Indiana Court Decisions - Sept. 30 to Oct. 13, 2015

October 21, 2015

Indiana Supreme Court

Oct. 7

Criminal – Synthetic Drug/Emergency Rule

Aadil Ashfaque v. State of Indiana


Christopher Tiplick v. State of Indiana


Two men who challenged their criminal charges for possessing chemical compound XLR11 had their charges dismissed by the Indiana Supreme Court, but not because the statutes relating to the drug are unconstitutional as they had argued.

Christopher Tiplick and Aadil Ashfaque faced charges of dealing, possession, and/or selling a synthetic drug – XLR11. At the time the two were charged, XLR11 had been criminalized based on Indiana Board of Pharmacy’s Emergency Rule 12-493(E). The Indiana General Assembly, in an effort to keep up with the numerous new synthetic drugs introduced in the state, delegated authority to the pharmacy board to adopt emergency rules that declare certain compounds to be a “synthetic drug.”

The charging information for both men did not include the specific emergency rule adopted by the pharmacy board making XLR11 a synthetic drug, and thus making it illegal. In separate actions, the two sought to dismiss their charges, arguing the statutory definition of “synthetic drug” and statutes criminalizing “look-alike” substances were void for vagueness and that the General Assembly could not delegate to the pharmacy board the power to declare new synthetic drugs illegal via an emergency rule.

On interlocutory appeal, a split Court of Appeals reversed, with the majority finding the provision in the statute allowing for the creation of emergency rule made the statute unconstitutionally vague.

But the justices held in Christopher Tiplick v. State of Indiana, 49S04-1505-CR-287, that the synthetic drug statute and the look-alike statutes are not unconstitutionally vague. And Justice Mark Massa noted this case presents a first impression issue: whether the General Assembly may delegate rulemaking power to an administrative agency if violation of such rule would result in penal sanctions. Not finding guidance from the Indiana Constitutional Convention of 1850-51, the justices sought guidance from other state courts and the Supreme Court of the United States and determined Indiana’s synthetic drug statute is not an unconstitutional delegation of legislative authority.

Massa also cited Burk v. State, a 1971 case involving LSD, in which the Indiana Supreme Court found the pharmacy board’s authority to determine whether additional substances met the definition of a “narcotic drug” under the state’s Uniform Narcotic Drug Act was appropriate even though criminal penalties would result.

But the XLR11-related counts of Tiplick and Ashfaque must be dismissed for failure to reference the emergency rule in the charging information. The state remains free to re-file an amended information with proper reference to the emergency rule, Massa noted. The cases are remanded for further proceedings.

The companion case is Aadil Ashfaque v. State of Indiana, 49S02-1505-CR-288.

Indiana Tax Court

Sept. 30

Tax – Estate/Refund

Indiana Department of State Revenue, Inheritance Tax Division v. James F. Keenan and Wells Fargo Bank, N.A., as Co-Personal Representatives of the Estate of Judd Leighton


The Indiana Tax Court reversed a probate court’s entry of summary judgment in favor of an estate on a claim seeking a refund of nearly $645,000 paid in inheritance tax, but the judge did find the estate is entitled to approximately $58,000 as a refund.

The estate of Judd Leighton reported to the probate court an Indiana inheritance tax liability of $1.3 million and claimed a refund of $57,199. The probate court accepted the return as filed March 19, 2007. But in 2011, the estate filed a claim with the Department of State Revenue seeking a refund of $644,998, which incorporated the refund of $57,199 as initially claimed on its inheritance tax return as well as $587,799 of Indiana inheritance tax it paid relating to a QTIP issue. When Leighton’s wife died and her estate filed its inheritance tax return, it did not elect QTIP status for the marital trust transfer even though it elected such status for federal estate tax purposes, so the Indiana inheritance tax had been paid twice on the transfer of marital property: once by her estate and once by Leighton’s estate.

The department denied the refund claim on the basis it was not timely filed. The Tax Court agreed, noting that a claim must be filed within three years after the tax is paid or within one year after the tax is finally determined, whichever is later. Leighton’s estate had until March 19, 2008, (one year from the date of the probate order) or Sept. 15, 2009, (three years from the date of its payment of inheritance tax) to file its refund claim.

