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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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