Indiana Court Decisions – Jan. 20 to Feb. 2, 2016

February 10, 2016

7th Circuit Court of Appeals

Jan. 28

Criminal – Excessive Police Force/Sentence

United States of America v. Terry Joe Smith

14-3744, 14-3721

A Putnam County police officer convicted of purposefully seriously injuring two people while arresting them will be resentenced after the 7th Circuit Court of Appeals found his 14-month sentence to be “light” in comparison to similar cases.

Terry Joe Smith was convicted of violating 18 U.S.C. Section 242 by depriving two people of their constitutional right to not be subjected to intentional use of unreasonable and excessive force. In September 2012, Smith punched a man in the face who was under police control. Other officers testified the punch was so hard it sounded like a tomato hitting a concrete wall. The man was taken to the hospital and Smith was overheard bragging about breaking his nose.

Months later while responding to a domestic violence dispute, Smith picked up a handcuffed man, dropped him and drove his knee into the man’s back or sternum so hard it caused the man to defecate. He later bragged to an officer that it wasn’t the first time he had made someone defecate himself.

When sentencing Smith, Judge William Lawrence recounted cases in which defendants had been sentenced for crimes comparable to Smith’s, yet the officers in those cases received much longer sentences. Smith received a 14-month prison sentence with two years of supervised release.

He appealed his conviction, but the 7th Circuit affirmed. The government appealed his sentence, which the appeals court vacated.

Judge Richard Posner, when referring to the sentences handed down in the other cases – some of which were as much as 208 months – questioned whether Smith’s crimes were so slight a fraction of the other crimes.

“In short, does the judge’s review of these cases provide any basis for thinking 14 months a proper sentence for Smith? Apart from the judge’s reference to anger management and comments on Smith’s minor good works in the community, no reason for the light sentence he imposed can be found in the transcript of the sentencing hearing,” Posner wrote. Smith also has been convicted of misdemeanor battery on a child and accused of assaulting two juveniles when he worked as a corrections officer.

“We add that the judge imposed the standard conditions of supervised release without stating them in the sentencing hearing. That was error too; the entire sentence must be given orally,” Posner wrote in remanding the case for full resentencing.

Indiana Supreme Court

Jan. 22

Civil Plenary - Annexation

Town of Zionsville v. Town of Whitestown and Angel Badillo


The Indiana Supreme Court has ruled in favor of Zionsville in an annexation fight over Perry Township, finding, in part, that a small parcel of incorporated land gives Zionsville the ability to leap frog Whitestown and lay claim to new territory.

This is one of several annexation battles that have produced differing views between the trial courts and the Indiana Court of Appeals. In this dispute, Boone Superior Court ruled in favor of Whitestown but the Court of Appeals reversed.

Zionsville used the Government Modernization Act to reorganize the unincorporated areas of Eagle Township and all of Union Township in 2010. Three years later, Whitestown adopted an ordinance to annex part of Perry Township that included the municipality’s wastewater treatment plant. However, in 2014, Perry Township adopted a resolution proposing to reorganize with Zionsville.

Before the Supreme Court, Whitestown argued Zionsville cannot reorganize with Perry Township because the two do not share a common border as required by state statute. The GMA does mandate that two townships reorganizing into one political entity must be adjacent but they can be considered contiguous if they share a strip of land that is at least 150 feet wide.

During oral arguments, the justices seemed skeptical of Zionsville’s assertion that it was contiguous with Perry Township. The two sides submitted several maps of the area with their briefs which led to the Supreme Court to issue an order that the parties “work together to select a single map.”

Zionsville and Whitestown were not able to agree on a single map. Still in reviewing the maps and the statute, the Supreme Court found although Whitestown is located between Zionsville and Perry Township, there is a small rectangular parcel in the southwest corner which Whitestown never incorporated. This piece of land, which has more than 1,300 feet of common boundary with Perry Township, was in the unincorporated section of Eagle Township that was annexed by Zionsville in 2010.

