Indiana Court Decisions: June 10 to 23, 2015

July 1, 2015

7th Circuit Court of Appeals

June 15

Civil – Americans with Disabilities Act

Marc Shell v. Kevin Smith, in his official capacity as Mayor of the City of Anderson, et al.


A mechanic’s helper with the City of Anderson Transit System won the right to pursue his claims that his firing violated his rights under the Americans with Disabilities Act.

Marc Shell worked in his position for CATS for a dozen years and had hearing and vision impairments. The job description for his position required him to occasionally drive city buses to field locations, but Shell’s disability prevented him from obtaining a commercial driver’s license.

When a new mayor was elected, Shell was fired after a new CATS director enforced the job description and Shell could not get a CDL. The District Court granted summary judgment in favor of Anderson, but the 7th Circuit reversed.

“On appeal, Shell challenges only the district court’s entry of judgment as a matter of law on his ADA claim. We agree that a jury should decide whether the City violated the ADA,” wrote District Judge Theresa L. Springmann, sitting by designation from the Northern District of Indiana. Shell had also brought a claim before the District Court that his firing was politically motivated, but that matter wasn’t before the Circuit Court.

The panel held that the city could only require Shell to obtain a CDL if driving a bus was an essential function of the job of mechanic’s helper. The job description spells out numerous responsibilities but qualifies driving duties as something the position “may” require “occasionally.” Springmann wrote the job description had not changed during Shell’s tenure, yet driving was never part of his regular duties.

“It is difficult to see how the duty could be deemed essential at the summary judgment stage,” she wrote. “… Because there is evidence and reasonable inferences favorable to both parties, and the factual record does not establish as a matter of law that driving a bus was an essential function … this case must be allowed to proceed to a jury,” the panel concluded, remanding the matter to Judge Jane Magnus-Stinson in the U.S. Court for the Southern District of Indiana.

Indiana Supreme Court

June 9

Criminal – Warrantless Search

State of Indiana v. Brishen R. Vanderkolk


The Indiana Supreme Court reversed the partial denial of a man’s request to suppress drug evidence found during a routine warrantless search of the residence he shared with a man on probation. The probationer only consented to searches based on reasonable suspicion.

Defendant Brishen Vanderkolk lived with Jordan Sullivan, who was on home detention under community corrections when corrections officers went to his residence to conduct a routine warrantless search. Officers found illegal drugs in a common area shared by the two men, and they found drugs and paraphernalia in each man’s bedroom. Vanderkolk, charged with various drug-related offenses, moved to suppress all evidence found, arguing that it was found based on an improper search. The trial court only granted his motion regarding evidence found in his bedroom.

The Court of Appeals affirmed last year, but the justices reversed, ruling the evidence found in the bedroom also should have been suppressed.

The state claimed that based on Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006), the suspicionless search was authorized under the Fourth Amendment because of Sullivan’s community corrections status. It also claimed that Sullivan consented to the searches when he signed the community corrections handbook.

Samson involved a person on parole, and the decision did not authorize suspicionless searches based on a parolee’s status alone, Justice Brent Dickson wrote. He also noted that in the handbook, it says that Sullivan would consent to the search of his home “at any time without prior notice to search upon probable cause.” The ensuing search and seizures were thus unlawful under the Fourth Amendment and the resulting evidence must be suppressed, the justices held.

It is possible, however, for a probationer or community corrections participant, pursuant to a valid search condition or advance consent, to authorize a warrantless premises search without reasonable suspicion and be subject to such searches during the period of the probationary or community corrections status, Dickson wrote.

Justice Robert Rucker concurred in result without separate decision. The case is remanded to grant the motion to suppress in its entirety.

June 11

Adoption – Felony Conviction

In the Matter of the Adoption of Minor Children: I.B. and W.B.: B.B. v. B.C. and J.L., and Indiana Department of Child Services


An adoptive maternal grandmother who the Court of Appeals ruled provided care in her grandchildren’s best interests despite a 1997 neglect conviction is legally barred from adopting them, the Indiana Supreme Court ruled. Justices also rebuked a COA determination that the statute was unconstitutional as applied.

“We now hold the statute constitutional, despite its harsh consequences under these facts, and remand to the trial court to reconsider the petitions in view of the absolute statutory bar,” Chief Justice Loretta Rush wrote for the court.

