Indiana Court Decisions – Nov. 12 to 21, 2014

December 3, 2014

For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.

7th Circuit Court of Appeals

Nov. 13

Criminal – Shielding Unauthorized Immigrants/Fraud

United States of America v. Evelyn Rivera Borrero, et al.

13-3430, 13-3468, 13-3516, 13-3517, 13-3559

The United States government conceded on appeal that its treatment of vehicle titles and license plates as “property” from the perspective of Indiana in order to convict defendants of conspiracy to commit mail or wire fraud was a legal error. The 7th Circuit Court of Appeals reversed the convictions but did not foreclose the possibility of retrial.

The federal prosecutor in South Bend brought charges against Evelyn Rivera Borrero and four other defendants alleging their business of helping people use a federal employer identification number to obtain vehicle titles and license plates in Indiana defrauded the state. The defendants were charged with violating federal law by shielding unauthorized aliens from detection and encouraging them to reside in the United States. They were also charged with conspiring to commit mail or wire fraud.

For a flat fee, the defendants created business entities in their customers’ real names and submitted that information to the Bureau of Motor Vehicles to obtain titles and plates.

The defendants were all convicted and imprisoned, with sentences ranging from 24 months to 84 months.

At trial, the government did not emphasize Indiana’s financial loss to prove the fraud, but it instead argued that the titles and license plates are state property. The jury instructions allowed the jury to convict on the theory that title papers and licenses are “property” from the state’s perspective, with which the state parted because of false statements about insurance. The instructions also allowed the jury to convict on the theory that by misstating the selling prices, the defendants defrauded Indiana out of money that should have been paid as sales tax.

Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses and similar documents are not “property” in the hands of the public agency, so if the jury convicted the defendants of fraud based on the first theory, then defendants are entitled to acquittal. But if it was based on the second grounds, then the judgments should be confirmed, Judge Frank Easterbrook wrote.

But the jury instructions didn’t require the jury to choose among the theories of culpability, so the judges remanded the case to the District Court for a new trial if the prosecutor so chooses.

As to the first count, Easterbrook pointed out multiple problems with the charges, not the least of which is that the prosecutor didn’t prove that the defendants knew their clients to be unauthorized aliens or recklessly disregarded that fact. He then went on to question what else would qualify as violating federal law if making it easier to own a car is enough to induce or encourage an alien to reside in the U.S. Would it be a grocery store owner who sells food to someone he or she knows who lacks a visa but needs food, or a doctor who treats a person who does not have a visa?

“These convictions can be sustained only if the provision of any sufficiently valuable service – food, medicine, transportation – to an unauthorized alien is a felony because it helps the alien ‘reside’ in the United States,” Easterbrook wrote. “That would take the statue beyond a sensible understanding; the Rule of Lenity, if nothing else, would forbid it.”

The judges ordered the lower court to enter a judgment of acquittal on this count.

Nov. 17

Civil – Federal Tort Claims Act/Prisoner Injury

Charles Keller v. United States of America


Repeatedly drawing attention to the heavily redacted record and scant information about procedures, the 7th Circuit Court of Appeals tossed out a summary judgment granted to the government in a lawsuit stemming from a prison yard attack.

Charles Keller, an inmate at the U.S. Penitentiary in Terre Haute, filed suit against the United States under the Federal Tort Claims Act after he was brutally beaten and left lying unconscious in the prison yard.

He claimed several prison employees violated mandatory regulations and orders which allowed the attack to occur. In particular, he said the intake psychologist did not examine all of his medical documents, as required by applicable regulations, before placing him in general population. According to Keller, the guards in the watchtower failed to monitor their assigned areas of the yard because, he contended, they were lazy or inattentive in violation of their post orders.

The government argued it was shielded from liability by the discretionary function exception under the Federal Tort Claims Act. It maintained all prisoner attacks fall within the exception.

The U.S. District Court for the Southern District of Indiana agreed and granted summary judgment to the government. The 7th Circuit reversed, saying the government failed to offer evidence showing its conduct was shielded by the exception.

If prison personnel acted according to policy, then the discretionary function exception applied. However, the 7th Circuit said it was unable to determine whether the employees adhered to mandatory regulation because the documents were incomplete.

