Opinions March 30, 2017

Indiana Court of Appeals
Luke M. Warren v. State of Indiana
87A01-1606-CR-1399
Criminal. Affirms Luke M. Warren’s convictions of Class B felony dealing in methamphetamine and Class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance. Finds viewed in their totality, the officers’ actions complied with the Fourth Amendment standard of reasonableness and constituted a reasonable response to the suspicion created by the odor regarding a possible danger inside the home, so Warren’s subsequent consent to search was not rendered invalid by the officers’ preceding actions and the extensive evidence found inside the home was properly admitted at trial. Also finds Warren has failed to establish an actual conflict of interest adversely affected his trial counsel’s performance.

Masterbrand Cabinets v. Douglas Waid
93A02-1609-EX-2228
Agency. Affirms the Indiana Worker’s Compensation Board’s decision to award temporary total disability benefits to Douglas Waid. Finds the board properly award TTD benefits to Waid despite his termination for misconduct.

Riverside Meadows I, LLC v. City of Jeffersonville, Indiana Board of Zoning Appeals
10A05-1608-PL-1828
Civil plenary. Reverses the Clark Circuit Court’s order denying Riverside Meadows I LLC’s petition for judicial review of the decision of the city of Jeffersonville’s Board of Zoning Appeals. The findings entered by the BZA are insufficient to permit adequate judicial review of BZA’s decisions. Remands to the BZA with instructions to enter specific findings with 45 days tailored to address the specific facts presented to the BZA in support of its decision to deny Riverside’s request for a use variance.

Charles A. Benson v. State of Indiana
02A03-1607-CR-1660
Criminal. Affirms Charles A. Benson’s convictions of attempted murder as a Level 1 felony, resisting law enforcement as a Level 6 felony and criminal recklessness as a Level 6 felony and the finding he was a habitual offender. Finds the Allen Superior Court did not commit fundamental error in failing to give a specific jury instruction on unanimity.

In the Matter of D.P. (Minor Child), and M.P. (Father) v. The Indiana Department of Child Services
49A02-1610-JC-2367
Juvenile CHINS. Reverses the Marion Superior Court’s finding that M.P.’s child, D.P., is a child in need of services. Despite mother’s admission, the Department of Child Services failed to meet its burden of proving D.P. is a CHINS in light of M.P.’s refusal to concede to mother’s admission and the lack of admissible evidence to support all the elements of a CHINS action. Judge James Kirsch dissents with separate opinion.

Certain Tell City Annexation Territory Landowners v. Tell City, Indiana
62A01-1603-MI-510
Miscellaneous. Reverses the Perry Circuit Court’s dismissal of Certain Tell City Annexation Territory Landowner’s remonstrance petition challenging a proposed annexation of their land by Tell City. The trial court misinterpreted and added additional statutory requirements. Also finds the petition did contain the necessary signatures, so the trial court erred in dismissing the petition. Remands for further proceedings.

Jhontay L. Whitesides v. State of Indiana (mem. dec.)
84A01-1610-CR-2424
Criminal. Affirms Jhontay L. Whitesides’ sentence of 10 years, with six years executed in Community Corrections on Work Release and four years suspended to probation, for Level 3 felony armed robbery. Finds the Vigo Superior Court did not abuse its discretion in identifying mitigating factors.

Dennis R. Freeman, Jr. v. State of Indiana (mem. dec.)
02A03-1606-CR-1386    
Criminal. Affirms Dennis Freeman’s sentence to an aggregate of seven years for Level 5 felony battery, Level 6 felony criminal recklessness, Level 6 felony intimidation and Class A misdemeanor resisting law enforcement. Finds Freeman’s sentence is not inappropriate in light of the nature of the offense and his character.

In Re The Matter of S.G. (Minor Child); P.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)
49A05-1610-JC-2351
Juvenile CHINS. Affirms the Marion Superior Court’s order adjudicating S.G. to be a child in need of services. The evidence supports the trial court’s conclusion S.G.’s physical or mental condition was seriously impaired or seriously endangered as a result of the mother P.G.’s inability to supply S.G. with the necessary supervision. Also finds the evidence supports the trial court’s conclusion that 16-year-old mother was simply unable to remedy these situations and provide S.G. with a safe environment without the coercive intervention of the court.

Robert D. Rivard v. State of Indiana (mem. dec.)
84A04-1611-CR-2838
Criminal. Affirms Robert D. Rivard’s sentence to 19 years, with six years executed in the Indiana Department of Correction, for dealing in methamphetamine as a Level 2 felony. Considering the amount of meth discovered in Rivard’s residence, which was nearly quadruple the amount needed to convict him of the Level 2 felony offense, and his extensive criminal history, his sentence is not inappropriate in light of the nature of the offense or his character.

Clyde D. Lewis, III v. State of Indiana (mem. dec.)
31A04-1605-CR-1006
Criminal. Reverses Clyde D. Lewis III’s conviction of Level 5 felony battery. Finds Lewis’ waiver of his right to counsel was invalid and the Harrison Superior Court erred in denying his request for counsel on the day of trial. Remands for a new trial. Chief Judge Nancy Vaidik concurs in result without separate opinion.

Karen Bush v. State of Indiana (mem. dec.)
49A02-1611-CR-2512
Criminal. Affirms Karen Bush’s conviction for battery as a Class A misdemeanor. The state presented evidence of a probative nature from which a reasonable trier of fact could have determined beyond a reasonable doubt that Bush did not validly act in self-defense and that she was guilty of Class A misdemeanor battery.

Geraldine R. Jones v. State of Indiana (mem. dec.)
48A02-1601-CR-130
Criminal. Affirms the denial of Geraldine R. Jones’ motion to transfer venue of her charges of murder, Level 3 felony kidnapping and Level 5 felony kidnapping. Finds there was sufficient evidence that Jones’ charged offenses constituted a single chain of events such that venue is appropriate in either Madison or Lake County.

Thomas Clark v. State of Indiana (mem. dec.)
45A03-1610-CR-2300
Criminal. Affirms Thomas Clark’s conviction of resisting law enforcement as a Class D felony. The state presented sufficient evidence to show that Clark resisted law enforcement.

Yvonne Howery v. State of Indiana (mem. dec.)
70A01-1609-CR-2127
Criminal. Affirms Yvonne Howery’s convictions for possession of cocaine as a Level 5 felony, maintaining a common nuisance as a Level 6 felony, neglect of a dependent as a Level 6 felony and dealing in marijuana as a Class A misdemeanor. The Rush Superior Court did not abuse its discretion when it denied Howery’s motion to continue her trial. Also finds in light of the substantial independent evidence of Howery’s guilty, any error in the admission of the alleged hearsay testimony, evidence of Howery’s prior bad acts and Robert Koohn’s testimony regarding Darrell Howery’s cocaine dealing was harmless.

Walik L. Whiteside v. State of Indiana (mem. dec.)
02A05-1607-CR-1659
Criminal. Affirms Walik Whiteside’s convictions for attempted rape as a Class B felony and two counts of criminal deviate conduct as Class B felonies. The Allen Superior Court did not err by permitting Whiteside to waive his right to counsel or by denying his pretrial motion for continuance. Also finds Whiteside’s sentence is inappropriate. Remands with instructions to revise Whiteside’s sentence to three consecutive 10-year terms. Judge Rudolph Pyle concurs and dissents in part with separate opinion.

Robert Morris III v. State of Indiana (mem. dec.)
32A01-1609-CR-2191
Criminal. Affirms the revocation of Robert Morris III’s probation. The evidence is sufficient to support the revocation.