Indiana Court Decisions – Dec. 5-17, 2019

Indiana Court of Appeals

Dec. 5

Criminal — Drug Dealing/Evidence

Jennifer L. Hall v. State of Indiana

19A-CR-203

The Indiana Court of Appeals has reversed a woman’s felony conviction for dealing narcotics, finding there was insufficient evidence to prove she committed the crime.

Jennifer Hall was sitting in the passenger side of a vehicle involved in a controlled buy of heroin when the dealer, John Losson, handed her a bag of heroin to give to a confidential informant and a Bureau of Alcohol, Tobacco, Firearms, and Explosives agent. Money was handed to Hall in exchange for the drugs, which she then gave to Losson.

Hall was later charged with Level 4 felony aiding, inducing, or causing dealing in a narcotic drug and alleged to have acted as an accomplice to manufacturing heroin because Losson packaged the drug. A jury convicted Hall of the charge, despite its ability to find her guilty of the lesser-included Level 5 felony offense.

In an appeal of her conviction, Hall asserted the state did not have enough evidence to prove she had aided Losson in packaging the heroin, which elevated her offense from a Level 5 felony to a Level 4 felony.

“Agent (Kristi) Schumacher’s testimony is too speculative to prove beyond a reasonable doubt that Losson packaged the heroin that was sold in this case. We agree with the State that it is likely that he did package a larger amount of heroin into smaller baggies. But the mere likelihood that he did so based on common practices of drug dealers is not sufficient evidence to prove beyond a reasonable doubt that Losson packaged the heroin,” Judge Paul Mathias wrote in reversing the conviction.

“Here, there was no evidence that Hall had any knowledge of how or when Losson packaged the heroin. There was no evidence that Losson had scales or baggies in Hall’s presence or in the vehicle,” the panel continued. “The State only proved that Hall knew that Losson was dealing heroin to Agent Schumacher, and Hall was present during the crime and assisted Losson. This evidence is sufficient to support a Level 5 felony dealing conviction, but not the Level 4 felony dealing conviction requiring additional proof of manufacturing.”

Finding insufficient evidence pursuant to Indiana Code § 35-48-4-1(c)(2), the appellate court thus reversed and remanded with instructions to vacate Hall’s Level 4 felony conviction, enter a judgment of conviction for Level 5 felony dealing and resentence her accordingly.

However, the appellate court noted that because Hall testified extensively concerning her prior drug use and criminal history, it could not conclude that the admission of the challenged evidence of her prior criminal history constituted fundamental error.

The case is Jennifer L Hall v. State of Indiana, 19A-CR-203.

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Dec. 6

Criminal — Bribery/Motion to Dismiss

Daniel Tanoos v. State of Indiana

19A-CR-1086

A former school superintendent facing multiple bribery charges failed to persuade the Indiana Court of Appeals that the charges should be dismissed.

Former Vigo County Schools superintendent Danny Tanoos was charged with one count of Class C felony bribery and two counts of Level 5 felony bribery after he was accused of soliciting and accepting meals, tickets and other items from Energy Systems Group, an energy savings contractor that often worked with the school corporation.

Over a 16-year period, VCSC entered into nine contracts with ESG worth more than $42 million. ESG donated or expensed more than $100,000 to VCSC and Tanoos in the form of, but not limited to, expensive dinners, Colts tickets, concert tickets and a limousine rental.

Tanoos unsuccessfully filed a motion to dismiss all three of his charges, arguing the facts stated in the charging information did not constitute the offense of bribery because Indiana does not recognize a “generalized bribe” theory. He also argued the state was required to show “that any of these solicitations, acceptances, or agreements to accept food/beverages/tickets were [] made on a quid pro quo basis, i.e., in exchange for Tanoos’[s] agreement or promise to recommend ESG for any particular project.”

However, the Indiana Court of Appeals found no error with the Marion Superior Court’s denial of Tanoos’ motion to dismiss. Tanoos appealed, arguing that the facts alleged against him did not constitute the offense of bribery and that he was charged under “a generalized bribery theory which is prohibited under Indiana law.”

The appellate court concluded otherwise, rejecting Tanoos’ citations from Wurster v. State, 708 N.E.2d 587 (Ind. Ct. App. 1999), summarily aff’d in part by 715 N.E.2d 341 (Ind. 1999), and McDonnell v. U.S., 136 S. Ct. 2355 (2016).

