274 So.2d 790 (1973)
Succession of Mary Eloise SUPPLE.
No. 5523.
Court of Appeal of Louisiana, Fourth Circuit.
March 13, 1973.
*791 Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann, Hirschel T. Abbott, Jr., New Orleans, for appellant and plaintiff-in-rule, Joseph S. Bolton.
Monroe & Lemann, Malcolm L. Monroe, Walter J. Suthon, III, J. Thomas Lewis, New Orleans, for appellee and defendant-in-rule, Whitney National Bank of New Orleans.
Before LEMMON, STOULIG and BOUTALL, JJ.
STOULIG, Judge.
Plaintiff,[1] as principal and income beneficiary of a testamentary trust, has appealed a judgment dismissing his rule to show cause why the Whitney National Bank of New Orleans should not be removed as trustee. He has alleged the defendant, motivated by a conflict of interest, is improvidently administering his estate.
The trust was created in the will of Mary Eloise Supple in these terms:
"I give and bequeath in trust all of my stocks in J. Supple's Sons Planting Co. Ltd. and J. Supple's Sons Mercantile Co. Ltd. both of Bayou Goula, Louisiana to Whitney National Bank of New Orleans, Louisiana as trustee in trust for my grandnephew, Joseph Maurice Supple, Junior to be held in trust for said Joseph Maurice Supple, Junior until he arrives at his thirty first birthday.
"I hereby name, constitute and appoint Whitney National Bank of New Orleans or its successor or successors or its transferee or its transferees to be the trustee of the trust herein created. I hereby instruct my trustee to pay the net earnings of said stocks to the said Joseph Maurice Supple, Junior at least semi-annually. When the said Joseph Maurice Supple, Junior is attending high school or college if the net earnings from the said stocks are not sufficent [sic] to pay for his education and his maintenance and upkeep then I vest my trustee with the power of selling so much of said stock or stocks as will give the trustee sufficient [sic] funds to accomplish this purpose. Such sale may be made by my trustee at private sale extra-judicially upon such terms and conditions as my trustee may see fit and proper. * * *"
In 1954 the Whitney, as trustee, was sent into possession of the corpus, consisting of 1,930 shares of common stock in J. Supple's Sons Planting Co., Ltd. (hereinafter referred to as the Planting Company), and 310 shares of common stock in J. Supple's Sons Mercantile Co., Ltd. The Planting Company stock held in trust for plaintiff represents 20 percent of the outstanding shares and it was the Whitney's policy in voting these shares at stockholders' meetings in 1971 and 1972 that provoked this litigation.
The Planting Company has operated a sugar growing and milling business for many years. Its principal asset is 4,200 acres of land on the banks of the Mississippi River. Over the past few years diminishing profits have led the stockholders to agree unanimously that the corporation's assets should be liquidated. However, there is a sharp division of opinion as to the price that can be obtained. An adjacent landowner, W. T. Burton, offered to buy the Planting Company's lands for $2,500,000 cash; whereas the directors of the Planting Company obtained an appraisal from a realtor fixing the value of its holdings at $5,040,000.
The testimony reflects the Planting Company shareholders, excluding plaintiff's interest, are equally divided on the issue of liquidation. Present management, controlling 40 percent of the voting stock, deems it advisable to withhold action on the Burton offer until further efforts are made to sell at a higher price. The other 40 percent would vote to accept the offer. Thus, the stock held in trust represents *792 the "swing" vote. The Whitney voted in 1971 and 1972 to retain the present management, thus, in effect, blocking the immediate liquidation of the Planting Company assets.
Plaintiff, if permitted to vote the stock held in trust for him, would align himself with those shareholders favoring immediate sale. For the past two years, as income beneficiary, he has been paid a return of $1 per share. Based on the Burton offer of $2,500,000, plaintiff values his Planting Company stock at $500,000. His complaint is that the income yielded by this amount of capital is grossly inadequate and that if the stock were sold and the funds reinvested, the yield should be a minimum of 6 percent of the capital, or $30,000 per annum.
Plaintiff contends the Whitney is violating its obligation as trustee by maintaining the corpus of his trust in low income yielding stock in order to further its own interest. He asserts the bank is primarily interested in forestalling liquidation in order to retain the Planting Company's substantial commercial account from which the bank derives profit.
Bolton's action is based on LSA-R.S. 9:1789, which provides:
"A trustee may be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause shown."
Plaintiff urges a conflict of interest constitutes "sufficient cause," and from the following summarized sequence of events he would have us conclude the bank has subverted its duty as trustee to insure its own future profit.
On June 24, 1971, plaintiff contacted a Mr. Beaumont, a trust officer of the Whitney, to discuss how his 20-percent interest in the Planting Company would be voted at the annual stockholders' meeting to be held two days later. He advised Beaumont he wished to vote to liquidate the corporation's assets because the stock was yielding a low return. Beaumont agreed the bank would vote the shares according to plaintiff's instructions. At the meeting the bank reversed its position. Mr. Beaumont did not attend; however, another trust officer, Mr. Welsch, was sent to vote the Bolton interest. In so doing, he followed the instructions of Keehn Berry, chairman of the board of the Whitney, by voting to retain present management. This effectively blocked affirmative action on the Burton offer.
At the same meeting, a majority voted to form a committee to pursue the sale of the Planting Company lands. According to plaintiff, the board members appointed themselves to the committee and nothing was done.
In January, 1972, plaintiff contacted one of the trust officers at the Whitney to advise nothing was being done by the Planting Company committee appointed to seek out a prospective purchaser of the assets. His inquiry about pressing for liquidation or divesting himself of his stock held in trust was referred to the Whitney's attorneys. As a result Guy B. Scoggins, representing the bank, advised him by letter dated February 9, 1972, that his stock could be sold if certain conditions were complied with. The letter stated in part:
"After discussing the matter, we concluded thatwhereas the will of your great-aunt states that the stock should be held in trust until you reach the age of 31 years, it did not specifically prohibit the sale of the stock. For this reason, we feel that the stock could be sold, provided the approval of the Court is obtained.
"We further concluded that, in order to properly present the matter to the Court, it would be necessary for us to have a specific offer to purchase either the stock, or the property belonging to the Companies. In this way the Court would have definite facts from which it could draw a conclusion.
"It would be my suggestion that if someone is interested in purchasing either *793 the stock or the assets of the Companies, that this party submit a written offer, spelling out all the terms and conditions of the proposed purchase. This agreement to purchase should then be forwarded to me, in order that I can prepare a petition to properly present the matter to the Court for its determination.
"If the Court approves, then the Whitney Bank would be in a position to vote the stock in favor of the sale. If it is anticipated that this offer to purchase will be presented at the Annual Meeting of the Shareholders, then you should forward us the information at least 45 days before the anticipated meeting, in order that we can have sufficient time to complete the transaction.
"After discussing the matter, we feel that we must have some definite offer to present to the Court, as it would be impossible to obtain a blank order to sell the stock, without having specific information regarding the sale.
"If you wish to discuss the matter more fully, I shall be pleased to do so."
It does not appear that plaintiff followed any of the procedures suggested by the bank's attorney for liquidating his interest in the Planting Company. Nor did he avail himself of the opportunity to discuss the matter with Scoggins.
On May 5, 1972, Bolton persuaded the trust officer Beaumont to execute a proxy giving two of plaintiff's designees authority to vote his stock at the 1972 annual meeting of stockholders scheduled for June 29. The plaintiff testified the proxy was given unconditionally. According to Beaumont he advised plaintiff at the time of his intention to attend the annual meeting and to revoke the proxy if in his opinion it became necessary to do so. Thus, according to Beaumont, the proxy was given with the understanding the bank's representative retained veto power.
Two days before the annual meeting, plaintiff contacted Mr. Beaumont to assure himself the bank would not reverse its position. This call apparently precipitated the intervention of Berry, who, until this time, was unaware the proxy had been given. Berry then contacted Ed Supple, leader of the present management faction of the Planting Company, to be briefed on the situation. When he learned the reasons for the impending stock fight he wrote directly to Supple revoking the proxy.
On June 28, plaintiff made further attempts to have the bank execute a proxy authorizing him to vote the 20 percent held in trust. His attorney tendered to the bank a document relieving the bank of any liability for executing the proxy, but Berry, nonetheless, remained adamant and refused to give the proxy. At this conference Berry expressed a desire to have the Whitney removed as trustee if this could be accomplished legally. Plaintiff interpreted this to mean that the bank would join in a petition to have it removed as trustee and the parties would jointly seek court approval for such an action. According to Berry, he was simply wishing himself out of an unpleasant situation although he felt a trustee could not voluntarily abdicate the responsibility.
The following day, a bank representative voted to postpone the annual meeting until August 18, 1972, to give the plaintiff an opportunity to remove the trustee in the interim.
On July 13, 1972, plaintiff's attorney presented to the bank a "Petition to Terminate the Trust, And In The Alternative to Appoint a Successor Trustee." It was expected the bank would join in and concur; however, plaintiff's attorney was advised no such action was possible. Hence this suit.
The thrust of plaintiff's argument for removal is that the bank blocked the sale of the Planting Company assets to retain a prize commercial account. The record reflects the Planting Company has been banking with the Whitney for many years. It was not established exactly when the *794 business relationship began but testimony of one of the bank representatives indicates the Planting Company and the Supple family were depositors before 1935.
Exhibits produced establish the Planting Company maintains a checking account in the Whitney that has carried balances of between $100,000 and $200,000 over the years. In 1971, management used a portion of the checking account funds to buy short term certificates of deposit. As it happened, one certificate of deposit was either purchased or renewed the same day Berry revoked plaintiff's proxy.
Plaintiff would have us infer the purchase of the certificate of deposit was a form of payoff to the bank for voting with management of the Planting Company. The evidence simply does not support this conclusion. In reviewing the checking account balances, it does not appear the average cash on deposit varied materially in 1971 and 1972 as compared to past years. It simply shows that the Planting Company began in 1971 to use idle funds for short term investments. This policy did not increase the bank's profits; rather, it cost the Whitney money: the transaction represented a transfer of funds from a noninterest-bearing checking account to interest-bearing certificates of deposit.
Based on the foregoing resume of facts we fully agree with the trial court's finding that the plaintiff failed to bear the burden of proof necessary to preponderate in favor of the conclusion that the bank has a conflict of interest that would prevent its administering the trust for the best interests of the beneficiary.
Plaintiff's attack on the bank's administration is stated primarily from the standpoint of the income beneficiary. He points out that a return of $1,930 per annum on stock valued at $500,000 is ridiculously low. However, Berry explained the bank's position that if land held by the Planting Company can be sold at twice the price of the Burton offer (which in Berry's opinion is low based on the fact that the bank recently sold acreage in the same area for a considerably higher price), the corpus of the trust would be $1,000,000 rather than $500,000 and the plaintiff's interest as principal, as well as income beneficiary, would profit from the capital gains tax benefits as opposed to annual investment income. Obviously should the property be sold at a price more commensurate with its appraised value in a comparatively short period of time, the increase in net income would be more than sufficient to overcome any loss of investment revenues occasioned during the delay.
With the evidence before us, we cannot view the Whitney's vote as inept or ill-advised. The bank supports present management who voted to explore the possibilities of selling their assets at a higher price than that offered by Burton. We make this observation because plaintiff has argued the Whitney has taken an irresponsible position in administering its finances. Under LSA-R.S. 9:1789, we think a trustee should be removed if the trust estate is obviously being mismanaged, whether there is or is not a conflict of interest. However, the record discloses no evidence of mismanagement but merely a conflict of opinion between the trustee and the beneficiary.
The plaintiff's animosity toward this trustee is understandable in view of the fact that the bank has reversed its position on several occasions. This has happened because the chairman of the board has overruled the decision of junior trust officers. As a consequence, plaintiff has been caused inconvenience and embarrassment. While we find the bank's conduct and attitude toward the trust beneficiary less than commendable from a public relations standpoint, we cannot conclude the bank has breached the fiduciary duty entrusted to it by Mary Eloise Supple in her last will and testament.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
NOTES
[1]  Plaintiff's surname was changed from Supple to Bolton after his mother remarried.


