text:
    Paul M. BROCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A04-1208-CR-433.
    Court of Appeals of Indiana.
    Feb. 26, 2013.

      Teri A. Flory, Flory and Smith, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Paul M. Brock (“Brock”) was convicted in Tippecanoe Superior Court of Class C felony auto theft, Class D felony intimidation, Class A misdemeanor operating a vehicle while intoxicated, Class A misdemeanor resisting law enforcement, and Class A misdemeanor striking a law enforcement animal, and was also found to be an habitual offender. The trial court sentenced Brock to an aggregate sentence of twelve years, with eleven years executed and one year suspended to probation. Brock appeals and presents three issues, which we restate as:

I. Whether the trial court abused its discretion in considering as an aggravating factor that Brock had a history of rules violations when previously incarcerated;
II. Whether the sentence imposed by the trial court constitutes impermissible double enhancement of Brock’s sentence; and
III. Whether Brock’s sentence is inappropriate in light of the nature of the offenses and the character of the offender.

We affirm.

Facts and Procedural History

On the night of January 6, 2012, Crystal Cochran (“Cochran”), a manager of a gas station convenience store in Lafayette, Indiana, was preparing to finish her shift. In preparation, she started her car and left it running so that it would be warmed up when she was ready to leave. When she went back inside the store, she saw a regular customer, later identified as Brock. Shortly after Cochran came back inside, Brock left the store, got into Cochran’s car, and drove away. Cochran telephoned the police and informed them that someone had just stolen her car.

The police quickly located Brock driving Cochran’s stolen car and stopped the vehicle. When the police attempted to place handcuffs on Brock, he pulled away from the officers. One of the officers was accompanied by a police dog, and he used the dog to help subdue Brock. Brock responded by kicking the dog twice in the head. The police observed that Brock appeared to be intoxicated. As the police transported Brock to the hospital, Brock told the officers that he wanted out of the handcuffs so that he could “whoop [their] ass[es],” and further stated that he would “hunt down” every officer involved in his arrest and “eat their children, dogs, and entire families when he found them.” Appellant’s App. p. 15. A blood test taken at the hospital revealed that Brock had a blood alcohol concentration (“BAC”) of .26.

On January 11, 2012, the State charged Brock as follows: Count I, Class C felony auto theft with a prior conviction of auto theft; Count II, Class C felony auto theft; Count III, Class A misdemeanor resisting law enforcement; Count IV, Class D felony intimidation; Count V, Class A misdemeanor operating a vehicle while intoxicated endangering a person; Count VI, Class A misdemeanor operating a vehicle while intoxicated with a BAC of at least .15; and Count VII, Class A misdemeanor striking a law enforcement animal. The State later amended Count II to a Class D felony and also added an allegation that Brock was an habitual offender.

On July 2, 2012, Brock pleaded guilty to all counts without a plea agreement. The trial court accepted the plea and held a sentencing hearing on August 2, 2012. The court found as mitigating that Brock pleaded guilty without a plea agreement, had a history of employment, and had mental health issues. The trial court found as aggravating that Brock had an extensive criminal history, was on probation at the time of the instant offenses, had a history of substance abuse, had previously violated rules when incarcerated, and that prior attempts at rehabilitation had failed.

The trial court merged Count II into Count I and Count V into Count VI. The court then sentenced Brock to seven years on the Class C felony conviction in Count I, two years on the Class D felony conviction in Count IV, and one year each on the Class A misdemeanor convictions in Counts III, VI, and VII. The sentences on Counts I, IV, and VI were ordered to be served consecutively to each other, and the sentences on Counts III and VII were ordered to be served concurrently with the other sentences. The trial court attached the habitual offender enhancement to Count IV, enhancing the Class D felony conviction for intimidation by two years. Thus, the trial court sentenced Brock to an aggregate term of twelve years. The trial court also ordered Brock to serve eleven of these years executed, with one of the years executed in community corrections, and suspended one year to probation. Brock now appeals.

I. Improper Aggravating Factor

Brock first claims that the trial court abused its discretion by considering an improper aggravating factor, i.e., that Brock had a history of rules violations during his previous periods of incarceration. Sentencing decisions “rest within the sound discretion of the trial court and are reviewed on appeal 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. A trial court may abuse its sentencing discretion by: (1) failing to enter a sentencing statement, (2) finding aggravating or mitigating factors unsupported by the record, (3) omitting mitigating factors clearly supported by the record and advanced for consideration, or (4) giving reasons that are improper as a matter of law. Id. at 490-91. Because a trial court no longer has any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence under the advisory sentencing scheme, it cannot now be said to have abused its discretion in failing to properly weigh such factors. Id. at 491.

Brock acknowledges that a defendant’s behavior during incarceration may be considered as an aggravating factor, as it relates to the risk that the defendant will commit another crime. See Anderson v. State, 798 N.E.2d 875, 880-81 (Ind.Ct.App.2003). However, Brock claims that there was an insufficient factual basis for the trial court’s finding that he had violated the rules when previously incarcerated. We disagree.

The pre-sentencing investigation report (“PSI”) included a document prepared by the Kansas Department of Corrections indicating that six disciplinary reports had been filed against Brock while incarcerated in that state. Appellant’s App. p. 154-55. Brock had the opportunity to review the PSI but made no objection to the information therein pertaining to his behavior while incarcerated. See Tr. p. 33-34. Thus, Brock did have the opportunity to challenge the factual basis of the aggravating factor he now challenges on appeal, but failed to do so. And he cannot now challenge this factual basis for the first time on appeal.

Still, even if we were to agree with Brock with regard to the propriety of this aggravating factor, remand for re-sentencing is an appropriate remedy only if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record. Anglemyer, 868 N.E.2d at 490. Here, the trial court found several other aggravating factors, including: Brock’s significant criminal history, which includes ten prior felony convictions and over twenty prior misdemeanor convictions; that Brock was on probation at the time of the current offense; and that prior attempts at rehabilitation have failed. Given these aggravating factors, none of which Brock challenges on appeal, we can say with confidence that the trial court would have imposed the same sentence even if it had not considered Brock’s behavior while incarcerated as an aggravating factor.

II. Habitual Offender Enhancement

Brock next claims that the trial court erred in ordering the sentence enhanced by the general habitual offender statute to run consecutively with his sentence for auto theft. Our supreme court has held that “a defendant convicted under a progressive penalty statute ‘may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony....’ used to elevate the underlying charge.” Beldon v. State, 926 N.E.2d 480, 483 (Ind.2010) (quoting Mills v. State, 868 N.E.2d 446, 452 (Ind.2007) (emphasis supplied in Beldon)).

Here, Brock’s conviction for auto theft was elevated to a Class C felony based on his prior conviction for auto theft in 2011. See Appellant’s App. p. 7. However, this same offense was not then used again to support the general habitual offender enhancement. To the contrary, the predicate offenses supporting the general habitual offender enhancement were Brock’s 1998 conviction for Class D felony residential entry and his 2006 conviction for Class D felony theft. Thus, in the present case, there is no issue with using the same prior felony conviction to both elevate the charge and support an enhancement under the general habitual offender statute.

Still, our supreme court in Beldon also stated that “ ‘[AJbsent explicit legislative direction, a sentence imposed following conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute.’ ” Id. (quoting State v. Downey, 770 N.E.2d 794, 796 (Ind.2002)). Brock claims that his conviction for auto theft was a progressive penalty conviction because it was elevated to a Class C felony based on his prior conviction for auto theft. We agree. See Davis v. State, 935 N.E.2d 1215, 1218 (Ind.Ct.App.2010) (treating conviction for Class C felony auto theft as a conviction under a progressive penalty statute), trans. denied.

We disagree, however, with Brock’s assertion that his conviction under this progressive penalty statute was further enhanced by the general habitual offender statute. The trial court here clearly attached the habitual offender enhancement to Brock’s conviction for Class D felony intimidation, not his elevated conviction for Class C felony auto theft.

This case is therefore distinguishable from Dye v. State, 972 N.E.2d 853 (Ind.2012). In Dye, the defendant was convicted of possession of a firearm by a serious violent felon (“SVF”) based upon his 1998 conviction for battery with a deadly weapon. Dye’s sentence on his SVF conviction was then enhanced under the general habitual offender statute based upon his 1998 conviction for possession of a handgun within 1,000 feet of a school and his 1993 conviction for forgery. Our supreme court held that the SVF conviction was pursuant to a progressive penalty statute and that, therefore, the sentence on this conviction could not be further enhanced by the general habitual offender statute. Id. at 858.

In contrast, here Brock’s sentence for auto theft was elevated to a Class C felony under a progressive penalty statute, but was not further enhanced by the general habitual offender statute. Instead, the trial court explicitly attached the general habitual offender enhancement to Brock’s sentence for intimidation.

Brock nevertheless claims that he was subject to double enhancement because the trial court ordered his sentence for intimidation, which was enhanced by the general habitual offender statute, to run consecutively to the sentence for auto theft, which was elevated under a progressive penalty statute. But this does not mean that the sentence for auto theft was itself enhanced under the general habitual offender statute.

We acknowledge our supreme court’s opinion in Sweatt v. State, 887 N.E.2d 81 (Ind.2008), but find it readily distinguishable. In Sweatt, the defendant’s SVF conviction and his status as an habitual offender were both based on the same prior rape conviction. But the habitual offender enhancement was applied to the defendant’s conviction for burglary, not his SVF conviction. Our supreme court held that this “d[id] not ... create a double enhancement” because the prior rape conviction supported enhancements that operated on separate counts. Id. at 84. However, the court held that “where separate counts are enhanced based on the same prior felony conviction, ordering the sentences to run consecutively has the same effect as if the enhancements both applied to the same count.” Id.

