Indiana Court Decisions – Feb. 4 to 17, 2015

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Indiana Supreme Court

Feb. 4

Criminal – Robbery/Statute of Limitations

John O. Study v. State of Indiana


In dealing with an issue of first impression, the Indiana Supreme Court found a robbery charge should be dismissed because it was filed outside of the statute of limitations. The state argued the defendant had concealed evidence of the crime, thus tolling the five-year statute of limitations.

John Study was charged in August 2012 with multiple counts stemming from the robberies of four Boone County banks. At issue is the charge relating to the robbery of a Key Bank on March 21, 2006. Study sought to have the count dismissed because it was outside the statute of limitations; the state relied upon the concealment-tolling provision to bring the charge.

“Here, the State argues that concealment of any evidence of guilt tolls the statute of limitations. The charging information alleges that concealment occurred when Study concealed his identity by wearing a mask, and concealed the getaway car, clothes worn during the crime, items taken from a victim, the weapon used, and evidence linking the robbery to other robberies,” Justice Steven David wrote. “None of these actions would serve to prevent law enforcement from discovering that a bank had been robbed. The State’s ability to investigate the crime and develop a case was not thwarted. Interpretation of the statute of limitations requires balancing the defendant’s interest in being timely prosecuted and the State’s interest in having sufficient time to investigate and build a case.”

“If concealment of guilt is all that is required to toll the statute of limitations, it is hard to imagine when the concealment-tolling provision would not apply. In almost every criminal case, the offender is going to attempt to conceal that they have committed the offense,” he continued.

David noted had the General Assembly disapproved of the courts’ approach, it has had plenty of time to alter the statutory language. And he also pointed out that since 1882, Indiana courts have continued to hold that concealment tolls the statute of limitations only when there is a positive act performed by the defendant that is calculated to prevent the discovery that a crime has been committed. Study’s attempts to conceal his guilt were not thwarting the progress of the police investigation.

The justices remanded for the trial court to vacate the robbery conviction and sentence. They affirmed his other convictions and noted his new sentence is 53.5 years. They also affirmed a $40,000 fine.

Indiana Tax Court

Feb. 16

Tax – Sales Tax Refund/Utilities

Alloy Custom Products, Inc. v. Indiana Department of State Revenue


A Delphi company that makes cryogenic tanker trailers as well as repairs and rehabilitates used ones could not convince the Indiana Tax Court that it should be entitled to a refund on the utilities it used to rehab tankers.

Alloy Custom Products Inc. sought review of the denial by the Indiana Department of State Revenue of a refund of the sales tax it paid on utilities consumed while fixing the cryogenic tankers between September 2006 and March 2010. Alloy claimed it qualifies for the exemption in I.C. 6-2.5-4-5 that provides the retail sales of electricity and natural gas by a public utility to a purchaser that uses that electricity and gas in its manufacturing process are not subject to sales tax. The purchaser must be using those utilities as part of a process that produces tangible personal property.

The IDSR only refunded Alloy on the sales tax paid on utilities used to make the tanker trailers. Alloy argued that its rehabilitation process of used trailers produces tangible personal property. Both parties sought summary judgment before the Tax Court.

Senior Judge Thomas Fisher ruled in favor of the state after applying a four-question test outlined in Rotation Prods. Corp. v. Indiana Dep’t of State Revenue, 690 N.E.2d 795, 798 800-02 (Ind. Tax Ct. 1998). Those questions ask whether a product has been transformed into a new product or whether routine maintenance and repair was performed.

Fisher found that Alloy’s rehabilitation of used trailers is merely normal repair. He noted the whole point of the rehab process is to restore the bottle’s capacity to transport liquid gas. The fact that an owner may opt to take the trailer out of service does not mean, however, that the rehab process is not “routine maintenance,” as Alloy claimed. Plus, a tanker trailer can be rehabbed several times. Fisher granted the state’s request for summary judgment and denied Alloy’s request.

Indiana Court of Appeals

Feb. 5

Criminal – Out-of-Court Statements/Accomplice

Anthony J. Thornton v. State of Indiana


The Indiana Court of Appeals reversed a Lake County man’s Class B felony criminal confinement conviction because the trial court erred in admitting out-of-court statements by an alleged accomplice.

Anthony Thornton faced several charges in connection with the rape and confinement of K.W., whom he and two other men picked up at a gas station. She asked for a ride home, but they took her to Thornton’s apartment, where she was forced to have sex or oral sex with the men. Thornton admitted that the men gave K.W. a ride but said he did not have sex with her and was giving her a ride home when she fled from his vehicle.

The jury only convicted Thornton of felony criminal confinement.