743 P.2d 186 (1987)
Michael Patrick PAYNE, By and Through his Guardian ad Litem, John Michael PAYNE; John Michael Payne; and Stephanie Payne, Plaintiffs and Appellants,
v.
Garth G. MYERS, M.D.; Joseph P. Kesler, M.D.; the State of Utah and Handicapped Children's Service; and the Division of Health of the State of Utah, Defendants and Respondents.
No. 19218.
Supreme Court of Utah.
August 18, 1987.
Stuart H. Schultz, R. Scott Williams, Salt Lake City, for plaintiffs and appellants.
Arthur H. Nielsen, William C. Quigley, Gary B. Ferguson, Gary D. Stott, Salt Lake City, for Garth G. Myers, M.D.
*187 Francis J. Carney, Stewart M. Hanson, Jr., Stephen J. Sorenson, Salt Lake City, for Joseph P. Kesler, M.D.
Craig L. Barlow, David L. Wilkinson, Salt Lake City, for the State of Utah.
HOWE, Justice:
Plaintiffs John M. Payne and Stephanie Payne (hereinafter "parents") brought this medical malpractice action seeking damages for "wrongful birth"[1] against Drs. Garth G. Myers and Joseph P. Kesler ("doctors") and their employer, the State of Utah Handicapped Children's Service, and the Division of Health of the State of Utah ("State defendants"). John M. Payne on behalf of Michael P. Payne ("minor plaintiff") joined in the action against the doctors and the State defendants, seeking damages for "wrongful life."[2]

FACTS
In 1975, the parents gave birth to their first child, Matthew. Shortly thereafter, he began exhibiting signs of an undiagnosed neurological disorder. From November 1976 through the fall of 1977, he was examined and treated by the doctors at the Handicapped Children's Service, an agency of the Utah State Department of Health. The parents allege that the doctors negligently failed to diagnose Matthew's affliction as Pelizaeus-Merzbacher Syndrome, a rare, genetically transmitted, and progressively degenerative neurological disorder that is characterized by widespread demyelination of the brain sheath, causing severe motor disorders and eventually death. The parents further allege that sometime during the fall of 1977, the doctors advised them that they could safely have another child and that they need not worry that the affliction would recur. They assert that had they been advised that a second child would be at risk of being born with the same defect which impaired their first child, they would not have taken that risk.
The parents contend that in reliance on this advice, Stephanie Payne had her obstetrician remove her intrauterine birth control device (IUD) on February 14, 1978, so that she could conceive a second child. On January 27, 1979, she gave birth to Michael, who soon developed signs of the same neurological impairments as his brother, Matthew. A few months after Michael's birth, both children were diagnosed by another physician as having Pelizaeus-Merzbacher Syndrome. Thereafter, the parents and minor plaintiff brought this action against the doctors and the State defendants.
The district court entered summary judgment in favor of the State defendants as to the parents' claim on the ground that they had failed to file a notice of claim against the State within one year as required by Utah Code Ann. § 63-30-12 (1986). The court, however, denied summary judgment in favor of the State defendants as to the minor plaintiff's claim. The court also awarded summary judgment in favor of the doctors as to all claims by all plaintiffs on the ground that a 1978 amendment to Utah Code Ann. § 63-30-4 granted immunity to them for their simple negligence in the performance of their duties as state employees. The district court certified its summary judgment in favor of the doctors and against the parents as final pursuant to Rule 54(b) of the Utah Rules of Civil Procedure to allow the parents to appeal. Their sole contention on appeal is that the 1978 amendment should not bar their suit for wrongful birth against the doctors.

I.
When reviewing the grant of a motion for summary judgment, the facts are to be *188 liberally construed in favor of the parties opposing the motion, and those parties are to be given the benefit of all inferences which might reasonably be drawn from the evidence. See Durham v. Margetts, 571 P.2d 1332, 1334 (Utah 1977). Summary judgment is proper only when the defendants are entitled to it as a matter of law on the undisputed facts. Barlow Society v. Commercial Security Bank, 723 P.2d 398 (Utah 1986). In this case, the district court awarded summary judgment in favor of the doctors solely on the immunity provided by the 1978 amendment to Utah Code Ann. § 63-30-4. That section, as amended in 1978, provides in pertinent part:[3]
The remedy against a governmental entity or its employee for an injury caused by an act or omission which occurs during the performance of such employee's duties ... is, after the effective date of this act, exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless the employee acted or failed to act through gross negligence, fraud, or malice.
An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring during the performance of the employee's duties ... unless it is established that the employee acted or failed to act due to gross negligence, fraud or malice.

