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Opinions March 31, 2014

March 31, 2014
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7th Circuit Court of Appeals
USA v. Randall Causey, 13-1321
Criminal. Affirms Causey’s convictions and 108-month sentence for one count of conspiring to commit wire fraud in violation of 18 U.S.C. 1349 and eight counts of aiding and abetting the commission of, and committing the offenses of, wire fraud in violation of 18 U.S.C. 1343. Ruled that the District Court did not abused its discretion in admitting evidence and that the District Court erred in barring the defense witness from giving expert testimony while allowing the expert testimony by the government witness. Also finds the District Court properly applied two-level sentencing enhancement.   

Indiana Court of Appeals
Debbie Mitchell v. Review Board of the Indiana Department of Workforce Development, and Midwest Mobile Care, Inc.
93A02-1310-EX-856
Agency action. Affirms findings of the Review Board of the Indiana Department of Workforce Development that Mitchell was not entitled to additional unemployment benefits. Mitchell received 26 weeks of unemployment benefits but was denied an extension because she worked four to eight hours a week for another company after losing her full-time job. The Review Board did not err in applying the unambiguous statute defining partial unemployment.

Jeffrey Metzger v. State of Indiana
02A03-1307-CR-295
Criminal. Affirms conviction of indirect contempt of court based on Metzger’s actions in Allen County Jail after a blood draw had been ordered on suspicion of operating while intoxicated. When Metzger approached a deputy with a chair and refused to sit down when ordered, the act was clearly directed against the authority of the court and hindered the execution of the trial court’s warrant. The trial court properly held Metzger in contempt.

Victor W. Goodman and Jacquelyn C. Burke v. Steven L. Serine, Suzanne M. Serine, United States of America Department of the Treasury Internal Revenue Service, Robert J. DeGrazia, et al.
55A01-1304-PL-176
Civil plenary. Vacates summary judgment in favor of Internal Revenue Service in a dispute over a land contract sale for a property in which income tax liens were attached, and remands to the trial court to dismiss Goodman’s complaint for quiet title. Because the property was part of the SeRines’ bankruptcy estate, proper venue for the dispute is the bankruptcy court, even though the bankruptcy case was dismissed.

Dontae M. Clark v. State of Indiana
27A04-1306-CR-269
Criminal. Affirms conviction of Class D felony possession of marijuana, casting aside arguments of fundamental error and Fourth Amendment challenges to seizure and admittance of evidence that was not analyzed by the State Police lab, apparently because the sample was too small. Evidence to convict was sufficient, Judge Cale Bradford wrote. Judge Paul Mathias, in a concurring opinion, wrote that the panel didn’t need to consider Clark’s argument on admitting evidence because it wasn’t preserved for appeal. Judge Rudy R. Pyle III concurred separately, writing to submit the State Police lab policy concerning a minimum quantity for testing be reconsidered.

Dustin Lee Jarrell v. Billie Jo Jarrell
42A01-1308-DR-381
Domestic. Affirms trial court grant of modification of custody order awarding mother sole physical custody of the couple’s child. The court correctly ruled that father acquiesced to mother’s relocation because he waited two years after mother moved 180 miles away to file a motion for custody modification. There is a sufficient change in circumstances to support the custody modification, and the appeals panel declined to reweigh the evidence regarding best interests of the child.

Derrick R. Woods v. State of Indiana (NFP)
45A05-1307-CR-379
Criminal. Affirms conviction of failure to return to lawful detention, a Class D felony.

Michael Kimes v. State of Indiana (NFP)
49A04-1309-CR-440
Criminal. Affirms 30-year sentence, with six years suspended, for conviction of child molesting, as a Class A felony.

Davonta K. Johnson v. State of Indiana (NFP)
20A03-1307-CR-294
Criminal. Affirms 19-year sentence for convictions of one count of burglary and one count of robbery, both as a Class B felonies.

Trenton Bolden v. State of Indiana (NFP)
15A01-1310-CR-469
Criminal. Affirms the revocation of Bolden’s probation.

Charles Gooch v. State of Indiana (NFP)
49A02-1309-PC-781
Post conviction. Affirms denial of Gooch’s petition for post-conviction relief.

Lila Marquez v. Rene Kobler (NFP)

49A02-1306-CT-486
Civil tort. Affirms judgment that Marquez was 100 percent at fault for the accident and that there was no issue for the jury to decide with regard to liability.  

Jewel L. and John E. Johnson v. Brooks Striping, Inc., Inland Western Greensburg Commons LLC, and Inland US Management LLC (NFP)
16A01-1311-CT-476
Civil tort. Affirms summary judgment in favor of Brooks Striping, Inc., Inland Western Greensburg Commons, LLC, and Inland US Management LLC.

Jerry D. White v. State of Indiana (NFP)
20A03-1306-PC-238
Criminal. Affirms denial of White’s petition for post-conviction relief.  

