`

Opinions Feb. 22, 2017

February 22, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Alma Glisson, Personal Representative of the Estate of Nicholas L. Glisson v. Indiana Department of Corrections, et al.
15-1419
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Judge Sarah Evans Barker.
Civil. Reverses the district court’s decision to award summary judgment to Correctional Medical Services Inc., also known as Corizon, on Alma Glisson’s claim that the medical care Corizon provided to her son, Nicholas Glisson, violated his Eighth Amendment rights and resulted in his death. Finds Glisson presented enough evidence of disputed, material issues of fact to proceed to trial. Remands for further proceedings. Judge Diane Sykes dissents with separate opinion, joined by judges William Bauer, Joel Flaum and Michael Kanne.

Wednesday's opinions
Indiana Court of Appeals
Thomas E. Stettler v. State of Indiana
18A04-1607-CR-1638
Criminal. Affirms Thomas E. Stettler’s conviction of child molesting as a Class B felony. Finds the Delaware Circuit Court’s admission of evidence barred by Evidence Rule 404(b) was harmless error. Also finds the prosecution did not engage in misconduct during closing arguments, so there was accordingly no fundamental error.

Pastor Llobet, M.D. v. Juan Gutierrez
45A04-1605-CT-1133
Civil tort. Affirms the denial of Pastor Llobet’s motion to strike. Reverses the Lake Superior Court’s order barring evidence of pre-angiogram testing records. Finds that Juan Gutierrez’s “angiogram-not-indicated” theory was encompassed by the proposed complaint he filed with the Department of Insurance and is related to the evidence that was submitted to the medical review panel. Also finds that Llobet should be allowed to use the pre-angiogram testing records to respond to the allegation that the angiogram was not indicated.

C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women's Healthcare, P.C., Brian W. Cook, M.D., Rhonda S. Trippel, M.D., and Lillette (Alice B.) Wood, M.D.
53A01-1607-CT-1657
Civil tort. Reverses the Monroe Circuit Court’s grant of summary judgment to Aegis Women’s Healthcare P.C. Finds that evidence related to the theory that Aegis waited too long to perform the C-section that resulted in C.S.’s birth was presented to the medical review panel.

Bryce A. Swihart v. State of Indiana
27A02-1605-CR-1219
Criminal. Affirms Bryce A. Swihart’s conviction of two counts of forgery as Level 6 felonies and the Grant Superior Court’s grant of 124 days of jail credit time. Finds there was sufficient evidence to support Swihart’s convictions. Also finds that the trial court did not err in determining jail credit time.

Ashley N. McFall v. State of Indiana
20A03-1602-CR-267
Criminal. Affirms Ashley N. McFall’s conviction for Class A Felony dealing in methamphetamine (manufacturing). Revises McFall’s 40-year sentence to a term of 30 years given that this is her first felony conviction and the progress that she has made since her arrest to overcome her addiction and get her life in order. Finds the evidence is sufficient to support McFall’s conviction.

Samuel R. White v. State of Indiana (mem. dec.)
70A04-1607-CR-1752
Criminal. Affirms Samuel White’s conviction for conspiracy to commit dealing in methamphetamine as a Level 3 felony and his 15-year sentence. Finds the evidence is sufficient to support White’s conviction and that his sentence is not inappropriate.

Brandon Artis v. State of Indiana (mem. dec.)
82A05-1608-CR-1747
Criminal. Affirms Brandon Artis’ conviction for unlawful possession of a firearm by a serious violent felon as a Level 4 felony. Finds there is sufficient evidence to support Artis’ conviction.

Alberto Cruz v. State of Indiana (mem. dec.)
71A03-1606-CR-1492
Criminal. Affirms Alberto Cruz’s conviction for murder. Finds the state presented sufficient evidence to support his conviction.

Sarah Speck v. State of Indiana (mem. dec.)
49A02-1609-CR-2195
Criminal. Affirms Sarah Speck’s conviction for Level 5 felony burglary. Finds the evidence is sufficient to sustain her conviction.

Lisa Baushke v. Eric Miller (mem. dec.)
20A04-1606-JP-1225
Juvenile paternity. Affirms the Elkhart Superior Court’s order award sole legal and physical custody of D.M. to Eric Miller, subject to Lisa Baushke’s right to parenting time. Declines to rule on an issue of child support for lack of jurisdiction. Also declines to remand the case for a determination regarding Miller’s fees. Finds there is sufficient evidence to support the trial court’s order. Also finds that the facts of the case do not rise to the level to merit the award of appellate attorney fees. Judge Elaine Brown concurs in result with separate opinion.

Han Chong v. Jung Hee Kim (mem dec.)
53A01-1609-PO-2073
Order of protection. Reverses an order of protection preventing Han Chong from having contact with his business associate Jung Hee Kim, who alleged that she had been the victim of stalking. Finds there was insufficient evidence to support a finding that the conduct at issue would cause a reasonable person to feel terrorized, frightened, intimidated or threatened and that the Monroe Circuit Court’s issuance of a protective order was in error.

Thomas Yoder v. State of Indiana (mem. dec.)
20A04-1607-PC-1674
Post conviction. Affirms and reverses in part the denial of Thomas Yoder’s petition for post-conviction relief following his convictions of battery by means of a deadly weapon as a Class C felony and intimidation as a Class C felony. Finds the post-conviction court did not clearly err in concluding that Yoder did not receive ineffective assistance of trial counsel due to counsel’s failure to play Yoder a 911 recording. Also finds the post-conviction court clearly erred by denying Yoder post-conviction relief due to trial counsel’s and appellate counsel’s failure to raise the issue of double jeopardy. Remands.

Asia Marshall v. State of Indiana (mem. dec.)
02A03-1607-CR-1700
Criminal. Affirms and reverses in part Asia Marshall’s conviction of domestic battery as a Class A misdemeanor and disorderly conduct by fighting or tumultuous conduct as a Class B misdemeanor. Finds the evidence is sufficient to support Marshall’s conviction of domestic battery but the disorderly conduct conviction must be vacated due to a double jeopardy violation. Remands in part.

James Jenkins v. State of Indiana (mem. dec.)
49A02-1602-CR-399
Criminal. Affirms James Jenkins’ conviction for murder. Finds any error in the admission of evidence was harmless.

Darrell Berry v. State of Indiana (mem. dec.)
71A03-1606-CR-1349
Criminal. Affirms Darrell Berry’s conviction for operating a motor vehicle while intoxicated endangering a person as a Class A misdemeanor and leaving the scene of an accident as a Class B misdemeanor. Finds the variance between the charging information and the evidence presented at trial was not material. Also finds that there was sufficient evidence to sustain Berry’s conviction for leaving the scene of an accident.

Jason J. Green v. State of Indiana (mem. dec.)
02A03-1608-CR-2015
Criminal. Affirms Jason Green’s five-year sentence for corrupt business influence as a Level 5 felony and two counts of forgery as a Level 6 felony. Finds Green’s sentence is not inappropriate.

Jay E. Millen v. State of Indiana (mem. dec.)
84A05-1606-CR-1359
Criminal. Affirms the revocation of Jay E. Millen’s probation and the Vigo Superior Court order that he serve the remainder of his previously suspended 10-year sentence. Finds that when the trial court took judicial notice of Millen’s convictions for false informing and obstruction of justice, that notice was broad enough to include when the offenses occurred.
 

ADVERTISEMENT