Indiana Court Decisions - Sept. 16 to 29, 2015

October 7, 2015

Indiana Supreme Court

Sept. 18

Criminal – Murder/Burglary

Blake Layman & Levi Sparks v. State of Indiana


Anthony P. Sharp, Jr. v. State of Indiana


Three members of the “Elkhart 4” convicted of murder in a controversial, highly publicized case in northern Indiana had their murder convictions vacated by the Indiana Supreme Court. Justices remanded convictions for sentencing instead on burglary convictions.

Blake Layman, Levi Sparks and Anthony P. Sharp Jr. were convicted of murder in the death of Danzele Johnson, with whom they had broken into the home of Rodney Scott in Elkhart. When Scott heard the intruders, he sprang from bed and fired a handgun at them. Johnson was fatally wounded.

Layman, Sparks, Sharp and a fourth suspect, Jose Quiroz, were convicted of felony murder in the perpetration of a burglary. Quiroz, who was 16 at the time of the burglary, pleaded guilty and was sentenced to 45 years executed in the Department of Correction.

Layman was 16 at the time of the crime, Sparks was 17 and Sharp was 18. Layman and Sharp were each sentenced to 55 years in prison and Sparks was sentenced to 50 years.

“The  evidence  is  clear  that  Layman,  Sparks, and  three  co-perpetrators  participated  in a home invasion. Intending to commit theft – a felony – four of the perpetrators broke down the homeowner’s back door and entered the house while Sparks served as a lookout. In consequence, one of the co-perpetrators was fatally wounded. There is no question that the evidence is sufficient to sustain a burglary conviction,” Justice Robert Rucker wrote for the court in the consolidated appeal Blake Layman & Levi Sparks v. State of Indiana, 20S04-1509-CR-548.

“(T)he record here shows that when the group broke and entered the residence  of the homeowner intending to commit a theft – a burglary – not only were they unarmed, but also neither the Appellants nor their cohorts engaged in any ‘dangerously violent and threatening conduct,’” Rucker wrote. “There was simply nothing about the Appellants’ conduct or the conduct of their cohorts that was ‘clearly the mediate or immediate cause’ of their friend’s death.

“Thus, while the evidence is sufficient to sustain a conviction for the underlying burglary, it is not sufficient to sustain a conviction for felony murder in the perpetration of a burglary,” the court ruled. “We thus remand this cause with instructions to enter verdicts of guilty to burglary as a Class B felony and resentence the Appellants accordingly.”

The court applied its holdings in Layman in Anthony P. Sharp, Jr. v. State of Indiana, 20S04-1509-CR-549. Because the court found Sharp identically situated to the Layman and Sparks, justices likewise vacated his murder conviction and remanded for sentencing on conviction of burglary as a Class B felony.

Indiana Tax Court

Sept. 21

Tax – Property Valuation

RJK/ Robert J. Kuchler, Trustee v. LaPorte County Assessor


The Indiana Board of Tax Review abused its discretion and conducted a “trial by ambush” when it heard the appeal of a property owner who challenged the assessment of a property in Long Beach.

RJK Trust/Robert J. Kuchler challenged the $800,000 assessment of a property for the 2006 tax year that had previously been valued for tax purposes at $630,500 by the LaPorte County Assessor. Kuchler brought the matter to Tax Court after the trust was provided an independent appraisal of the property for the first time at an administrative hearing.

The appraisal was withheld until the hearing despite RJK’s repeated requests for responsive materials.

“(T)he Indiana Board’s small claims regulations require, upon request, pre-hearing disclosure to uphold the fundamental tenant of our judicial system that neither party be subjected to a trial by ambush,” Tax Court Judge Martha Blood Wentworth wrote.

“Here, however, a trial by ambush is exactly what happened.”

The board also failed to determine whether the appraisal report would be excluded. “Accordingly, the Indiana Board abused its discretion by making a determination that is clearly contrary to the logic and effect of the facts and the law because it is based on evidence tainted by the evils of unfair surprise,” Wentworth wrote.

