Opinions Dec. 20, 2016

December 20, 2016

Indiana Tax Court
Orbitz, LLC v. Indiana Department of Revenue
Tax. Grants summary judgment in favor of Orbitz LLC and against the Indiana Department of Revenue. Finds that during the period at issue, the department erred in issuing sales and innkeeper’s tax assessments against Orbitz based on the retail rate of Indiana hotel rooms as a matter of law because the hoteliers, as the retail merchants, were liable for the taxes, not Orbitz.

Indiana Court of Appeals
Timothy L. Hahn v. State of Indiana
Criminal. Affirms Timothy L. Hahn’s conviction for aggravated battery as a Class B felony. Finds that given Hahn’s release prior to the expiration of the 70-day period, the objective of Indiana Criminal Rule 4(B) was satisfied and he was no longer entitled to its benefits, so the Delaware Circuit Court did not err by denying his motion for discharge under the rule. Also finds that the trial court did not abuse its discretion in denying Hahn’s motion to dismiss based upon the successive prosecution statute. Finally, finds that in light of the instruction regarding self-defense, the instructions taken as a whole did not misstate the law or mislead the jury, and Hahn’s substantial rights were not prejudiced in light of his attorney’s closing arguments regarding attempt and accomplice liability.  

In Re: the Marriage of S.B. v. J.B. (mem. dec.)
Domestic relation. Reverses the Porter Superior Court grant of primary physical custody of S.B.’s child, B.B., to J.B. Finds that the trial court failed to conduct the required statutory analysis. Also finds that S.B.’s due process rights were not violated and that the trial court did not err by ordering S.B. to pay a portion of J.B.’s attorney fees. Remands so the trial court can engage in the proper analysis and enter a new order to that effect.

Byron Early v. State of Indiana (mem. dec.)
Criminal. Affirms Byron Early’s conviction for operating a vehicle with an ACE of .08 as a Class C misdemeanor. Finds that based on the record, the Warrick Superior Court did not abuse its discretion by admitting the results of the breath test and that the state presented evidence of a probative nature from which a reasonable trier of fact could have determined beyond a reasonable doubt that Early committed operating a vehicle with an ACE of .08.

Raymond Hollopeter v. Sarah Hollopeter (mem. dec.)
Domestic relation. Reverses the Lake Superior Court order that Raymond and Sarah Hollopeter recalculate support every year. Affirms the contempt determination and order of attorney fees based thereon. Reverses the court’s modification of child support to a date preceding the July 2012 order. Remands for the court to enter a new order that complies with the law as explained herein.

In the Matter of J.M. (Minor Child), Child in Need of Services, and, S.M. (Mother) and J.M. (Father) v. Indiana Department of Child Services (mem. dec.)
Juvenile. Affirms the Lawrence Circuit Court’s order finding S.M. and Ja.M.’s daughter, J.M., to be a child in need of services. Finds that the trial court properly admitted the evidence concerning the CHINS action involving mother’s daughter J.B. Also finds that given the physical abuse of J.B., the parents’ lack of cooperation and Ja.M.’s continuing anger issues, the trial court properly found J.M. to be a CHINS.

In the Matter of Jm.K., (Minor Child in Need of Services), and A.A. (Mother) v. The Indiana Department of Child Services (mem. dec.)
Juvenile. Affirms the Sullivan Circuit Court finding that A.A.’s son, Jm.K., is a child in need of services. Finds that DCS presented evidence that, although they have participated in services in the CHINS action related to sibling Jx.K., mother and father have not addressed the cause of Jx.K.’s injuries and, as a result, have not made sufficient progress to have Jx.K. returned to their case. Thus, the trial court’s finding that Jm.K. is also a CHINS is not erroneous.

Ricky L. Baker and Victoria Baker v. Fall Creek Housing Partners, LLC (mem. dec.)
Civil tort. Dismisses Ricky L. and Victoria Baker’s appeal from the Marion Superior Court’s order granting summary judgment in favor of Fall Creek Housing Partners LLC. Finds that there is no indication that the Bakers sought certification from the trial court or permission from the COA to file a discretionary interlocutory appeal, nor have they stated a statutory right to appeal.

Thomas H. Torson v. Vicky L. Torson (mem. dec.)
Domestic relation. Affirms the Wells Superior Court order modifying Thomas and Vicky Torson’s parenting time. Affirms in part the child support order in favor of Vicky Torson. Finds that the trial court did not abuse its discretion by including certain stock in its calculation of Thomas Torson’s income, nor did it abuse its discretion when it modified the portions of post-secondary educational expenses for which the parties are responsible. Also finds that the trial court did not abuse its discretion by modifying parenting time. Remands so that the trial court may reconsider Thomas Torson’s credit for parenting time exercised between July 22, 2015, and January 25, 2016.

John M. Smith v. State of Indiana (mem. dec.)
Criminal. Affirms John M. Smith’s conviction for conspiracy to deal heroin as a Class A felony and sentence to 50 years, to be served consecutive to a federal sentence. Finds that the record reveals that Trooper Wells discovered marijuana prior to searching the door and that the introduction of evidence seized from the vehicle did not constitute fundamental error in the context of the Indiana Constitution. Also finds that the imposition of the maximum sentence to be served consecutive to the sentence in federal court is not inappropriate.

Kennedy Butler v. State of Indiana (mem. dec.)
Post conviction. Affirms the denial of Kennedy Butler’s petition for post-conviction relief. Finds that under the circumstances, the evidence as a whole does not unerringly and unmistakably lead to a conclusion opposite that reached by the post-conviction court, or show that Butler has demonstrated ineffective assistance.

Anthony Arnell Best v. State of Indiana (mem. dec.)
Criminal. Affirms Anthony Arnell Best’s conviction of Level 4 felony dealing in cocaine. Finds that the state presented sufficient evidence that Best intended to deliver cocaine.