State of Indiana v. Eastlund B. Wendell (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

FILED

regarded as precedent or cited before any Oct 31 2019, 7:37 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Curtis T. Hill, Jr. Rebecca M. Collins

Attorney General of Indiana Plymouth, Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana, October 31, 2019

Appellant-Plaintiff, Court of Appeals Case No.

19A-CR-1617

v. Appeal from the Marshall Superior

Court

Eastlund B. Wendell, The Honorable Dean A. Colvin,

Appellee-Defendant Judge

Trial Court Cause No.

50D02-1812-CM-1326

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019 Page 1 of 12

Case Summary

[1] The State challenges the trial court order granting Eastlund B. Wendell’s

(“Wendell”) motion to dismiss the criminal mischief charge 1 against him. It

raises one issue on appeal which we restate as: whether the trial court abused

its discretion when it granted Wendell’s motion to dismiss on grounds of

immunity.

[2] In the absence of findings of fact to support dismissal on grounds of immunity,

see I.C. § 35-34-1-8(6), we reverse and remand.

Facts and Procedural History

[3] On December 20, 2018, the State charged Wendell with criminal mischief, as a

Class A misdemeanor. The charging information states: “Eastlund Barker

Wendell did, recklessly, knowingly or intentionally without the consent of Pat

Eddy damage or deface the property of Pat Eddy, to-wit: windows on his [sic]

white 2019 Lincoln; resulting in a pecuniary loss in an amount of at least $750

but less than $50,000, to-wit: approximately $970.00 dollars.” App. at 8. On

April 3, 2019, Wendell filed a motion to dismiss the charge on the grounds that

he was immune from criminal liability pursuant to Indiana Code Section 34-30-

30-3. Wendell’s motion to dismiss was signed by him but not verified or

1

Ind. Code § 35-43-1-2(a)(1).

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otherwise sworn by him, and no affidavits or other documentary evidence were

attached to or submitted with his motion to dismiss.

[4] On April 22, the State filed its response to the motion to dismiss and the

“Incident/Investigation Report,”2 the latter of which stated, in relevant part:

On Tuesday November 13th, 2018[,] at approximately 6:52 p.m.,

Marshall County Dispatch received a call from an Eastlund

Wendell stating that there is a White SUV parked at Laville

Elementary School with a dog inside and the alarm going off.

***

[Approximately an hour later, Marshall County Police Officer

Giordano (“Officer Giordano”)] traveled throughout the lot

looking for the White SUV, however [he] was unsuccessful in

locating it. [Dispatch later informed Officer Giordano] that the

caller had tried to flag [him] down in the lot however was unable

to do so. The caller also advised that the White SUV had left the

parking lot a few minutes prior to [Officer Giordano’s] arrival.

Dispatch stated that the caller advised he was concerned about

what he had done, however it was in regard to the welfare of the

dog.

The following day, … Dispatch received a call from a Pat Eddy,

whom [sic] advised that she had two broken car windows on her

white Lincoln SUV that had been parked at Laville Elementary

School the previous evening.

2

The parties refer to this report as “the police report.”

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***

[Officer Giordano] later made contact with the caller Eastlund

Wendell … [who] stated that he was very concerned for the

welfare of the dog given the “conditions.” Eastlund stated that

while walking into the school, he noticed the dog barking from

inside the SUV while passing by it. Eastlund added that there

was also an alarm going off, however not audible, only a red light

flashing. Eastlund notified the Sheriff’s Dep[artment] of the

situation at which time he was encouraged to go into the school

and have staff deliver a message aloud in regard to the animal

that he felt was in distress. Eastlund advised he went into the

school for the program, never delivering a message[,] and

returned to the lot once the program had ended. [H]e then

notified Dispatch a second time, stating that he had broken the

window, and the vehicle and its driver had since left the lot,

having never made contact with the vehicle owner. …

The following day, [Officer Giordano] spoke on the phone with

Mrs. Eddy, who … stated that she was in the school for no more

than an hour attending the program while this incident took

place. Mrs. Eddy added that the dog had a wool coat on and

[she] felt it was fine in the vehicle given the temperature was not

freezing and [the dog was] enclosed in the vehicle for only a short

time. …

Id. at 35.

[5] On April 24, the trial court held a hearing at which it heard arguments of

counsel regarding Wendell’s motion to dismiss. At the beginning of the

hearing, the parties stipulated that the facts as alleged in the charging

information were to be taken as true for purposes of the motion to dismiss. At

the conclusion of arguments, the trial court took the matter under advisement.

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On May 21, the trial court issued its Order on Motion to Dismiss in which it

made no findings of fact3 and granted Wendell’s motion. Under the heading

“CONCLUSIONS,” the Order stated, in relevant part:

By its own statutory language Indiana Code 34-30-30-3 provides

that a defendant is immune from criminal liability “if all the

conditions set forth in subsection (b) are satisfied.” Upon review

of the record, it is the Court’s determination that Wendell has

satisfied the statutory definitions set out in subsection (b).