(Emphasis added.) Prior to the 1978 amendment, the doctors as governmental employees had no immunity from suit for their simple negligence. The amended statute became effective on March 30, 1978, after the alleged negligent advice had been given by the doctors in the fall of 1977 and after Stephanie Payne's IUD was removed in February 1978, but some ten months before Michael was born.
The parents contend that they are not subject to the 1978 amendment because their cause of action accrued at the time they received and relied upon the negligent advice of the doctors in 1977 and that the legislature could not thereafter constitutionally impair their vested right to that cause of action. The doctors, on the other hand, argue that the causes of action of the parents, if indeed they have one at all, did not accrue until the birth of Michael or, at the very earliest, at the time he was conceived. Both of those events postdated the effective date of the amendment.
Generally, at common law, one who suffers injury to his person or property because of the negligence of another has a right of action in tort. 65A C.J.S. Negligence § 175, at 305 (1966). Under traditional tort analysis, the plaintiff must establish the existence of a duty, the breach of which proximately causes injury to the plaintiff. In an action for wrongful birth,[4] the plaintiff has the burden of establishing these same elements.
Assuming, but not deciding, that Utah jurisprudence should recognize an action for wrongful birth,[5] it is necessary to *189 determine precisely when the parents' cause of action accrued.
The word "accrue" in connection with the accruing of a cause of action means becoming complete so that the aggrieved [parties] can begin and prosecute [their] action... . The true test is to ascertain the time when the plaintiff[s] could first have maintained [their] action to a successful result. A cause of action accrues when the person in whose favor it arises is first entitled to institute a judicial proceeding for the enforcement of his rights.
1 Am.Jur.2d Actions § 88 (1962). In traditional negligence cases, a cause of action accrues when all the elements necessary to maintenance of a lawsuit are present; the time of occurrence of the last of those elements is made the critical point of initial inquiry. Hunter v. Knight, Vale & Gregory, 18 Wash. App. 640, 571 P.2d 212 (1977).
In this case, we have four possibilities as to when the parents' cause of action accrued: (1) at the time they received the negligent advice; (2) at the time Mrs. Payne had her IUD removed in reliance on that advice; (3) at the time Michael was conceived; or (4) upon Michael's birth. We will analyze each of these four possibilities. First, we look at the alleged negligent advice of the doctors. The increased ability of health care professionals to predict and detect the presence of fetal defects and the capacity to assess risk factors associated with unborn and even unconceived children have considerably enhanced the importance of genetic counseling. It is now possible for prospective parents to know, well in advance of birth, of the risk of congenital defects in children not yet conceived. Courts accordingly have recognized that physicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice, "or whose actions could reasonably be said to give rise to a duty to provide such testing or advice," Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 346 (1986), have a corresponding obligation to adhere to reasonable standards of professional performance.
Assuming that the facts alleged by the parents are true, did their cause of action accrue when the doctors mistakenly advised them? We conclude that it did not. Although there was a duty to the parents which the doctors may have breached, at that time the parents had no injury as a result of the breach. If the parents had been unsuccessful in conceiving a second child, no cause of action could have arisen. The parents may have had negligent advice, but nothing more.
Second, did the parents' cause of action accrue at the time Mrs. Payne had her IUD removed? They contend that they were injured when, in reliance on the doctors' advice, they incurred expenses for the removal of Mrs. Payne's IUD. They argue that they have a vested right to their negligence cause of action that "relates back" to the date of the earlier "injury" (removal of the IUD), even though that injury was different in nature from the wrongful birth for which they now claim relief, because both injuries are a consequence of the same allegedly negligent conduct. Again, we find no merit to the parents' argument. The removal of the IUD was not an injury in and of itself. Because of its contingent nature at that time, the claim had not reached the point of definiteness traditionally associated with a "vested" cause of action. Mrs. Payne may not have conceived a child at all; thus the parents' reliance on the allegedly negligent advice of the doctors would not have produced an injury.
Third, did the parents suffer injury at the time of Michael's conception or, fourth, at the time of his birth? Again, Michael's conception enhances the possibility of injury. However, had Mrs. Payne miscarried or had Michael been born with no genetic defect, there would still have been no cause of action for wrongful birth. By the very nature of their claim, i.e., an action for the *190 wrongful birth of their child, it is axiomatic that the injury to the parents could not have occurred prior to Michael's birth. The injury in a wrongful birth claim cannot precede the birth of the child. See Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984).
Under this analysis, the parents' cause of action could not have accrued earlier than ten months after the effective date of the 1978 amendment to section 63-30-4. Since there was no allegation of gross negligence, fraud, or malice, that section precludes the personal liability of the doctors.

II.
The parents contend that granting immunity for the doctors' negligence is to apply the amendment retroactively. In Silver King Coalition Mines v. Industrial Commission, 2 Utah 2d 1, 268 P.2d 689 (1954), this Court defined a retroactive law as one "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past." The 1978 amendment provides: "The remedy against a governmental entity or its employee ... is, after the effective date of this Act, exclusive of any other civil action... ." It is clear that the legislature carefully limited application of the amendment to actions commenced after its effective date. Thus, the amendment is applicable to the parents' suit against the doctors, and the question arises whether this application impairs any vested right of the parents. This Court has held that a vested right of action is a property right protected by the due process clause. Spanish Fork Westfield Irrigation Co. v. District Court, 99 Utah 527, 104 P.2d 353 (Utah 1940). Recently, the court reaffirmed the rule that
once a cause of action under a particular rule of law accrues to a person by virtue of an injury to his rights, that person's interest in the cause of action and the law which is the basis for a legal action becomes vested, and a legislative repeal of the law cannot constitutionally divest the injured person of the right to litigate the cause of action to a judgment.
Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (Utah 1985); see also 16A C.J.S. Constitutional Law § 260 (1984) (causes of action that have not yet accrued are not vested). The general rule is that a cause of action for negligence does not accrue or vest until the plaintiff has suffered injury as a result of negligent conduct. See Mathis v. Eli Lilly & Co., 719 F.2d 134, 141 (6th Cir.1983); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387 (La. 1978); see also Berry v. Beech Aircraft Corp., supra (cause of action does not vest until there is an injury to a right).
The parents did not suffer injury before Michael's birth. A cause of action had not accrued, and therefore, they had no vested rights prior to that time. Since application of the amendment did not affect a vested right, it had no retroactive effect.
The parents' final contention is that the 1978 amendment is unconstitutional because it contravenes article I, section 11 of the Utah Constitution, which provides, inter alia, that "every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law... ." The parents argue that they were injured by the negligent acts of the doctors and that they had a cause of action against them at common law which the amendment stripped from them. The amendment to section 63-30-4 did not leave the parents without a remedy for their injury. See Stewart v. Houk, 127 Or. 589, 271 P. 998, reh'g denied, 127 Or. 597, 272 P. 893 (1928) (legislature may modify the remedy and the form of procedure and attach conditions precedent to the exercise of the right). Parents had a remedy against the state defendants for injuries arising out of the negligent acts of State employees, but the parents failed to give notice of their claim to the State within one year as required by section 63-30-12. Had they done so, they might have obtained a judgment against the State. Utah Code Ann. § 63-30-34 (1986). We conclude that the parents were not denied the guarantees of article I, section 11 because they still had an opportunity to seek redress in the courts.

*191 III.
We have examined other contentions made by the parents as to why the 1978 amendment should not bar their action, but find those contentions also to be without merit.
The judgment of the district court is affirmed.
HALL, C.J., STEWART, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.
NOTES
[1]  A "wrongful birth" claim is brought by the parents of a severely defective child against a physician who negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, thereby depriving the parents of the choice to make an informed decision as to whether to have a child. See Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986).
[2]  A "wrongful life" claim is brought on behalf of a severely defective child against a physician for the physician's negligent failure to inform the parents of the risks of conceiving an impaired child, thereby denying the parents the choice to avoid the child's birth.
[3]  In 1983, the legislature again amended section 63-30-4 to extend immunity to government employees for their gross negligence. See 1983 Utah Laws ch. 129, § 3 (codified at Utah Code Ann. § 63-30-4 (1986)).
[4]  In 1983, the legislature enacted the Utah Wrongful Life Act, Utah Code Ann. §§ 78-11-23 through -25. Inasmuch as the parents' claims arose prior to the effective date of that Act, its provisions are inapplicable to the instant case, and we do not here address the effect that legislation may have on subsequent actions.
[5]  Although the action for wrongful birth is comparatively new in the history of tort law, many states have recognized wrongful birth causes of action. Phillips v. United States, 508 F. Supp. 544, 545 n. 1 (D.S.C. 1981); Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986); Goldberg v. Ruskin, 128 Ill. App.3d 1029, 84 Ill.Dec. 1, 471 N.E.2d 530 (1984); Fassoulis v. Ramey, 450 So.2d 822, 824 (Fla. 1984); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 813, 413 N.Y.S.2d 895 (1978); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971). Today, there is "quite general agreement" that some recovery should be permitted in wrongful birth cases. See W. Keeton, D. Dobbs, B. Keeton & D. Owen, Prosser and Keaton on the Law of Torts § 55, at 371 (5th ed. 1984); see also Annot., 83 A.L.R.3d 15 (1978 & Supp. 1986). North Carolina refuses to allow recovery. See Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, ___ U.S. ___, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986).


