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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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