The matter was remanded to the Indiana Board of Tax Review for a new hearing.

Indiana Court of Appeals

Sept. 16

Criminal – Drugs/Weapons

Timmie Bradley v. State of Indiana


A trial court violated the prohibition against double jeopardy by convicting a man in a bench trial of three felony cocaine possession counts, the Indiana Court of Appeals ruled in tossing out two of the convictions.

Timmie Bradley remains convicted of the most serious count, a Class A felony, but the trial court must vacate two Class C convictions, Judge Cale Bradford wrote for the panel. Bradley also was convicted of a misdemeanor marijuana possession count that stands after appeal.

Bradley was arrested when he returned to a home on north Alabama Street that police had been monitoring for drug activity. Before Bradley returned, Bryant Beatty allowed police to enter the house after they knocked on the door. Officers were in plain clothes but their badges were visible and they identified themselves as detectives, according to the record.  

After spotting cocaine in plain view in the kitchen as well as another suspect who attempted to elude them, police conducted a protective sweep of the kitchen and rounded up everyone in the house. When an officer found a handgun under a couch pillow, the occupants were handcuffed before being arrested.

Bradley challenged the officers’ entry and sweep of the home as violations of the Fourth Amendment and Article I, Section 11 of the Indiana Constitution. The panel rejected those claims.

“The trial court reasonably determined that Beatty validly consented to the Detectives’ entry into the home. The Detectives’ warrantless entry into the home, therefore, did not violate the Fourth Amendment,” Bradford wrote.

It also was reasonable for detectives to conduct the protective sweep under the circumstances, the panel held, and the evidence was sufficient to convict Bradley.

When Bradley entered the home, police found cocaine on him, and the panel noted the state failed to differentiate in charging information between those narcotics and those found in the kitchen. “As such, we conclude that Bradley’s conviction for Class C felony possession of cocaine and a firearm is barred by the prohibitions against double jeopardy because the same cocaine was used to support that conviction and Bradley’s conviction for Class A felony possession of cocaine.” The Class C felony also is a lesser included offense to the Class A felony.

Bradley’s sentence is likely to remain at 35 years in prison. That was his sentence for the Class A felony, and other terms imposed were to be served concurrent to the sentence on the most serious conviction.

Sept. 18

Civil Plenary – Insurance/Uninsured Motorist

Founders Insurance Company v. Mark May, Pamela Coomer, and Roger W. Hoke as the Personal Representative of the Estate of Brian Hoke, deceased


Sept. 21

Domestic – Divorce Agreement/Enforceability

James Whittaker v. Wilma Sharlene Whittaker


An ex-husband who a trial court determined is owed $76,173 from his wife’s teacher retirement benefits was wrongly denied an opportunity to argue the arrearage can be pursued through contempt, the Indiana Court of Appeals ruled.

The court reversed a trial court order concluding the sum was enforceable by execution but not contempt. “We reverse and remand with instructions to the trial court to address the merits of Husband’s petition for contempt,” Judge L. Mark Bailey wrote for the panel.

The prohibition against imprisonment for debt generally precludes collection or enforcement through contempt, but the court noted this case “involves a failure to perform an obligation set forth in a dissolution decree,” Bailey wrote. Wilma Whittaker had agreed to evenly divide her retirement benefits as maintenance for James Whitaker, but failed to do so after beginning to receive benefits in May 2008. The couple divorced in 2000.

“(T)he computation of delinquency was not an original order for payment of a fixed sum,” the court held. “Nor did it transform an obligation incorporated into a dissolution decree into a fixed money judgment outside the parameters of Indiana Code Section 31-15-7-10,” allowing enforcement by contempt.

