Indiana Court Decisions - Jan. 7 to 20, 2015

January 28, 2015

7th Circuit Court of Appeals

Jan. 7

Civil – Social Security Disability

Daniel P. Minnick v. Carolyn W. Colvin, acting commissioner of Social Security


The 7th Circuit Court of Appeals reversed the decision of a federal judge to uphold the denial of a man’s request for disability insurance benefits. The appeals court held that an administrative law judge made a number of errors when considering the record.

Daniel P. Minnick sought Social Security benefits due to several serious medical problems, including fibromyalgia, chronic obstructive pulmonary disease and degenerative disc disease. The Disability Determination Bureau denied his claim and an administrative law judge determined he is not disabled within the meaning of the Social Security Act. Since the Appeals Council denied his request for review, Minnick sought review in the District Court, which affirmed the ALJ’s decision.

In making her decision, the ALJ discredited one of Minnick’s treating physicians after finding he rendered inconsistent assessments. She also relied on a vocational expert’s testimony that Minnick could work in various unskilled sedentary occupations.

The 7th Circuit judges pointed out that the ALJ offered a perfunctory analysis in determining Minnick’s degenerative disc disease did not meet or equal Listing of Impairments 1.04 involving spinal disorders.

“The ALJ dismissed the possibility of Minnick’s degenerative disc disease meeting or equal[ing] Listing 1.04’s criteria in two sentences. Beyond these two sentences, she provided no analysis whatsoever supporting her conclusion,” Judge William Bauer wrote.

They also found the ALJ erred by assessing a residual functional capacity that was not supported by substantial evidence. She discredited Minnick’s testimony using “the type of boilerplate language that we have consistently criticized,” Bauer continued. The ALJ discounted the doctor’s opinion due to internal inconsistencies and because his opinions regarding Minnick’s ability to bend and twist were unsupported by the record. But they were supported by the record, the judges pointed out. They remanded the case for further proceedings.

Jan. 14

Criminal – GPS/Fourth Amendment/Search

United States of America v. Dwan Rashid Taylor


The 7th Circuit Court of Appeals rejected a defendant’s claim that his motion to suppress drugs and guns found by police at a storage locker through the use of a GPS unit should have been granted because attaching the device to his car for purposes of gathering information was a search under the Fourth Amendment.

Police suspected Dwan Taylor possessed cocaine or firearms and an investigation led to a deputy prosecutor in Marion County submitting a petition to the Superior Court in September 2011 for judicial approval to attach a GPS unit to Taylor’s car for 60 days. The request called for the device to be attached to the exterior of the car, powered by an internal battery or by the car’s battery, and installed while the car was in a public place or private property where the general public would have access to the car.

The petition was granted and the GPS unit led police to a storage unit where, after obtaining a search warrant, they discovered cocaine, firearms and digital scales. The search warrant did not say that GPS led officers to the unit but that “surveillance” did.

Taylor argued the evidence was the fruit of an unlawful search and cited United States v. Jones, 132 S. Ct. 945 (2012), which held the installation of a GPS device on a car is a search for Fourth Amendment purposes. The District Court denied the motion to suppress on the ground that law enforcement had reasonably relied on judicial authorization when using the GPS. While his case was pending, the 7th Circuit issued United States v. Brown, 744 F.3d 474 (7th Cir. 2012), which applied the good-faith exception in Davis to the use of a GPS device to track a car in 2006. This decision confirmed that Garcia and Cuevas-Perez were binding appellate precedent establishing that “installation of a GPS device, and the use of the location data it produces, are not within the scope of the [F]ourth [A]mendment.”

The District judge previously held that Davis’ good-faith exception didn’t apply and that United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), and United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011), were distinguishable because the GPS devices used in those cases did not draw power from the car’s battery, were not installed while the car was parked on private property, and did not track the car’s movement for 60 days. But after Brown came down, the judge added a supplemental entry to the docket, explaining Brown’s characterization of Garcia and Cuevas-Perez differed from her earlier analysis and supported the government’s position that Davis’ good-faith exception did apply to the GPS tracking of Taylor’s car.

 After pleading guilty, Taylor appealed.

Taylor contended that the District Court erred by relying on Brown to conclude that Davis’ good-faith exception applied to the GPS tracking of his car. He claimed that Brown was not meant to state a ‘blanket rule,’ but rested instead on the narrow ground that the police had obtained the owner’s consent before attaching the GPS device to the car.