The Circuit Court said the extensive redactions and scant record made it impossible to ascertain exactly what regulations and procedures applied to the intake psychologist and the prison guards. The 7th Circuit noted the District Court did not have the unredacted documents when it ruled on the government’s summary judgment motion.

“The district court’s resolution of the discovery disputes in this case resulted in a record so limited that it could not support summary judgment for the government,” Judge David Hamilton wrote for the court. “A better-developed record would have allowed the district court and this court to assess better the merits of the government’s motion for summary judgment.”

Indiana Supreme Court

Nov. 13

Civil Plenary – Judicial Review of Agency Record

Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education


First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, On Behalf of the Indiana Department of Insurance


A petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by the Administrative Orders and Procedures Act. Not doing so will result in dismissal of the petition, the Indiana Supreme Court unanimously ruled.

The justices accepted Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education to address the question of whether an official agency record is required to adjudicate a petition for review under the AOPA. Teaching Our Posterity Success Inc. was approved by the Department of Education and State Board of Education as a Supplemental Educational Services provider, but the DOE removed TOPS from its list of approved providers a year later. TOPS sought administrative review, in which the DOE sent a letter affirming the decision. TOPS then sought judicial review but did not file an official agency record or request extension of time to do so.

The trial court dismissed TOPS’ petition, agreeing with the DOE that failure to file a timely and complete agency record with the trial court warranted dismissal. The Court of Appeals reversed.

The justices acknowledged a long-standing lack of consensus on the subject. Justice Robert Rucker wrote that caselaw can be summarized in two ways. If the trial court can’t decide the issue based on the documents before it, then “cause for dismissal” is read to mean the appeal “shall be dismissed.” But if the documents before the court provide enough information for it to decide the issue, even if it is not the agency record, the lack of an official record simply permits dismissal, but does not mandate it.

“At first blush concerns of judicial economy seem to weigh in favor of the foregoing view. After all, why should the parties expend the time and resources necessary to compile an agency record where the relevant facts are all contained in a few documents?” Rucker questioned. “On the other hand whether the documents before the trial court provide enough information enabling the court to decide an issue in a given case will likely be contested by the parties. The judicial economy argument thus swings in the other direction.”

“It appears to the Court that submitting the record up front diminishes the potential for time and resource-consuming satellite litigation such as we have in this case. It further obviates the necessity for the trial court to ascertain blindly whether the documents before it are enough or whether other documents in the official record — to which it does not have access — are relevant to the issues on review. Further, AOPA explicitly provides a mechanism by which the parties may condense the record by agreement potentially saving both sides time and expense,” he continued.

“In sum we hold a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record has not been filed. In our view this bright-line approach best serves the goals of accuracy, efficiency, and judicial economy.”

Because TOPS did not file an agency record as anticipated by AOPA, the trial court properly dismissed its petition for judicial review.

The justices relied on their decision in TOPS to reverse the trial court decision denying Indiana insurance commissioner’s motion to dismiss First American Title Insurance Co.’s request for judicial review. In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, On Behalf of the Indiana Department of Insurance, First American challenged the Department of Insurance’s report on the company, seeking judicial review by the trial court of the commissioner’s order. The company did not submit the agency record as required by AOPA, thus its petition for judicial review cannot be considered.

Criminal – Possession of Methamphetamine/Measurement

Joseph K. Buelna v. State of Indiana


Authorities improperly charged a man with meth manufacturing based on the volume of an intermediate mixture, but other evidence was sufficient to affirm his conviction of Class A felony manufacturing methamphetamine, the Indiana Supreme Court held.

Justices clarified the evidence required for conviction of the highest degree felony under the statute, which requires possession of at least three grams of “adulterated” meth. Chief Justice Loretta Rush wrote an opinion clarifying the ambiguous language: “We construe ‘adulterated’ methamphetamine as a final product, not the total weight of an intermediate mixture still undergoing reaction.”

This issue arose in Joseph K. Buelna v. State of Indiana. An Elkhart Superior Court jury convicted Buelna and imposed a 50-year sentence with 30 years executed. Rush wrote for the unanimous court that imposing the highest-level punishment for manufacturing meth requires the state to demonstrate how much pure or “adulterated” meth an intermediate mixture would ultimately yield.

