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Opinions Dec. 29, 2016

December 29, 2016

Indiana Court of Appeals
Angela R. Neal v. State of Indiana
20A04-1606-CR-1326
Criminal. Affirms that the Elkhart Superior Court’s advisement of the consequences of Angela R. Neal’s status as a credit-restricted felon complied with Indiana Code 35-38-1-7.8(c). Finds there is no particular language that a trial court must use in order to comply with the statute.

Summer C. Snow v. State of Indiana
45A03-1605-CR-1175
Criminal. Affirms Summer C. Snow’s convictions for battery against a public safety official as a Level 5 felony and resisting law enforcement as a Level 6 felony. Finds any error in the admission of the testimony regarding a gun challenged by Snow was, at most, harmless. Chief Judge Nancy Vaidik dissents with separate opinion.

Reginald Seville Harris v. State of Indiana
45A03-1605-CR-1168
Criminal. Affirms Reginald Seville Harris’ conviction for battery against a public safety official as a Level 5 felony. Finds that it is unlikely that the jury was significantly influenced by the testimony regarding the discovery of Summer Snow’s gun in light of the other evidence regarding Harris’ actions and that any error in admitting the testimony regarding the presence of the gun was, at most, harmless. Chief Judge Nancy Vaidik dissent with separate opinion.

Andrew Hunter v. State of Indiana, Department of Transportation
49A02-1604-PL-978
Civil plenary. Affirms the Marion Superior Court’s grant of the Indiana Department of Transportation’s motion to dismiss Andrew Hunter’s petition for judicial review. Finds that Hunter’s petition was untimely filed and that the untimely filing is a procedural error, not jurisdictional. Also finds that the trial court could consider the timeliness issue even if INDOT failed to preserve it. Finally, finds that because Hunter’s petition was untimely filed, he waived his right to judicial review and is not entitled to demonstrate good cause to excuse the untimely filing.

H.S. v. W.P.
79A05-1604-GU-776
Guardianship. Reverses the dismissal of H.S.’s guardianship petition regarding W.P. Finds that there is no evidence that H.S.’s petition violated a local court rule. Also finds that there is no evidence that H.S. influenced uncle J.C.P.’s decision to dismiss his own cases and that, therefore, the doctrine of res judicata cannot be fairly applied to preclude her petition. Remands with instructions to vacate the order dismissing her case and for further proceedings.

Suzanne E. Esserman v. Indiana Department of Environmental Management
49A02-1605-PL-1129
Civil plenary. Reverses the Marion Superior Court’s dismissal of Suzanne E. Esserman’s complaint against the Indiana Department of Environmental Management in which Esserman alleged that IDEM had unlawfully terminated her employment in retaliation for her reporting alleged misuse of state funds by certain IDEM officers. Finds that none of the three limited circumstances in which the Indiana Supreme Court has recognized that common law sovereign immunity exists applies. Also finds that Esserman’s complaint states a claim upon which relief can be granted. Finally, finds that the trial court erred when it dismissed Esserman’s complaint pursuant to Indiana Trial Rules 12(B)(1) and 12(B)(6). Remands for further proceedings.

William M. Starcher v. State of Indiana
79A05-1605-CR-1135
Criminal. Dismisses William M. Starcher’s appeal of his two-year sentence for maintaining a common nuisance as a Level 6 felony and possession of a synthetic drug as a Class A misdemeanor. Finds the plain terms of Starcher’s plea agreement demonstrate that he waived his right to appellate review of his sentence.

In the Term. of the Parent-Child Relationship of: D.W. and M.W. (Minor Children), R.W. (Father) v. Indiana Department of Child Services (mem. dec.)
48A05-1603-JT-723
Juvenile termination of parental rights. Affirms the termination of R.W.’s parental rights over his minor children, D.W. and M.W. Finds the totality of the evidence, including R.W.’s historical inability to be a law-abiding citizen or to provide a safe and stable home, supports the Madison Circuit Court’s conclusion that termination of his parental rights is in the children’s best interests. Also, finds that the if the trial court did err in its delay of final judgment, the error was harmless given R.W.’s continued incarceration and failure to show how he was harmed by the delay. Finally, finds R.W. has not shown that his due process rights were violated.

