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Opinions Nov. 10, 2011

November 10, 2011
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The following Indiana Tax Court opinion was posted after IL deadline Wednesday:
Maurice O. Fuller and Craig L. Fuller v. Cass County Assessor (NFP)
49T10-1011-TA-68
Tax. Affirms the final determination of the Indiana Board of Tax Review that Maurice Fuller did not establish that he was entitled to the homestead credit, the homestead standard deduction or the mortgage deduction for the 2007-pay-2008 period. Denies Fuller’s claim for fees and costs.

Thursday’s opinions
7th Circuit Court of Appeals

United States of America v. Dale Russell
10-2259
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms Dale Russell’s convictions of producing sexually explicit photographs of his minor daughters, which later crossed international boundaries, and his 38-year prison sentence. Russell argued that the District Court erred in allowing one of his daughters to testify that he had touched her inappropriately one to two years before he took the photographs charged in this case; in excluding from evidence a number of photography books from his collection containing photographs of nude families and children, as well as the proffered testimony of an expert concerning the practice of nudism; and instructing the jury that evidence of a defendant’s flight from prosecution could be considered as evidence of his consciousness of guilt. Judge Gottschall concurs in a separate opinion.

Krysten A. Overly v. KeyBank National Association, et al.
10-2705
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment for KeyBank on Overly’s suit for gender discrimination and retaliation. There are no disputed issues of genuine fact to Overly’s claims.

Gregory L. Payne v. Richard Brown, superintendent, Wabash Valley Correctional Facility
10-1869
U.S. District Court, Southern District of Indiana, Terre Haute Division, Chief Judge Richard L. Young.
Civil. Affirms 50-year sentence following guilty plea to four felony charges related to raping a teen. Concludes the state court’s decision in Payne’s case regarding the appropriateness of his sentence was contrary to clearly established federal law as determined by the Supreme Court of the United States, but Payne knew that his time in prison could be 50 years or more with consecutive sentences.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Anthony H. Dye v. State of Indiana
20A04-1011-CR-728
Criminal. Affirms 30-year sentence, which was enhanced after a finding that Dye is a habitual offender, following Dye’s guilty plea to Class B felony unlawful possession of a firearm by a serious violent felon. The trial court did not err in denying Dye’s motion to dismiss the habitual offender charge. Although the two convictions arose out of the same res gestae, it did not constitute an impermissible double enhancement. Affirms in all other respects. Judge Melissa May dissents.

Jai Cook v. Atlanta, Indiana Town Council
29A02-1105-MI-410
Miscellaneous. Reverses denial of Cook’s petition for judicial review and writ of mandamus. Concludes that Indiana Code 36-8-3-4(m) does not permit a town to terminate the employment of a town marshal in contravention of the express language of I.C. 36-5-7-3 related to the termination or suspension of town marshals specifically. Remands for further proceedings.

In the Matter of Commitment of M.E. v. V.A. Medical Center
49A04-1102-MH-63
Mental health. Affirms order of regular commitment entered by the trial court. M.E. has not established that the trial court committed fundamental error. Judge Bailey concurs in result.

Tommy Britt v. State of Indiana (NFP)
13A01-1012-CR-682
Criminal. Affirms conviction of Class B felony arson.

David J. Johnson v. Kira Johnson Bower (NFP)
54A04-1102-DR-108
Domestic relation. Reverses denial of David Johnson’s motion to modify custody.

In Re the Marriage of: Leigh Sewell v. Lois Sewell (NFP)
53A05-1103-DR-272
Domestic relation. Affirms order that Leigh Sewell receive $140,000 from the TIAA-CREF retirement account of Lois Sewell and no amount of the remainder of the funds in the account.

Wayne Neal Cavanaugh v. State of Indiana (NFP)
05A05-1105-CR-236
Criminal. Affirms finding Cavanaugh violated the terms of his probation and the sentence imposed following the revocation of probation.

