Opinions April 30, 2015

April 30, 2015

Indiana Court of Appeals
Bruce Angelo Evans v. State of Indiana
Criminal. Affirms conviction of Class B felony dealing in a narcotic drug and pleading to being a habitual substance offender. Evans waived his challenge regarding the instruction on jury unanimity by failing to object to the jury instruction or offer one of his own, and any error does not rise to the level of fundamental error. Affirms admission into evidence a large amount of cash found on Evans when he was searched by law enforcement officers after the controlled drug buy.

Donnell D. Wilson v. State of Indiana
Criminal. Affirms convictions of two counts of murder and one count of Class B felony armed robbery. Remands with instructions to vacate Wilson’s conviction for Class D felony conspiracy to commit criminal gang activity and leave standing the remaining enhanced sentences for criminal gang activity based on double jeopardy. The Twitter account was sufficiently authenticated as being that of Wilson and the trial court did not abuse its discretion by excluding Wilson from a portion of the trial after he argued with gallery member and became physical with the bailiffs.

William Arnold Henry and Mary Ann Henry v. Margo Liebner
Civil plenary. The trial court properly concluded the Henrys do not have title to the triangular parcel of land in question, and the evidence supports Leibner’s claim of adverse possession because there is evidence regarding her and her predecessor’s payment of taxes or compliance with the adverse possession tax statute during the relevant 10-year period from September 2001 to September 2011. The trial court erred by concluding that the non-party predecessors had obtained title via adverse possession where there was no evidence presented regarding their payment of taxes or compliance with the adverse possession tax statute during the 10-year period of June 1990 to June 2000. Remands for the trial court to enter judgment in favor of Leibner on her adverse possession claim.

Mitchell Swallows v. State of Indiana
Criminal. Affirms denial of petition to modify sentence. The trial court did not err in concluding that the revised sentence modification statute that became effect July 1, 2014, does not apply to his sentence.

Casie S. Rudisel v. State of Indiana
Criminal. Reverses order that Rudisel serve the balance of her original sentence because the length of her sentence is in excess of the maximum sentence for a Class D felony. Remands for the trial court to sentence her within the statutory limit and account for the 218 days of credit time to which she is entitled.

Charles J. Davis, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Jody A. Bailey v. State of Indiana (mem. dec.)
Criminal. Affirms order revoking probation and order that Bailey serve the previously suspended portion of his sentence in the Department of Correction.

Robert Tibbs v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of felony murder and Class A misdemeanor carrying a handgun without a license.

Tim A. Tyler v. State of Indiana (mem. dec.)
Criminal. Affirms revocation of probation.

Stephen E. Abernathy v. State of Indiana (mem. dec.)
Criminal. Affirms sentence for Class D felony failure to register as a sex offender.

T.M. v. D.W. (mem. dec.)
Juvenile. Affirms paternity order and remands so that the trial court may amend its final decree to include an order directing father to pay the costs of mother’s initial drug testing and evaluation. Affirms calculation of father’s child support.

Servan Allen v. State of Indiana (mem. dec.)
Post conviction. Affirms denial of petition for post-conviction relief.

James Currin v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of Class B felony aggravated battery and Class D felony battery.

Christopher K. Kesling, Emily Kesling, and Adam Kesling v. Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001, Peter Kesling, et al. (mem. dec.)
Civil plenary. Affirms finding by the trial court that the transfer of certain shares of TP Orthodontics from Peter Kesling to Andrew Kesling did not violate the terms of TPO’s shareholder agreement and that under the agreement, the plaintiff siblings should have received the right of first purchase of the shares in question.

S.H. v. State of Indiana (mem. dec.)
Juvenile. Affirms commitment of S.H. to the Department of Correction following adjudication as delinquent for committing what would be Class B felony robbery if committed by an adult.

Anthony D. Moore v. State of Indiana (mem. dec.)
Post conviction. Affirms denial of petition for post-conviction relief.