Indiana Court Decisions – Feb. 15-28, 2017

7th Circuit Court of Appeals

Feb. 21

Civil – Eighth Amendment

Alma Glisson, Personal Representative of the Estate of Nicholas L. Glisson v. Indiana Department of Corrections, et al.

15-1419

A woman whose son was found dead in an Indiana Department of Correction facility can now take her case to trial after a divided en banc 7th Circuit Court of Appeals reversed summary judgment in favor of the health care providers who treated her chronically ill son.

Prior to his incarceration in the Indiana Department of Correction in September 2010, Nicholas Glisson suffered from laryngeal cancer, hypothyroidism, depression and cognitive decline. When a friend, acting as a police informant, convinced Glisson to give the friend one of his prescription painkillers, Glisson was convicted of an infraction and was sentenced to the Wayne County Jail.

He was later moved to the DOC facility in Plainfield, where he came under the care of several doctors and nurses working for Correctional Medical Services Inc., better known as Corizon. Describing Corizon’s care of Glisson at the correctional facility as “the blind men’s description of the elephant,” 7th Circuit Court of Appeals Judge Diane Wood said in a opinion that none of the providers exhibited “deliberate indifference” to Glisson’s condition. However, less than two weeks after his transfer, Dr. Malak Hermina noted that Glisson’s weight had dropped so significantly that it could be attributed to starvation due to the fact that he was confused and not eating.

Glisson’s mental state also began to deteriorate over time and his blood work showed signs of acute renal failure, so he was transferred to Wishard Hospital. Shortly after his release, Glisson was found unresponsive in his jail cell and was later pronounced dead. The coroner concluded the cause of death was complications from laryngeal cancer with contributory chronic renal disease.

Alma Glisson, Nicholas Glisson’s mother, filed a lawsuit, but Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana awarded summary judgment to Corizon and DOC on all of her federal Eighth Amendment claims. On appeal to the 7th Circuit, a panel of the court ruled that Alma Glisson failed to present enough evidence to defeat summary judgment in Corizon’s favor.

But in an en banc rehearing, a majority reversed course and ordered Glisson’s case to go to trial.

The Department of Correction has a health care directive that lays out the guidelines for treating inmates with chronic diseases, Wood wrote, but Corizon admitted that in Glisson’s case, care was based on a general standard of medical and nursing care, not the written policies.

“Nothing in the U.S. Constitution requires Corizon to follow INDOC’s policies,” she wrote. “The point is a more subtle one: the existence of the INDOC Guidelines, with which Corizon was admittedly familiar, is evidence that could persuade a trier of fact that Corizon consciously chose the approach it took.”

Thus, because a jury could find that Corizon’s decision not to enact centralized treatment led directly to Nicholas Glisson’s death, the 7th Circuit reversed summary judgment in Corizon’s favor and remanded the case for further proceedings.

But Judge Diane Sykes, joined in a dissenting opinion by Judges William Bauer, Joel Flaum and Michael Kanne, wrote that Alma Glisson produced no evidence to support the fault or causation elements of her claim required under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

Indiana Supreme Court

Feb. 15

Juvenile – Sex Offender Registry

J.D.M. v. State of Indiana

21S01-1702-JV-84

A juvenile sex offender will not be required to add his name to Indiana’s sex offender registry after the Indiana Supreme Court decided that the state had not met the requirements for juvenile registration.

After suffering through sexual abuse and the death of close family members during his childhood, J.D.M was diagnosed with ADHD, oppositional defiant disorder and bipolar disorder in 2012. That same year, J.D.M.’s older brother found him and a 9-year-old boy lying in a provocative position in his bedroom, both with their pants removed. J.D.M. was 15 at the time of the incident.

J.D.M. was subsequently charged with being a delinquent child for committing child molestation, which would be a Class C felony if committed by an adult. After a comprehensive diagnostic evaluation, the Wernle Youth and Family Treatment Center determined that J.D.M. was suffering with traumatic grief and was likely to re-offend.

The court ordered J.D.M. to remain in treatment at Wernle, where he underwent treatment for sexually maladaptive behavior. A Fayette County probation officer recommended his continued treatment before discussing probation, and the court agreed to that plan.