“Relying on those cases, Tanoos argues that (1) the McDonnell framework explaining ‘official act’ supports his assertion that specificity in identification of what act he allegedly performed or agreed to perform is required and that influencing the VCSC school board ‘is exactly the type of nebulous, nonspecific act’ that McDonnell said does not constitute bribery, and (2) as in Wurster, none of the counts against Tanoos ‘identify a specific action Tanoos took; rather, each relies on a general notion that Tanoos would support continued business with ESG,’” Judge Robert Altice wrote for the appellate court.

“We are unpersuaded, however, that dismissal of the charges is warranted,” Altice continued. “While McDonnell may be relevant to the discussion, it does not govern our decision, as it concerned interpretation of the federal bribery statute’s definition of ‘official act’ in the context of jury instructions. Its context is wholly distinct from that before us.”

Additionally, the appellate panel found that Wurster is distinguishable and that the PCA and charging information identify a quid pro quo sufficient that Tanoos could “anticipate the evidence that may be presented against him and marshal evidence in his defense.

“…The State asserts, and we agree, that ‘Tanoos’s arguments are not about legal deficiencies in the information,’ but rather ‘amount to an assertion that he will be able to convince a jury that the alleged bribes were actually innocent acts of business development and there was no quid pro quo for these gifts,’” it wrote.

The appellate court therefore concluded that a motion to dismiss an information is not a proper vehicle for raising questions of fact to be decided at trial or facts constituting a defense, and that Tanoos’ motion was properly denied in Daniel Tanoos v. State of Indiana, 19A-CR-1086.

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Dec. 9

Criminal — Murder/Motion to Suppress

Joshua Risinger v. State of Indiana

19A-CR-281

The Indiana Court of Appeals has reversed a man’s murder conviction stemming from a trailer fire. The appellate court concluded the man was incorrectly denied his motions to suppress incriminating statements made to police after he indicated he was done talking to them.

Joshua Risinger was found guilty but mentally ill of felony murder, murder and arson after a homeless man staying as a guest in Risinger’s trailer was killed when Risinger set fire to the trailer. A jury found Risinger guilty, after which the Washington Circuit Court merged the convictions into one count of murder.

Before that, however, law enforcement had continued to question a Mirandized Risinger after he stated in three separate interviews, “I’m done talking.”

Risinger appealed his conviction, challenging the trial court’s decision to admit the three interrogations performed by officers. Specifically, Risinger contended that the trial court erroneously allowed the admission of his statements made during the three police interviews because they were involuntarily given due to his mental illness. A panel of the appellate court disagreed on that point, finding his waivers were voluntary because Risinger acknowledged verbally or through a thumbs up that he understood his Miranda rights, was willing to talk to a detective, and read and signed a form acknowledging and waiving his rights.

“While it is true Risinger was suffering from a mental illness, that is only one of the numerous factors to be considered by the trial court in determining voluntariness,” Judge Cale Bradford wrote for the appellate court.

However, the appellate panel found issue with the trial court’s admission of the majority of the statements Risinger made during interviews even after he told officers “I’m done talking,” finding they were obtained in violation of his right to remain silent pursuant to Miranda.

“Here, Risinger unequivocally invoked his Miranda rights by stating ‘I’m done talking.’ Under these circumstances, we conclude that ‘I’m done talking’ was Risinger’s expressed desire to remain silent. While Risinger could have been clearer in expressing his desire by stating something such as ‘I’m invoking my right to remain silent,’ such a formal declaration is not what the law requires,” the appellate panel wrote.

“Rather than honoring Risinger’s assertion of his right to remain silent, the detectives continued to question him. This failure to scrupulously honor Risinger’s invocation of his Miranda rights led to the detectives obtaining incriminating statements from Risinger,” the panel continued. “Thus, we conclude that the statements made by Risinger during the first interview should not have been admitted at trial, with the exception of those made prior to Risinger’s invocation of his Miranda rights approximately nineteen minutes into the interview.”

Additionally, it found the second and third interviews should not have been admitted at trial, noting they amounted to nothing more than “shutting the barn doors long after the cows had bolted.”

“By the time the second and third interviews were conducted, Risinger had already confessed to starting the fire and killing Givan in the first interview,” Bradford wrote. “These subsequent interviews clearly built upon the confession which was unconstitutionally obtained by detectives after they failed to scrupulously honor Risinger’s invocation of his right to remain silent during the first interview.”

