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Opinions March 25, 2013

March 25, 2013
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Indiana Court of Appeals
Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al.
55A01-1202-CT-53
Civil tort/malpractice. Affirms jury verdict in favor of the hospital, holding that Upham’s counsel failed to request an admonishment and therefore waived the argument that the court should have declared a mistrial because of a prospective juror’s comments that plaintiff’s counsel was motivated by money. There was no abuse of discretion in jury instructions or in the court’s limiting of discovery.  

Ronald G. Arnold and B. Candi Arnold v. Allen Robert Linnemeier and Kathy Sue Linnemeier (NFP)

53A04-1207-PL-368
Civil plenary. Affirms the trial court’s judgment in favor of the Linnemeiers which granted them an easement by prior use and an irrevocable license across the Arnolds’ land for purposes of entering and exiting.

Jesse R. Luckey v. State of Indiana (NFP)
34A04-1208-CR-399
Criminal. Reverses order revoking Luckey’s probation in two underlying cases arising from his convictions for possession of a controlled substance as a Class D felony, possession of marijuana as a Class D felony and possession of paraphernalia as a Class A misdemeanor. Ruled although the evidence was sufficient for the trial court to find probable cause that Luckey had committed the new offenses, it was insufficient to establish the commission of such crimes by preponderance of the evidence.

Aaron Brown v. State of Indiana (NFP)
49A02-1207-CR-546
Criminal. Affirms convictions of Class D felony possession of marijuana and Class A misdemeanor driving with a suspended license. Found the trial court did not abuse its discretion when it admitted the evidence obtained incident to Brown’s arrest.

Alejandro Gomez-Aviles v. State of Indiana (NFP)
49A02-1209-CR-728
Criminal. Affirms convictions of two counts of child molesting, each as a Class A felony; two counts of child molesting, each as a Class C felony; and four counts of sexual misconduct with a minor, each as a Class C felony. Found corpus delicti had been established so the admission of Gomez-Aviles videotaped confession did not constitute a fundamental error. Also ruled Gomez-Aviles did not carry his burden of demonstrating prosecutorial misconduct.

Rev. Carl Z. Liggins and The Board of Trustees of Mt. Olive Missionary Baptist Church, Inc. v. William Bagley, Raymond Gaines, Gregg Merriweather, Stevie Bonds, Curtis Godfre, et al. (NFP)
49A02-1203-CT-184
Civil tort.  Reverses trial court’s order directing Mount Olive Missionary Baptist Church to hold a general meeting to consider the retention of Rev. Liggins. Found the trustees did not fail to follow the procedures set out in the bylaws concerning the renewal or extension of the pastor’s contract because the bylaws did not give a procedure for how to handle a contract renewal or extension.

Jaime A. Herrera v. State of Indiana (NFP)

45A05-1208-PC-440
Post conviction. Affirms denial of Harrera’s petition for post-conviction relief. Ruled that Herrera’s proposed sentencing challenge was meritless and, therefore, he did not demonstrate his appellate counsel was ineffective.

Mark Kevin Liston v. State of Indiana (NFP)
45A05-1207-CR-385
Criminal. Dismisses Liston’s appeal of the trial judge’s order rescinding the referee’s order granting his petition for post-conviction relief. Liston did not request the trial court to certify its order for interlocutory appeal and did not request the Court of Appeals to accept jurisdiction.

Sherry L. Pruitt v. State of Indiana (NFP)

58A01-1206-CR-275
Criminal. Affirms the revocation of Pruitt’s probation and the order that she serve incarcerated the three years remaining on her sentences. Remands for the court to correct a clerical error and enter a modified abstract of judgment that lists both cause numbers under which the revocation was adjudicated.  
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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