As his 18th birthday neared, the juvenile court held a sex offender registration hearing in October 2014 and Wernle reported that he still posed a “high risk of sexual recidivism” due to his continued viewing of pornography and his continued traumatic grief. At a subsequent hearing in August 2015, while J.D.M. was still at Wernle but making progress, the juvenile court ordered him to register as a sex offender, finding that the state had presented clear and convincing evidence that he was likely to reoffend.

The Indiana Court of Appeals affirmed the Fayette Circuit Court’s decision in May 2016, but the Indiana Supreme Court reversed the order for J.D.M. to register as a sex offender.

Justice Mark Massa, writing for the unanimous court, first wrote in the decision that under the Indiana Sex Offender Registration Act, a sex or violent offender must register for 10 years after the offender is released from a penal facility or secure juvenile detention facility or is placed on parole, probation or in a community transition program. Further, when dealing with juveniles, SORA requires that a court may only order the juvenile to register if he or she is on probation, has been released from a secure facility and has been expressly proven to likely reoffend.

The juvenile court agreed not to address the conditions of J.D.M.’s probation until after he completed his treatment, Massa wrote, so for the purposes of SORA, he was not considered to be on probation. Thus, the court failed to prove under Indiana Code 11-8-8-19(a) and 11-8-8-5(b)(2) that the conditions had been met to require J.D.M. to register.

Further, Wernle is a non-secure facility, so even if J.D.M. had been released, his release would not be enough to satisfy the registration requirement conditions, Massa wrote.

“Until J.D.M. is actually released and placed on probation, the possibility of his continued rehabilitation at Wernle exists, and should be allowed to develop,” the justice wrote. “Indeed, the court reports and testimony reveal that J.D.M.’s risk of sexual recidivism decreased in between the two sex offender registry hearings in this case.”
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Feb. 17

Juvenile – Termination of Parental Rights

In the Matter of the Termination of the Parent-Child Relationship of Bi.B. And Br.B, D.B. and V.G. v. Indiana Department of Child Services

54S01-1612-JT-630

A Montgomery County father’s parental rights have been restored after the Indiana Supreme Court held that lower courts erred in granting and affirming the Department of Child Services’ petition to terminate them.

D.B. and V.G. had custody of five children – their two daughters together, Bi.B. and Br.B., and V.G.’s three sons from a prior relationship whose father had died. After the Indiana Department of Child Services learned that the parents were using methamphetamine and leaving their children unsupervised in a dirty home, the children were adjudicated as children in need of services and were eventually removed from the home in July 2014.

V.G. and D.B. were ordered to participate in drug screenings, supervised visits and various other services, but their participation was only sporadic. DCS thus moved to terminate their parental rights in October 2015.

In its petition for termination, DCS alleged that two out of three statutorily required waiting periods applied – that is, a court has found that reasonable reunification efforts were not required, and the children had been removed from the parents and placed under other supervision for at least 15 out of the last 22 months. However, DCS did not argue that the last waiting period, which required that the children were removed from the parents for at least six months under a dispositional decree, applied to the case.

D.B., the father, argued that DCS had failed to prove the first two waiting periods and failed to allege the third, which could have actually been proven. Specifically, he said DCS filed the petition five days short of the 15-month anniversary of his daughters’ removal.

Despite that argument, the Montgomery Circuit Court granted the petition to termination his and V.G.’s parental rights. The Indiana Court of Appeals affirmed that decision in September 2016, finding that although neither of the waiting-period allegations were true, such error was harmless. The appellate court also found sufficient evidence to support the trial court’s decision.

Only D.B. sought transfer and the Indiana Supreme Court reversed the lower courts’ decisions to terminate his parental rights.

In an opinion authored by Chief Justice Loretta Rush, the state’s high court first noted that “the right of parents to raise their children is ‘perhaps the oldest of the fundamental liberty interests.’”

Under the plain language of Indiana Code 31-35-2-4(b)(2)(A) – which requires that the petition must allege that the 15-month basis “is,” not “will be,” true – the state legislature intended the 15-month waiting period to apply to the day when the petition is filed, as D.B. argued, not to the day of the evidentiary hearing, as DCS argued, Rush wrote.

