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Opinions July 27, 2017

July 27, 2017

Indiana Court of Appeals
Charles O'Keefe v. Top Notch Farms
93A02-1702-EX-386
Agency action. Affirms the denial of Charles O’Keefe’s claim for workers’ compensation benefits for a work-related injury. Finds that even though O’Keefe drove a semi-truck, his work was agricultural in character, so he was exempt from the Worker’s Compensation Act and could not receive workers’ compensation benefits.

James Van Ella v. VanHorne Properties, LLC
76A03-1607-CC-1699
Civil collection. Affirms the Steuben Circuit Court’s grant of summary judgment in favor of VanHorne Properties Inc. and the denial of James VanElla’s cross-motion for summary judgment regarding the use of an easement. Finds the trial court properly granted VanHorne’s motion for summary judgment and properly denied VanElla’s cross-motion for summary judgment.

Janet M. King v. State of Indiana (mem. dec.)
90A02-1701-CR-156
Criminal. Affirms Janet King’s sentence to two years in the Department of Correction for Level 6 felony theft. Finds the Wells Circuit Court did not abuse its discretion when it sentenced King and her sentence is not inappropriate in light of the nature of the offense and the character of the offender.

Earl L. Taylor v. State of Indiana (mem. dec.)
84A01-1607-CR-1684
Criminal. Affirms Earl L. Taylor’s conviction for first degree murder. Finds the state presented sufficient evidence to support Taylor’s conviction. Also finds the Vigo Superior Court did not abuse its discretion in denying Taylor’s motion to correct error based on alleged juror misconduct.

Marcus Ray Wilson v. State of Indiana (mem. dec.)
18A02-1612-CR-2949
Criminal. Affirms Marcus Wilson’s convictions of Class B felony criminal deviate conduct and Class D felony criminal confinement and his 14-year sentence. Finds any error in the exclusion of testimony was harmless beyond a reasonable doubt. Also finds Wilson’s sentence is not inappropriate.

In the Matter of the Civil Commitment of: R.S. v. St. Vincent Hospital and Health Care Center, Inc., St. Vincent Stress Center (mem. dec.)
49A05-1701-MH-3
Mental health. Affirms the Marion Superior Court’s order granting St. Vincent Hospital and Health Center’s petition for the involuntary temporary commitment of R.S. Finds there was sufficient evidence to prove R.S. was “gravely disabled.”

Andre Q. Bacon v. State of Indiana (mem. dec.)
41A04-1702-CR-292
Criminal. Affirms Andre Q. Bacon’s convictions for two counts of battery as Class A misdemeanors, trespass as a Class A misdemeanor and criminal mischief as a Class B misdemeanor. Finds the state presented evidence of a probative nature from which a reasonable trier of fact could have determine beyond a reasonable doubt that Bacon did not voluntarily act in self-defense and that he was guilty of the charged offenses. Judge Melissa May concurs in result without separate opinion.

Bruce A. White, Jr. v. State of Indiana (mem. dec.)
20A04-1610-PC-2490
Post conviction. Affirms the denial of Bruce A. White Jr.’s petition for post-conviction relief. Finds White has failed to show the post-conviction court’s denial of his petition was contrary to law.

Mark Benner v. State of Indiana (mem. dec.)
71A03-1607-CR-1609
Criminal. Affirms the denial of Mark Benner’s motion to dismiss his charges of two counts of child seduction, one as a Class C felony and one as a Class D felony. Finds Benner has failed to establish that the child seduction statute, as applied to him, is vague. Also finds Benner was adequately apprised that his alleged conduct could be prosecuted as child seduction. Judge Paul Mathias dissents with separate opinion.

Shannon L. Pilant v. State of Indiana (mem. dec.)
28A01-1612-CR-2884
Criminal. Affirms Shannon Pilant’s sentence to an aggregate of 12 years in the Department of Correction for two convictions of Level 4 felony sexual misconduct with a minor and two convictions of Level 5 felony child seduction. Finds the Greene Superior Court did not abuse its discretion when it sentenced Pilant. Also finds his sentence is not inappropriate.

Jose Luis Aguilar-Robles v. State of Indiana (mem. dec.)
48A04-1608-CR-1875
Criminal. Affirms Jose Luis Aguilar-Robles’ sentence to an aggregate of 120 years for his convictions of five counts of Class A felony child molesting and three counts of Class B felony incest. Finds the Madison Circuit Court’s reference to a threat to the victim was not an abuse of discretion, but the trial court improperly considered Aguilar-Robles’ lack of remorse to be an aggravating circumstance where he maintained his innocence. Also finds there is a double jeopardy concern with Aguilar-Robles’ convictions. Finally, finds the trial court would have imposed the same sentence without the lack of remorse aggravating circumstance and Aguilar-Robles’ sentence is not inappropriate. Remands to the trial court with instructions to vacate Aguilar-Robles’ incest convictions.