“We disagree. The district court correctly concluded that Brown supports the application of Davis’s good-faith exception here. Brown makes clear that Garcia and Cuevas-Perez are pre-Jones binding circuit precedent,” the per curiam opinion states. “Brown also establishes that Davis’s good-faith exception more generally applies to pre-Jones use of GPS devices to track a suspect’s car based on earlier Supreme Court precedent.”

Indiana Supreme Court

Jan. 15

Criminal – Attempted Murder/Jury Instruction

Ruben Rosales v. State of Indiana


An Anderson gang member convicted of attempted murder will get a new trial after the Indiana Supreme Court vacated the judgment because jurors received erroneous instructions.

Ruben Rosales was 18 and a member of the Latin Kings gang when a teen from a rival gang, Sergio Torres, harassed and threatened his girlfriend and vandalized her house. Rosales and another man confronted Torres in an alley where he was severely beaten. Witnesses said they saw two men leaving the alley, including one matching Rosales’ description carrying a metal baseball bat.  

Rosales also told his aunt he needed to travel to Chicago to avoid “anymore trouble,” but when she found out about the attack, she called police who arrested Rosales at a bus station.

“On appeal, Rosales argues that the trial court committed fundamental error by giving an instruction permitting the jury to convict him of attempted murder as an accomplice without the specific intent to kill,” Justice Steven David wrote for the court. “Our careful review of our case law leads us to conclude that under the circumstances of this case Rosales is correct.”

David wrote the error was compounded in closing arguments, “when the State repeatedly insisted that specific intent to kill was not required for accomplice liability to attempted murder.”

Rosales was found guilty of Class A felony attempted murder and Class D felony criminal gang participation, and Madison Circuit Judge Thomas Newman Jr. sentenced him to an aggregate 50 years in the Department of Correction.

A divided Court of Appeals previously affirmed the conviction, with the majority finding the error harmless. Justices sided with appellate Judge Terry Crone’s dissent in that case.

“To be sure, there were also ample reasons for the jury to conclude that Rosales attacked Torres with the specific intent to kill him, so if the State had not repeatedly misstated the law we likely would have found an insufficient likelihood of prejudice to Rosales from the instruction,” David wrote. “But the State’s repeated insistence that Rosales’s specific intent to kill did not matter, coupled with the inaccurate jury instruction on accomplice liability, is enough to make a fair trial impossible and constitute fundamental error. We therefore reverse Rosales’s conviction for attempted murder and remand this case to the trial court for a new trial.

“Nevertheless, going forward, when an individual is tried for attempted murder as an accomplice, we recommend that Pattern Jury Instruction 2.11(a) be given. This instruction — titled ‘Aiding, Inducing or Causing Attempted Murder’ — instructs the jury, among other things, that the State must prove beyond a reasonable doubt that the defendant acted with the specific intent to kill when he or she knowingly or intentionally aided, induced, or caused another person to engage in conduct constituting a substantial step toward attempting to murder another person. Consistent with our case law, this instruction informs the jury of the State’s burden to prove beyond a reasonable doubt all the elements of attempted murder under an accomplice liability theory — especially the defendant’s specific intent to kill — in order to convict the defendant. And when the defendant is tried under both direct and accomplice theories of liability for attempted murder, this instruction becomes crucial to safeguarding against the error we found in this case.”

Indiana Tax Court

Jan. 20

Tax – Property Tax Exemption

(See index on page 19 for complete list of cases)

Indiana Tax Judge Martha Wentworth dismissed the challenges brought by 11 cooperatives regarding the Indiana Board of Tax Review’s denial of their appeals after their property tax exemptions were revoked. The judge found the court lacks subject matter jurisdiction to hear the cases.

The petitioners in these cases are multi-unit, multi-family cooperative apartment complexes that were granted property tax exemptions on their apartment complexes and personal property because they were owned, occupied and exclusively used for the charitable purpose of providing affordable housing to low-income people.

But after the Tax Court issued Jamestown Homes of Mishawaka, Inc. v. St. Joseph Cnty. Assessor, 909 N.E.2d 1138, 1144 (Ind. Tax Ct. 2009), in which it held that the provision of affordable housing to low-income persons was not a per se charitable purpose, the Marion County Property Tax Assessment Board of Appeals began to question some previous prior exemptions. It eventually revoked the exemptions of the 11 petitioners regarding certain tax years, leading to their appeals.