“Here, the State improperly relied upon the weight of an intermediate mixture to support the enhancement (from a Class B to Class A felony) without proof of how much final product it would have yielded,” Rush wrote. “Yet the testimony of Buelna’s co-manufacturer and their mutual friend sufficiently established that Buelna manufactured well over three grams of additional methamphetamine. We therefore affirm Buelna’s conviction.”

Justices also used the opinion to put perspective on the state’s meth scourge.

“Methamphetamine is a poison that destroys the individuals who use it and harms the communities in which they live. Last year, our State had the highest rate of methamphetamine laboratory seizures in the entire nation,” Rush wrote.

“That statistic memorializes the seriousness with which authorities have responded to this plague and soberly reminds us how pervasive methamphetamine manufacture has become. Our General Assembly has appropriately mandated that those who manufacture more ‘pure or adulterated’ methamphetamine should be punished more severely than those who manufacture less,” the court stated in prefacing its guidance for law enforcement.

Indiana Tax Court

Nov. 19

Tax – General Fund Levy

The City of Greenfield and the Greenfield Fire Protection Territory v. The Ind. Dep’t of Local Government Finance


Citing a lack of sufficient factual findings and a public law’s unconstitutionality, the Indiana Tax Court reversed the adjustment made by the Department of Local Government Finance to the Greenfield Fire Protection Territory’s general fund levy for the 2012 budget year.

The city of Greenfield and Center Township in Hancock County adopted identical ordinances in 2008 that established the Greenfield Fire Protection Territory. In 2011, the Legislature enacted Public Law 172-2011, Section 164, a non-code provision that deals with each fire protection territory in Hancock County that has a uniform tax rate throughout the territory. The law allows the DLGF to review the tax rate and levies.

The Greenfield Fire Protection Territory is the only fire protection territory in the county that has a uniform tax rate.

After holding a public hearing and accepting evidence, the DLGF reduced the territory’s general fund level from $2,345,015 to $2,060,260 for the 2012 budget year, effectively eliminating the territory’s use of a uniform tax rate.

The city and territory appealed in 2011, and the Tax Court heard arguments in June 2012.

Senior Judge Thomas Fisher found that the state agency’s factual findings contain very few factual findings. Many merely identify the witnesses that offered testimony and reproduce evidence, or just a legal rationale for readjusting the levies, but no factual findings.

And although the lack of sufficient factual findings would typically require the court to remand the matter to the DLGF, Fisher remanded for a different reason: The DLGF final determination is invalid because P: 172-2011, Section 164 violates Article I, Section 23 of the Indiana Constitution.

That section provides that “in all cases enumerated in (Section 22), and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state.”

Courts have upheld a special law that applied solely to a county because of unique circumstances that justified the special legislation, Fisher wrote.

“The certified administrative record and the three generally applicable provisions of Public Law 172-2011 regarding fire protection territories indicate that Public Law 172-2011, Section 164 could have been written to apply throughout the state because neither the Territory nor the circumstances surrounding its establishment are unique. Therefore, Public Law 172-2011, Section 164 contravenes the special legislation provisions set forth in Article 4, Section 23 of the Indiana Constitution. Accordingly, the DLGF’s final determination that adjusted the Territory’s general fund levy for the 2012 budget year pursuant to Public Law 172-2011, Section 164 is invalid.”

Indiana Court of Appeals

Nov. 12

Miscellaneous – DOC Disciplinary Complaint/Scope of Authority

Frederick Holmes-Bey v. Keith Butts


The Indiana Court of Appeals found a Henry County judge erred when he denied an inmate’s petition for habeas corpus challenging a disciplinary decision from the Indiana Department of Correction. The judge should have instead dismissed the petition.

Frederick Holmes-Bey, a DOC prisoner, sought judicial review of the decision by the prison disciplinary board that Holmes-Bey should lose 180 days of credit time, as well as other sanctions, for his refusal of a Sex Offender Management and Monitoring Program polygraph. Holmes-Bey was a participant in the program, but he argued that the sanctions violate his right against self-incrimination.