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                       No. 19-7238

SAMUEL ANSTEY,

                     Petitioner - Appellant,

              v.

RALPH TERRY, Superintendent, Mount Olive Correctional Complex,

                     Respondent - Appellee,

              and

DAVID BALLARD, Warden, Mount Olive Correctional Complex,

                     Respondent.

Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-03462)

Submitted: May 28, 2020                                            Decided: June 8, 2020

Before MOTZ and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Andrew Jeram Katz, KATZ WORKING FAMILIES’ LAW FIRM, LC, Charleston West
Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Samuel Robert Anstey seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and denying relief on Anstey’s 28 U.S.C. § 2254

(2018) petition. The order is not appealable unless a circuit justice or judge issues a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2018). A certificate of

appealability will not issue absent “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2) (2018). When the district court denies relief on the merits,

a prisoner satisfies this standard by demonstrating that reasonable jurists could find the

district court’s assessment of the constitutional claims debatable or wrong. See Buck v.

Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive procedural ruling is

debatable and that the petition states a debatable claim of the denial of a constitutional

right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

       We have independently reviewed the record and conclude that Anstey has not made

the requisite showing.    Accordingly, we deny Anstey’s motion for a certificate of

appealability and dismiss the appeal. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

                                                                               DISMISSED

                                             2


232 F.3d 595 (7th Cir. 2000)
ROBERT E. DONAIS, Plaintiff-Appellant,v.UNITED STATES OF AMERICA, Defendant-Appellee.
No. 99-3340
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 13, 2000Decided November 13, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern  Division.  No. 96 C 3948--James T. Moody, Judge.
Before HARLINGTON WOOD, JR., ROVNER, and  DIANE P. WOOD, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.

1
In  June 1996, Robert E. Donais sued the  United States pursuant to the Federal  Tort Claims Act, 28 U.S.C. sec.sec. 2671-  2680, alleging that a third-year resident  at the Edward Hines Veterans  Administration Hospital (the "VA") in  Hines, Illinois, committed medical  malpractice in treating Donais for  cataracts by negligently fitting and  implanting an intra-ocular lens in  Donais's right eye, causing the eyesight  to deteriorate and requiring further  surgery to correct the problem. Following  a bench trial, the district court entered  judgment for the United States. Donais  appeals.

I.  BACKGROUND

2
Donais was an accountant who specialized  in tax preparation. Donais, who had never  worn glasses, began to experience  difficulties with his vision in late  1991/early 1992. He first went to a  private ophthalmologist, where he was  diagnosed with cataracts. Surgery was  discussed. Donais contacted the local VA  hospital, where, as a veteran, he would  be covered for cataract surgery. In June  1992, Donais sought an eye examination  and evaluation at the VA eye clinic. At  that time, where a refraction of 0  diopters is equivalent to 20/20 vision,  Donais's right eye had a myopic  refraction of -6.0 diopters and his left  eye had a myopic refraction of -4.0  diopters. Although he had cataracts in  both eyes, he was told that he needed  surgery on his right eye but not on the  left. He was referred to Dr. George  Yanik, a third-year ophthalmology  resident, for cataract surgery.

3
The surgery would replace Donais's  natural lens with an artificial lens  placed in the capsular bag. Yanik's  target was to give Donais a myopic  refraction level of -4.5 to -4.6  diopters.1 Refraction of -4.6 was a  spherical equivalent measurement, which  reflects a combination of the eye's  myopic refraction and the degree of  astigmatism (misshaping of the cornea)  occurring. Astigmatism can often occur as  a consequence of cataract surgery. Yanik  chose this refraction level so Donais's  right eye would be balanced with his  left. Generally, when the two eyes are  not balanced, the imbalance may cause a  condition called "anisometropia," which  makes vision difficult. Yanik also chose  the -4.5 to -4.6 target because Donais  indicated that he did not want to wear  reading glasses, and with this myopic  refraction reading glasses would be  unnecessary.

4
In order to determine the appropriate  power of the implanted lens, two  measurements were used. The first was a K  reading, which measures the curvature of  the cornea. The second was an ultrasound  probe known as an A-scan, which measures  the axial length of the eye from the  front of the cornea to the back of the  retina. These two measurements are then  used in a computer analysis which  calculates the correct lens power.  Yanik's procedure was to take five or  more separate A-scan measurements. If all  of the measurements were within two-  tenths of a millimeter, Yanik would use  the resulting average as the patient's  axial length. The only other figure  needed is known as the "A constant" of  the artificial lens, which is provided by  the lens manufacturer. Using an  established and accepted calculation  known as the SRK formula, Yanik  determined that he would need a 29  diopter lens to achieve his target of  -4.5 to -4.6 diopters.

5
In July 1992, Yanik performed the  surgery without any complications. Soon  after, however, it was discovered that  the right eye was providing a greater  degree of myopic refraction than the  intended -4.6 diopters. Such a difference  is referred to as a "power overshoot."  Six weeks after the surgery, the post-  operative spherical equivalent was -6.63  diopters. Between August and December  1992, the power overshoot in Donais's  right eye was measured six more times,  and remained in the -6 diopter range. In  December, Donais was informed that he  needed surgery for the cataracts in his  left eye. Due to the work demands of the  tax season, Donais did not return to the  VA clinic until May 1993. At that time, a  trial framing (which uses a series of  loose lenses until the patient arrives at  the most accurate correction for him) was  done to determine the refraction as  opposed to an automated machine  refraction which had been used for the  first seven readings. The refraction in  the right eye was -9.5 (myopic reading)  +2.75 (astigmatism), or a spherical  equivalent of -8.12 diopters, as compared  to the December reading of -7.25 +1.0.

6
Donais continued to have problems but  waited until November 1993, after he  turned 65 and was eligible for Medicare  coverage, to schedule an appointment with  Dr. Manus Kraff, a private  ophthalmologist who is a well-known  expert in the treatment of cataracts and  co-creator of the SRK formula used by  Yanik. Kraff proposed a two-step surgical  procedure. First, he would perform  cataract surgery on the left eye to make  the refraction 0 diopters (20/20). After  Donais's recovery, Kraff would then  exchange the too powerful 29 diopter lens  in Donais's right eye with a 23 diopter  lens to make the right eye 0 diopters as  well. Kraff performed the operations in  December 1993 and March 1994,  respectively.

7
Several months after Kraff's second  surgery, Donais began to experience  blurred vision in his right eye due  toincreased astigmatism. Kraff testified  that the increased astigmatism resulted  from the multiple surgeries and the  compromised ability to heal. Donais has  had no problems with his left eye.  However, because of the resulting differ  ences between the two eyes, Donais cannot  tolerate a prescription for the right  eye. Kraff recommended additional  procedures for the right eye to reduce  the astigmatism, but Donais declined to  undergo further surgery. During the  trial, Donais testified that he continues  to suffer from blurry vision, but is able  to read, drive, and watch television for  approximately one to two hours at a time.

8
At trial, Kraff provided expert  testimony on Donais's behalf. Kraff  testified that before the original  surgery, Yanik most likely mismeasured  Donais's right eye, and that was the  reason Yanik chose a too powerful lens.  However, Kraff also testified that a  power overshoot is not always a breach of  the standard of care, and that he himself  has overshot the lens power. Kraff  theorized that the measurements taken by  the VA between August and December 1992  were wrong, and therefore the actual  overshoot after the surgery was higher  than indicated.

9
Dr. Randy Epstein, expert witness for  the United States, stated that Yanik did  not breach any standard of care when he  chose to balance Donais's right eye with  his left eye, even though Epstein himself  would probably not have chosen that  particular refraction. Epstein testified  that power overshoots are common, and, in  1992, the means of measuring the eye were  not always precise and that  mismeasurement causing a power overshoot  would not necessarily be a breach of  care. According to Epstein, the "spike"  in the overshoot could not be caused by  the improper lens power since the lens  power remained constant.

10
The district court found that Donais  failed to provide expert testimony that  proved Yanik breached an applicable  standard of care, and failed to show that  any breach by Yanik proximately caused  Donais's injury.

II.  ANALYSIS

11
Following a bench trial, we apply a  clearly erroneous standard when reviewing  the district court's findings of fact.  Keller v. United States, 58 F.3d 1194,  1197 (7th Cir. 1995) (citation omitted).  The Federal Tort Claims Act provides a  remedy for personal injury caused by the  negligent or wrongful act of any  government employee acting within the  scope of his employment, "under  circumstances where the United States, if  a private person, would be liable to the  claimant for the act in accordance with  the law of the place" where the act  occurred. 28 U.S.C. sec. 1346(b); see  also Midwest Knitting Mills, Inc. v.  United States, 950 F.2d 1295, 1297 (7th  Cir. 1991). Therefore, we apply the law  of Illinois in this action.

