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).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019   Page 2 of 12
      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.”


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019   Page 3 of 12
              ***


              [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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019   Page 4 of 12
      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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019                 Page 5 of 12
      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).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019                 Page 6 of 12
      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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019   Page 7 of 12
                         (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.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019                  Page 8 of 12
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019                     Page 9 of 12
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019                Page 10 of 12
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1617 | October 31, 2019   Page 11 of 12
       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.




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