MEMORANDUM DECISION May 20 2015, 6:47 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE James T. Knight Gregory F. Zoeller Andrew A. Achey Attorney General of Indiana Hillis, Hillis, Rozzi & Knight James B. Martin Logansport, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Roy G. Dinwiddie, May 20, 2015
Appellant-Defendant, Court of Appeals Case No. 25A03-1405-CR-148 v. Appeal from the Fulton Superior Court State of Indiana, The Honorable Wayne E. Steele, Judge Appellee-Plaintiff. Cause No. 25D01-1203-FC-127
Kirsch, Judge.
[1] Roy E. Dinwiddie (“Father”) failed to pay child support for a number of years
and, following a jury trial, he was convicted of Class D felony nonsupport of a
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 1 of 17 dependent and Class C felony nonsupport of a dependent.1 The trial court
ordered Father to serve an aggregate term of six years of incarceration for the
two convictions. He appeals and raises two issues that we restate as whether
the trial court had jurisdiction to hear the case and whether his sentence was
inappropriate in light of the nature of the offense and the character of the
offender. In addition, we sua sponte address the issue of whether it was error for
the trial court to enter judgment on both the Class D felony and the Class C
felony.
[2] We affirm in part, vacate in part, and remand with instructions.
Facts and Procedural History [3] Father and Patricia Dinwiddie (“Mother”) married in November 1994. During
their relationship, they had four children, in 1993, 1996, 1998, and 2000. In
2000, the family moved to Rochester, Indiana, which is in Fulton County. In
April 2002, the Fulton Circuit Court (“dissolution court”) dissolved their
marriage. The decree adopted the recommendation of a custody evaluator and
it “direct[ed] the placement of custody with [Father],” but further provided for
equally shared parenting time, with each parent having the children three-and-
one-half days per week, so long as the parents resided in the same school
district. Appellant’s App. at 14-15.
1 See Ind. Code 35-46-1-5(a). We note that, effective July 1, 2014, a new version of this statute was enacted, but because Father committed the offense prior to 2014, we will apply the statute in effect that time.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 2 of 17 [4] At some point, Father moved to Ossian, Indiana, in Wells County. A guardian
ad litem was involved at the time, and recommended that the children reside
with Father and that Mother exercise alternating weekend visitation. The
parents followed this recommendation. However, in February or March 2005,
a Wells County court removed the children from Father’s care, and they were
placed first with foster parents, then with Mother in May 2005. 2 In October
2005, the dissolution court granted temporary custody of the children to
Mother, and there has been no custody order entered since that time.
[5] In July 2007, Mother filed a verified petition for child support in the dissolution
court, pursuant to the provision of Title IV-D of the Social Security Act and
with the representation of a Fulton County prosecutor. The petition alleged
that Mother was a resident of Fulton County, Father was believed to be residing
in Wells County, and no child support order was in effect at that time. Id. at
23. A hearing occurred in March 2008, at which the parties appeared, and the
trial court ordered Father to pay support in the amount of $157 per week. Id. at
26. Father had paid no support from May 2005, when Mother when the
children began residing with her, until the support order was entered in March
2008.3 At the time of that order, Father was employed and, by income
withholding order, paid child support and an additional amount to address the
then-existing arrearage. Father made consistent payments until June of 2009,
2 Sometime in 2005, Mother remarried. 3 Mother’s second marriage ended at some point in 2008. Although she used a different name during her marriage, she resumed using the surname Dinwiddie after her dissolution. Tr. at 46.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 3 of 17 when he was fired from his job. Since that time, Father has paid no child
support and has not provided any other financial support for the children.
[6] In November 2010, the parties appeared for hearing in the dissolution court on
Mother’s petition for contempt for failure to pay child support. The trial court
found Father in contempt for failing to pay child support and “for failing to
comply with the Court’s last order as it concerns production of job applications
that he has submitted seeking employment[.]” Id. at 29-30. The November
2010 order stated that, to purge himself of contempt, Father was required to pay
his child support obligation every week and provide the Prosecutor’s Office,
every other week, with a list of six job applications he has submitted. In
addition, the dissolution court ordered that Father “shall provide a detailed list
of all of the places he has sought employment in the last three months.” Id. at
30. The matter was set for a compliance hearing in January 2011.
[7] At the January 2011 compliance hearing, at which both parties were in
attendance, the dissolution court found Father to be in contempt and that he
“has failed to comply with any of the terms and conditions of the Court’s prior
order.” Id. at 32. Because he failed to pay any support since 2009, and failed to
demonstrate efforts to seek employment as ordered, the trial court found that
Father was “deliberately and willfully in contempt” and it ordered him to spend
sixty days in the Fulton County jail. Id. In September 2011, another “hearing
on contempt” occurred, and both Mother and Father were present. Id. at 35.