12
Under Illinois law, in a medical  malpractice action, the burden is on the  plaintiff to prove (1) the proper  standard of care by which a physician's  conduct may be measured, (2) a negligent  failure to comply with the applicable  standard, and (3) a resulting injury  proximately caused by the physician's  lack of skill or care. Purtill v. Hess,  489 N.E.2d 867, 872 (Ill. 1986)  (citations omitted). "Unless the  physician's negligence is so grossly  apparent or the treatment so common as to  be within the everyday knowledge of a  layperson, expert medical testimony is  required to establish the standard of  care and the defendant physician's  deviation from that standard." Id.  (citations omitted); see also Walski v.  Tiesenga, 381 N.E.2d 279, 282 (Ill.  1978). To establish that a doctor is  guilty of malpractice, the plaintiff must  "introduce evidence of the standard of  care to which the defendants were bound  to adhere." Walski, 381 N.E.2d at 283-84.  The only issue in the present case is  whether Yanik committed medical  malpractice. Therefore, Donais must first  establish an accepted standard of care.

13
Kraff did not state a definitive  baseline standard of care. Kraff  disagreed with Yanik's plan of treatment,  maintaining that "the wrong power of lens  was implanted in Mr. Donais's eye," and  that a target of -4.6 diopters with an  end result of -9 diopters was a breach of  the standard of care. Kraff believed that  Yanik should have targeted the right eye  for a 0 diopter correction, because the  cataract in the left eye would  necessitate surgery and that surgery  would correct the left eye to 0 diopter,  leaving both eyes balanced. Kraff was  unable to determine a specific amount of  overshoot which would constitute a breach  of care. In his deposition, Kraff stated  that an overshoot of 3 diopters would not  be a breach but that 5 diopters would.  However, he also stated that after  surgery where the target was -4.0 to -  4.6, a reading of -7 "is an error, but  that would be hard to say breach." Kraff  also testified that a power overshoot is  not necessarily a breach of care, and  that he himself had on several occasions  missed the target refraction and has had  to replant a different lens.

14
Kraff acknowledged that the seven  measurements taken in the first six  months after Yanik's surgery were all  less than a 3 diopter overshoot, which he  would not ordinarily consider a breach of  care. However, Kraff's explanation for  the "spike" between December 1992 and May  1993 was that it was nonexistent, that it  only appeared because the VA measurements  through December 1992 were inaccurate,  due to the use of automated refraction,  as opposed to the more accurate method of  trial framing, which finally revealed the  "accurate" refraction in May 1993. Kraff  stated that this was his assumption given  the fact that the component measurements  (such as the axial length and the corneal  curvature) used to arrive at the  automated refraction had not been kept in  the VA's records; only the final  refractive correction number was  recorded. However, there was no evidence  presented to support this assumption.  Absent a finding that the government  willfully destroyed evidence in bad  faith, the district court does not abuse  its discretion in declining to infer that  the evidence would have been unfavorable  to that party. Keller, 58 F.3d at 1197.  Therefore, the district court did not err  in declining to accept this portion of  Kraff's theory.

15
Epstein also could not state a  definitive standard of care which would  clearly indicate malpractice. According  to Epstein's deposition testimony,  although he personally might have chosen  a different diopter target, Yanik was not  necessarily wrong in planning a -4.6  diopter target for the right eye to  balance with the left eye. Therefore,  when Donais's right eye was measured at -  8.12 spherical (-9.25 +2.75) in May 1993  at the VA clinic, the resulting 3.6  overshoot would not be considered a  breach of care. Epstein testified, "I  don't think that there is any degree of  myopia that would have made Dr. Yanik  guilty of breaching the standard of care.  [A power overshoot is] just one of those  things that happens with cataract  surgery." He stated, "I would say one of  the recognized risks of cataract surgery  with lens implantation is that a patient  may wind up with a lens implant that is  the wrong power."

16
At trial, while Epstein testified that  up until December 1992, the overshoot was  caused by mismeasurements, he noted that  the additional "spike" in refraction that  was first recorded in May 1993 could  likely have been a result of the lens  repositioning itself due to scarring and  the natural healing process and that  "[i]t happens not infrequently." There  was evidence in the record to support the  fact that the lens had moved into the  sulcus. When Donais was examined in  August 1993, a VA doctor recorded that  the lens was "well fixated in the ciliary  sulcus," yet Yanik stated that he had  inserted the lens into the capsular bag.  When Kraff examined Donais, he recorded  that the lens was well-placed but could  not recall if it was in the bag or the  sulcus. According to Epstein, if the lens  did in fact move forward causing the  "spike" six months after surgery, then  the overshoot following the first five  months of surgery averaged below 3  diopters (spherical equivalent below 2),  which would not be considered outside an  acceptable standard of care. He also  testified that an overshoot of up to 12  diopters would not necessarily be  malpractice, and was unable to draw the  line as to where an overshoot would be  considered a breach of care.

17
When only conflicting opinions as to  what they consider the correct technique  should have been are presented by  testifying physicians, the Illinois  Supreme Court has held that "the  plaintiff has failed to present  sufficient evidence of a standard of care  in the medical community to submit the  case to the jury." Walski, 381 N.E.2d at  284 (listing cases). The plaintiff does  not establish a prima facie case merely  by presenting the testimony of another  physician who states that he would have  acted differently from the defendant. Id.  at 285. Because of the uncertainty of  both expert witnesses in determining the  applicable standard of care, Donais  failed to establish a prima facie case.  In addition, the moving party must  establish that a judgment cannot be  supported by the evidence in order to set  aside the district court's holding. See  Keller, 58 F.3d at 1199 (citations  omitted). Although Donais raises  alternative interpretations of the  evidence, these assertions alone are not  sufficient to show that the district  court's decision could not be supported  by the evidence. The district court  carefully and fully considered all  aspects of this technical case and did  not clearly err in finding for the  defendant based upon Donais's failure to  meet his burden of proof.

III.  CONCLUSION

18
For the above-stated reasons, the  judgment of the district court is  affirmed.

19
AFFIRMED.

Notes:

1
 Yanik testified at trial to these numbers. In his  deposition, he had stated the targeted refraction  was -4.0 to -4.5 diopters. However, throughout  his trial testimony, Yanik most often referred to  the -4.6 number.


                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs July 20, 2000

    LARRY SIMPSON v. DONAL CAMPBELL, COMMISSIONER ET AL.

                    Appeal from the Chancery Court for Davidson County
                     No. 99-1631-I   Irvin H. Kilcrease, Jr., Chancellor

                   No. M2000-00218-COA-R3-CV - Filed January 30, 2001

Larry Simpson, a prison inmate, appeals the dismissal by the trial court of his Petition for
Declaratory Judgment asserting that he was entitled to mandatory parole under former Tennessee
Code Annotated Section 40-3614 and Tennessee Code Annotated Section 40-20-115. We affirm the
trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL , J., joined.

Larry Simpson, Nashville, Tennessee, Pro Se.

Michael L. Haynie and Terri Leigh Bernal, Nashville, Tennessee, for the appellee, Donal Campbell.

                                             OPINION

         Larry Simpson was convicted of murder in the first degree in April 1980 and was sentenced
to life in prison.

         On June 8, 1999, Simpson sued for declaratory judgment asserting that he was entitled to
mandatory parole. He maintains that his case is governed by former Tennessee Code Annotated
Sections 40-3612 and 40-3614 as these statutes existed at the time of the murder in 1979 and of his
sentencing in 1980. Defendant Commissioner filed a T.R.Civ.P. Rule 12.02(6) motion to dismiss
for failure to state a claim upon which relief could be granted. The trial court granted the motion to
dismiss on January 7, 2000, and Simpson timely appealed.

       In dismissing this case, the trial court held in part:

                Petitioner contends that he is entitled to mandatory parole pursuant to the
       statute in effect at the time of his sentencing, Tenn. Code Ann. §§ 40-3612 -40-3614.
        Petitioner’s contention is without merit. Tenn. Code Ann. § 40-3614 specifically
        mandates that persons sentenced to serve a term in excess of ten (10) years are
        entitled to parole six (6) months prior to the completion of the term they were
        sentenced to. Petitioner received a determinate life sentence on April 16, 1980.
        Therefore, Petitioner’s term expires at his death.

                Furthermore, even if Petitioner was correct in his assertion that Tenn. Code
        Ann. § 40-3613 is applicable, Petitioner has not served the requisite thirty (30) years.
        Therefore, Petitioner would still not be entitled to mandatory parole.

       The Chancellor was correct in dismissing this case because former Tennessee Code
Annotated Section 40-3613 did not provide for mandatory parole after thirty (30) years of a life
sentence. See Richardson v. Tennessee Dep’t of Corrections, No. M1999-02796-COA-R3-CV, 2000
WL 696828 (Tenn. Ct. App. May 31, 2000).

