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Opinions May 11, 2017

May 11, 2017
KEYWORDS Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Aaron E. Isby v. Richard Brown, et al.
15-3334
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane E. Magnus-Stinson.
Civil. Denies the defendants’ motion to dismiss. Affirms the district court’s entry of summary judgment against Aaron Isby on his claim under the Eighth Amendment. Reverses the district court’s grant of summary judgment to the defendant-appellees on Isby’s due process claim. Orders Isby to pay in full all outstanding fees to the district court and 7th Circuit Court of Appeals. Finds Isby has raised issues of material fact as to whether his reviews were meaning or pretextual. Remands for further proceedings on the due process claim.

Thursday’s opinions
Indiana Supreme Court
Danny Sims v. Andrew Pappas and Melissa Pappas
45S03-1701-CT-26
Civil tort. Affirms the judgment of the Lake Superior Court in favor of Andrew and Melissa Pappas for compensatory and punitive damages. Finds the remoteness of a prior offense does not affect the admissibility of the evidence. Also finds the compensatory damages were within the evidence and the punitive damages were not unconstitutionally excessive.

Royce Love v. The State of Indiana
71S03-1612-CR-641
Criminal. Affirms Royce Love’s convictions for battery of a law enforcement animal and resisting law enforcement as Class A misdemeanors and resisting law enforcement as a Class D felony. Finds Indiana appellate courts reviewing the sufficiency of evidence must apply the same deferential standard of review to video evidence as to other evidence, unless the video evidence indisputably contradicts the trial court’s findings. A video indisputably contradicts the trial court’s findings when no reasonable person can view the video and come to a different conclusion. Also finds the video at issue in this case does not indisputably contradict the trial court’s findings.

Indiana Court of Appeals
Larry C. Perry, Jr. v. State of Indiana
02A04-1608-CR-1890
Criminal. Affirms Larry C. Perry’s conviction for Level 6 felony domestic battery and sentence to 2 ½ years on that count. Reverses Perry’s remaining convictions and habitual offender finding. Finds the state failed to present sufficient evidence for a jury to find that Perry committed any crime other than one count of Level 6 felony domestic battery, which means the habitual offender finding cannot stand. Also finds the state failed to present sufficient evidence to prove venue on four charges. Finally, finds Perry has failed to establish the Allen Superior Court abused its discretion in denying his motion for mistrial and has failed to show his sentence for Level 6 felony domestic battery is inappropriate in light of the nature of the offense and his character.

Sandberg Trucking, Inc., and Kimiel Horn v. Brittany M. Johnson
79A04-1605-CT-1069
Civil tort. Affirms the finding that Sandberg Trucking Inc. and Kimiel Horn were 30 percent liable for the injuries to Brittany Johnson and the order that they pay $2.13 million in damages. Finds the Tippecanoe Superior Court did not err in finding Horn had a duty of care to Joshua Horne, the driver of the car; Johnson; and his other fellow motorists. Also finds the trial court did not allow the jury to engage in speculation and correctly concluded that Section 393.22 of the Federal Motor Carrier Safety Administration regulations applies to intrastate commerce. Finally, finds Johnson produced sufficient evidence to sustain findings that Horn’s actions or inactions were the proximate cause of her injuries and that she sustained $2.13 million in damages.

David Oaks v. Timothy R. Chamberlain, M.D.
92A04-1609-CC-2041
Civil collection. Reverses the jury’s verdict and the Whitley Circuit Court’s decision to exclude David Oaks’ cross-examination of an adverse expert witness about the expert’s personal medical practices. Finds Oaks did not waive his claim on appeal by failing to object to Jury Instruction 15. Also finds Dr. Wayne Moore’s expert testimony was not more prejudicial than probative, so the trial court abuse its discretion in excluding it. Also finds because Moore’s testimony was the only expert testimony that Dr. Timothy Chamberlain had that he had met the standard of care, the exclusion of impeachment evidence from cross-examination was not harmless error. Remands for a new trial.

In Re: Termination of the Parent-Child Relationship of: J.C., K.C., and I.W., (Children) and C.W., (Mother) v. The Indiana Department of Child Services (mem. dec.)
16A01-1612-JT-2787
Juvenile termination of parental rights. Affirms the termination of C.W.’s parental rights to her children, J.C., K.C. and I.W. Finds there is sufficient evidence to support the termination of C.W.’s parental rights.

Bradley Baldwin v. State of Indiana (mem. dec.)
49A05-1609-CR-2025
Criminal. Affirms Bradley Baldwin’s convictions of murder and attempted murder. Finds the Marion Superior Court did not abuse its discretion by excluding evidence that Timothy Browers shot his semi-automatic handgun at a car parked on Creston Drive and on the same night that Ronald Scheible and Dustin Houghton were shot, as that evidence was neither relevant not exculpatory and Baldwin cannot demonstrate he was harmed by its exclusion. Also finds the trial court did not abuse its discretion when it determined the state adequately rebutted the presumption that Baldwin was prejudiced by his jury foreperson’s contacting friends about the burden of proof in a criminal case.