In re the Termination of the Parent-Child Relationship of N.B. (Minor Child), and A.H. (Mother) v. Indiana Department of Child Services (mem. dec.)
49A02-1605-JT-1105
Juvenile termination of parental rights. Affirms the termination of A.H.’s parental rights to N.B. Finds that the Marion Superior Court’s order terminating the parental rights of mother in child was not clearly erroneous.

Alva Oliver Funk v. State of Indiana (mem. dec.)
27A02-1601-CR-170
Criminal. Affirms Alva Funk’s conviction of one count of Class B felony robbery with a deadly weapon.  Finds the evidence challenged by Funk was properly admitted against him. Also finds that all the evidence was sufficient to sustain his conviction on appeal. Finally, finds that the prosecutor’s closing argument did not deny Funk a fair trial.

David A. Penfold v. State of Indiana (mem. dec.)
63A01-1606-CR-1436
Criminal. Affirms David A. Penfold’s six-year sentence for child solicitation as a Level 4 felony. Finds Penfold’s sentence is not inappropriate in light of the nature of the offense and his character.

In the Matter of: C.T., (Child in Need of Services), N.T. v. Indiana Department of Child Services (mem. dec.)
49A04-1607-JC-1667
Juvenile. Affirms the adjudication of C.T. as a child in need of services. Finds that the evidence supports the conclusion that N.T.’s behavior seriously endangered C.T. and, thus, the trial court’s adjudication was not clearly erroneous.

Ronald E. Harrod v. State of Indiana (mem. dec.)
48A02-1604-CR-871
Criminal. Affirms Ron Harrod’s conviction for Level 4 felony child molesting. Finds the Madison Circuit Court did not err by admitting vouching testimony into evidence. Also finds there is sufficient evidence to support Harrod’s conviction.

Joshua A.B. Weathers v. State of Indiana (mem. dec.)
79A04-1605-CR-1134
Criminal. Affirms Joshua A.B. Weather’s convictions for Level 6 felony neglect of a dependent and Level 6 felony possession of a syringe. Finds Weathers has waived his challenge to the state’s closing argument and the evidence was sufficient to support his possession of a syringe conviction.

Carlvet Lee v. State of Indiana (mem. dec.)
32A04-1607-CR-1547
Criminal. Dismisses Carlvet Lee’s appeal of his sentence for seven counts of felony drug and gun offenses. Finds that Lee waived the right to challenge the sentence.

Clarence Milton Carlisle, II v. State of Indiana (mem. dec.)
29A02-1603-CR-590
Criminal. Affirms in part Clarence Milton Carlisle II’s convictions for two counts of fraud as Level 6 felonies, two counts of forgery as level 6 felonies and theft as a Class A misdemeanor. Vacates the non pro tunc entry. Finds that the trial Hamilton Superior Court’s error in the nunc pro tunc entry is obvious and that in correcting the typographical error, the trial court made a second typographical error when it ordered executed 910 days on a 550-day sentence. Remands with instructions that the trial court correct the sentencing order.

Vassil M. Marinov v. Fiat Chrysler Automotive (mem. dec.)
79A04-1604-SC-881
Small claims. Reverses the denial of Vassil Marinov’s motion to correct error, which challenged the dismissal of his pro se small claims complaint against his employer, Fiat Chrysler Automotive, whereby Marinov denied the validity of an assignment of wages for the payment of union dues. Finds that the dismissal of Marinov’s complaint was in error and, as such, the Tippecanoe Superior Court abused its discretion in denying his motion to correct error. Remands for a hearing for the development of jurisdictional facts.

