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Opinions March 13, 2017

March 13, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
Henry C. Wedemeyer and Martha L. Wedemeyer v. CSX Transportation, Inc.
15-3580

Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Senior Judge Larry J. McKinney.
Civil. Affirms the district court’s grant of summary judgment to CSX Transportation on Henry and Martha Wedemeyer’s lawsuit seeking removal of CSX tracks and possession of the real property underlying the rail line. Finds that the Wedemeyers’ claims are pre-empted by the Interstate Commerce Commission Termination Act.

Indiana Court of Appeals
Argumedo Alvarez-Madrigal v. State of Indiana

49A02-1601-CR-162
Criminal. Affirms Argumedo Alvarez-Madrigal’s convictions of four counts of Class A felony child molesting and two counts of Class C felony child molesting. Finds that the Marion Superior Court did not commit reversible error when it admitted Dr. Shannon Thompson’s testimony over Alvarez-Madrigal’s objection. Judge Michael Barnes concurs in result with separate opinion.

Derrian N. Hampton v. State of Indiana
88A04-1608-CR-1862
Criminal. Affirms and reverses in part the trial court’s denial of Derrian Hampton’s “Motion to Correct Error Alternatively Motion to Reconsider” after the trial court ordered him to serve her previously suspended 550-day sentence. Affirms the Washington Superior Court’s determination that Hampton violated the terms and conditions of her probation. Reverses the 550-day sanction against Hampton under Woods v. State and Sullivan v. State. Remands to the trial court for the determination of the appropriate sanction to impose for Hampton’s violations of its order.

Termination: KC, et al. v. Indiana Department of Child Services
35A02-1609-JT-2096
Juvenile termination of parental rights. Reverses the termination of K.C.’s parental rights to G.M. Affirms the termination of M.M.’s parental rights to G.M. Finds that the juvenile court erred when it terminated K.C.’s parental rights to G.M. because G.M. had not been removed from K.C. under a dispositional decree for at least six months as required by Indiana Code Section 31-35-2-4(b)(2)(A)(i). Also finds that DCS presented sufficient evidence to support the juvenile court’s findings regarding M.M., including the conclusions that the circumstances under which G.M. was removed would not be remedied and that termination was in G.M.’s best interests. Remands for further proceedings.

Michael Kilburn v. State of Indiana (mem. dec.)
16A01-1606-CR-1419
Criminal. Affirms Michael Kilburn’s conviction of two counts of child molestation, one each as Class A and Class C felonies, and sentence of 30 years in the Indiana Department of Correction. Finds that the Decatur Circuit Court did not abuse its discretion in admitting Kilburn’s statements as evidence. Also finds that Kilburn’s sentence is not inappropriate in light of the nature of the offenses and his character.

John E. Roberts, Jr. v. Nichole Roberts (mem. dec.)
67A04-1606-DR-1404
Domestic relation. Affirms the Putnam Circuit Court’s order dismissing John E. Roberts, Jr.’s petition for contempt filed against Nicole Roberts. Finds that Roberts, Jr. was not prejudiced by the procedure employed by the trial court. Also finds that Roberts, Jr. has not met his burden to prove that a genuine issue of material fact remains for trial.

Terry Delane McNary v. State of Indiana (mem. dec.)
82A04-1607-CR-1733
Criminal. Affirms the denial of Terry McNary’s motion to suppress certain evidence from his trial on charges of Level 3 felony methamphetamine possession, Level 6 felony cocaine possession and Level 6 felony narcotics possession. Finds that police acted lawfully under the totality of the circumstances pursuant to Article 1 Section 11 of the Indiana Constitution and that, as such, McNary was not denied his constitutional protections when police seized and searched a pouch containing illegal substances. Also finds that the Vanderburgh Circuit Court did not err in denying McNary’s motion to suppress.

Darrell Lewis v. State of Indiana (mem. dec.)
49A02-1609-CR-2154
Criminal. Affirms Darrell Lewis, Jr.’s conviction of robbery as a Level 5 felony and sentence of five years with one year suspended. Finds that the Marion Superior Court did not err in allowing a retrial on two of his charges after Lewis’ first trial ended in a deadlocked jury on those counts. Denies Lewis’ request to recommend that the Indiana Supreme Court adopt a rule prohibiting a retrial after a deadlocked jury.

Lamarr T. Crittenden v. State of Indiana (mem. dec.)
49A04-1512-CR-2183
Criminal. Affirms Lamarr T. Crittenden’s sentence to an aggregate term of 35 years, with five years suspended, for his convictions of one count of child molesting as a Class A felony and one count of child molesting as a Class C felony. Finds that Crittenden’s argument that the Marion Superior Court was without subject matter jurisdiction fails. Also finds that the trial court did not abuse its discretion in sentencing Crittenden and that his claim that the court improperly classified him as a sexually violent predator in violation of the ex post facto clause fails. Finally, finds that Crittenden’s claims of ineffective assistance of counsel and improper amendment to his sentence fail.

Francisco Garcia v. State of Indiana (mem. dec.)
49A02-1608-CR-1728
Criminal. Affirms Francisco Garcia’s convictions of Level 5 felony criminal confinement, Level 6 felony strangulation and Level 6 felony domestic battery. Finds that there was sufficient evidence to support Garcia’s convictions.

Termination: MB v. Indiana Deparment of Child Services (mem. dec.)
71A03-1606-JT-1455
Juvenile termination of parental rights. Affirms the involuntary termination of M.B.’s parental rights to his son, M.H. Finds that the St. Joseph Probate Court did not abuse its discretion in denying M.B.’s motion for continuance. Also finds that the trial court’s threat finding was not erroneous.

 

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