Further, the statutory language holds that the petition “must” allege that at least one of the three waiting periods is true, Rush said. Thus, because DCS did not allege the six-month waiting period, the only one that could have been proven true, its petition for termination of D.B.’s rights fails, the chief justice said.

Finally, Rush wrote that state statute holds that “if the court does not finds that the allegations in the petition are true, the court shall dismiss the petition.”

Indiana Court of Appeals

Feb. 15

Criminal – Plea Agreement Withdrawal

Justin R. Messersmith v. State of Indiana

48A05-1511-CR-1936

The Indiana Court of Appeals has reversed a man’s convictions of neglect of a dependent and battery after finding that his due process rights were violated when the state withdrew its plea agreement after he had pleaded guilty.

Justin Messersmith was charged with felony neglect of a dependent resulting in bodily injury and felony battery on a person less than 14 years old after he shoved his 4-year-old son against a trailer. As part of a plea agreement, Messersmith pleaded guilty in February 2015 to the battery charge in exchange for the state dropping the neglect charge.

However, in March 2015, the Madison Circuit Court allowed the state to withdraw the plea agreement because it entered the agreement without first notifying the victim. At a subsequent jury trial, Messersmith was convicted on both counts.

On appeal, Messersmith argued that the trial court abused its discretion by allowing the state to withdraw the plea agreement after accepting the agreement and entering its judgment of conviction. Although the state argued that Article 1, Section 13 of the Indiana Constitution establishes rights for crime victims, Indiana Court of Appeals Judge Mark Bailey noted that Article 1, Section 13 also provides that victims’ rights must yield to defendants’ constitutional rights.

Among a defendant’s right is the right to due process, Bailey wrote, and the entry of judgment following a guilty plea implicates that right. Further, Bailey wrote that in Santobello v. New York, 404 U.S. 257, 262 (1971), the U.S. Supreme Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

Because entry of a guilty plea implicates a defendant’s rights, Messersmith’s due process rights were violated when the trial court allowed the state to withdraw the plea agreement, Bailey wrote.
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Feb. 16

Criminal – Intimidation/Resisting Arrest

Christopher A. Neeley v. State of Indiana

20A03-1511-CR-1909

Testimony of police officers who stopped a man for walking on the wrong side of the road, then arrested him for intimidation and resisting law enforcement should not have been admitted at trial, the Indiana Court of Appeals has ruled.

Christopher Neeley was detained by officers from the Elkhart County Sheriff’s Department and Middlebury Police Department after receiving a call of a “suspicious person” walking along County Road 35.

Law enforcement stopped Neeley because he was walking with traffic in violation of Indiana Code 9.21-17-14. Initially Neeley ignored their orders to stop and continued walking. The officers then grabbed Neeley, believing he would jump a fence and run.

Once they had him detained, officers stated they believed Neeley was going to try to harm them because he was tensing his arm muscles as if preparing to throw a punch and he verbally threatened him. Officers responded by making threaten statements to Neeley for nearly 13 minutes, telling him there were three of them, he would get beaten and he would “kiss the ground.”

Neeley was subsequently charged with Level 6 felony intimidation and resisting law enforcement as a Class A misdemeanor. He filed a motion to suppress, claiming the police lacked authority to stop or search him under the Fourth Amendment.

The motion was denied, but at trial, the court granted Neeley a continuing objection to the officers’ testimony. The defense argued the testimony was fruit of the poisonous tree that came from the arrest that was unlawful and made without probable cause.

A unanimous Court of Appeals agreed with Neeley and reversed his convictions.

The appellate panel found that under Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), law enforcement did not have a “reasonable suspicion” for the stop, so Neeley had every right to continue walking despite the command to halt.

In addition, the judges noted the U.S. Supreme Court’s 2015 ruling in Rodriguez v. United States, – U.S. — 135 S. Ct. 1609, 1612 (2015), which held that a police stop that exceeds the time needed to handle the matter at hand violated the Constitution’s provision against unreasonable seizures. The Court of Appeals found the criminal conduct with which Neeley was charged occurred after the stop had progressed from lawful traffic detention to an unlawful seizure.

