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Opinions April 30, 2014

April 30, 2014
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The following decisions were posted after IL deadline Tuesday:
7th Circuit Court of Appeals

United States of America v. James V. Carroll
13-2600
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Criminal. Affirms denial of motion to suppress following Carroll’s guilty plea to one count of possession of child pornography and six counts of sexual exploitation of a child. The information in the detective’s affidavit was sufficient to establish fair probability that the computer or other digital storage devices within Carroll’s home would contain evidence of child pornography or exploitation of a child, despite the fact that the photographs were taken approximately five years earlier.

Indiana Supreme Court
Ernesto Roberto Ramirez v. State of Indiana
45S05-1305-CR-331
Criminal. Affirms denial of Ramirez’s motion for a mistrial. Clarifies precedent that defendants are entitled to a rebuttable presumption of prejudice when they can show by a preponderance of the evidence that an unauthorized, extra-judicial contact or communication with jurors occurred, and that the contact or communication pertained to the matter before the jury. Ramirez failed to prove that a juror’s extraneous contact and communications related to his case.

Wednesday’s opinions
Indiana Court of Appeals

L.C. Neely Drilling, Inc. and Maverick Energy, Inc. v. Hoosier Energy Rural Electrical Cooperative, Inc.
49A02-1305-MI-457
Miscellaneous. Affirms ruling in favor of Hoosier Energy upon the parties’ cross-motions for partial summary judgment on Hoosier Energy’s motion seeking judgment that the lease between Maverick and Hoosier Energy had expired and quieting title in favor of Hoosier Energy.

Austin G. Pittman v. State of Indiana
06A05-1305-CR-243
Criminal. Affirms denial of Pittman’s petition to restrict access to the record of his criminal conviction. Affirms appellate court has jurisdiction over the case and rejects state’s argument that Pittman’s appeal should be dismissed.

Gary Community School Corporation v. Prince Lardydell b/n/f Erma Lardydell
45A03-1306-PL-230
Civil plenary. Affirms judgment in favor of Prince Lardydell by next friend Erma Lardydell and $120,000 in damages after Prince was attacked in the hall of his high school. Declines to second-guess the jury’s decision. Finds no error in the giving of Final Instruction 12 or allowing a former school board member to testify.

In Re the Adoption of L.T.: J.M. and S.M. v. C.T.
49A05-1310-AD-493
Adoption. Reverses order terminating guardianship entered in Hamilton County court. The probate court erroneously granted relief from the guardianship order upon concluding that it was void for lack of subject matter jurisdiction. Orders a hearing on the best interests of the child.

First Response Services, Inc. v. Vincent A. Cullers (Vincent A. Cullers Counterclaim Plaintiff v. First Response Services, Inc. Counterclaim Defendant)
41A01-1305-PL-224
Civil plenary. Affirms denial of attorney fees for First Response Services. Because the contract failed to comply with the requirements of the Home Improvement Contract Act, the company is not entitled to recover attorney fees in its lawsuit seeking payment from Cullers.

Clarenda Love v. Bruce Love (NFP)
32A01-1311-DR-504
Domestic relation. Affirms division of marital property.

Claricea D. Muse v. State of Indiana (NFP)
33A04-1309-CR-472
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Kristin A. Houssain v. State of Indiana (NFP)
89A04-1307-CR-330
Criminal. Affirms on interlocutory appeal the denial of Houssain’s motion to dismiss her forgery and attempting to obtain a controlled substance by fraud charges.

Yosef M. Hajaji v. State of Indiana (NFP)
43A03-1310-CR-407
Criminal. Affirms aggregate three-year sentence for Class D felony domestic battery.

Eric Davis v. State of Indiana (NFP)
49A05-1308-CR-415
Criminal. Affirms convictions of Class D felony intimidation, Class B misdemeanor public intoxication and Class B misdemeanor disorderly conduct.

Dillon W. Grissell v. State of Indiana (NFP)
90A02-1308-CR-737
Criminal. Affirms two convictions of Class C felony burglary.

Neil Short v. State of Indiana (NFP)
32A04-1308-PC-422
Post conviction. Affirms denial of petition for post-conviction relief.

Shannon L. Simons v. State of Indiana (NFP)
07A05-1308-CR-436
Criminal. Affirms revocation of probation and order Simons serve 90 days of her previously suspended sentence.

Alan Ramsey v. State of Indiana (NFP)
71A03-1308-CR-341
Criminal. Affirms convictions of Class C felony child molesting and Class A felony child molesting.

Timothy E. Strowmatt v. Jennifer Smith, Matt Penticuff, Misty Cecil (NFP)
33A01-1310-PL-441
Civil plenary. Affirms dismissal of Strowmatt’s civil rights complaint.

T.W. v. Review Board of the Indiana Department of Workforce Development (NFP)
93A02-1310-EX-871
Agency action. Reverses dismissal of T.W.’s appeal by the Review Board of the Indiana Department of Workforce Development.

Heath Burgess v. State of Indiana (NFP)
79A02-1309-CR-754
Criminal. Affirms aggregate five-year sentence following guilty plea to Class A misdemeanor operating a vehicle while intoxicated and admittance to being a habitual substance offender.

Robin (Bankert) Hall v. Robert H. Bankert (NFP)
06A01-1304-DR-186
Domestic relation. Affirms order disposing of the then-pending issues involving the allocation of extraordinary uninsured medical expenses, tax deductions and the treatment of gratuitous support in a post-dissolution proceeding.

Howard Wilson v. State of Indiana (NFP)
49A05-1308-CR-384
Criminal. Affirms conviction of Class A misdemeanor battery.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline Wednesday. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline Wednesday.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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