Concluding that Risinger’s statement was an unequivocal assertion of his desire to remain silent, the appellate court reversed the trial court’s decision in Joshua Risinger v. State of Indiana,19A-CR-28, finding an abuse of discretion in admitting the statements from all three interviews.

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Dec. 11

Civil Plenary — Contempt of Court/Subject Matter Jurisdiction

McNeal Stewart, Michael A. Carpenter, and Sheneen Haley v. Stan R. McCray and Canaan Baptist Church of Elkhart, Indiana, Inc.

19A-PL-149

A years-long dispute between an Elkhart pastor and members of his congregation has resulted in a reversal from an appellate panel that determined a trial court erred in ordering the faith leader to spend one month in jail.

Tensions over the Rev. McNeal Stewart III’s tenure rose when members of the Canaan Baptist Church’s deacon board — Lawrence Burns, Ron Davis, James House, Curtis Brown, and Stan McCray — took legal action against Stewart in 2016.

The suit asserted numerous issues regarding Stewart stemming from allegations that he usurped the authority of the church board of directors and disregarded its constitution and bylaws.

As undecided motions to compel Stewart were pending in the Elkhart Superior Court, McCray initiated a second and separate cause against Stewart, alleging he interfered with the function of the board of directors and failed to abide by a disciplinary action issued against him by the board. McCray specifically requested the trial court enforce the disciplinary action, which would hand Stewart a 30-day paid suspension and a 60-day unpaid suspension.

The trial court ruled to enforce the 30-day suspension but declined to enforce the 60-day suspension. Ultimately, the trial court found Stewart to be in contempt of court, ordered him confined to the Elkhart County Jail for a term of 30 days, and ordered him to pay $2,500 to the plaintiffs’ counsel.

Stewart appealed the Elkhart Superior Court’s determination, arguing that the trial court exceeded its subject matter jurisdiction when it became involved in his suspension from his church duties and in a retention vote regarding his continued employment, rendering the trial court’s orders in the matter void ab initio.

The Indiana Court of Appeals sided with Stewart, disagreeing with McCray’s position that the matter falls within the trial court’s jurisdiction because the church is incorporated under Indiana’s not-for-profit statutes. Similarly, it rejected the assertion that the trial court’s determinations did not require it to delve into matter of doctrine or faith.

“The instant matter arises from Rev. Stewart’s suspension from his pastoral duties for his alleged failure to act in accordance with the Church’s Bylaws. Regardless of whether the parties, at times, failed to adhere to the Church’s Bylaws, at bottom, this is a dispute over the Church’s leadership. As such, this matter, at its core, is purely ecclesiastical and one which the trial court lacked subject matter jurisdiction to adjudicate,” Senior Judge Ezra H. Friedlander wrote for the appellate panel.

“Based on the foregoing, we conclude that the trial court erred in finding Rev. Stewart in contempt of court and ordering him to serve thirty days in the Elkhart County jail because it did not have subject matter jurisdiction to decide Canaan II,” the appellate panel wrote, reversing and remanding for Canaan II to be dismissed.

“All orders issued by the trial court in Canaan II are void ab initio. By separate order of this court, and issued simultaneously with this opinion, McCray’s counsel is ordered to return to Rev. Stewart the $2,500.00 that Rev. Stewart paid to counsel on December 4, 2018,” it concluded.

The case is McNeal Stewart, Michael A. Carpenter, and Sheneen Haley v. Stan R. McCray and Canaan Baptist Church of Elkhart, Indiana, Inc., 19A-PL-149.

Criminal — Probation Revocation/Evidence

William Terpstra v. State of Indiana

19A-CR-671

An order for a former doctor involved in a pill mill scheme to serve thousands of days in jail for violating probation has been affirmed. A divided Indiana Court of Appeals panel concluded there was enough evidence to prove a new offense was committed.

William Terpstra, who previously practiced at Wagoner Medical Centers in Kokomo, pleaded guilty to two counts of Class B felony dealing in a narcotic drug for knowingly delivering methadone outside the course of professional practice and for nonmedical purposes to two separate victims. He was ordered to serve 5,475 days, 548 days on home detention, with the remainder suspended to probation.

In 2017, the Howard Superior Court ordered Terpstra’s previously suspended sentence to be executed in the Department of Correction, concluding that placing him anywhere else would “only give him an opportunity to victimize the weak and helpless members of society” after he was charged with child molesting during his probation.

