Opinions Oct. 17, 2019

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Indiana Court of Appeals
Kay Kim, et al. v. Village At Eagle Creek Homeowners Association, et al.
Small claims. Reverses the Marion County Small Claims Court’s order dismissing Kay Kim and Charles Chuang’s action against the Village at Eagle Creek Homeowners Association, Inc. and Muhammed and Andleeb Javed. Finds the smalls claims court erred when it dismissed Kim and Chuang’s case for their refusal to attend mediation. Holds that small claims courts may not Remands further proceedings.

Courtney Weikart, Ruth Weikart, and Kevin Weikart v. Whitko Community School Corporation and Town of South Whitley, Indiana
Civil tort. Affirms the Whitley Circuit Court’s grant of Whitko Community School Corp.’s and the Town of South Whitley, Indiana’s motion to dismiss Courtney, Ruth, and Kevin Weikart’s suit against them after a school resource officer who is also a town police officer allegedly failed to report Courtney’s allegation that she had twice been gang raped. Finds the trial court did not err by granting the appellees’ motion to dismiss. Judge Terry Crone concurs with a separate opinion.

Cadorath Aerospace Lafayette, LLC, et al. v. Colleen Ricks, as the Personal Representative of the Estate of Brandon Seth Ricks, et al.
Civil tort. Reverses the Marion Superior Court’s denial of Cadorath Aerospace Lafayette, LLC, Cadorath Aerospace, Inc., and H-S Tool & Parts, Inc.’s motion to dismiss for lack of personal jurisdiction a negligence suit brought by Colleen Ricks, Cynthia Cobb, and Brendan Mullen following a fatal helicopter crash. Finds Indiana does not have personal jurisdiction over the matter. Judge James Kirsch dissents with a separate opinion.

In Re: The Adoption of D. H., K.W. v. B.H.


Adoption. Reverses the Greene Circuit Court decree of adoption by child D.H.’s father and stepmother, finding the trial court erred by finding mother K.W.’s consent to the adoption was not required. Remands with instructions to vacate the adoption decree and for further proceedings.

Thomas Mustillo v. Area Board of Zoning Appeals of St. Joseph County and Ceres Partners, LLC (mem. dec.)
Civil tort. Reverses the St. Joseph Superior Court’s dismissal of Thomas Mustillo’s amended petition for judicial review of a decision of the St. Joseph County Area Board of Zoning Appeals. Finds the trial court erred by granting the BZA’s motion to dismiss. Remands for further proceedings.

Gordon R. George v. State of Indiana (mem. dec.)
Criminal. Affirms the termination of Gordon George’s placement in the Lawrence County Drug Court program and his sentence of four years executed in the Department of Correction. Finds the Lawrence Superior Court did not abuse its discretion when it failed to find George’s progress toward recovery as a mitigating factor.

Anthony Gammons, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Anthony Gammons’ conviction of Level 1 felony attempted murder and Class A misdemeanor carrying a handgun without a license. Finds it was not erroneous for the Marion Superior Court to tell the jury to continue to deliberate and finds a new trial is not warranted. Also finds any error in the trial court’s self-defense instruction to be harmless.

Jeffrey Nelson v. Julie A. Nelson (mem. dec.)
Domestic relation. Affirms the Vanderburgh Superior Court’s April 18, 2019 order finding Jeffrey Nelson in contempt and ordering the sale of real estate with certain amounts to be paid from the proceeds. Finds reversal is not warranted.

A.K. v. State of Indiana (mem. dec.)
Juvenile. Affirms the Miami Superior Court’s dispositional order for A.K. Finds the placement ordered by the juvenile court is consistent with A.K.’s best interests and the safety of the community. Finds no abuse of discretion.

Michael W. Willhoite v. State of Indiana (mem. dec.)
Criminal. Affirms in part, reverses in part, remands with instructions. Upholds Michael Willhoite’s aggregate 25-year sentence for conviction of Level 1 felony child molesting. Finds the Madison Circuit Court did not abuse its discretion when it denied Willhoite’s motion for continuance on the eve of trial. Also finds the state did not commit fundamental error or deprive Willhoite of a fair trial when the prosecutor referenced “grooming” in her closing arguments. Finds a double jeopardy violation with his Level 4 felony incest conviction, and therefore reverses and remands to vacate that conviction.

In Re the Marriage of: Rosalia Mayagoita Fragoso and Fidel Medina Avila (mem. dec.)
Domestic relation. Affirms the Lake Superior Court’s order denying Rosalia Fragoso’s motion to set aside the decree of dissolution of her marriage to Fidel Avila. Finds the trial court did not err by denying her motion to set aside the dissolution decree. Judge James Kirsch dissents with a separate opinion.

Keegan M. Kinzer v. State of Indiana (mem. dec.)
Criminal. Affirms Keegan Kinzer’s aggregate two-year sentence for conviction of Level 6 felony possession of methamphetamine and Class C misdemeanor possession of paraphernalia. Finds Kinzer has failed to show that his sentence is inappropriate considering his character. Declines his request to reduce his sentence for his conviction for possession of methamphetamine to one year.

William C. Turner v. State of Indiana (mem. dec.)
Criminal. Affirms the revocation of William Turner’s probation and the imposition of a 795-day portion of his 1,345-day previously suspended sentence. Finds the trial court did not abuse its discretion in its revocation.

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