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Opinions Feb. 28, 2017

February 28, 2017

The following Indiana Court of Appeals opinion was posted after IL deadline Monday:
Katie M. Wilson v. State of Indiana (mem. dec.)
82A01-1607-CR-1714
Criminal. Affirms Katie M. Wilson’s conviction for theft as a Class A misdemeanor. Finds that the state presented sufficient evidence to support Wilson’s conviction.

Tuesday opinions
Indiana Court of Appeals
State of Indiana v. C.K.
49A02-1607-JV-1506
Juvenile. Reverses the juvenile court’s denial of the state’s petition for the court to waive jurisdiction over C.K. in two cases. Finds that C.K.’s felony conviction qualified as a prior felony for purposes of Indiana Code 31-30-3-6 and that when both elements of that statute have been established, the “juvenile court shall waive jurisdiction.” Remands for further proceedings.

Danielle Maple v. Travis Maple
02A03-1608-DR-1889
Domestic relation. Reverses the Allen Circuit Court’s modification of Danielle and Travis Maple’s child support order. Finds the trial court erred when it set Danielle Maple’s legal duty of support for her prior-born child at an amount lower than what was on her child support worksheet. Also finds Travis Maple has not otherwise proven a change in circumstances so substantial and continuing as to make the prior order unreasonable. Remands with instructions.

Alan Mizen v. State of Indiana ex rel. Gregory F. Zoeller, Attorney General of Indiana
49A02-1605-PL-1132
Civil plenary. Affirms and reverses in part the Marion Superior Court’s summary judgment in favor of the State of Indiana ex rel Curtis Hill and the denial of Alan Mizen’s motion for summary judgment. Finds the trial court properly granted summary judgment to the state because it filed its Crime Victims Relief Act claim within the two-year statute of limitations based on the discovery rule, and the state is entitled to recover, as a matter of law, the $54,978.41 in additional audit costs that were expended, along with treble damages under the CVRA, in the amount of $687,082.16, plus reasonable attorney fees and costs. Remands.

Blaine Boyland, Amy L. Boyland, David K. Jones, and Susan E. Jones v. Castle Farms, Inc.
06A05-1511-CC-1867
Civil collection. Affirms the trial court’s findings of fact, conclusions and judgment in favor of Castle Farms Inc. regarding title to certain real property. Finds that the Boone Circuit Court’s conclusion that Castle Farms had a reasonable and good faith belief that since 1992 it had paid the property taxes due on the property it had purchased from Corner Grove Farms Inc. is not clearly erroneous.

Ricky Johnson v. State of Indiana
79A04-1601-CR-165
Criminal. Reverses Ricky Johnson’s conviction for possession of a firearm by a serious violent felon as a Level 4 felony. Finds that the protective sweep was improper and that the Tippecanoe Superior Court abused its discretion by admitting the gun discovered in the apartment.

Neil C. Albee v. State of Indiana
79A02-1606-CR-1266
Criminal. Reverses Neil Albee’s convictions for Level 6 felony voyeurism and Class B misdemeanor residential entry. Finds that the circumstances surrounding Margaret Schuerger’s pretrial identification of Albee were unnecessarily suggestive, and those identifications were so unreliable that Albee’s right to due process was abridged when the Tippecanoe Superior Court admitted the identifications into evidence. Also finds that the evidence as a whole was sufficient to support Albee’s convictions for voyeurism and residential entry so a retrial would not offend double jeopardy principles.

Reta M. Hollowell v. Donald Hollowell (mem. dec.)
49A02-1605-DR-985
Domestic relation. Affirms the Marion Superior Court’s denial of Reta Hollowell’s motion to correct error filed with respect to a dissolution decree that order Donald Hollowell to pay her $500 per month in incapacity maintenance and equally divided the parties’ property. Finds that the trial court did not abuse its discretion in dividing the parties’ marital property.

Lisa Crawford v. State of Indiana (mem. dec.)
49A02-1608-CR-1786
Criminal. Affirms Lisa Crawford’s convictions of Class A misdemeanor leaving the scene of an accident causing bodily injury and Class B misdemeanor false informing. Finds that Crawford’s convictions were supported by sufficient evidence.