Thornton challenged testimony from a detective who took a statement from Thornton’s co-defendant, Kevin Dillard. The detective said that Dillard’s version of what happened and Thornton’s version did not match. He said there were a few similarities in their statements, but also some major differences. He did not go into detail, and Dillard was not available for testimony or cross-examination.

The state argued that because the detective didn’t describe the substance of Dillard’s statements, his testimony wasn’t prohibited under the Confrontation Clause.

“If anything, the testimony in question here is worse than specific facts. The testimony was pure innuendo, necessitating that the detective make his own determination and interpretation of the content of Dillard’s statement as well as Dillard’s and Thornton’s reliability and credibility. The purpose of this testimony was to imply to the jury that Thornton was being dishonest, based solely on pure speculation regarding the nature and extent of the alleged inconsistencies,” Judge John Baker wrote.

“We agree with Thornton that to permit the State to hint at the substance of a conversation so long as specific details are not mentioned would violate both the United States and Indiana Constitutions, inasmuch as it would permit the State to bootstrap in evidence that is otherwise inadmissible and permit a witness to make his own determination of a declarant’s reliability.”

They reversed the conviction because it’s not a harmless error, pointing to the jury’s inability to reach a verdict on all but one of the charges against Thornton.

The judges also warned the prosecution against making certain statements at retrial during closing arguments as it did during the first trial.

“To blame a shortcoming in the State’s evidence on a defendant’s invocation of a fundamental constitutional right surely constitutes prosecutorial misconduct, and likely also constitutes fundamental error,” Baker wrote. Also, a prosecutor may not request that a jury convict a defendant for any reason other than his guilt. It is improper to invoke sympathy for a victim as a basis for conviction.

“Should the State decide to retry Thornton, we admonish the prosecutor to avoid making similar comments the next time around,” he wrote.

Feb. 6

Domestic Relation – Grandparent Visitation/Adoption

Kirk R. Jocham v. Melba Sutliff


See story on page 3.

Feb. 9

Criminal – Sentence/Double Jeopardy

Shane L. Keller v. State of Indiana


A man who repeatedly broke into property and stole tools and items being used to renovate a long-vacant farmhouse likely will remain sentenced to 50 years in prison, even though the Indiana Court of Appeals vacated two of his convictions as violations of the prohibition against double jeopardy.

The appeals panel ruled that two convictions for Class D felony receiving stolen property were based on the same factual elements that formed the basis for the convictions on Class D felony theft charges. The panel remanded with instructions to vacate the receiving stolen property convictions.

Shane Keller also was convicted of two counts of Class B felony burglary, one count of Class C felony burglary, three counts of Class D felony theft, and he was adjudicated a habitual offender. He was sentenced to maximum penalties on each of the eight convictions to run concurrently, for an aggregate 20 years executed. The trial court imposed a 30-year enhancement to the Class B felony burglary conviction, for a total executed sentence of 50 years. Vacating the two receiving convictions therefore is not likely to reduce the sentence.

Writing for the panel, Judge James Kirsch closed the opinion with a footnote explaining the panel had not reached Keller’s argument that the sentence was inappropriate in light of the nature of the offense and his character.

“Because this issue could be raised on a subsequent appeal, we remind Keller that an extensive criminal history is a significant factor in our evaluation of the character of the offender when reviewing whether a sentence is inappropriate,” Kirsch wrote.

Civil Tort – Medical Malpractice

Jamie Thomson v. Saint Joseph Regional Medical Center and Michael Borkowski, M.D.


A trial court erred in granting summary judgment to a hospital and a doctor who performed a hysterectomy during which an arm board became unattached. After the patient’s arm dangled for much of the surgery, she was diagnosed with nerve damage in her arm.

A medical review panel determined that neither defendant had failed to meet the applicable standard of care. After Thomson proceeded with a lawsuit, St. Joseph Circuit Judge Michael S. Gotsch granted summary judgment for the defendants.

“We find that, given the nature of this case, Thomson was not required to present expert testimony to rebut the panel’s conclusion as to either defendant’s failure to meet the standard of care. We also find that the expert testimony Thomson presented was sufficient to rebut the panel’s conclusion as to causation. Accordingly, we reverse and remand for further proceedings,” Judge John Baker wrote for the panel.

Baker cited prior caselaw allowing the inference of negligence upon a showing that the injuring instrumentality is under the management or exclusive control of defendants and that the accident is avoidable with proper care. A doctor noticed the detached arm board during the operation and corrected it, but not until a little more than halfway through the two-hour procedure.

 “(I)t suffices to say that common sense and experience lead us to conclude that an arm board should not become detached leaving a patient’s arm dangling for such a period of time that the patient suffers nerve injury,” Baker wrote.

