Indiana Court Decisions - Dec. 7-19, 2016

December 28, 2016

Indiana Supreme Court

Dec. 16

Criminal – Serious Violent Felon

State of Indiana v. Frank Hancock


The Indiana Supreme Court overturned a lower court’s decision to throw out a man’s serious violent felon charges, writing that statutes governing burglary convictions in Ohio and Indiana are “substantially” similar.

Frank Hancock was charged in Jefferson Superior Court with multiple offenses, including two counts of Level 4 felony unlawful possession of a firearm by a serious violent felon based on the state’s allegation that Hancock had previously been convicted of second degree burglary in Ohio. The trial judge dismissed Hancock’s serious violent felon charges, writing that the Ohio burglary statute was not “substantially similar” to the same statute in Indiana.

Then, after the judge granted a mistrial, the state appealed the dismissal of the SVF counts, holding that the two statutes were substantially similar. The Ohio statute requires trespass by force, stealth or deception with the purpose to commit any criminal offense in an occupied structure of any person, while the Indiana statute requires a person to break and enter into a building or structure with the intent to commit a felony or theft in a building or structure of another person.

The Indiana Court of Appeals affirmed the trial court’s decision in January, but the majority of Indiana Supreme Court justices reversed the decision to dismiss the charges, holding that the two states’ statutes are substantially similar.

Writing for the majority, Justice Robert Rucker said the court interpreted “substantially similar” to mean sharing common core characteristics that are largely alike in degree or extent, though not identical.

Rucker conceded that at first glance the difference between the “any criminal offense” requirement in Ohio and the “felony or theft” offense in Indiana would mean that the statutes were not substantially similar because Ohio’s threshold is broader than Indiana’s. But in Indiana, theft is a Class A misdemeanor and can be elevated to a felony with additional facts, and in Ohio, “any criminal offense” under the burglary statute includes various misdemeanors, Rucker said.

“Essentially, despite statutory language declaring entry may be accompanied by an intent to commit ‘any criminal offense,’ Ohio case authority makes clear that absent a different inference, the reasonable inference is that the defendant did so with the intent to commit the offense of theft,” Rucker wrote.

Further, Rucker wrote that the court had no hesitancy concluding that the “break and enter” requirement in Indiana and the “trespass by force, stealth, or deception” requirement in Ohio are substantially similar. The justices also held that the definitions of “occupied structure of any person” and “building or structure of another person” were nearly identical.

Finally, Rucker wrote that although Ohio’s statutory requirement for a likeliness that a person will be present during the robbery is a more stringent requirement than Indiana’s dwelling requirement for burglary, “the very same conduct violating the Ohio second degree burglary statute … would necessarily violate Indiana’s Level 4 felony burglary statute as well.”

But Justice Steve David wrote in a dissenting opinion that he believed the difference between the “any criminal offense” and “felony or theft” requirements shows that Ohio’s statute is broader than Indiana’s.

“Even though we can reasonably infer that one who forcibly enters a structure is there to commit a theft offense, this may not always be the case,” David wrote. “One could break into a home and commit a non-theft misdemeanor in Ohio (e.g., stalking), and be found guilty of burglary; however, this person would not be guilty of burglary under Indiana law.”

Indiana Court of Appeals

Dec. 7

Civil Plenary – Lakeshore Land Control

Don H. Gunderson, et al. v. State of Indiana, et al.


When a private property owner’s land deed overlaps with that of the public trust along Lake Michigan, the rights to the shore are controlled by the common law public trust doctrine, the Indiana Court of Appeals found in a landmark decision that prevents private property owners from exerting complete control over lakeshore land between ordinary high- and low-water marks.

Don and Bobbie Gunderson argued, that as owners of three lots along the shore of Lake Michigan in Long Beach, they had the right to exclude members of the public from accessing their land for activities such as walking along the beach. In April 2014, Don Gunderson filed a motion for declaratory judgment and quiet title against the state, claiming that he owned all the land to the water’s edge and that the public had no rights to any land not covered by water. The Alliance for the Great Lakes and Save the Dunes and the Long Beach Community Alliance filed motions to intervene, both of which were granted.

Don Gunderson moved for summary judgment in October 2014, and the state and intervenors filed cross-motions. The trial court eventually ruled against Gunderson and found that the Gundersons owned the land up to the northern border of Section 15 while the state held in public trust the land below the ordinary high water mark. Further, the trial court held that the Gundersons “cannot unduly impair the protected rights and use of the public when the titles to the land overlap.”

