Opinions

Opinions Feb. 21, 2013

February 21, 2013
Indiana Court of Appeals
Curtis Tyrell Cutler v. State of Indiana

71A05-1206-CR-339
Criminal. Affirms conviction of Class B felony burglary. Finds there was sufficient evidence to warrant a jury finding beyond a reasonable doubt that Cutler committed the burglary. Holds the trial court did not err in permitting the use of a statement Cutler made to police for impeachment.

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Opinions Feb. 20, 2013

February 20, 2013
7th Circuit Court of Appeals
Columbus Regional Hospital v. Federal Emergency Management Agency
12-2007
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment in favor of FEMA on the hospital’s lawsuit seeking $20 more in federal aid following a flood in 2006. Holds the District Court is the proper venue for the hospital’s lawsuit. Rejects the hospital’s claims that it is entitled to the cost of new equipment instead of cost less depreciation and that FEMA should not have deducted from the aid the $25 million it received from insurance.

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Opinions Feb. 19, 2013

February 19, 2013
Indiana Supreme Court
Ronald B. Hawkins v. State of Indiana
20S03-1208-DR-499
Domestic relation. Vacates convictions of two counts of Class C felony nonsupport of a dependent where Hawkins was tried in absentia. The record indicates that Hawkins’ failure to appear at trial did not constitute a waiver of his right to counsel. Remands for a new trial.

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Opinions Feb. 18, 2013

February 18, 2013
Indiana Court of Appeals
Jim A. Edsall v. State of Indiana
57A03-1205-CR-240
Criminal. Affirms sentence following guilty plea to five counts of Class A felony delivery of methamphetamine and one count of Class A felony conspiracy to manufacture meth. There is no indication that the trial court considered alleged inaccurate and irrelevant testimony when sentencing him, and his sentence is appropriate based on his character and nature of his offenses. Reverses order of restitution as part of Edsall’s sentence because the trial court had not authority to order restitution in this case.
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Opinions Feb. 15, 2013

February 15, 2013
Indiana Court of Appeals
South Shore Baseball, LLC d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus
45A03-1205-CT-222
Civil tort. Reverses denial of summary judgment for South Shore Baseball on DeJesus’ lawsuit filed after she was hit by a foul ball at a game. As a matter of law, the appellants can’t be held liable for her injuries. Remands with instructions for the court to issue summary judgment in favor of South Shore Baseball.
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Opinions Feb. 14, 2013

February 14, 2013
7th Circuit Court of Appeals
In the matter of: Castleton Plaza LP; Appeal of: El-SNPR Notes Holdings LLC
12-2639
U.S. Bankruptcy Court, Southern District of Indiana, Indianapolis Division, Judge Basil H. Lorch III.
Bankruptcy. Holds an equity investor cannot evade the competitive process by arranging for the new value to be contributed by (and the new equity to go to) an “insider” as 11 U.S.C. Section 101(31) defines that term. Competition is essential whenever a plan of reorganization leaves an objecting creditor unpaid yet distributes an equity interest to an insider.
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Opinions Feb. 13, 2013

February 13, 2013
7th Circuit Court of Appeals
United States of America v. Jesus Uribe
11-3590
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. Affirms decision granting Uribe’s motion to suppress heroin found after traffic stop. The government failed to show that the officer had reasonable suspicion to stop Uribe’s vehicle to investigate why its registration was tied to a white Nissan whereas the Nissan Uribe was driving was blue. Investigatory stops based on color discrepancies alone are insufficient to give rise to reasonable suspicion.
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Opinions Feb. 11, 2013

February 11, 2013
Indiana Court of Appeals
Michael Gray v. State of Indiana
49A02-1205-CR-352
Criminal. Affirms conviction and sentence of Class D felony possession of cocaine, holding that the court erred in failing to allow a defendant to play a tape of an officer’s deposition that contained inconsistent statements, but that the error was harmless because other evidence at trial strongly pointed to Gray’s guilt.
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Opinions Feb. 8, 2013

February 8, 2013
Indiana Court of Appeals
Billy Russell v. State of Indiana
49A04-1203-CR-148
Criminal. Affirms conviction and sentence on charges of murder and Class B felony possession of a firearm by a serious violent felon. The panel found that the trial court did not abuse its discretion in refusing to completely bifurcate the trial of the SVF charge from the murder charge or in refusing to tender Russell’s self-defense jury instruction. The court also determined the 85-year sentence was not inappropriate.