In support of denying the motion, the State cited State v. Isaacs[;]

however, the Court distinguishes [this case] from Isaacs, where

there [were] remaining questions of fact. On review, the facts

and circumstances alleged and stipulated to parallel the statutory

definitions set out by Indiana Code 34-30-30-3. Therefore, there

are no remaining questions of fact. Furthermore, the Court

believes that Wendell’s motion strictly complied with the

statutory requirements set forth by Indiana Code 34-30-30-3.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the defendant Eastlund Wendell’s Motion to

Dismiss is hereby granted.

Id. at 48.

[6] On May 22, the State filed a motion to correct error, and, on May 29, the court

held a hearing at which it heard arguments of counsel and took the matter

under advisement. The trial court did not rule on the motion to correct error

3

The “findings” section of the order only discusses the procedural history of the motion to dismiss. App. at

46.

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within thirty days, and the motion was therefore deemed denied pursuant to

Rule 53.3 of the Indiana Rules of Trial Procedure. Pursuant to Indiana Code

Section 35-38-4-2(1), the State now appeals the order dismissing the charge of

criminal mischief.

Discussion and Decision

[7] Wendell filed a motion to dismiss the information on the grounds that he was

immune from liability for the crime charged. We review a trial court’s ruling

on a motion to dismiss an information for an abuse of discretion. E.g., Pavlovich

v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014), trans. denied. An abuse of

discretion occurs when the “trial court’s decision is clearly against the logic and

effect of the facts and circumstances.” Id.

[8] Indiana Code Section 35-34-1-4(a)(6) provides that, upon motion of a

defendant, a trial court may dismiss an indictment or information on the

grounds that the “defendant has immunity with respect to the offense

charged.”4 Indiana Code Section 35-34-1-8 contains the procedural

requirements for a motion to dismiss made by a defendant under Indiana Code

Section 35-34-1-4. One such requirement is that, ‘[i]f the motion is expressly or

impliedly based upon the existence or occurrence of facts, the motion shall be

4

Wendell also moved to dismiss under subsection (11) of Indiana Code Section 35-34-1-4, which allows

such a motion for “any other ground that is a basis for dismissal as a matter of law.” However, as he has

raised no independent argument on “any other ground” than immunity, he has waived a claim under

subsection (11). Ind. Appellate Rule 46(a)(8).

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accompanied by affidavits containing sworn allegations of these facts.” I.C. §

35-34-1-8(a).

[9] Wendell contended in his motion to dismiss that his immunity from liability for

criminal mischief derived from Indiana Code Section 34-30-30-3, which

provides that a person who satisfies all of the conditions specified in subsection

(b) is immune from criminal liability for property damage resulting from the

person’s forcible entry of a vehicle to remove a domestic animal. The

conditions in subsection (b) are:

(1) A domestic animal must be present in the enclosed space of

the motor vehicle, and the person must reasonably believe that

the domestic animal is in imminent danger of suffering serious

bodily harm if the domestic animal remains in the motor vehicle.

(2) The person must determine that:

(A) the motor vehicle is locked; and

(B) forcible entry of the motor vehicle is necessary to

remove the domestic animal from the motor vehicle.

(3) The person must call telephone number 911 or otherwise

attempt to contact

(A) a law enforcement officer;

(B) a firefighter;

(C) an animal control officer; or

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(D) another emergency responder;

before the person forcibly enters the motor vehicle.

(4) The person must use no more force than is reasonably

necessary to enter the motor vehicle and remove the domestic

animal from the motor vehicle.

(5) The person must remain with the domestic animal until a law

enforcement officer, firefighter, animal control officer, or other

emergency responder arrives at the scene.

I.C. § 34-30-30-3(b). Thus, Wendell’s claim of immunity was based upon the

existence of facts demonstrating that he satisfied conditions (1) through (5),

above. Therefore, he was required5 to submit with his motion to dismiss an

affidavit containing sworn allegations of those facts. I.C. § 35-34-1-8(a); see also

State v. Virtue, 658 N.E.2d 605, 607 (Ind. Ct. App. 1995), trans. denied. Yet,

Wendell did not attach to, or submit with, his motion any affidavits. In fact, he

did not even verify his motion.

[10] Wendell seems to contend that his motion was supported on the facts as alleged

by the State, alone. First, this argument ignores the statutory mandate that he

support his motion with affidavits containing sworn allegations of the relevant

5

We presumptively treat the word “shall” in a statute as mandatory, unless it is clear from the context or

purpose of the statue that the legislature intended a different meaning. E.g., Roberson v. Lenig (“Matter of

Paternity of J.G.L.”), 107 N.E.3d 1086, 1092-93 (Ind. Ct. App. 2018). And there is no indication in Indiana

Code Section 35-34-1-8(a) that the legislature intended for the word “shall” to mean anything other than

mandatory.

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facts. I.C. § 35-34-1-8(a). Second, even if a supporting affidavit was not a

statutory requirement, the facts as alleged by the State in the information and

police report6 do not show that Wendell satisfied all the conditions required

under Indiana Code Section 34-30-30-3(b). Neither document provided facts

establishing that: the dog was in “imminent danger of suffering serious bodily

harm” if it remained in the vehicle; Wendell used “no more force than

reasonably necessary” to enter the vehicle and remove the dog;7 or Wendell

remained with the dog until law enforcement arrived. Id. The trial court’s

conclusion to the contrary is clearly against the logic and effect of the facts and

circumstances and, therefore, an abuse of discretion.

