Opinions

Opinions July 21, 2014

July 21, 2014
7th Circuit Court of Appeals
United States of America v. Donella Locke
11-3743
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms Locke’s sentence of 57 months in prison, three years of supervised release and order she pay more than $340,000 in restitution to lenders for her role in a real estate fraud scheme. Locke argued the District Court erred when it failed to reduce the loss amount incurred as a result of her convicted conduct by the amounts the victims received when they sold the real estate that secured the fraudulently obtained loans, but she waived this issue.
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Opinions July 18, 2014

July 18, 2014
Indiana Court of Appeals
In re: The Visitation of A.W., J.W. v. State of Indiana (NFP)
71A03-1401-MI-3
Miscellaneous. Dismisses denial of mother’s motion to correct error.
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Opinions July 17, 2014

July 17, 2014
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
United States of America v. Lorenzo Mosley
13-3184
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. Affirms revocation of Mosley’s supervised release after judge found Mosley had committed the alleged violations, which included dealing cocaine, and sentence to 21 months in prison. The District Court erred in admitting a hearsay statement without finding there was “good cause,” but the error was harmless.
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Opinions July 16, 2014

July 16, 2014
7th Circuit Court of Appeals
United States of America v. Martin J. Jonassen
13-1410
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Mood.
Criminal. Affirms convictions and sentence for kidnapping and obstruction of justice. The District Court properly declined to conduct a competency hearing. Although Jonassen asserted bizarre legal theories based on his claim of “sovereign citizenship,” that alone does not provide a reason to doubt his competence to stand trial, and the record does not otherwise suggest that he lacked the ability to understand the proceedings. The court’s evidentiary ruling was also sound. The government laid an ample foundation for admission of the hearsay statements under Rule 804(b)(6); the evidence established that Jonassen used bribery, guilt and various forms of psychological intimidation to procure his daughter’s unavailability. Finally, because he did not request Jencks Act material before the close of trial, his claim for relief under the Act necessarily fails.
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Opinions July 15, 2014

July 15, 2014
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.
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Opinions July 14, 2014

July 14, 2014
7th Circuit Court of Appeals
Center for Inquiry, Inc., and Reba Boyd Wooden v. Marion Circuit Court Clerk and Marion County Prosecutor
12-3751
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Reverses the denial of an injunction to prevent the state from enforcing the marriage solemnization statute. Rules Indiana’s statute that prohibits officials of secular groups such as humanist societies from solemnizing marriages violates the First Amendment and the 14th Amendment’s Equal Protection Clause.
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Opinions July 11, 2014

July 11, 2014
Indiana Court of Appeals
Scott A. Wright v. State of Indiana
45A05-1310-CR-526
Criminal. Vacates Wright’s conviction of Class A felony child molesting and remands for a new trial. Finds the trial court erred in replacing a juror during deliberations. The juror was the lone vote to acquit and had stopped deliberating but he was not prejudicing the other jurors nor impairing Wright’s right to a trial by jury. Moreover, the trial court failed to explain to the jury that the removal of the single juror was not because the court agreed or disagreed with the juror’s views.
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Opinions July 10, 2014

July 10, 2014
7th Circuit Court of Appeals
Adam Hartman v. EBSCO Industries Inc., et al
13-3398
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment in favor of defendants on Hartman’s lawsuit alleging negligence and strict liability after he was injured accidently by a gun. Indiana has a 10-year statute of repose for products-liability actions and his gun was then 14 years old. There are two exceptions to the statute, but he cannot satisfy either one.
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Opinions June 9, 2014

July 9, 2014
Indiana Supreme Court
Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et al.
49S04-1301-PL-8
Civil plenary. Grants petition for rehearing on the issue of whether the insurers are third-party beneficiaries to the management agreement between Veolia and the city of Indianapolis. As to all issues not expressly addressed in the principal opinion, the Court of Appeals is summarily affirmed.
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Opinions July 8, 2014

July 8, 2014
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Julia Hutt v. AbbVie Products LLC
13-1481
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms summary judgment in favor of AbbVie Products, formerly known as Solvay Pharmaceuticals, on Hutt’s age discrimination and retaliation claims and her state law claim asserting a violation of the Indiana Wage Payment Statute. The District Court correctly concluded that Hutt’s age discrimination claim fails under the direct method and she could not prove the company retaliated against her for filing a complaint with the EEOC. Finds Hutt failed to develop her bad-faith argument with regard to her claim alleging violation of the Wage Payment Statute.
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Opinions July 7, 2014

July 7, 2014
Indiana Court of Appeals
Z.A. v. State of Indiana
49A02-1311-JV-973
Juvenile. Reverses adjudication that Z.A. committed what would be Class D felony theft if committed by an adult. The state did not prove that Z.A. exerted unauthorized control over the television he and his mother purchased together when he took it from his mother’s home over her objection.
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Opinions July 3, 2014

July 3, 2014
7th Circuit Court of Appeals
Gene Williams on behalf of Pamela J. Townsend v. Carolyn W. Colvin, acting commissioner of Social Security
13-3607
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Magistrate Judge John E. Martin.
Civil. Reverses District Court’s affirmation of the administrative law judge’s decision that Townsend became totally disabled as of Nov. 1, 2008.
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Opinions July 2, 2014