The Supreme Court noted Whitestown implicitly acknowledged the sub-parcel was not part of its municipality.

Whitestown countered that the parcel is not contiguous with the remainder of the reorganized Zionsville and that permitting the reorganization with Perry Township to proceed would open the door for other communities to use a “small, isolated island of land” as a “springboard to extend its municipal boundaries” to areas entirely separate. Indeed several municipalities, including Batesville, Danville, Fortville and North Manchester, submitted amicus briefs warning that allowing Zionsville to reorganize with Perry Township would enable leap frogging across incorporated areas.

Jan. 25

Criminal – Burglary/Jury Instruction

Shane Keller v. State of Indiana


Jury instructions that included the interpretation from an appellate ruling split the Indiana Supreme Court as to when trial courts should look beyond the statute.

Shane Keller appealed his two convictions of Class B felony burglary because the jury instruction expanded the definition of “dwelling” and invaded the province of the jury. Keller was convicted of taking possessions from a farm house that belonged to the Hardwick family. Although the family was living elsewhere while the house was being renovated, they stored many of their belongings there.

In arguments over how the jury instructions should define “dwelling,” the prosecution convinced the trial court to include language from an Indiana Court of Appeals opinion. Washington Superior Judge Frank Newkirk Jr. gave instructions that included the statutory definition (“… a dwelling is defined as a building, structure, or other enclosed place, permanent or temporary, movable or fixed, that is a person’s home or place of lodging”) and added language from White v. State, 846 N.E.2d 1026, 1031 (Ind. Ct. App. 2006), which expanded the definition (“Any place where a person keeps personal items with the intent to reside in the near future is considered a dwelling.”).

Before the Supreme Court, the defendant argued that the inclusion of the Court of Appeals ruling restricted the jury’s discretion in applying the statutory definition of “dwelling” and it misled the jury by encouraging it to single out certain facts while ignoring others.

The majority agreed, directing the trial court to change the two Class B felony burglary convictions to Class C felony burglary convictions and resentence accordingly.

Justices Brent Dickson, Robert Rucker and Steven David found language from appellate decisions is not necessarily appropriate for jury instructions. The majority held the opinion from White addressed the sufficiency of evidence and not the facts of the case, which are reserved for the jury. Therefore White did not justify the instruction.

Justice Mark Massa dissented, in which Chief Justice Loretta Rush joined.

“In White, our Court of Appeals, in no uncertain terms, identified a set of circumstances where a ‘dwelling’ would exist, even though that set of circumstances was not identified within the statutory definition,” Massa wrote. “The trial court thus made the judgment call that White constituted an addition to the law in this area, and instructed the jury accordingly; I see no compelling reason to reverse the trial court for its handling of the situation.”

Jan. 28

Civil Tort - Retroactive Indemnification

In Re: Indiana State Fair Litigation, Mid-America Sound Corporation v. Indiana State Fair Commission, et al., Jill Polet, et al.


The terms on invoices from the company contracted to provide equipment for concerts at the State Fair do not imply retroactive indemnification for the company after a 2011 stage collapse, the Indiana Supreme Court held in a matter of first impression.

The justices granted transfer to determine whether the trial court properly granted summary judgment to the Indiana State Fair Commission on the issue of whether the commission accepted liability for the stage fair collapse through a years-long course of conduct in paying invoices that had standard indemnity language on the back.

For 10 years before the August 2011 accident during a Sugarland concert in which high winds toppled stage equipment, killing seven and injuring dozens, the State Fair Commission and Mid-America Sound followed the same procedure. Before the fair, the parties agreed on the equipment and prices; after the fair, Mid-America would submit a blank claim voucher form with invoices for the rentals attached. The commission would then sign the claim voucher to authorize payment if it was correct.

In December 2011, while lawsuits were pending from victims of the stage collapse against the parties at issue in the instant case, Mid-America followed this procedure and sent an invoice to the commission. The commission signed the voucher.

