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Opinions Oct. 18, 2013

October 18, 2013
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Indiana Court of Appeals
Floyd Weddle v. State of Indiana
73A01-1209-CR-452
Criminal. Affirms on rehearing that convictions for possession of methamphetamine and manufacturing methamphetamine were not double jeopardy, and finding that the jury could have reasonably concluded that Weddle was in possession of methamphetamine and was in the process of manufacturing an additional amount of the drug.

David Rhodes v. State of Indiana
49A02-1304-CR-321
Criminal. Affirms conviction of two counts of theft, rejecting arguments that evidence from a police search of a suspect should have been suppressed. The panel found that the record shows that Rhodes made no objection to admission of the evidence that he later sought to suppress, so the argument had been waived. Even if it hadn’t been waived, an eyewitness description that led police to Rhodes provided probable cause.

Audie Wilson v. State of Indiana
49A02-1210-CR-846
Criminal. Affirms Wilson’s convictions for sexual misconduct with a minor, as a Class B felony; attempted sexual misconduct with a minor, as a Class B felony; and sexual misconduct with a minor, as a Class C felony. Finds the trial court did not abuse its discretion in allowing the evidence of defendant’s nicknames. Rules the defendant had the burden to proof – not the state – as to whether he reasonably believed the juvenile victim was at least 16 years old.  

Timothy S. Enders and Enders & Longway Builders, Inc., v. Debra Sue Enders as Personal Representative of the Estate of Randall Enders
71A03-1211-PL-494
Civil plenary. Grants petition for rehearing but stands by previous opinion. Court was not persuaded by Timothy Enders’s argument that the COA found the shares of the corporation were not jointly owned with rights of survivorship. Finds since the trial court properly dissolved the family business, the issues about the shares certificates should have been resolved by the trial court.

Chad Musick v. State of Indiana (NFP)
18A04-1302-PC-61
Post conviction. Affirms the denial of Musick’s post-conviction relief petition to the extent the post-conviction court found he did not receive ineffective assistance of appellate counsel. Reverses the denial with respect to the claim of ineffective assistance of trial counsel and remands for further proceedings on that claim.

Jolene G. Burtrum v. Citizens Health Center (NFP)
49A05-1305-PL-224
Civil plenary. Affirms dismissal of Burtrum’s complaint against Citizens Health Center, alleging breach of contract and seeking damages under the Wage Claim Statute.

J.M. v. State of Indiana (NFP)
52A02-1304-JV-361
Juvenile. Affirms order placing J.M. in the Indiana Department of Correction after he admitted to theft from a Burger King restaurant.

Christopher T. Taylor v. State of Indiana (NFP)
29A02-1301-PC-54
Post conviction. Affirms summary disposition regarding Taylor’s freestanding claims of error and ineffective assistance of counsel claim on the presumptive sentencing scheme. Reverses and remands denial of Taylor’s motion for an evidentiary hearing on the remaining ineffective assistance of counsel claims.

Louis O'Neal v. State of Indiana (NFP)
20A03-1302-PC-58
Post conviction. Affirms the denial of O’Neal’s motion to withdraw his post-conviction petition without prejudice.

Gregory Calvain v. State of Indiana (NFP)
41A01-1303-CR-116
Criminal. Affirms conviction of illegal consumption of an alcoholic beverage, a Class C misdemeanor.

Martin Cenfetelli v. State of Indiana (NFP)
84A01-1303-CR-118
Criminal. Affirms Cenfetelli’s 14-year sentence, $2,000 fine and five-year suspension of driver’s license for conviction of Class B felony operating a vehicle with a blood alcohol content of 0.15 or more causing death. Reverses home detention and community service as conditions of probation. Reverses and remands for further proceedings regarding the restitution order for $101,198.24.

The Indiana Supreme Court and the Indiana Tax Court did not post any opinions by IL deadline. The 7th Circuit Court of Appeals submitted no Indiana opinions by IL deadline.
 

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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