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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
49S02-1212-CR-669
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
49S04-1311-CR-741
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
09S00-1307-PL-476
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
02A03-1301-PL-14
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
67A01-1302-CR-87
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
49A02-1308-CR-680
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
62A01-1303-CR-108
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)
49A02-1304-CC-290
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)
84A01-1303-JC-95
Juvenile. Affirms adjudication of E.B. as a child in need of services.

Billy Bulu Gercilus v. State of Indiana (NFP)
18A02-1303-CR-246
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)
93A02-1304-EX-369
Agency action. Affirms denial of unemployment benefits.
 
Zigfried Davis v. State of Indiana (NFP)
71A05-1303-CR-124
Criminal. Affirms conviction of Class D felony possession of cocaine.

Shaun A. Fry v. State of Indiana (NFP)
50A03-1305-CR-170
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)
48A02-1304-CR-346
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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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