Gunderson appealed and the COA heard arguments in September. Gunderson argued that he “paid for his property and as such has the right to exclude others.” Although state statute provides the state with full power and control over all freshwater lakes in Indiana, that same statute excludes Lake Michigan, a fact Gunderson said proves that there is no public trust doctrine applicable to his land.

But Judge Melissa May wrote for the unanimous panel that the exclusion of Lake Michigan from the statute does not mean that there are not public trust rights on the Lake Michigan shore and, thus, the rights to the shore are controlled by the common law public trust doctrine.

Further, May wrote that “granting lakeshore owners the right to exclude the public from land between the low and high water marks would be inconsistent with the public trust doctrine because, under that doctrine, a state holds the title to the beds of navigable lakes and streams below the natural high water mark for the use and benefit of the whole people.”

Instead, May wrote that any land below the ordinary high water mark must be open to limited public use, such as accessing public waterways or walking along the beach, and that the ordinary high water mark is defined by common law. Therefore, subject to the public’s rights up to the ordinary high water mark, the northern boundary of Gunderson’s property, which overlaps with the public trust, is the ordinary low water mark.

Thus, the appellate court affirmed the trial court’s findings regarding the nature and scope of the public trust as it relates to Lake Michigan, but reversed the finding that the northern boundary of Section 15 is unknown.

Criminal – Handgun Conviction/Proof

Reginald Webster v. State of Indiana


The state failed to meet its burden of proof to show that an Indianapolis man was carrying a handgun without a license outside of his dwelling, workplace or property, the Court of Appeals found, thus vacating the man’s misdemeanor conviction.

The Indianapolis Metropolitan Police Department received an anonymous tip in March 2003 that four people were selling drugs on the front porch of an Indianapolis residence. When officers Robert Wheeling and Richard Hemphill arrived at the scene, they noticed one of the men, later identified as Reginald Webster, bend over toward the bottom of a couch on the front porch then quickly sit back up. Additionally, the officers noticed another man, later identified as Jason Borenstein, reach over the porch railing and place something shiny in a shrub.

When the officers approached the two men and asked them to stand up, Wheeling conducted a pat-down search of Webster and Hemphill lifted up the couch and found a loaded handgun. Webster did not present the officer with a permit or license to carry the gun, so he was charged with Class A misdemeanor carrying a handgun without a license.

During the trial, Webster moved to suppress the evidence of the handgun, arguing that the anonymous tip was unreliable and that the officers did not have reasonable suspicion to search him. The Marion Superior Court denied the motion, so Webster moved for involuntary dismissal pursuant to Trial Rule 41(B), arguing that the state had failed to prove that he possessed the handgun in a place other than his dwelling, property or place of business, an element of the offense Class A misdemeanor offense. The trial court also denied that motion, and Webster was found guilty as charged.

In his appeal, Webster argued that the trial court clearly erred in denying his motion for involuntary dismissal. The Indiana Court of Appeals agreed, writing that the state failed to show that the address where the handgun was found was not Webster’s dwelling, property or fixed place of business.

Judge Terry Crone wrote for the unanimous panel that the Marion Superior Court mistakenly believed that it was Webster’s burden to prove that the home was his dwelling, property or fixed place of business, while it was actually the state’s burden to prove the opposite. Because the state did not meet that burden, the appellate court reversed Webster’s conviction.

Agency Action – Workers’ Compensation

John C. Morris v. Custom Kitchen & Baths


A general contractor’s volunteer work was incidental to his professional employment, so the injuries he sustained during the volunteer work must be covered under the Indiana Worker’s Compensation Act, held the Indiana Court of Appeals.

John Morris obtained his general contractor’s license in 2011 and formed a sole proprietorship, Custom Kitchen & Baths, to design and renovate kitchens and baths from start to finish. Morris often used his skills to perform volunteer projects in the Vanderburgh County community through either his church or the Boy Scouts, and that volunteer work often led to more business for his professional contracting work.

In August 2012, Morris was working on a volunteer project with the Boy Scouts at an Evansville church when he fell from the roof of a storage shed and fractured his right leg, resulting in three separate surgeries. After his injury, Morris filed a claim with CKB’s workers’ compensation carrier, West Bend Mutual Insurance Carrier, and with the church’s liability carrier and the Boy Scouts’ insurance carrier, all of whom paid money to or on behalf of Morris that totaled more than $100,000.