David Dunlap v. State of Indiana (NFP)
49A02-1104-CR-333
Criminal. Affirms sentence following guilty plea to seven counts of Class B felony robbery.

Miriam M. Rutherford v. State of Indiana (NFP)
34A05-1106-CR-293
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Willie Myles, Jr. v. State of Indiana (NFP)
52A02-1011-CR-1315
Criminal. Affirms sentence following guilty plea to Class B felony dealing in cocaine.

Term. of Parent-Child Rel. of C.T. and J.D.; D.T. v. Indiana Dept. of Child Services (NFP)
56A03-1103-JT-111
Juvenile. Reverses involuntary termination of parental rights and remands with instructions that the trial court enter additional findings to support its judgment.

Johnny Ray Foster v. State of Indiana (NFP)
81A01-1103-CR-157
Criminal. Affirms convictions of Class B felony burglary, Class C felony burglary, Class D felony theft and Class D felony criminal gang activity, but reverses sentence and remands with instructions to correct the sentencing order.

In the Matter of the Term. of the Parent-Child Rel. of V.H.; V.H. v. The Indiana Dept. of Child Svcs. (NFP)

57A03-1103-JT-141
Juvenile. Affirms involuntary termination of parental rights.

Vassil Marinov and Venetka Marinov v. Wake Robin Estates II Homeowner's Association, Inc. (NFP)
79A02-1104-SC-299
Small claim. Affirms judgment against the Marinovs for homeowner’s association dues and attorney fees.

State of Indiana and the Metropolitan Drug Task Force v. Joseph Ferguson (NFP)
49A05-1106-MI-271
Miscellaneous. Affirms decision by the trial court to exclude the state’s witnesses and exhibits.

Dale D. Wing, Jr. v. State of Indiana (NFP)
20A04-1103-CR-164
Criminal. Reverses denial of petition for jail credit time.

In the Matter of the Term. of the Parent-Child Rel. of S.S. and D.S.; Do.S. v. Indiana Dept. of Child Svcs. (NFP)

03A05-1102-JT-101
Juvenile. Affirms involuntary termination of parental rights.

N.B. v. State of Indiana (NFP)
49A02-1101-JV-121
Juvenile. Affirms determination N.B. is a delinquent child for committing what would be Class A felony arson if committed by an adult.

Joseph Fairrow v. State of Indiana (NFP)
49A05-1012-CR-765
Criminal. Grants rehearing to clarify that a tape recording of the incident involving Fairrow was considered in rendering the appellate court’s decision.

Joseph A. Geesy v. April L. Geesy (NFP)
68A05-1106-RS-330
Reciprocal support. Reverses finding that Joseph Geesy was in contempt for failing to pay child support.

Derek J. Jones v. State of Indiana (NFP)
20A03-1103-CR-95
Criminal. Affirms convictions of various child molesting and other related charges. Vacates trial court’s 40-year sentence for Class C felony child molesting and remands for the trial court to enter a six-year sentence on that count to run consecutively to the sentences for the convictions related to the other victims, for an aggregate sentence of 69 years.

William C. Davis v. State of Indiana (NFP)
65A01-1004-PC-208
Post conviction. Affirms denial of petition for post-conviction relief and remands for specific findings as to the remaining issues as to which no specific findings were made.

Dwight A. Sanaker v. Delaware Advancement Corp. d/b/a Horizon Convention Center (NFP)
18A05-1104-CT-154
Civil tort. Reverses summary judgment for Horizon Convention Center in a negligence case. Remands for further proceedings.

Michael Henderson v. State of Indiana (NFP)
49A02-1102-CR-108
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct and reverses conviction of Class B misdemeanor public intoxication.

Craig S. Alvey v. Forest River Inc. (NFP)
20A03-1105-PL-216
Civil plenary. Affirms partial grant of summary judgment for Forest River in an employment contract dispute.

Indiana Tax Court had posted no opinions at 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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