Here, the trial court did order both the sentence on the elevated conviction for auto theft and the enhanced sentence for intimidation to be served consecutively. But here, unlike in Sweatt, these enhancements were not based on the same prior felony conviction. We therefore conclude that Sweatt is not controlling and that the trial court’s imposition of consecutive sentences does not constitute improper double enhancement under the facts and circumstances of the present case.

III. Appellate Rule 7(B)

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence imposed by the trial court. This appellate authority is implemented through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In our review of sentences under this rule, “we must and should exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355 (Ind.Ct.App.2011), trans. denied. And although we have the power to review and revise sentences, “[t]he principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). It is the defendant’s burden on appeal to persuade us that the sentence imposed by the trial court is inappropriate. Trainor, 950 N.E.2d at 355; Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Here, the nature of Brock’s offenses support the trial court’s sentencing decision. Brock’s BAC was .26, over three times the statutory threshold of .08, and almost double the .15 required to elevate his OWI conviction to a Class A misdemeanor. Brock brazenly stole a running vehicle and resisted the police when they attempted to arrest him, kicking a police dog twice in the head. Brock threatened not only to physically attack the officers, but also threatened to “hunt down” and “eat” the officers’ children, families, and pets. Appellant’s App. p. 15. '

Moreover, the character of the offender alone would support the trial court’s sentencing decision. Brock has a lengthy criminal history that includes ten prior felony convictions for crimes such as battery causing serious bodily injury, battery causing bodily injury, battery by bodily waste, intimidation, burglary, residential entry, theft, auto theft, resisting law enforcement, and possession of marijuana. See Appellant’s App. pp. 122-27. Brock has also accumulated over twenty prior misdemeanor convictions. His criminal history also includes convictions for the same crimes he committed in the instant case, i.e. auto theft, intimidation, resisting law enforcement, and operating a vehicle while intoxicated. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App.2007) (noting that the significance of a defendant’s criminal history in assessing his character varies based on the gravity, nature, and number of prior offenses in relation to the current offense). Brock’s criminal history reveals that he is a violent offender, and prior showings of leniency and attempts of rehabilitation have failed. Indeed, Brock has repeatedly violated the terms of his probation and had his probation revoked, and Brock was on probation at the time of the instant offenses.

Although Brock now claims that his criminal history is the result of untreated mental illness, there is no indication that he has sought treatment for any mental illness. Indeed, the State notes that Brock had over twenty years to seek treatment, but has failed to do so. Under these facts and circumstances, we are unable to say that Brock’s aggregate sentence of twelve years, with one year suspended to probation, is inappropriate in light of the nature of the offenses and the character of the offender.

Conclusion

The trial court did not abuse its discretion in considering Brock’s behavior while incarcerated as an aggravating factor, and even if it did abuse its discretion, any error was harmless. Nor did the trial court subject Brock to impermissible double enhancement when it ordered his elevated sentence for auto theft to be served consecutively to the sentence for intimidation that was enhanced under the general habitual offender statute. Lastly, Brock’s sentence of twelve years, with one year suspended to probation, is not inappropriate in light of the nature of the offenses and the character of the offender.

Affirmed.

KIRSCH, J., and CRONE, J., concur.

      . Furthermore, if we conclude that the trial court has abused its discretion in sentencing, we need not remand for resentencing if the sentence imposed is not inappropriate. Chappell v. State, 966 N.E.2d 124, 134 n. 10 (Ind.Ct.App.2012), trans. denied; see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind.2007) (noting that when trial court errs in sentencing defendant, court on appeal may exercise authority to review and revise sentence instead of remanding for resentencing). As discussed infra, we conclude that Brock's sentence is not inappropriate.

      . This is a significant difference. Had the trial court attached the general habitual offender enhancement to the already-elevated conviction for Class C felony auto theft, Brock would have been subject to an habitual offender enhancement of four to twelve years. See Ind.Code § 35-50-2-8 (providing habitual offender enhancement must be equivalent to at least the advisory sentence but no more than three times the advisory); Ind.Code § 35-50-2-6 (providing that advisory sentence for a Class C felony is four years). Such double enhancement is prohibited. See Beldon, 926 N.E.2d at 483. However, because the trial court was required by case law to attach the general habitual offender enhancement to the Class D felony intimidation conviction, Brock was subject to an enhancement of only one and one-half to four and one-half years. See I.C. § 35-50-2-8; Ind. Code § 35-50-2-7 (providing that advisory sentence for Class D felony is one and one-half years).


source: Caselaw Access Project

author: PYLE, Judge.

license: Public Domain

text:
    David A. TURNER, Appellant-Petitioner, v. Debbie L. TURNER, Appellee-Respondent.
    No. 85A02-1208-DR-704.
    Court of Appeals of Indiana.
    Feb. 28, 2013.

      Patrick J. Roberts, Peru, IN, Attorney for Appellant.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

David L. Turner (“Father”) appeals the trial court’s post-dissolution order denying his petition — which he filed based upon the legislature’s July 1, 2012 amendment to Indiana Code § 31-16-6-6 — to terminate child support for his nineteen-year-old child.

We reverse and remand.

ISSUE

Whether the trial court abused its discretion by determining that its previous dissolution decree trumped the statute regarding termination of child support.

FACTS

Father and Debbie Turner (“Mother”) were married in 1989. They had one child, Cody (“Son”), who was born in March 1993. In November 1998, Father filed a petition for dissolution. The trial court held a final dissolution hearing on July 24, 2000. On August 14, 2000, the trial court issued a final dissolution decree, which provided the following in regard to support for the parties’ then seven-year-old Son:

3. Effective the 28th day of July, 2000, the husband shall pay to the Clerk of the Wabash Circuit Court as and for the support of the minor child of the parties the sum of $111.00 Dollars per week until the child reaches 21 years of age, or is married, leaves home or is emancipated. The husband shall pay annual support docket fees on or before the 1st day of February each year. The Court basis [sic] the support upon the child support guidelines and the following figures were used in calculating the support: Gross income of husband: $1,154.00 per week; Gross income of wife: $400.00 per week; Childcare expenses: none.

(App. 10) (emphasis added).

Twelve years later, on July 12, 2012, Father filed a petition to terminate child support for their then nineteen-year-old Son. Father asserted that his obligation to pay child support for Son terminated as a matter of law on July 1, 2012 due to the amendment to Indiana Code § 31-16-6-6, which decreased the age for termination of child support from twenty-one to nineteen years of age. In his petition, Father also asserted that Son was enrolled in college and that his tuition for the 2012-2013 school year was paid in full.

The trial court held a hearing on Father’s motion on August 3, 2012. Father appeared with counsel, and Mother appeared pro se. Mother argued that Father should continue to pay support because the dissolution decree specifically stated support would continue until Son reached the age of twenty-one. Father contended that his support should terminate because nineteen was the age set forth in the amended statute for termination of child support. The trial court stated that it would have to determine whether to apply the current law under the amended statute or whether the language of the dissolution decree controlled the termination of child support.

On August 6, 2012, the trial court issued the following order denying Father’s petition:

This cause having been before the Court on August 3, 2012, upon [Father’s] petition to terminate support. [Father] appeared in person and by counsel. [Mother] appeared in person. The parties agreed this matter involves the interpretation of the Final Decree of Dissolution entered August 14, 2000.
That decree, as regards [to] child support, provides that [Father] shall pay-child support “until the child reaches 21 years of age, or is married, leaves home or is emancipated^”]
Effective July 1, 2012, Senate Bill 18 became effective and made changes to Indiana’s child support laws. Indiana Code [§ ] 31-16-6-6 provides that the duty to support a child “ceases when the child becomes nineteen (19) years of age
While likely the language in the decree was “boilerplate” and reflected Indiana law as it existed at that time, the language in the decree is controlling. Accordingly, the petition to terminate child support is denied as the child has not yet reached the age of 21. No claim that the child has left home (he attends college but maintains residency with [Mother]), is married or emancipated was made.

(App. 8). Father now appeals.

DECISION

Father argues that the trial court abused its discretion by denying his petition to terminate child support for nineteen-year-old Son. “Determinations of child support obligations are within the trial court’s discretion and will not be set aside unless they are clearly erroneous.” Cubel v. Cubel, 876 N.E.2d 1117, 1119 (Ind.2007) (citing Lea v. Lea, 691 N.E.2d 1214 (Ind.1998)).

Before addressing Father’s argument, we note that Mother did not file an Appellee’s Brief.

When an appellee fails to submit a brief, we do not undertake the burden of developing appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Questions of law are still reviewed de novo, however.

Svenstrup v. Svenstrup, 981 N.E.2d 138, 142-43 (Ind.Ct.App.2012) (internal citations omitted).

At issue in this appeal is Indiana Code § 31-16-6-6, which “governs the termination of child support and emancipation of a child.” Sexton v. Sexton, 970 N.E.2d 707, 710 (Ind.Ct.App.2012), reh’g denied, trans. denied. The purpose of Indiana Code § 31-16-6-6 “ ⅛ to require that parents provide protection and support for the welfare of their children until the children reach the specified age or no longer require such care and support.’ ” Hirsch v. Oliver, 970 N.E.2d 651, 655 (Ind.2012) (quoting Dunson v. Dunson, 769 N.E.2d 1120, 1124 (Ind.2002)) (emphasis added).

Effective July 1, 2012, the legislature amended Indiana Code § 31-16-6-6, which “change[d] the presumptive age for termination of child support from twenty-one to nineteen[.]” Sexton, 970 N.E.2d at 712. The amended version of Indiana Code § 31-16-6-6 provides:

(a) The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming nineteen (19) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and
(C) is or is capable of supporting himself or herself through employment.
In this case the child support terminates upon the court’s finding that the conditions prescribed in this subdivision exist. However, if the court finds that the conditions set forth in clauses (A) through (C) are met but that the child is only partially supporting or is capable of only partially supporting himself or herself, the court may order that support be modified instead of terminated.
(b) For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:
(1) is on active duty in the United States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court; the court shall find the child emancipated and terminate the child support. (Emphasis added).