Writing for the court, Judge Elaine Brown concluded, “Thus even if the stop constituted a lawful traffic detention, our conclusion would be the same, that the court abused its discretion in admitting into evidence the relevant officer testimony.”
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Feb. 22

Civil Tort – Medical Malpractice

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;

Pastor Llobet, M.D. v. Juan Gutierrez

45A04-1605-CT-1133

After finding that evidence of disputed medical malpractice theories in two cases were presented to the medical review panels in each, Indiana Court of Appeals has reversed summary judgment in favor of a health care provider in one case but is allowing the provider in the other to present evidence related to a subsequent malpractice theory against him.

At oral arguments in January, the appellate panel of Chief Judge Nancy Vaidik and Judges Cale Bradford and Elaine Brown wrestled with one essential question: Is it ever acceptable for parties to a medical malpractice case to present new evidence at trial that was not presented at the medical review panel stage? Under the doctrine of K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), the answer is no.

But plaintiffs’ counsel in each case argued that the theories they presented at trial were not new, but instead were encompassed in the general theories presented to the panels, contrary to the defendants’ allegations.

In C.S., Laura Stevens was a 40-year-old expectant mother in her ninth month of pregnancy when she reported that she could no longer feel her baby moving. After visiting Aegis Women’s Health and eventually being transferred to the IU Health Bloomington Hospital, Stevens’ daughter, C.S., was delivered via an emergency C-section with significant health issues.

During the medical review panel process, the Stevenses alleged that Aegis “failed to adequately monitor Laura’s pregnancy and (C.S.’s) condition” and “failed to provide appropriate medical care.” Their narrative focused on Stevens’ status as Rh-negative, and their submissions did not include fetal heart rate monitoring strips created at the hospital.

The panel ultimately found that Aegis did not breach the standard of care, and as they were preparing to take their case to the Monroe Circuit Court, the Stevenses alleged that Aegis “failed to adequately monitor Laura’s pregnancy and C.S.’s condition.” Aegis argued that such a claim could not be presented to the trial court because the medical review panel theory focused on Stevens’ Rh-negative status, and the trial court judge agreed. Summary judgment was ultimately entered in favor of Aegis.

Conversely, in Llobet, a medical review panel found that Llobet did breach the standard of care when he broke a stent in Juan Gutierrez’s body during an angiogram, necessitating further operations. During the panel process, Gutierrez alleged that Llobet was negligent in his technical performance of the angiogram.

However, before the case went to the Lake Superior Court, Gutierrez developed a second malpractice theory, this time alleging that the angiogram was unnecessary because it had not been indicated. In response, Llobet turned over records that he claimed would prove that the angiogram was indicated while also moving to strike his former patient’s new theory.

The trial court, however, allowed Gutierrez to proceed with the non-indication theory, yet prevented Llobet from entering his proposed records as evidence.

In both cases, Vaidik, writing for the unanimous panel, wrote that the theories brought at trial were encompassed in the theories considered by the review panel and, thus, were acceptable for the trial court to consider.

In the Stevenses’ case, Vaidik wrote that although the fetal monitoring strips and results from a related non-stress test were not submitted to the panel, “the evidence that the panel did have put it on notice not only that the NST and the fetal-heart-rate monitoring had been conducted, but also that the results of both were abnormal … .”

“And to the extent that the panel was incapable of fully evaluating the timeliness of the C-section without the tracings themselves,” Vaidik wrote, “we simply note that it had a right to request them.”

Thus, the panel overturned summary judgment in Aegis’ favor.

But in Llobet’s case, the appellate relied on the findings of McKeen v. Turner, 61 N.E.3d 1251, 1261 (Ind. Ct. App. 2016), which held that the proposition in K.D. “was wrongly decided.” Thus, because Llobet had premised his appellate argument on K.D., the appellate court rejected that argument under the new premise of McKeen.

Specifically, McKeen held that under the case of Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329, 1332 (Ind. 1997), a plaintiff can raise a theory in court if it was encompassed by the proposed complaint before the panel and if evidence related to it was submitted to the panel.

“Dr. Llobet asserts that the proposed complaint ‘did not provide notice that treatment that occurred on September 25, 2007 was at issue,’” Vaidik wrote in the Llobet opinion. “But the events of September 25 are ‘at issue’ only insofar as they related to Gutierrez’s ultimate claim that Dr. Llobet performed an unnecessary angiogram on September 26. Because that claim was plainly encompassed by Gutierrez’s proposed complaint, we affirm the trial court’s denial of Dr. Llobet’s motion to strike.”

