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:                         ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                               KAREN CELESTINO-HORSEMAN
Attorney General of Indiana                      Indianapolis, Indiana

KATHERINE M. COOPER
Deputy Attorney General
Indianapolis, Indiana
                                                                    Apr 04 2013, 9:32 am



                               IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                )
                                                 )
       Appellant-Plaintiff,                      )
                                                 )
              vs.                                )     No. 49A04-1211-CR-566
                                                 )
BOBBY WALDEN,                                    )
                                                 )
       Appellee-Defendant.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Marc T. Rothenberg, Judge
                            Cause No. 49F09-1109-FD-69637


                                       April 4, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Plaintiff, the State of Indiana (State), appeals the trial court’s grant of

Appellee-Defendant’s, Bobby Walden (Walden), motion to dismiss.

       We reverse and remand.

                                          ISSUE

       The State raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion when it granted Walden’s motion to dismiss the charges as a matter

of law.

                        FACTS AND PROCEDURAL HISTORY

       Nicholas Caldwell (Caldwell) lived at the Latitudes Apartments in Indianapolis,

Indiana from March or April 2010, until his landlord evicted him in December 2010. In

July or August of 2010, Caldwell started living at his fiancée’s residence while still

maintaining his apartment as his legal address. At some point in September 2010,

Caldwell became unemployed.        Aware that his landlord might commence eviction

proceedings, Caldwell began moving his belongings from the apartment.

       On November 15, 2010, Caldwell’s landlord filed a summons and notice of claim

for possession of real estate. On November 29, 2010, a notice to move was filed with the

trial court which provided that Caldwell must vacate his apartment on or before 6:00 p.m.

on December 6, 2010. Sometime between Thanksgiving and Christmas 2010, Caldwell

visited his apartment. He did not notice the summons or notice on the apartment door

during this visit.


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      On December 22, 2010, Caldwell’s landlord requested Jones Movers to move and

store the personal property from Caldwell’s apartment. That day, Candace Jones (Jones),

co-owner of Jones Movers, received a phone call from her son-in-law who was at

Caldwell’s apartment supervising the eviction, informing her that “the constable was

dirty.” (Appellant’s App. p. 187). Walden was the police officer supervising the eviction

proceedings. Jones’ son-in-law told her that a watch, cigars, and cigar cutters were

missing and he believed Walden had taken them. He also advised Jones that Walden

“had told [him] that if [they] wanted to continue working in Franklin Township, this is

how things were going to be from now on.” (Appellant’s App. p. 188). Generally, after

taking items removed during an eviction to storage, Jones would contact the owner of the

items within thirty days. The company would keep the property for ninety days before

sending a certified letter to the owner, giving him an additional thirty days to pay the

storage fees and recover the property. If the items would not be claimed within that

period, Jones would advertise the items in the newspaper and auction them ten days later.

      Caldwell was not present during the eviction and only learned that his belongings

had been moved to storage after a police detective contacted him about the possible theft.

In February 2011, Caldwell emailed Jones about paying the balance owed and taking

inventory of the remaining items to determine if anything else was missing. Jones

forwarded him the requested information and also told him that he needed to contact the

detective as the detective would have to be present when Caldwell accessed the storage

unit. On March 1, 2011, Caldwell sent Jones another email requesting to go through his

belongings the following day and to notify the detective if needed. In May of 2011,


                                            3
Jones sent Caldwell an email informing him that the items were scheduled to be sold at

auction on June 7, 2011 and that he needed to contact her as soon as possible if Caldwell

wanted to retrieve his belongings.

      During his deposition, Caldwell testified that after he lost his employment in

September, he could not afford to move his belongings into storage. He stated “I thought

they were going to be donated or thrown away . . . And, I mean there was nothing I could

do at that point.” (Appellant’s App. p. 117). When questioned by Walden’s attorney

whether he considered his belongings that were left behind in the apartment as “kind of

abandoned,” Caldwell replied, “Yeah.” (Appellant’s App. p. 118).

      On September 30, 2011, the State filed an Information charging Walden with

Count I, theft, a Class D felony, I.C. § 35-43-4-2 and Count II, official misconduct, a

Class D felony, I.C. § 35-44-1-2. On October 5, 2012, Walden filed a motion to dismiss,

together with a memorandum in support. On October 15, 2012, the trial court granted

Walden’s motion as a matter of law, concluding in pertinent part as follows:

      As [Walden] points out, according to the testimony in [Caldwell’s]
      deposition, [Caldwell] considered the property that the State alleges stolen
      to be, in fact, abandoned. The State responds to this by citing to bailment
      law, arguing that [Caldwell] retained an ownership interest in the alleged
      stolen property. While a well thought out and considered argument, the
      court finds that at the time of the alleged theft and misconduct, a bailment
      did not exist, and that by his actions, as he even considered it so, [Caldwell]
      had abandoned his property and therefore had no ownership interest in it on
      December 22, 2010, the date of the offense. Therefore, the charges . . .
      would fail on their face as it would be impossible, under law, for the State
      to meet its burden on the elements in Counts 1 and 2 of “exerting
      unauthorized control over the property of another person[.]”

