Pursuant to Ind.Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER KAREN CELESTINO-HORSEMAN

Attorney General of Indiana Indianapolis, Indiana

KATHERINE M. COOPER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

STATE OF INDIANA, )

)

Appellant-Plaintiff, )

)

vs. ) No. 49A04-1211-CR-566

)

BOBBY WALDEN, )

)

Appellee-Defendant. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Marc T. Rothenberg, Judge

Cause No. 49F09-1109-FD-69637

April 4, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
2

STATEMENT OF THE CASE

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

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

We reverse and remand.

ISSUE

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

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

of law. 

FACTS AND PROCEDURAL HISTORY

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

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

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

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

Caldwell became unemployed. Aware that his landlord might commence eviction 

proceedings, Caldwell began moving his belongings from the apartment. 

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

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

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

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

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

during this visit.
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On December 22, 2010, Caldwell’s landlord requested Jones Movers to move and 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

belongings the following day and to notify the detective if needed. In May of 2011, 
4

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

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

wanted to retrieve his belongings. 

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

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

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

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

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

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

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

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

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

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

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

As [Walden] points out, according to the testimony in [Caldwell’s] 

deposition, [Caldwell] considered the property that the State alleges stolen 

to be, in fact, abandoned. The State responds to this by citing to bailment 

law, arguing that [Caldwell] retained an ownership interest in the alleged 

stolen property. While a well thought out and considered argument, the 

court finds that at the time of the alleged theft and misconduct, a bailment 

did not exist, and that by his actions, as he even considered it so, [Caldwell] 

had abandoned his property and therefore had no ownership interest in it on 

December 22, 2010, the date of the offense. Therefore, the charges . . . 

would fail on their face as it would be impossible, under law, for the State 

to meet its burden on the elements in Counts 1 and 2 of “exerting 

unauthorized control over the property of another person[.]”

(Appellant’s App. pp. 222-23).
5

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

DISCUSSION AND DECISION

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

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

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

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

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

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

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

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

part: 

(a) The court may, upon motion of the defendant, dismiss the indictment or 

information upon any of the following grounds:

(1) The indictment or information, or any count thereof, is defective under 

section 6 of this chapter.

(2) Misjoinder of offenses or parties defendant, or duplicity of allegation in 

counts.

(3) The grand jury proceeding was defective.

(4) the indictment or information does not state the offense with sufficient 

certainty.

(5) The facts stated did not constitute an offense.

(6) The defendant has immunity with respect to the offense charged.

(7) The prosecution is barred by reason of a previous prosecution.

(8) The prosecution is untimely brought.

(9) The defendant has been denied the right to a speedy trial.

(10) There exists some jurisdictional impediment to conviction of the 

defendant for the offense charged.

(11) Any other ground that is a basis for dismissal as a matter of law.

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

facts alleged in the information are to be taken as true. State v. Gill, 949 N.E.2d 848, 850 
6

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

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

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

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

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

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

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

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

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

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

his property at the moment Walden took it. 

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

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

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

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

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

to dismiss. Id. 

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

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

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

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

evidence indicating that Caldwell had not relinquished his belongings. Caldwell’s 
7

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

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

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

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

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

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

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

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

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

trans. denied. 

CONCLUSION

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

granting Walden’s motion to dismiss. 

Reversed and remanded.

BAKER, J. and BARNES, J. concur

 

1 Because we reverse on the basis that Walden’s asserted defense amounted to a question of the 

sufficiency of the evidence, we do not need to address the merits of the State’s claim that (1) the trial 

court erred by not conducting an evidentiary hearing and (2) proof of absolute ownership is not required 

for purposes of a theft charge.