However, the panel did reverse the Lake Superior Court’s decision to bar Llobet from submitting the subsequent records related to the “angiogram-not-indicated” theory.

When K.D. was handed down in July 2011, Llobet was operating under the assumption that medical malpractice plaintiffs were limited to the theories of malpractice that were specifically presented to the medical review panel, the chief judge wrote. Thus, the records likely never even crossed his mind.

“And even if they did, we would not fault him for concluding that there were completely irrelevant to this litigation,” Vaidik said. “If he had any inkling that the records were relevant, surely he would have produced them, since they are favorable to him.”
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Feb. 24

Civil Tort – Legal Malpractice

Elizabeth Roumbos v. Samuel G. Vazanellis and Thiros and Stracci, PC

45A03-1606-CT-1424

A legal malpractice case against a northern Indiana law firm will proceed after the Indiana Court of Appeals held that there was a genuine issue of material fact as to whether the litigant’s original negligence claim would have succeeded but for the firm’s negligence.

While 85-year-old Elizabeth Roumbos was visiting her husband at St. Anthony’s Hospital in Lake County in January 2011, she tripped over wires that were running along the floor, resulting in a severe injury. Roumbos hired Samuel G. Vazanellis and Thiros and Stracci P.C. to represent her in a negligence case, but after the firm failed to file her complaint within the relevant statute of limitations, she filed a legal malpractice complaint against the firm.

The Lake Superior Court entered summary judgment in favor of the firm in March 2016, holding that Roumbos could not prove that but for the firm’s negligence, the outcome of the negligence suit would have been in her favor. Specifically, the trial court pointed to Roumbos’ own deposition in which she said that had she looked down, she would have seen the wire that tripped her.

The Indiana Court of Appeals reversed summary judgment, with Judge Edward Najam writing that the hospital owed Roumbos a duty as a business invitee. Further, Najam wrote that the law firm did not designate evidence to demonstrate that the hospital could not have reasonably anticipated that an invitee such as Roumbos could have forgotten about the dangerous condition of the wires, despite her prior knowledge, and later be injured by that condition.

Thus, the case was remanded for further proceedings.

Criminal – Voluntary Manslaughter

Billy Brantley v. State of Indiana

49A04-1606-CR-1401

In a case of first impression, the Indiana Court of Appeals reversed a man’s conviction of voluntary manslaughter, which the state chose to charge him with after he shot and killed his brother-in-law in what he claimed was self-defense.

Billy Brantley lived with his sister Martha Gunn, her husband Bruce Gunn and the couple’s minor son, Sean. Bruce had a history of chronic physical and mental health problems. He and his wife often verbally fought with each other and he was once arrested for domestic battery for choking Martha.

On July 14, 2014, after returning from a job interview, Brantley heard the couple fighting. The two were seated while arguing. Bruce was asked by Brantley to calm down, but he said he was going to “take care of all of his problems,” as he stood up. Brantley, believing Bruce was holding a knife, fatally shot Brantley one time. The object turned out to be Bruce’s glasses.

The state charged Brantley with voluntary manslaughter, which the Court of Appeals pointed out it could not find an Indiana case in which someone hadn’t been charged or convicted of that crime who hadn’t also been charged with murder, although it does appear in the criminal code as its own crime. Brantley was convicted of the charge.

The state must prove sudden heat whether the charge is brought as a stand-alone charge or as a lesser included offense to murder, Judge Edward Najam wrote. And in this case, the state failed to produce any evidence, let alone prove by a reasonable doubt, that Brantley acted under “sudden heat” when he knowingly killed Bruce, he continued.

Here, neither party presented any evidence of sudden heat or made argument to the jury that Brantley acted under sudden heat. There was no evidence presented that Brantley was angry, enraged, suddenly resentful, or in terror,” Najam wrote. “There was no evidence that Brantley was anything but calm at all relevant times. And the State never argued otherwise to the jury … .”

Najam and Judge Melissa May held that the state cannot retry Brantley because of the insufficient evidence, leading to a dissent from Judge L. Mark Bailey. He took issue with a jury instruction that said “the state has conceded the existence of sudden heat by charging voluntary manslaughter instead of murder.”