The dissolution court again found Father in contempt, and it ordered sixty days
jail time, but suspended it pending compliance with his child support
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 4 of 17 obligation. The dissolution court ordered Father to notify the Title IV-D Office
of any change of address or any change in employment status and directed him
to “keep a diary/log of his attempts to secure employment and be prepared to
present the same to the Court at compliance hearing. The Court anticipates
that [Father] will make at least two contacts per week in efforts to secure
employment[.]” Id. at 36. By February 2012, Father’s support obligation was
in arrears in the amount of $20,590.66. Id. at 51.
[8] In March 2012, the State charged Father in the Fulton Superior Court with
Count I, Class D felony nonsupport of a dependent, and Count II, Class C
felony nonsupport of a dependent in an amount greater than $15,000.00.4 Id. at
2-3. In June 2013, Father filed a motion for change of venue from the judge,
which was heard and denied in July 2013. Id. at 8.
[9] At the March 2014 jury trial, the State introduced evidence of the dissolution
court’s contempt proceedings, including (1) the dissolution court’s orders that
found Father in contempt and directed him to produce reports every other week
of attempts to find employment, (2) arrearage computation summaries; and (3)
Father’s payment history as reflected in the county’s child support docket.
4 We note that the charging information is not included in the record before us, but the chronological case summary reflects that Father was charged with nonsupport in an amount in excess of “$10000.” Appellant’s App. at 1; see also Appellee’s Br at 1. However, Indiana Code section 35-46-1-5 was amended effective May 2001 to substitute $15,000 for $10,000; thus, we view the CCS’s reference to $10,000 as a clerical error. In accord with this conclusion, the State’s opening statement at trial reflects that it was charging Father with a Class C felony for failing to pay in excess of $15,000. Tr. at 31.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 5 of 17 [10] During Mother’s testimony, she indicated that, following a Department of
Child Services proceeding against Father in Wells County occurring in
February 2005, she sought and obtained a modification of custody in October
2005 in the dissolution court. She stated that she received no support or
financial assistance of any kind from Father until she obtained the $157 weekly
support order in March 2008. Father quit paying support in June 2009, and
thereafter she sought enforcement of the support order in the dissolution court.
Mother testified that at all times she had remained employed, usually holding
multiple part-time jobs.
[11] During Father’s testimony, he admitted that he did not pay any child support
between February 20055 and March 2008. After a support order was entered in
March 2008, Father paid support via income withholding order, and paid an
additional $11.00 per week toward the arrearage, from March 2008 to June
2009, when he was terminated from his employment. He paid nothing in child
support after June 2009 and provided no financial support of any kind since
that time. Upon cross examination, Father acknowledged that he has never
accepted the legality of Mother having custody and, consequently, has never
considered the March 2008 support order to be a valid order. Father testified
that he was incarcerated for contempt for sixty days starting January 31, 2011,
was incarcerated for an unrelated criminal matter for sixty days beginning on
5 Some portions of the record indicate that Mother took custody of the children in May 2005. However, Father testified that May is not when Mother assumed custody; he maintains the transfer of custody occurred on February 26, 2005, when he “delivered them to [Mother] here at the jail[.]” Tr. at 82.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 6 of 17 June 3, 2011, and was incarcerated following a criminal conviction beginning
on October 14, 2011, and remained in incarceration at the time of trial in
March 2014. Father testified that he biked and walked all over Bluffton and
Fort Wayne and applied for work at numerous restaurants and temporary
employment agencies, which he specified by name, but stated that he could not
find a job. He said that the reason he was given for not being hired was that
none of the establishments were hiring. Father admitted that he did not ever
provide the dissolution court of the Title IV-D office with reports and proof of
job applications, as he had been ordered to do.
[12] The jury found Father guilty of the two felony counts of nonsupport of a
dependent, as charged, and the trial court entered judgment of conviction on
both the Class D felony and the Class C felony. In April 2014, following
receipt of the presentence report and after receiving argument from counsel for
each party, the trial court sentenced Dinwiddie to three years of incarceration
on the Class D felony offense and to a concurrent six-year term on the Class C
felony offense. The trial court characterized Dinwiddie’s crimes as
“particularly egregious,” considering that they followed a series of attempts by
the dissolution court, over the course of years, to get Dinwiddie to meet his
child support obligation, including issuing several citations for contempt and
eventually requiring Dinwiddie to serve sixty days in jail for contempt.