Father contends that the amendment to Indiana Code § 31-16-6-6, which decreased the age for termination of child support from twenty-one to nineteen, controlled the issue of whether his child support should be terminated for his nineteen-year-old Son. We agree.

The legislature, which sets policy, determined that the age at which a parent is no longer obligated to pay child support should be reduced from twenty-one to nineteen and then amended the law accordingly. See Skelton v. State, 90 N.E. 897, 173 Ind. 462 (Ind.1910) (the legislature determines public policy of the State, and, when it has declared a policy in plain terms, it is the duty of the courts to give it effect). Based on the legislature’s amendment, Father filed a petition to terminate child support for Son because Son had reached the age of nineteen. The trial court determined that the language in the dissolution decree — which provided that Father was obligated to pay child support until Son reached the age of twenty-one— trumped the amended statute and concluded that Father was still obligated to pay child support because Son had not yet reached the age of twenty-one.

The trial court acknowledged that the language used in dissolution decree “was ‘boilerplate’ and reflected Indiana law as it existed at that time” of the entry of dissolution decree in August 2000. (App. 8). Indeed, the language used by the trial court in the decree, which tracks most of the situations that would trigger the termination of child support, makes clear that the trial court took its lead from the legislature and followed the existing law at the time of the decree regarding the duration that Father would be required to pay child support for Son. However, the trial court ignored the changes in the law regarding the termination of child support. The trial court’s failure to follow the law as set forth by our legislature was an abuse of discretion. The trial court had no discretion to go outside the law set out in the termination of child support statute and to extend Father’s duty to pay child support beyond what is required by the law. Accordingly, we reverse the trial court’s denial of Father’s petition to terminate child support and remand to the trial court to enter an order that grants Father’s petition and terminates child support for Son effective July 1, 2012.

Reversed and remanded.

ROBB, C.J., and MAY, J., concur.

      . Father’s counsel submitted a Proposed Final Decree of Dissolution prior to the trial court’s entry of its dissolution decree, but that proposed dissolution is not part of the record before us. The trial court’s decree, however, contains no indication that the parties had entered into a settlement agreement that was approved by the trial court or incorporated into the trial court’s decree.

      . Father’s main argument on appeal is that his duty to provide child support for Son should terminate because Son is nineteen, which is the age at which the legislature has determined that child support will cease. In so arguing, however, Father seems to interchangeably use the concepts of termination of child support based on Son's age of nineteen and emancipation based on Son’s age of nineteen. For example, Father asserts that his child support should terminate because the amendment to Indiana Code § 31-16-6-6 reduced the age of emancipation from age twenty-one to age nineteen. Father's argument regarding the reduction in the age of emancipation is based on a footnote in our Indiana Supreme Court’s opinion in Hirsch. In Hirsch, our Indiana Supreme Court noted that the amendment to Indiana Code § 31-16-6-6 ”change[d] the automatic age of emancipation from twenty-one to nineteen.” Hirsch, 970 N.E.2d at 655 n. 1.
      Although Indiana Code § 31-16-6-6 discusses both termination of child support and emancipation, we believe that these concepts are distinct and not interchangeable. Subsection (a) provides that a parent’s duty to provide child support will terminate when the child reaches the age of nineteen, unless the child is incapacitated or is otherwise emancipated prior to the age of nineteen. See Ind. Code § 31 — 16—6—6(a). Emancipation, however, is specifically addressed and defined in other subsections of the statute. Additionally, while emancipation ultimately results in a termination of the duty to provide child support, it can occur before the child is nineteen and is an event that results from a specific act of the child. See Dunson, 769 N.E.2d at 1125 (emancipation requires a child's initiative and the child’s self-support); see also Black’s Law Dictionary 560 (8th ed. 2004) (defining emancipation as a "surrender and renunciation of the correlative rights and duties concerning the care, custody, and earnings of a child[.]”).

      . Our decision in this case does not affect the ability of parties to enter into agreements obligating themselves to do more than the law requires. For example, parties may agree to pay more child support than a trial court has authority to order. Hay v. Hay, 730 N.E.2d 787 (Ind.Ct.App.2000).

      . We emphasize that our opinion applies only to Father’s obligation to provide child support. We make no comment on his obligation to provide educational support.

      .We note that the current 2013 session of the General Assembly is seeking to amend Indiana Code § 31-16-6-6; however, the proposed amendments make no change to the subsection providing that the duty to provide child support ceases when the child reaches the age of nineteen. See SB 0006, 2013 First Regular Session.


author: BROWN, Judge.

text:
    EAGLE AIRCRAFT, INC., Appellant, v. Anthony TROJNAR, Appellee.
    No. 64A04-1207-SC-386.
    Court of Appeals of Indiana.
    Feb. 28, 2013.

      Megan L. Craig, John R. Craig, Craig, Craig & Maroc, LLC, Crown Point, IN, Attorneys for Appellant.
   OPINION

BROWN, Judge.

Eagle Aircraft, Inc. (“Eagle Aircraft”) appeals the small claims judgment in favor of Anthony Trojnar and order denying in part its motion to correct errors. Eagle Aircraft raises three issues on appeal which we revise and restate as:

I. Whether the court, in taking Eagle Aircraft’s Ind. Trial Rule 41(B) motion under advisement and subsequently adjourning the hearing, denied it an opportunity to introduce evidence;
II. Whether the court abused its discretion or erred in finding, as amended by its order on Eagle Aircraft’s motion to correct errors, in Trojnar’s favor; and

III. Whether Trojnar was unjustly enriched by the court’s order.

We affirm.

FACTS AND COURSE OF PROCEEDINGS

Over a period of several years, Trojnar rented planes from Eagle Aircraft, and he would periodically put money into an account “so [he] wouldn’t have to pay every time [he] came in....” Trial Transcript at 4. Trojnar became dissatisfied with Eagle Aircraft’s service because “it seemed every time that [he] would book a plane, or several times, [he] would get a call the night before that the plane wasn’t available” and “[i]t would be suggested that [he] was being done a favor by giving [him] aircraft that was thirty five (85) some years old, and had problems.” Id. at 5. Trojnar asked Eagle Aircraft to close out his account and for the money to be returned. Trojnar did not receive a refund of the money in his account which totaled $1,855.88.

On June 13, 2011, Trojnar filed a notice of claim naming Eagle Aircraft, as well as “John Siegers” and “Lenore Joy Segers [sic]” as defendants, and demanding $1,855.88 plus interest. Appellant’s Appendix at 1. On April 20, 2012, a small claims trial was held in which Trojnar appeared pro se and Eagle Aircraft appeared by counsel. At trial, Trojnar began by testifying as to his version of the facts. Afterwards, Eagle Aircraft was given the opportunity to cross-examine Troj-nar, and it introduced a document titled “Refund Policy and Pricing Guidelines” which stated in part, under the heading “Course Refund Policy.” that “[p]repaid flight accounts are NON REFUNDABLE, according to the guidelines below,” and noted that “[according to IN Law, courses are fully refundable within 72hrs of prepayment, less any hours used or pilot supplies purchased,” and “[i]f over 72hrs, then no refund applies, except under extenuating circumstances.” Defendant’s Exhibit A. The document was signed by Trojnar, on the line “Student Signature,” on January 6, 2006, and also was signed by Eagle Aircraft. Id. The document also stated that “[e]xceptions to this policy can ONLY be made for extenuating circumstances, which will be reviewed and decided upon by Management.” Id. Eagle Aircraft also introduced documents titled “Eagle Aircraft Renter Compliance Agreement” and “Eagle Aircraft Rental Policy.” Defendant’s Exhibits B, C. Eagle Aircraft also introduced as Defendant’s Exhibit D a ledger detailing Trojnar’s account with Eagle Aircraft.

Following Eagle Aircraft’s cross-examination of Trojnar, it moved for dismissal pursuant to Ind. Trial Rule 41(B), arguing that Trojnar “failed to overcome the clear burden of ... Exhibit A,” and the court took the motion under advisement. The court then briefly discussed Exhibit A with Trojnar and asked Trojnar about his theory of recovery, and afterwards the court asked Eagle Aircraft: “Do you want to present any evidence?” Trial Transcript at 12. Counsel for Eagle Aircraft responded: “The documents speak for themselves,” and the court replied: “All right, I’ll read over what you have and make a ruling before the end of the business day, you’ll get it in the mail, okay?” Id.

Later that same day, the court issued its small claims judgment in favor of Trojnar in the amount of $1,855.88 plus eight percent interest per annum. The court also issued a decision and judgment in which it recited facts, which it noted “are NOT to be considered Special Findings but are for the convenience of the litigants,” and which stated that Eagle Aircraft “presented no evidence but relied upon its exhibits,” that “[although in small claims court, [Eagle Aircraft] moved for judgment after the presentation of [Trojnar’s] case without calling any witnesses,” and that the court examined “the exhibits and found no document which allowed [Eagle Aircraft] to keep [Trojnar’s] money” because “Exhibit A[ ] only pertains to [Trojnar] if he was taking a course or flying lessons from [Eagle Aircraft], and does not pertain to a seasoned flyer’s credit account.” Appellant’s Appendix at 5. The decision and judgment also stated that even if Exhibit A was applicable to Trojnar, “the documents allowed for refunds under ‘special circumstances.’ ” Id.

