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Opinions Sept. 30, 2013

September 30, 2013
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Opinions, Sept. 30, 2013

Indiana Court of Appeals
Jeffrey Archer v. State of Indiana

49A05-1209-CR-448
Criminal. Affirms Class A felony conviction of child molestation, rejecting arguments that the trial court’s statement about the victim’s competency was an impermissible vouching statement and that the court improperly allowed vouching statements by multiple witnesses. The court’s denial of Archer’s request to present evidence of the victim’s post-allegation demeanor also was proper, as were jury instructions and the effectiveness of Archer’s trial counsel.

Paul J. Livers II, v. State of Indiana
06A01-1303-CR-119
Criminal. Affirms convictions for battery causing bodily injury, a Class A misdemeanor, and interference with reporting a crime, a Class C misdemeanor. Livers claims his counsel was ineffective because the attorney failed to file a motion for a jury trial in a timely manner. The COA finds the trial court record does not indicate that Livers wanted a jury trial prior to his trial counsel’s belated requested. Also rejects Livers’ argument that the testimony of the victim was incredibly dubious.

Joseph M. Guinn v. Applied Composites Engineering, Inc.
49A02-1303-CC-239
Civil. Reverses grant of summary judgment in favor of Applied Composites Engineering Inc., and remands to the trial court for consideration of Joseph Guinn’s claim of tortious interference with a contract due to ACE’s enforcement of a non-compete clause that resulted in his termination from a subsequent employer. Summary judgment was improper because a genuine issue of material fact exists as to whether ACE’s conduct was justified, fair or reasonable under the circumstances.

Amy Palmer v. Margaret Sales and Unique Insurance Company
45A03-1302-SC-31
Small claims. Reverses denial of motion for change of judge and motion for jury trial and remands with instructions to grant change of judge, implement procedures for the selection of a new judge and transfer the case to the plenary docket, the majority holding that the question of timeliness of a change of judge request should be guided by the dissenting opinion in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). Judge Mark Bailey, who wrote the McClure opinion, dissented in part, finding that the court shouldn’t reach McClure, which he acknowledged may have been wrongly decided, and that because Palmer acknowledged liability, proceedings on remand should be limited to the matter of damages.

William A. Asher v. Stephanie J. Coomler
49A04-1302-DR-71
Domestic relation. Reverses trial court modification of child support, holding that a magistrate was not within the class of judicial officers specified in Trial Rules for selection of a special judge and therefore could not have presided after appointment of a special judge. Remands to the trial court with instructions to permit the parties to select a successor special judge.

David M. Green v. State of Indiana
45A03-1210-PC-418
Post-conviction. Affirms denial of petition for post-conviction relief from his sentence of two consecutive 45-year sentences for his conviction of two counts of murder, concluding that a defense attorney’s failure to object to an anonymous jury was not ineffective assistance of counsel.

Tom Trisler d/b/a Canal House Antiques v. Clayton L. Carter
35A02-1302-SC-192
Small claim. Reverses the trial court’s order that Trisler reimburse Carter the purchase price for a chest of drawers. Rules when Carter bought the piece of furniture at the antiques store, he did not expect the business would remedy any defect. Consequently he has no legitimate reason to revoke his acceptance of the chest of drawers.

Gary Oswalt v. State of Indiana
35A02-1208-CR-684
Criminal. Affirms conviction and aggregate sentence of 84 years for two counts of child molesting as Class A felonies, child solicitation as a Class D felony, and five counts of possession of child pornography as Class D felonies. Rules Oswalt did not exhaust his peremptory challenges and therefore waived review of the trial court’s denial of his request to strike Juror No. 28 for cause. Finds the five charges for possession of child pornography fell within the statutory limitations period. Concludes that the evidence was sufficient to sustain Oswalt’s convictions for five counts of possession of child pornography and that Oswalt failed to demonstrate he was denied a fair trial due to the charges of possession of child pornography. Upholds the sentence as appropriate considering the nature of the offense and the character of Oswalt.

In the Matter of the Termination of the Parent-Child Relationship of K.C., R.C., and B.C., Minor Children and R.C., Father v. Indiana Department of Child Services (NFP)
72A01-1301-JT-35
Juvenile. Affirms involuntary termination of R.C.’s (father) parental rights to K.C., R.C. and B.C.

Joseph A. Taylor v. Dr. William H. Wolfe, in his Individual Capacity as an Employee of Corizon and Medical Director at the Pendleton Correctional Facility, Corizon, Inc., and Pharma Corr, (NFP)
48A05-1212-PL-638
Civil Plenary. Affirms dismissal of Taylor’s complaint against Wolfe, Corizon Inc. and Pharma Corr for lack of subject matter jurisdiction.

In the Matter of; H.B., G.M., P.M., and A.C. (Minors), C.M. (Mother) v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate (NFP)
45A03-1302-JT-62
Juvenile. Affirms order terminating C.M.’s (mother) parental rights to her minor children, H.B., G.M., P.M. and A.C.

Gerald W. Staton v. Dawn M. Dobyns-Gross, Indiana Family Social Services Administration, Tippecanoe County, Indiana and Tippecanoe County Prosecutor (NFP)
79A02-1305-CT-412
Civil Tort. Affirms denial of Staton’s motion to correct error and the dismissal of Staton’s complaint.

Mark Burkett v. State of Indiana (NFP)
09A04-1305-CR-262
Criminal. Affirms 20-year sentence for criminal confinement, a Class B felony.

Brandon Stewart v. State of Indiana (NFP)
45A03-1301-CR-6
Criminal. Affirms conviction for two counts child molesting, both Class A felonies, one count sexual misconduct with a minor, a Class B felony, one count child molesting, a Class C felony, and one count sexual misconduct with a minor, a Class C felony. Also affirms aggregate sentence of 46 years.
 
The Indiana Supreme Court and the Indiana Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.
 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

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