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Opinions March 8, 2012

March 8, 2012
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7th Circuit Court of Appeals
U.S.A v. Marlon K. Spears
No. 10-3338
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms denial of motion to suppress evidence, finding that enough probable cause existed to justify a search warrant that led to a man’s convictions on drug charges.

Indiana Supreme Court
Keith Hoglund v. State of Indiana
No. 90S02-1105-CR-294
Criminal. Affirms trial court judgment that found sufficient evidence to support two Class A felony child molesting convictions and a 50-year sentence. Holds that the Indiana Rules of Evidence do not allow for “vouching testimony” in child sex abuse cases and that past caselaw does not create an exception.


Indiana Court of Appeals
Term. of the Parent-Child Rel. of K.E., and T.E. and J.E., T.E. and J.E. v. Indiana Dept. of Child Services
No. 20A05-1104-JT-206
Parental termination. Reverses and remands parental termination case, finding that trial court didn’t comply with Indiana Code 31-35-2-4(b)(2)(A) before involuntary terminating the parental rights.

United Brotherhood of Carpenters and Joiners of America, Local Union No. 2371, Official Bargaining Agent, et al. v. Merchandising Equipment Group, Div. of MEG Manufacturing Corp., et al.
33A05-1107-CP-345
Civil plenary. Affirms trial court’s decision to grant defendant’s Trial Rule 41(E) motion to dismiss for failure to prosecute after 18 years, finding the court didn’t abuse its discretion.

Pamela J. Hensley v. State of Indiana
63A01-1105-CR-195
Criminal. Reverses trial court’s judgment denying motion to suppress evidence seized during a home search, finding that the probation search was not justified under the Fourth Amendment because it wasn’t a valid probation search but more resembled an investigatory search.

Gladys E. Curry and Thomas Curry v. D.A.L.L. Anointed, Inc.
45A04-1106-CT-290
Civil tort. Affirms trial court’s judgment dismissing complaint for injuries and loss of consortium against D.A.L.L. Anointed, finding the lower court did not err in holding it lacked subject matter jurisdiction based on the Indiana Worker’s Compensation Act.

Guardianship of M.A.M.: D.L.M. v. J.G. (NFP)
71A03-1108-GU-365
Guardianship. Reverses trial court’s order denying father’s petition to terminate maternal grandfather’s guardianship, finding prima facie error because of an existing power of attorney the father had in place while he was deployed.

Donnell Caldwell v. State of Indiana (NFP)
45A05-1108-CR-405
Criminal. Affirms six-year sentence imposed by trial court following a Class C felony criminal recklessness conviction, finding the trial court didn’t abuse its discretion in sentencing him and the sentence is not inappropriate.
    
Lynnette A. Wire v. State of Indiana (NFP)
87A05-1106-CR-410
Criminal. Affirms in part and reverses in part a drunken driving case, finding the evidence is sufficient to sustain a Class C infraction for driving left of center and a Class C misdemeanor conviction of operating a vehicle with a blood alcohol content between 0.08 and 0.15. Remands to vacate conviction of Class C misdemeanor operating while intoxicated.

Term. of the Parent-Child Rel. of R.H. and D.H., D.H. v. Indiana Dept. of Child Svcs. and Lake County CASA (NFP)
45A03-1107-JT-339
Parental termination. Affirms trial court’s involuntary termination of mother’s parental rights, finding evidence supported the juvenile court’s judgment.

Jeffery Haugh v. State of Indiana (NFP)
45A03-1106-CR-276
Criminal. Affirms denial of a motion to withdraw Haugh’s guilty plea in a case involving his conviction of Class D felony failure to notify authorities and moving a body from the scene. Finds the trial court didn’t err and that the sentence is appropriate.

William Estell v. State of Indiana (NFP)
20A03-1109-CR-423
Criminal. Affirms man’s three-year sentence following a conviction of Class D felony escape, finding trial court properly denied motion for a continuance before the sentencing.

Russell A. Prosser, Jr. v. State of Indiana (NFP)
59A01-1107-CR-346
Criminal. Reverses trial court on permitting state to elicit testimony from child-molesting victim’s case manager substantiating the molestation claim. Remands for a new trial.

Richard J. Charlton v. State of Indiana (NFP)
02A03-1108-CR-397
Criminal. Affirms Class B felony rape conviction, finding evidence was sufficient and trial court didn’t abuse its discretion by limiting evidence of sexual history between Richard Charlton and victim.
 
David S. Stover v. State of Indiana (NFP)
03A01-1109-CR-398
Criminal. Affirms Class A misdemeanor conviction of criminal conversation and one-year sentence suspended to probation, finding evidence was sufficient.

James R. Lockhart, Jr. v. Lisa (Lockhart) Guyer (NFP)
29A02-1103-DR-208
Domestic relation. On petition for rehearing, appellate court revises its Dec. 11, 2011, opinion in same case and removes the citation to Indiana Code 34-52-1-1(b) and instead inserts citation to Indiana Code 31-15-10-1. Affirms previous decision in all other regards.

The Indiana Tax Court had no opinions at IL deadline.
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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