Then in February 2013, Morris filed an application for adjustment of claim with the Indiana Worker’s Compensation Board, but the application was denied at a single member hearing. He then filed his application before the full board, which also denied his application. In its finding, the board held that Morris had failed to meet his burden of showing that his injuries arouse out of and occurred in the course of his employment.

Morris appealed and CKB cross-appealed, seeking reimbursement of money paid to or on behalf of Morris. But Morris turned to the Indiana Supreme Court case of Knoy v. Cary, 813 N.E.2d 1170 (Ind. 2004), which found that “where the employer’s interests in sponsoring an after-hours activity are not merely altruistic, but are also intended to improve the business, the activity may be incidental to employment,” as an example of legal precedent holding that his work at the church was incidental to his employment.

The Indiana Court of Appeals wrote that Morris had demonstrated “a sufficient connection between his interests in improving his business by conducting community service projects and his sole proprietorship.” Further, the appellate court pointed out that Morris had donated materials to the church project and had deducted them as a business expense and used CKB tools and equipment during the project.

Additionally, Morris testified that his business did garner a substantial amount of goodwill and additional business as a result of his work with the church project, and went so far as to describe his community endeavors as “networking.”

Thus, the appellate court found that the evidence in the case “inescapably” leads to the decision that Morris’ injury arose out of and in the course of his employment and is, therefore, covered by workers’ comp. The Court of Appeals declined to address CKB’s cross-appeal and instead remanded the case for determination of the benefits Morris should receive.

Dec. 8

Adoption – Attorney Withdrawal

In Re the Adoption of A.G. & J.G. A.R., v. M.G. and J.G.


An attorney seeking a motion to withdraw appearance had to prove there was justification for his withdrawal and provide sufficient notice to the party he represented before the motion could be granted, the Indiana Court of Appeals found.

In July 2014, M.G. and Je.G. filed a petition for adoption, alleging that Je.G. was the natural father of two children, A.G. and Ju.G., and that M.G. was married to him. The children’s natural mother, A.R., asked the court to deny the petition and asked for a civil public defender to be appointed to her for the proceedings. William Byer Jr. was appointed as A.R.’s civil public defender in the case.

But in November 2015, the Madison Circuit Court granted a motion to withdraw appearance for Byer, who argued that A.R. had failed to cooperate or communicate with him. A.R. asked in December if she could request another attorney, telling the court that she learned of Byer’s departure immediately before being taken to jail for an unrelated matter.

The trial court chose not to appoint replacement counsel for A.R. A court entry from Dec. 17 read, in part, “Because (A.R.) offered on (sic) satisfactory explanation for Byer’s withdrawal, no new PD will be appointed. However, the record will be left open until 12/29/15 to provide (A.R.) with an opportunity to privately retain counsel…” A.R. never had counsel during the proceedings.

An amended decree of adoption was issued Feb. 11, 2016, and A.R. appealed, arguing that the Madison Circuit Court abused its discretion in granting Byer’s motion to withdraw appearance that did not comply with local rules. Further, A.R. said the Indiana Court of Appeals requires the appointment of counsel in an adoption case. But Je.G. and M.G. argued that A.R. invited the error by failing to cooperate or communicate with Byer and that the denial of replacement counsel was harmless.

Judge Elaine Brown wrote for the unanimous panel that people whose parental rights are in jeopardy have the right to counsel, whether retained or appointed. Further, Brown pointed to a Madison County local rule that requires attorneys seeking to withdraw to meet certain conditions and to give 21 days’ notice to the litigant of their intent to withdraw.

Byer’s motion did not state that one of the required conditions – the presence of another attorney to litigate the matter, a discharge of the attorney by the litigant or the litigant’s acceptance of the withdrawal – was met. Further, the motion did not state whether Byer had met the 21-day notice requirement.

Thus, Brown wrote, the trial court’s decision to grant his motion to withdraw appearance was an abuse of discretion in violation of Local Rule LR48-TR3.1-26. The case was remanded for further proceedings.

Dec. 12

Criminal – Failure to Register

Richard Dobeski v. State of Indiana


A convicted child molester will not also have a conviction of failure to register as a sex offender after the Indiana Court of Appeals found that his arrest was premature.