He sent his request for relief under 28 U.S.C. Section 2254 to Henry Circuit Court 2 instead of federal court. Holmes-Bey sent a letter a few days later to the court saying that it was filed in the wrong court. A month later, Judge Kit C. Dean Crane held that Holmes-Bey’s petition could be filed in state court, but that he was without jurisdiction to consider the request for the writ. Crane then denied the petition.

In Indiana, the enforcement of prison disciplinary sanctions is not subject to judicial review. Although Holmes-Bey claimed the sanctions violated his right against self-incrimination, he strenuously asserted that he is appealing a disciplinary decision, Judge L. Mark Bailey pointed out.

“Because the objective of Holmes-Bey’s complaint is review and rescission of a disciplinary sanction, Holmes-Bey did not have the right to raise the question in an Indiana court. The appropriate response of an Indiana trial court presented with a purported appeal of a DOC disciplinary decision is to dismiss the complaint because it would not fall within the general scope of authority conferred upon the court by constitution or statute,” Bailey wrote. “Here – assuming that the trial court clerk had no duty to forward the document after discovery that it had been filed in error – the action required of the trial court was dismissal of the improperly filed complaint.”

The judges remanded with instructions to dismiss the petition.

 Nov. 13

Civil Tort – Lawyer Disqualification/Lawsuit

XYZ, D.O., v. Robin Sykes and Thomas Williams, and ABC Hospital


In a case involving the conflicts that arise and obligations that remain when lawyers move from one firm to another, the Indiana Court of Appeals concluded that a law firm hired to represent plaintiffs in a medical malpractice lawsuit must be disqualified based on an attorney’s prior representation of the doctor being sued.

“We emphasize to the parties that we recognize that the imputed disqualification of an entire law firm is a serious penalty and that we do not make our decision lightly. That said, we must be cognizant that ‘public trust in the integrity of the judicial process requires that any serious doubt be resolved in favor of disqualification,’” Judge Terry Crone wrote, citing Robertson v. Wittenmyer, 736 N.E.2d 804, 806 (Ind. Ct. App. 2000). “This case squarely raises such serious doubt.”

An unnamed doctor filed a motion to disqualify the law firm Montross Miller Muller Mendelson & Kennedy from representing Robin Sykes and Thomas Williams in their lawsuit for negligence and loss of consortium against the doctor and an unnamed hospital.

The doctor claims that the law firm has an imputed conflict of interest because its attorney, Kathleen Clark, previously represented him as his primary lawyer in six medical malpractice cases. Clark represented him prior to her joining MMMMK. As an intake attorney, Clark interviewed the plaintiffs and recognized the doctor’s name as her former client, but still presented the claim to the firm, at which time Michael S. Miller decided to take the case.

The doctor’s attorney raised concerns that the law firm’s representation violated Indiana Rules of Professional Conduct 1.9 and 1.10, but MMMMK said it had implemented “internal security procedures” to screen Clark from participating in the case. The firm had represented the plaintiffs for more than 11 months at this point. The doctor filed a motion to disqualify the firm based on Clark’s prior representation of him, but the trial court denied his motion.

The Court of Appeals agreed with the doctor, relying on a three-step test adopted in Gerald v. Turnlock Plumbing, Heating & Cooling, LLC 768 N.E.2d 498, 502 (Ind. Ct. App. 2002), to determine whether a migrating lawyer, and in turn that lawyer’s new firm, should be disqualified from a present representation due to a prior representation.  

MMMMK claimed that the current matter is not substantially related to the prior representations, and so there is no conflict of interest implicated. But part of the plaintiffs’ claims may rely in part on the medical malpractice cases in which Clark represented the doctor in order to prove the negligent credentialing claim against the hospital. A similar claim was raised in the cases Clark handled. She also received confidential information from the doctor when representing him, Crone pointed out.

And, Because Clark was the doctor’s primary and, at times, only lawyer in the prior cases, she cannot be screened to avoid imputation of the conflict to MMMMK.  

Nov. 14

Civil Tort – Negligence/Motor Vehicle Death

Ray Clifton v. Ruby McCammack


The Indiana Court of Appeals turned upside down a trial court’s judgment in favor of a driver who collided with a moped rider who died at the scene of the Indianapolis crash in August 2012.

The appeals panel granted summary judgment to the father of Darryl Clifton. The decision reversed a grant of summary judgment in favor of the motorist ordered by Marion Superior Judge Michael Keele.