On May 21, 2012, Eagle Aircraft timely filed a motion to correct errors alleging errors by the court including that the court was required to rule on its Trial Rule 41(B) motion, that Exhibit A was an enforceable contract, and that the small claims judgment results in unjust enrichment in Trojnar’s favor. On June 29, 2012, the court held a hearing on Eagle Aircraft’s motion and Eagle Aircraft pointed to Exhibit D and explained that whenever Trojnar would pay $1,250 dollars into his account, it would post an additional $100 credit to the account which “was part of the arrangement between the parties as a part of the agreement to have that amount become non-refundable,” and that “over the years these credits have built up.” June 29, 2012 Hearing Transcript at 5. Eagle Aircraft argued that because the court threw out the contract at the trial, “the benefit of the contract should also be thrown out....” Id. The court responded that it did not throw the contract out and that it “found that under the contract he was entitled to get any money he had as credits refunded back to him.” Id. at 6. After a discussion regarding Eagle Aircraft’s Ind. Trial Rule 41(B) motion at trial, Eagle Aircraft addressed the amount the court ordered it to pay over to Trojnar, noting that Exhibit D demonstrates that on fifteen occasions Eagle Aircraft' credited $100 to Trojnar’s account, for a total of $1,500, and that accordingly the $1,855.88 owed should be reduced by $1,500.

Eagle Aircraft also explained at the hearing that although Exhibit A’s refund policy is titled “Course Refund Policy” and the signature line is labeled as “Student Signature,” this was the document governing the relationship between Troj-nar and Eagle Aircraft, that Eagle Aircraft is a school and many of the accounts they issue are for students, and that the document “is a standard form that [it] received from the Cessna Association Groups ... and they provide these forms to schools, and places of that nature, and that’s basically where they took this.... ” Id. at 15.

Trojnar testified that Eagle Aircraft had a “club” where if you paid $1,200 down it would credit that person’s account $100 “which is like paying less per hour per plane” and that he used various credited amounts over the course of five years. Id. at 17. Trojnar indicated to the court that each time he flew, his account would drop to a small amount and then he would replenish the funds prior to the next fight, that the money currently in his account was mostly comprised of funds he placed into the account prior to his last scheduled flight, that Eagle Aircraft did not provide him with the plane he wanted, and that he subsequently asked to close his account. Trojnar also indicated that the most recent $100 credit should be credited back to Eagle Aircraft because it “wasn’t flown off in that particular period,” and that he “should have only gotten” $1,755.88. Id. at 20.

That same day, the court issued an order on Eagle Aircraft’s motion stating:

... Rule 41B is not applicable to Small Claims Court. Rule 41b, as effectuated by [Eagle Aircraft] runs afoul of Small Claims Rule 8(A) which reads:
The trial shall be informal, with [the] sole objective of dispensing speedy justice between the parties according to the rules of substantive law, and shall not be found [sic] by the statutory provisions or rules of practice, PROCEDURE, pleadings or evidence ...” (emphasis added),
It was [Eagle Aircraft’s] strategy to rely upon the contract and move for judgment and not present a defense. When the Court found that the contract at issue (Defendant’s Exhibit A) does not apply to [Trojnar], [Eagle Aircraft] was left without argument or evidence to the Court.
At hearing on this Motion however, [Trojnar] did proffer that the contract was applicable to him. The Court accepts that testimony. He testified, however, and the Court finds it credible, that he met the terms of the contract allowing for exceptional circumstances and that he should have [been] given a refund of his money in account with Eagle Aircraft. He stipulates that a $100 debit from his account is applicable.
The Court now corrects its error, and amends the Judgment to be $1855.88 minus the $100, for a new judgment of $1755.88 and costs.

Appellant’s Appendix at 18.

Before addressing the issues raised on appeal, we observe that Trojnar elected not to file a brief in this matter. “When an Appellee fails to submit an appellate brief, it is within this court’s discretion to reverse the trial court’s ruling if the appellant makes a prima facie showing of reversible error.” Auto-Owners Ins. Co. v. Cox, 731 N.E.2d 465, 467 (Ind.Ct.App.2000) (citing Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999)). “If the appellant is unable to meet this burden, we will affirm.” Id. “Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it.” Tisdial v. Young, 925 N.E.2d 783, 785 (Ind.Ct.App.2010) (quotation omitted). Here, however, and in recognition of the fact that this is an appeal from a small claims matter and that the record on appeal is small, we decline to apply this standard. See Auto-Owners, 731 N.E.2d at 467.

ISSUES

I.

The first issue is whether the court, in taking Eagle Aircraft’s Ind. Trial Rule 41(B) motion under advisement and subsequently adjourning the hearing, denied it an opportunity to introduce evidence. As noted above, Eagle Aircraft moved for dismissal pursuant to Ind. Trial Rule 41(B), and the court took the motion under advisement. The court, prior to adjourning the hearing, asked Eagle Aircraft whether it wanted to present evidence, and Eagle Aircraft responded: “The documents speak for themselves.” Trial Transcript at 12. In its order on the motion to correct errors, the court ruled that Ind. Trial Rule 41(B) is inapplicable to the trial proceedings and that Eagle Aircraft’s strategy was to rely upon Defendant’s Exhibit A.

Eagle Aircraft argues that “[t]he Rule 41(B) Motion should have been granted, as [Trojnar] failed to produce any evidence of payment or entitlement of a refund” and “[i]f the Trial Court disagreed with that theory, [it] was required to deny the Motion _” Appellant’s Brief at 7. Eagle Aircraft argues that the court “ruled without allowing [Eagle Aircraft] the opportunity to present its own Case-in-Chief,” and cites to Redmond v. United Airlines, Inc., 165 Ind.App. 395, 332 N.E.2d 804 (1975), and Smith v. Markun, 124 Ind.App. 535, 119 N.E.2d 899 (1954), in support. Id. Eagle Aircraft argues that “as in Redmond, there was not an opportunity for [it] to timely request a right to present evidence because the Trial Rule 41(B) Motion was taken under advisement, and then [it] was presented with the fíat aceompi [sic] Judgment, without having ever ruled upon the Trial Rule 41(B) Motion.” Id. at 7-8.

Initially, we note that to the extent that Eagle Aircraft argues that the court should have granted its Trial Rule 41(B) motion, that issue is examined in Part II, infra, which addresses whether the court erred in ruling for Trojnar. The instant issue presented is, regardless of the propriety of the trial court’s ruling on the applicability of Ind. Trial Rule 41(B) to small claims court matters, whether Eagle Aircraft was precluded from presenting its case-in-chief by the court’s actions. Ind. Trial Rule 41(B), titled “Involuntary dismissal: Effect thereof,” provides:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.

To the extent that Eagle Aircraft cites Redmond as authority for its position, in that case, at the outset of trial, defendant Redmond requested that “after the conclusion of the plaintiffs evidence [ ] the defendant [be] granted a continuance to present its ease by reason of the illness of the defendant,” and the court took the motion under advisement, noting: “We’ll see what the evidence presents. We don’t want to deprive the defendant of making his defense. But considering this case has been a long time getting to trial so we want to proceed to produce any witnesses.” 165 Ind.App. at 396, 332 N.E.2d at 804. Then, following the plaintiffs presentation of evidence, Redmond moved for dismissal under Ind. Trial Rule 41(B), and the court noted that it needed to review certain evidence including a deposition and ordered the parties to file briefs regarding the motion. Id. at 398-399, 332 N.E.2d at 806. After the parties filed their initial briefs, but prior to the filing of reply briefs, the court entered judgment denying Redmond’s Trial Rule 41(B) motion and entered judgment for the plaintiff in the amount of $13,849 plus $1,500 for costs and fees. Id. at 399, 332 N.E.2d at 806.

On appeal, the court addressed Redmond’s claim of error by the trial court in not permitting him to present evidence prior to its entry of judgment and noted:

However, this assertion must be viewed in conjunction with the alleged error in the failure of the trial court to rule on the motion for continuance. In his motion to correct error, Redmond does not contest the court’s ruling on the TR. 41(B) motion for dismissal except insofar as the court’s ruling on the motion and the omission to rule on the motion for continuance thwarted the presentment of defendant’s case.

Id. at 399-400, 332 N.E.2d at 806-807. We noted that although unclear whether the court implicitly granted or denied Redmond’s motion for a continuance, it was immaterial “because the ultimate effect of either ruling, when viewed in conjunction with the trial court’s entry of judgment for United at the same time that Redmond’s TR. 41(B) motion was denied, was a denial of Redmond’s right to present his case.” Id. at 401, 332 N.E.2d at 807. We observed that generally, a “defendant who moves for involuntary dismissal at the close of the plaintiffs case effectually waives his right to present evidence unless ‘he timely requests the right to do so after his motion is overruled,”’ id. at 402, 332 N.E.2d at 808 (quoting Smith, 124 Ind.App. at 540, 119 N.E.2d at 901), but that “[h]ere it was virtually impossible for defendant Redmond to ‘timely request’ his right to present evidence after the overruling of his TR. 41(B) motion since the trial judge simultaneously issued that ruling and entered judgment” for plaintiff. Id. The court reversed and remanded with instructions to permit the defendant to present further evidence. Id.

Thus, the rule in Redmond may be restated as guaranteeing the defendant the right to present evidence after moving for dismissal under Ind. Trial Rule 41(B). Indeed, in Smith, which was relied upon by the Redmond court, the court was concerned with a ruling by the trial court that the defendant was precluded from presenting evidence following the denial of its motion for directed verdict because it did not reserve the right in its motion and held that, in such cases, the defendant “is not precluded from presenting such evidence if he timely requests the right to do so after his motion is overruled.” Smith, 124 Ind.App. at 540, 119 N.E.2d at 901. However, neither Redmond nor Smith expressly hold that, as a matter of law, a defendant must wait for the court to rule upon its Trial Rule 41(B) motion before presenting evidence or risk waiver of its motion.