Maternal grandmother B.C. adopted two grandchildren, including one with special needs, who had been removed by the Department of Child Services due to parental substance abuse. The children’s mother supported placement with the maternal grandmother, but the paternal grandmother also petitioned to adopt the children. The maternal grandmother’s prior neglect conviction had been for failing to report her ex-husband’s molestation of their child.

Indiana Code 31-19-11-1(c) bars adoption for anyone convicted of felony neglect. The trial court ruled that conviction was not dispositive of her ability to care for children, and based on findings in the children’s best interests, Vanderburgh Superior Judge Brett Niemeier placed the children with her. The Court of Appeals affirmed, holding the grandkids were entitled to an individualized determination of their best interests. DCS also agreed that the statute’s irrebuttable presumption of the maternal grandmother’s unfitness would be a violation of the children’s due process rights.

“We disagree with that analysis,” Rush wrote. “The United States Supreme Court has left its ‘irrebuttable presumption’ cases lying dormant for several decades. And under its more recent ‘classification’ analysis, the statute’s regrettable consequences under the facts of this case establish no as-applied constitutional violation.”

The court held the statute was constitutional because its prohibitions are rationally related to the classifications they draw, and there is no constitutional defect in barring adoptions by petitioners with felony neglect convictions.

The record also notes that the paternal grandmother failed to report her son’s domestic violence against the children’s mother – particularly an instance the paternal grandmother was aware of in 2012 when her son had beaten the children’s mother so severely she needed emergency medical care and could barely breathe.

“Distinguishing between convicted child-neglect felons and non-felons is rationally related to the legitimate legislative goal of ensuring that children will not be adopted into a neglectful home — and so the consequences of that distinction here, though regrettable, are not unconstitutional,” Rush wrote.

“We therefore reverse the trial court’s judgment on both adoption petitions and remand with instructions to vacate the adoption decree within thirty days of this Court’s opinion being certified and reconsider both adoptions to the extent they are not barred by the statute, including by considering whether a non-adoptive placement such as guardianship may be in the children’s best interests and by receiving additional evidence if the trial court so chooses.”

June 17

Life Without Parole – Murder/Sentence

Robert Lewis III v. State of Indiana


The Indiana Supreme Court upheld a Gary man’s convictions related to the death of a woman he met at a bar, but it reversed the sentence of life without possibility of parole because the trial court’s sentencing order lacked a personal statement from the judge that the sentence is the appropriate one for the defendant.

Robert Lewis III convinced Jennifer Kocsis to give him a ride home from a bar. She was discovered brutally murdered the next day in a parking lot from blunt-force injuries and strangulation. She had several broken body parts and injuries, her skirt and underpants were around her knees and a hand-shaped bruise or blood stain was on her buttocks. DNA evidence could not exclude Lewis from the DNA found on the outside and inside of Kocsis’ anus.

A shoe print found on her arm matched the tread on the bottom of Lewis’ sneaker, which he burned after the murder. He was convicted of murder, murder in the perpetration of criminal deviate conduct, criminal deviate conduct and resisting law enforcement. The jury was unable to agree on a sentence, so the judge sentenced Lewis to life.

The justices found sufficient evidence to prove Lewis engaged in criminal deviate conduct and there was no fundamental error by the court to omit a “reasonable theory of innocence” jury instruction under Hampton v. State, 961 N.E.2d 480 (Ind. 2012).

The justices did find that admission of testimony regarding Lewis’ prior conduct while consuming alcohol should not have been allowed as evidence of habit, but that it was harmless error based on the other evidence presented at trial.

The high court also held the sentencing order from the judge did not contain a personal statement that life without parole was an appropriate sentence, which is a violation of Harrison v. State, 644 N.E.2d 1243 (Ind. 1995), and Pittman v. State, 885 N.E.2d 1246 (Ind. 2008).  Those cases held the four things at a minimum that the sentencing order imposing a capital sentence must contain. In this instance, the judge’s order lacked the judge’s personal conclusion that the sentence is appropriate punishment for Lewis based on the crime.

The justices reversed Lewis’ sentence and ordered the trial court to issue a revised sentencing order. The justices declined to impose a term of years, as Lewis sought, finding the trial court to be in the best position to determine when a life sentence or term of years is appropriate for the crime.

Indiana Tax Court

June 23

Tax – Sales Tax/Restaurant Equipment

Aztec Partners, LLC v. Indiana Department of State Revenue


The Indiana Tax Court has ruled in favor of a company that operates 19 Qdoba Mexican restaurants in Indiana on its request that electricity used to power certain equipment is not subject to Indiana sales tax.