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Opinions Feb. 7, 2013

February 7, 2013
7th Circuit Court of Appeals
Jurijus Kadamovas v. Michael Stevens, et al.
12-2669
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses dismissal of prisoner Kadamovas’ lawsuit against prison officials and other inmates for unintelligibility. The suit is actually written clearly and not 99 pages as the judge believed, but just 28 pages. Remands for further consideration.
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Opinions Feb. 6, 2013

February 6, 2013
Indiana Court of Appeals
Walter E. Smith, Jr. v. State of Indiana
84A04-1112-CR-637
Criminal. Affirms conviction of Class A felony dealing in cocaine. The trial court did not abuse its discretion in refusing to use Smith’s tendered instruction because the substance of that instruction was covered by instructions given by the court nor in refusing to discharge Smith pursuant to Criminal Rule 4(B). The trial court also did not abuse its discretion in admitting at trial the cocaine evidence seized pursuant to a valid search warrant.

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Opinions Feb. 5, 2013

February 5, 2013
Indiana Court of Appeals
Ignacio Perez v. State of Indiana
20A03-1206-CR-247
Criminal. Affirms denial of motion to suppress. Finds the detention, arrest and search incident to the arrest were reasonable and did not violate Perez’s right to be free from unreasonable search and seizure under the Fourth Amendment. The dog sniff outside his residence was reasonable and there was no violation of his rights under the Indiana Constitution. Remands for retrial.
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Opinions Feb. 4, 2013

February 4, 2013
Indiana Court of Appeals
Connie S. Landers v. Wabash Center, Inc.
79A04-1204-CT-191
Civil tort. Affirms judgment for Wabash Center Inc. in its lawsuit against Landers for the return of money her ex-husband stole from his employer Wabash and gave to her during and after their marriage. The court ordered she pay more than $1.037 million and granted Wabash an equitable lien on her home. Wabash’s lawsuit is not barred by the statute of limitations and the ruling is supported by sufficient evidence.
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Opinions Feb. 1, 2013

February 1, 2013
7th Circuit Court of Appeals
Eugene Devbrow v. Dr. Eke Kalu, et al.
12-2467
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses judgment for the defendants on prisoner Devbrow’s suit that two prison doctors and a prison nurse were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The statute of limitations for a Section 1983 deliberate-indifference claim brought to redress a medical injury doesn’t begin to run until the plaintiff knows of his injury and its cause, so his suit is timely.

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Opinions Jan. 31, 2013

January 31, 2013
Indiana Court of Appeals
Mark S. Weinberger, M.D., et al. v. Gloria Gill
45A05-1203-CT-107
Civil tort. Affirms award of $150,000 in damages to Gloria Gill following her medical malpractice action. Concludes that the testimony concerning Weinberger’s odd behavior before his flight from the country was relevant evidence because it established an inference of consciousness of guilt.

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Opinions Jan. 30, 2013

January 30, 2013
Indiana Court of Appeals
Peter F. Amaya v. D. Craig Brater, M.D., in his capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al.
49A04-1204-PL-208
Civil plenary. Affirms summary judgment in favor of the medical school on Amaya’s claims including breach of contract and breach of good faith and fair dealing after he was dismissed from the school. Amaya didn’t designate evidence that the school’s decision was in bad faith, arbitrary or capricious.

