Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020 Page 1 of 8

ATTORNEY FOR APPELLANT

Louis Denney

Muncie, Indiana

ATTORNEY FOR APPELLEE

Brian M. Pierce

Muncie, Indiana

IN THE

COURT OF APPEALS OF INDIANA

August 21, 2020

Court of Appeals Case No.

20A-MI-143 

Appeal from the Delaware Circuit 

Court

The Honorable Peter D. Haviza, 

Special Judge

Trial Court Cause No.

18C02-1911-MI-873 

John P. Hampton, 

Appellant-Defendant,

v. 

Audie Barber, 

Appellee-Plaintiff.

Najam, Judge. 

Statement of the Case

[1] John P. Hampton, a Muncie City Councilman, appeals the trial court’s order

granting Audie Barber’s request for a permanent injunction following his

complaint for ouster of an unlawful office holder in which the court concluded

that, under Indiana Code Section 3-5-8-1(e), Hampton is not eligible to hold a
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seat on the Muncie City Council. Hampton raises two issues for our review, 

which we revise and restate as follows:

1. Whether Barber had standing to file the complaint against 

Hampton. 

2. Whether Indiana Code Section 3-8-1-5(e) is 

unconstitutional as applied to him. 

[2] We affirm. 

Facts and Procedural History

[3] At some point in 2019, an at-large councilman on the Muncie City Council 

either withdrew or resigned from his position, and his seat became available. 

Hampton, Barber, and two other individuals applied to the Democratic Central 

Committee to fill the vacancy. On August 27, the committee held a caucus to

vote for a candidate to fill the position. Hampton received the most votes, and 

Barber came in third. Accordingly, the precinct committeemen selected 

Hampton to fill the vacant seat on the city council. 

[4] Thereafter, on November 7, Barber discovered that Hampton had been 

convicted of two prior felony convictions that were later reduced to 

misdemeanors. Accordingly, on November 19, Barber filed a verified 

complaint and information for ouster of an unlawful office holder and for a 

permanent injunction. In that complaint, Barber alleged that Indiana Code 

Section 3-8-1-5(d) and (e) precluded any person who had been convicted of a 

felony from assuming or being a candidate for an elected office even if that 
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felony had been later reduced to a misdemeanor. Accordingly, Barber 

maintained that Hampton was not eligible to serve as an elected official because 

of his prior convictions. Barber also asserted that he was authorized to file the 

complaint against Hampton because he had an interest in the office. 

Specifically, he alleged that he had been an unsuccessful candidate for the same 

council seat and that he would again attempt to hold that office if a vacancy 

were to occur as a result of his complaint against Hampton. 

[5] The court held a hearing on Barber’s motion on December 18. At that hearing, 

Barber introduced evidence that, on June 19, 1998, Hampton pleaded guilty to 

dealing in marijuana, as a Class D felony, in Monroe County. See Ex. Vol. III

at 6. Barber also introduced evidence that, on June 30, 2000, Hampton pleaded 

guilty to possession of a controlled substance, as a Class D felony, in Brown 

County. See id. at 4. Hampton did not dispute his criminal history, but he 

testified that the trial court had reduced both of his offenses to Class A 

misdemeanors following his successful completion of probation. Hampton then

asserted that Barber was not “a proper person” to bring the complaint against 

him because Barber had finished third out of four at the caucus election and, as 

such, that Barber did not have an interest in the office. Tr. at 19. 

[6] Following the hearing, the court entered findings and conclusions. Specifically, 

the court found that Barber “has an interest in the office, in that he was also a 

candidate, albeit unsuccessful[.]” Appellant’s App. Vol. II at 34. The court 

also found that Indiana Code Section 3-8-1-5(d) and (e) prohibits any person 

who has been convicted of a felony from holding office even if that conviction 
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was later reduced to a misdemeanor. Accordingly, the court concluded that 

Barber had standing to file the complaint against Hampton and that Hampton 

“is not eligible to hold any seat” on the city council. Id. This appeal ensued. 

Discussion and Decision

Issue One: Barber’s Standing 

[7] Hampton first asserts that Barber lacked standing to file the complaint against 

him. In determining that Barber was a proper person to file the complaint, the 

trial court issued findings of fact and conclusions thereon. As this Court has 

recently stated:

Where, as here, issues are tried upon the facts by the trial court 

without a jury, and the trial court enters specific findings sua 

sponte, we apply a two-tiered standard and determine whether the 

evidence supports the findings, and then whether the findings 

support the judgment. Findings and conclusions will be set aside 

only if they are clearly erroneous, that is, when the record 

contains no facts or inferences to support them. A judgment is 

clearly erroneous when our review of the record leaves us with a 

firm conviction that a mistake has been made. 

VanHawk v. Town of Culver, 137 N.E.3d 258, 265 (Ind. Ct. App. 2019) (internal 

citations omitted). 