Appellant’s App. at 69. Father now appeals.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 7 of 17 Discussion and Decision
I. Jurisdiction [13] Father argues that the Fulton Superior Court “lacked subject matter jurisdiction
over the nature of the case type of relief sought.” Appellant’s Br. at 5. Father’s
argument is rooted in the fact that at the March 2014 jury trial Mother testified
that her address was in Logansport – which is Cass County – and “no questions
were asked of the mother about where the children lived or when the children
lived in Cass or Fulton County or when the mother moved from Fulton to Cass
County” and that “there is nothing in the record to indicate where the children
lived.” Appellant’s Br. at 7. Therefore, Father claims, the Fulton County
Superior Court lacked subject matter jurisdiction.
[14] We find that Father’s jurisdictional argument is misguided. Subject matter
jurisdiction refers to the power of courts to hear and decide a class of cases.
Kondamuri v. Kondamuri, 799 N.E.2d 1153, 1156 (Ind. Ct. App. 2003), trans.
denied. The issue of subject matter jurisdiction is resolved by determining
whether the claim involved falls within the general scope of authority conferred
on the court by the Indiana Constitution or by statute. Id. The State surmises
that Father’s claim is, in fact, one challenging venue, not jurisdiction. We
agree. On appeal, he asserts, without citation to any authority, “When the
State filed an information charging the Appellant with the Non-Support of a
Dependent, jurisdiction is only proper in the county where the mother and
children reside.” Appellant’s Br. at 6; see also id. at 4 (“[T]he mother of the
children lived outside Fulton County, Indiana and the county in which the Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 8 of 17 children lived in was unknown or not clear from the record.”) Thus, Father’s
argument is not that the Fulton Superior Court lacked the power to hear the
class of case or that the claim was outside of its scope of authority; rather, his
claim is that Fulton County is not the proper county based on the residence of
Mother and/or the children.
[15] Indiana Criminal Rule 12 governs motions for change of venue from the county
and provides that a motion be verified or accompanied by affidavit signed by
the criminal defendant or prosecuting attorney setting forth facts in support of
the constitutional or statutory basis or bases for the change. Ind. Crim. Rule.
12(A). Subsection (D) concerns timeliness of any such motion and states that
in any criminal action, no change of venue from the county shall be granted
unless filed within thirty days of the initial hearing, subject to certain exceptions
not applicable here. Ind. Crim. Rule 12(D)(1).
[16] Here, according to the record before us, Father never filed a motion for change
of venue from the county, nor did he voice any concern or make any allegation
that Fulton County was not the proper county.6 Accordingly, any challenge to
Fulton County as being improper venue is waived. See Wurster v. State, 715
6 We note that Father appears to have filed, in June 2013, a motion for change of venue from the judge, based on Father’s belief that the trial judge was biased against him because Father had filed a federal civil lawsuit against the court and judge. See tr. at 3. Father asserted the bias was evidenced, in part, by the fact the trial court had granted, over Father’s objection, the request filed by Father’s attorney to withdraw his appearance. It is not clear why Father objected to the withdrawal, given that Father was at that time pursuing a disciplinary action against his appointed attorney. Id. at 5.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 9 of 17 N.E.2d 341, 348 (Ind. 1999) (venue may be challenged at any time before
verdict or guilty finding).
[17] Waiver notwithstanding, we find no error. Pursuant to Article 1, Section 13 of
the Indiana Constitution, a defendant has “a right to a public trial ‘in the county
in which the offense shall have been committed[,]’” and this right is also
codified at Indiana Code section 35-32-2-1. Weiss v. State, 735 N.E.2d 1194,
1196 (Ind. Ct. App. 2000) (citing Wurster, 715 N.E.2d at 349), trans. denied.
However, venue is not an element of the offense, and the State may establish
venue by a preponderance of the evidence and need not prove it beyond a
reasonable doubt. Neff v. State, 915 N.E.2d 1026, 1032 (Ind. Ct. App. 2009)
adhered to on reh’g, trans. denied; see also Wurster, 715 N.E.2d at 348
(circumstantial evidence may be sufficient to establish proper venue). To the
extent that Father is claiming that the evidence was not sufficient to prove
venue, the standard of review for a claim that the evidence was insufficient to
prove venue is the same as for other claims of insufficient evidence. Weiss, 735
N.E.2d at 1196. That is, we will not weigh the evidence nor resolve questions
of credibility, and consider the evidence and reasonable inferences therefrom
supporting the trial court’s determination. Id. We look to see if there is
evidence of probative value from which a reasonable trier of fact could conclude
that the defendant was tried in the proper venue. Id.
