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Opinions July 25, 2013

July 25, 2013
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7th Circuit Court of Appeals
United States of America v. Jama Mire and Hassan Rafle
12-2792, 12-2793
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms both men’s convictions of one count of conspiracy to possess with intent to distribute cathinone; affirms Mire’s additional convictions of knowingly using or maintaining a place for the purpose of distributing and using cathinone; and possession with intent to distribute a mixture or substance containing cathinone. Rejects claims that that their due process rights were violated because they were not given fair warning that the possession of “khat” may be illegal; and that the District Court erred under Daubert in admitting government expert witness testimony regarding khat plants that were seized at the coffee house and tested for cathinone, a controlled substance. Rejects Mire’s argument that his conviction for conspiracy to distribute khat and his conviction for maintaining a place for the distribution or use of khat violate the Double Jeopardy Clause.

Indiana Court of Appeals
Jason King v. State of Indiana
64A04-1209-CR-464
Criminal. Affirms conviction and 45-year sentence for attempted murder. The trial court did not abuse its discretion in denying King’s motion to suppress evidence regarding his confession.

Farmers Mutual Insurance Company of Grant and Blackford Counties v. M Jewell, LLC, Auditor of Grant County, Indiana and Treasurer of Grant County, Indiana
27A05-1211-MI-593
Miscellaneous. Reverses order denying Farmers Mutual’s petition to set aside a tax deed issued to M Jewell, LLC. The denial of the petition was clearly erroneous because it was based on the conclusion that the auditor’s failure to search his records was, in essence, harmless. Remands with instructions to grant the petition.

Eddie G. Showley, Executor, Estate of Phillip J. Showley v. Tracey Kelsey, Individually and as Successor Personal Representative of the Estate of Sonya Sue Showley
09A04-1301-ES-22
Estate, supervised. Affirms order distributing the wrongful death proceeds to Tracey Kelsey, individually and as successor personal representative of the estate of Sonya Sue Showley. The trial court properly applied the law and thus, did not abuse its discretion by applying Rhode Island statutory law to the distribution of the wrongful death settlement. Judge Brown dissents.

Jason E. Morales v. State of Indiana

82A05-1302-CR-72
Criminal. Affirms denial of petition for placement in the Vanderburgh County Forensic Diversion Program. Concludes that the trial court’s denial of sex offender Morales’ petition was not an abuse of discretion because there was no final administrative decision for the trial court to review and that, even if the program had explicitly rejected Morales, its decision would not have been arbitrary or capricious because Morales was ineligible under the statute. Finally, even assuming solely for argument’s sake that Morales had been eligible under the statute, Indiana counties have the ability to determine the scope of their forensic diversion programs.

Bradley T. Steidle v. State of Indiana (NFP)

12A04-1212-CR-623
Criminal. Reverses conviction of Class A misdemeanor operating while intoxicated and remands with instructions to vacate Steidle’s Class A misdemeanor conviction and sentence and enter a judgment and an appropriate sentence for operating a vehicle while intoxicated as a Class C misdemeanor.

Virgil Pyles v. State of Indiana (NFP)
34A02-1301-CR-94
Criminal. Reverses calculation of the remaining balance of Pyles’ suspended sentence upon revocation of his probation. The trial court is directed to amend its sentencing order on petition to revoke to reflect that as of Nov. 29, 2012, Pyles had 609 days left to serve on his original suspended sentence.

Lorraine V. Kucki, Michael J. Kucki, Michael R. Bradash, Ziese & Sons Excavating, Inc.: Construction Services.; Biesen Excavating, Inc. and V & H Excavating, Inc. v. Jessica Archer (NFP)
45A03-1210-CT-422
Civil tort. Affirms order denying the Kuckis’ and other defendants’ joint motion for summary judgment, contending that the trial court erred in ordering the substitution of a plaintiff with no damages as the real party in interest.

Mark R. Hurst v. State of Indiana (NFP)
64A03-1209-CR-391
Criminal. Affirms convictions of Class C felony robbery and Class D felony criminal confinement.

Na-Son D. Smith v. State of Indiana (NFP)
48A02-1210-CR-872
Criminal. Affirms convictions and sentences for two counts of murder and one count of robbery as a Class A felony.

Donald R. Smitty v. State of Indiana (NFP)
32A05-1212-CR-610
Criminal. Affirms conviction of Class A misdemeanor operating while intoxicated causing endangerment and sentence. Remands for the limited purpose of correcting the record to show that the operating while intoxicated charge is enhanced by the three-year sentence that was imposed in light of the habitual substance-offender finding.

Clarissa Brewer v. State of Indiana (NFP)
49A05-1212-CR-633
Criminal. Affirms two convictions of Class D felony neglect of a dependent. Concludes that the trial court abused its discretion by imposing community service in lieu of fines and costs and by improperly delegating Brewer’s ability to pay fines and costs to the probation department. Remands with instructions.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline.
 

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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