       Former Tennessee Code Annotated Section 40-3613, which was in effect at the time the
Appellant committed first degree murder, provided:

        [A]ny person who shall have been convicted and sentenced to a term of
        imprisonment in the state penitentiary for a period or term of sixty-five (65) years or
        more, or life, may become eligible for parole provided such person shall have been
        confined or served a term in the state penitentiary of not less than thirty (30) full
        calender years after receiving credit for probationary parole as authorized in §40-
        3612. The granting of such parole shall be within the discretion of the parole board.
        (Emphasis added)

        Appellant has not yet served thirty (30) full calendar years and is not eligible even for
discretionary parole. See Ivey v. Meadows, 393 S.W.2d 744, 747 (Tenn. 1965); see also Doyle v.
Hampton, 340 S.W.2d 891, 893 (Tenn. 1960);

       Former Tennessee Code Annotated Section 40-3614, dealing with mandatory parole,
provided in pertinent part:

                 Prisoners serving sentences with maximum terms of over ten (10) years shall
        be released six (6) months prior to the completion of the maximum term of sentence
        less all credits granted by law.

        This code section regarding mandatory parole (now T.C.A. § 40-28-117 (1997)), is not
applicable by its terms to Simpson since the maximum length of his sentence is his entire life and
there is no way to determine “six months” prior to the completion of this maximum term. Even if
one accepts the erroneous interpretation Appellant places on Tennessee Code Annotated Section 40-
3613 that his life sentence is actually a thirty (30) year sentence, he has not yet served a term of thirty
(30) years less six (6) months. The statute governing parole “eligibility” for Simpson is former

                                                   -2-
Tennessee Code Annotated Section 40-3613. See Byrd v. Bradley, 913 S.W.2d 181 (Tenn. Ct. App.
1995).

       Appellant is not eligible for mandatory parole and the Chancellor was correct in so holding.
Pursuant to Tennessee Code Annotated Section 40-3613, Simpson is required to serve at least thirty
(30) years of his life sentence before being eligible for discretionary parole.

        The judgment of the Chancellor is in all respects affirmed and this cause remanded to the trial
court for collection of costs with costs of appeal assessed against Appellant.

                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE

                                                 -3-


[Cite as State v. Allen, 2012-Ohio-5141.]

                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO

        Plaintiff-Appellee

-vs-

JOHN DALE ALLEN

        Defendant-Appellant

JUDGES:
Hon. Patricia A. Delaney, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.

Case No. CT2012-0034

OPINION

NUNC PRO TUNC

CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2011-0109

JUDGMENT:                                       Dismissed

DATE OF JUDGMENT ENTRY:                         October 31, 2012

APPEARANCES:

For Appellee                                   For Appellant

ROBERT L. SMITH                                JOHN DALE ALLEN, PRO SE
Assistant Prosecuting Attorney                 #A614204
27 North Fifth Street                          C/o HCF – P.O. Box 59
Zanesville, OH 43701                           Nelsonville, OH 45764
Hoffman, J.

       {¶1}   Defendant-appellant John D. Allen appeals the May 18, 2012 Entry

entered by the Muskingum County Court of Common Pleas, which denied his motion for

judicial release. Plaintiff-appellee is the State of Ohio.

                                  STATEMENT OF THE CASE1

       {¶2}   On May 4, 2011, the Muskingum County Grand Jury indicted Appellant on

two counts of having weapons while under disability, in violation of R.C. 2923.12(A)(2)

and (3), felonies of the third degree; and one count of obstruction of official business, in

violation of R.C. 2921.31(A), a felony of the fifth degree. Appellant appeared before the

trial court for arraignment on May 11, 2011, and entered a plea of not guilty to the

Indictment.

       {¶3}   Prior to the start of trial on October 6, 2011, the State dismissed Count I of

the Indictment, having weapons while under disability, in violation of R.C. 2923.12(A)(2).

The matter proceeded to jury trial on the remaining counts.          After hearing all the

evidence and deliberating, the jury found Appellant guilty of both charges. The trial

court deferred sentencing until a pre-sentence investigation was completed.             On

October 17, 2011, the trial court sentenced Appellant to an aggregate prison term of

four years.

       {¶4}   Appellant filed a Notice of Appeal from his conviction and sentence. This

Court dismissed that appeal on November 21, 2011, at Appellant’s request. Appellant

1
  A Statement of the Facts underlying Appellant’s conviction and sentence is not
necessary to our disposition of this Appeal; therefore, such shall not be included herein.
filed a Motion for Judicial Release on November 29, 2011. The trial court denied the

motion, finding Appellant had not served the requisite 180 days.           Appellant filed a

second Motion for Judicial Release on March 13, 2012. The trial court denied the

motion, finding Appellant still was not eligible. Appellant filed a third Motion for Judicial

Release on April 16, 2012. After considering the record in the instant matter, Appellant’s

history and background, the principles and purposes of sentencing pursuant to R.C.

2929.11 as well as the seriousness and recidivism factors set forth in R.C. 2929.12, the

trial court denied Appellant’s third motion. On May 10, 2012, Appellant filed a Motion for

“Judicial” Release to Help Pay on the United States Bankruptcy. Via Entry filed May 18,

2012, the trial court denied Appellant’s motion.

       {¶5}   It is from this Entry Appellant appeals, raising as error:

       {¶6}   “I. BY NOT GRANTING MR. ALLEN’S RELEASE, THE LOWER COURT

HAS FAILED TO SUPPORT AND UPHOLD THE UNITED STATES BANKRUPTCY.

       {¶7}   “II. HOUSE BILL 86 (H.B. 86) CREATES THE EXPECTATION OF

JUDICIAL RELEASE FOR QUALIFIED INCARCERATED OFFENDERS.

       {¶8}   “MR. ALLEN IS UNNECESSARILY BEING DEPRIVED OF HIS RIGHT

TO LIBERTY AND THE PURSUIT OF HAPPINESS.”

       {¶9}   This Court is required to raise jurisdictional issues involving final

appealable orders sua sponte. In re Murray (1990), 52 Ohio St.3d 155, 159, fn. 2, 556

N.E.2d 1169; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 280

N.E.2d 922. The Ohio Supreme Court in State v. Coffman (2001), 91 Ohio St.3d 125,

742 N.E.2d 644, held the denial of a motion for shock probation is never a final

appealable order. With the adoption of Senate Bill 2 and Senate Bill 269, judicial release
replaced shock probation, effective July 1, 1996. Accordingly, the denial of a motion for

judicial release where no hearing was held is not a final appealable order. State v.

Woods (2001), 141 Ohio App.3d 549, 752 N.E.2d 309.

       {¶10} Because the Entry from which Appellant takes this Appeal is not a final

appealable order, we lack jurisdiction to address this issue.

       {¶11} Appellant’s appeal is dismissed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur                            s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN

                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY

                                    s/ Sheila G. Farmer __________________
                                    HON. SHEILA G. FARMER
          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT

STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :          JUDGMENT ENTRY
                                             :
JOHN DALE ALLEN                              :
                                             :
       Defendant-Appellant                   :          Case No. CT2012-0034

       For the reason stated in our accompanying Opinion, this appeal is dismissed.

Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER


                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-2741
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                              v.

BERNARDO GARCIA,
                                          Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 05-CR-155-C—Barbara B. Crabb, Chief Judge.
                       ____________
   ARGUED JANUARY 10, 2007—DECIDED FEBRUARY 2, 2007
                       ____________