The COA remanded the case for a trial on damages on Ray Clifton’s claim for negligent infliction of emotional distress. Clifton, 82, relied on his son, Darryl, for care after back surgery. He saw a TV breaking news report about a moped fatality near his home, and fearing it was his son who had left on his mo-ped a short time earlier, Clifton drove to the scene and his fear was realized shortly after he arrived. His son had died minutes earlier.

The panel cited the modified impact rule established in Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991), which extends torts for negligent infliction of emotional distress to instances where the distress is a result of a physical injury negligently inflicted on another. The rule applies because Ruby McCammack had admitted negligence in the crash.

Clifton also met the temporal and circumstantial requirements to satisfy the bystander rule allowing emotional distress claims established in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007), the panel held.

“We therefore conclude that the trial court erred in granting McCammack’s motion for summary judgment and denying Clifton’s motion because Clifton’s claim satisfies the bystander rule and because he has alleged serious emotional trauma that is of a kind and extent normally expected to occur in a reasonable person under similar circumstances,” Judge Elaine Brown wrote for the panel.

Civil Tort – Patient Information/Pharmacist

Walgreen Co. v. Abigail E. Hinchy


See story on page 3.

Nov. 19

Civil Tort – Negligence

Sharon Handy v. P.C, Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler


A divided Indiana Court of Appeals concluded summary judgment was not proper for a home improvement business on a woman’s negligence claim. The customer was injured when a granite countertop propped up outside of the business fell on her foot while she was measuring it.

Sharon Handy sued P.C. Building Materials Inc. and other related parties claiming negligence following her injury. Handy went to the store on a Saturday to look for items for a home remodeling project. A salesperson directed her to look outside at granite countertops leaning against a wall of the store. She took rough measurements and came back the next day when the store was closed to take more detailed measurements. When she shifted one countertop in order to measure the one behind it, both ended up falling on her foot, injuring her toe.

The trial court ruled in favor of the defendants, finding the plaintiff to be a trespasser when she entered the property the day she was injured. The court also held there were no genuine issues of material fact indicating the countertops were a latent danger.

The Court of Appeals agreed with the trial court that it was limited to only evidence properly before the court, which did not include evidence designated by Handy because she untimely filed her response and designation of evidence.

“Handy asserts that summary judgment was inappropriate because genuine issues of material fact remain regarding her status on the premises and PC’s corresponding duty of care. We agree,” Judge Terry Crone wrote for the majority, which included Judge Paul Mathias. “As a general rule, a person’s status on the land, along with the duty owed by the landowner, is a matter left to the determination of the trial court and not the jury. However, a person’s status on the land may turn on factual issues that must be resolved by the trier of fact, thereby precluding disposition by summary judgment. Such is the case here.”

“It is undisputed that Handy entered onto the property to view the countertops for potential purchase, the exact purpose for which they were displayed, and not simply for her own convenience and curiosity. On its face, PC’s conduct justified others in believing that PC was willing to have them enter the premises if they desired to do so. Thus, at a minimum, Handy was a licensee with the privilege to enter the premises by virtue of PC’s permission or sufferance. The question becomes whether that privilege was also extended by invitation.” The majority remanded for further proceedings as genuine issues of material fact remain as to whether P.C. breached its duty of care to her. Judge Patricia Riley dissented in part, writing based on the designated evidence before the court, she would affirm the trial court in every respect. “[M]y analysis of the designated evidence is in line with the trial court’s conclusion that Handy is a ‘trespasser,’ or at best, a licensee,” she wrote.

Criminal – Evidence/Unreasonable Search

Phillip D. Mundy and Merle Jost v. State of Indiana


The Indiana Court of Appeals reversed drug charges against two Bloomington men after finding the police detective’s actions unreasonable. The detectives entered the men’s property while looking for another person despite clear signs of “no trespassing.”

Bloomington detectives Brandon Lapossa and Rick Crussen went to East Collins Lane in Bloomington to look for Clinton Douthitt. Police wanted to speak to Douthitt, who they thought may have information about a stolen handgun thought to be used in a murder. When no one answered at the home where they believed Douthitt lived, the detectives drove up a private drive until they saw a cable stretched across it. There was a security camera and a “no trespassing” sign posted. Crussen removed the cable from one side and the detectives continued driving up until they saw a mobile home.