[18] Here, the evidence presented at trial indicates that, in 2007, when Mother filed
her verified petition for child support, Mother was living in Fulton County. In
March 2008, the Fulton County Circuit Court ordered Father to pay $157 per
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 10 of 17 week in child support. Father abided by that order and paid support until June
2009, but made no payments thereafter. The Fulton Circuit Court subsequently
held several contempt and compliance hearings – in at least November 2010,
January 2011, and September 2011 – and while Mother and Father were
present for each those hearings, there is no indication that, at any time, Father
raised any issue alleging that Fulton County was not the proper venue. That
Mother was residing in Logansport, i.e., Cass County, at the time of trial in
March 2014 is not evidence that she and the children were not living in Fulton
County when Father was ordered to, but did not, pay any child support or
provide any other financial support for the children from July 1, 2009 through
February 1, 2012, the cut-off date chosen by the State for purposes of the
charging information. We find that the evidence supports the reasonable
inference that the children resided with Mother in Fulton County during the
relevant time frame.
II. Enhancement [19] Although neither party raises the matter, we sua sponte address the issue of
whether the trial court erred when it entered judgment of conviction on both the
Class D felony and the Class C felony. Indiana recognizes “‘a series of rules of
statutory construction and common law that are separate and in addition to the
protections afforded by the Indiana Double Jeopardy Clause.’” Sanjari v. State,
961 N.E.2d 1005, 1007 (Ind. 2012) (quoting Spivey v. State, 761 N.E.2d 831, 834
(Ind. 2002)). “Among these are situations in which an ‘enhancement is
imposed for the very same behavior or harm as another crime for which the
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 11 of 17 defendant has been convicted and punished.’” Id. (quoting Richardson v. State,
717 N.E.2d 32, 56 (Ind. 1999)). This principle is reflected in Indiana Code
section 35-38-1-6, which prohibits the entry of judgment and sentence on
separate counts charging both an offense and an included offense. Id.
[20] Turning to the statutory provision defining the offense of nonsupport of a
dependent, Indiana Code section 35-46-1-5(a), it first states: “A person who
knowingly or intentionally fails to provide support to the person’s dependent
child commits nonsupport of a child, a Class D felony.” The second part of the
statute reads: “However, the offense is a Class C felony if the total amount of
unpaid support that is due and owing for one (1) or more children is at least
fifteen thousand dollars ($15,000).” Ind. Code § 35-46-1-5(a). The second
sentence of the statute begins with “the offense,” and it thus refers back to the
Class D felony defined in the first sentence. As our Supreme Court recognized,
“[T]he class C felony has no independent meaning without the underlying class
D offense[.]” Sanjari, 961 N.E.2d at 1007. That is, the elements of the Class C
offense include the elements of the Class D offense. Id. The statute establishes
the Class C felony as an enhancement of the Class D felony, when the total
amount of unpaid support equals or exceeds $15,000. Id.; Porter v. State, 935
N.E.2d 1228, 1231 (Ind. Ct. App. 2010). The offense of nonpayment of support
is “singular in nature,” penalizing knowing or intentional failure to provide
support to the person’s child, but that same offense may result in a stiffer
penalty – i.e., it may be enhanced – if the unpaid support equals or exceeds
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 12 of 17 $15,000. Sanjari, 961 N.E.2d at 1007. However, “the accumulation of support
arrearage is not, in and of itself, a separate offense.” Id.
[21] Here, the State charged Father with one count of Class D felony nonsupport of
a dependent and, because the amount of arrearage totaled over $15,000, the
State also charged one count of Class C felony nonsupport. As the State
explained to the jury, the two counts were “the same basic crime, failing to
support a dependent child,” but were separated into two counts for purposes of
addressing the level of the crime. Tr. at 30. That is, Count I covered the
balance owed from July 1, 2009 to May 20, 2011, and encompassed a period
during which his arrearage balance was less than $15,000, and thus a Class D
felony; however, between June 1, 2011 and February 1, 2012, his arrearage
reached a point that it exceeded $15,000, and became a Class C felony. Id. at
30-31. “[T]hat’s why those charges are broken into two parts, but it is the same
crime other than the level of the crime.” Id. at 31. Based on the principles
outlined in Sanjari, the Class C felony conviction constituted an enhancement
of the Class D felony, not a separate offense, and it was error for the trial court
to enter judgment on both the Class D felony and Class C felony convictions.