Richard Dobeski was convicted of Class C felony child molesting in 2008 and was subsequently required to register as a sex offender upon release from prison. When he was released July 16, 2015, a transportation van carrying Dobeski left the prison at 9:30 a.m. and arrived in Indianapolis at 11:15 a.m.

When a sergeant in the Marion County Sheriff’s Office checked the sex offender registry sometime after 1 p.m. on July 23, he found that Dobeski had not yet registered, so he was arrested sometime between 2 and 2:30 p.m.

At trial, the state argued that a full seven days had elapsed between Dobeski’s release and arrest and that “days” referred to full 24-hour periods beginning with the moment Dobeski was released. Thus, he was required to register by 11:15 a.m. on July 23, and his failure to do so justified the arrest that occurred after 2 p.m. But Dobeski argued that state statute gave him seven calendar days to register, so he had until midnight on July 23 to do so.

The Marion Superior Court found in favor of the state, so Dobeski appealed. The state presented two arguments on appeal – first, that a “day” constitutes a 24-hour period, and second that if a “day” means a calendar day and Dobeski’s day of release was included, then he only had until midnight on July 22 to register.

But the Indiana Court of Appeals wrote that both of the state’s arguments were deficient and reversed Dobeski’s conviction of failure to register.

Judge Robert Altice pointed out that Indiana Code and trial rules explicitly state that the time within which an act must be done, such as registering as a sex offender, excludes the first day. In this case, that means that Dobeski’s seven-day window did not begin on the day of his release.

Further, Altice wrote that Indiana caselaw traditionally defines a “day” as a 24-hour period and that the state pointed to no evidence to suggest otherwise.

Thus, the state’s arrest of Dobeski was premature, the appellate court wrote, so the case was remanded with instructions to vacate his conviction.

Dec. 13

Criminal – Sex Offender Registry

State of Indiana v. Douglas Woods Johnston


A man who has been convicted of multiple sex offenses must keep his name on the Indiana Sex Offender Registry for now after the Indiana Court of Appeals found that he had failed to present a proper petition to keep his name off of the registry.

Douglas Johnston filed a motion in October 2015 requesting his removal from the Indiana Sex Offender Registry, writing that he had been found guilty but mentally ill in 2006, when he was convicted for the first time of child molesting as a Class C felony. Johnston further wrote that he was eligible for relief because he was 59 years old and was willing to get continued treatment for his mental illness.

During the hearing in January 2016, Johnston’s counsel told the Marion Superior Court that Johnston had also been convicted of child molesting in 1997 and had been arrested in 2013, though that charge was dropped. Johnston then testified that he had been getting treatment for his mental illness and told the court that he faced hardships when trying to comply with the Indiana Sex Offender Registry Act.

The state, however, objected that the petition was inadequate and argued that Johnston had failed to meet his burden of proof. But the trial court ultimately found that Johnston should be required to register only until July 28, 2016, 10 years after his conviction. The Indiana Department of Correction filed a motion to intervene and motion to correct error, but failed to appear before the Marion Superior Court, so the motion to correct error was denied.

The state appealed and the Indiana Court of Appeals unanimously reversed the decision to deny the motion to correct error. Judge L. Mark Bailey wrote that there were allegations that Johnston’s most recent victim was 6 years old, that Johnston had been classified as a sexually violent predator and that state statute in effect in 2006 required that, “A sex or violent offender who is convicted of at least two unrelated offenses … is required to register for life.”

“Thus, by all indications, Johnston was subject to life-time reporting requirements when he petitioned for relief,” Bailey wrote.

Johnston’s petition for relief came under Indiana Code section 11-8-8-22, which provides a mechanism for relief for sex offenders if, among other things, the petition is submitted under penalties of perjury and lists each criminal conviction. But Johnston’s petition was not submitted under penalties of perjury and one of his convictions was omitted, Bailey wrote.

Further, Bailey wrote that there was no indication that notice of the hearing was sent to the Department of Corrections or the Attorney General, as required by state statute. Finally, the appellate judge pointed out that Johnston’s counsel had not argued that he had satisfied his statutory burden of proof. Instead, Johnston argued that he had been “implicitly” found to be subjected to an ex post facto punishment, another provision of the statute.

But Bailey wrote that Johnston had not presented an ex post facto punishment argument and instead made an appeal for compassionate relief. Thus, the Marion Superior Court should have granted the state’s request for dismissal. The case was remanded with instructions to dismiss the matter with prejudice, subject to further proceedings if Johnston filed a new petition.•


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