The electricity at issue is used in equipment to hold and preserve prepared food items at certain temperatures until they are combined into entrées that are sold to customers. None of the electrical equipment is used to cook food.  Aztec Partners filed 12 refund claims with the Indiana Department of Revenue seeking a refund on the sales tax it paid on the electricity used to power the equipment between Jan. 1, 2010, and March 31, 2011. The department found it was taxable and later denied Aztec’s protest.

To qualify for the exemption, Aztec must show that it is engaged in production, it has an integrated production process, and the electricity is essential and integral to its integrated production process. Judge Martha Wentworth ruled in favor of Aztec.

She found Aztec’s preparation and combination of the food items into entrées substantially changed the individual food items into new, marketable products that have a character and form different from the food items first acquired, thus the company was engaged in production during the period at issue.

The evidence also shows that Aztec engages in several steps before an entrée is completed for sale, and there is no evidence that demonstrates that Aztec sells the prepared food items separately. Finally, Wentworth found that during the period at issue the electricity that powered the electrical equipment that held and preserved the food items was essential and integral to Aztec’s integrated production process.

The matter has been remanded to the DOR so it may take the actions necessary to give full effect to this opinion.

Indiana Court of Appeals

June 10

Criminal – Probation/Restitution

Gerald R. Mauch v. State of Indiana


A trial court should not have revoked the probation of a man who was ordered to pay more than $100,000 in restitution as a condition of his probation, the Indiana Court of Appeals ruled. The man was able to prove that he could not fully pay off the balance owed because he was unable to obtain a reverse mortgage on his home.

Gerald Mauch was convicted of one count of Class D felony theft for stealing a large amount of money while working as an accountant for a swim club in Zionsville. He was sentenced to three years of probation, and a condition of it was that he pay $102,444.84 in restitution by the end of that three-year period. Even when his probation was extended three years to allow for him to pay the restitution, he still owed nearly $95,000. The probation department filed a petition to revoke his probation. The trial court denied his motion to dismiss.

Mauch, 76, was unable to sell his accounting practice to satisfy the debt because of his criminal record, which also hindered his ability to find other work. He also had several health issues that prevented him from doing most jobs. The trial court found that he could obtain a reverse mortgage on his house to cover the balance, but he argued no one would grant him the mortgage without the consent of his wife, Barbara.

The trial court ordered Mauch to serve his previously suspended sentence in the Department of Correction, where he currently resides with an earliest possible release date of June 9, 2016.

“Here, the record shows that Mauch is seventy-six years old and suffers from many health problems that impact his ability to work. In addition, his sole source of income is his monthly social-security check for $1,134.00. Mauch testified that he had inquired into several mortgage companies … but was told that he would be unable to take out a reverse mortgage without the consent of his wife,” Chief Judge Vaidik wrote.

“Barbara testified that upon the advice of an attorney, she would not consent to a reverse mortgage. Mauch made the required monthly restitution payments – $75.00 a week while employed and $100.00 a month while unemployed – except for the few months when he was hospitalized and received home health care. And he continued to make the $100.00 monthly payment between the final and status hearings. Despite the court’s finding that Mauch’s testimony was not credible, there is no indication in the record that he could get a mortgage without Barbara’s consent or that he had other funds to pay the balance. We find that Mauch has made a sufficient showing of his inability to pay and bona fide efforts to pay. Accordingly, the trial court abused its discretion in revoking Mauch’s probation.”

Criminal – Police Testimony

State of Indiana v. Brian J. Taylor


In a split decision, the Indiana Court of Appeals decided on interlocutory appeal that a trial court should not have issued a blanket exclusion order preventing all of the officers who eavesdropped on a defendant’s conversation with his attorney from testifying in any matter in the case.

“While the conduct of these officers surely merits and warrants the sternest of disapproval from us, we recognize such an extreme remedy has not been generally approved,” Judge Michael Barnes wrote.

Brian Taylor was under arrest for the murder of his girlfriend when he met with attorney David Payne at 4:12 p.m. in an interview room at the Michigan City Police Department. Some officers and LaPorte County Chief Deputy Prosecutor Robert Neary were able to hear some parts of the conversation from a nearby room, and they heard crucial information regarding Taylor’s guilt. It also led officers to the location of the weapon used in the murder.

Neary informed Taylor’s counsel of the eavesdropping. Several officers involved in the matter invoked their Fifth Amendment right against self-incrimination during discovery depositions and hearings on the motion to suppress regarding the eavesdropping. Taylor wanted all evidence discovered after 4:12 p.m. to be suppressed.