“Because Judd’s Estate did not file its claim for refund with the Department until August 9, 2011, the Probate Court lacked subject matter jurisdiction and should therefore have dismissed the case,” Senior Judge Thomas Fisher wrote.

But the estate is entitled to the initial refund of $57,199 it previously claimed, so Fisher remanded the matter for the department to issue the refund, plus all applicable statutory interest.

Indiana Court of Appeals

Sept. 30

Miscellaneous – Court Costs

In Re: The Matter of the Petition to Expunge Conviction Records of James D. Borel v. State of Indiana


An illegible handwritten note next to a docket entry in a 1976 conviction is not enough to support the trial court’s decision to deny a man’s expungement petition because he had not paid $37 in court costs. The Indiana Court of Appeals ordered the trial court to reconsider the man’s petition.

James D. Borel pleaded guilty in 1976 to “entering to commit a felony.” He successfully served his sentence and completed his term of parole and filed his petition for expungement last year. The state objected, saying he failed to show he paid all fines, fees and court costs imposed as part of the sentence, as required under the statute in effect at the time the petition was filed.

Borel went to the clerk’s office, which could not find any records showing he owed court costs or fines related to the case. The trial court denied Borel’s petition and his motion to correct error, pointing to the original docket sheet, which said he owed court costs of $37 and that Borel failed to prove he paid that amount. That entry consists of an illegible word, possibly “costs” next to “37.00” but there is no indication as to who wrote the note or when it was added to the docket, the opinion states.

“We are mindful of our obligation to consider facts in the light most favorable to the trial court’s ruling and to refrain from reweighing evidence, but this handwritten scrawl of indeterminate origin provides little evidence that costs were imposed or remain due, especially where the formal, typed entries are silent on the matter. Furthermore, Borel provided evidence that he had asked the trial court clerk for documents indicating whether he still owed court costs. The clerk stated that it was unable to find any such documents. Presumably, the clerk knows his or her own records,” Senior Judge Betty Barteau wrote.

The judges remanded the matter for further proceedings.

Civil Tort – Car Accident/Obstructed Railway Crossing

Joan E. Gochenour and James E. Gochenour v. CSX Transportation, Inc. Gerald Konz, Cody Cooper, et al.


A woman involved in a fatal car versus train accident in Boone County will be allowed to go to trial on just one of her claims: whether the railroad company failed to provide an unobstructed view at the crossing because of lack of vegetation control.

Joan Gochenour was a passenger in a vehicle driven by Alice Schooler when the vehicle crossed a railroad track on the Boone/Hendricks County Line Road and was struck by a train operated by CSX Transportation. Schooler and another passenger were killed and Gochenour sustained serious injuries.

Gochenour and her husband sued several parties, including CSX, Boone County officials, and the Indiana Department of Transportation, who are the parties at issue. The lawsuit alleged the defendants were careless and negligent in the care of the crossing regarding appropriate warnings, signals, vegetation control and other protective devices.

The trial court granted summary judgment in favor of the defendants, finding federal law preempted the negligence claims since prior to the accident, reflectorized crossbucks had been installed with federal funds under a project approved by the Federal Highway Administration.

“No genuine issue of material fact exists as to the participation of federal funds in the installation of crossbuck signs at the County Line Crossing, and therefore the Gochenours’ state law claims against CSXT, Boone County, and the State regarding inadequate warning devices are preempted by federal law,” Judge Margret Robb wrote. “However, there remains a genuine issue of material fact to be resolved at trial regarding whether the duty to maintain an unobscured view for a motorist at the County Line Crossing has been breached by CSXT’s failure to control vegetation within 1,500 feet of the crossing.”

The affidavits introduced on this issue present different versions of whether CSX breached the duty to Gochenour by allowing the view of an oncoming train to be obscured by overgrown vegetation.