[8] Here, Barber filed his complaint against Hampton pursuant to Indiana Code 

Section 34-17-1-1(1) (2020), which provides that an information may be filed 

against any person when that person “usurps, intrudes into, or unlawfully holds 

or exercises a public office” in Indiana. And Indiana Code Section 34-17-2-
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1(a)(2) provides that that information may be filed by the prosecuting attorney 

or “by any other person on the person’s own relation, whenever the person 

claims an interest in the office” that is the subject of the information. 

[9] On appeal, Hampton asserts that the evidence does not support the trial court’s 

finding that Barber had standing to file the complaint against him. As this 

Court has previously stated, a private person may file an information to 

determine the right of a party to hold office “only if he claims an interest on his 

own relation or a special interest beyond that of a taxpayer.” City of Gary v. 

Johnson, 621 N.E.2d 650, 652 (Ind. Ct. App. 1993). The individual “must 

demonstrate a personal interest distinct from that of the general public, which 

interest must be in the right or title to the office.” Id. Indeed, our Supreme 

Court has held that an individual is authorized to file such an action when that 

individual “lives in the district from which he claims the appointee must be 

selected and by his own act has made himself a candidate for that office.” State 

ex rel. Brown v. Cir. Ct. of Marion Cty., 430 N.E.2d 786, 787 (Ind. 1982). 

[10] Here, the undisputed evidence demonstrates that Barber is a resident of the City 

of Muncie. The evidence further shows that Barber applied for the vacant seat 

on the Muncie City Council, which vacancy was ultimately filled by Hampton. 

And the evidence indicates that Barber would again apply for that office should 

another vacancy occur as a result of the instant proceedings. That evidence 

demonstrates that Barber had a personal interest in the office beyond that of the 

general public. See id. We are not persuaded by Hampton’s bald assertion that 

Barber lacked a personal interest in the office simply because he placed third in 
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the caucus election. Rather, we hold that the evidence supports the trial court’s 

finding that Barber had a special interest in the office, and that finding supports 

the court’s conclusion that Barber had standing to file the complaint against 

Hampton.

Issue Two: Constitutionality of Indiana Code Section 3-8-5-1(e)

[11] Hampton next asserts that Indiana Code Section 3-8-1-5(e) is unconstitutional 

as applied to him. As the Indiana Supreme Court has stated:

A challenge to the constitutionality of a statute is a pure question 

of law, which we review de novo. All statutes are presumptively 

constitutional, and the court must resolve all reasonable doubts

concerning a statute in favor of constitutionality. That being 

said, unlike the higher burden faced by those making a facial 

constitutional challenge, those challenge the statute as applied 

need only show the statute is unconstitutional on the facts of a 

particular case.

State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (cleaned up). 

[12] Indiana Code Section 3-8-1-5(d)(3)(C) provides, in pertinent part, that a person 

is disqualified from assuming or being a candidate for an elected office if, in a 

guilty plea hearing, the person pleads guilty to a felony. Further, Indiana Code 

Section 3-8-1-5(e)(3) provides that the subsequent reduction of a felony to a 

Class A misdemeanor after the person has pleaded guilty to a felony does not 

affect the operation of subsection (d). 

[13] On appeal, Hampton contends that Indiana Code Section 3-8-5-1(e)(3) violates 

Article 1, Section 23 of the Indiana Constitution, which states that the “General 
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Assembly shall not grant to any citizen, or class of citizens, privileges or 

immunities, which, upon the same terms, shall not equally belong to all 

citizens.” Specifically, Hampton asserts that, “[o]nce a person’s D felony 

conviction is reduced to an A misdemeanor, that person is no different than [a] 

person who had a conviction on [his] record for any Class A misdemeanor.” 

Appellant’s Br. at 13. Accordingly, he asserts that Indiana Code Section 3-8-5-

1(e)(3) “treats the two differently without any distinguishable differences.” Id. 

[14] However, it is well settled that the “failure to challenge the constitutionality of a 

statute at trial results in waiver of review on appeal[.]” Plank v. Cmty. Hosps. of 

Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). And, here, Hampton did not 

challenge the constitutionality of the statute under Article 1, Section 23 of the 

Indiana Constitution before the trial court.

1

 By not raising this issue before the 

trial court, the fact finder was denied an opportunity to receive and consider 

evidence in support of this challenge. As such, we conclude that this issue is 

not properly before us, and he has waived this issue for our review. 

[15] In sum, the evidence supports the trial court’s finding that Barber has a special 

interest in the city council seat, and that finding supports the court’s conclusion 

that Barber had standing to file the complaint against Hampton. And Hampton 

1

 During the hearing on Barber’s complaint, Hampton briefly and without further comment stated that he 

“believe[d]” that the statute violated the Fourteenth Amendment to the United States Constitution. Tr. at 14. 

To the extent that that one statement could be construed as a challenge to the constitutionality of the statute 

under the federal constitution, an appellant cannot argue one legal theory before the trial court and present a 

different theory on appeal. See Phillips v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014). 
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has waived for our review the issue of whether Indiana Code Section 3-8-1-

5(e)(3) violates Article 1, Section 23 of the Indiana Constitution as applied to 

him. We therefore affirm the trial court’s order. 

[16] Affirmed.

Bradford, C.J., and Mathias, J., concur.