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Opinions Jan. 30, 2017

January 30, 2017

7th Circuit Court of Appeals
Legato Vapors, LLC, et al and Right to be Smoke-Free Coalition, Inc. v. David Cook, et al
16-3071
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Reverses the judgment of the district court dismissing the case. Remands with instructions to enjoin enforcement of the challenged provisions of the Vapor Pens and E-Liquids Act against the plaintiffs and to declare the challenged provisions unenforceable against out-of-state manufacturers. Finds that Indiana may not try to achieve health and safety goals by directly regulating out-of-state factories and commercial transactions. Also finds that as applied to out-of-state manufacturers, the challenged provisions of the act violate the dormant Commerce Clause prohibition against extraterritorial legislation.

Indiana Court of Appeals
Richard D. Shepard v. State of Indiana
84A01-1606-CR-1309
Criminal. Affirms the sentence the Vigo Superior Court imposed on Richard D. Shepard after revoking his placement in a county community corrections program. Finds that requiring the trial court to ignore the program’s deprivation of Shepard’s credit time for his violation of the rules would have effectively nullified the program’s disciplinary decisions.

Dennis Garner v. Gregory Stewart Kempf and Vanderburgh County Clerk
82A01-1512-PL-2362
Civil plenary. Reverses the Vanderburgh Circuit Court’s order denying Dennis Garner’s motion for proceedings supplemental. Finds that the clerk’s failure to fulfill its duty as a garnishee defendant prevented Garner from collecting on his lien and, consequently, the clerk is liable to Garner in the amount thereof. Remands with instructions for the civil court to enter judgment accordingly. Judge Rudolph Pyle dissents with separate opinion.

In re the Termination of the Parent-Child Relationship of R.N. (Minor Child), and R.S. (Mother) and A.N. (Father) v. Indiana Department of Child Services (mem. dec.)
90A02-1606-JT-1459
Juvenile termination of parental rights. Affirms the Wells Circuit Court order terminating R.S. and A.N.’s parental rights to their minor child, R.N. Finds that the Department of Child Services presented sufficient evidence to support the trial court’s conclusion that there was a reasonable probability that the reason for the child’s removal from her parents – their use and abuse of drugs – would not be remedied. Also finds that there was sufficient evidence to support the trial court’s conclusion that termination of the parent-child relationship was in the best interests of R.N.

James F. Glass v. Gilliatte General Contractors, Inc. (mem. dec.)
49A02-1607-MI-1642
Miscellaneous. Affirms the Marion Superior Court’s grant of Gilliatte General Contractors, Inc.’s petition for confirmation of arbitration award and denial of James F. Glass’ motion to correct error. Finds that Glass’ claim fails because he failed to argue that the presiding judge did not authorize the use of the rubber stamp to signify his approval of the final judgment or because he did not demonstrate that he was prejudiced by the stamped signature. Also finds that Glass has waived his challenge to Magistrate Caryl Dill’s signing of the order denying his motion to correct error. Finally, finds that the trial court did not err by rejecting Glass’ allegation of fraud but rejected Gilliate’s request for attorney’s fees.

Nahamani Sargent v. State of Indiana (mem. dec.)
49A02-1607-CR-1666
Criminal. Affirms Nahamani Sargent’s conviction of unlawful possession of a firearm by a serious violent felon. Finds that the Marion Superior Court was not required to step in, sua sponte, and strike evidence that Sargent remained silent after his arrest. Also finds that the state’s limited reference to Sargent’s silence did not make a fair trial impossible. Finally, finds that the state presented sufficient evidence to prove that he possessed a firearm.

In the Termination of the Parent-Child Relationship of: C.H. (Minor Child), and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)
21A01-1609-JT-2108
Juvenile termination of parental rights. Affirms the termination of D.S.’s parent-child relationship with his son, C.H. Finds that there is sufficient evidence to support the Fayette Circuit Court’s decision to terminate the parent-child relationship.

Elliott Tyson v. State of Indiana (mem. dec.)
49A04-1602-CR-280
Criminal. Affirms the denial of Elliott Tyson’s motion to correct erroneous sentence after he was sentenced to 80 years for dealing in controlled substances and for being an habitual offender. Finds that the Marion Superior Court did not abuse its discretion in denying Tyson’s motion. Declines Tyson’s request to take judicial notice of the transcripts from his original trial.