Terpstra appealed, arguing insufficient evidence proved he committed the offense. A majority of the Indiana Court of Appeals disagreed, noting that the trial court concluded that the victim was a credible witness, that the offense occurred as she reported it, and that the offense occurred even though Terpstra’s wife did not directly observe it. The majority also concluded that the trial court was aware that the new offense was required to have been committed during Terpstra’s probation period, and its revocation statement adequately outlined that awareness.

Additionally, it found that any error committed by the trial court regarding evidence was harmless in light of the judicial temperance presumption, finding Terpstra did not overcome it because he did not show that the evidence was admitted over his objection. However, Chief Judge Nancy Vaidik dissented from the appellate majority in a separate opinion, arguing that judicial-temperance presumption does not save the trial court’s actions.

“The majority states: ‘Although we do not encourage trial courts to conduct probation revocation proceedings in this manner, we conclude that to hold that a trial court under these circumstances must always immediately rule on evidentiary objections would be to unnecessarily limit the discretion of the trial court and to ignore the increased flexibility of probation revocation proceedings.’

“I fear this will be read to excuse trial-court judges in bench trials from making explicit evidentiary rulings,” Vaidik wrote. “And I do not mean to suggest that a trial court cannot take an evidentiary issue under advisement and must ‘immediately’ rule on it, only that it must, at some point, announce its ruling on the issue or, in the alternative, specifically identify the evidence it relied upon in reaching its decision.”

The majority also rejected Terpstra’s argument that the trial court’s sanction was an abuse of its discretion because the 4,927-day sentence was “far beyond what a first[-]time offender accused of child molest would typically receive.” Instead, the majority noted that the sentence was not for a child-molesting conviction, but for his probation violation in a drug-dealing case.

“Lastly, contrary to Terpstra’s argument on appeal, the trial court’s statements upon sanctioning him for the probation violation reveal that it did not order him to serve the entirety of his previously-suspended sentence because it thought the drug dealing case sentence was too lenient; instead, it sanctioned him because he did not change his behavior despite being accorded that leniency,” Judge Patricia Riley wrote in affirming the trial court.

However, Vaidik wrote that she would reverse and remand the case for specific rulings on Terpstra’s evidentiary objections or a more detailed explanation of which evidence the court did or did not rely on in making its decision in William Terpstra v. State of Indiana, 19A-CR-671.

Juvenile Paternity — Statute of Limitations/Prosecutor Filings

In the Matter of the Paternity of M.A.M. State of Indiana by the IV-D Prosecutor of Miami County v. T.M.

19A-JP-771

A divided panel of the Indiana Court of Appeals has reversed the dismissal of an alleged father’s time-barred petition seeking to establish paternity of a child. The majority held a prosecutor is authorized to pursue such a request outside the general two-year statute of limitations. A dissenting judge, however, warned the holding “makes a mockery” of the two-year statute of limitations in paternity cases.

Chief Judge Nancy Vaidik wrote for the majority joined by Judge Cale Bradford that the Miami Circuit Court erred in granting a mother’s motion to strike in In the Matter of the Paternity of M.A.M. State of Indiana by the IV-D Prosecutor of Miami County v. T.M., 19A-JP-771. Genetic testing showed a 99.999999996% probability that alleged father was M.A.M.’s father.

The litigation began in November 2018, when B.S., the alleged father of then-4-year-old M.A.M., applied for child support services through the Miami County Prosecutor’s Office. According to the record, the child never lived with alleged father.

The trial court granted mother’s motion to strike an amended petition filed by the prosecutor’s office, which acknowledged alleged father’s original petition was filed after the two-year statute of limitations. The amended petition further acknowledged the original paternity action “was erroneously filed by the State of Indiana as though the alleged father was the petitioner” and asserted that the petition “should have been filed by the State of Indiana on behalf of the child with the Miami County Prosecutor as the next friend of the minor child.”

Sorting through a tangle of sometimes conflicting statutes, the majority wrote, “The sole issue in this appeal is whether the Prosecutor was statutorily authorized to file the Amended Petition.” Men asserting paternity must bring an action within two years of a child’s birth under Indiana Code § 31-14-5-3, but the majority looked to I.C. 31-25-4-13.1(b) to find local prosecutors authorized “‘to undertake activities required to be performed under Title IV-D’” of the Social Security Act “including ‘establishment of paternity’.”