Feb. 11

Guardianship – Guardian and Attorney Fees

In the Matter of the Guardianship of N.R., N.R. v. Eva Willis and Charles Reagins, Peoples Bank, SB


Because a trial court did not look at whether fees requested by a man’s former guardians were necessary, the Indiana Court of Appeals reversed the order they receive more than $15,000 from his estate.

N.R., who is in his 80s, had his daughter, Nelva Berry, appointed as his attorney-in-fact in January 2012. Several months later, his niece, Eva Willis, and his nephew, Charles Reagins, filed an emergency petition to be appointed temporary co-guardians over N.R. and his estate. They claimed he couldn’t care for his financial affairs because of dementia with slight memory loss. The petition also neglected to mention Berry’s role as attorney-in-fact.

The trial court granted the petition without providing notice to N.R. or Berry. A month later, Berry and N.R.’s stepdaughter, Monique Wilson, objected. At a hearing held by the court, Berry and Wilson were appointed permanent co-guardians over N.R., and Willis and Reagins were removed. Peoples Bank was appointed temporary guardian.

Willis and Reagins asked for attorney fees of more than $15,000 and $177.55 in costs from N.R.’s estate for the time they spent as temporary guardians. The trial court granted their petition and also awarded the bank more than $7,000 in fees for its time as guardian.

Before the trial court and again here, N.R. maintained that he should have been allowed to present evidence showing that Willis’ and Reagins’ misconduct before and during the guardianship proceedings made the order appointing them as temporary guardians improper, so the award of fees and costs was unreasonable.

According to the opinion, before Willis and Reagins applied for temporary guardianship, the two had changed the locks on N.R.’s home and had his mail forwarded to a P.O. Box to which he did not have access. This caused unpaid bills, damaged N.R.’s credit and may have served as the pair’s basis for asking the court for guardianship.

The order appointing the two should have not been entered without notice and hearing, Judge Margret Robb wrote. There is a legitimate concern that the trial court did not scrutinize whether the temporary guardianship was needed, whether the pair were the appropriate people to be appointed, whether they acted in good faith and reasonably in incurring fees to petition for guardianship, and whether their misconduct contributed in whole or part to the deficiencies they alleged necessitated the guardianship proceedings.

The judges reversed the awards to Willis, Reagins and the bank and ordered the trial court to hear N.R.’s evidence and reconsider the fee petitions.

Feb. 12

Juvenile – CHINS/Rehearing

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


The Indiana Court of Appeals granted the Department of Child Services’ request for rehearing of an August 2014 decision in which the court reversed a child in need of services finding for a child whose father was in the Navy for the first few years of the child’s life. The judges clarified their reasoning but affirmed their decision in all respects.

Last year, the Court of Appeals reversed the adjudication of M.H.’s child as a CHINS after finding DCS did not establish that M.H. is unlikely to meet the child’s needs absent court intervention based on his lack of parenting experience and previous diagnosis of having post-traumatic stress disorder. 

S.A. was removed from his mother’s home on allegations of drug abuse and placed with his maternal grandmother. M.H. did not establish paternity for the boy, who was born in 2011, until 2013, after the CHINS proceeding had begun.

The mother admitted to the allegations, but M.H. challenged them. He had been discharged from active duty, returned to Indianapolis and found stable housing and employment. He wanted to receive custody of the child. The trial court continued the adjudication, but the appeals court reversed after finding the DCS did not meet its burden of proof regarding father.

DCS claimed that the appeals court ruling “effectively sent (S.A.) back to a Mother who admitted she needed help with her substance abuse” and left no room for the CHINS court to protect the child further.

But M.H. has a pending petition for modification of custody. In fact, the trial court denied father’s request to let the parents have joint custody of the child, so the COA is unsympathetic to DCS’ claims, Judge Terry Crone wrote.

They also rejected DCS’ claims that the opinion means that a juvenile court must wait until both parents appear in court at the same time and hears the matter in its entirety at the same time. The opinion simply stands for the proposition that when the CHINS adjudication can involve both parents at the same time, it should involve both parents at the same time so there is one adjudication as to all facts pertaining to the entire matter.

“If multiple hearings are unavoidable, then the trial court should, if at all possible, refrain from adjudicating the child a CHINS until evidence has been heard from both parents. And if an adjudication is unavoidable before evidence has been heard from the second parent, then the trial court must give meaningful consideration to the evidence provided by the second parent in determining whether the child remains a CHINS,” Crone wrote. Judge Patricia Riley voted to deny the petition for rehearing.

