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Opinions Sept. 30, 2013

September 30, 2013
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Opinions, Sept. 30, 2013

Indiana Court of Appeals
Jeffrey Archer v. State of Indiana

49A05-1209-CR-448
Criminal. Affirms Class A felony conviction of child molestation, rejecting arguments that the trial court’s statement about the victim’s competency was an impermissible vouching statement and that the court improperly allowed vouching statements by multiple witnesses. The court’s denial of Archer’s request to present evidence of the victim’s post-allegation demeanor also was proper, as were jury instructions and the effectiveness of Archer’s trial counsel.

Paul J. Livers II, v. State of Indiana
06A01-1303-CR-119
Criminal. Affirms convictions for battery causing bodily injury, a Class A misdemeanor, and interference with reporting a crime, a Class C misdemeanor. Livers claims his counsel was ineffective because the attorney failed to file a motion for a jury trial in a timely manner. The COA finds the trial court record does not indicate that Livers wanted a jury trial prior to his trial counsel’s belated requested. Also rejects Livers’ argument that the testimony of the victim was incredibly dubious.

Joseph M. Guinn v. Applied Composites Engineering, Inc.
49A02-1303-CC-239
Civil. Reverses grant of summary judgment in favor of Applied Composites Engineering Inc., and remands to the trial court for consideration of Joseph Guinn’s claim of tortious interference with a contract due to ACE’s enforcement of a non-compete clause that resulted in his termination from a subsequent employer. Summary judgment was improper because a genuine issue of material fact exists as to whether ACE’s conduct was justified, fair or reasonable under the circumstances.

Amy Palmer v. Margaret Sales and Unique Insurance Company
45A03-1302-SC-31
Small claims. Reverses denial of motion for change of judge and motion for jury trial and remands with instructions to grant change of judge, implement procedures for the selection of a new judge and transfer the case to the plenary docket, the majority holding that the question of timeliness of a change of judge request should be guided by the dissenting opinion in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). Judge Mark Bailey, who wrote the McClure opinion, dissented in part, finding that the court shouldn’t reach McClure, which he acknowledged may have been wrongly decided, and that because Palmer acknowledged liability, proceedings on remand should be limited to the matter of damages.

William A. Asher v. Stephanie J. Coomler
49A04-1302-DR-71
Domestic relation. Reverses trial court modification of child support, holding that a magistrate was not within the class of judicial officers specified in Trial Rules for selection of a special judge and therefore could not have presided after appointment of a special judge. Remands to the trial court with instructions to permit the parties to select a successor special judge.

David M. Green v. State of Indiana
45A03-1210-PC-418
Post-conviction. Affirms denial of petition for post-conviction relief from his sentence of two consecutive 45-year sentences for his conviction of two counts of murder, concluding that a defense attorney’s failure to object to an anonymous jury was not ineffective assistance of counsel.

Tom Trisler d/b/a Canal House Antiques v. Clayton L. Carter
35A02-1302-SC-192
Small claim. Reverses the trial court’s order that Trisler reimburse Carter the purchase price for a chest of drawers. Rules when Carter bought the piece of furniture at the antiques store, he did not expect the business would remedy any defect. Consequently he has no legitimate reason to revoke his acceptance of the chest of drawers.

Gary Oswalt v. State of Indiana
35A02-1208-CR-684
Criminal. Affirms conviction and aggregate sentence of 84 years for two counts of child molesting as Class A felonies, child solicitation as a Class D felony, and five counts of possession of child pornography as Class D felonies. Rules Oswalt did not exhaust his peremptory challenges and therefore waived review of the trial court’s denial of his request to strike Juror No. 28 for cause. Finds the five charges for possession of child pornography fell within the statutory limitations period. Concludes that the evidence was sufficient to sustain Oswalt’s convictions for five counts of possession of child pornography and that Oswalt failed to demonstrate he was denied a fair trial due to the charges of possession of child pornography. Upholds the sentence as appropriate considering the nature of the offense and the character of Oswalt.

In the Matter of the Termination of the Parent-Child Relationship of K.C., R.C., and B.C., Minor Children and R.C., Father v. Indiana Department of Child Services (NFP)
72A01-1301-JT-35
Juvenile. Affirms involuntary termination of R.C.’s (father) parental rights to K.C., R.C. and B.C.

Joseph A. Taylor v. Dr. William H. Wolfe, in his Individual Capacity as an Employee of Corizon and Medical Director at the Pendleton Correctional Facility, Corizon, Inc., and Pharma Corr, (NFP)
48A05-1212-PL-638
Civil Plenary. Affirms dismissal of Taylor’s complaint against Wolfe, Corizon Inc. and Pharma Corr for lack of subject matter jurisdiction.

In the Matter of; H.B., G.M., P.M., and A.C. (Minors), C.M. (Mother) v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate (NFP)
45A03-1302-JT-62
Juvenile. Affirms order terminating C.M.’s (mother) parental rights to her minor children, H.B., G.M., P.M. and A.C.

Gerald W. Staton v. Dawn M. Dobyns-Gross, Indiana Family Social Services Administration, Tippecanoe County, Indiana and Tippecanoe County Prosecutor (NFP)
79A02-1305-CT-412
Civil Tort. Affirms denial of Staton’s motion to correct error and the dismissal of Staton’s complaint.

Mark Burkett v. State of Indiana (NFP)
09A04-1305-CR-262
Criminal. Affirms 20-year sentence for criminal confinement, a Class B felony.

Brandon Stewart v. State of Indiana (NFP)
45A03-1301-CR-6
Criminal. Affirms conviction for two counts child molesting, both Class A felonies, one count sexual misconduct with a minor, a Class B felony, one count child molesting, a Class C felony, and one count sexual misconduct with a minor, a Class C felony. Also affirms aggregate sentence of 46 years.
 
The Indiana Supreme Court and the Indiana Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.
 

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  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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