On this point, we find Commc’ns Workers of Am., Locals 5800, 5714 v. Beckman, 540 N.E.2d 117 (Ind.Ct.App.1989), instructive. In Beckman, the plaintiff Communications Workers Union presented its casein-chief during the first day of trial, and the case was continued. Four days before the trial was to resume, the defendant Employees filed a Trial Rule 41(B) motion requesting dismissal claiming that the Union failed to establish an essential element of its case. 540 N.E.2d at 119. Prior to resuming the trial, the judge:

noted that he had received the 41(B) motion for Involuntary Dismissal, but had not sufficiently reviewed it. The trial judge asked the parties how they wished to proceed. The judge suggested he could either (1) continue the trial for two weeks and in the interim, read and review the 41(B) motion and the response to it, and make a ruling before the second day of trial or (2) take the 41(B) motion under advisement, hear the Employees’ case-in-chief and rule on the fl(B) motion after trial.

Id. (emphasis added). The parties agreed to the latter option, the court heard the defendant Employees’ case-in-chief, and the court subsequently granted the Employees’ Trial Rule 41(B) dismissal motion. Id. at 120.

In so holding, the court addressed an argument made by the Union that the court erred in denying its request for a continuance which it made soon after the Employees began presenting their case. Id. at 125. The Union argued that “the court’s refusal to grant a continuance until ruling on the 41(B) motion denied it the opportunity to reopen its case to offer evidence on the issue of Union membership.” Id. The court reasoned that “when the court offered to continue the trial for two weeks to rule on the motion, the Union’s counsel agreed to forego the continuance and to proceed with trial,” that “[mjoreover, the trial court never denied the Union the opportunity to present evidence on the issue of Union membership,” and that it “specifically stated that if the Union wanted to present evidence of the Employees’ Union membership the court would admit it.” Id.

Thus, in Beckman, not only did the court allow the defendant Employees to present its case-in-chief prior to making a ruling on the Trial Rule 41(B) motion, it also specifically invited the plaintiff Union to supply rebuttal evidence of union membership if it so chose. Similarly, here the court took Eagle Aircraft’s Trial Rule 41(B) motion under advisement and, in doing so, specifically invited it to present evidence if it so chose. Eagle Aircraft chose to rely upon the documentary evidence it entered during its cross-examination of Trojnar. Again, Redmond does not hold, and Eagle Aircraft does not otherwise cite to authority for the proposition, that a movant waives its Trial Rule 41(B) motion if it subsequently presents evidence at the behest of the court after the court takes the motion under advisement. Under the circumstances, in which the trial court in a small claims matter invited the defendant to present evidence following the defendant’s Ind. Trial Rule 41(B) motion, we conclude that the court did not deny Eagle Aircraft the opportunity to present evidence when it took its Trial Rule 41(B) motion under advisement.

II.

The next issue is whether the court abused its discretion or erred in finding in Trojnar’s favor. Judgments in small claims actions are “subject to review as prescribed by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). In the appellate review of claims tried by the bench without a jury, the reviewing court shall not set aside the judgment “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). In determining whether a judgment is clearly erroneous, the appellate tribunal does not reweigh the evidence or determine the credibility of witnesses but considers only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. City of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind.1995). A judgment in favor of a party having the burden of proof will be affirmed if the evidence was such that from it a reasonable trier of fact could conclude that the elements of the party’s claim were established by a preponderance of evidence. Id. This deferential standard of review is particularly important in small claims actions, where trials are “informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.” Ind. Small Claims Rule 8(A); City of Dunkirk, 657 N.E.2d at 116. We presume that the trial court correctly applied the law and give due regard to the trial court’s opportunity to judge the credibility of the witnesses. Bonecutter v. Discover Bank, 953 N.E.2d 1165, 1171 (Ind.Ct.App.2011), reh’g denied, trans. denied. However, “this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). “Similarly, where a small claims case turns solely on documentary evidence, we review de novo, just as we review summary judgment rulings and other ‘paper records.’ ” Id. (emphasis added).

Also, Eagle Aircraft is appealing from the trial court’s denial of its motion to correct errors. Rulings on motions to correct error are usually renewable under an abuse of discretion standard, but we review a case de novo when the issue on appeal is purely a question of law. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind.Ct.App.2009). The interpretation of a contract is a pure question of law. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind.2005). When a contract is clear and unambiguous, the language must be given its plain meaning. Delgado v. Boyles, 922 N.E.2d 1267, 1270 (Ind.Ct.App.2010), trans. denied.

Eagle Aircraft argues that Defendant’s Exhibit A addresses prepaid flight accounts such as Trojnar’s and states that such accounts “are Non-Refundable except pursuant to the guidelines as specifically outlined therein.” Appellant’s Brief at 9. Eagle Aircraft asserts that the court “could only enforce the terms of a contract and was not permitted to modify said contract,” that “[i]n absence of ambiguity it is not within [the] function of [the] judiciary to look outside the instrument to arrive at parties’ intent,” and that “[t]herefore, the Trial Court erred in failing to grant [its] Trial Rule 41(B) Motion and entering judgment in favor of [Trojnar] due to the fact a Contract exists and the terms of the contract are unambiguous.” Id. at 9-10.

In the court’s initial decision and judgment, it noted that to the extent Defendant’s Exhibit A applied to Trojnar, it allowed for refunds under “special” or “extenuating” circumstances, inferring that it believed such circumstances were present. The court further explained its position in its order on Eagle Aircraft’s motion to correct errors that it found Trojnar’s testimony regarding the circumstances which led him to close out his account, including that on several occasions he would make arrangements to rent an airplane but that on the night before he would learn that the plane was not available, to meet the standard of such extenuating circumstances.

To the extent that Eagle Aircraft invites this court to interpret the contract under a de novo review standard, examine the documentary evidence without resorting to testimony, and apply the contract’s plain meaning, we note that in such a vacuum we would be inclined to agree with the small claims court’s initial determination that Defendant’s Exhibit A does not provide that Eagle Aircraft should be allowed to retain the balance of Trojnar’s account. As noted above, Defendant’s Exhibit A provides as follows:

Course Refund Policy
Prepaid flight accounts are NON REFUNDABLE, according to the guidelines below:
a. According to IN Law, courses are fully refundable within 72 hrs of prepayment, less any hours used or pilot supplies purchased.
b. If over 72 hrs, then no refund applies, except under extenuating circumstances.
If refund is allowed under special circumstances:
1. Course withdraws must be made in writing to Eagle Aircraft. If a student is eligible for a refund, the request will be processed within 30 days of receiving written notice.
2. Refunds will be issued directly to individual students when courses are prepaid with cash or check.
3. If an educational loan is utilized, the loan provider will receive the refunds directly. Loan recipients will be responsible for fulfilling the balance of their loan obligation to their loan company.
4. A 5% processing fee will be assessed on the original amount paid[,] before any refund will be processed. If applicable, any enrollment promotions received by the student for prepayment of course, will be billed to the flight account before any refund is processed.
• The processing or cancellation fee is based on the initial course cost. Aircraft and Instructor hours, training tools, and pilot supplies will be deducted from the student’s balance when purchased & are nonrefundable.
Course Guidelines
a. Students who are inactive for 12 months shall be considered dropped from the training program and shall forfeit the balance of their account. Students must keep in contact with the school if they will be inactive for an extended period of time but plan to return to their training.
b. Course Completion Timetables: Students are expected to complete the courses in the following time-frames. Should the course not be completed in this timeframe, the hourly fees will be adjusted to that of the then current fees.
a. Private: 9 Months
b. Instrument: 9 Months
c. Commercial: 12 Months
d. CFI 2 Months
e. Multi 2 Months
Exceptions to this policy can ONLY be made for extenuating circumstances, which will be reviewed and decided upon by Management.
By signing this Refund Policy, I acknowledge that I have reviewed the information presented in the policy that I have read it, and I understand and agree to the terms and conditions of said policy.

Thus, in the absence of testimony clarifying that this document does indeed apply to Trojnar, it would appear that Defendant’s Exhibit A applies to students enrolled in courses provided by Eagle Aircraft, and that Eagle Aircraft and Trojnar agreed to a refund policy for courses, rather than for aircraft rentals. We also note that the clause in the document that “Exceptions to this policy can ONLY be made for extenuating circumstances, which will be reviewed and decided upon by Management,” is under the “Course Guidelines” heading and appears to relate to the approval of exceptions to the rules regarding the course schedule. The “extenuating circumstances” regarding refunds in the “Course Refund Policy ” does not contain similar qualifying language.

It was only through the presentation of evidence at the small claims trial and motion to correct errors hearing that established Defendant’s Exhibit A governed the relationship between the parties. Recognizing that the trial court was in the best position to weigh the evidence and that small claims actions are informal and have the goal of dispensing speedy justice, we cannot say that the court’s ruling that Trojnar demonstrated extenuating circumstances was clearly erroneous, and we conclude that the court did not err in ruling in Trojnar’s favor.

III.

The final issue is whether Trojnar was unjustly enriched by the court’s order. Eagle Aircraft argues, without citation to authority, that Defendant’s Exhibit. D demonstrates that Trojnar has received $1,500 in credits which were applied to his account from making prepayments toward flight time and “[t]he Trial Court cannot refuse to enforce the Refund Policy and Pricing Guidelines Contract without removing the credit of $1,500.00 from [Troj-nar’s] account for funds NEVER tendered to [Eagle Aircraft].” Appellant’s Brief at 10. Eagle Aircraft argues that “[u]njust enrichment would result due to the fact that [Trojnar] would receive a measurable benefit that would be unjust to retain based upon the Trial Court’s determination that no Contract existed between the parties.” Id. at 11.