July 2, 2014
Indiana Supreme Court
In the Matter of: Steve L. Brejensky
29S00-1205-DI-277
Discipline. Imposes at least one-year suspension without automatic reinstatement based on Brejensky’s conviction of Class A misdemeanor conversion and lack of remorse. He may be reinstated only after proving his remorse, rehabilitation and fitness to practice law. The costs of the proceeding are assessed against him.
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Opinions July 1, 2014

July 1, 2014
Indiana Court of Appeals
James Brown v. State of Indiana

49A02-1312-CR-1023
Criminal. Affirms conviction of Class B misdemeanor public intoxication, holding that Brown was intoxicated in a public place and the evidence was sufficient to prove he harassed, annoyed or alarmed another person, one of the four conduct elements under the statute amended in 2012.
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Opinions June 30, 2014

June 30, 2014
Indiana Supreme Court
Keion Gaddie v. State of Indiana
49S02-1312-CR-789.
Criminal. Reverses conviction of Class A misdemeanor resisting law enforcement, holding that I.C. 35-44.1-3-1(a)(3), the statute defining the offense of resisting law enforcement by fleeing after being ordered to stop, must be construed to require that a law enforcement officer’s order to stop be based on reasonable suspicion or probable cause. On that basis, there was insufficient evidence against Gaddie to support the conviction.
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Opinions June 27, 2014

June 27, 2014
Indiana Supreme Court
South Shore Baseball, LLC d/b/a Gary South Shore RailCats and Northwest Sports Venture, LLC v. Juanita DeJesus
45S03-1308-CT-531
Civil tort. Reverses trial court denial of a motion for summary judgment to the Railcats defendants in a case brought by a fan injured by a foul ball hit into the stands at a minor-league baseball game. Holding the defendants are entitled to summary judgment, remands to the trial court to enter judgment accordingly.

 
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Opinions June 26, 2014

June 26, 2014
Indiana Court of Appeals
Traci Nelson v. Tony Nelson
41A01-1309-DR-424
Domestic relation. Affirms order denying Traci Nelson’s motion to relocate and modifying custody of her child in favor of father Tony Nelson. Finds mother’s reasons for relocation were legitimate and in good faith and that the conclusion that the Relocation Statute factors disfavored relocation and merited a change in custody to father was not clearly erroneous.
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Opinions June 25, 2014

June 25, 2014
Indiana Tax Court
The Speedway Public Library v. Indiana Department of Local Government Finance
49T10-1103-TA-22
Tax. Affirms the Department of Local Government Finance’s final determination rejecting the appropriations and levies associated with the library’s 2011 budget and decision to reinstitute the appropriations and levies associated with the 2010 budget. Public notice of the town council’s Sept. 13 meeting was statutorily required.  
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Opinions June 24, 2014

June 24, 2014
7th Circuit Court of Appeals
Tyrone L. Jones v. Richard Brown
12-3245
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Affirms denial of Jones’ petition for habeas relief. Finds his trial counsel was not constitutionally ineffective under Strickland. 
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Opinions June 23, 2014

June 23, 2014
7th Circuit Court of Appeals
United States of America v. Walbert Keith Farmer
13-3373
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Criminal. Vacates conditions of supervised release that required Farmer to submit to certain searches at the request of his probation officer, even without a warrant or reasonable suspicion, and a ban on self-employment. These special conditions do not bear a reasonably direct relationship to Farmer’s underlying crimes of attempted extortion. Remands for further proceedings.
 
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Opinions June 20, 2014

June 20, 2014
7th Circuit Court of Appeals
James Nichols v. Michigan City Plant Planning Department, Michigan City Area Schools
13-2893
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms summary judgment for Michigan City schools on Nichols’ allegations of Title VII violations. He did not provide sufficient evidence that demonstrates that the harassment he allegedly suffered while working as a temporary janitor was severe or pervasive. He also failed to provide sufficient evidence that his alleged harasser was a proximate cause of his firing because affidavits from his supervisors show that he would have been let go even if there was no feud between Nichols and the harasser.
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Opinions June 19, 2014

June 19, 2014
7th Circuit Court of Appeals
Devon Groves v. United States of America
12-3253
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of Groves’ Section 2255 motion to vacate, set aside or correct his sentence of 240 months in prison for one count each of possession of a firearm by a felon and possession of ammunition by a felon. Finds Groves was provided with effective assistance of counsel.
 
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Opinions June 18, 2014

June 18, 2014
7th Circuit Court of Appeals
Gabriel V. Mendoza v. United States of America
13-3195, 13-3196
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of Mendoza’s petition for relief from his drug convictions. He was not deprived due process when an interpreter relocated her position in the courtroom to translate for a witness nor was he provided ineffective assistance of counsel.
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Opinions June 17, 2014

June 17, 2014
Indiana Court of Appeals
Cruisin', Inc., d/b/a Cruisin' Auto Sales v. Springleaf Financial Services of Indiana, Inc., f/k/a American General Financial Services
39A01-1309-CC-423
Civil collection. Affirms judgment in favor of Springleaf. Finds Cruisin’ breached the terms of the contract by giving the title to the car buyer rather than mailing it to Springleaf. Remands to correct a scrivener’s error and enter the reimbursement amount at $2,659.02. Also remands to enter the judgment damage award against the dealership and buyer jointly and severally.
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Opinions June 16, 2014

June 16, 2014
Indiana Court of Appeals
J.C. Jennings, II v. State of Indiana (NFP)
45A03-1310-CR-425
Criminal. Affirms conviction of Class D felony sexual battery.
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  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

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