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Opinions Dec. 20, 2012

December 20, 2012
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7th Circuit Court of Appeals
Joshua Beller, a minor, by his next friend and mother, Melissa Welch, et al. v. Health and Hospital Corp. of Marion County Ind., d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service
11-3691
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for the defendants on the plaintiffs lawsuit alleging violation of the Emergency Medical Treatment and Active Labor Act by failing to stabilize Welch and her son during an emergency medical situation. Because the Wishard ambulance was operating under the EMS protocol at the time the plaintiffs were in it, the plaintiffs had not come to the Wishard emergency department under the EMTALA, and the plaintiffs’ claim cannot succeed.

United States of America v. James Elliott
11-2766
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Finds the District Court committed no error in finding that Elliott’s burglaries occurred on different occasions for purposes of the ACCA. The burglaries occurred on different days and involved different residences and victims. Under any plausible construction of the statute’s different-occasions language, the burglaries constituted distinct criminal episodes. Reconsideration of the approach that this court adopted in Hudspeth would not lead to a different result on the facts of this case. To the extent that the statute produces results that are perceived as unjust, the problem is one for Congress to fix rather than this court.

Christopher Parish v. City of Elkhart, Indiana, et al.
11-1669
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Rudy Lozano.
Civil. Because the District Court’s rulings improperly limited the introduction of evidence relating to Parish’s innocence, and that evidence was critical to the damages issue, the award of damages cannot stand. The excluded evidence did not impact the jury’s consideration of the liability issue and that issue is not before us on appeal, and therefore a new trial is required only as to the damages issue. See Cobige v. City of Chicago, IL, 651 F.3d 780, 785 (7th Cir. 2011).  Accordingly, the jury’s determination of liability is affirmed, the award of damages is vacated, and the case remanded for a new trial as to the issue of damages only. Circuit Rule 36 shall apply on remand. Costs on appeal are to be taxed against appellees.

Indiana Court of Appeals
Jeffrey Higgenbottom v. State of Indiana (NFP)
49A05-1203-CR-108
Criminal. Affirms conviction of burglary, finding Higgenbottom is a habitual offender, and his 14-year sentence.

M.C.-G. v. M.G. (NFP)
29A02-1110-DR-978
Domestic relation. Dismisses wife’s appeal of the child custody and property division orders for lack of subject matter jurisdiction. Wife’s appeal of the modification order is timely, but the issues raised aren’t supported by a cogent argument. Denies husband’s request for appellate attorney fees.

Otto McGee v. State of Indiana (NFP)
49A02-1205-CR-376
Criminal. Affirms revocation of placement on home detention.

Michael B. Buckner v. State of Indiana (NFP)
36A05-1203-CR-166
Criminal. Affirms sentence for two counts of Class C felony incest.

In Re The Matter of the Adoption of A.S.P.: R.S.P. v. J.C.S. (NFP)

82A04-1205-AD-227
Adoption. Affirms denial of grandfather’s motion to intervene in a proceeding involving the adoption of his grandson.

Ronald Edward Madison v. State of Indiana (NFP)
71A04-1206-CR-332
Criminal. Affirms convictions of Class D felony resisting law enforcement and Class C misdemeanor operator never licensed.

John Chupp v. State of Indiana (NFP)
49A05-1206-CR-328
Criminal. Affirms denial of motion to correct erroneous sentence.

Anthony Anderson v. State of Indiana (NFP)
49A02-1205-CR-429
Criminal. Remands with instructions to rectify clerical errors in Anderson’s abstract of judgment and chronological case summary.

Kevin W. Black v. State of Indiana (NFP)
02A03-1205-CR-209
Criminal. Affirms sentence for Class D felony battery and Class A misdemeanor resisting law enforcement.

The Marion County Sheriff's Department v. Gwendolyn Y. Davis, individually and as Administratrix of the Estate of Anthony J. Robinson, Jr. (NFP)
49A04-1201-CT-14
Civil tort. Affirms denial of summary judgment for the sheriff’s department regarding the estate’s claims, but reverses denial of summary judgment regarding Davis’ individual claims.

Term. of the Parent-Child Rel. of J.M., M.M., A.M., and S.M.: R.M. & H.M. v. The Indiana Dept. of Child Services (NFP)
04A03-1204-JT-184
Juvenile. Affirms involuntary termination of parental rights.

Netiko Jones v. State of Indiana (NFP)
49A05-1205-CR-222
Criminal. Affirms convictions of Class A felony dealing in cocaine within 1,000 feet of a public park, Class B felony possession of cocaine, Class A felony possession of three or more grams of cocaine with intent to deliver and Class A misdemeanor resisting law enforcement.

Joseph B. O'Brien v. State of Indiana (NFP)
08A02-1204-CR-330
Criminal. Affirms conviction of Class D felony operating a vehicle as a habitual traffic violator.
 

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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