As noted above, however, the court in its order on Eagle Aircraft’s motion to correct errors ruled that the contract did apply and govern the relationship between the parties, but that Trojnar “met the terms of the contract allowing for exceptional circumstances and that he should have [been] given a refund of his money in account with Eagle Aircraft.” Appellant’s Appendix at 18. Eagle Aircraft made similar arguments to the trial court at the motion to correct errors hearing, specifically arguing that because the court threw out the contract at the trial, “the benefit of the contract should also be thrown out,” and the court responded that it did not throw the contract out but merely found that “under the contract he was entitled to get any money he had as credits refunded back to him.” June 29, 2012 Hearing Transcript at 5-6. Indeed, based upon the contract, the court ordered that Eagle Aircraft retain $100 from Trojnar’s account.

This court has previously explained that unjust enrichment is an equitable doctrine which permits “recovery “where the circumstances are such that under the law of natural and immutable justice there should be recovery as though there has been a promise,’ ” and that a contract precludes application of unjust enrichment “because (1) a contract provides a remedy at law and (2) — as a remnant of chancery procedure — a plaintiff may not pursue an equitable remedy when there is a remedy at law.” King v. Terry, 805 N.E.2d 397, 400 (Ind.Ct.App.2004) (quoting Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind.1991), reh’g denied, cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992)). Here, a contract controlled the relationship between Trojnar and Eagle Aircraft, and, on this basis alone, the equitable doctrine of unjust enrichment does not apply, as Eagle Aircraft’s remedy would be at law, not in equity. See Engelbrecht v. Prop. Developers, Inc., 156 Ind.App. 354, 357-358, 296 N.E.2d 798, 801 (1973) (holding that “[a]n implied contract cannot exist where an express contract covers the identical subject” and “[w]here there is a contract controlling the rights of the parties there can be no recovery on the theory of quantum meruit”). We therefore conclude that Eagle Aircraft is not entitled to reversal based upon a theory of unjust enrichment.

Finally, even were we to hold that the contract did not apply, we do not believe that Eagle Aircraft would be entitled to have the judgment against it reduced by $1,500.00 on unjust enrichment grounds. As Trojnar testified to at the motion to correct errors hearing, the credits were earned if a user prepaid at least $1,200 and equated to paying less per hour per plane, and that Trojnar has used the credited amounts over the course of five years. Indeed, as the ledger introduced as Defendant’s Exhibit D demonstrates, most of the total amount in the account for which Troj-nar filed his notice of claim to recoup is from a payment he made on April 28, 2011 of $1,250, less than two months prior to the filing of the claim on June 11, 2011.

For the foregoing reasons, we affirm the small claims court’s decision and judgment as amended by its order on Eagle Aircraft’s motion to correct errors.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

      . Eagle Aircraft also moved for relief under Ind. Trial Rule 41(B) with regard to Trojnar’s claim against John and Lenore Siegers, arguing that Trojnar did not present any evidence against them as individuals and that Trojnar did not pierce the corporate veil.

      . We note that Eagle Aircraft also stated that the court erred in not dismissing John Siegers and/or Lenore Siegers individually from Troj-nar’s notice of claim, and that the small claims judgment was rendered against "JS Aviation, Inc. d/b/a Eagle Aircraft despite the fact JS Aviation, Inc. was not a named party and no evidence regarding JS Aviation, Inc. was entered into the record.” Appellant’s Appendix at 15. In the court’s June 29, 2012 order on the motion to correct errors, the court granted Eagle Aircraft's motion on these points, dismissing John and Lenore Siegers and correcting "the caption of the April 20, 2012 decision and judgment to reflect the proper party Defendant as: 1. Eagle Aircraft, Inc.” Id. at 18.

      . We observe that this court has previously held that Ind. Trial Rule 41(B) is applicable to small claims court proceedings. In LTL Truck Serv., LLC v. Safeguard, Inc., appellant LTL argued that the small claims court erred in dismissing the action under Ind. Trial Rule 41(B) because "Small Claims Rule 10(A) governs dismissals with prejudice in small claims actions, and LTL did not meet the criteria for dismissal under that rule.” 817 N.E.2d 664, 668 (Ind.Ct.App.2004). We began by noting that the Indiana Supreme Court had previously explained that "Indiana Trial Rule 1 provides that the Trial Rules govern ‘the procedure and practice in all courts of the state of Indiana in all suits of a civil nature,’ ” that "Small Claims Rule 1(A) provides that the Small Claims Rules apply 'to all small claims proceedings,’ ” and that "the Trial Rules govern small claims proceedings to the extent the two sets of rules do not conflict, but where the two conflict, the Small Claims Rules apply.” Id. at 669 (quoting Niksich v. Cotton, 810 N.E.2d 1003, 1005 (Ind.2004), cert. denied, 543 U.S. 1126, 125 S.Ct. 1073, 160 L.Ed.2d 1077 (2005)). The Indiana Supreme Court in Niksich held that a small claims
      court could dismiss a notice of claim under Ind. Trial Rule 12(B)(6) if it was apparent on its face that the plaintiff is precluded from recovery, noting that Trial Rule 12(B) did not conflict with Small Claims Rule 10, and we held in LTL that the Court’s reasoning applied with equal force to Trial Rule 41(B). Id. Specifically, we held that:
      Trial Rule 41(B) and Small Claims Rule 10(A) each address different and specific circumstances. Trial Rule 41(B) addresses a particular dispositive motion a defendant may file after the plaintiff has concluded its presentation of evidence and only in cases tried by the court without a jury. On the other hand, Small Claims Rule 10(A) addresses dismissal of a plaintiff's action when the plaintiff has failed to appear. Contrary to LTL's contention, the two rules do not conflict. Thus, a Trial Rule 41(B) motion for involuntary dismissal is appropriate in small claims actions.

        Id. See also Brown v. Guinn, 970 N.E.2d 192, 194-195 (Ind.Ct.App.2012) (holding that the small claims court did not err when it denied the defendant's motion to dismiss based upon Ind. Trial Rule 41(B)).

      . Defendant’s Exhibit A uses both terms. Defendant's Exhibit A.

      . To the extent that Eagle Aircraft argues that the court erred in not granting its Ind. Trial Rule 41(B) motion, we observe that in analyzing this issue on appeal, we examine only the evidence presented by the plaintiff in its casein-chief, which is the only evidence available in the instant appeal. See Williams v. State, 892 N.E.2d 666, 670 (Ind.Ct.App.2008), trans, denied.


author: VAIDIK, Judge.

text:
    Michael WILLIAMS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 30A01-1207-CR-305.
    Court of Appeals of Indiana.
    March 4, 2013.

      Nicole A. Zelin, Greenfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Michael Williams, Jr., appeals his convictions for Class B felony burglary, Class B felony conspiracy to commit burglary, and Class C felony carrying a handgun without a license. During his jury trial, a deluge of Williams’ prior criminal acts were admitted into evidence without objection and used by the State to argue Williams’ propensity to commit the crimes for which he was charged. Because of this, we find that Williams’ trial counsel’s performance was deficient. We also find that Williams was prejudiced by his counsel’s deficient performance, so we reverse and remand for a new trial.

Facts and Procedural History

The facts most favorable to the verdicts follow. In November 2011, Williams and Nicholas Tate discussed burglarizing the house of Gregory Peek. Tate knew Peek through his family and was aware that Peek owned guns. In addition to guns, Williams and Tate also thought that they could steal marijuana and money from Peek.

On December 8, 2011, Williams went to Tate’s house with a mutual friend, Donald Warren, and told Tate that “its [sic] time to go.” Tr. p. 177. Tate hesitated, so Williams said, “[c]ome on now or I’m gonna beat your ass.” Id. at 128. Tate then joined Williams and Warren and the three drove to Peek’s house in New Palestine. Tate parked the car in Peek’s driveway and went up to the front door and began knocking. Peek was asleep in a second-floor bedroom and awoke to the knocks. Peek walked to the end of the stairway and looked out the front door. He saw a bluish-gray car and a white male but could not clearly see his face; he thought that the man knocking was a former employee that he had fired a few weeks ago. Because Peek did not want a confrontation, he did not answer the door and went back to bed.

Tate returned to the ear, and the three men tried to find an alternate way into Peek’s house. They left the subdivision, returned, and parked the car in the rear of the house. Williams and Tate got out of the car while Warren remained inside the car. Williams and Tate went to the service door on Peek’s attached garage, and Williams kicked open the door. This left the service door with a muddy footprint on it, but there was no evidence of damage to the frame or door jam. Id. at 122. Peek heard the noise but went back to sleep, believing it to be the garbage truck. Id. at 38. But, when Peek heard chairs in the kitchen moving over the ceramic-tile floor, he jumped out of bed and ran downstairs. Id. When Peek was almost at the bottom of the stairs, he saw a man standing near the kitchen table pointing a gun at him. Peek ran out of his front door while calling 911 on his cell phone.

As Peek ran out of his house, he saw the same bluish-gray car as when he heard a man knocking on his door earlier. Id. at 46. Tate heard Williams running out of the house at this time, too, so he ran back to the car. Peek watched as Tate jumped into the driver’s seat and drove away with only Warren in the car. Williams ran out of the service door as Tate and Warren drove away. Peek could not see Williams’ face, but he noticed his clothing; Williams was wearing a jacket with a red dragon design on the back with various colors, dark pants, and brown boots. Williams ran toward the back of Peek’s property, jumped a fence, and continued running.

