Opinions

Opinions March 15, 2013

March 15, 2013
Indiana Court of Appeals
Charles Meriwether v. State of Indiana
49A02-1208-CR-676
Criminal. Affirms convictions of Class A misdemeanor possession of marijuana and Class D felony possession of paraphernalia. The trial court did not commit fundamental error when it admitted Meriwether’s statement into evidence because he was not in custody when he made it.
 
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Opinions March 14, 2013

March 14, 2013
Indiana Court of Appeals
Michael Bowser v. State of Indiana

71A03-1208-CR-361
Criminal. Affirms two convictions of Class C felony battery by means of a deadly weapon. The trial court did not abuse its discretion by denying Bowser’s motion for severance and there is sufficient evidence to sustain the convictions.
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Opinions March 13, 2013

March 13, 2013
7th Circuit Court of Appeals
Kelly S. Thomas v. Dushan Zatecky, superintendent, Pendleton Correctional Facility
13-1136
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Denies Thomas’ request that he be allowed collateral relief to file appeals without regard to the fees required by Section 1913 and the resolutions of the Judicial Conference. Gives Thomas 21 days to file in the 7th Circuit a motion for permission to proceed in forma pauperis and a certificate of appealability. Failure to meet this schedule will result in dismissal for failure to prosecute.

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Opinions March 12, 2013

March 12, 2013
Indiana Supreme Court
Curtis A. Bethea v. State of Indiana
18S05-1206-PC-304
Post conviction. Affirms trial court denial of post-conviction relief, holding that Curtis Bethea, who pleaded guilty to armed robbery and criminal confinement in a deal that dropped seven other felony counts, was not improperly denied post-conviction relief when a judge considered evidence of charges that were dismissed.

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Opinions March 11, 2013

March 11, 2013
Indiana Court of Appeals
Bay Colony Civic Corporation v. Pearl Gasper Trust and Bruce F. Waller
49A05-1207-PL-365
Civil plenary. Reverses trial court ruling in favor of Gasper and Waller, holding that a public easement to a reservoir also grants access to the water and not just to the land adjacent to the water, and that a neighborhood association did not violate its bylaws by spending money to improve access to the lake for residents. Remands to the trial court to grant the association’s motion for partial summary judgment.
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Opinions March 8, 2013

March 8, 2013
Indiana Court of Appeals
In the Matter of the Supervised Estate of Evelyn Garrard; Ronald Garrard v. Debra L. Teibel and Douglas Grimmer and Debra Lindsay
45A03-1111-PL-547
Civil plenary. Affirms summary judgments in favor of Teibel, Grimmer and Lindsay, holding that Garrard had waived all issues on appeal and failed to show an issue of material fact existed. The court also warned Garrard about language in pleadings that disparaged other parties to the litigation and the bench.

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Opinions March 7, 2013

March 7, 2013
Indiana Supreme Court
In Re: Visitation M.L.B.: K.J.R. v. M.A.B.
41S01-1209-MI-556
Miscellaneous. Rules despite the trial court’s ample “best interests” findings, the lack of findings on the other three factors, both standing alone and as compounded by the extensive visitation awarded without those necessary findings, violates Mother’s fundamental right to direct M.L.B.’s upbringing. Remands for a new entry of findings and conclusions revealing the court’s consideration of all four McCune/K.I. factors, without a new hearing.
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Opinions March 6, 2013

March 6, 2013
Indiana Supreme Court
Holiday Hospitality Franchising, Inc. v. Amco Insurance Company
33S01-1206-CT-312
Civil tort. Affirms summary judgment for Amco Insurance Co. on its motion for declaratory judgment to enforce its reading of the insurance contract with the hotel disclaiming coverage for, and its duty to defend against, a civil complaint brought by a motel guest molested by an off-duty motel employee. The facts of the case reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract. Chief Justice Dickson concurs and Justice Rucker dissents.
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Opinions March 4, 2013

March 4, 2013
Indiana Court of Appeals
Michael Williams, Jr. v. State of Indiana
30A01-1207-CR-305
Criminal. Reverses convictions of Class B felonies burglary and conspiracy to commit burglary, and Class C felony carrying a handgun without a license. Williams’ trial counsel’s performance was deficient by failing to object under Indiana Evidence Rule 404(b) to the admission of evidence of William’s previous bad acts and convictions. Remands for a new trial.

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Opinions March 1, 2013

March 1, 2013
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc., et al.
12-3308
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms $600,000 sanction against SonCo for contempt of court by not following a court order. The $600,000 is actually a gross understatement of the harm caused by SonCo’s contempt for failing to take over operation of Alco’s wells within 90 days as ordered.
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Opinions Feb. 28, 2013

February 28, 2013
Indiana Court of Appeals
Verdyer Clark v. State of Indiana
49A04-1202-CR-66
Criminal. Grants rehearing for clarification and affirms in all respects. Holds that the determination whether the age of a perpetrator is relevant to a child victim’s medical diagnosis or treatment is best left to another case.
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Opinions Feb. 27, 2013

February 27, 2013
Indiana Court of Appeals
Lamont Holloway v. State of Indiana
49A02-1207-CR-548
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft. The evidence was sufficient to support the convictions.
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Opinions Feb. 26, 2013

February 26, 2013
Indiana Court of Appeals
Paul M. Brock v. State of Indiana
79A04-1208-CR-433
Criminal. Affirms trial court sentence of 12 years on convictions of Class C felony auto theft; Class D felony intimidation; Class A misdemeanors resisting law enforcement, striking a law enforcement animal, and operating a vehicle while intoxicated; and a habitual offender enhancement. The court held that the sentence was not impermissible double enhancement, was not inappropriate, and that the court did not abuse its discretion when it considered Brock’s prior behavior while incarcerated.
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Opinions Feb. 25, 2013

February 25, 2013
Indiana Court of Appeals
Jose Maldonado-Morales v. State of Indiana
20A05-1205-CR-255
Criminal. Affirms Class D felony conviction of domestic battery, ruling that a jury instruction on the doctrine of transferred intent was not an abuse of discretion and that the state was not required to prove that Maldonado-Morales knowingly or intentionally struck his ex-wife in the presence of their child.  

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Opinions Feb. 22, 2013

February 22, 2013
Indiana Supreme Court
K.W. v. State of Indiana
49S02-1301-JV-20
Juvenile. Affirms Court of Appeals reversal of trial court ruling designating K.W. a delinquent for resisting law enforcement, and orders the delinquency adjudication vacated. Justices held that evidence was insufficient that K.W. acted “forcibly” to resist a school resource officer when he pulled away as the officer was attempting to handcuff him.
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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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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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