Therefore, we vacate the Class D felony conviction and remand to the trial
court for entry of judgment on the Class C felony conviction only. 7
7 We note that, in Sanjari v. State, the State charged the father of two daughters with two counts of Class D felony nonsupport of a dependent and two counts of Class C felony nonsupport of a dependent. The jury convicted him of all four counts, but the trial court entered judgment only as to the two Class C felonies. Sanjari, 961 N.E.2d at 1006. On appeal, our Supreme Court held that, while Indiana Code 35-46-1-5 permits a separate Class D felony conviction for nonsupport of each dependent child, only one such offense may be
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 13 of 17 III. Sentence [22] Father claims that his sentence is “manifestly unreasonable in light of the
nature of the offense and character of the Appellant.” Appellant’s Br. at 1.
Indiana Appellate Rule 7(B) empowers us to independently review and revise
sentences authorized by statute if, after due consideration, we find the trial
court’s decision is inappropriate in light of the nature of the offense and the
character of the offender. Flickner v. State, 908 N.E.2d 270, 275 (Ind. Ct. App.
2009). The “nature of offense” compares the defendant’s actions with the
required showing to sustain a conviction under the charged offense, while the
“character of the offender” permits for a broader consideration of the
defendant’s character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.
2013), trans. denied. The question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind.
Ct. App. 2007). The defendant has the burden of persuading this court that his
sentence is inappropriate. Flickner, 908 N.E.2d at 275.
enhanced to a Class C felony where the unpaid support for one or more of such children is $15,000 or more. Id. Because only one of the two nonsupport offenses could be enhanced, the Court vacated one of the two Class C felony convictions and remanded with instructions that the trial court enter judgment as a Class D felony nonsupport for one child and as Class C felony nonsupport as to the other child. Id. at 1009. In the present case, the State charged one Class D felony, not two, as in Sanjari, and the trial court could enhance that one Class D to a Class C, but, in contrast to Sanjari, there were no remaining Class D nonsupport convictions on which to enter a second conviction.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 14 of 17 [23] The State charged Dinwiddie with nonsupport of a dependent child under
Indiana Code Section 35-46-1-5, which provides,
A person who knowingly or intentionally fails to provide support to the person’s dependent child commits nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000). [24] Having found that it was error to enter judgment of conviction of the Class D
felony, we examine the appropriateness of the sentence imposed on the Class C
felony conviction. A Class C felony carries a fixed term of between two and
eight years, with the advisory being four years. Ind. Code § 35-50-2-6. Our
Supreme Court has held that the advisory sentences are the “starting point” for
a trial court in determining the length of a sentence. Brown v. State, 10 N.E.3d
1, 4 (Ind. 2014). Here, trial court sentenced Father to six years on the Class C,
to be served concurrently with the three-year sentence on the Class D felony.
[25] In considering the nature of Father’s offenses, when a parent fails to pay at least
$15,000 in support, they commit Class C felony nonsupport of a dependent.
Here, having failed to provide any financial support for his children since June
2009, Father’s arrearage had surpassed $20,500 by February 2012. We have
recognized, “The length of time for nonpayment of child support and the
amount of arrearage go to the severity of the crime and the proper length of the
sentence.” Jones v. State, 812 N.E.2d 820, 826 (Ind. Ct. App. 2004). “[T]his
crime per se evidences that hardship or sacrifice was suffered by the children or
the custodial parent.” See Sanquenetti v. State, 917 N.E.2d 1287, 1293 (Ind. Ct.
App. 2009) (J. Vaidik, dissenting). Although Father was incarcerated for some Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 15 of 17 of periods of time, the evidence is that he did not meet, or even attempt to meet,
his child support obligations when not in jail or prison. The nature of the
offense supports a sentence above the advisory term.
[26] Our review of Father’s character reveals a disregard for both his four children
and for the law in general. Father testified that that he believed that the custody
order, and the subsequent March 2008 child support order, were invalid and
illegal. Although Father testified that he walked and biked all over Fort Wayne
looking for work, and that he lived with family members because he could not
afford housing, the State argued that Father’s continued unemployment was a
reflection of his unwillingness to subject himself to an income withholding
order, which would force compliance with a support order that Father believed
was illegal. As the trial court observed, there was no evidence presented that
Father suffered from some physical or mental condition that prevented him
from securing employment. We agree that the record suggests that his
continued unemployment was deliberate and in defiance of the support order.
The State also presented evidence that Father had a criminal history, including
two prior misdemeanor convictions for driving under the influence and a
conviction in May 2011 for Class D battery resulting in bodily injury on a child
less than fourteen years of age, stemming from an offense that occurred in
February 2005 involving his own child. Father has failed to convince us that
his character warrants a reduction in his sentence. His six-year sentence was
not inappropriate.
[27] Affirmed in part, vacated in part, and remanded with instructions.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 16 of 17 [28] Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 25A03-1405-CR-148 |May 20, 2015 Page 17 of 17