Tate and Warren drove to a nearby gas station and were seen on surveillance video. Meanwhile, Williams called the phone that Tate often used, but Tate’s girlfriend answered instead. Williams said that “it went wrong” and “I’m in a ditch, come and get me.” Id. at 129-30. Williams then called Warren. Warren turned on the speaker function on his phone so Tate could hear, too, and Williams told Warren and Tate that he was in a ditch next to a Marsh grocery store. Tate then dropped Warren off, left the car at a construction site, and walked home.

New Palestine Police Department Chief Robert Ehle arrived at Peek’s house and began establishing a perimeter to find Williams. Shelby County Sheriffs Department Deputy Louis Koch showed up with his canine, Paco. Paco led Deputy Koch to a nearby ditch. Williams then jumped up from the ditch and stated that he gave up. Within Williams’ reach were a black hooded jacket with a red dragon design on the back, a pair of gloves, and a bandana. While Chief Ehle secured Williams, Deputy Koch began searching the area with Paco. Paco led Deputy Koch along the ditch line and back until they reached the fence that enclosed Peek’s property. The gun Peek said was pointed at him by the burglar was never recovered from the scene.

Back at the ditch, Williams denied owning the black jacket with the red dragon design. But, it was a cold day, so when Chief Ehle asked Williams “if he would like to put his jacket back on,” id. at 92, Williams responded affirmatively and put on the jacket. Hancock County Sheriffs Department Captain Kevin Haggard brought Peek to the scene in order to identify Williams. When Peek arrived, he could not identify Williams’ face, but he could identify Williams by his jacket and his boots.

Later, Captain Haggard interviewed Williams at the police station. Initially, Williams claimed he had no knowledge of the burglary and was only in the area because his girlfriend had dropped him off there after they had gotten into an argument. Williams repeatedly told Captain Haggard that he was working with Detective Scott Wolfe of the Indianapolis Metropolitan Police Department (IMPD). Williams also maintained throughout the interview that he never entered Peek’s house, but he did eventually admit that he was outside the house and it was a white male named Nick who actually entered the house. Id. at 147. Captain Haggard then interviewed Tate; Tate confessed to being part of the burglary and said that Williams was the person who entered Peek’s house. Appellant’s App. p. 14-15.

The State charged Williams with Class B felony burglary, Class B felony conspiracy to commit burglary, and Class A misdemeanor carrying a handgun without a license. Tate was charged with burglary and conspiracy to commit burglary. State’s Ex. 22. A jury trial was held.

At trial, Peek testified that he saw a man with a gun in his house that day. Tr. p. 45. Tate testified with use immunity implicating Williams as the burglar. No witness, other than Peek, indicated that Williams had a gun that day, nor was one found. Williams testified on his own behalf, arguing that he was working as a confidential informant in drug cases for Detective Wolfe at the time he entered Peek’s house. He claimed that he was there to purchase drugs and guns from Peek as part of his duties as a confidential informant. Williams also denied that he had a gun. Appellant’s App. p. 14. On cross-examination, the State asked why Williams was working as a confidential informant, and Williams testified that he had been charged with possession of cocaine and a firearm. Id. at 235. The State then admitted into evidence, without objection, documents showing that Williams had been charged with five counts of drug and gun charges, pled guilty to one count of Class C felony possession of cocaine and a firearm, and was placed on home detention. State’s Ex. 27-29. The State then elicited testimony from Williams, again without objection, that while on home detention, community corrections officers searched his home and found him to be in possession of cocaine, heroin, and more than one gun. Tr. p. 240.

Williams then called Detective Wolfe as a witness to confirm his role as a confidential informant, but not as to this case. On cross-examination by the State, Detective Wolfe testified, without objection, that Williams tested positive for marijuana while on community corrections and that Williams admitted to him that he had committed previous unspecified burglaries, robberies, and gun-trafficking offenses. Id. at 260. Detective Wolfe also spoke as to his knowledge of Williams’ previous possession of heroin, firearms, and a stolen IMPD taser. Id. at 259.

The jury found Williams guilty on all charges. Williams then admitted that he had been convicted of a felony within the past fifteen years, elevating his Class A misdemeanor carrying a handgun without a license conviction to a Class C felony. At sentencing, the trial court did not find any mitigating factors and found as aggravating factors Williams’ history of criminal activity and that he was out on bond when he committed the current offenses. The trial court sentenced Williams to fifteen years for burglary, fifteen years for conspiracy, and four years for carrying a handgun without a license, all to run concurrently.

Williams now appeals.

Discussion and Decision

Williams raises five arguments on appeal: (1) whether he received ineffective assistance of trial counsel; (2) whether there is sufficient evidence to sustain his burglary conviction; (3) whether there is sufficient evidence to sustain his conspiracy to commit burglary conviction; (4) whether there is sufficient evidence to sustain his carrying a handgun without a license conviction; and (5) whether his sentence is inappropriate in light of the nature of the offenses and his character. However, since , we find that Williams received ineffective assistance of trial counsel and reverse his convictions, we need not address his sentencing argument.

I. Ineffective Assistance of Counsel

Williams contends that he received ineffective assistance of trial counsel. While a “postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim,” Woods v. State, 701 N.E.2d 1208, 1219 (Ind.1998), ineffective assistance of counsel claims may also be raised on direct appeal. Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.2002).

Counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), reh’g denied. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001).

Williams argues that his trial counsel was deficient by failing to object under Indiana Evidence Rule 404(b) to the admission into evidence of his previous bad acts and convictions. We agree.

Rule 404(b) precludes the admission of other crimes or bad acts in order to show circumstantially that a person charged with a criminal offense has a propensity to commit criminal acts and therefore is more likely to have committed the crime charged. The so-called “propensity rule” prohibits evidence of prior criminal acts admitted solely to create the “forbidden inference” that because the defendant committed prior criminal acts, he is more likely to have committed the act charged. See Hardin v. State, 611 N.E.2d 123, 129 (Ind.1993).

The extent of the prior bad acts admitted into evidence at Williams’ trial was breathtaking. Evidence of his felony conviction for possession of cocaine and a firearm — a conviction not admissible for impeachment under Indiana Evidence Rule 609 — was disclosed. Evidence of his previous arrest for possession of marijuana, possession of a controlled substance, and carrying a handgun without a license was also admitted. State’s Ex 27-29. The jury learned that Williams had marijuana in his system and possessed heroin, guns, and a stolen IMPD taser while he was on home detention. Tr. p. 252-53, 260. And the jury learned of unspecified burglaries, robberies, and trafficking in weapons that Williams admitted to Officer Wolfe that he had committed. Id. at 260.

Not only was evidence of Williams’ criminal acts admitted but the State during its closing argument argued

He says he doesn’t do burglaries. That’s not his MO. Just guns and drugs which is admittedly what they were looking for, guns and drugs. Yet he admitted to Scott Wolfe when Scott Wolfe first got this relationship going with him that he hit licks.[] Hit licks. And that’s the same term he used with the detective when he said, Nicholas Tate was hit[ting] lick[s]. Oh yeah. Well by his own admission he’s hit[ting] licks. These are admissions that this man made himself. He had a stolen I[M]PD taser in his possession and he was not acting as an agent of the Police Department on that day.

Id. at 296. The State’s argument explicitly asked the jury to make “the ‘forbidden inference’ — that the defendant acted badly in the past and that the defendant’s present, charged actions conform with those past bad acts.” Hardin, 611 N.E.2d at 129. This evidence was not relevant to a matter at issue other than Williams’ propensity to commit the charged crimes and therefore was not admissible under 404(b). Because Williams’ attorney did not object to the admission of this evidence nor to the prosecutor’s statements at closing, her conduct was deficient.

Nonetheless, the State argues that defense counsel’s decision to allow these pri- or bad acts into evidence was strategic. Specifically, the State argues that the jury could have speculated as to what crimes were committed by Williams that led him to be a confidential informant. So, the argument goes that counsel made a decision to show the jury that Williams was completely truthful and not hiding anything. Given the breadth and depth of his prior criminal acts — from possession of drugs and guns to committing burglaries and robberies — and the similarity of these acts to the allegations here, we cannot say that allowing all of Williams’ past transgressions into evidence was justified as a tactical decision as part of a reasonable trial strategy.

Having determined that counsel’s performance was deficient, Williams must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Timberlake, 753 N.E.2d at 603 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). We are not confident that without the evidence of Williams’ prior crimes and gun-related acts the result of the proceeding would have been the same. Learning of an extensive criminal history of an accused surely weighs heavily on the minds of jurors. This is especially so when the criminal history is similar to the charged offenses as here; Williams was charged with burglary and possession of a gun and the evidence of prior crimes included the very crimes with which he was charged.

As to the gun offense, Williams denied that he had a gun. With the exception of Peek, the homeowner who allegedly had guns and marijuana in his house, no one testified that Williams possessed a gun, nor did the police find a gun. Without the evidence of Williams’ prior crimes involving guns, the evidence was Peek’s word against Williams’ word. We will never know the true amount of prejudice caused by the admission of Williams’ criminal history, but the sheer quantity of past offenses admitted undoubtedly tainted the jury’s mind and eviscerated Williams’ credibility. We therefore cannot say with certainty that the jury was able to fairly weigh the conflicting testimony and come to an unbiased resolution as to which testimony to believe.

With this clear prejudice on the gun offense, the jury would not have been able to eliminate that prejudice when evaluating the evidence for the conspiracy to commit burglary and the burglary offenses where it again had to decide whether to believe the testimony of Tate and Peek or Williams. There was considerable evidence that Williams burglarized Peek’s home: Tate’s testimony; Peek’s testimony; Williams’ contradictory statements to the police; and Williams’ flight from the scene. Williams’ defense at trial was that he was at Peek’s house to purchase drugs as part of his role as a confidential informant. Although Detective Wolfe testified that Williams was not acting as a confidential informant during these events, he did indicate that Williams was a confidential informant for his department. Tr. p. 262, 265. There was other evidence at trial that seems to support Williams’ testimony. For example, although there was a shoe-print on the door that Williams was said to have forced open, there was no indication of a broken door casing or jam. Id. at 165. Also, the lion’s share of the evidence regarding Williams’ intent was from Tate and Peek, both of whom had potential credibility problems. Tate was Williams’ accomplice who testified under a grant of use immunity. And, if the jury were to believe Williams, Peek was someone Williams and Tate expected to steal marijuana from.