The Indiana Board of Tax Review denied the petitioners’ motions for summary judgment on their assertions the PTABOA’s revocation of the exemptions were improper because it lacked statutory authority and was untimely.

The 11 cooperatives then appealed to the Tax Court, which granted the Marion County assessor’s motions to dismiss in each of the cases, citing a lack of subject matter jurisdiction.

Wentworth found in each of the cases that the petitioners were appealing from an interlocutory order issued by the Indiana Board of Tax Review and not a final determination. There are still outstanding issues in each of the cases that the board needs to resolve.

She also rejected claims of the petitioners that they do not need to obtain a final determination from the board given “extraordinary circumstances” in their cases.

She remanded the 11 cases to the Indiana Board of Tax Review for action consistent with each opinion.

Indiana Court of Appeals

Jan. 7

Juvenile – CHINS/Fact-Finding Hearing

In the Matter of: L.C. (Minor Child), Child in Need of Services and S.C. (Father) v. The Indiana Department of Child Services


A father who claimed his due process rights were violated when his daughter was adjudicated as a child in need of services before the conclusion of a fact-finding hearing won his appeal before the Court of Appeals. But one judge believed that the trial court correctly found the girl to be a CHINS.

Father S.C. denied the allegations set forth in the CHINS petition regarding his 10-year-old daughter, whereas her mother admitted to the allegations. L.C. had been living with her mother when she witnessed her mother’s boyfriend assault the woman, requiring hospitalization. The mother was under the influence of alcohol during the incident. L.C. had lived with her father until May 2013 because of “personal issues.” The incident with her mother occurred in February 2014.

The juvenile court held a fact-finding hearing and adjudicated L.C. as a CHINS at the beginning of the first day of the hearing. It heard additional evidence on other days and granted wardship of L.C. to the Department of Child Services, ordered father to participate in reunification services, and placed the girl in a temporary in-home trial visit with father. The court noted that father allowed L.C. to live with her mother despite knowing she had issues with alcohol, he did not ensure the girl was properly supervised, and the court must intervene to make sure L.C. is safe until the father is provided services to learn to ensure her safety.

S.C. argued that he was deprived of a meaningful CHINS hearing. Judge Paul Mathias, writing for the majority, noted the procedure employed by the juvenile court in the fact-finding hearing in this case has been expressly rejected by the Indiana Supreme Court.

“Following Mother’s admission, the juvenile court was required to reserve its judgment on the petition until the completion of Father’s fact-finding hearing. The court’s failure to do so rendered the apparent fact-finding hearing for Father meaningless because nothing Father said or did at his fact-finding hearing could have affected the court’s adjudication ‘as to Mother,’” Mathias wrote. A CHINS adjudication is not rendered as to a father or mother, but rather as to a child.

Mathias and Judge Edward Najam reversed the adjudication and remanded for a new fact-finding hearing. Judge Cale Bradford dissented, finding father failed to establish he was denied a meaningful opportunity to be heard. He found the juvenile court’s findings supported its conclusion and the disposition was appropriate.  

Jan. 8

Criminal – Sixth Amendment/Penalty Statutory Maximum

Scott Hitch v. State of Indiana


A trial court committed fundamental error when it determined a man convicted by a jury of Class A misdemeanor battery committed a crime of domestic violence, the Indiana Court of Appeals held.

The appellate court held that the determination Scott Hitch committed a crime of domestic violence against his ex-girlfriend required the court to find a fact that increased the penalty for Hitch’s conviction beyond the statutory maximum. Hitch argued the determination infringed upon his Sixth Amendment right to a jury in violation of Blakely v. Washington, 542 U.S. 296 (2004).

The Supreme Court of the United States in Blakely found that “other than a fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Due to the domestic violence determination, Hitch is prevented from owning a firearm.

In October 2013, Hitch and Erica Bruce got into an argument while at a restaurant. Once back at Hitch’s apartment, Bruce decided to contact the father of her children. Hitch got angry, grabbed her by her neck, and got on top of her. She got out of the apartment and called 911. A jury found him guilty of Class A misdemeanor battery. The trial court determined that pursuant to I.C. 35-28-1-7.7, Hitch had committed a crime of domestic violence.