Bailey wrote that there is evidence of provocation and a sudden killing, so there is evidence from which the jury could conclude that Brantley acted in sudden heat. He would permit retrial on the charge of voluntary manslaughter and remand to the trial court.

Criminal – Resisting Law Enforcement

Jefferson Jean-Baptiste v. State of Indiana

49A02-1608-CR-1798

The Indiana Court of Appeals has overturned a man’s resisting law enforcement conviction after finding that the police officer’s actions justified the man’s resistance.

Marion County Sheriff’s Deputy James Russo was attempting to serve civil arrest warrant on Jefferson Jean-Baptiste in April 2016, but Jean-Baptiste refused to comply. After Russo tried to grab his arm, Jean-Baptiste pulled away, so Russo, acting on the assumption that Jean-Baptiste was resisting arrest, entered the home and placed him in custody.

Jean-Baptiste was convicted of resisting law enforcement and argued on appeal that the state had not presented sufficient evidence to support his conviction. The Indiana Court of Appeals agreed, with Judge Edward Najam pointing to the case of Casselman v. State, 472 N.E.2d 1310 (Ind. Ct. App. 1985) and Indiana Code 35-41-3-2 as the panel’s guidance.

Specifically, Najam wrote that Russo was outside the residence while Jean-Baptiste was inside when Russo, “without permission or legal justification,” reached across the threshold and grabbed Jean-Baptiste. Thus, under Indiana Code, Jean-Baptiste was justified in his resistance of law enforcement.

Further, the appellate court reversed Jean-Baptiste’s conviction because it found, sua sponte, that the trial court committed fundamental error by denying his right to a jury trial without first eliciting a personal waiver from him on the record.

Criminal – Bond Balance

Emmett Reece Sandoval v. State of Indiana

21A01-1609-CR-2027

The Indiana Court of Appeals has reversed a Fayette Circuit Court decision to hold the balance of a man’s bond in trust after finding that Indiana law prohibits courts from holding bonds in trust for public defender fees not yet incurred.

Emmett Sandoval’s grandfather posted his $2,000 bond after he was charged with Level 5 felony sexual misconduct with a minor. Sandoval pleaded guilty and was sentenced to four years’ imprisonment, with two years suspended to probation. At the sentencing hearing, the Fayette Circuit Court ordered that court costs and probation user fees be deduced from his bond, leaving a balance of $1,717.

The judge then ordered the balance to be placed in trust for future appellate public defender fees, but on appeal, Judge John Baker held that under Hendrix v. State, 615 N.E.2d 483, 485 (Ind. Ct. App. 1993), courts may not hold a defendant’s bond in trust for public defender fees not yet incurred. Thus, the appellate court ordered the balance of Sandoval’s bond be returned immediately.
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Feb. 28

Criminal – Voyeurism

Neil C. Albee v. State of Indiana

79A02-1606-CR-1266

A man convicted of voyeurism in a Purdue University sorority house has had his convictions reversed, though the Indiana Court of Appeals held Tuesday that the man could be retried.

While Margaret Schuerger was in the shower at a sorority house on Purdue University’s campus, she noticed a man, whom she later identified as Neil Albee, standing outside the obscure-glass shower door and attempting to open the shower door. That same man later tried to enter her bedroom, and when Schuerger called the police, she told them that the suspect was not wearing a hat.

When Albee was later apprehended, he was found wearing a hat. Schuerger was not completely sure he was the man who tried to enter her shower and room, but she believed he could be the only suspect because he was in his 40s and all other people living in the area were in their 20s. After she was given multiple opportunities to observe him in different setting, Schuerger identified Albee as the man in her house.

Albee was charged with various felony and misdemeanor counts, including voyeurism and residential entry. He moved to suppress Schuerger’s identification of him. The trial court denied that motion, and Albee was eventually found guilty of felony voyeurism and misdemeanor residential entry.

On appeal, Albee argued that the trial court had abused its discretion by admitting Schuerger’s pretrial and in-court identifications of him. The Indiana Court of Appeals agreed and reversed his convictions.