In other words, with Williams’ credibility seriously undermined by the admission of the extensive prior bad act evidence, we believe there is a reasonable probability that the results of the proceeding would have been different but for counsel’s deficient performance. Allowing that magnitude of past bad acts into evidence resulted in clear prejudice to Williams and, as a result, a verdict that was not fairly reached. Accordingly, we reverse Williams’ convictions for ineffective assistance of counsel.

While Williams’ trial counsel’s performance was clearly deficient, Williams’ counsel is not the only party to blame, for the State systematically elicited improper testimony and other evidence and ultimately encouraged the jury to convict Williams on that basis. The State objected on several occasions when Williams’ trial counsel attempted to elicit testimony during cross-examination of two of the State’s witnesses — Peek and Tate — about their prior bad acts that also fell within the types of testimony precluded under Rule 404(b). Yet the State in its own examinations sought and obtained testimony repeatedly about Williams’ prior bad acts — evidence that clearly should have been excluded under Rule 404(b).

Thus, Williams was deprived not only of effective assistance of counsel, but also of a fair trial. The conduct of trial counsel for both parties was sufficiently problematic to meet the higher bar required for reversal of Williams’ convictions under the doctrine of fundamental error. See Benefield v. State, 945 N.E.2d 791, 802-05 (Ind.Ct.App.2011) (citing, inter alia, Jewell v. State, 887 N.E.2d 939 (Ind.2008); Rouster v. State, 705 N.E.2d 999 (Ind.1999)) (recognizing a distinction between the standards for ineffective assistance of counsel and for fundamental error, and recognizing that fundamental error occurs when a fair trial is rendered impossible and not merely where trial counsel is ineffective), trans. denied.

II. Sufficiency of the Evidence

We next must determine if it is permissible to retry Williams on these charges. Double jeopardy prohibits a person “for the same offence to be twice put in jeopardy of life or limb.” United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). However, this “prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside ... because of some error in the proceedings leading to conviction.” Berry v. State, 725 N.E.2d 939, 944 (Ind.Ct.App.2000). All evidence admitted by the trial court is considered, including erroneously admitted evidence, and “[i]f that evidence as a whole would have been sufficient to sustain the judgment, double jeopardy does not attach.” Id.

A. Burglary

Indiana Code section 35-43-2-1(1) governs Class B felony burglary and provides:

A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is:
(1) a Class B felony if:
(A) it is committed while armed with a deadly weapon ....

Williams contends that the State failed to prove that he intended to commit a theft after he broke into Peek’s house. We disagree, and find that there would have been sufficient evidence to sustain Williams’ burglary conviction.

The “intent to commit a specific felony at the time of the breaking and entering may be inferred from the circumstances.” Baker v. State, 968 N.E.2d 227, 229-30 (Ind.2012) (internal quotations omitted). The evidence showing the intent to commit a felony “need not be insurmountable, but there must be a specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.” Id. at 230 (internal quotations omitted).

The evidence most favorable to the State adduced at trial shows that Williams discussed with Tate breaking into Peek’s house and stealing money, marijuana, and guns in November 2011. Tr. p. 175-76. On the day of the burglary, when the men got to the house, Williams kicked open the service door to the garage and entered Peek’s house with the intent to steal from Peek. Id. at 178-88. Once inside the house, Williams touched and moved Peek’s property, as Peek only realized that someone was inside his house when he heard chairs in the kitchen moving over the ceramic-tile floor. Id. at 38. Finally, when Peek ran downstairs to see what was going on, Williams fled from the house, jumped a fence at the back of Peek’s property, and continued running.

As a whole, this evidence would have been sufficient to sustain Williams’ burglary conviction, so we find that retrial on this charge is permissible.

B. Conspiracy to Commit Burglary

Williams also contends that there is insufficient evidence to sustain his conspiracy to commit burglary conviction. Indiana Code section 35-41-5-2 governs conspiracy and provides in relevant part:

(a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony ....
(b) The State must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.

At trial, evidence was presented that a month before the burglary, Williams and Tate discussed a plan to steal marijuana, money, and guns from Peek’s house. Tr. p. 175-76. Then, on the day of the burglary, Williams told Tate that they had to go, id. at 177, and threatened to “beat [Tate’s] ass” when Tate hesitated to go along with the plan. Id. at 128. If the fact-finder believes Tate, this is sufficient evidence to show that Williams agreed to commit the burglary with Tate.

As discussed above, there was also sufficient evidence to show that Williams performed an overt act in furtherance of his agreement with Tate to commit the burglary. After driving to Peek’s house, Williams kicked open the service door to the garage and entered the house. He then touched and moved Peek’s property once inside. We therefore find that there would have been sufficient evidence to sustain Williams’ conspiracy to commit burglary conviction.

C. Carrying a Handgun without a License

Indiana Code section 35-47-2-1 governs the offense of carrying a handgun without a license and states in relevant part:

(a) Except as provided in subsections (b) and (c) and section 2 of this chapter, a person shall not carry a handgun in any vehicle or on or about the person’s body without being licensed under this chapter to carry a handgun.

The offense is a Class A misdemeanor unless the defendant has been convicted of a felony within fifteen years before the immediate offense, and then it is a Class C felony. Ind.Code § 35-47-2-23(2)(B). Williams admitted that he had been convicted of a felony within the past fifteen years. He contends, however, that the State failed to prove that he carried a handgun. We disagree.

Williams’ argument focuses on the fact that only Peek claims that Williams had a handgun. Williams argues that the police never found a gun and no witness, other than Peek, placed a gun in Williams’ hand. Regardless, with Peek’s testimony, the evidence was sufficient to sustain a conviction of carrying a handgun without a license. We therefore hold that retrial is permissible on all three charges.

Reversed and remanded.

BAILEY, J., and BROWN, J., concur.

      . Hitting licks was explained by Officer Wolfe to mean committing burglaries and robberies. Tr. p. 260.


author: BAILEY, Judge.

text:
    Marcus WILLIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1208-CR-636.
    Court of Appeals of Indiana.
    March 7, 2013.
    Timothy J. Burns, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Marcus Willis (“Willis”) appeals his conviction for Criminal Trespass, as a Class A misdemeanor. We reverse.

Issue

Willis presents two issues for review, one of which is dispositive: whether there is sufficient evidence to support his conviction.

Facts and Procedural History

During the evening of December 12, 2011, Marion County Sheriffs Deputy Tali-sha Harper (“Deputy Harper”) was working off-duty as a security officer for Keystone North Apartments in Indianapolis. At approximately 8:45 p.m., Deputy Harper encountered Willis near the leasing office. She asked Willis if he lived on the property and he responded that he did not.

Willis produced an identification card and Deputy Harper checked it against a no-trespassing list compiled by the property owner management and carried by the security guards. Willis’s name and identifying information were on the no-trespassing list. Deputy Harper arrested Willis upon suspicion of criminal trespass and public intoxication.

On December 18, 2011, the State charged Willis with Criminal Trespass, as a Class A misdemeanor. Willis was tried in a bench trial on July 13, 2012. At the conclusion of the trial, Willis was found guilty as charged and sentenced to ten days imprisonment. This appeal ensued.

Discussion and Decision

Willis was charged with violating Indiana Code section 35-43-2-2(a)(l), which provides:

A person who:
(1)not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person’s agent.

Subsection (b) provides in relevant part:

A person has been denied entry under subdivision (a)(1) of this section when the person has been denied entry by means of:
(1) personal communication, oral or written;
(2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public; or

(3) a hearing authority or court order [.] The criminal trespass statute’s purpose is to punish those who willfully or without a bona fide claim of right commit acts of trespass on the land of another. Semenick v. State, 977 N.E.2d 7, 9 (Ind.Ct.App.2012), trans, denied.

When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009).

The State introduced evidence that Deputy Harper personally checked a no-trespassing list and observed Willis’s name and identifying information thereon. In response to defense counsel’s questioning on cross-examination, Deputy Harper explained the origin, contents, and dissemination of the no-trespassing list:

The Trespass List is a document, it’s a booklet if you will, of everyone that has been on the property that has been trespassed either by a security officer, any police officer that has decided to trespass anyone for any reason; and in addition to management. On this Trespass notification it has the person’s full name, their date of birth, their sex, race, their social security number, the reason why they were trespassed; and then it’s filed by the property and then placed on this list for us to carry.

(Tr. 8.) From this testimony and Deputy Harper’s earlier testimony that she had observed Willis’s name on the list, the fact-finder could reasonably infer that some event occurred that caused Willis’s name and identifying information to be placed on a no-trespassing list. This list was available to security officers. However, there is a complete absence of evidence that Willis was aware of this list or that he had otherwise been denied entrance to the property in a manner required by the relevant statute.

The State must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Here, the State failed to prove a material element of Criminal Trespass within the meaning of Indiana Code section 35^3-2-2(a)(l), specifically that Willis had been “denied entry” as defined therein. As such, the State failed to show that he willfully trespassed on the property of another.

Reversed.

CRONE, J., and BRADFORD, J., concur.

      . Ind.Code § 35-43-2-2.

      . Because of our disposition of the issue of sufficiency of the evidence, we need not reach Willis’s contention that the trial court abused its discretion in the admission of evidence.