Mid-America claimed that two sentences on the December 2011 invoice entitled it to indemnification for its own negligence in relation to the stage collapse. The trial court granted the commission’s motion for summary judgment; a divided Court of Appeals reversed and remanded because of genuine issues of material fact.

Indiana requires “clear and unequivocal” language to indemnify for another’s own negligence – tacitly recognizing that retroactive indemnity for existing losses is a burden few would willingly accept, Chief Justice Loretta Rush wrote for the unanimous court. And because indemnity provisions must be expressed unambiguously – especially when retroactive – they may not be inferred in a course of dealing, she noted, citing cases from jurisdictions that have squarely addressed this retroactivity question.

The trial court therefore correctly granted summary judgment for the commission and against Mid-America, the justices held.

“In view of that conclusion, we express no opinion on whether the Commission is a governmental entity with immunity under the Indiana Tort Claims Act (ITCA), Ind. Code ch. 34-13-3; whether indemnity for another party’s negligence is a tort- or contract-based liability for ITCA purposes; or whether the invoices’ indemnity language is void against public policy. But those arguments do illustrate why Mid-America’s failure to make a ‘clear and unequivocal’ demand for retroactive indemnification is particularly significant in these circumstances,” Rush wrote.

“Regardless of their merits, those claims are not implausible — and therefore it seems that a party seeking to impose such a disfavored liability under these circumstances would have particular incentive to draft its contract in the clearest and most unequivocal terms possible. Mid-America’s failure to do so here further underscores why we should not infer an extraordinary liability when a contract fails to provide for it expressly.”

Indiana Court of Appeals

Jan. 20

Miscellaneous – Dental Advertising Regulations

Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S.


The regulation that compels dentists to disclose every dentist within the practice in advertisements is unconstitutional, the Indiana Court of Appeals held. It held two other challenged regulations regarding advertising are not unconstitutional.

Dentist Dr. Irfan Atcha purchased an existing Dyer practice and began advertising his expertise in modern implant and sedation techniques. He claimed his procedures were “too advanced for most dentists, oral surgeons, and periodontists,” and promoted himself as the only “licensed and certified advanced trained dentist to perform the IV sedation and dental care on his patients.” He also used pictures that implied the use of dentures combined with dental adhesives is poisonous.

Other dentists complained to the Indiana Professional Licensing Agency and the Indiana State Board of Dentistry, which found his advertising practice made false and misleading claims of dental specialty and better materials or superior services. He was also found to have violated regulations compelling him to disclose every dentist within his practice on his advertisements.

A Marion Superior Court later found all three dental advertising regulations unconstitutional.

“Although protected by the First Amendment, commercial speech receives less protection than other forms of expression. In particular, the State retains the authority to prohibit or restrict false and misleading commercial speech. Here, the State properly restricted Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists,” Chief Judge Nancy Vaidik wrote.

“However, we conclude that the State may not compel a dentist to list on his advertisements every dentist in his practice. Finding no reasonable relationship between compelling the disclosure of all associated dentists and preventing deception, we agree with the trial court that the regulation does not satisfy First Amendment protections for commercial speech. Therefore, we affirm the trial court in part and reverse in part.”

The case was remanded to the board for reassessment of the penalty in light of this decision.

Domestic Relation – Coverture Fraction/Pension

Shari L. Morey v. W. Michael Morey


The Indiana Court of Appeals upheld the division of a husband’s pension through the use of the coverture fraction, but one judge questioned why Indiana continues to use the doctrine which has its origin in an “outdated and misogynist view” of the rights and roles of men and women.

Shari and W. Michael Morey appealed the decree of dissolution of their marriage. Shari Morey’s arguments included the court erred in its application of the coverture fraction formula to husband’s pension. He had worked at the same company for 22 years, including eight years prior to his marriage to Shari Morey.

The trial court concluded the marital estate should be divided equally, and then applied the coverture fraction formula to the pension to determine how much the wife was entitled. Michael Morey claimed the trial court erred when it failed to apply the formula to his annuity and 401(k).