Leonard Blackmon v. State of Indiana (mem. dec.)
71A04-1606-CR-1483
Criminal. Affirms Leonard Blackmon’s Level 5 attempted battery conviction. Finds that the state presented sufficient evidence to rebut Blackmon’s claim of self-defense.

David L. Moses v. State of Indiana (mem. dec.)
31A01-1604-CR-715
Criminal. Affirms the revocation of David Moses’ probation. Finds that the Harrison Superior Court did not abuse its discretion when it concluded Moses violated his probation by failing to comply with sex offender treatment as required by terms of his probation. Judge John Baker dissents with separate opinion.

Jose Gutierrez v. State of Indiana (mem. dec.)
45A05-1512-CR-2372
Criminal. Grants rehearing for the limited purpose of correcting a sentence in Paragraph 9 in the original memorandum decision from Oct. 21, 2016. Affirms original decision in all other aspects.

Melvin D. Levy v. State of Indiana (mem. dec.)
20A03-1608-CR-2009
Criminal. Affirms Melvin D. Levy’s conviction of Level 4 felony possession of cocaine and sentence to a total executed sentence of eight years. Finds that there is sufficient evidence to prove Levy possessed the cocaine. Also finds that his sentence is not inappropriate in light of the nature of his offense and his character.

Dwayne Casteel v. State of Indiana (mem. dec.)
49A02-1606-CR-1476
Criminal. Affirms Dwayne Casteel’s conviction of robbery as a Level 5 felony. Finds that it was unlikely that the testimony of Detective Jerry Townsend contributed to the jury’s verdict and that any error in the admission of that testimony was harmless. Finds that the evidence was sufficient to support his conviction.

Engel Manufacturing Company, Inc. v. Review Board of the Indiana Department of Workforce Development and D.R. (mem. dec.)
93A02-1607-EX-1596
Agency. Affirms the order of the Review Board of the Indiana Department of Workforce Development determining that one of Engel Manufacturing Company, Inc.’s employees, D.R., voluntarily left his employment for good cause in connection with the work and was therefore eligible for unemployment benefits. Finds that the Review Board’s determination was supported by sufficient evidence in the record.

Mark A. Price v. State of Indiana (mem. dec.)
49A02-1607-CR-1665
Criminal. Affirms Mark Price’s conviction of unlawful possession of a firearm by a serious violent felon. Finds that the evidence is sufficient to support the jury’s finding of constructive possession.  Also finds that because the evidence of Price’s silence after his arrest may have worked to his benefit, the Marion Superior Court was not required to step in, sua sponte, and exclude it. Finally, finds that the state’s limited reference to Price’s silence did not make a fair trial impossible.

Terry R. Twitty v. State of Indiana (mem. dec.)
32A01-1605-CR-1113
Criminal. Affirms the denial of Terry R. Twitty’s motion to correct erroneous sentence. Finds that the Hendricks Superior Court did not abuse its discretion in denying Twitty’s motion.

Joshua R. Walker v. State of Indiana (mem. dec.)
05A02-1607-CR-1584
Criminal. Affirms Joshua R. Walker’s sentence to an executed term of 2½ years after he was convicted of Level 6 felony neglect of a dependent. Finds that the Blackford Circuit Court did not abuse its discretion in relying upon the particularly brutal facts and circumstances of the crime and the severity of Walker’s behavior as a reason for justifying a sentence greater than the advisory.

Harry Spicer v. State of Indiana (mem. dec.)
15A01-1512-CR-2205
Criminal. Affirms Harry Spicer’s conviction of Class A felony conspiracy to commit dealing in methamphetamine and sentence to 40 years. Finds that there is sufficient evidence to support Spicer’s conviction and that he failed to show that his sentence is inappropriate.

Christopher E. Wilson v. State of Indiana (mem. dec.)
87A05-1605-DR-1169
Domestic relation. Affirms the Warrick Circuit Court’s order finding Christopher E. Wilson in contempt and entering judgment against him and in favor of his ex-wife, Lora B. Wilson Monnier. Finds that Wilson failed to establish error.
 

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