ILNews

Opinions July 15, 2014

July 15, 2014
Keywords
Back to TopE-mailPrintBookmark and Share

Indiana Court of Appeals
Antonio L. Vaughn v. State of Indiana
84A01-1302-CR-57
Criminal. Affirmed Vaughn’s conviction and 40-year aggregate sentence for two counts of dealing in cocaine, each as a Class A felony, and one count of maintaining a common nuisance, a Class D felony. Finds the trial court did not abuse its discretion in admitting evidence of the controlled buys, statements of the confidential information and the cocaine. Also finds the trial court did not abuse its discretion in instructing the jury. Rules the evidence was sufficient to support Vaughn’s convictions. Holds the trial court did not abuse its discretion when it sentenced Vaughn but it made a clerical error on the sentencing order. Remanded to the trial court to correct error to reflect that Vaughn was sentenced for maintaining a common nuisance conviction to three years, not three-and-a-half years.

In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor
19A05-1311-MI-542
Miscellaneous. Reverses and vacates trial court’s award of grandparent visitation for paternal grandparents Scott and Angela Ubelhor. The trial court erred in findings that awarded visitation because it failed to consider the totality of circumstances in determining that mother’s reasons for restricting visitation were unreasonable. Chief Judge Nancy Vaidik dissented and would affirm the trial court, which wrote that the trial court found visitation would be in the child’s best interests and there was no reason to believe visitation would resume without a court order.
 
Juan Manzano v. State of Indiana
48A02-1310-PC-905
Post conviction. Affirms post-conviction court’s denial of relief from a 50-year sentence for his conviction of Class A felony rape, concluding that Manzano did not receive ineffective assistance of counsel.

Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased v. James E. Szymanowki, M.D. and Gyn, Ltd., Inc., and Joseph B. Clemente, M.D.
89A01-1401-CT-48
Civil tort. Affirms trial court grant of summary judgment in favor of defendants on a medical malpractice claim. The panel held that the trial court properly concluded that another doctor’s testimony did not create a genuine issue of material fact as to the liability of Dr.  Szymanowski; (2) GYN cannot be held vicariously liable for the perceived acts of medical malpractice committed by Dr. Smith when Dr. Smith’s conduct was never reviewed by the medical review panel; and (3) the trial court properly concluded that no recovery exists for the 2007 death of a child not born alive under the Child Wrongful Death Statute, as amended.

Jacqueline Myers v. Mark Myers
49A02-1310-DR-895
Domestic relation. Affirms in part and reverses in part a grant of Mark Myer’s motion to prevent Jacqueline Myer’s relocation to Texas with her daughter, H.M. Father’s petition was properly before the court. The trial court did not err in finding mother had not met her burden of proof in seeking to relocate. However, the court erred in ordering that father would receive automatic physical custody of H.M. if mother moved to Texas.

In the Matter of J.W., A Child in Need of Services J.W. (Minor Child), and M.K. (Mother), & D.W. (Father) v. The Indiana Department of Child Services (NFP)
49A04-1312-JC-593
Juvenile. Affirms in part and reverses in part, holding that a child in need of services finding was not error, nor was the trial court’s order that father complete a domestic violence assessment. But because there is no evidence father had a substance abuse problem, the court erred when it ordered him to submit to random drug testing.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of W.H., Minor Child, and His Mother, J.F., J.F. v. Indiana Department of Child Services (NFP)
79A02-1312-JT-1034
Juvenile. Affirms termination of parental rights.

Paul A. Croucher v. State of Indiana (NFP)
89A01-1401-CR-23
Criminal. Affirms in part, reverses in part 40-year aggregate sentence and convictions of Class A felony and Class C felony child molesting. The trial court did not abuse discretion in admitting certain evidence and there was no prosecutorial misconduct. Remands for the trial court to amend its sentencing order because the court abused its discretion in classifying Croucher as a credit-restricted felon.

Alan R. Kohlhaas, on behalf of himself and all others similarly situated v. Hidden Valley Lake Property Owners Association, Inc., and Robert A. Will, William Acra, Carl Adkins, et al. (NFP)
15A01-1308-PL-357
Civil plenary. Affirms grant of summary judgment in favor of Hidden Valley Lake Property Owners Association and other defendants.

Christopher Anderson v. State of Indiana (NFP)
49A04-1307-PC-340
Post conviction. Affirms denial of post-conviction relief for conviction of murder, intimidation and possession of a handgun without a license.

James E. Manley v. Monroe County Prosecutor (NFP)
53A01-1402-MI-65
Miscellaneous. Affirms trial court denial of Manley’s pro se “complaint for declaratory and injunctive relief/challenge to the constitutionality of Indiana statute” challenging his conviction of multiple counts of child molesting.

Brandon Hicks v. State of Indiana (NFP)
49A02-1308-CR-739
Criminal. Affirms aggregate 40-year sentence and conviction of Class B felony manslaughter and Class A misdemeanor possession of marijuana.

Cynthia Marx v. State of Indiana (NFP)
48A04-1311-CR-548
Criminal. Affirms revocation of probation and remands for correction of the sentencing order and abstract of judgment.

Brian Baxter v. State of Indiana (NFP)
49A05-1306-CR-285
Criminal. Affirms denial of Baxter’s motion to compel certain public agencies to produce public records relating to his convictions of three counts of murder, conspiracy to commit robbery, resisting law enforcement and carrying a handgun without a license.

James Washington v. State of Indiana (NFP)
10A05-1312-CR-626
Criminal. Affirms conviction of murder, reverses in part and remands. There was sufficient evidence to rebut Washington’s claim of self defense, his sentence was appropriate, but on the state’s cross-appeal, the panel determined the trial court erred by finding conviction of Class B felony robbery was a lesser included offense. Remands with instruction that Washington be resentenced with the additional robbery conviction.

Jerrimica T. Madding v. State of Indiana (NFP)
18A04-1312-CR-608
Criminal. Affirms revocation of probation.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline. The 7th Circuit Court of Appeals issued no Indiana decisions prior to IL deadline.




 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT