Opinions

Opinions Nov. 17, 2015

November 17, 2015
Indiana Court of Appeals
Luis Fuerte v. State of Indiana (mem. dec.)
45A03-1501-CR-15
Criminal. Affirms aggregate 19-year executed sentence and convictions of Class B felony attempted incest, Class C felony child molesting and Class D felony sexual battery.
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Opinions Nov. 16, 2015

November 16, 2015
Indiana Court of Appeals
John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc.
75A04-1503-MI-100
Miscellaneous. Affirms grant of appellees’ motion for judgment. Rules the fences that Belork wants his neighbors to help build along the southern and eastern boundaries of his property do not constitute partition fences under Indiana Code 32-26-9. Finds the statute does not apply in this situation because the neighbors would not derive a benefit from the fences.  
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Opinions Nov. 13, 2015

November 13, 2015
Indiana Court of Appeals
Jay Classroom Teachers Association v. Jay School Corporation and Indiana Education Employment Relation Board
49A05-1412-PL-586
Civil plenary. Reverses trial court order affirming the order of the Indiana Education Employment Relation Board and remands to the board for proceeding. A provision of the Jay Classroom Teachers Association contract allowing additional compensation for ancillary duties, including covering another teacher’s class, was not impermissible and should not have been stricken by the board. The board also erred in allowing a provision permitting the superintendent to set salaries of teachers hired after the start of the school year. The provision was impermissible and should have been stricken by the board.
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Opinions Nov. 12, 2015

November 12, 2015
Indiana Court of Appeals
Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and Municipal Employees Local 3609
33A05-1505-PL-409
Civil plenary. Affirms summary judgment in favor of the union on the county’s motion to correct or vacate the arbitrator’s award, in which it reduced two union workers’ discipline from termination to a five-day unpaid layoff. The county circumvented the collective bargaining agreements’ progressive discipline scheme and the CBA does not require discharge for the infractions committed by the employees or prohibit the arbitrator from reducing an employee’s punishment.
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Opinions Nov. 10, 2015

November 10, 2015
Indiana Supreme Court
John Hernandez v. State of Indiana
49S02-1511-CR-644
Criminal. Holds it was an error for the trial court to have refused giving Hernandez’s tendered final jury instruction on the defense of necessity because Hernandez presented some evidence to support the instruction. Vacates Hernandez’s Class A misdemeanor conviction of carrying a handgun without a license and remands for a new trial.
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Opinions Nov. 9, 2015

November 9, 2015
Indiana Court of Appeals
Robert L. Woods v. State of Indiana (mem. dec.)
27A05-1502-CR-61
Criminal. Affirms Woods’ convictions of two counts of Class A felony child molesting and 100-year sentence.
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Opinions Nov. 6, 2015

November 6, 2015
7th Circuit Court of Appeals
BRC Rubber & Plastics Inc. v. Continental Carbon Company
14-1416, 14-1555
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Magistrate Judge Roger B. Cosbey.
Civil. Vacates judgment for BRC on its lawsuit that Continental Carbon had breached and repudiated the contract for it to supply carbon black to BRC. The agreement did not obligate BRC to buy any or all of its carbon black from Continental, so the trial court erred in concluding the contract was a requirements contract. Remands without reaching BRC’s cross-appeal related to damages.  
 
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Opinions Nov. 5, 2015

November 5, 2015
Indiana Supreme Court
Latoya Lee v. State of Indiana
49S02-1511-CR-638
Criminal. Reverses Lee’s conviction of attempted aggravated battery as a lesser included offense of a murder charge dismissed by the court and remands with instructions to enter a judgment of acquittal. Charging murder, or conspiracy to commit murder, by shooting does not, without more, give fair notice of lesser included charges based on a beating. It was fundamental error to convict her based on a critical operative fact the state never pleaded and in fact disclaimed at trial.
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Opinions Nov. 4, 2015

November 4, 2015
Indiana Court of Appeals
Mario Allen v. Wendy Knight, Superintendent of Correctional Industrial Facility (mem. dec.)
48A02-1505-MI-416
Miscellaneous. Affirms trial court decision to transfer Allen’s petition for writ of habeas corpus filed in the county of his incarceration to the county where he was tried and sentenced.
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Opinions Nov. 2, 2015

November 2, 2015
Indiana Court of Appeals
Chris Harkins v. State of Indiana (mem. dec.)
15A01-1412-CR-553
Criminal. Affirms conviction of five counts of Class C felony forgery, two counts each of Class D felony identity deception and credit card fraud, Class A misdemeanor deception, and a jury’s adjudication of Harkins as a habitual offender. The trial court did not err in denying Harkins’ motions for severance, continuance and to exclude evidence. The convictions did not violate the prohibition against double jeopardy. 
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Opinions Oct. 30, 2015

October 30, 2015
Indiana Court of Appeals
Brooks Berg v. State of Indiana
32A01-1504-CR-127
Criminal. Affirms convictions of Class D felony operating while intoxicated and Class B misdemeanor reckless driving. Berg argued the state violated his double jeopardy rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the evidence it had presented to the jury to support the reckless-driving charge to demonstrate the endangerment element of the operating-while-intoxicated charge. The state conceded the argument, but the court rejected the reasoning as a misunderstanding of Richardson, because one offense required intoxication and the other required the act of reckless driving.
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Opinions Oct. 29, 2015

