Opinions Nov. 13, 2013

November 13, 2013
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Indiana Supreme Court
The following opinions were posted after IL deadline Tuesday
Jamar Washington v. State of Indiana
Criminal. Affirms trial court jury instruction regarding defense of another as the correct statement of law, holding that Washington’s tendered instruction that the court declined to use was not required. Remands for correction of the sentencing abstract to reflect that Washington was convicted of resisting law enforcement as a Class A misdemeanor rather than as a Class D felony.  

Billy Russell v. State of Indiana
Criminal. Affirms convictions for murder and Class B felony possession of a firearm by a serious violent felon. Finds the trial court did not err in refusing to give Russell’s tendered jury instruction assessing his claim of self-defense. Concludes that partially bifurcating the trial did not prejudice Russell.

Today's opinions
Indiana Supreme Court

Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and the Common Council of the City of Logansport
Civil plenary. Affirms trial court dismissal of a suit challenging the city’s planned public-private partnership to convert a coal-fired power plant to generate electricity by burning refuse. Justices held that the Indiana Public-Private Agreements statute does not require a local legislative body to adopt an enabling statute before it may issue requests for proposals or begin contract negotiations.

Indiana Court of Appeals
Robert Kuntz, Kunodu, Inc., and B-K Interests, LLC v. EVI, LLC
Civil plenary. Affirms order granting preliminary injunction based on trial court’s finding that Kuntz had violated the terms of his noncompete agreement. Reverses and remands the trial court extending the duration of the noncompete and awarding attorney fees to EVI. The COA points out a preliminary injunction is not a final judgment and is meant only to preserve the status quo as it existed prior to the dispute.

David Williams v. State of Indiana
Criminal. Affirms conviction and aggregate 99-year sentence for eight counts of Class A felony child molestation and once count of Class B felony incest. Finds Williams’ confession to police was voluntary and not coerced. Ruled the convictions for incest and child molesting do not constitute double jeopardy. Holds even though the trial court may have abused its discretion in considering Williams’ IRAS score as an aggravating factor, the 99-year sentence is not inappropriate.

Charles Cole v. State of Indiana
Criminal. Reverses an increase of bond from $2,500 surety to $10,000 surety on a Class D felony charge of possession of methamphetamine, holding that the increase was an abuse of discretion. No new evidence supported the increase that was twice as high as the maximum under local court rules, and the requirements for increasing bail under Ind. Code 35-33-8-5 were not satisfied.

State of Indiana v. Molly Gray
Criminal. Affirms on interlocutory appeal the trial court’s suppression of drug evidence collected after a drug-sniffing police dog indicated the presence of narcotics in a van pulled over in a traffic stop. The free-air sniff conducted by the canine was not incidental to the traffic stop and the officer lacked reasonable suspicion to justify increasing the duration of the stop.

Timothy W. Mackall, and Stephanie K. Mackall v. Cathedral Trustees, Inc., d/b/a Cathedral High School (NFP)
Civil collections. Affirms trial court award of $47,510 in attorney fees in favor of Cathedral.

In the Matter of E.B. (Minor Child), Child in Need of Services and R.K. (Mother) v. The Indiana Department of Child Services (NFP)
Juvenile. Affirms adjudication of E.B. as a child in need of services.

Billy Bulu Gercilus v. State of Indiana (NFP)
Criminal. Affirms conviction of two counts of Class D felony battery resulting in bodily injury and one count of Class A misdemeanor interfering with the reporting of a crime.

Tammy Price v. Review Board of the Indiana Department of Workforce Development and WC Fern Exposition Services(NFP)
Agency action. Affirms denial of unemployment benefits.
Zigfried Davis v. State of Indiana (NFP)
Criminal. Affirms conviction of Class D felony possession of cocaine.

Shaun A. Fry v. State of Indiana (NFP)
Criminal. Affirms in part and reverses in part convictions after a bench trial of Class D felony operating a vehicle while intoxicated endangering a person, Class A misdemeanor resisting law enforcement and Class C misdemeanor operating a vehicle without receiving a license. Vacates the felony conviction and remands for new trial because there is no evidence in the record that Fry knowingly, voluntarily and intelligently waived his right to a jury trial.  
Brenda Painter v. State of Indiana (NFP)
Criminal. Affirms 22-year aggregate sentence for conviction of two counts of Class B felony dealing in methamphetamine.

Indiana Tax Court issued no opinions by IL deadline. 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline .


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.