“Pictures showing what those aboard the train could see do not prove what those in a car could see – which is the material fact here,” the judge wrote. “The Gochenours’ designated evidence raises a genuine issue of material fact because the conflicting affidavits about whether and where there were obstructions to the view of an oncoming train by an eastbound car create a factual issue that is best resolved by the fact-finder at trial.”

Criminal – Sentence/Indigency Hearing

Jason A. Henderson v. State of Indiana


The man ordered to pay $10,000 in restitution to his ex-wife following misdemeanor convictions of invasion of privacy and criminal mischief will get a new hearing on the matter after the Court of Appeals sent the case back to the trial court.

Jason Henderson pleaded guilty to the two charges, which stemmed from an incident involving his ex-wife, Stephanie Hahn. They have two children together and there is a no-contact order in place preventing Henderson from having any contact with her except for communication about the children.

One day, Hahn dropped the children off with Henderson for a scheduled visit but returned after her daughter texted saying their father was yelling at them. While trying to leave his driveway, Henderson yelled at Hahn, grabbed her car window and punched a dent into her front fender.

The trial court, noting Henderson’s criminal history and that he was on probation for a similar offense committed against Hahn, ordered him to serve consecutive terms of 365 days for each offense. The court also imposed $5,000 fines for each count, but did not hold an indigency hearing.

The appeals court rejected Henderson’s claim that the trial court abused its discretion by ordering him to serve consecutive sentences because the two convictions arose from the same facts and circumstances. He pointed to no caselaw or statute to support his argument. The court had to find at least one aggravating circumstance before imposing consecutive sentences, which it did: Henderson’s significant criminal history.

But the court did err when it ordered him to pay $10,000 without holding an indigency hearing as required by I.C. 35-38-1-18. The matter is remanded for further proceedings.

Criminal – Restitution

Logan M. Dull v. State of Indiana


A man who pleaded guilty to one count of theft for stealing grain, but admitted to stealing from the victim on other occasions, had his restitution amount reduced from nearly $150,000 to just around $28,000.

Logan M. Dull pleaded guilty to one count of Class D felony theft and agreed to pay restitution. During the sentencing and restitution hearings, he admitted he had stolen grain from the property of Kenny Besears on two other occasions and agreed to pay restitution for those occasions within the time period of his indictment. The $145,633.40 in restitution the trial court imposed included the grain that Dull had stolen up to one year prior to the dates contained in the indictment.

“Absent an agreement to pay restitution, a defendant may not be ordered to pay restitution for an act that did not result in a conviction. Because the trial court ordered restitution for amounts that related to dates outside Dull’s indictment for which he did not plead guilty and for which he did not agree to pay, we reverse the trial court’s order of restitution,” Judge Rudolph Pyle III wrote.

“Because the trial court could only order Dull to pay restitution for the theft of grain between the summer and fall of 2013 as set forth in the indictment and because Dull agreed that his restitution for that time period would be $26,110.98, plus the $1,667.20 check dated September 16, 2013, there is no need for the trial court to hold a new restitution hearing. Accordingly, we remand this case to the trial court with instructions to vacate its prior restitution order and to enter a new restitution order for the amount of $27,778.18, the amount that Dull agreed was proper for restitution.”

Oct. 6

Civil Tort – Slip & Fall/Duty to Maintain Property

Jill Miller v. Rosehill Hotels, LLC d/b/a Holiday Inn Express; Intercontinental Hotel Group d/b/a Holiday Inn Express


A trial court erred in granting summary judgment in favor of hotel defendants on a negligence claim arising after a guest slipped, fell and was injured in a parking lot covered by a dusting of snow.

The Indiana Court of Appeals reversed and remanded for proceedings. Jill Miller was hurt after she walked to her car, then slipped and fell in the slick lot on the way back inside in an area she claimed had not been treated with salt.

A Madison Superior trial court granted summary judgment in favor of the Anderson hotel defendants, finding that Miller’s response to the defendants’ summary judgment motion was untimely, there were no issues of material fact, and the hotel was entitled to the judgment as a matter of law.

But Judge Elaine Brown wrote for the panel that the trial court ruling was improper.