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Opinions Jan. 29, 2013

January 29, 2013
Indiana Court of Appeals
John Alden v. State of Indiana
30A01-1209-CR-412
Criminal. Affirmed trial court’s denial of petition to reduce Alden’s Class D felony conviction for operating while intoxicated to a Class A misdemeanor. In a review of the state statute covering the sentencing range for Class D felonies, the COA found the statute contained the word “may” instead of “shall” which gives the courts the freedom to deny petitions.

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Opinions Jan. 25, 2013

January 25, 2013
Indiana Court of Appeals
David Delagrange v. State of Indiana
49A04-1203-CR-144
Criminal. Reversed conviction of four counts of Class C felony attempted child exploitation and remanded for further proceedings. Ruled Delagrange’s act of secretly photographing minor girls’ underwear did not meet the Indiana statute’s definition of “child exploitation” because the girls did not intentionally expose themselves for the purpose of satisfying or arousing sexual desires of another.
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Opinions Jan. 24, 2013

January 24, 2013
Indiana Court of Appeals
Danny Boling v. State of Indiana
20A04-1205-CR-237
Criminal. Affirms conviction of Class A felony attempted child molesting based on the evidence presented at trial and 45-year sentence. Finds the trial court erred in determining Boling is a credit restricted felon because a person convicted of attempted child molesting isn’t a credit restricted felon under I.C. 35-31.5-2-72(1). Remands with instructions to correct Boling’s record to remove that designation.
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Opinions Jan. 23, 2013

January 23, 2013
7th Circuit Court of Appeals
John Doe v. Prosecutor, Marion County, Indiana
12-2512
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Reverses District Court decision to uphold statute prohibiting most registered sex offenders from using certain social networking and holds the law as drafted is unconstitutional. Though content neutral, the law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather specifically targeting the evil of improper communications to minors. Remands with instructions to enter judgment in favor of Doe and issue the injunction.
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Opinions Jan. 22, 2013

January 22, 2013
Indiana Court of Appeals
Lula L. Jenkins, et al. v. South Bend Community School Corp.
71A03-1206-PL-260
Civil plenary.  Reverses summary judgment for South Bend Community School Corp. on Jenkins’ action seeking an independent determination of whether she was discharged for just cause from her position as a bus driver. The advisory nature of the arbitrator’s award allows the non-prevailing party, here SBCSC, to reject the award, thus triggering judicial review, either under the Uniform Arbitration Act’s provisions or for a determination whether the facts found by the arbitrator support the award. Remands for further proceedings.
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Opinions Jan. 18, 2013

January 18, 2013
7th Circuit Court of Appeals
Linda K. Roddy v. Michael J. Astrue, Commissioner of Social Security
12-1682
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Vacates judgment of the District Court and remands Roddy’s case for disability insurance benefits to the Social Security Administration for further proceedings. Finds the administrative law judge made a number of errors in his consideration of the record, in which he denied her benefits.
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Opinions Jan. 17, 2013

January 17, 2013
Indiana Court of Appeals
Daniel Brewington v. State of Indiana
15A01-1110-CR-550
Criminal. Reverses convictions and sentences for intimidation of Dr. Edward Connor and intimidation of Heidi Humphrey and remands with instructions to vacate, which does not alter Daniel Brewington’s aggregate sentence. Affirms conviction for intimidation of Judge James Humphrey and for attempted obstruction of justice relating to Connor. Affirms in all other respects.
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Opinions Jan. 16, 2013

January 16, 2013
Indiana Court of Appeals
Nick Domaschko and Edwina Domaschko, and their Respective Trusts, et al. v. State of Indiana
58A01-1206-PL-261
Civil plenary. Affirms trial court’s order of immediate appropriation and appointment of appraisers. The trial court properly determined that the state, through the Indiana Department of Transportation, was entitled by law to acquire the Domaschkos’ property.
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Opinions Jan. 15, 2013

January 15, 2013
Indiana Supreme Court
Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana
49S04-1203-CT-135
Civil tort. Affirms trial court denial of Timothy Plank’s request to hold an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. Plank forfeited his opportunity to conduct such a hearing.
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  1. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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