Opinions

Opinions Aug. 23, 2016

August 23, 2016

Indiana Supreme Court
Kristy Burnell v. State of Indiana
29S02-1512-CR-707
Criminal. Affirms trial court decision to not terminate license suspension. Holds a refusal to submit to a chemical test occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test. Burnell has the burden of demonstrating the evidence shows her license suspension by the BMV should be overturned, and she did not carry this burden.

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Opinions Aug. 22, 2016

August 22, 2016
Indiana Court of Appeals
Douglas M. Curtis v. State of Indiana
49A02-1512-CR-2293
Criminal. Reverses conviction of Class A misdemeanor criminal trespass. Because the apartment complex where Curtis had been living with his father provided him a 48-hour grace period to remove his property and Curtis was arrested while in the process of gathering his personal belongings, there was insufficient evidence to support the conviction.
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Opinions Aug. 19, 2016

August 19, 2016
Indiana Court of Appeals
Amir Basic and Gerard Arthus v. Numan A. Amouri, Mohamad H. Mohajeri, Mohammad Aslam Chaudhry, Adnan Khan, Imdad Zackariya, Mohammad Sirajuddin, Sarah Shaikh, Aijaz Shaikh, Ismail Al-Ani, et al.
71A03-1510-PL-1820
Civil plenary. Affirms trial court findings that it lacked subject matter jurisdiction, appellants lacked standing and its decision to quash certain subpoenas in a dispute brought against the imam of the Islamic Society of Michiana Inc., by a Amir Basic, a member of the board of directors and trustees, after he was removed. Finds Basic and Gerard Arthus acted in procedural bad faith. Grants appellees’ request for damages and remands to the trial court for a determination of those damages.
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Opinions Aug. 18, 2016

August 18, 2016
Indiana Court of Appeals
J.B. Hunt Transport, Inc., and Terry L. Brown, Jr. v. The Guardianship of Kristen Zak
45A03-1506-CT-670
Civil tort. Affirms jury verdict in favor of the guardianship of Kristen Zak on the guardianship’s negligence claim. Zak’s vehicle slid on snowy conditions on I-65 and crashed into a J.B. Hunt semi that had jackknifed an hour prior. Finds there were multiple questions of fact that needed to be answered by a jury and there is no basis on which to second-guess the jury. There are also no questions of law warranting reversal.
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Opinions Aug. 17, 2016

August 17, 2016
Indiana Court of Appeals
Robert Weathers v. State of Indiana
49A04-1601-CR-3
Criminal. Affirms Level 5 felony possession of a handgun without a license conviction. The trial court did not abuse its discretion in admitting the handgun at trial, which was found after a warrantless inventory search of Weathers’ vehicle after he was stopped and arrested for driving without a license.
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Opinions Aug. 16, 2016

August 16, 2016
Indiana Supreme Court
In Re the Involuntary Termination of the Parent-Child Relationship of R.S., (Minor Child), and R.S. (Father) v. Marion County Department of Child Services and Child Advocates, Inc.
49S04-1606-JT-350
Juvenile. Reverses termination of father’s parental rights. The trial court’s findings do not clearly and convincingly support its conclusion that termination of father’s parental rights is in the best interests of the son.
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Opinions Aug. 15, 2016

August 15, 2016
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. Darrell L. Duncan
15-3485
Appeal from U.S. District Court, Northern District of Indiana, South Bend Division. Judge Robert L. Miller Jr.
Criminal. Holds that a conviction for robbery under the Indiana statute qualifies under the still-valid elements clause of the Armed Career Criminal Act definition of violent felony. Robbery by placing a person in fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony under 18 U.S.C. Section 924(e)(2)(B)(i.)
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Opinions Aug. 12, 2016

August 12, 2016
Indiana Court of Appeals
Bryan Modglin v. State of Indiana (mem. dec.)
18A02-1512-CR-2113
Criminal. Affirms convictions of Class A felony attempted murder, Class C felony battery resulting in serious bodily injury, Class D felony battery resulting in bodily injury and Class A misdemeanor battery.
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Opinions Aug. 11, 2016