“Construing all factual inferences in favor of Miller as the nonmoving party, we conclude that the Hotel failed to carry its burden of establishing that Miller voluntarily accepted a known and obvious risk as a matter of law or that it did not breach its duty to maintain its property in a reasonably safe condition for its invitees as a matter of law,” Brown wrote.

Oct. 7

Domestic Relation – Property Settlement Agreement

Steven M. Kelly v. Rebecca J. Kelly


The Indiana Court of Appeals reversed a ruling in favor of a woman on her claim that her ex-husband owed her more than $2.4 million based on a 1997 property settlement agreement. The judges found the trial court should have considered subsequent property settlement agreements the two entered into without the court’s approval.

Steven and Rebecca Kelly divorced in 1995 and entered into a PSA accepted by the court in which Steven Kelly would pay his ex-wife $5 million over the course of several years. In 1997, the parties amended the original PSA and established a payment schedule in which Steven Kelly would pay Rebecca Kelly $300,000 each year until 2014.

The two entered into two subsequent agreements, in 1999 and 2003, in which Steven Kelly advanced or loaned money to Rebecca Kelly from the money she would be entitled to receive under the 1997 PSA. In 2007, he stopped making payments under the 1997 PSA because he believed his ex-wife had been advanced or loaned the maximum amount she would have been entitled to receive in the remaining eight years of the 1997 PSA.

Rebecca Kelly filed a motion in 2013 to enforce the terms of the 1997 PSA. She argued the 1999 and 2013 PSAs were unenforceable because they were not approved by the trial court. The trial court ruled in her favor and ordered Steven Kelly to pay her $2.4 million.

The Court of Appeals reversed, finding the parties were free to modify the settlement agreement without approval of the trial court and that the court erred by not considering the 1999 and 2003 agreements.

Indiana Code 31-15-2-17(c) prohibits a court from modifying a PSA unless permitted by the agreement, but it does not limit the parties’ freedom to contract and modify the agreement as they wish, Judge Cale Bradford wrote.

The case is remanded for further proceedings.

Oct. 13

Criminal – Internal Police Investigation/Statements

Scott A. Criswell v. State of Indiana


The Indiana Court of Appeals agreed with a Fort Wayne police officer that a statement he gave as part of an internal affairs investigation into his role in a break-in of a foreclosed home should not be allowed at his criminal trial.

Fort Wayne Police Sgt. Scott Criswell and the wives of two other Fort Wayne police officers, while at a party, allegedly forcibly entered a nearby home and took a chainsaw and two gas cans. As part of an internal investigation by the police department, Criswell gave a statement regarding the events in question after signing a “Garrity Notice.” The notice said refusal to testify or answer questions could subject him to department charges, including dismissal.

Nearly six months after giving the statement, Criswell was charged with Class A misdemeanors criminal conversion and criminal trespass. He filed a motion to dismiss or suppress, arguing the criminal charges were brought in violation of his Fifth Amendment privilege against self-incrimination, as well as the legal protections outlined in Garrity v. New Jersey, 385 U.S. 493 (1967), and Kastigar v. United States, 406 U.S. 441 (1972). The trial court denied his motion, leading to his interlocutory appeal.

The record shows that Criswell participated in the internal affairs investigation after being notified that his failure to cooperate could result in the termination of his employment, and after being assured, in writing, that any statements he made could not be used against him in any potential subsequent criminal proceedings. Thus, Garrity applies to the instant matter and his motion to suppress should have been granted, Judge Cale Bradford wrote.

The state argued that it had evidence independent of the statement that allowed it to bring criminal charges against Criswell. Criswell maintained that the police detective who interviewed the wives used information from Criswell’s internal affairs statement to guide his interviews.

The appeals court remanded the case to the trial court to determine whether the evidence the state intends to present at trial is wholly independent of Criswell’s suppressed statement. The trial court is to conduct a “Kastigar hearing” during which it closely examines whether any portions of the statements given by the wives or any other evidence was derived, directly or indirectly, from Criswell’s statement.•


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