Ashley E. Moore v. David A. Nacke (mem. dec.)
27A04-1609-DR-2207
Domestic relation. Reverses the Grant Superior Court’s order modifying parenting time in favor of David A. Nacke and its order modifying child support. Finds the trial court abused its discretion when it modified Nacke’s parenting time. Reinstates the previous parenting time schedule provided in the dissolution decree.

Deavin Bledsoe v. State of Indiana (mem. dec.)
49A05-1611-CR-2464
Criminal. Affirms Deavin Bledsoe’s sentence to 60 days, with 36 days suspended, for his conviction of public nudity as a Class C misdemeanor. Finds the Marion Superior Court erred in its oral sentencing statement when it “ordered” Bledsoe to stay away from the intersection of 10th and Oxford streets, but the written sentencing order does not include a stay-away other. Credits the court’s written sentencing order over the oral order.

John Randall Strietelmeier v. Tammie Nichols Strietelmeier (mem. dec.)
03A01-1608-DR-1831
Domestic relation. Affirms the Bartholomew Superior Court’s order finding John Randall Strietelmeier in contempt of court and its failure to impose sanctions on Tammie Nichols Strietelmeier’s contempt of court. Finds the trial court did not clearly err when it held “Randy” Strietelmeier in contempt and its failure to sanction Tammie Strietelmeier was not an “indirect sanction” against him for his contempt. Also finds the trial court did not err in concluding “the parties’ contempt (was) a wash” and its decision to impose “no further sanctions.”

In the Matter of J.S. (Minor Child) and A.S. (Mother); A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)
32A01-1611-JC-2652
Juvenile CHINS. Affirms the adjudication of J.S. as a child in need of services. Finds the Hendricks Superior Court’s unchallenged findings supports its conclusion J.S. is a CHINS.

Kevin Nobel Eastwood v. State of Indiana (mem. dec.)
82A01-1611-CR-2506
Criminal. Affirms Kevin Nobel Eastwood’s conviction for attempted murder as a Level 1 felony and battery as a Level 5 felony and his sentence to an aggregate of 30 years. Finds Eastwood cannot show an abuse of discretion on the issue of the trial court’s failure to admonish prospective jurors during voir dire and any error on that issue would be harmless. Also finds Eastwood’s concurrent advisory sentences are not inappropriate in light of the nature of his offenses and his character.

Joshua K. Wasson v. State of Indiana (mem. dec.)
34A02-1701-CR-79
Criminal. Affirms Joshua K. Wasson’s convictions for two counts of Level 6 felony failure to appear. Finds there was ample evidence that Wasson had actual notice of the date and time of the hearing and there were no extenuating circumstances that prevented his attendance.

Dewayne T. Anderson v. State of Indiana (mem. dec.)
36A01-1612-CR-2766
Criminal. Affirms Dewayne Anderson’s sentence to 20 years executed for his conviction of dealing in a narcotic drug as a Level 2 felony. Finds Anderson’s sentence is not inappropriate in light of the nature of the offense and his character.

David Streeter v. State of Indiana (mem. dec.)
44A04-1605-CR-1179
Criminal. Affirms the denial of David Streeter’s Verified Petition for Permission to File Belated Notice of Appeal and for Appointment of Counsel at County Expense. Finds Streeter did not demonstrate he was not at fault for the failure to timely file a notice of appeal or was diligent in requesting to file a belated direct appeal. Also finds Streeter did not demonstrate the LaGrange Superior Court was required to appoint counsel to assist Streeter with his Post-Conviction Rule 2 petition or to hold a hearing prior to denying his petition.

Jason C. Amonett v. State of Indiana (mem. dec.)
18A04-1609-CR-2126
Criminal. Affirms Jason Amonett’s convictions for Class A felony dealing in a schedule II controlled substance within 1,000 feet of a youth program center, Class C felony possession of a controlled substance and Class A misdemeanor possession of paraphernalia and his sentence to 40 years. Finds any error in the admission of the marijuana, oxycodone or Amonett’s statement to police was harmless. Also finds the 40-year sentence is not inappropriate in light of the nature of the offense and the character of the offender.

Steven J. Svabek, D.O., et al. v. Lancet Indemnity Risk Retention Group, Inc. (mem. dec.)
41A05-1610-PL-2271
Civil plenary. Affirms the Johnson Superior Court’s entry of summary judgment in favor of Lancet Indemnity Risk Retention Group Inc. on Lancet’s complaint seeking rescission of the medical malpractice insurance policy of Steven J. Svabek, D.O. Finds Svabek has failed to “demonstrate the absence of any genuine issue of act as to a determinative issue,” namely that Lancet is entitled to rescission based on Svabek’s misrepresentation on his application for insurance regarding a prior denial of coverage.

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