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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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