Sept. 22

Criminal – Failure to Register as Broker-Dealer

Jerry A. Smith v. State of Indiana


A financial broker who bilked clients out of $8.9 million in an investment scam had his state sentence and order to pay restitution overturned by the Indiana Court of Appeals.  

Jerry Smith pleaded guilty to three federal charges in June 2012 in U.S. District Court for the Southern District of Ohio. He and his business partner, Jasen Snelling, presented themselves to victims as day traders who garnered unusually high returns on investments. However, the pair was actually running a ponzi scheme.

Smith was also charged in Franklin County. The county prosecutor’s office alleged he engaged in unlawful acts related to the offer or sale of security and he failed to register as a broker-dealer with the state of Indiana.

After the Franklin Circuit Court denied his motion to dismiss the state charges, Smith appealed.  

The Court of Appeals provided some relief, holding the trial court erred in failing to dismiss the counts alleging that Smith violated state law by selling securities that had not been registered. However, the appellate court ruled Smith could face prosecution for multiple counts for engaging in business as a broker-dealer without having registered.

Consequently, Smith pleaded guilty to those charges. At sentencing, the trial court imposed the maximum sentence of 40 years with 20 years suspended to probation. It also ordered Smith to pay $410,189.16 in restitution to the Indiana victims.

Again, Smith appealed.

The Court of Appeals reversed the award of restitution and the sentence.

In overturning the restitution award, the court chastised the state. The appellate panel asserted the state failed to analyze its earlier opinion that “clearly held” Smith could face prosecution on state charges of failing to register as a broker-dealer.

In addition, the federal charges were the result of Smith’s conduct which led to the victims’ losses. The state did not show that Smith’s failure to register as a broker-dealer caused the Indiana victims to suffer the financial loss.

“… this is not an instance in which there simply was a failure of proof regarding the amount of restitution, in which case we might remand for the State to have another opportunity to submit proof…,” Judge Michael Barnes wrote for the court. “Rather, there is no legally tenable basis for awarding restitution in this case, and we will not remand for another hearing.”

Finally, the Court of Appeals concluded that Smith committed one single act of criminal conduct by failing to register as a broker-dealer. The gravamen of the offense is not the number of times Smith transacted business but rather it was his failure to register. As such, this constitutes a single episode of criminal conduct.

The Court remanded for the trial court to craft a sentence complying with the court’s calculation that the total term Smith may receive is 10 years.

Mortgage Foreclosure – Foreclosure/Merger Doctrine

U.S. Bank, et al. v. R. Glenn Miller, Jr. et al.; German American Bankcorp v. R. Glenn Miller, Jr., et al.


A bank that extended a $25,000 home equity line of credit to owners of a Newburgh property that subsequently was foreclosed was not entitled to a court ruling that gave its claim priority status.

The Indiana Court of Appeals reversed summary judgment in favor of German American in long-running litigation that began in March 2008. The financial institution issued the line of credit on a property that had an outstanding mortgage of more than $700,000.

The trial court didn’t abuse its discretion in setting aside default judgment against Bank of Evansville, but the court’s ruling in favor of German American granting its previously subordinate lien a first priority under the merger doctrine was an abuse of discretion.

“Considerations of the doctrines of merger and strict foreclosure played no part in the expectations that German American had when it granted (the former owners) their loan,” Judge James Kirsch wrote for the panel.

“Pursuant to I.C. § 32-29-8-4, German American is not entitled to the priority lien it obtained from the trial court. This application of this statute is what our legislature intended and is consistent with an equitable result,” Kirsch wrote.

Domestic – Dissolution of Marriage/Pension

Timothy Kendrick v. Angela Kendrick


A divorce case remanded to the trial court for proceedings needlessly prolongs the litigation, a dissenting Court of Appeals judge wrote.

The majority remanded the case to include all of the ex-husband’s future pension earnings as part of the marital estate before determining whether the portion earned before his marriage should be excluded from the presumption of equal distribution.