“Here, Hitch did not admit that Bruce was his spouse or that she was similarly situated to a spouse. Rather, he testified that she was staying with him temporarily. While Bruce testified that they had been in an intimate relationship, Hitch testified that they were not in a relationship,” Judge John Baker wrote. “Furthermore, as the jury convicted Hitch of battery rather than domestic battery, it reached no conclusion regarding the nature of the relationship between Hitch and Bruce. Therefore, in finding that Bruce was a person who was cohabitating with or had cohabitated with Hitch as a spouse or a person who was or had been similarly situated to a spouse, the trial court was required to find a fact that increased the penalty for Hitch’s crime beyond the prescribed statutory maximum in violation of Blakely. This determination infringed on Hitch’s Sixth Amendment right to a jury trial, and it amounts to fundamental error.”

The judges remanded for further proceedings consistent with the opinion if the state so desires.

Jan. 12

Civil Plenary – Property/Easement

Randy Corn v. Junior P. Corn, Bonnie D. Corn and Benjamin Corn


A fresh batch of legal questions are headed to the Wabash Circuit Court for resolution after the Indiana Court of Appeals found feuding neighbors were not co-owners of a lane that connects to all their properties.

The trial court found that Randy Corn was a joint owner of a narrow country lane with Junior Corn and Bonnie and Benjamin Corn.

However, in studying the conveyance of deeds that date back to the 1800s, the Court of Appeals discovered the chain of title that ended with Junior, Bonnie and Benjamin Corn (the Corns) did not include ownership of the lane. It also ruled that the trial court did not err when it ruled the Corns had not taken title of the lane through adverse possession.

The Corns countered that even if Randy Corn held title to the lane by virtue of the deed provisions, the trial court did err when it did not find the Corns took title of the lane by means of adverse possession.

The Court of Appeals noted this question, along with Randy Corn’s request of a permanent injunction against the Corns’ use of the lane, were left unanswered because the trial court found the parties were tenants in common. Therefore, since the panel unanimously reversed the ownership ruling, it remanded these legal matters to the trial court for further proceedings.

Jan. 13

Domestic Relation – Grandparent Visitation

In Re the Visitation of L-A.D.W; R.W. v. M.D. and W.D.


Grandparents rightly were awarded visitation with their granddaughter after their daughter died, but the Court of Appeals ruled a trial court abused its discretion in establishing the amount of time grandparents could spend with the child.

The grandparents of L.W. sought and received a visitation order after their daughter died following a long battle with cancer. She had primary custody of L.W. after divorcing the girl’s father, R.W., a short time earlier.

Judge Rudolph R. Pyle III wrote for the panel that the court didn’t err in granting grandparents visitation over father’s objection. The court gave father’s decisions regarding visitation special weight, didn’t misrepresent the amount of visitation he had allowed grandparents, and properly found grandparents had rebutted the presumption in favor of a fit parent’s decisions regarding grandparent visitation.

“However, we agree that the trial court abused its discretion in the amount of visitation it awarded Grandparents, and we remand to the trial court to amend the amount of visitation awarded,” Pyle wrote for the panel.

The trial court ordered that grandparents receive structured and unsupervised visitation: one overnight on one weekend during even-numbered months; two overnights on one weekend during odd-numbered months; every Tuesday during the school year until 7 p.m. and during the summer from 10 a.m. to 7 p.m.; eight hours on Mother’s birthday; four hours on grandparents’ birthdays; one overnight during the week of L.W.’s birthday; and five consecutive days during the summer.

“This amount totals approximately seventy-nine days per year, which is higher than the amount we found was an abuse of discretion” in Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999), Pyle wrote. “It is also very similar to the parenting time schedule a non-custodial parent would have.”

The panel remanded to the trial court to establish a visitation schedule that allows grandparents “occasional, temporary visitation that does not substantially infringe on” father’s right to control L.W.’s “upbringing, education, and religious training,” citing the language of Visitation of M.L.B., 983 N.E.2d 583, 587 (Ind. 2013).

Jan. 14

Civil Plenary – Insurance/Property

Christopher Schmidt v. Indiana Insurance Co., C&F Insurance Group, LLC, and Bart Stith


Finding the owner of a home that burned designated additional evidence which created a genuine issue of material fact, summary judgment should not have been awarded to insurance agents on his claim, the Indiana Court of Appeals held.

Christopher Schmidt appealed summary judgment granted in favor of Indiana Insurance, C&F Insurance Group and Bart Stith. Schmidt inherited a New Albany home that he allowed his cousin to live in without property insurance. Officials were called to the home due to foul smells and emaciated animals living inside. The house was condemned.