August 11, 2016
The following opinions were posted after IL deadline Wednesday:
7th Circuit Court of Appeals

Alphonse D. Owens v. LVNV Funding, LLC; Joshua Birtchman v. LVNV Funding LLC, et al.
15-2044, 15-2082, 15-2109
Appeal from U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Jane Magnus-Stinson.
Civil. Affirms in the three cases the District Court’s grant of the defendant debt collector’s motion to dismiss lawsuits alleging that the act of filing a proof of claim on a stale debt violates the Fair Debt Collection Practices Act. The plaintiffs had not stated claims for relief under the Act. Chief Judge Diane Wood dissents.
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Opinions Aug. 10, 2016

August 10, 2016
Indiana Court of Appeals
Peter Aghimien and Mable Aghimien v. Mark Fox (mem. dec.)
71A03-1602-CT-291
Civil tort. Affirms denial of the Aghimiens’ motion for summary judgment and the grant of Fox’s motion for summary judgment on the Aghimiens’ lawsuit claiming defamation, tortious interference with a business relationship, intentional infliction of emotional distress and loss of consortium.
 

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Opinions Aug. 9, 2016

August 9, 2016
Indiana Court of Appeals
Edgardo A. Henriquez v. State of Indiana
20A04-1510-CR-1841
Criminal. Majority affirms Edgardo A. Henriquez’s conviction and 30-year executed sentence for Class A felony child molesting, finding that he was not harmed by the trial court’s failure to advise him of his earliest and latest possible release dates pursuant to Indiana Code 35-38-1-1(b).Urges the Legislature to revisit the statute which the panel found imposes an impracticable burden on trial courts. Judge John Baker dissents and would affirm the conviction and remand to the trial court to include the statutorily required advisement in a new sentencing order.
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Opinions Aug. 5, 2016

August 5, 2016
Indiana Court of Appeals
Jason Dean Hubbell v. State of Indiana
03A01-1511-PC-1927
Post conviction. Reverses denial of a petition for post-conviction relief. Hubbell was deprived a certified copy of the court record from which to question his former counsel on his claim of ineffective assistance of counsel in his murder conviction. Remands to the post-conviction court with orders to obtain the direct appeal record and permit Hubbell to question witnesses and present arguments with the benefit of a certified Record of Proceedings.
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Opinions Aug. 4, 2016

August 4, 2016
7th Circuit Court of Appeals
Glenn Patrick Bradford v. Richard Brown, superintendent
15-3706
Appeal from U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Civil. Denies Glenn Bradford’s request for a new trial on 1992 murder and arson charges. Bradford had his chance and failed to present reliable evidence that would establish his innocence of the arson and murder. Judge Hamilton dissents with separate opinion, believing the court should order a new trial to test all the relevant evidence.
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Opinions Aug. 3, 2016

August 3, 2016
Indiana Court of Appeals
Lynn K.C. Sines v. State of Indiana (mem. dec.)
91A05-1603-CR-544
Criminal. Affirms denial of Sines’ motion to modify his 10-year sentence.
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Opinions Aug. 2, 2016

August 2, 2016
Indiana Court of Appeals
State of Indiana v. Wallace Irvin Smith, III
45A05-1507-CR-945
Criminal. Affirms grant of Smith’s petition for alternative misdemeanor sentencing. Indiana Code 35-50-2-7(d) (2014) permits the trial court to modify his sentence and the language in Smith’s plea agreement did not preclude it.
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Opinions July 29, 2016

July 29, 2016
Indiana Court of Appeals
William H. Ellis, Sr. v. State of Indiana
02A03-1602-CR-376
Criminal. Reverses denial of petition for credit time not previously awarded by the Department of Correction. The court denied Ellis’ petition without considering whether he had exhausted his administrative remedies. Remands for the post-conviction court to determine this, and if so, to address his petition on the merits.
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Opinions July 28, 2016