Civil Plenary – Local Government/Zoning

Town of Pittsboro Advisory Plan Commission and Town of Pittsboro Town Council v. Ark Park, LLC


A company that did not file the board record or request an extension of time to file the record within 30 days as required by the applicable judicial review statute should not have been allowed to proceed with its request for judicial review, the Indiana Court of Appeals held. The judges reversed the denial of the town of Pittsboro’s request to dismiss Ark Park LLC’s claims.

Ark Park had its land zoned as a planned unit development under the 2004 town ordinance. But because Ark Park did not submit a master plan pursuant to Section 13 of the zoning ordinance within two years, it was required to again ask for the town council to rezone Ark Park’s real estate to a PUD zoning classification. Seven years later, Ark Park submitted its master plan, but had to submit a concept again because of the time lapse. This time, the plan commission denied zoning the land as PUD.

That’s when Ark Park filed a complaint against the town council and plan commission seeking judicial review and declaratory judgment. But Ark Park did not file the board record nor seek an extension within 30 days in order to do so as required by I.C. 36-7-4-1613. In June, the trial court denied the town’s motion to dismiss and granted Ark Park’s motion for leave to file an amended complaint.

The town appealed, and while the appeal was pending, the Indiana Supreme Court decided Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149 (Ind. 2014), and First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). These cases established a bright-line rule that a petitioner seeking judicial review cannot receive consideration of its petition where it has not timely filed the statutorily defined record.

Because Ark Park failed to comply with the statutory requirements, it was not entitled to judicial review of the town council’s decision, Judge Rudolph Pyle III wrote.

The judges also reversed the denial of the town’s motion to dismiss Ark Park’s first claim for declaratory judgment, which sought a zoning status declaration, because it presented no facts in its complaint on which the trial court could have granted relief under the Declaratory Judgment Act. They also reversed the denial of the town’s motion to dismiss Ark Park’s second claim for declaratory judgment because the claim challenging the constitutionality of a section of the zoning ordinance as applied to its property was not a proper claim for declaratory judgment.

The COA ordered the trial court to strike the claims for judicial review and declaratory judgment that are also contained in Ark Park’s motion for leave to file its first amended verified complaint for judicial review, declaratory judgment and permanent injunction, which the trial court granted leave to file through a June 2013 order. That order is not before the COA on appeal.

Feb. 17

Criminal – Murder/Guilty but Mentally Ill

Lori Ann Barcroft v. State of Indiana


The Indiana Court of Appeals reversed a guilty but mentally ill verdict against an Indianapolis woman who killed the pastor at her church because she believed he was part of a cartel that was pitted against her. The judges held Lori Ann Barcroft’s due process rights were violated when the trial court entered that verdict.

Barcroft suffered from delusions and believed Pastor Jaman Iseminger was in cahoots with the Bush family and the Mexican mafia. After police arrested Barcroft for Iseminger’s murder, she told police she married a man at the head of a Columbian cocaine cartel and that the Bush family and Mexican mafia are her husband’s enemies. She said Iseminger was responsible for her father’s death, was a liar, and she was the “only one who could take care of Jaman.”

Barcroft went to the church in the early morning on May 19, 2012, and shot the pastor several times. He died from a gunshot wound to the chest. Police found her hiding nearby under tall weeds with multiple rounds of ammunition.

After being read her Miranda rights, Barcroft said it was “probably best” for her to remain silent and have a court appointed attorney and asked if it would be “derogatory against” her if she spoke to the detective, who said no. She then gave her statement, which included the complex and extensive system of beliefs and delusions that were later categorized as paranoid and grandiose delusions associated with schizophrenia.

Although initially found incompetent to stand trial, Barcroft was later restored to competency. The judge entered a guilty but mentally ill verdict, which Barcroft appealed. She argued at trial that she was insane.  

In reaching that verdict, the trial court said Barcroft initially requested an attorney, which suggests some comprehension of her legal jeopardy. But based on Doyle and Wainwright and other caselaw, any use of her statements about requesting an attorney as evidence of her sanity is a violation of her due process rights, the appeals court held.

“The trial court’s verdict explicitly found Barcroft’s request for an attorney as evidence supporting an inference of sanity. Because such evidence was clearly used to support the trial court’s verdict that Barcroft was guilty but mentally ill, we find that such error constituted a substantial, blatant violation of basic principles of due process rendering the trial unfair to Barcroft. The trial court, therefore, committed fundamental error. We reverse Barcroft’s conviction and remand for a new trial,” Judge James Kirsch wrote.

Judge Ezra Friedlander wrote a separate concurring opinion in which he thought it was important to address whether Barcroft proved she was insane. Friedlander noted that the trial court’s conclusion that Barcroft had not proved by a preponderance of the evidence that she was unable to appreciate the wrongfulness of her actions was not clear error.•

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