Opinions Feb. 13, 2013

February 13, 2013
7th Circuit Court of Appeals
United States of America v. Jesus Uribe
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.

Opinions Feb. 11, 2013

February 11, 2013
Indiana Court of Appeals
Michael Gray v. State of Indiana
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.

Opinions Feb. 8, 2013

February 8, 2013
Indiana Court of Appeals
Billy Russell v. State of Indiana
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.


Opinions Feb. 7, 2013

February 7, 2013
7th Circuit Court of Appeals
Jurijus Kadamovas v. Michael Stevens, et al.
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.

Opinions Feb. 6, 2013

February 6, 2013
Indiana Court of Appeals
Walter E. Smith, Jr. v. State of Indiana
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.


Opinions Feb. 5, 2013

February 5, 2013
Indiana Court of Appeals
Ignacio Perez v. State of Indiana
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.

Opinions Feb. 4, 2013

February 4, 2013
Indiana Court of Appeals
Connie S. Landers v. Wabash Center, Inc.
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.

Opinions Feb. 1, 2013

February 1, 2013
7th Circuit Court of Appeals
Eugene Devbrow v. Dr. Eke Kalu, et al.
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.


Opinions Jan. 31, 2013

January 31, 2013
Indiana Court of Appeals
Mark S. Weinberger, M.D., et al. v. Gloria Gill
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.


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.
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.


Opinions Jan. 29, 2013

January 29, 2013
Indiana Court of Appeals
John Alden v. State of Indiana
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.


Opinions Jan. 25, 2013

January 25, 2013
Indiana Court of Appeals
David Delagrange v. State of Indiana
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.

Opinions Jan. 24, 2013

January 24, 2013
Indiana Court of Appeals
Danny Boling v. State of Indiana
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.

Opinions Jan. 23, 2013

January 23, 2013
7th Circuit Court of Appeals
John Doe v. Prosecutor, Marion County, Indiana
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.

Opinions Jan. 22, 2013

January 22, 2013
Indiana Court of Appeals
Lula L. Jenkins, et al. v. South Bend Community School Corp.
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.

Opinions Jan. 18, 2013

January 18, 2013
7th Circuit Court of Appeals
Linda K. Roddy v. Michael J. Astrue, Commissioner of Social Security
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.

Opinions Jan. 17, 2013

January 17, 2013
Indiana Court of Appeals
Daniel Brewington v. State of Indiana
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.

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
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.

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
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.

Opinions Jan. 14, 2013

January 14, 2013
Indiana Court of Appeals
Deantoine M. Harris v. State of Indiana (NFP)
Criminal. Affirms conviction of Class B felony burglary and adjudication as a habitual offender.

Opinions Jan. 11, 2013

January 11, 2013
Indiana Court of Appeals
Dejuan T. Lowe v. State of Indiana (NFP)
Criminal. Dismisses as untimely Lowe’s appeal of sentence following guilty pleas to multiple felony charges of burglary and attempted burglary.

Opinions Jan. 10, 2013

January 10, 2013
Indiana Supreme Court
Andre Gonzalez v. State of Indiana
Criminal. Reverses denial of petition to remove the lifetime registration requirement and remands for further proceedings. Finds the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of a lifetime registration requirement for Gonzalez, whose requirement to register for life was added while he was completing the 10-year required registration as a sex offender that was in place at the time due to his child solicitation conviction. Justice Rucker concurs in result.

Opinions Jan. 9, 2013

January 9, 2013
7th Circuit Court of Appeals
United States of America v. Michael D. Weir
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore denied. Weir complained that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop.


Opinions Jan. 8, 2013

January 8, 2013
7th Circuit Court of Appeals
West Bend Mutual Insurance Co. v. Arbor Homes LLC
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Tim A Baker. Affirms District Court ruling in favor of West Bend Mutual Insurance that it has no duty to defend or indemnify Arbor Homes. Arbor Homes agreed to a settlement with homeowners without obtaining the prior consent of West Bend after raw sewage backed up into their brand new home.

Opinions Jan. 7, 2013

January 7, 2013
Indiana Court of Appeals
Term. of the Parent-Child Rel. of: C.A. & Z.A. (Minor Children), and H.A. (Father) v. The Indiana Dept. of Child Services (NFP)
Juvenile. Affirms termination of father’s parental rights.
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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.