(Appellant’s App. pp. 222-23).



                                            4
        The State now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

        The State contends that the trial court abused its discretion when it granted

Walden’s motion and dismissed the charging Information. On appeal, the court will

review a trial court’s grant of a motion to dismiss an information for an abuse of

discretion. Johnson v. State, 774 N.E.2d 1012, 1014 (Ind. Ct. App. 2002). In reviewing a

trial court’s decision for an abuse of discretion, we reverse only where the decision is

clearly against the logic and effect of the facts and circumstances. Id.

        The State appeals pursuant to Indiana Code section 35-34-1-4, which enumerates

the grounds for dismissing an information or indictment and which provides, in relevant

part:

        (a) The court may, upon motion of the defendant, dismiss the indictment or
        information upon any of the following grounds:
        (1) The indictment or information, or any count thereof, is defective under
        section 6 of this chapter.
        (2) Misjoinder of offenses or parties defendant, or duplicity of allegation in
        counts.
        (3) The grand jury proceeding was defective.
        (4) the indictment or information does not state the offense with sufficient
        certainty.
        (5) The facts stated did not constitute an offense.
        (6) The defendant has immunity with respect to the offense charged.
        (7) The prosecution is barred by reason of a previous prosecution.
        (8) The prosecution is untimely brought.
        (9) The defendant has been denied the right to a speedy trial.
        (10) There exists some jurisdictional impediment to conviction of the
        defendant for the offense charged.
        (11) Any other ground that is a basis for dismissal as a matter of law.

        As a general rule, when a defendant files a motion to dismiss an information, the

facts alleged in the information are to be taken as true. State v. Gill, 949 N.E.2d 848, 850


                                              5
(Ind. Ct. App. 2011). Questions of fact to be decided at trial or facts constituting a

defense are not properly raised by a motion to dismiss. State v. Isaacs, 794 N.E.2d 1120,

1122 (Ind. Ct. App. 2003). In Houser v. State, 622 N.E.2d 987, 988 (Ind. Ct. App. 1993),

we determined that it is improper for a trial court to grant a defendant’s motion to dismiss

an information when it is based on the sufficiency of the evidence.

       Not challenging the propriety of the actual indictment, Walden supported his

motion to dismiss by referencing Caldwell’s deposition testimony. Specifically, Walden

asserts that he has a defense against the charge of theft and official misconduct because

he could not knowingly exert unauthorized control over Caldwell’s belongings with the

intent to deprive Caldwell of any part of that property because Caldwell had abandoned

his property at the moment Walden took it.

       In Isaacs, the defendant was charged with operating a vehicle while under the

influence of a controlled substance. Isaacs, 794 N.E.2d at 1122. Moving for a dismissal,

he alleged that he had a valid prescription for that controlled substance. Id. The trial

court granted his motion. Id. We reversed because we considered Isaacs’ claim to be a

factually-based defense which must be decided at trial, not resolved in a pre-trial motion

to dismiss. Id.

       Likewise here, the question whether Caldwell had abandoned his property and

thus relinquished ownership and possession of his belongings is a factual dispute which

cannot be settled by a pre-trial motion. While Walden challenges whether Caldwell

could be the victim of theft after abandoning his property, the State refers to other

evidence indicating that Caldwell had not relinquished his belongings.           Caldwell’s


                                             6
deposition testimony indicates that he only learned that he had been evicted and his

property moved to storage when a detective contacted him about a possible theft.

Thereafter, the email exchange between Jones and Caldwell establishes that Caldwell

intended to reclaim his belongings and worked towards getting the storage fees paid. By

alleging in the motion to dismiss that Caldwell had abandoned his property at the time of

the eviction and the purported theft by Walden, Walden disputes the sufficiency of the

evidence. As a motion to dismiss is an improper vehicle to decide questions of fact, we

reverse the trial court’s grant of Walden’s motion to dismiss and remand to the trial court

for further proceedings.1      See Caesar v. State, 964 N.E.2d 911, 918 (Ind. Ct. App. 2012),

trans. denied.

                                           CONCLUSION

        Based on the foregoing, we conclude that the trial court abused its discretion by

granting Walden’s motion to dismiss.

        Reversed and remanded.

BAKER, J. and BARNES, J. concur




1
  Because we reverse on the basis that Walden’s asserted defense amounted to a question of the
sufficiency of the evidence, we do not need to address the merits of the State’s claim that (1) the trial
court erred by not conducting an evidentiary hearing and (2) proof of absolute ownership is not required
for purposes of a theft charge.


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