The trial court, however, agreed with mother’s argument that because neither she nor the Department of Child Services in this case executed an assignment of child support rights, the alleged father was required to file for paternity within two years and that the prosecutor lacked authority to file on alleged father’s behalf.

“…(W)e disagree,” Vaidik wrote for the majority. “… Title IV-D (42 U.S.C. §§ 651-669b) and Indiana’s corresponding IV-D statutes (Indiana Code chapter 31-25-4) specifically contemplate the State filing paternity actions in circumstances beyond those set forth in Section 31-14-4-3.” The majority pointed to 42 U.S.C. § 654(4)(A), which provides that a state will provide services including the establishment of paternity with respect to “any … child, if an individual applies for such services with respect to the child.”

“To be sure, there is tension between the statutes just discussed, which grant prosecutors very broad authority to file paternity actions, and Section 31-14-4-3, which seems to restrict that authority. But we think the legislature has established a tiebreaker,” the majority wrote. “Specifically, in the first section of Indiana’s paternity code, Indiana Code section 31-14-1-1, the General Assembly has explicitly stated that it ‘favors the public policy of establishing paternity under this article of a child born out of wedlock.’ To the extent that the statutes above are at odds, this express policy indicates to us that the ambiguity should be resolved in favor of allowing a paternity action to proceed. … And if the legislature believes that the paternity action in this case is not one that should be allowed to proceed, we trust that it will amend the statutes accordingly.”

Dissenting Judge Patricia Riley, however, would affirm the trial court. She seized on another provision of 42 U.S.C. § 654(4)(A) that she said the majority ignored, “which states that the State can provide ‘services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations, as appropriate, under the plan[.] … Unlike the majority, I consider this seemingly endless objective of establishing paternity to be procedurally limited by our Code.

“… Here, Alleged Father, the Child’s biological father, applied to the Title IV-D office and requested it to represent him in the establishment of the Child’s paternity by assigning his support rights. However, after the amendment of the paternity statute in 2015, the State can no longer commence a paternity suit at the request of a biological father, unless the biological father is the ‘person with whom the child resides.’ See I.C. § 31-14-4-3. Because the Child did not reside with Alleged Father, the State cannot initiate the paternity action,” Riley wrote.

“Seemingly arguing for unbridled rights to bring paternity actions, the State contends that ‘prosecutors are required to provide Title IV-D services, including establishment of paternity, to people who are not receiving public assistance,’” the dissent continued. “… Thus, based on the State’s argument, any putative father could avoid his two-year statute of limitations by simply requesting the State to file a petition of paternity as the child’s next friend. This effectively makes a mockery of the statute of limitations.”

Adoption — Findings/Parental Consent

D.T. v. J.M.

19A-AD-1334

The Indiana Court of Appeals has remanded a granted adoption petition after finding a trial court failed to make findings that would allow for the children’s biological father’s consent to be dispensed with.

While incarcerated, D.T. occasionally saw his two children when their mother brought them to visit. However, when mother, L.M., began dating J.M., the visits stopped. The two eventually got married, and J.M. petitioned to adopt the children.

Meanwhile, D.T. continued to write letters and cards to his children and attempted to call them, which L.M. did not pass along to them. When D.T. objected to the adoption, and a hearing was held and L.M. admitted to thwarting his communication attempts with the children. Although it concluded that D.T.’s consent was required for the adoption, the St. Joseph Probate Court ultimately granted the adoption petition in J.M.’s favor.

The Indiana Court of Appeals remanded that decision in D.T.’s favor, finding that the trial court erred in granting the adoption petition.

“In order to dispense with Biological Father’s consent pursuant to [Indiana Code] Section 31-19- 9-8(a)(11) and grant the adoption, the court was required to assess the best interests of the children at two stages: (1) a finding that Biological Father is unfit and that it is in the best interests of the children to dispense with Biological Father’s consent pursuant to Section 31-19-9-8(a)(11) and (2) a finding that adoption by Adoptive Father is in the children’s best interests pursuant to Section 31-19-11-1(a),” Chief Judge Nancy Vaidik wrote. “The trial court’s order appears to have conflated the first best-interests inquiry with the second.”

The appellate court therefore remanded with instructions for the trial court to first determine whether D.T. is unfit to be a parent and, if so, whether it is in the best interests of the children to dispense with his consent.

“Only if the court makes these first two determinations should it move on to the best-interests analysis required under Section 31-19-11-1(a),” the appellate court concluded in D.T. v. J.M., 19A-AD-1334.•