Judge Paul Mathias noted that the doctrine of coverture dates back to when a husband and wife were legally viewed as one person and that although now women are recognized as separate legal persons, courts have retained remnants of the doctrine expressed in the coverture fraction formula. Writing for the majority, he outlined the steps a trial court should take when applying the formula in a dissolution of marriage proceeding.

But Judge John Baker, in his concurring opinion, argued that the formula is no longer needed in Indiana because the General Assembly passed the Dissolution of Marriage Act in 1973, and the statutes can reach the same outcome as if the coverture fraction formula had been applied.

“As the majority observes, the doctrine of coverture has its origin in an outdated and misogynist view of the respective roles and rights of men and women. In my view, it is long since time that the State of Indiana should discard this archaic doctrine, especially since it is no longer needed,” he wrote.

“In my opinion, the coverture fraction has been superseded by statute for decades. Given that it has been superseded, and given its roots in an aspect of our history that we have gladly put behind us, I believe that the outmoded theory should no longer be applied in this State, and I part ways with the majority in its application of this doctrine.”

The judges affirmed the trial court in all respects.

Jan. 21

Civil Tort – Underinsured Motorist Coverage

Empire Fire and Marine Insurance Company v. Charlene Frierson and Roderick Frierson


The Indiana Court of Appeals reversed the denial of an insurance company’s motion for summary judgment in a lawsuit brought by a customer injured in a car accident who had purchased optional supplemental liability protection when renting a car. The trial court incorrectly denied the company’s motion for summary judgment on the premise it did not provide uninsured or underinsured motorist coverage to the customer.

Charlene Frierson was driving a car she had rented from Enterprise when she was involved in an accident with Ashley Talsma. Talsma’s policy carrier tendered $25,000 in policy lability limits to Frierson as well as her own policy tendering $25,000 of UIM coverage. Frierson then sought coverage under the supplemental liability protection she had purchased through Enterprise from Empire Fire and Marine Insurance. Empire sought summary judgment declaring it did not provide UM or UIM coverage to Frierson.

The trial court denied the motion and a trial was held, in which Frierson won a verdict of $185,000, which was later reduced to $79,500 based on comparative fault and set-offs of the previous $50,000 paid out.

Empire argued its policy clearly and unambiguously excluded UM and UIM coverage except in five states, none of which are Indiana, and that Enterprise accordingly paid no premium for UIM coverage for vehicles rented and operated in Indiana. Frierson claimed the rental agreement was comprised of fine print that was difficult to read.

The Court of Appeals agreed with Empire and reversed summary judgment. The appellate court noted that the rental agreement only had two and one-half pages of fine print, and it noted several times the SLP exclusions. The Empire policy contained easily readable typeface, was six pages long, and states on the second page of the policy, under “EXCLUSIONS” that “Liability arising out of benefits payable under any uninsured or underinsured motorist law, in any state” is excluded from coverage.

The rule espoused in Nat’l Mut. Ins. Co. v. Curtis, 867 N.E.2d 631, 637 (Ind. Ct. App. 2007), does not apply, the COA held. In that case, the placement of a trampoline exclusion in a policy was inconspicuous and listed on the 15th page of the policy in fine print, and nowhere was there any straightforward and unconditional statement that the policy was not intended to protect homeowners in the event someone is injured using a trampoline.

Jan. 27

Domestic Relation – Survivor Benefit Plan/Marital Pot

In Re the Marriage of: Courtney Carr v. Beth E. Carr


Ruling on an issue barely touched upon in a previous decision, the Indiana Court of Appeals determined that a survivor benefit plan of a military pension should have been included in the marital pot when calculating asset distribution in a divorce.

Courtney and Beth Carr were married for 16 years when the husband filed for divorce. He had worked in the military 14 years prior to marriage and continued his service after the union. He began earning his military pension before his marriage, but the pension vested during the marriage.

At issue is whether the survivor benefit plan as part of the husband’s military pension, which the wife would receive in the event of his death, should have been included in the marital pot. The trial court excluded the benefits because the election for the SBP was not agreed upon until the dissolution was filed and ruled it was speculative if the wife would even collect on the benefits.