[11] The statute permitting a motion to dismiss an information anticipates a

situation in which the motion is based on the existence of facts but is not

accompanied by sworn allegations of those facts. Under those circumstances,

the trial court “may deny the motion without conducting a hearing.” I.C. § 35-

34-1-8(e)(2). However, if the trial court determines “after all papers of both

parties have been filed, and after all documentary evidence has been

submitted,” I.C. § 35-34-1-8(c), that “a hearing is necessary to resolve questions

of fact, the court shall conduct a hearing and make findings of fact essential to

6

The State did not “stipulate” to the facts contained in the police report, as Wendell alleges in his brief, but

the State did submit that report to the court and failed to object when Wendell referred to the report in his

arguments. Tr. at 2-3. Moreover, both parties cite to the police report when discussing the facts of this case.

7

In fact, there is nothing anywhere in the record indicating that Wendell even removed the dog from the

vehicle.

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the determination of the motion,” I.C. § 35-34-1-8(f). See also State v. Riley, 980

N.E.2d 920, 923-24 n.2 (Ind. Ct. App. 2013) (“[F]indings of fact are required

following a hearing on a motion to dismiss an information, pursuant to Indiana

Code section 35-34-1-8(f).”), trans. denied. At such a hearing, the “defendant

has the burden of proving by a preponderance of the evidence every fact

essential to support the motion,” I.C. § 35-34-1-8(f), and “[t]he trial court may

hear and consider evidence beyond the charging information to determine

whether the defendant may properly be charged with having committed a

criminal act,” Littleton v. State, 954 N.E.2d 1070, 1076 (Ind. Ct. App. 2011). See

also Virtue, 658 N.E.2d at 607-08 (holding trial court erred by failing to require

sworn affidavits to support facts and hold an evidentiary hearing on the motion

to dismiss, but it was harmless error because the State did not challenge the

facts as alleged by defendant).

[12] Here, not only did Wendell fail to provide any sworn allegations in support of

his motion to dismiss, but the court failed to conduct an evidentiary hearing8

“to establish facts that determine whether, as a matter of law, an offense has

properly been charged against [the] defendant.” State v. King, 502 N.E.2d 1366,

1369 (Ind. Ct. App. 1987) (citing I.C. § 35-34-1-8). In addition, the trial court

failed to make findings of fact as also required under the statute. I.C. § 35-34-1-

8(f). And, unlike in Virtue, this error was not harmless as the State specifically

8

The court did not take evidence at the April 24, 2019, hearing on Wendell’s motion to dismiss; it only

heard arguments of counsel.

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disagreed with key facts alleged by Wendell (e.g., the dog was in imminent

danger of suffering serious bodily harm).

[13] The State cites State v. Y.M., 60 N.E.3d 1121 (Ind. Ct. App. 2016), trans. denied,

and State v. Isaacs, 794 N.E.2d 1120 (Ind. Ct. App. 2003), for the contention that

Wendell’s compliance with all the factors in Indiana Code Section 34-30-30-

3(b)—i.e., his immunity—“is a question of fact that is inappropriate to resolve

in a motion to dismiss.” Appellant’s Br. at 12. In Isaacs we noted that “[f]acts

permitted to be raised under Section 35-34-1-8 typically concern only pre-trial

matters,” and that questions of fact “constituting a defense are not properly

raised by a motion to dismiss.” 794 N.E.2d at 1122 (emphasis added).

However, neither Isaacs nor Y.M. held that an evidentiary hearing to resolve

questions of fact may never be appropriate in a motion to dismiss. Indeed, such

a holding would render subsection (f) of Indiana Code Section 35-34-1-8

meaningless. See, e.g., Lane Alan Schrader Trust v. Gilbert, 974 N.E.2d 516, 522

(Ind. Ct. App. 2012) (“[W]e interpret provisions of an act together so that no

part of it is rendered meaningless and to harmonize the provision at issue with

the remainder of the statute.”), clarified on reh’g, 978 N.E.2d 519 (Ind. Ct. App.

2012).

[14] In Y.M. and Isaacs, the defendants sought dismissal on the grounds specified in

section (a)(5) of Indiana Code Section 35-34-1-4; i.e., that the facts stated in the

informations did not constitute offenses because they had statutory defenses for

the offenses. Y.M., 60 N.E.3d at 1125-26; Isaacs, 794 N.E.2d at 1122-23.

Neither of those cases involved a claim of immunity, which Indiana Code

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Section 35-34-1-4(a)(6) specifically states is a permissible ground for a motion to

dismiss. Y.M. and Isaacs are thus distinguishable from the present matter.

Conclusion

[15] The trial court erred when it granted Wendell’s motion to dismiss without

supporting affidavits, an evidentiary hearing, and findings of fact, all as required

by Indiana Code Section 35-34-1-8(a), (f).

[16] We reverse and remand for further proceedings.

Najam, J., and May, J., concur.

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