Kenneth Rollingcloud v. State of Indiana (mem. dec.)
02A03-1604-CR-993
Criminal. Affirms Kenneth Rollingcloud’s sentence to an aggregate of 2 ½ years for possession of cocaine as a Level 6 felony, invasion of privacy as a Class A misdemeanor and possession of paraphernalia as a Class C misdemeanor. Finds the Allen Superior Court did not abuse its discretion in sentencing Rollingcloud and his sentence is not inappropriate.

Keith E. Hopkins, Jr. v. State of Indiana (mem. dec.)
02A03-1607-CR-1588
Criminal. Affirms Keith Hopkins’ convictions for two counts of Class A misdemeanor resisting law enforcement. Finds that police officers did not effect an unconstitutional warrantless arrest and that there is sufficient evidence to support his convictions.

Jeffrey R. Chaney v. State of Indiana (mem. dec.)
73A01-1604-CR-767
Criminal. Affirms the Shelby Superior Court finding that Jeffrey Chaney is an habitual offender and the 73-year sentence for that finding, plus his convictions for Class A felony child molesting and Class C felony child molesting. Finds sufficient evidence and that the sentence is not inappropriate.

Michael Glenn v. State of Indiana (mem. dec.)
49A04-1511-CR-2015
Criminal. Affirms Michael Glenn’s conviction of Class B felony aggravated battery. Finds there was no variance between the charge and evidence at trial and that there was sufficient evidence that Glenn knowingly created a substantial risk of death.

In Re the Election of the Mayor of the City of Mitchell; Dan Terrell v. John "JD" England (mem. dec.)
47A04-1602-MI-402
Miscellaneous. Affirms the election of John England over Dan Terrell for mayor of Mitchell and the denial of Terrell’s contest petition and request for a special election on their merits. Finds England’s motion to dismiss Terrell’s petition for failure to comply with the contest statute and the Trial Rules was properly granted and that once that order was entered, Terrell’s cause of action was extinguished and the Lawrence Circuit Court’s alternative order had no object on which to operate. Therefore, that order, as well as the findings and conclusions on which it rests, are therefore void and of no force and effect.

Douglas K. Hoffman, as successor trustee of the Hoffman HF Land Trust, and TDM Farms, Inc. v. Andrew G. James and Susan G. James (mem. dec.)
45A03-1604-CC-743
Civil collection. Reverses the Lake Superior Court’s grant of summary judgment to Andrew and Susan James. Finds the Jameses failed to properly designate evidence in support of their motion for summary judgment. Remands for further proceedings.

Larry A. Conn v. State of Indiana (mem. dec.)
46A03-1604-CR-1007
Criminal. Affirms Larry Conn’s convictions for operating a vehicle after a lifetime suspension as a Level 5 felony and false informing as a Class B misdemeanor. Finds there was no error in admitting one of his statements into evidence and his sentence to an aggregate of three years is not inappropriate.

Dwayne Pettis v. State of Indiana (mem. dec.)
20A03-1603-CR-487
Criminal. Affirms the Elkhart Superior Court order classifying Dwayne Pettis as a sexually violent predator based upon two 1990 convictions. Finds there was no error.

Angie's List, Inc. v. Rick Myers, Maggie Leonard, and Brock Crabtree (mem. dec.)
29A02-1605-PL-1061
Criminal. Affirms in part and reverses in part the denial of Angie’s List’s request for a preliminary injunction against Rick Myers, Maggie Leonard and Brock Crabtree. Finds the Hamilton Superior Court properly denied Angie’s List’s request to enjoin the defendants from working for their competition, but the trial court improperly declined to enjoin them from any future violations of their covenants with Angie’s List. Remands for further proceedings.

Steven D. Parks v. State of Indiana (mem. dec.)
48A05-1604-CR-821
Criminal. Affirms Steven Parks’ conviction for Level 6 felony theft. Finds that the evidence is sufficient to support Parks’ conviction.

Brian E. Lewis v. Bray Lewis (mem. dec.)
66A04-1607-DR-1540
Domestic relations. Affirms the dissolution court’s final decree that ended Brian Lewis’ marriage to Bray Lewis. Finds that the dissolution court did not err when it awarded Bray Lewis $45,000.

 

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