Milton D. Horton v. State of Indiana (mem. dec.)
49A05-1606-CR-1445
Criminal. Affirms Milton D. Horton’s convictions for battery resulting in bodily injury as a Class A misdemeanor, disorderly conduct as a Class B misdemeanor and residential injury as a Level 6 felony, and his adjudication as an habitual offender. Finds the state presented sufficient evidence beyond a reasonable doubt to sustain Horton’s conviction for residential entry.

Breon M. Davenport v. State of Indiana (mem. dec.)
48A02-1604-CR-954
Criminal. Affirms the Madison Circuit Court’s order revoking Breon M. Davenpart’s probation and ordering him to serve his two-year placement in in-home detention executed in the Department of Correction. Finds that the trial court acted within its discretion.

In the Termination of the Parent-Child Relationship of T.T.H. (Minor Child), N.M.H. v. Indiana Department of Child Services (mem. dec.)
02A03-1606-JT-1457
Juvenile termination of parental rights, Affirms the Allen Superior Court’s termination of N.M.H.’s parental rights over her minor child, T.T.H. Finds that the trial court did not err in concluding that the conditions at the time of the child’s removal were not, and likely will not be, remedied. Also finds that the totality of the evidence supports the trial court’s conclusion that termination is in the child’s best interests.

In re the Termination of the Parent-Child Relationship of: W.H. (Minor Child) and G.H. (Mother) & D.H. (Father) v. The Indiana Department of Child Services (mem. dec.)
74A01-1606-JT-1553
Juvenile termination of parental rights. Affirms the involuntary termination of G.H. and D.H.’s parental rights to their two-year-old daughter, W.H. The juvenile court’s finding that the Indiana Department of Child Services presented a satisfactory plan for the care and treatment of W.H. is not clearly erroneous.

Lucas Thomas v. State of Indiana (mem. dec.)
48A02-1608-CR-1807
Criminal. Affirms the Madison Circuit Court’s revocation of Lucas C. Thomas’ probation. Finds that the trial court neither abused its discretion by admitting hearsay into evidence nor by imposing the entirety of Thomas’ suspended sentence following a determination that he had violated his probation.

Nicholas Matthew Holmes v. State of Indiana (mem. dec.)
82A01-1608-CR-1812
Criminal. Affirms Nicholas Matthew Holmes’ conviction for Level 6 felony failure to return to lawful detention. Finds that based on the evidence, a reasonable inference could be drawn that Holmes acted with criminal intent in failing to return to the Vanderburgh County Therapeutic Work Release Center after his shift on Sept.11,2015.

Kashif Allen Weathers v. State of Indiana (mem. dec.)
82A01-1608-CR-1751
Criminal. Affirms Kashif Allen Weathers’ convictions for Level 3 felony rape and Level 6 felony criminal confinement. Finds that Weathers has failed to show that the Vanderburgh Superior Court committed fundamental error by admitting the testimony of a detective.

In the Matter of: J.D., T.D. and H.F., Children Alleged to be in Need of Services, C.C. (Mother) and R.M. v. The Indiana Department of Child Services (mem. dec.)
82A01-1606-JC-1438
Juvenile CHINS. Affirms the juvenile court’s ordering determining that J.D., T.D. and H.F. are children in need of services. Finds that based upon the record, the judgment reached by the Vanderburgh Superior Court is not clearly erroneous.

Zackary L. Schulz v. State of Indiana (mem. dec.)
79A02-1605-CR-1238
Criminal. Affirms Zackary L. Schulz’s convictions of Level 4 felony dealing in methamphetamine and Class B misdemeanor false informing. Finds that sufficient circumstantial evidence supports Schulz’s dealing conviction.

Jerry C. Wilson v. State of Indiana (mem. dec.)
09A02-1609-CR-2147
Criminal. Affirms the denial of Jerry C. Wilson’s motion to correct erroneous sentence. Finds that the Cass Circuit Court did not abuse its discretion in deny Wilson’s motion.

