must be limited to ten years under Indiana Code Section 35-50-l-2(c). Thus, the sentence imposed pursuant to the plea agreement was an erroneous sentence, and we cannot uphold Russell’s plea agreement with the sentencing cap intact. See Lee, 816 N.E.2d at 38. We reverse Russell’s sentence and remand to the trial court with the following instructions: on remand, Russell shall first have the option to ratify and proceed with the current plea agreement without the illegal sentencing limitation. If he chooses that option and enters an open plea on all five counts, the trial court shall have total discretion in resentencing Russell, and he would face a possible maximum sentence of fifty-six years. If he does not exercise that option within thirty days after this opinion has been certified (unless extended by the trial court), the plea agreement shall be vacated. See, e.g., Alvey v. State, 911 N.E.2d 1248, 1251 (Ind.2009) (holding that the defendant had the option to keep his plea agreement without an unenforceable provision).

Reversed and remanded with instructions.

VAIDIK, C.J., and BROWN, J., concur.

      . On April 2, 2014, we ordered the parties to file supplemental briefs on this issue.

      . Neither neglect of a dependent nor criminal confinement is listed as a "crime of violence” under the statute. See I.C. § 35-50-l-2(a). Even B felony neglect of a dependent, which could have been charged here given the facts as pleaded showing that the children suffered serious bodily injuries, is not listed as a crime of violence under the statute.

      . Ten years is the advisory sentence for a Class B felony, which is one class higher than the C felonies with which Russell was convicted.

      . Although the parties have provided us with supplemental briefs on this issue, the record is devoid of evidence whether Russell would have entered into the plea agreement absent the illegal sentence.

      . In exchange for Russell’s plea, the State dismissed four counts. If Russell rejects the current plea agreement and the State reinstates the dismissed counts, Russell's possible maximum sentence would be sixty-eight years. The trial court has discretion to run all of the convictions consecutively in light of the aggravators, including the fact that Russell abused his position of trust with each of the three victims.