Aadil Ashfaque v. State of Indiana (NFP)
49A02-1308-CR-743
Criminal. Dismisses appeal of trial court’s denial of Ashfaque’s motion to dismiss charges of dealing in a synthetic drug, as a Class D felony; possession of a synthetic drug, as a Class D felony; operating while intoxicated, as a Class A misdemeanor; and operating without a license, as a Class C misdemeanor.

In re the Marriage of: Tasha Bates v. Damon Bates (NFP)
49A02-1306-DR-572
Domestic relation. Affirms denial of mother’s request for an emergency continuance of the final hearing, denial of mother’s post-trial motion to supplement the record with evidence. Also affirms division of martial estate and order that mother pay $10,000 of father’s attorney fees. Remands for the recalculation of child support to include father’s income from inheritance.

Samuel Lewis v. State of Indiana (NFP)
20A03-1309-PC-348
Post conviction. Affirms denial of Lewis’ petition for post-conviction relief.

Tony Dale Wilson v. State of Indiana (NFP)
05A04-1307-CR-369
Criminal. Affirms conviction of child molesting, as a Class C felony, and eight-year sentence, with six years executed and two years suspended to probation.

Terelle Young v. State of Indiana (NFP)
49A02-1308-CR-712
Criminal. Affirms conviction of failure to stop after an accident resulting in personal injury, a Class A misdemeanor.

Dezmont Hogan v. State of Indiana (NFP)
82A01-1310-CR-475
Criminal. Affirms 40-year sentence for convictions of burglary, as a Class A felony; criminal confinement, as a Class B felony; and theft, as a Class D felony.

Ronnie Ervin Major v. State of Indiana (NFP)
45A03-1307-PC-288
Post conviction. Affirms denial of Major’s petition for post-conviction relief.

Zack Hitchings v. State of Indiana (NFP)
49A02-1303-CR-207
Criminal. Affirms eight-year sentence for conviction of robbery, as a Class C felony.

James Edwin Gardner, III v. State of Indiana (NFP)
45A03-1307-CR-259
Criminal. Affirms conviction of arson, a Class B felony.

Robert Whipple v. State of Indiana (NFP)
48A02-1306-CR-537
Criminal. Affirms convictions of two counts child molesting, as Class A felonies, and one count child molesting, as Class C felony.

Michael J. Bermes v. G.K. Cambray & Company, Inc., Gregory K. Cambray d/b/a Cambray & Associates, Inc., and Lauri Massoth (NFP)
35A02-1308-PL-694
Civil plenary. Affirms trial court’s judgment in favor of G.K. Cambray & Co., Inc., Gregory K. Cambray d/b/a Cambray & Associates, Inc., and Lauri Massoth. Finds the trial court did not err in determining that G.K. Cambray held a valid mechanic’s lien against Bermes’ real property and that G.K. Cambray did not commit a deceptive act by failing to comply with the Indiana Home Improvement Contracts Act. Also rules Bermes is not entitled to hold Massoth personally liable.

Tyrone Ice v. State of Indiana (NFP)
49A04-1305-CR-254
Criminal. Affirms convictions for attempted rape and two counts of criminal deviate conduct, all Class B felonies.

Louis P. Fromer v. State of Indiana (NFP)
79A04-1306-CR-272
Criminal. Affirms conviction and 45-year sentence for dealing in a schedule II controlled substance, a Class A felony. However, rules the trial court erred when it entered a separate consecutive five-year sentence based upon the habitual substance offender finding. Remands to trial court with instructions to correct its sentencing order to reflect an enhancement of Fromer’s dealing conviction by five years rather than as a separate sentence. Judge John Baker wrote a separate opinion concurring in part and in result.

Kevin J. Mamon v. State of Indiana (NFP)
30A05-1309-CR-440
Criminal. Affirms conviction and three-year sentence for committing battery by body waste, a Class D felony.

Andrew Lee Barnett v. State of Indiana (NFP)
82A04-1309-CR-444
Criminal. Affirms convictions for attempted armed robbery, a Class B felony; attempted burglary, a Class B felony; intimidation, a Class C felony; carrying a handgun without a license, a Class A misdemeanor; and resisting law enforcement, a Class A misdemeanor.

Kenneth E. Eltzroth v. State of Indiana (NFP)
85A02-1306-CR-571
Criminal. Affirms conviction of Class B felony dealing in controlled substance.

Regina Choice v. State of Indiana (NFP)
02A03-1306-CR-266
Criminal. Affirms two-year sentence for theft as a Class D felony.

James Lohman III v. State of Indiana (NFP)
64A03-1307-CR-258
Criminal. Affirms aggregate 21-year sentence for pleading guilty to Class B felony leaving the scene of an accident causing death and Class C felony operating a motor vehicle while intoxicated causing death.

In the Matter of the Termination of the Parent-Child Relationship of M.F., C.F. v. Indiana Department of Child Services (NFP)
40A01-1309-JT-392
Juvenile. Affirms termination of C.F’s (mother) parental rights over her minor daughter, M.F.

Indiana Supreme Court and the Indiana Tax Court did not post any opinions by IL deadline. The 7th Circuit Court of Appeals did not post any Indiana opinions Monday by IL deadline.
 

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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