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Opinions March 9, 2017

March 9, 2017

Indiana Court of Appeals
Jay Garrison v. Pamela Garrison
27A05-1603-EU-507
Estate, unsupervised. Affirms the Grant Superior Court’s order of the return of two of Thomas R. Garrison’s cars to his estate, finding that they were gifts causa mortis for which Garrison was not competent to form donative intent. Finds Jay Garrison has not rebutted the presumption of undue influence and the estate is entitled to recovery of the vehicles.
 
Fazia Deen-Bacchus v. Harold M. Bacchus, Jr.
02A04-1608-DR-1867
Domestic relation. Reverses the dissolution court’s February 2016 order in which the court directed Harold M. Bacchus Jr. to promptly transfer certain amounts from three investment accounts to Fazia Deen-Bacchus. Finds the language of a January 2011 order to distribute the investment accounts to Deen-Bacchus was not ambiguous, so the dissolution court’s February 2016 order to the contrary was erroneous. Remands with instructions that the dissolution court order Bacchus to transfer ownership of the investment accounts and to enter any other findings and conclusions the court deems appropriate that are not inconsistent with the Indiana Court of Appeals opinion.  

Darrell Berry v. State of Indiana (mem.dec.)
71A03-1606-CR-1348
Criminal. Affirms the St. Joseph Superior Court’s grant of the state’s motion to amend charging information to include the victim’s correct name after learning that she had misidentified herself and Darrell Berry’s subsequent conviction of Class A misdemeanor battery. Finds that because Berry did not request a continuance after his objection to the amendment was overruled, he has waived the issue for appellate review.

Neidlinger Trust #0801, by John P. Neidlinger and Casey Neidlinger, Trustees v. Michael S. Lewallen and JMJ Farms, LLC (mem. dec.)
50A03-1606-MI-1270
Miscellaneous. Affirms the Marshall Circuit Court’s order quieting title to certain real estate located in Marshall County in favor of Michael S. Lewallen. Finds the trial court did not err in its judgment that the disputed 4.78 acres were included in the original conveyance of property to Isaiah Beatty in 1901 and continued to be a part of the property through all successors in title up to and including Lewallen.
 
In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)
49A02-1605-JC-1071
Juvenile CHINS. Grants R.G.’s petition for rehearing in the case affirming the juvenile court’s determination that V.G. is a child in need of services. Reaffirms the original Dec. 28, 2016, opinion in all respects. Finds L.C.’s failure to establish paternity does directly implicate V.G.’s well-being because it demonstrates a failure to assure V.G. can be provided with any medical care he needs.

Elizabeth (Newman) Lewis v. David Newman (mem. dec.)
67A05-1609-DR-1981
Domestic relation. Affirms the trial court’s denial of Elizabeth Newman’s motion to correct error after the Putnam Superior Court granted David Newman’s motion to terminate his book royalty obligation. Finds the trial court did not err in terminating David Newman’s royalty obligation and denying the subsequent motion to correct error.

In the Matter of R.Y. and B.H. (Minor Children) Children in Need of Services, S.H. v. Indiana Department of Child Services (mem. dec.)
10A01-1608-JC-1851
Juvenile CHINS. Affirms the Clark Circuit Court’s adjudication of S.H.’s two minor children, R.Y. and B.H., as children in need of services. Finds the facts in the case support the trial court’s judgment that the children’s mental or physical conditions were seriously endangered by S.H.’s inability, refusal or neglect to supply necessary care, shelter or supervision, and the children need care that they are not receiving and that is unlikely to be provided without the coercive intervention of the court.

In the Termination of the Parent Child Relationship of: A.P. & D.P. (Minor Children) and, J.P. (Father) and A.M. (Mother) (mem. dec.)
45A03-1608-JT-1956
Juvenile termination of parental rights. Affirms the termination of J.P. and A.M.’s parental rights to A.P. and D.P. Finds the evidence is sufficient to support the termination.

Robin Dalekilgore Peppers v. State of Indiana (mem. dec.)
71A03-1610-CR-2493
Criminal. Affirms Robin D. Peppers’ conviction of Class A misdemeanor battery. Finds the St. Joseph Superior Court did not abuse its discretion in instructing the jury.