Terry L. Abbott v. State of Indiana (mem. dec.)
20A03-1608-CR-1928
Criminal. Affirms Terry L. Abbott’s convictions for Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a controlled substance, Level 3 felony dealing in a controlled substance and Level 5 felony possession of a handgun with obliterated identification. Finds that the state proved that Abbott constructively possessed the handgun with the obliterated serial number. Also finds that the Elkhart Circuit Court did not abuse its discretion when it denied Abbott’s motion for a mistrial.

Timothy F. Watkins v. State of Indiana (mem. dec.)
84A04-1609-CR-2129
Criminal. Affirms the revocation of Timothy F. Watkins’ probation and order he serve the balance of his previously suspended two-year aggregate sentence. Finds that the Vigo Superior Court gave Watkins an adequate opportunity to offer mitigating evidence that his violation did not warrant revocation and did not need to inquire further.

Keith Gwaltney v. State of Indiana (mem. dec.)
29A04-1610-CR-2283
Criminal. Affirms Keith Gwaltney’s sentence to an aggregate of 2 ½ years in the Indiana Department of Correction, to be served consecutively to each of the two prior sentences Gwaltney received in the months leading up to this case. Finds that the Hamilton Superior Court did not abuse its discretion in sentencing him.

Michael Scroggins v. State of Indiana (mem. dec.)
39A01-1605-PC-1026
Post conviction. Affirms the denial of Michael Scroggins’ petition for post-conviction relief. Finds that the Jefferson Superior Court did not err in denying the petition.

In the Matter of the Marriage of: Jeffrey E. Nelson v. Julie A. Nelson (mem. dec.)
82A01-1607-DR-1706
Domestic relation. Affirms the Vanderburgh Superior Court’s declaratory judgment order related to Julie A. Nelson’s petition for dissolution of her marriage to Jeffrey E. Nelson. Finds that the trial court did not err when it determined that the prenuptial agreement’s definition of separate property did not include income from separate property and proceeds from the sale of separate property. Also finds that under the express terms of the agreement, gifts may be made from one spouse to the other during marriage, and such gifts may be, but are not necessarily the separate property of the recipient spouse. Judge Margaret Robb concurs and dissents in part with separate opinion.

Steven Tuck v. State of Indiana (mem. dec.)
79A02-1511-PC-2032
Post conviction. Affirms the post-conviction court’s order granting the state’s motion to dismiss Steven Tuck’s petition for post-conviction relief pursuant to the equitable doctrine of laches based on his failure to prosecute the petition. Finds that Tuck has failed to show that the post-conviction court erred by dismissing his post-conviction petition based on laches.

In the Matter of the Termination of the Parent-Child Relationship of: C.K. (a minor child), and E.K. (mother) v. The Indiana Department of Child Services (mem.dec.)
79A05-1608-JT-1763
Juvenile termination of parental rights. Affirms the termination of E.K.’s parent-child relationship with her son, C.K. Finds that there is sufficient evidence to support the Tippecanoe Superior Court’s decision to terminate the parent-child relationship.

Jaron C. Gibbs v. State of Indiana (mem. dec.)
49A05-1606-CR-1336
Criminal. Vacates the probation department’s imposition of costs and fees and the trial court’s decision to merge one conviction into another instead of vacating one of them, violating the prohibition against double jeopardy. Finds that because the trial court in this case did not impose any probation fees or costs on Gibbs, it was erroneous to accept the imposition of these fees without a petition from the probation department and a showing that Gibbs’ financial situation has changed since the sentencing hearing. Also finds that merging a conviction without vacating it does not remedy a double jeopardy violation. Remands for further proceedings.

Anastacia Sanchez-Franco v. State of Indiana (mem. dec.)
03A04-1610-CR-2279
Criminal. Affirms Anastacia Sanchez-Franco’s conviction for operating with a blood alcohol content of .08 as a Class C misdemeanor. Finds that the state did establish that Officer Charles Bernard Sims followed the applicable procedure in administering the breath test and that the Bartholomew Superior Court did not abuse its discretion in admitting the breath test results.

 

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