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Opinions July 20, 2017

July 20, 2017
KEYWORDS Opinions

The following opinions were after IL deadline Wednesday:
7th Circuit Court of Appeals
Dentrell Brown v. Richard Brown
16-1014
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Chief Judge Jane Magnus-Stinson.
Civil. Denies Richard Brown’s petition for rehearing and rehearing en banc. A majority of judges voted to deny the petition for rehearing en banc, except for Judges Joel Flaum, Frank Easterbrook and Diane Sykes. Judges Michael Kanne and David Hamilton vote to deny panel rehearing, while Sykes voted to grant panel rehearing. Sykes dissents with separate opinion, joined by Flaum and Easterbrook.

Gotoimoana Summers v. Nancy A. Berryhill, Acting Commissioner of Social Security
16-3849
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Affirms the district court’s affirmation of the Social Security Commissioner’s denial of Gotoimoana Summers’ application for disability insurance benefits. Finds the administrative law judge’s assessment was supported by sufficient evidence and an adequate record. Also finds the ALJ properly considered Summers’ obesity and heart conditions in determining she was not temporarily disabled. Finally, finds the ALJ did not err in finding Summers was “not entirely credible.”

Indiana Tax Court
Klink Trucking, Inc. v. Indiana Department of State Revenue
49T10-1307-TA-64
Tax. Reverses the Indiana Department of State Revenue’s final determination as to Klink Trucking Inc.’s 2008, 2009 and 2010 use tax exemptions. Finds Klink has demonstrated its trucks and related expense items were predominately used in providing public transportation during the years at issue and, therefore, were exempt from use tax under the public transportation exemption. Remands for further proceedings.

Thursday opinions
Indiana Court of Appeals
Dustin A. Evans v. State of Indiana
03A04-1612-CR-2911
Criminal. Affirms Dustin Evans’ convictions for escape as a Level 5 felony and unlawful possession of a syringe as a Level 6 felony. Finds there was no fundamental error in the Bartholomew Superior Court’s jury instructions for Evans’ escape charge. Also finds the trial court did not abuse its discretion in ordering consecutive sentences for Evans’ offenses.

A.A. v. Eskenazi Health/Midtown CMHC
49A02-1610-MH-2286
Mental health. Affirms the involuntary commitment of A.A. to Eskenazi Health/Midtown Community Mental Health Clinic. Finds that neither A.A. nor his counsel could validly waive his right to appear, but that the Marion Superior Court had a statutory right to waive A.A.’s presence. Also finds that trial courts, counsel and caregivers should invoke Indiana Code 12-26-2-2(b) only when the waiver of the right to be present is truly needed and supported by the evidence. Finally, finds the evidence was established why A.A. should not have been present at his commitment hearing as well as why he was not, in fact, present.

P.S. v. T.W.
32A01-1610-PO-2426
Protective order. Affirms the Hendricks Superior Court’s decision to place P.S. on GPS monitoring following his violation of the protective order in place to protect T.W. from P.S. Finds P.S. had notice he could be placed on GPS monitoring if he violated the protective order. Also finds T.W. presented sufficient evidence that P.S. violated the order. Finally, finds the trial court did not abuse its discretion in concluding P.S. violated the protective order and did not err in ordering him to submit to GPS monitoring as a penalty for that violation.

In the Matter of the Civil Commitment of M.R. v. St. Vincent Hospital and Health Center, Inc. d/b/a St. Vincent Stress Center (mem. dec.)
49A04-1701-MH-191
Mental health. Affirms the Marion Superior Court’s grant of a petition for the involuntary commitment of M.R. and the intention of St. Vincent Stress Center to transfer M.R. to Richmond State Hospital. Finds M.R. did not file a petition with the trial court to set aside the transfer nor did the trial court ever issue a ruling regarding the transfer. Also finds that M.R. did not contest her involuntary commitment, so there is nothing to consider on appeal.

Armex Brown v. State of Indiana (mem. dec.)
49A04-1610-CR-2416
Criminal. Affirms Armex Brown’s convictions for two counts of child molesting, one as a Level 3 felony and one as a Level 4 felony. Finds the prosecutor’s brief references to statements M.M. allegedly made to other witnesses did not rise to the level of fundamental error. Also finds Brown has not established a reasonable possibility that the jury relied on exactly the same facts to support both convictions.

Johnny R. Green v. State of Indiana (mem. dec.)
20A03-1702-CR-374
Criminal. Affirms Johnny Green’s convictions for two counts of Class A felony dealing in heroin within 1,000 feet of a public park and one count of Class B felony possession of heroin with intent to deliver. Finds the Elkhart Superior Court did not err by denying Green’s motion to dismiss based on double jeopardy concerns. Also finds the trial court did not err in the admission of evidence.

Robert Francisco Celio v. State of Indiana (mem. dec.)
30A05-1609-CR-2124
Criminal. Affirms Robert Celio’s convictions for Class A felony child molesting, Class A felony criminal deviate conduct, Class B felony incest, Class C felony child molesting and Class C felony intimidation. Finds the Hancock Circuit Court did not abuse its discretion in excluding evidence pursuant to the Rape Shield Rule.

Oliver D. Lambert v. Koenig Equipment, Inc. (mem. dec.)
35A05-1612-PL-2775
Civil plenary. Affirms the Huntington Circuit Court’s entry of judgment in favor of Koenig Equipment Inc. on breach of contract claims. Finds the trial court’s judgment is not contrary to law and its facts are supported by the evidence.

N.L.P. v. T.A.R. (mem. dec.)
03A05-1701-JP-236
Juvenile paternity. Affirms the Bartholomew Superior Court’s paternity order granting joint physical custody to N.L.P. and T.A.R. of their two children. Finds that under the circumstances, the evidence did not require a finding that a pattern of domestic violence existed in this case. Also finds N.L.P.’s claims of discrimination and negative effects on the children are not borne out in the record. Finally, finds the trial court’s custody determination is amply supported by its findings.

John Chupp v. Wendy Knight, Superintendent of Correctional Industrial Facility (mem. dec.)
48A04-1610-MI-2381
Miscellaneous. Affirms the dismissal of John Chupp’s petitions for writ of habeas corpus. Finds the Madison Circuit Court did not err in dismissing his request for habeas relief.

Frederick D. Petre, Jr. v. Valerie J. Petre (mem. dec.)
17A03-1612-DR-2719
Domestic relation. Affirms the DeKalb Superior Court’s division and valuation of property between Frederick Petre Jr. and Valerie Petre. Finds Frederick Petre has not overcome the strong presumption that the trial court considered and complied with Indiana Code 31-15-7-5 in equally dividing the assets. Also finds the trial court fairly took into consideration both parties’ testimony about the Waterloo property’s valuation and that sufficient evidence and reasonable inferences support the valuation.

 

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