October 29, 2015
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Southern Indiana Gas and Electric Co. d/b/a Vectren Energy Delivery of Indiana, Inc., Ind. Utility Regulatory
93A02-1502-EX-110
Agency action. Reverses approval of Vectren’s proposal to modify current coal-powered generating stations and request for financial incentives and reimbursement from ratepayers for costs associated with the projects by the Indiana Utility Regulatory Commission. The commission erred in failing to make findings on the factors listed in I.C. 8-1-8.7-3. Remands with instructions for commission to make the required findings.
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Opinions Oct. 28, 2015

October 28, 2015
Indiana Court of Appeals
Andre L. Owens v. State of Indiana (mem. dec.)
49A05-1503-CR-98
Criminal. Affirms Owens’ conviction of Class A misdemeanor trespass, finding the state presented sufficient evidence.
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Opinions Oct. 27, 2015

October 27, 2015
Indiana Court of Appeals
Jonathan E. Powell v. State of Indiana
49A02-1503-CR-135
Criminal. Reverses conviction of Class A misdemeanor criminal trespass. The state failed to prove Powell was on the bar’s property when an off-duty police officer asked him to leave.
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Opinions Oct. 26, 2015

October 26, 2015
Indiana Court of Appeals
Robbie Lomax v. Jennie L. Michael

12A05-1503-CT-124
Civil tort. Reverses final judgment against Lomax in his wrongful death action against Michael, in which the trial court granted partial summary judgment in Michael’s favor based on its conclusion that Lomax does not qualify as a dependent next of kin as required by the General Wrongful Death Statute. A question of fact exists as to whether Lomax is a dependent next of kin to Edward Lomax. Remands for further proceedings.
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Opinions Oct. 23, 2015

October 23, 2015
Indiana Court of Appeals
Russell A. Prosser, Jr. v. State of Indiana (mem. dec.)
50A05-1502-CR-51
Criminal. Affirms convictions for 11 counts, including theft and unauthorized entry of a vehicle, following two separate jury trials. Prosser waived his challenge to a witness’s in-court identification of him, and there is sufficient evidence to support the convictions.
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Opinions Oct. 22, 2015

October 22, 2015
Indiana Court of Appeals
Eric Brazier d/b/a Brazier Painting v. Maple Lane Apartments I, LLC
71A04-1406-CC-278
Civil collection. Affirms judgment in favor of Maple Lane Apartments on Brazier’s lawsuit alleging he had performed more than $60,000 in painting services and had not been paid. The trial court also imposed sanctions against his counsel toward Maple Lane’s attorney fees because his attorney misrepresented the nature of the documents on which Brazier based his entire case.
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Opinions Oct. 21, 2015

October 21, 2015
Indiana Court of Appeals
Loren J. Adams v. Review Board of the Indiana Department of Workforce Development, and F&J Pizza III LLC (mem. dec.)
93A02-1501-EX-16
Agency action. Affirms denial of claim for unemployment benefits.
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Opinions Oct. 19, 2015

October 19, 2015
Indiana Court of Appeals
G.T. v. State of Indiana (mem. dec.)
49A02-1504-JV-239
Juvenile. Affirms restitution order.
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Opinions Oct. 16, 2015

October 16, 2015
Indiana Supreme Court
Robert A. Masters v. Leah Masters
02S04-1504-DR-156
Domestic. Affirms award of attorney fees in a dissolution of marriage case to an arbitrator under the Family Law Arbitration Act. The award of attorney fees in this case is supported by the findings, and Robert Masters failed to show clear error as prescribed by Trial Rule 52(A).
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Opinions Oct. 15, 2015

October 15, 2015
Indiana Supreme Court
In the Matter of: Anonymous
79S00-1508-DI-512
Discipline. Issues private reprimand after finding attorney engaged in misconduct by communicating ex parte with a judge without authorization to do so, a violation of Professional Conduct Rule 3.5(b).
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Opinions Oct. 14, 2015

October 14, 2015
Indiana Court of Appeals
Travis Allen v. State of Indiana
49A05-1410-CR-501
Criminal. Affirms convictions of Class A misdemeanors operating a vehicle while intoxicated and driving with a suspended license, and Class C felony driving without a license. The total days of delay charged to the state in bringing Allen to trial is 363 days, so Allen is not entitled to discharge under Criminal rule 4(C) and the trial court did not abuse its discretion when it denied his motion. Judge Barnes dissents.
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Opinions Oct. 13, 2015

October 13, 2015
Indiana Court of Appeals
Scott A. Criswell v. State of Indiana
02A03-1501-CR-22
Criminal. Reverses denial of Criswell’s motion to suppress a statement given as part of an internal police investigation into his involvement in the break in and theft of items from a home. Remands with instructions to grant the motion to suppress the statement as well as any other evidence that was directly or indirectly derived from the statement.
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Opinions Oct. 9, 2015

October 9, 2015
Indiana Court of Appeals Allen Gray Limited Partnership IV v. Bishop Mumford, Christopher Mumford, Elizabeth B. Mumford, Richardson S. Mumford, Thomas F. Mumford, Jr., and William M. Mumford
26A01-1503-MI-92
Miscellaneous. Affirms summary judgment for the Mumford family. The trial court correctly determined the reservation applied to the surface area of the “drilling unit” and did not restrict the Mumfords from making the reserved wells deeper.
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Opinions Oct. 8, 2015

October 8, 2015
Indiana Court of Appeals
Robert E. Quinn v. State of Indiana
20A03-1503-CR-82
Criminal. Affirms convictions of child molesting and criminal confinement, both Class B felonies. Under the facts and circumstances of this case, the state’s employees acted reasonably in the manner in which they maintained, discovered and tested DNA evidence that led to Quinn’s convictions, thereby establishing the due diligence requirement of I.C. 35-41-4-2(b).
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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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