Schmidt met with Stith about obtaining insurance for the property after it was condemned. There is a dispute as to whether he told Stith that the home was not occupied by a tenant and that he was cleaning up the property. Indiana Insurance issued a dwelling fire policy for the property. A couple months later, it burned and Schmidt reported the loss to Indiana Insurance. The company initially suspected arson, but it later refused to pay out on Schmidt’s claim because it alleged he falsified information on the application. It rescinded the policy and returned his premiums paid.

Schmidt sued, and C&F and Stith, referred to as the agents in the court record, and Indiana Insurance moved for summary judgment, which the trial court granted.

The COA reversed with regard to the agents, finding Schmidt designated two parts of his deposition, statements in his verified complaint and other materials in support of there being a material fact as to whether he told Stith of the condition of the property and whether he signed the insurance application. He claimed he didn’t remember signing it; Stith testified he saw Schmidt sign the application.

But the appeals court affirmed with regard to Indiana Insurance, noting Schmidt never responded to its motion for summary judgment.

The case is remanded for further proceedings.

Domestic Relation – Spousal Support

In Re: The Marriage of Gertiser; Kevin Gertiser v. Anne Stokes (formerly Gertiser)


A woman who remarried and now has substantial income and assets as a result of that marriage is no longer entitled to spousal maintenance, the Indiana Court of Appeals ruled.

When Kevin Gertiser and Anne Stokes divorced in 2007, he was ordered to pay her $1,182.50 a month in maintenance. Stokes is blind, receives $940 a month in Social Security disability income and works part-time as a sales person making less than $1,200 a year. She remarried in December 2012 and her new husband earns $163,800 per year, and they share bank accounts and have finance assets in excess of $600,000.

Once she remarried, Gertiser filed a petition to terminate the spousal maintenance, claiming Stokes now has the means to support herself. The trial court denied the petition, finding her personal earning ability and incapacity had not improved since the divorce. It also ordered Gertiser to pay $7,000 in Stokes’ attorney fees.

Spousal maintenance does not automatically terminate upon a remarriage, the Court of Appeals noted, but due to her remarriage, Stokes’ financial resources have substantially changed based on Indiana’s “one-pot” theory of martial possessions.

“Although the trial court is correct that Anne’s ability to earn income has not changed, the court abused its discretion by denying Kevin’s petition to terminate spousal maintenance because it did not consider the substantial income and assets now available to Anne pursuant to her marriage to Paul. Accordingly, the trial court should have terminated the spousal maintenance. Additionally, following the statutes regarding modification of child support, modification may be retroactive to the date of filing the petition,” Judge Melissa May wrote.

The judges reversed the order requiring Gertiser to pay toward Stokes’ attorney fees, noting that she now has more resources available to pay attorney fees than does Gertiser. There is no longer a wide disparity in their incomes. The case is remanded so that the trial court may terminate the maintenance retroactive to the notification of the petition on Stokes or her agent.

Jan. 15

Criminal – Drugs/Sentence

Corey Phelps v. State of Indiana


Finding that a judge was clearly influenced when he sentenced a defendant for cocaine possession by a jury’s decision not to convict the man of dealing in cocaine, the Indiana Court of Appeals ordered his sentence reduced.

Corey Phelps was charged with Class A felony dealing in cocaine and Class C felony possession of cocaine. The jury only found him guilty of the Class C felony. At sentencing, Marion Superior Judge Daniel Pflum stated that if Phelps had had a bench trial, he would have found the defendant guilty of dealing in cocaine, as Phelps was “clearly” guilty. The judge then sentenced Phelps to eight years, the maximum sentence for possession of cocaine.

“Here, the State does not dispute that the trial court expressed disagreement with the jury verdict. Instead, the State argues the trial court appropriately enhanced Phelps’s sentence by relying on other proper aggravating circumstances. We believe, however, that the presence of aggravating circumstances justifying an enhanced sentence does not wash away the stain left by a trial court’s blatant disagreement with the jury verdict at sentencing,” Judge Margret Robb wrote.

The appearance of fairness and the need to promote public confidence in the integrity of the judicial system are considerations carrying as much weight as any other, Robb continued, noting the sentence in this case is suspect.

Instead of ordering Phelps to be sentenced to the advisory sentence of four years, the COA remanded for the trial court to sentence him to six years and to correct the order of judgment of conviction since it indicates Phelps was convicted of a Class A felony.•


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