The trial court deviated from the presumptive 50/50 split based on the wife’s smaller earning capacity and divided the marital assets 60/40 in favor of Beth Carr. She ended up with a little more than $800,000 of the total marital estate of $1.345 million.

Husband argued that the SBP, with a value of $226,433.86, should have been included as a marital asset. Judge John Baker noted that the only Indiana case to deal with a military pension survivor benefit plan, Leonard v. Leonard, 877 N.E.2d 896, 901 (Ind. Ct. App. 2007), stated, “James correctly notes that his survivor benefit plan is a marital asset. Likewise, Karen’s survivor benefit annuity is a marital asset.”

“Both parties fully expected the SBP to be counted as a marital asset, and both parties expected the value to be counted as an asset going to Wife. To hold that SBPs are not marital property would be to remove any incentive a pension-earner would otherwise have to elect the benefit. By making the election, the pension-earner reduces the income he or she would have received during his or her lifetime; if the SBP is not counted in the marital pot, the pension-earner would clearly benefit financially by not making the election. Electing a SBP provides value to the other spouse, which the law acknowledges by counting that value as part of the marital pot,” Baker wrote in Carr.

The judges remanded for the trial court to make new findings either justifying the 65/35 split, rather than the 60/40 split when the SBP is added to the marital pot; or reallocate the marital assets from wife to husband to bring the actual allocation into conformity with the previously decided 60/40 split.

Jan. 29

Criminal - Restitution

Kimberly Y. Morgan v. State of Indiana


The Indiana Court of Appeals reduced a woman’s restitution owed to her ex-employer for money she stole over the course of a three-year period. The judges found no connection between additional missing funds and the defendant.

Kimberly Y. Morgan was charged with seven counts of theft alleging she mishandled funds as sales manager of the Howard County Convention and Visitors Commission Inc. She pleaded guilty to three counts of theft as a Class D felony and was ordered to pay $16,000 to the visitors commission and $11,455.48 to Selective Insurance Co. of America, the amount it paid to the commission after an investigation.

Selective Insurance originally received a claim for nearly $27,000 from the visitors commission. Greater Kokomo Economic Development Alliance controller Joleen Boyles testified that a “deep dive audit” revealed more than $21,000 in missing funds. Morgan denied taking more than the $11,455 through credit card fraud.

Morgan appealed the restitution amount to the visitors commission. Selective Insurance was able to confirm, based upon a review of documentation provided by its insured, fraudulent charges totaling $14,045, a portion of which Morgan had repaid, Judge L. Mark Bailey wrote. And while Boyles testified there was additional missing money, she did not offer testimony or documentation showing a nexus between those missing funds and conduct by Morgan.

“As such, the State did not satisfy its burden to show losses as a ‘direct and immediate result’ of Morgan’s criminal acts beyond the $11,455.48 paid by Selective Insurance and the $250.00 deductible charged to the Visitors Commission,” he wrote.

The COA remanded with instructions to enter a restitution order for the payment of those amounts to Selective Insurance and the visitors commission, respectively.

Criminal – Resisting Law Enforcement/Reasonable Suspicion

Willie Moore v. State of Indiana


A divided Indiana Court of Appeals ordered a man’s Level 6 felony resisting law enforcement conviction reduced to a misdemeanor because of a lack of evidence his actions were the proximate cause of the police officer’s injury during a foot chase.

Willie Moore Jr. was stopped by an off-duty police officer working as a courtesy officer at an apartment complex as Moore and another man were walking by the complex. Officer Christopher Helmer found it suspicious that Moore was wearing a dark hooded sweatshirt when it was nearly 80 degrees outside. He began talking to the men, and Moore volunteered his name, which Helmer recognized as on the apartment complex’s trespass list.