When they got out of the car, they smelled marijuana. Merle Jost told detectives Douthitt was not there and it was not his residence. Based on the marijuana smell, the detectives later applied for and received a search warrant, which led to charges against Jost and Phillip Mundy.

Jost and Mundy, who were charged with various Class D felonies, sought to suppress certain evidence. The trial court denied their motions, but on interlocutory appeal, the COA reversed.  

Using Litchfield v. State, 824 N.E.2d 356, 358 (Ind. 2005), to analyze their Article I, Section 11 claims, the judges found that the detectives’ actions were unreasonable. The degree of suspicion or knowledge that the police had regarding Douthitt was not terribly strong, Judge Paul Mathias wrote, and the detectives took little or no steps to make sure they had the correct address when they entered the property where Jost and Mundy were.

The judges found the degree of intrusion the most troubling about the actions of the detectives. Despite all the signs that strangers were not welcome, including an actual sign that said “no trespassing,” the police still continued up the driveway.

And although the detectives were investigating serious crimes when looking for Douthitt, there is no indication that there were any circumstances, such as a hot pursuit, that would justify their intrusion, Mathias pointed out.

The actions of the detectives were unreasonable and the warrant to search the property was based on information gathered unconstitutionally and should not have been issued. The judges remanded for further proceedings.

Nov. 20

Criminal – Evidence/Traffic Stop

Joseph M. Johnson v. State of Indiana


The Indiana Court of Appeals reversed the denial of a man’s motion to suppress evidence collected during an investigatory traffic stop. The judges held that once the police officer knew the owner of the vehicle – who had a suspended license – was not driving, the investigation should have ended.

Jay County Sheriff’s Deputy Brad Wendel pulled over a gold van registered to Ashley Boyd because a driver’s license check revealed her license was suspended. While following the van, he saw no traffic violations.

When he approached the van, Joseph Johnson was driving and Boyd was a passenger. Boyd identified herself as Ashley Boyd and confirmed her license was suspended.

Then Wendel asked Johnson for his driver’s license because he wanted to confirm the driver was not Boyd. Johnson gave the deputy an identification card because his driver’s license was also suspended. Johnson was arrested and later charged with Class A misdemeanor driving while suspended.

Johnson filed a motion to suppress all evidence obtained during the traffic stop; the trial court denied it.

On interlocutory appeal the appeals court reversed and remanded, citing Armfield v. State, 918 N.E.2d 316 (Ind. 2009), and Holly v. State, 918 N.E.2d 323 (Ind. 2009).  

“The facts show that before asking for Johnson’s identification, Deputy Wendel knew of evidence or circumstances that indicated that the registered owner was not the driver, but a backseat passenger. By his own testimony, he had no reason to disbelieve Boyd’s statement. In other words, he no longer had reasonable suspicion that Boyd was driving while suspended. As such, ‘there is simply nothing in this record justifying any further inquiry subsequent to the valid Terry stop,’” L. Mark Bailey wrote, quoting Holly. “The deputy’s investigation should have ended there.”

Nov. 21

Criminal – Revocation of Probation/Evidence

Deriq Watters v. State of Indiana


Because a man’s probation was revoked based on unsubstantiated evidence, the Indiana Court of Appeals reversed the revocation.

Deriq Watters was on probation in Howard County when he was allegedly arrested in Marion County. Watters told his probation officer that it was not him and the case would be dismissed. The state filed a petition to revoke Watters’ suspended sentence based on the probation officer’s belief that Watters had committed the new offense.

At the hearing, the state submitted two uncertified documents: an abstract of judgment convicting Watters of Class B felony robbery in Marion County and a purported plea agreement resolving that issue. Watters objected to both, claiming they were inadmissible hearsay because they were uncertified.

The trial court overruled and entered the exhibits into evidence. Watters was ordered to serve the remainder of his suspended sentence in the Department of Correction.

Judge Melissa May pointed out that there are no certified copies, affidavits or testimony to substantiate the exhibits offered into evidence. The probation officer never testified she had done anything to corroborate the validity of the documents she received by email.