Alan Ponce-Gomez v. State of Indiana (mem. dec.)
46A05-1606-CR-1285
Criminal. Affirms Alan Ponce-Gomez’s convictions of two counts of Level 5 felony battery. Finds the evidence was sufficient to support Ponce-Gomez’s convictions.

Carl Hughes v. State of Indiana (mem. dec.)
49A02-1604-CR-925
Criminal. Affirms Carl Hughes’ 910-day aggregate sentence for three counts of Level 6 felony theft. Finds Hughes’ sentence is not inappropriate in light of the nature of the offenses and his character.

Rodrick Osborn Sheron v. State of Indiana (mem. dec.)
27A05-1606-CR-1244
Criminal. Affirms Rodrick Osborn Sheron’s conviction for robbery resulting in serious bodily injury as a Level 2 felony. Finds the evidence was sufficient to support Sheron’s convictions.

Justin Rhymer v. State of Indiana (mem. dec.)
09A04-1607-CR-1708
Criminal. Affirms the Cass Circuit Court’s denial of Justin Rhymer’s motion for sentence modification. Finds the trial court did not abuse its discretion in denying Rhymer’s motion.

Calvin McGregory v. State of Indiana (mem. dec.)
49A02-1609-CR-2104
Criminal. Affirms Calvin McGregory’s conviction for resisting law enforcement as a Class A misdemeanor. Finds evidence of probative value exists from which a reasonable trier of fact could find that McGregory exercised at least a modest exertion of strength, power or violence that impeded Office James Perry in the lawful execution of his duties and that he was guilty beyond a reasonable doubt.

Gasser Chair Company, Inc. v. Marlene J. Nordengreen (mem. dec.)
45A05-1606-CT-1226
Civil tort. Grants Marlene J. Nordengreen’s petition for rehearing in the case and motion to supplement the record. Reaffirms the original Dec. 22, 2016, opinion in all respects. Finds Nordengreen voluntarily withdrew her products liability claim and the discussions between the parties regarding the final jury instructions bolster that conclusion.

Devon R. Rush v. State of Indiana (mem. dec.)
34A05-1607-CR-1590
Criminal. Affirms Devon R. Rush’s sentence to an aggregate of 30 years for dealing in a narcotic drug as a Level 2 felony, dealing in cocaine as a Level 2 felony and unlawful possession of a firearm by a serious violent felon as a Level 4 felony. Finds Rush’s sentence is not inappropriate in light of the nature of the offense and his character.  

Juan Escatel-Flores v. State of Indiana (mem. dec.)
49A05-1606-CR-1467
Criminal. Affirms Juan Escatel-Flores’ conviction for child molesting as a Class A felony. Finds there was sufficient evidence to support Escatel-Flores’ conviction.

Kevin Chadwick v. State of Indiana (mem. dec.)
49A02-1606-CR-1195
Criminal. Affirms Kevin Chadwick’s conviction for child molesting as a Class A felony, attempted child molesting as a Class A felony and child molesting as a Class C felony. Finds there was sufficient evidence to support Chadwick’s conviction.

Ira Steven Link v. State of Indiana (mem. dec.)
41A01-1605-CR-1003
Criminal. Affirms Ira Link’s sentence to an aggregate of 63 years for two counts of rape as Level 3 felonies, burglary as a Level 3 felony, criminal confinement as a Level 5 felony and being a repeat sexual offender. Finds Link has not met his burden of establishing that his aggregate sentence is inappropriate in light of the nature of the offense and his character.

Devon L. Hunter v. State of Indiana (mem. dec.)
45A04-1605-CR-1015
Criminal. Affirms and reverses in part Devon Hunter’s conviction of three counts of dealing in cocaine as Class A felonies, one count of possession of cocaine as a Class B felony and one count of maintaining a common nuisance as a Class D felony. Finds Hunter has waived the issue of the Lake Superior Court’s admission of Exhibits 2, 4 and 8 and, waiver notwithstanding, any resulting error was harmless. Finds Hunter’s conviction of maintaining a common nuisance violates the state’s double jeopardy clause and must be vacated. Finally, finds the trial court did not err by determining the hardship to Hunter’s dependents did not qualify as a mitigating circumstance. Remands with instructions to the trial court to vacate Hunter’s conviction of maintaining a common nuisance.
 

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