Moore’s father, Willie Moore, had rented the apartment, but the complaints lodged by residents were against the son. As Helmer attempted to pat down the two men, Moore took off. Helmer fell and injured himself during the pursuit but caught up to Moore. Moore was convicted of Level 4 felony possession of a firearm as a serious violent felon and Level 6 felony resisting law enforcement, which was enhanced due to Helmer’s injury.

Moore appealed, raising three arguments. He maintained that the officer didn’t have reasonable suspicion to stop him, but the judges found Helmer did under both the U.S. and Indiana constitutions. Moore claimed that his Illinois conviction for residential burglary couldn’t be used to support his serious violent felon status because the statutes in the states were not substantially similar. But again, the judges ruled against Moore, noting that Illinois legal authority indicates that the state’s residential burglary statute implies the use of force, like the burglary statute in Indiana. The only difference is Illinois’ statute does not include the term “breaking” as Indiana’s does.

Finally, Moore challenged his resisting law enforcement conviction, which the majority of Judges Rudolph Pyle and John Baker reversed and ordered that he be convicted of and sentenced for it as a Class A misdemeanor. The majority did not find sufficient evidence to support the causation element that enhanced Moore’s conviction to a Level 6 felony. But they did hold there was sufficient evidence to convict him of resisting as a misdemeanor.

Judge Cale Bradford dissented as to this issue, believing the evidence was such that the trial court could reasonably conclude that Moore’s actions were the proximate cause of Helmer’s injury.

Feb. 2

Criminal – CDL/Diversion Program

State of Indiana and Indiana Bureau of Motor Vehicles v. Nicholas Hargrave


A man who held a commercial driver’s license and pleaded guilty to two misdemeanor drunken-driving offenses cannot participate in a diversion program, the Indiana Court of Appeals ruled. One judge on the panel had concerns that the law treats CDL holders and those without a CDL differently.

Nicholas Hargrave was arrested and charged with operating a motor vehicle while intoxicated and operating a motor vehicle while intoxicated in a manner that endangered a person after police found him slumped over in the driver’s seat of his pick-up truck. Hargrave pleaded guilty, and the trial court withheld judgment and ordered him to participate in a diversion program. Hargrave, who held a CDL, surrendered it after his operator’s license was suspended for 180 days. He later filed a petition to have his operator’s license reinstated without providing proof of SR22 insurance, which the Bureau of Motor Vehicles requires for those who have had their licenses suspended.

The BMV intervened, claiming Hargrave didn’t qualify to participate in the diversion program because he held a CDL and allowing him to do so would jeopardize receipt of some federal highway funds and decertification of the state’s CDL program. The BMV also argued Hargrave was required to show proof of SR22 insurance. The trial court ruled in favor of Hargrave.

The judges reversed, agreeing with the state’s position that based on federal regulations, which Indiana adopted in statute, a person who holds a CDL at the time he or she commits a traffic violation may not participate in a diversion program or have the judgment deferred on that conviction.

“To the extent that Hargrave argues that his increased responsibility and accountability ceased to exist when he surrendered his CDL, he is mistaken. We agree with the BMV that Hargrave’s position cannot be correct in light of the purpose and intent of the (Commercial Drivers License Information System), which is to provide a full and accurate accounting of an individual’s driving history while he held a CDL,” Chief Judge Nancy Vaidik wrote in the majority opinion. “We agree with the State that ‘[a]llowing Hargrave to surrender his license, avoid his conviction, and possibly return to driving professionally with no record of the offense is precisely what the anti-masking law is designed to prevent.’”

Judge Margret Robb wrote separately to address the inconsistent treatment of those who currently hold CDLs and those who do not, but could do so in the future. One who does not have a CDL at the time of the offense can participate in a diversion program and later drive professionally without a record of the offense, she noted. In light of the purpose of the Motor Carrier Safety Improvement Act, which is to reduce the number and severity of accidents involving commercial motor vehicles, “I find it difficult to justify this inconsistency,” she wrote.

The judges also affirmed that Hargrave is required to file proof of financial responsibility for three years following the termination of his suspension under I.C. 9-30-6-12.•


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