The trial court concluded that the part of his benefit earned prior to marriage should be excluded, but the court had not factored it in the calculation of the estate. Judge Elaine Brown wrote in a majority opinion joined by Judge Patricia Riley, “While the court may ultimately determine that the portion of Husband’s pension earned prior to the marriage should be awarded solely to him, it must first include the asset in its consideration as to how the marital estate should be divided.”

Dissenting Senior Judge Ezra Friedlander would affirm the trial court in all respects, and said the trial court already had considered the portion of the husband’s pension earned prior to marriage using the coverture fraction formula.

“Even without the magic words indicating that the trial court technically considered all of Husband’s pension as a marital asset before setting aside to him the coverture portion earned outside the marriage, it is very clear that this is precisely the method employed in dividing Husband’s pension between him and Wife,” Friedlander wrote. “Although I understand the point the Majority is making in remanding on the stated rationale, it needlessly prolongs this litigation and ultimately serves no purpose. The trial court obviously employed a well-established and well-accepted method in distributing Husband’s pension, and I would let that be the end of the matter.”

The panel also affirmed an order that Timothy Kendrick make equalization payments to his ex-wife in advance of his receipt of his pension benefits.


Sept. 23

Paternity – Child Support/College Expenses

In re the Paternity of Makayla Lauren Pickett, Gregg Roberts v. Shonda Pickett


A trial court wrongly ordered a father to pay college costs for his daughter based on the cost of a private university, the Indiana Court of Appeals ruled.

The appeals panel sent the order back to a Hamilton County court to calculate father’s educational support for his child who attends Butler University, the annual cost of which is about $49,000, according to the record. Student Makayla Pickett’s actual first-year cost with scholarships, grants and aid is about $23,000. That amount would have been about $11,000 had she attended Ball State University, where she also had been accepted, Judge Terry Crone wrote for the court.

“(W)e conclude that the trial court’s decision to order Father to contribute to Child’s college expenses based on the cost of a private university rather than a public university is against the logic and effect of the circumstances before it,” Crone wrote for the panel. “Therefore, we remand with instructions to order that Father’s obligation toward Child’s college expenses be based on the costs of a public university.”

The trial court also erred in ordering father to pay college expenses the child incurred before mother filed a motion for him to pay those expenses.

The appeals court affirmed the trial court order that father pay $2,000 in mother’s attorney fees as a sanction for contempt. The panel found father waived the argument that the child repudiated him and he therefore should not be required to pay a portion of her college expenses.

Agency Action – Utilities/Electricity Rate Increase

Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Utility Regulatory Commission


The Indiana Utility Regulatory Commission must weigh for the third time rate increases for Duke Energy consumers connected to delays in opening the Edwardsport coal gasification plant in Knox County.

The Indiana Court of Appeals sent the matter back to the IURC in a suit brought by intervening interest groups. The appeals court held the commission erred by not reopening the record after a prior remand and relied on evidence not in the record in determining the reasonableness of rate increases. The panel affirmed IURC rulings that a three-month delay in the plant’s commissioning was not caused by unreasonable actions by Duke, and therefore the cost could be calculated to ratepayers. The panel also affirmed the commission’s determination that the plant was partially in service for federal tax purposes before the in-service operational date in the settlement agreement.

“Based on our review of the record, there was ample evidence regarding the three-month delay and its impact upon Duke’s petition for cost recovery, and there was no need for additional evidence on remand to address that issue,” wrote Senior Judge Betty Barteau. “By contrast, there are insufficient findings as to the value of the rate increases caused by Duke’s declaration that the plant was partially in-service for tax purposes, and whether the increases were reasonable.

“Furthermore, the Intervenors did not have an opportunity to seek discovery on the rate increases, due to Duke’s late clarification of the issue. In addition, the Commission on remand considered additional evidence in the form of orders from ECR 19 and ECR 20, although those orders were not part of the record in IGCC-9 and the Commission did not follow the procedure for taking administrative notice of prior orders. The Commission’s consideration of these orders sharply contradicts its determination that it did not need to reopen the record on remand to receive additional evidence,” Barteau wrote.