 Before POSNER, MANION, and SYKES, Circuit Judges.
  POSNER, Circuit Judge. The defendant appeals from his
conviction for crimes relating to the manufacture of
methamphetamine. The only issue is whether evidence
obtained as a result of a tracking device attached to his
car should have been suppressed as the fruit of an uncon-
stitutional search.
  The defendant had served time for methamphetamine
offenses. Shortly after his release from prison, a person
who was a known user of meth reported to police that the
defendant had brought meth to her and her husband,
2                                                 No. 06-2741

consumed it with them, and told them he wanted to start
manufacturing meth again. Another person told the
police that the defendant had bragged that he could
manufacture meth in front of a police station without be-
ing caught. A store’s security video system recorded
the defendant buying ingredients used in making the drug.
  From someone else the police learned that the defendant
was driving a borrowed Ford Tempo. They went looking
for it and found it parked on a public street near where
the defendant was staying. The police placed a GPS (global
positioning system) “memory tracking unit” underneath
the rear bumper of the Ford. Such a device, pocket-sized,
battery-operated, commercially available for a couple of
hundred dollars (see, e.g., Vehicle-Tracking, Incorporated,
“GPS Vehicle Tracking with the Tracking Key,”
www.vehicle-tracking.com/products/Tracking_Key.html,
visited Jan. 21, 2007), receives and stores satellite
signals that indicate the device’s location. So when the
police later retrieved the device (presumably when the
car was parked on a public street, as the defendant does
not argue that the retrieval involved a trespass), they
were able to learn the car’s travel history since the installa-
tion of the device. One thing they learned was that the
car had been traveling to a large tract of land. The officers
obtained the consent of the tract’s owner to search it and
they did so and discovered equipment and materials used
in the manufacture of meth. While the police were on the
property, the defendant arrived in a car that the police
searched, finding additional evidence.
  The police had not obtained a warrant authorizing them
to place the GPS tracker on the defendant’s car. The dis-
trict judge, however, found that they had had a rea-
sonable suspicion that the defendant was engaged in
No. 06-2741                                                3

criminal activity, and she ruled that reasonable suspicion
was all they needed for a lawful search, although she
added that they had had probable cause as well. The
defendant argues that they needed not only probable
cause to believe that the search would turn up contraband
or evidence of crime, but also a warrant. The government
argues that they needed nothing because there was no
search or seizure within the meaning of the Fourth Amend-
ment.
  The Fourth Amendment forbids unreasonable searches
and seizures. There is nothing in the amendment’s text
to suggest that a warrant is required in order to make a
search or seizure reasonable. All that the amendment
says about warrants is that they must describe with
particularity the object of the search or seizure and must
be supported both by an oath or affirmation and by
probable cause, which is understood, in the case of
searches incident to criminal investigations, to mean
probable cause that the search will turn up contraband or
evidence of crime. Zurcher v. Stanford Daily, 436 U.S. 547,
554-55 (1978). The Supreme Court, however, has created a
presumption that a warrant is required, unless infeasible,
for a search to be reasonable. E.g., United States v. Leon,
468 U.S. 897, 913-14 (1984); Mincey v. Arizona, 437 U.S. 385,
390 (1978); Henry v. United States, 361 U.S. 98, 100 (1959);
see Nicholas v. Goord, 430 F.3d 652, 678 (2d Cir. 2005).
“Although the framers of the Fourth Amendment were
more fearful that the warrant would protect the police
from the citizen’s tort suit through operation of the doc-
trine of official immunity than hopeful that the warrant
would protect the citizen against the police, see [Telford]
Taylor, Two Studies in Constitutional Interpretation 23-43
(1969), and although the effective neutrality and independ-
4                                                 No. 06-2741

ence of magistrates in ex parte proceedings for the issu-
ance of search warrants may be doubted, there is a practi-
cal reason for requiring warrants where feasible: it forces
the police to make a record before the search, rather than
allowing them to conduct the search without prior in-
vestigation in the expectation that if the search is fruitful
a rationalization for it will not be difficult to construct,
working backwards.” United States v. Mazzone, 782 F.2d
757, 759 (7th Cir. 1986). But of course the presumption
in favor of requiring a warrant, or for that matter the
overarching requirement of reasonableness, does not
come into play unless there is a search or seizure within
the meaning of the Fourth Amendment.
  The defendant’s contention that by attaching the memory
tracking device the police seized his car is untenable. The
device did not affect the car’s driving qualities, did not
draw power from the car’s engine or battery, did not
take up room that might otherwise have been occupied
by passengers or packages, did not even alter the car’s
appearance, and in short did not “seize” the car in any
intelligible sense of the word. But was there a search?
The Supreme Court has held that the mere tracking of a
vehicle on public streets by means of a similar though less
sophisticated device (a beeper) is not a search. United States
v. Knotts, 460 U.S. 276, 284-85 (1983). But the Court left
open the question whether installing the device in the
vehicle converted the subsequent tracking into a search.
Id. at 279 n. 2; see also United States v. Karo, 468 U.S. 705,
713-14 (1984). The courts of appeals have divided over the
question. Compare United States v. McIver, 186 F.3d 1119,
1127 (9th Cir. 1999), and United States v. Pretzinger, 542 F.2d
517, 520 (9th Cir. 1976) (per curiam), holding (and United
States v. Michael, 645 F.2d 252, 256 and n. 11 (5th Cir. 1981)
(en banc), and United States v. Bernard, 625 F.2d 854, 860-61
No. 06-2741                                                 5

(9th Cir. 1980), intimating) that there is no search, with
United States v. Bailey, 628 F.2d 938, 944-45 (6th Cir. 1980);
United States v. Shovea, 580 F.2d 1382, 1387-88 (10th Cir.
1978), and United States v. Moore, 562 F.2d 106, 110-12 (1st
Cir. 1977), holding the contrary. Several of the cases
actually take intermediate positions, such as requiring
reasonable suspicion rather than probable cause (a possible
interpretation of Michael), or probable cause but no
warrant—Shovea and Moore. This court has not spoken to
the issue.
   If a listening device is attached to a person’s phone, or
to the phone line outside the premises on which the phone
is located, and phone conversations are recorded, there is
a search (and it is irrelevant that there is a trespass in
the first case but not the second), and a warrant is re-
quired. But if police follow a car around, or observe its
route by means of cameras mounted on lampposts or of
satellite imaging as in Google Earth, there is no search.
Well, but the tracking in this case was by satellite. Instead
of transmitting images, the satellite transmitted geophysi-
cal coordinates. The only difference is that in the imag-
ing case nothing touches the vehicle, while in the case
at hand the tracking device does. But it is a distinction
without any practical difference.
  There is a practical difference lurking here, however. It
is the difference between, on the one hand, police trying
to follow a car in their own car, and, on the other hand,
using cameras (whether mounted on lampposts or in
satellites) or GPS devices. In other words, it is the differ-
ence between the old technology—the technology of the
internal combustion engine—and newer technologies
(cameras are not new, of course, but coordinating the
images recorded by thousands of such cameras is). But GPS
6                                                No. 06-2741

tracking is on the same side of the divide with the sur-
veillance cameras and the satellite imaging, and if what
they do is not searching in Fourth Amendment terms,
neither is GPS tracking.
  This cannot be the end of the analysis, however, because
the Supreme Court has insisted, ever since Katz v. United
States, 389 U.S. 347 (1967), that the meaning of a Fourth
Amendment search must change to keep pace with the
march of science. So the use of a thermal imager to reveal
details of the interior of a home that could not otherwise
be discovered without a physical entry was held in Kyllo
v. United States, 533 U.S. 27, 34 (2001), to be a search with-
in the meaning of the Fourth Amendment. But Kyllo does
not help our defendant, because his case unlike Kyllo is
not one in which technology provides a substitute for a
form of search unequivocally governed by the Fourth
Amendment. The substitute here is for an activity, namely
following a car on a public street, that is unequivocally
not a search within the meaning of the amendment.
  But while the defendant’s efforts to distinguish the
GPS case from the satellite-imaging and lamppost-camera
cases are futile, we repeat our earlier point that there is a
difference (though it is not the difference involved in
Kyllo) between all three of those situations on the one
hand and following suspects around in a car on the other.
The new technologies enable, as the old (because of
expense) do not, wholesale surveillance. One can imagine
the police affixing GPS tracking devices to thousands of
cars at random, recovering the devices, and using digital
search techniques to identify suspicious driving pat-
terns. One can even imagine a law requiring all new cars
to come equipped with the device so that the govern-
ment can keep track of all vehicular movement in the
No. 06-2741                                                7