July 28, 2016
Indiana Court of Appeals
Anthony J. Wampler v. State of Indiana

14A05-1510-CR-1606
Criminal. Affirms 33-year sentence for two counts of Class B felony burglary and Wampler’s status as a habitual offender. Acknowledges Wampler’s mental health problems, but he has not taken medication from 1995 until this case. Also finds sentence be appropriate given the long-term stalking Wampler has done of the victim and his criminal history. Judge Mathias dissents with opinion.
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Opinions July 27, 2016

July 27, 2016
Indiana Court of Appeals
Lisa R. Harris v. State of Indiana
83A01-1509-CR-1311
Criminal. Reverses denial of Harris’ motion to suppress evidence obtained from a consent search during a seat belt enforcement stop, which led to a Level 6 felony possession of methamphetamine charge. The officer lacked an independent basis of reasonable suspicion justifying inquiry above and beyond the seat belt violation. Remands for further proceedings Judge Najam dissents with opinion.
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Opinions July 26, 2016

July 26, 2016
7th Circuit Court of Appeals
Mikeal G. Cole Jr. v. Carolyn W. Colvin, acting commissioner of Social Security
15-3883
Appeal from U.S. District Court, Northern District of Indiana, Fort Wayne Division. Judge Robert L. Miller Jr.
Civil. Reverses denial of Cole’s application for disability benefits and remands to the Social Security Administration for reconsideration. The administrative law judge’s decision was unreasoned and should not have been affirmed, as it appears she cherry picked the medical record, which is improper.
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Opinions July 25, 2016

July 25, 2016
Indiana Court of Appeals
Darrell Birge and Sandra Birge v. Town of Linden, Indiana
54A01-1509-PL-1495
Civil plenary. Reverses trial court dismissal of the Birges’ nuisance and civil conspiracy suit against the town of Linden for damage to their farm property caused after an independent contractor modified an existing drainage system for municipal purposes. The trial court erred in concluding it was clear on the face of the evidence that the town’s discretionary function immunity applied, that the Birges were barred from seeking damages for inverse condemnation, and that the Birges failed to allege facts supporting a civil conspiracy. Remands for further proceedings.
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Opinions July 22, 2016

July 22, 2016
Indiana Court of Appeals
Santiago Valdez v. State of Indiana

18A02-1509-CR-1514
Criminal. Affirms conviction of Class B felony attempted rape and Class C felony criminal confinement. While a prosecutor’s hint during closing arguments that defense counsel improperly influenced an expert witness constituted prosecutorial misconduct, the trial court’s prompt admonishment prevented Valdez from being placed into grave peril. The trial court made no evidentiary errors. Admonishes Delaware County deputy prosecutor Eric Hoffman regarding ‘wild, baseless accusations of misconduct’ hurled at defense counsel.
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Opinions July 21, 2016

July 21, 2016
Indiana Supreme Court
In the Matter of: Joseph C. Lehman
20S00-1507-DI-431
Discipline. Disbars Lehman for unauthorized practice of law while suspended. Previous sanctions have not deterred him from continuing to engage in the practice of law in defiance of his suspension order, and his repeated violations have exposed the public to the danger of attorney misconduct by him.
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Opinions July 20, 2016

July 20, 2016
Indiana Supreme Court
In the Matter of: Timothy S. Durham
49S00-1212-DI-672
Discipline. Disbars Tim Durham following his conviction on 12 felony counts for securities and wire fraud, 10 of which were upheld on appeal. Finds he violated two Rules of Professional Conduct for “fraudulent looting of funds entrusted to him by investors.”
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Opinions July 19, 2016

July 19, 2016
Indiana Court of Appeals
Jonathan Gibson v. State of Indiana (mem. dec.)
49A05-1601-PC-129
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions July 18, 2016

July 18, 2016
Indiana Court of Appeals
Pinnacle Properties Development Group, LLC v. Sarah Oliver (mem. dec.)
10A01-1512-SC-2143
Small claim. Affirms judgment in favor of Oliver on Pinnacle Properties’ small claim action seeking as damages unpaid rent and an unpaid utility bill, as well as possession of Oliver’s apartment.
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