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Opinions Sept. 24, 2012

September 24, 2012
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Indiana Court of Appeals
State of Indiana v. Russell Oney
49A05-1204-CR-196
Criminal. Reverses and remands a trial court ruling that vacated a determination that a defendant was a habitual traffic violator, holding that even though one of the predicate offenses later was vacated in post-conviction relief, the BMV’s determination that Oney was a habitual traffic offender did not constitute manifest injustice.

Gregory Kirk v. State of Indiana
49A02-1110-CR-979
Criminal. Affirms in part, reverses in part and remands. Reverses conviction for conspiracy to commit dealing in a controlled substance and remands to the trial court to change sentence accordingly, holding that the court abused its discretion in admitting incriminating evidence of Kirk’s stepson’s statements and testimony regarding cell phone texts.

Marquis Dayvon Brooks v. Anderson Police Dept., City of Anderson, and Chris Barnett
48A02-1110-CT-1045
Civil tort. Reverses summary judgment in favor of defendants, finding that there are material issues of fact that should permit Brooks to pursue a civil tort for injuries sustained during his arrest, including bites from a police dog.

Parkview Hospital, Inc. v. Geico General Insurance Company
02A04-1201-PL-5
Civil plenary. Affirms trial court dismissal of the hospital’s claim against the insurance company arising from its treatment of a patient injured in a Tennessee vehicle crash, holding that the court has no jurisdiction to entertain a claim of a hospital lien against a judgment in another state unless the hospital has “enter[ed], in writing, upon the judgment docket where the judgment is recorded, the hospital’s intention to hold a lien upon the judgment, together with the amount claimed.”

Carlos Hale v. State of Indiana
49A02-1202-CR-83
Criminal. Affirms Class B felony robbery conviction based on a show-up identification and rebukes defendant for trying to use the fundamental error doctrine to raise an objection to evidence that defense counsel did not object to during the trial.

Thomas E. Lynch v. Arthur H. Huser (NFP)
49A05-1204-PL-162
Civil plenary. Affirms trial court judgment in favor of Huser.

Sean Cole v. State of Indiana (NFP)
49A02-1202-CR-66
Criminal. Affirms conviction of Class B felony dealing in cocaine.

Bryan Scholtes v. State of Indiana (NFP)
15A05-1202-CR-78
Criminal. Affirms trial court revocation of probation.

Steven R. Brandenburg v. First Republic Mortgage Corporation (NFP)
29A02-1201-PL-70
Civil plenary. Affirms trial court grant of summary judgment in favor of First Republic.

Olga Markova v. State of Indiana (NFP)
49A02-1110-PC-908
Post-conviction relief. Affirms trial court denial of post-conviction relief that sought to set aside guilty plea to charge of Class D felony theft.

Justin L. Smart v. State of Indiana (NFP)
46A05-1201-CR-20
Criminal. Affirms convictions of Class B felony dealing in cocaine and Class C felony dealing in a look-alike substance.

Andrew Humphreys v. State of Indiana (NFP)
79A04-1112-CR-677
Criminal. Affirms in part, reverses in part and remands, finding the court erred in applying a 16-year sentence for adjudication as a habitual offender, and instructed the court to specify which of Humphrey’s methamphetamine-related convictions is enhanced by the adjudication.

Troy Marie Cain Cornell v. State of Indiana (NFP)
02A03-1201-CR-33
Criminal. Affirms conviction of Class A misdemeanor prostitution.

Charles Davis, Sr. v. State of Indiana (NFP)
03A05-1111-CR-582
Criminal. Affirms conviction of dealing in methamphetamine, a Class B felony.

Matthew M. Derrick v. Estate of Ruth F. Korn (NFP)
71A03-1204-ES-178
Probate/estate. Affirms probate court ruling disallowing Derrick’s claim of a life estate and payments of maintenance of real property.

David Brown d/b/a DB Express v. Utility Peterbilt of Indianapolis (NFP)
49A05-1202-PL-61
Civil plenary. Affirms denial of plaintiff’s motion to correct error challenging a grant of summary judgment in favor of Peterbilt.

 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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