United States. It would be premature to rule that such a
program of mass surveillance could not possibly raise a
question under the Fourth Amendment—that it could
not be a search because it would merely be an efficient
alternative to hiring another 10 million police officers to
tail every vehicle on the nation’s roads.
   Of course the amendment cannot sensibly be read to
mean that police shall be no more efficient in the twenty-
first century than they were in the eighteenth. United States
v. Knotts, supra, 460 U.S. at 283-84. There is a tradeoff
between security and privacy, and often it favors secu-
rity. Even at the height of the “Warren Court,” the Court
held over a strong dissent by Justice Brennan that the
planting of an undercover agent in a criminal gang does
not become a search just because the agent has a trans-
mitter concealed on his person, even though the invasion
of privacy is greater when the suspect’s words are re-
corded and not merely recollected. Lopez v. United States,
373 U.S. 427, 439 (1963).
  Yet Chief Justice Warren, while concurring in the judg-
ment in Lopez, remarked “that the fantastic advances in
the field of electronic communication constitute a great
danger to the privacy of the individual; that indiscrim-
inate use of such devices in law enforcement raises grave
constitutional questions under the Fourth and Fifth
Amendments; and that these considerations impose a
heavier responsibility on this Court in its supervision of
the fairness of procedures in the federal court system.” Id.
at 441. These “fantastic advances” continue, and are giv-
ing the police access to surveillance techniques that are
ever cheaper and ever more effective. Remember the
beeper in Knotts? “Officers installed a beeper inside a five-
gallon container of chloroform . . . [and] followed the car
8                                                No. 06-2741

in which the chloroform had been placed, maintaining
contact by using both visual surveillance and a monitor
which received the signals sent from the beeper.” United
States v. Knotts, supra, 460 U.S. at 278. That was only a
modest improvement over following a car by means of
unaided human vision.
  Technological progress poses a threat to privacy by
enabling an extent of surveillance that in earlier times
would have been prohibitively expensive. Whether and
what kind of restrictions should, in the name of the Con-
stitution, be placed on such surveillance when used in
routine criminal enforcement are momentous issues that
fortunately we need not try to resolve in this case. So far as
appears, the police of Polk County (a rural county in
northwestern Wisconsin), where the events of this case
unfolded, are not engaged in mass surveillance. They do
GPS tracking only when they have a suspect in their
sights. They had, of course, abundant grounds for sus-
pecting the defendant. Should government someday de-
cide to institute programs of mass surveillance of vehicu-
lar movements, it will be time enough to decide whether
the Fourth Amendment should be interpreted to treat
such surveillance as a search. Cf. Zurcher v. Stanford Daily,
supra, 436 U.S. at 566.
                                                  AFFIRMED.
No. 06-2741                                            9

A true Copy:
       Teste:

                      _____________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit

                USCA-02-C-0072—2-2-07


MEMORANDUM DECISION                                                       FILED
                                                                     May 03 2017, 9:25 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                              CLERK
                                                                      Indiana Supreme Court
precedent or cited before any court except for the                       Court of Appeals
                                                                           and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William W. Gooden                                        Curtis T. Hill, Jr.
Mt. Vernon, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana

                                             IN THE
    COURT OF APPEALS OF INDIANA

Wesley A. Barnes,                                        May 3, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         65A05-1611-CR-2727
        v.                                               Appeal from the Posey Circuit
                                                         Court.
                                                         The Honorable James M. Redwine,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 65C01-1605-F6-256

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017            Page 1 of 6
                                          Statement of the Case
[1]   Wesley A. Barnes appeals his conviction of possession of a controlled
                                                   1
      substance, a Class A misdemeanor. We affirm.

                                                       Issue
[2]   Barnes raises one issue, which we restate as: whether the trial court erred in

      concluding Barnes did not have a valid prescription for the Hydrocodone that

      was found in his possession.

                                   Facts and Procedural History
[3]   On May 2, 2016, Deputy Isaac Fuelling of the Posey County Sheriff’s Office

      looked for Barnes with the intent of arresting him on several active warrants.

      Deputy Fuelling and three other deputies went to an address in Posey County

      where they believed Barnes would be found.

[4]   Barnes was at the address, and the officers took him into custody. As they

      patted him down, the officers found a bag of pills in Barnes’ pants. Barnes

      claimed the pills were extra strength Tylenol that a friend had given him for a

      headache. The pills were later determined to consist of 7.5 milligram tablets of

      Hydrocodone, a controlled substance. At trial, Barnes testified his mother gave

      him the pills. He further submitted evidence showing that in August 2013, he

      1
          Ind. Code § 35-48-4-7 (2014).

      Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 2 of 6
      had received a valid prescription from Dr. Chou for 112 7.5-milligram tablets of

      Hydrocodone. The prescription indicated that there would be no refills. Barnes

      conceded he had not been to Dr. Chou’s office since 2013 or early 2014, and he

      could not have purchased more Hydrocodone at a pharmacy using the 2013

      prescription.

[5]   The State charged Barnes with possession of a controlled substance as a Level 6

      felony. Barnes waived his right to a jury trial but requested a speedy trial. Prior

      to the bench trial, the parties agreed to reduce the charge from a Level 6 felony

      to a Class A misdemeanor. The court heard evidence and determined Barnes

      was guilty of possession of a controlled substance as a Class A misdemeanor.

      The judge stated, “If you had had these pills left over from your 2013

      prescription, I would agree completely with Mr. Gooden and find you not

      guilty. You got these from somebody else. So this prescription is of no efficacy

      to you in that regard.” Tr. p. 17. Next, the court imposed a sentence, and this

      appeal followed.

                                   Discussion and Decision
[6]   Barnes contends his conviction must be reversed because he proved he had a

      valid prescription for Hydrocodone. The State disagrees with Barnes’ definition

      of a valid prescription. The parties do not appear to dispute the facts. Instead,

      they disagree about the application of the law to undisputed facts. In this

      circumstance, our standard of review is de novo. Austin v. State, 997 N.E.2d

      1027, 1039 (Ind. 2013). We are neither bound by, nor do we defer to, a trial

      Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 3 of 6
      court’s legal interpretation of a statute. Houston v. State, 898 N.E.2d 358, 361

      (Ind. Ct. App. 2008), trans. denied.

[7]   The governing statute, Indiana Code section 35-48-4-7, provides, in relevant

      part:

              (a) A person who, without a valid prescription or order of a
              practitioner acting in the course of the practitioner’s professional
              practice, knowingly or intentionally possesses a controlled
              substance (pure or adulterated) classified in schedule I, II, III, or
              IV, except marijuana, hashish, salvia, or a synthetic cannabinoid,
              commits possession of a controlled substance, a Class A
              misdemeanor.

[8]   The State must prove beyond a reasonable doubt that the defendant knowingly

      or intentionally possessed a controlled substance. Schuller v. State, 625 N.E.2d

      1243, 1246 (Ind. Ct. App. 1993). The existence of a valid prescription is a

      defense to the offense, and the defendant has the burden of proving the valid

      prescription by a preponderance of the evidence. Id.

[9]   The General Assembly has not defined a “valid prescription” for purposes of

      this statute, so we resort to our rules of statutory construction. Where the

      language of a statute is clear and unambiguous, we need not apply any rules of

      construction other than to require that words and phrases be taken in their

      plain, ordinary, and usual sense. Houston, 898 N.E.2d at 361. The legislature is

      presumed to have intended the language to be applied logically and not to bring

      about an unjust or absurd result. Id.

      Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 4 of 6
[10]   Barnes argues that his 2013 prescription had been issued in accordance with the

       law, thus for purposes of Indiana Code section 35-48-4-7 he had a “valid

       prescription” for Hydrocodone when he possessed the Hydrocodone that his

       mother had given him. The State responds that a prescription can only be

       considered “valid” if it applies to the contraband that is found in a defendant’s

       possession.

[11]   We agree with the State. Barnes’ reading of Indiana Code section 35-48-4-7

       erroneously isolates the “valid prescription” clause from the remainder of the

       statute. A plain language reading of Indiana Code section 35-48-4-7 results in a

       conclusion that the “valid prescription” must apply to the specific pills that the

       defendant is accused of possessing; that is, the specific controlled substance

       must have been obtained pursuant to a prescription. See Burgin v. State, 431

       N.E.2d 864, 867 (Ind. Ct. App. 1982) (affirming conviction for possession of

       Desoxyn without a prescription; appellant failed to demonstrate that he had

       obtained the pills in his possession “under a specific valid prescription.”).

[12]   This reading of the statute is supported by other statutes governing controlled

       substances. Hydrocodone is a schedule II controlled substance. Ind. Code §

       35-48-2-6 (2015). A schedule II controlled substance may not be dispensed

       “without the written or electronic prescription of a practitioner.” Ind. Code §

       35-48-3-9 (2013). Furthermore, “no prescription for a schedule II substance

       may be refilled.” Id. A reader of these statutes must conclude that

       Hydrocodone is to be distributed under tightly controlled circumstances based

       Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 5 of 6
       on a specific, limited prescription. An outdated prescription for Hydrocodone

       cannot provide a defense for possession of Hydrocodone pills years later.

[13]   In the current case, we agree with the trial court that Barnes’ defense may have

       been valid if he had shown that the Hydrocodone pills he possessed on May 2,

       2016 were obtained pursuant to the 2013 prescription. Instead, it is undisputed

       that Barnes had not seen Dr. Chou since early 2014 at the latest, that a

       pharmacy would not have given Barnes more Hydrocodone pursuant to the

       2013 prescription, and that Barnes received the pills from his mother rather than

       a licensed pharmacy. Under the plain language of Indiana Code section 35-48-

       4-7, the trial court did not err in concluding Barnes had failed to prove his

       defense of possessing the pills pursuant to a valid prescription.

                                                Conclusion
[14]   For the reasons stated above, we affirm the judgment of the trial court.

[15]   Affirmed.

       Bailey, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 6 of 6