“Under these circumstances, on remand the Commission should reopen the record, receive additional evidence … and issue findings of fact on these issues:  (1) quantifying the impact upon Duke’s proposed rate increases in this case resulting from Duke’s declaration that the plant was partially in-service for tax purposes; and (2) determining whether the proposed increases were reasonable per Indiana Code section 8-1-8.8-12(d).”  

Sept. 24

Civil Plenary – Attorney Fees

Boyer Construction Group Corp. v. Walker Construction Company, Inc. and Muller Realty, LLC


Even after a trial court has entered a judgment and the case is settled, the Indiana Court of Appeals has ruled parties can still make a new filing for attorney fees.

The Court of Appeals dealt with dueling motions for attorney fees filed after the trial court issued its order. The appellate panel held both parties could petition after judgment but it found only one party was able to collect.

The dispute arose between the contractor Boyer and the subcontractor Walker over failure to pay for concrete work done at the Merrillville construction site of a new car dealership. Lake Superior Court found for Walker. It entered a judgment against Boyer for $1,680 plus pre-judgment interest and against Muller for $78,839.99 which included $41,854.15 in attorney fees.

Boyer then filed a motion against Walker. The contractor asserted it was the substantially prevailing party and therefore entitled to recover attorney fees. Boyer requested an award of $62,984.40 in attorney fees and expenses.

Walker responded by claiming it was the substantially prevailing party. It also requested an additional $20,400.28 in attorney fees and expenses to cover the cost involved in defending against Boyer’s “frivolous, certainly meritless” claim for fees.

The trial court ordered Boyer to remit $837.08 to Walker for attorney fees but denied Walker’s request for fees related to post-judgment work.

On appeal, the Court of Appeals gave Boyer a partial victory. The panel ruled Boyer was permitted to file a petition for attorney fees after the trial court entered the judgment.

However, the Court of Appeals upheld the denial of Boyer’s petition for those fees. Boyer tried to argue it was the substantially prevailing party but the Court of Appeals disagreed, finding the judgment was entirely in Walker’s favor. Therefore, Walker is the substantially prevailing party and is entitled to attorney fees.

Also, the Court of Appeals reversed the denial of Walker’s petition for supplemental attorney fees and expenses. Boyer contended Walker was not entitled to additional fees, in part, because the subcontractor already received every penny of fees it had requested at trial from Muller.  

Again, the Court of Appeals allowed the post-judgment petition for attorney fees. It found that neither the subcontract agreements nor existing caselaw limited Walker’s recovery of attorney fees to only those incurred prior to the trial court’s judgment.

Criminal – Traffic Stop/Certified Chemical Test

Kristy Burnell v. State of Indiana


An apparently intoxicated motorist’s ambiguous reply to an officer’s request to perform a chemical test has resulted in a new, strict standard affirmed by only one of three judges who heard the driver’s appeal.

“We affirm the trial court’s order, holding, as a matter of first impression, that any answer short of an unqualified, unequivocal assent to a properly offered certified chemical test constitutes a refusal” resulting in a driver’s license suspension, Judge Rudolph R. Pyle III wrote. Judge Terry Crone concurred with the result affirming Burnell’s license suspension, but would not go so far as Pyle’s holding. Judge Elaine Brown dissented and would reinstate Burnell’s license, finding she, in fact, didn’t refuse the test.

Burnell’s license was suspended after she was pulled over in Carmel and officers smelled alcohol. After she failed field sobriety tests, an officer asked her whether she would submit to a chemical test. She never assented to the test, and the officer informed her that refusing the test would result in suspension of her license for two years because she had a prior recent drunken driving conviction.