The state agreed to suppress evidence of the gun and all evidence obtained after 4:12 p.m. that cannot be sourced independently from the privileged information. The trial court decided to exclude all testimony of the police officers who asserted their Fifth Amendment right to remain silent.

The appellate judges noted their “disappointment, displeasure and disgust at the conduct of all the law enforcement officers.”

“The integrity of the entire judicial system is called into question by the conduct engaged in here by all who should know better,” Barnes wrote.

“Although the trial court found that the eavesdropping was ‘in all likelihood critical to [Taylor’s] defense,’ we think it is premature and speculative to make that determination at this juncture of the proceedings,” Barnes wrote. “At this point in the prosecution, we do not know which officers will be needed to testify, the subject of each officer’s direct testimony, and whether the eavesdropping will relate in any manner to their direct testimony or would be collateral. It is necessary that the trial court perform such an analysis of each officer’s testimony.”

Barnes and Judge Rudolph Pyle III also held the trial court’s exclusion of the officer’s testimony is not sustainable at this time based on Taylor’s Sixth Amendment right to counsel, the Fourth Amendment or the principles of prosecutorial misconduct.

Judge Melissa May dissented, believing the trial court correctly excluded all testimony by the police officers because the Sixth Amendment violation arising from the prosecution’s interference with the relationship between Taylor and his counsel requires it. She wrote that the court can presume prejudice at this point without Taylor having an obligation to demonstrate it, citing decisions from other jurisdictions.

June 11

Civil Plenary – Homeowners Association/Slander of Title

Michael R. Bixeman and Doreen Bixeman v. Hunter’s Run Homeowners Association of St. John, Inc.


The Indiana Court of Appeals ruled in favor of an Iowa couple, finding the homeowners association where the couple lived and subsequently rented out their home committed slander of title. The homeowners association recorded a lien against their home after finding the couple did not comply with the covenants’ requirements when leasing their home.

Michael and Doreen Bixeman own a home in Hunter’s Run subdivision, which requires homeowners who wish to rent their homes to provide a copy of the lease to the homeowners association at least 15 days prior to the effective date of the lease. It also requires that the prospective tenant acknowledge receipt of the homeowners association’s covenants.

The Bixemans moved to Iowa and rented their property, but they did not provide the lease to Hunter’s Run 15 days before the effective date, and the lease did not contain a clause requiring the tenants’ acknowledgement of receipt of the covenants.

Hunter’s Run gave the Bixemans 7-days notice of a hearing on the violations, but the couple could not return for the hearing. The homeowners association imposed a $250 sanction, which the couple did not pay, leading to the association recording a $2,525 lien against their property.

They sued for release of the lien; Hunter’s Run countersued to enforce and foreclose the lien. The trial court ultimately ruled the couple did not have to pay the fine but declined to rule in their favor on their allegation of slander of title based on the invalidity of the lien.

The Court of Appeals agreed the sanction was invalid because Hunter’s Run did not give the couple 10-days notice of the hearing as required in the covenants. But the trial court should have also ruled in favor of the Bixemans on their slander of title claim. Hunter’s Run was notified by the Bixemans’ attorney that the lien was invalid, yet it refused to release the lien, thus demonstrating malice, Judge Melissa May wrote. The couple was unable to market their property and had to pay their attorney to put the matter to rest.

The COA remanded for the trial court to determine whether the Bixemans were damaged by that slander of title, and if so, to what extent, as well as to award the couple attorney fees.

June 17

Criminal – Robbery/Deadly Weapon/Evidence

Gerald A. Kemper v. State of Indiana


The Indiana Court of Appeals reversed a man’s conviction of conspiracy to commit robbery while armed with a deadly weapon because the state did not present evidence that the defendant and another man conspired ahead of time to rob a Lawrenceburg gas station.

Gerald Kemper appealed his Class B felony conspiracy conviction, as well as Class B felony convictions of robbery resulting in bodily injury and unlawful possession of a firearm by a serious violent felon. Kemper met Malik Abdullah at a Lawrenceburg casino. The two then went to Abdullah’s home in Ohio and then later Kemper drove the two back to Lawrenceburg in Abdullah’s car. He pulled up to a gas station, put a black T-shirt around his head and went into the store. Abdullah apparently did not know Kemper planned to rob the store.

