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Opinions June 28, 2013

June 28, 2013
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Indiana Supreme Court
Brad W. Passwater v. State of Indiana
48S05-1210-PC-583
Post conviction. Affirms post-conviction court denial of Passwater’s petition for relief. In the decision, the court reconsiders the instructions it approved in Georgopuls v. State, 735 N.E. 2d 1138, 1143 n.3 (Ind. 2000), for juries faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill. The court concluded the instruction provided by the Indiana Pattern Jury Instruction 11.20 is better and approved its use.

Valentin Escobedo v. State of Indiana
71S03-1306-CR-455
Criminal. Affirms aggregate term of 53 years for convictions of battery, a Class A felony and neglect of a dependent, a Class D felony. The court disapproves of giving consideration of a community’s outrage in the determination or review of a criminal sentence. However, the court does agree with the ultimate conclusion of the Court of Appeals that the sentence imposed by the trial court was appropriate.

In Re Mandate of Funds for Center Township of Marion County Small Claims Court Order for Mandate and Mandate of Funds
49S00-1207-MF-420
Mandate for funds. Affirms special judge’s decree approving renovations, additional staff and prohibiting relocation of the small claims court as had been sought by the Center Township trustee and board. Justices conclude the record is replete with evidence that moving the court from its present location poses a clear and present danger to access to justice for the litigants it serves, and that maintaining and upgrading the Court in its present location is reasonably necessary to preserve that access. Orders the township trustee to relinquish control over court functions, noting authority over its employees and its financial operations shall be vested solely in the court.

Indiana Court of Appeals
Indiana Horse Racing Commission v. Edmund W. Martin, Jr.
49A02-1206-PL-512
Civil plenary. Reverses trial court order setting aside and vacating an exclusion order issued by the Indiana Horse Racing Commission against Indiana Thoroughbred Owners and Breeders Association director Edmund Martin Jr., and remands for reinstatement of the order. The court held that the exclusion order was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and Indiana Code 4-31-6-1 and Rule 5.5-1-1(a) required him to be licensed as an active participant in the group’s activities at Indiana pari-mutuel horse racetracks.

Shannon Robinson and Bryan Robinson v. Erie Insurance Exchange
49A02-1211-PL-908
Civil plenary. Reverses summary judgment in favor of Erie Insurance Exchange, holding that a hit-and-run driver was uninsured as a matter of law. Holds that summary judgment instead should have been granted to plaintiffs who sued over denial of coverage in an accident in which their vehicle was totaled but there were no bodily injuries.

Calvin McKeller v. State of Indiana (NFP)
49A02-1209-CR-714
Criminal. Affirms conviction after jury trial of Class B felony robbery.

John P. Schaub v. The Estate of Edward G. Schaub and David Schaub, Personal Representative (NFP)
54A01-1301-PL-11
Civil plenary. Reverses damage award of $12,000. Finds the estate did not meet the burden of proof in proving the elements of a replevin claim. The estate failed to present evidence relative to the value of the recreational vehicle on the date that the possession by John Schaub became wrongful.

Larry G. Brown v. State of Indiana (NFP)
49A2-1208-CR-657
Criminal. Affirms Brown’s convictions and sentences for two counts of Class A felony child molesting.

Christopher Gross v. State of Indiana (NFP)
75A04-1210-CR-647
Criminal. Affirms Gross’ sentence of 30 months of incarceration following his conviction of Class D felony possession of a controlled substance.

Gregory D. Swagger v. State of Indiana (NFP)
90A02-1212-CR-1018
Criminal. Affirms trial court was statutorily authorized to revoke Swagger’s probation and order him to serve the rest of his four-year sentence in the Department of Correction.

Robert J. Lambright, Shirley A. Lambright, and Dutch Land, Inc. a/k/a Dutchland, Inc. v. Dawn M. Gregory, as Guardian for Donna Lee (NFP)
44A04-1211-CC-589
Civil collection. Reverses the grant of summary judgment and remands for further proceedings. Holds the trial court erred by considering a letter from a certified public account that was not properly part of the designated evidence and that there is a genuine issue of material fact as to whether the lenders waived or partially waived enforcement of the penalty provisions.   

Brandon Shane Fitch v. State of Indiana (NFP)
27A05-1209-CR-481
Criminal. Affirms convictions of five counts of child molesting, each as a Class C felony.
 
David Gibbs v. State of Indiana (NFP)
49A05-1208-CR-406
Criminal. Affirms conviction of arson as a Class B felony.
 
Tony Wombels v. State of Indiana (NFP)
49A05-1212-CR-652
Criminal. Affirms conviction of carjacking, a Class B felony.

Santos Vasquez v. State of Indiana (NFP)
49A04-1301-CR-1
Criminal. Affirms conviction of burglary as a class B felony.  

Layne M. Jefferson v. State of Indiana (NFP)
48A02-1211-CR-952
Criminal. Affirms sentence following guilty plea to theft as a Class D felony. Concludes the sentence the trial court imposed – three years in the Indiana Department of Correction with one year executed and to be served at a work release facility, and two years suspended to supervised probation – is specifically tailored with Jefferson’s particular history and rehabilitative issue in mind.  

Daniel Drake v. State of Indiana (NFP)
49A02-1212-CR-972
Criminal. Affirms conviction of public intoxication, a Class B misdemeanor.

Gersh Zavodnik v. Michela Rinaldi, et al. (NFP)
49A05-1211-CT-595
Civil tort. Affirms trial court’s dismissal of Zavodnik’s case against Rinaldi pursuant to Indiana Trial Rule 41(E).

The Paternity of P.A.B.; K.B. v. J.L. (NFP)
15A04-1210-GU-518
Guardianship. Affirms trial court’s order terminating guardianship and granting motion for change of custody to the father. Finds the grandmother failed to prove by clear and convincing evidence that P.A.B.’s interests were substantially and significantly served by continued placement with her.

State of Indiana v. Harley Perkins (NFP)
48A02-1210-CR-823
Criminal. Affirms the trial court’s order granting a mistrial and dismissing the charges against Perkins.

Heather Renae Ingle v. State of Indiana (NFP)
29A02-1211-CR-901
Criminal. Affirms Ingle’s convictions of Class A misdemeanor operating while intoxicated endangering a person, Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct.

Re: Termination of the Parent-Child Relationship of J.W,. and K.S. v. Indiana Department of Child Services (NFP)
65A01-1211-JT-535
Juvenile. Affirms termination of father’s parental rights.

Marquis Wilcox v. State of Indiana (NFP)
49A04-1209-CR-456
Criminal. Affirms Wilcox’s convictions on four counts of Class A felony child molesting.   

Terrance L. Walton v. State of Indiana (NFP)
02A05-1210-CR-518
Criminal. Affirms convictions of Class C felony carrying a handgun without a license and Class A misdemeanor operating while intoxicated endangering a person.

Jarrell Outlaw v. State of Indiana (NFP)
49A04-1210-CR-521
Criminal. Affirms convictions of Class A misdemeanor auto theft and Class A misdemeanor resisting law enforcement. Also affirms trial court’s order Outlaw pay $166 in court cost.

Indiana Tax Court
Geoffrey Odle, Personal Representative of the Estate of Floyd L. Odle, Deceased v. Indiana Dept. of State Revenue
49T10-1210-TA-61
Tax. Affirms probate court ruling affirming a denial of a tax refund, holding that beneficiaries of the estate – nephews, great-nieces and great-nephews of a childless couple – were properly classified as Class B and Class C transferees subject to taxation at a higher rate than Class A transferees.

The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.


 

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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