After not getting a clear answer, the officer said to Burnell, “Okay, so I need an answer. Are you willing to take the test or not?” She replied, “Well, I mean if I take it, I’m going to jail,” then said, “Well, if I refuse, I’m going to jail either way. So yeah, I guess I gotta take it,” according to the record.

But then Burnell began to walk away, prompting officers to grab and cuff her, deeming her behavior a refusal to submit to the test. She was arrested at that point.

“Based upon this evidence, the trial court found that Burnell’s answers and conduct did not equate to an ‘answer indicative of one meaning’ and concluded that she had refused the chemical test,” Pyle wrote.

“Just as an officer’s implied consent advisement must unequivocally inform a motorist that his or her refusal will result in suspension of their driving privileges, a motorist’s response must also be unequivocal to the proper offer of a chemical test. The statute as written leaves a motorist no room for negotiation or debate,” Pyle wrote. “Allowing any equivocal response from a motorist when confronted with a properly offered chemical test does not comport with the mandatory language of the statute or its purpose. Accordingly, we hold that anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.”

Judge Terry Crone concurred with affirming the trial court but wrote separately to disagree that anything short of an unqualified, unequivocal assent equates to a refusal. “Each case should be judged on its specific facts, and in my view the facts most favorable to the trial court’s determination in this case are sufficient to affirm it,” Crone wrote.

Judge Elaine Brown dissented and would reverse the trial court and reinstate Burnell’s license. She wrote that Burnell was severely intoxicated when she was asked to submit to the test. “(A)n intoxicated Burnell weighed her choices (and in doing so admitted that she was intoxicated) and, resigned to her fate, told him, ‘I guess I gotta take it,’” Brown wrote. “I would find that Burnell’s statement was not substantially short of an unqualified, unequivocal assent … and that accordingly the evidence presented did not establish as a matter of law that she refused to submit to the chemical test under Ind. Code § 9-30-6-9(b).”   

Sept. 29

Juvenile – Termination of Parental Rights

In the Matter of the Term. of the Parent-Child Relationship of: N.G., L.C., and M.C. (Minor Children), and A.C. (Mother) v. The Ind. Dept. of Child Services


The Indiana Court of Appeals reversed the decision to terminate the parental rights of a mother to her twin daughters based on insufficient evidence, although one judge believed the termination should have been upheld. The court unanimously affirmed the decision to end her parental rights to her son.

Mother A.C. appealed the termination of parental rights regarding son N.G. and daughters L.C. and M.C., who were 11 and 8, respectively, when the judgment was issued. They were removed from her care after N.G. was hit with a belt and was injured; A.C. claimed her boyfriend did it; N.G. alleged his mother had hit him.

Mother is bipolar and has a history of not taking her medication and physically abusing N.G., who has been seeing therapists since he was 3 years old.

The children were removed from her care in 2011 and placed with their father, but then moved to foster care when father was convicted of molesting his stepdaughter. Mother did not always comply with parenting and therapy sessions as ordered and was not always able to control her children’s behavior during supervised visits. But at the time of the termination, she had a stable home, remarried, was employed, and consistently had taken her medication for bipolar disorder for six months.

The majority reversed termination regarding the twins due to lack of evidence. Judge John Baker, writing for the majority, noted that there is no evidence the girls were physically abused.

“DCS’s case in support of termination in regard to L.C. and M.C. rests entirely on the premise that the children suffer emotionally as a result of contact with Mother. However, as previously discussed, the evidence does not indicate that L.C. and M.C.’s negative reactions towards Mother are anything other than the foreseeable consequence of years of separation with limited contact,” he wrote.

Judge James Kirsch would uphold mother’s termination regarding the twins. He pointed to the girls’ behavior following the visits with their mother, which included nightmares, bedwetting, and crying.

But the judges agreed that mother’s parental rights should be terminated regarding N.G. as it is in his best interest and supported by evidence given mother’s past inability to control his behavior and her history of resorting to physical abuse.•


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