During the robbery, Kemper shot the clerk. Abdullah drove Kemper from the scene and crashed the car following a police chase. The two were later apprehended by officers. Abdullah pleaded guilty to conspiracy to commit robbery.

Kemper argued that the state didn’t prove that he and Abdullah planned the robbery ahead of time. The Court of Appeals held that the evidence presented by the state – that they arrived at the gas station together, Abdullah drove Kemper from the scene and the two had texted throughout the evening – didn’t show an agreement between the two. In fact, the texts exchanged on the robbery may point to no prior agreement, as Kemper texted Abdullah about how to escape from police after the two crashed in the car.

The judges also disagreed with the state that Abdullah’s guilty plea to conspiracy could show Kemper’s guilt. They ordered his conspiracy conviction reversed and vacated as well as the 20-year sentence attached to it. The judges upheld the remaining 40-year sentence for Kemper’s two other convictions.

June 19

Criminal – Notification of Guilty Verdicts/BMV

Alexander K. Jerden v. State of Indiana


The Indiana Court of Appeals has ordered a trial court to send a corrected notice to the Bureau of Motor Vehicles that shows judgment was only entered on two of the four charges a man was convicted of related to his speeding in Brown County. The judges also suggested that the BMV update its form to avoid future confusion.

Alexander K. Jerden was convicted of two counts of misdemeanor reckless driving, one as a Class A misdemeanor and one as a Class B misdemeanor, as well as Class C infractions passing in a no-passing zone and speeding. Jerden and another vehicle were pulled over by police after reports of them speeding on S.R. 46. The officer testified he had to go nearly 100 MPH in order to catch the vehicles.

The trial court merged the infractions with the misdemeanor counts, but the BMV SR-16 forms transmitted by the trial court showed that Jerden was found guilty of all four counts, despite the two infractions being merged into the misdemeanor charges.

The appellate court affirmed his convictions but found the trial court erred when it submitted the forms in the current state because they included convictions in which the trial court did not enter a judgment.

 “We must note, though, that the reason for this error seems to be the fact that the BMV’s SR-16 form does not track the statute. Although the statute requires trial courts to notify the BMV of only ‘convictions,’ the BMV’s form includes additional options to notify the BMV of ‘dismissed,’ ‘not guilty,’ ‘nolle prosecui[sic],’ ‘vacated,’ and ‘deferred’ charges,” Judge Rudolph Pyle III wrote. “One problem with this format is that, because the form does not distinguish between guilty verdicts and verdicts that result in convictions, there is a potential for guilty verdicts that do not result in judgments of conviction to be entered into BMV records as convictions. This potential is problematic as the contents of the BMV’s records act as prima facie evidence for determining the legal consequences of future offenses.”

The appeals court recommended that the BMV update the form in order to avoid issues such as this one in the future.

June 23

Civil Tort – Negligence/Strict Liability/Breach of Warranties

Heritage Operating, L.P. d/b/a Empire Gas v. Lois A. Mauck and Ralph Thomas


The Indiana Court of Appeals was divided over whether a company that supplied a propane tank which was hooked up to a mobile home without the company’s permission owed a duty to a couple injured after an explosion in that home.

Lois Mauck and Ralph Thomas rented a mobile home in Washington County that was previously rented by Jesse Middleton. Middleton contracted with Empire Gas for the company to provide propane gas to the property. After he passed away, the tank, which was nearly half full, remained on the property, but it was disconnected from the mobile home, locked and contained a warning against removing the lock.

In the fall of 2011, Thomas and Mauck returned home to find that the propane tank had been hooked up by someone to their mobile home. They never contacted the company hook up the tank. They turned on the furnace and smelled some gas. After Mauck lit a cigarette, the trailer exploded. She was severely injured in the accident.

The tenants sued Empire Gas, asserting product liability claims of negligence, strict liability and breach of warranties. The trial court denied Empire Gas’ motion for summary judgment.

The COA found Empire Gas is entitled to summary judgment on the claim of strict liability because the undisputed facts show that Empire Gas is not a manufacturer of propane. But the judges were divided on whether the company is entitled to summary judgment on the negligence claim.

Judge Patricia Riley, writing the lead opinion in which Chief Judge Vaidik concurred in result, found that the company is not entitled to summary judgment on this issue because a gas company owes a common law duty of reasonable care in the distribution of its product.

Judge John Baker dissented on this matter, writing that the gas company didn’t even know the property had tenants and the gas line was hooked up by an unauthorized third party. As a result, Empire Gas owed the plaintiffs no duty.•


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