Judge Michael Barnes, writing for the appellate panel, first noted that Schuerger was texting at the time she heard a noise in her bedroom and observed the reflection of a man in her mirror, and that it would be nearly two hours later before police asked her to identify him. Further, Schuerger was never asked to identify Albee in a line up, and he was the only suspect police took in custody for the case.

“Based on the totality of the circumstances in this case, we conclude the manner in which the (Purdue University Police Department) conducted the show-ups was unnecessarily suggestive,” Barnes wrote.

“We are particularly troubled by the fact that, after Schuerger’s initial inability to positively identify Albee as the intruder, the PUPD gave her additional opportunities (to) view their sole suspect until she was able to do so,” Barnes continued. “Each subsequent time Schuerger viewed Albee, it was tainted by the suggestiveness of the circumstances surrounding the prior viewings.”

Thus, Schuerger’s identification was unreliable, and its admission during trial violated Albee’s due process rights, Barnes said. However, because the totality of the evidence was sufficient to sustain Albee’s convictions, double jeopardy does not preclude retrial, the judge wrote.

Domestic Relation – Child Support Modification

Danielle Maple v. Travis Maple

02A03-1608-DR-1889

The Indiana Court of Appeals has reversed the modification of a child support ordering, finding that there were no substantial and continuing circumstances to justify the change.

Before beginning a relationship with Travis Maple, Danielle Maple gave birth to a son by another man. When Danielle Maple’s relationship with her son’s father ended, the trial court in 2005 used a child support obligation worksheet to calculate child support and set Maple’s legal support for her son at $121 per week.

The Maples then began a relationship and had two children before their divorce in 2009. During the subsequent proceedings, Travis Maple’s child support obligation was set at $245 per week.

In 2014, Travis Maple moved to modify the child support order and questioned the validity of the 2005 worksheet used in his ex-wife’s first child support case. Danielle Maple admitted that many of the figures in that worksheet were no longer accurate, and her support obligation to her first son was reduced to $66 per week. Travis Maple’s obligation for his children was also reduced to $205 per week.

The Indiana Court of Appeals reversed, with Chief Judge Nancy Vaidik writing that the changed circumstances Travis Maple relied on to justify the modification of the order were nominal and that there were not converging circumstances to create substantial and continuing circumstances that warranted the modification.

Further, Vaidik wrote that the 2005 worksheet that was used to determine Danielle Maple’s obligation to her first son remains in effect. Thus, the appellate panel reinstated the Maples’ original 2012 child support order and ordered the court to set the matter for hearing within 60 days to calculate the amount of arrearage Travis Maple owes, dating back to the implementation of the erroneous order, and to set a repayment schedule.

Juvenile – Jurisdiction

State of Indiana v. C.K.

49A02-1607-JV-1506

A teenager convicted on robbery charges as an adult who is also charged with theft and burglary charges as a juvenile will continue in adult court after the Indiana Court of Appeals found that the juvenile court must waive its jurisdiction.

Fifteen-year-old C.K. was involved in two crimes that would have constituted felony burglary, felony theft and felony robbery if committed by an adult. Although he was not identified at the time of the crime in either case, he did leave fingerprints behind.

Then, when C.K. was 16, he was arrested and charged with two counts of felony robbery related to a new crime, and the fingerprints taken at the time of his arrest in that case connected him to the two previous cases. The first two cases were referred to juvenile court and the Marion Superior Court placed C.K. on juvenile hold.

After C.K. was convicted in adult court for the third crime, the state requested a waiver of the cases related to the first two crimes to criminal court. The juvenile court denied that motion, but the Indiana Court of Appeals reversed.

Senior Judge John Sharpnack wrote that under the plain language of Indiana Code 31-30-3-6 (1997) – which requires a juvenile court to waive its jurisdiction if the child “has previously been conviction of a felony or a nontraffic misdemeanor” – does not place limits on when the prior felony or nontraffic misdemeanor conviction must have occurred to activate the statute.

“C.K. has already been charged and convicted as an adult in (the third crime), and little would be gained by having his current cases continue in the juvenile justice system simply because there was a delay in the discovery of the allegedly incriminating evidence,” Sharpnack wrote. “C.K. has been placed on probation in (the third case), and ongoing monitoring by the juvenile courts would be unnecessarily duplicative.”

The case was remanded with instructions to grant the state’s petition for waiver of jurisdiction.•