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Opinions June 23, 2017

June 23, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday:
Yehuda Frager v. Indianapolis Colts, Inc.
16-4183
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms the district court’s dismissal of Yehuda Frager’s diversity complaint against the Indianapolis Colts. Finds the language of the Colts’ contract with season tickets holders does not automatically give ticket holders the right to renew their tickets from one season to the next.

Friday opinions
Indiana Court of Appeals
Troy Burgh v. State of Indiana
71A03-1611-CR-2669
Criminal. Affirms Troy Burgh’s conviction for battery as a Level 5 felony. Finds as a matter of first impression that when the paved surface of a parking lot is used in a manner that makes the surface readily capable of causing serious bodily injury, a reasonable trier of fact may conclude the battery was “committed with a deadly weapon.”

Rene DiBenedetto v. Timothy Devereux
49A05-1609-CT-2146
Civil tort. Affirms the grant of summary judgment in favor of Timothy Devereux. Finds as a matter of law, given the circumstances, Devereux did not breach any duty owed to Rene DiBenedetto. Denies Devereux’s request for attorney fees. Judge Terry Crone dissents with separate opinion.

Jose Arcia De La Cruz v. State of Indiana
49A05-1610-CR-2417
Criminal. Reverses the imposition of probation fees after Jose De La Cruz’s conviction for operating a vehicle while intoxicated as a Class C misdemeanor. Finds the appeal is not moot. Also finds the Marion Superior Court did not order probation fees, and it abused its discretion when it authorized the probation department to do so. Remands with instructions to vacate the imposition of probation fees and orders reimbursement of those fees.

Paul Michael Kage, Jr. v. State of Indiana (mem. dec.)
76A04-1611-CR-2616
Criminal. Affirms Paul Michael Kage Jr.’s sentence to an aggregate of eight years for Level 5 felony operating a motor vehicle after a forfeiture of license for life and being a habitual offender. Finds Kage has not met his burden of proving his sentence is inappropriate in light of the nature of the offense and his character.

Justin Holman v. State of Indiana (mem. dec.)
49A04-1701-CR-84
Criminal. Affirms Justin Holman’s convictions for domestic battery and battery resulting in bodily injury as Class A misdemeanors. Finds evidence of probative value was presented from which the court could find beyond a reasonable doubt Holman committed the offenses.

Dejuan R. Wells v. State of Indiana (mem. dec.)
29A05-1610-CR-2273
Criminal. Affirms Dejuan R. Wells' convictions of Level 5 felony dealing in marijuana and Level 6 felony possession of a narcotic drug and his sentence to an aggregate term of 10 years, with the last two years be served in community corrections. Finds the Hamilton Superior Court not abuse its discretion when it admitted evidence discovered during the warrantless search of Wells’ vehicle because there was evidence that Wells’ license plate was not clearly legible from 50 feet to the rear of his vehicle as required by statute. Also finds the evidence before the trial court was sufficient to support Wells’ habitual offender adjudication. Finally, finds the trial court did not abuse its discretion when it rejected the instruction Wells tendered or when it considered evidence that was previously suppressed when sentencing Wells.

Richard Olufeni Ani-Obot v. State of Indiana (mem. dec.)
45A05-1701-CR-8
Criminal. Affirms Richard Olufeni Ani-Obot’s sentence to two years for his conviction of Level 6 felony battery by bodily waste. Finds the Lake Superior Court did not abuse its discretion when it weighed the aggravating and mitigating circumstances. Also finds Ani-Obot’s sentence is not inappropriate in light of the nature of the offense and his character.

Adrianne R. Helton v. Timothy Joseph Helton (mem. dec,)
60A05-1609-DR-2202
Domestic relation. Affirms the Owen Circuit Court’s determination that Adrianne and Timothy Helton did not have a present ownership in the house they built, thus excluding the house from the marital estate in dissolution proceedings. Finds Adrianne Helton did not raise the issue of Timothy Helton’s continued use and occupation of the house with the trial court, so she waive that issue on appeal.
    
In the Termination of the Parent-Child Relationship of: C.B. (Minor Child), T.J. (Mother) v. Indiana Department of Child Services (mem. dec.)
35A02-1611-JT-2548
Juvenile termination of parental rights. Affirms the Huntington Circuit Court’s termination of T.J.’s parental rights over her minor child, C.B. Finds the trial court did not err when it terminated her parental rights.