“While trial courts have the discretion to admit hearsay evidence at a probation revocation hearing, the admission must not violate the due process standards provided by the United States Supreme Court,” May wrote. “We decline to extend the lowered bar for admission of hearsay at probation revocation hearings to include evidence with no ‘indicia of reliability.’ Although there is no bright line test of this reliability, testimony of the parties directly involved, affidavits of parties directly involved, and certified copies would have sufficed without putting an undue burden on the State. As the State did not provide any of those indicia of reliability herein, we hold the evidence was inadmissible.”

Small Claim – Right of Representation

Destination Yachts Inc., and Sheldon Graber v. Jim R. Fine


Finding that a businessman who was confused as to whether he needed his attorney to appear in a small claims case was denied the basic right of representation, the Indiana Court of Appeals reversed the denial of his motion for a continuance.

Jim R. Fine originally sued Sheldon Graber as president of Destination Yachts, claiming warranty work was not completed. After a hearing date was set, Fine amended the complaint to add Destination Yachts as a defendant. Fine flew in from Las Vegas and Graber appeared in person without counsel, on behalf of himself and the company.

Small Claims Trial Rule 8(C)(3) requires businesses be defended or presented by counsel when the claims exceed more than $1,500. Fine sought $6,000 plus materials. Graber said he spoke to his attorney, who thought he didn’t need to be present for the hearing. He testified that his attorney misunderstood what they needed to do because the complaint was originally against Graber, not the business.

He asked the special judge to reschedule the matter so his attorney could be present, but the judge instead entered a judgment of $6,000 against Destination Yachts, plus interest.

The judges turned to caselaw as to how to deal with a matter where a corporation appears without counsel since Small Claims Rule 8(C)(3) is silent on that issue.

They found this case to be similar to Sears v. Blubaugh, 613 N.E.2d 468, 469 (Ind. Ct. App. 1993), in which the COA reversed default judgment in favor of the plaintiff after the defense asked for a continuance upon learning his counsel should have appeared. The appeals court held that Sears should have been given a chance to rectify its error.

In the instant case, the statement of claim told Graber he didn’t need an attorney, unless he was a corporation. But Fine initially just sued Graber, not the company. And at the hearing, Graber was confused about whether he needed an attorney.

“We believe under these facts, and under our standard of review in this case of prima facie error, the denial of a motion to continue was an abuse of discretion. We are aware that Fine travelled from Las Vegas for the hearing and that returning at a later date may have inconvenienced him. However, inconvenience is not a reason to justify the denial of a continuance where the basic rights of representation and defense against a claim are at issue,” Judge Melissa May wrote, ordering the case back to the trial court for more proceedings.

Criminal – Enhancement/Officer Injury

Antwonna Smith v. State of Indiana


The Indiana Court of Appeals reached a conclusion opposite from one reached by a previous panel of the court when the judges held a woman who was resisting arrest did not cause the officer’s injuries. The officer hurt his hand when he fell forcing the defendant to the ground.

Antwonna Smith was charged and convicted of Class D felonies theft and resisting law enforcement after she stole some items from a Meijer store. When police officer Rick Jones attempted to arrest Smith, there was a struggle. He pulled her arm and they fell to the ground. The fall scraped one of Jones’ knuckles and fingertip. Based on this injury, the state elevated Smith’s charge from a Class A misdemeanor to the Class D felony.

In 2006, a COA panel decided that a defendant “inflict” as used in the statute means “To cause (something unpleasant) to be endured,” and therefore a person resists law enforcement as a Class D felony if, while committing the offense, he “causes someone to experience bodily injury,” Whaley v. State, 843 N.E.2d 1, 10-11 (Ind Ct. App. 2006).

“As we do not believe a person who is thrown to the ground necessarily ‘inflicts’ or ‘causes’ an injury suffered by the person who throws her to the ground, we decline to follow Whaley,” Judge Melissa May wrote

“In the instant case, Officer Jones chose to halt Smith’s resistance by throwing her to the ground, and the officer was injured in doing so. Unlike Whaley, Smith did not create a scenario in which Officer Jones’ only option in handcuffing her was to remove her hands from a location in which he could not reach,” May continued. “As Smith did not inflict or directly cause Officer Jones’ injury, her conviction should not have been enhanced to a felony.”•


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