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Opinions Jan. 31, 2013

January 31, 2013
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Indiana Court of Appeals
Mark S. Weinberger, M.D., et al. v. Gloria Gill
45A05-1203-CT-107
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.

Brian Kendrick v. State of Indiana

49A05-1206-CR-314
Criminal. Affirms sentence on remand of 53-years for Class A felony attempted murder, Class B felony robbery and Class A misdemeanor carrying a handgun without a license. Even though Kendrick’s sentence for Class A felony attempted murder increased, his aggregate sentence did not change.

Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc.

82A01-1206-CT-249
Civil tort. Affirms portion of judgment that held fraudulent concealment could operate to toll the Wrongful Death Act’s two-year limitations period, but reverses the court’s conclusion that the plaintiffs had only a reasonable time in which to commence their wrongful death action. The plaintiffs have two years after the concealment is or should have been discovered with reasonable diligence in which to file their claims. Remands for continuation of the underlying litigation.

Paul D. Edwards v. Zobeida E. Bonilla-Vega
53A05-1203-DR-163
Domestic relation. Affirms distribution of marital assets. Because a chose in action is a property right, the trial court did not abuse its discretion when it included the husband’s settlement with a former employer in the marital pot.

In Re: The Paternity of A.S.: Melissa Slansky v. Mary Doffin-Syler, and Bradley Howell

64A03-1204-JP-171
Juvenile. Reverses order awarding custody of M.S.’s daughter to the maternal grandmother M.D. The trial court’s judgment isn’t supported by clear and convincing evidence. The trial court shall determine the details of the father’s visitation and determine what, if any, visitation rights are due to the grandmother.

Henry Wagler, Barb Wagler and Henry and Barb Wagler, LP v. Fort Wayne-Allen County Department of Health

02A03-1206-PL-269
Civil plenary. Affirms summary judgment in favor of the health department on its claim that the Waglers were required to obtain a construction permit from the department prior to installing their septic systems. Rejects the Waglers’ statutory exemption argument, finding the statute is inapplicable.

Reuban L. Strong, Jr. v. State of Indiana (NFP)
84A01-1205-CR-235
Criminal. Affirms revocation of placement in work release.

Joseph J. Rheubottom, Jr. v. State of Indiana (NFP)
84A01-1205-CR-244
Criminal. Affirms sentence following guilty plea of Class B felony neglect of a dependent.

Bernard Carter, Prosecuting Attorney, Lake County, John Buncich, Sheriff of Lake County, and Indiana Dept. of Correction v. Tim J. Hurd (NFP)
45A04-1206-PL-302
Civil plenary. Affirms grant of injunction enjoining the Department of Correction, Lake County sheriff and Lake County prosecutor from requiring Hurd to continue registering as a sex offender.

Schwala M. Royal v. State of Indiana (NFP)

02A03-1206-CR-292
Criminal. Affirms conviction and sentence for Class D felony prostitution as well as revocation of probation.

In Re the Termination of the Parent-Child Rel. of N.W. and D.W. v. Indiana Department of Child Services (NFP)
49A02-1206-JT-480
Juvenile. Affirms involuntary termination of parental rights.

Marvin Willis v. State of Indiana (NFP)

82A01-1206-CR-273
Criminal. Affirms two convictions of Class A misdemeanor driving while suspended.

Steve Pigg v. State of Indiana (NFP)
52A05-1205-CR-318
Criminal. Affirms denial of motion to correct erroneous sentence.

Michael A. O'Brien v. State of Indiana (NFP)

65A01-1205-CR-220
Criminal. Affirms conviction of Class B felony attempted rape.

Brian Buffington v. State of Indiana (NFP)
45A05-1206-CR-297
Criminal. Affirms conviction of Class A felony robbery.

In Re the Involuntary Termination of the Parent-Child Rel. of S.F.; C.P. v. The Indiana Dept. of Child Services (NFP)

02A03-1206-JT-275
Juvenile. Affirms involuntary termination of parental rights.

Edmond MIller v. State of Indiana (NFP)
49A02-1108-CR-721
Criminal. Reverses conviction of Class B misdemeanor disorderly conduct.

Joey Saylor v. State of Indiana (NFP)
58A01-1206-CR-269
Criminal. Affirms order revoking probation and order that Saylor serve remaining two years of previously suspended sentence.

Richard Keith Lazur v. State of Indiana (NFP)
45A04-1207-CR-358
Criminal. Affirms conviction of Class D felony attempted residential entry.

Jovan Fitzhugh v. State of Indiana (NFP)
02A03-1206-CR-255
Criminal. Affirms conviction of Class B felony sexual misconduct with a minor and orders the trial court to vacate the Class C felony sexual misconduct with a minor conviction.

Melvin Sanders v. State of Indiana (NFP)

02A03-1206-CR-262
Criminal. Affirms 60-year sentence for murder.

Dustin L. Grissom v. State of Indiana (NFP)

11A01-1207-CR-301
Criminal. Affirms sentence for Class C felony battery resulting in bodily injury to a pregnant woman and three counts of Class A misdemeanor domestic battery.

Darrol Fox v. State of Indiana (NFP)

49A02-1206-CR-475
Criminal. Affirms denial of motion to suppress evidence.

Keith A. Harlow v. State of Indiana (NFP)

06A01-1206-PC-296
Post conviction. Affirms denial of petition for post-conviction relief.

Torrey Pargo v. State of Indiana (NFP)
49A05-1207-CR-351
Criminal. Affirms sentence for Class D felony intimidation.

Toby Webster v. State of Indiana (NFP)
49A02-1206-CR-522
Criminal. Affirms conviction of Class D felony attempted auto theft and adjudication as a habitual offender.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of V.M. and M.A. v. Indiana Department of Child Services (NFP)

45A03-1205-JT-221
Juvenile. Affirms termination of parental rights.

French Tibbs v. State of Indiana (NFP)

49A02-1205-CR-438
Criminal. Affirms convictions of Class A misdemeanors resisting law enforcement and possession of marijuana.

The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline. The Indiana Supreme Court and Tax Court did not post any decisions by IL deadline.
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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