Lamontae J. White v. State of Indiana (mem. dec.)
02A05-1702-CR-304
Criminal. Affirms Lamontae White’s conviction for unlawful possession of a firearm by a serious violent felon as a Level 4 felony and his sentence to 12 years executed. Finds the state presented sufficient evidence from which a reasonable fact-finder could conclude White constructively possessed the handgun. Also finds White has not demonstrated the Allen Superior Court abused its discretion when it did not find his bad childhood and family support to be mitigating circumstances. Finally, finds White’s sentence is not inappropriate.

Brandon Lonnell Spinks v. State of Indiana (mem. dec.)
49A02-1606-CR-1269
Criminal. Affirms Brandon Spinks’ conviction for criminal confinement as a Level 3 felony. Finds the victim’s statements to her nurse and doctor in the emergency room regarding the identity of her attacker were properly admitted under Evidence Rule 803(4). Also finds the Marion Superior Court did not abuse its discretion by admitting a recorded jail call between Spinks and his 6-year-old son.

In the Matter of the Adoption of B.A.J. (Child); K.L. (father) v. Z.H. (mem. dec.)
29A05-1701-AD-110
Adoption. Affirms the Hamilton Superior Court’s order that K.L.’s consent was not required for the adoption of B.A.J. by Z.H. Finds the trial court’s conclusions of law and findings of fact were supported by the evidence.

Ronnie L. Brown v. State of Indiana (mem. dec.)
18A02-1701-CR-124
Criminal. Affirms Ronnie Brown’s conviction of two counts of dealing in cocaine within 500 feet of a public park as Level 4 felonies and one count of possession of marijuana as a Class B misdemeanor. Finds the state’s evidence sufficiently rebuts any notion of entrapment. Also finds the state presented sufficient evidence from which the jury could have concluded Brown sold cocaine within 500 feet of a public park.

Brent N. Simcox v. State of Indiana (mem. dec.)
52A02-1702-CR-280
Criminal. Affirms the Miami Circuit Court’s revocation of Brent N. Simcox’s probation. Finds the trial court’s judgment is supported by sufficient evidence.

Kamau I. Campbell v. State of Indiana (mem. dec.)
91A05-1606-CR-1521
Criminal. Affirms Kamau Campbell’s sentence to 11 years executed in the Department of Correction for Level 3 felony robbery. Finds the White Superior Court did not abuse its discretion when it considered an aggravating circumstance. Also finds Campbell has not met his burden of proving his sentence is inappropriate in light of the nature of the offense and his character.

Joseph E. Waldron v. State of Indiana (mem. dec.)
35A02-1701-CR-122
Criminal. Affirms the Huntington Circuit Court’s denial of Joseph E. Waldron’s motion to suppress evidence. Finds the record contains substantial evidence of probative value to support the trial court’s denial of Waldron’s motion to suppress the electronic devices.  

Maria S. Sanchez v. Michael D. Sphire (mem. dec.)
13A01-1610-PL-2407
Civil plenary. Reverses judgment for Michael D. Sphire in his action to foreclose on a contract for the sale of real estate. Affirms the denial of Maria S. Sanchez’s attorney fees. Finds Sanchez has made a prima facie showing the parties had an offer, acceptance and consideration making up on oral agreement in settlement of Sphire’s foreclosure lawsuit against her and that the Crawford Circuit Court erred when it failed to enforce the settlement agreement. Also finds the trial court did not err in refusing to award Sanchez her attorney fees.

In the Matter of S.B. (Minor Child in Need of Services), J.B. (Mother) v. Indiana Department of Child Services (mem. dec.)
49A05-1701-JC-166
Juvenile CHINS. Dismisses J.B.’s appeal of the Marion Superior Court’s order changing her daughter, S.B.’s, permanency plan from reunification to “another planned permanent living arrangement.” Finds J.B. does not appeal from a final judgment.

In the Matter of the Termination of the Parent-Child Relationship of: J.M., (Minor Child) and B.G. (Father) v. The Indiana Department of Child Services (mem. dec.)
26A04-1702-JT-426
Juvenile termination of parental rights. Affirms the termination of B.G.’s parental rights to J.M. Finds the juvenile court did not err in finding B.G. was unlikely to remedy the conditions that led to J.M.’s removal.

Gabrielle R. Adams v. State of Indiana (mem. dec.)
71A05-1611-CR-2659
Criminal. Affirms Gabrielle R. Adams’ conviction for battery as a Level 5 felony. Finds a reasonable trier of fact may conclude battery was “committed with a deadly weapon” when the paved surface of a parking lot is used in a manner that makes the surface readily capable of causing serious bodily injury.

 

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