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Opinions Aug. 6, 2014

August 6, 2014
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Indiana Court of Appeals
Kevin Davis v. State of Indiana
49A05-1310-CR-523
Criminal. Affirms conviction of Class A felony robbery resulting in serious bodily injury. L.H.’s statements to police identifying Davis as participating in the beating and robbery were properly admitted, the trial court did not err when it determined two witnesses had made themselves unavailable and therefore allowed their depositions to be admitted into evidence at trial, and there is sufficient evidence supporting the conviction.

Craig Alvey v. State of Indiana

20A04-1310-MI-533
Miscellaneous. Affirms petition for rehearing of the denial of Alvey’s petition to expunge records of his conviction of Class A misdemeanor possession of cocaine. Finds that Alvey does not have to wait three years to file a new petition to expunge his Class A misdemeanor conviction under the new, more liberal standards of I.C. 35-38-8-2 (2014). Affirms in all other respects.

Cherokee Air Products, Inc., Cherokee Family Limited Partnership, Tippmann Industrial Products, Inc., Dennis Tippmann, Sr. Family Partnership, LLP, and Tippmann Farms, LLC v. Bruce E. Buchan
02A05-1312-PL-635
Civil plenary. Affirms on interlocutory appeal the order granting partial summary judgment in favor of Buchan in an action alleging breach of his employment contract and seeking damages. There are no genuine issues of material fact precluding the entry of partial summary judgment on the issue of his entitlement to retire.

Arthur Gutierrez, Jr. v. State of Indiana (NFP)
64A03-1309-CR-365
Criminal. Affirms conviction of Class A felony child molesting.

In the Matter of J.K., A Child in Need of Services, M.K., Father v. Marion County Department of Child Services and Child Advocates, Inc. (NFP)
49A02-1312-JC-1008
Juvenile. Affirms adjudication that J.K. is a child in need of services.

Jeffery A. Foster v. State of Indiana (NFP)
14A01-1311-CR-522
Criminal. Affirms conviction of Class A misdemeanor battery resulting in bodily injury and imposition of $120 in costs and fees. Remands for hearing to assess Foster’s ability to pay an additional $48 in other fees.

Daniel Utterback v. State of Indiana (NFP)
34A02-1312-CR-1021
Criminal. Affirms seven-year sentence for Class C felony child molesting.

The Indiana Supreme Court and Tax Court released no opinions prior to IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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