Jeffery A. Hmurovic, Sr. v. State of Indiana (mem. dec.)
45A03-1612-CR-2886
Criminal. Affirms Jeffrey A. Hmurovic Sr.’s sentence to 7 ½ years in the Department of Correction for his conviction of Class C felony incest. Finds the Lake Superior Court did not overlook significant mitigators clearly supported by the record, did not find aggravators supported by the record and did not impose a sentence that was inappropriate in light of Hmurovic’s offense and character.

David John Arndt v. State of Indiana (mem. dec.)
71A04-1611-CR-2708
Criminal. Affirms David Arndt’s conviction of burglary as a Level 5 felony and the revocation of his probation from a previous sentence after finding he committed the offense of burglary. Finds any error in the admission of testimony regarding a license plate was harmless. Also finds the St. Joseph Superior Court neither abused its discretion in allowed a lay witness to identify Arndt nor in revoking Arndt’s probation.

Erik Peetz v. State of Indiana (mem. dec.)
03A01-1701-CR-237
Criminal. Affirms the Bartholomew Superior Court’s order finding Erik Peetz violated the terms of his probation and order that he serve his suspended sentence in the Department of Correction. Finds the trial court did not abuse its discretion in revoking Peetz’s probation.

Varques Lamarr Johnson v. State of Indiana (mem. dec.)
49A04-1702-CR-288
Criminal. Affirms Varques Johnson’s convictions for Level 6 felony domestic battery committed in the presence of a child and Class A misdemeanor domestic battery.  Finds Johnson’s argument as to the victim’s testimony is a request to reweigh evidence that must be denied. Also finds that the circumstances in the record reveal the Marion Superior Court entered judgment of conviction on both domestic battery convictions before merging them. Remands to the trial court to vacate Johnson’s Class A misdemeanor domestic battery conviction.

James Mincey, Jr. v. State of Indiana (mem. dec.)
71A03-1611-CR-2720
Criminal. Affirms James Mincey Jr.’s conviction of Level 3 felony rape. Finds the St. Joseph Superior Court did not abuse its discretion in excluding evidence relating to J.T.’s prior sexual conduct. Also find the trial court’s curative instruction defused the impact of the state’s allegedly improper comments.

Stephen Lehman v. State of Indiana (mem. dec.)
35A05-1611-PC-2603
Post conviction. Affirms the denial of Stephen M. Lehman’s petition for post-conviction relief. Finds Lehman has failed to prove the post-conviction court erroneously denied his PCR petition.

Michael Johnson v. State of Indiana (mem. dec.)
49A02-1612-CR-2821
Criminal. Affirms Michael Johnson’s convictions of Level 6 felony intimidation and Level 6 felony sexual battery. Finds the evidence is sufficient to support the convictions.

In re the Matter of Adoption of A.R.; L.R. and P.R. v. D.K.B. (mem. dec.)
55A01-1702-AD-267
Adoption. Reverses the Morgan Circuit Court’s determination that D.B.’s consent was not required to the adoption of his child, A.R. Finds D.B.’s consent was required. Remands for further proceedings.

Robert A. Johnson, Jr. v. State of Indiana (mem. dec.)
71A04-1702-CR-298
Criminal. Affirms Robert A. Johnson Jr.’s convictions of Level 6 felony battery against a public safety officer, Level 6 felony resisting law enforcement and Class B misdemeanor criminal recklessness. Finds the state presented sufficient evidence to support Johnson’s convictions.

Marc Edward Zumwalt v. State of Indiana (mem. dec.)
02A04-1701-CR-175
Criminal. Affirms Marc Zumwalt’s convictions of two counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting. Finds the admission of Zumwalt’s incriminating police interview does not amount to fundamental error. Also finds Zumwalt’s two convictions for molesting N.G. do not violate prohibitions against double jeopardy.

Audrey Mullins and Danny Mullins v. Robert Maas and Gail Maas (mem. dec.)
44A03-1611-MI-2631
Miscellaneous. Affirms the denial of Audrey and Danny Mullins’ relief from judgment granting possession of a disputed parcel of land to Robert and Gail Maas. Finds the Mullinses failed to allege a meritorious claim or defense and, likewise, failed to establish the LaGrange Superior Court abused its discretion in denying their motion for relief from judgment. Also finds the Mullinses are not entitled to relief from judgment on the basis that the trial court did not timely rule on the Maases’ motion to correct error.

John Paul Woolley v. State of Indiana (mem. dec.)
83A01-1612-CR-2881
Criminal. Affirms John Paul Woolley’s aggregate sentence to 64 years for his convictions of four counts of Level 3 felony child neglect. Finds Woolley’s sentence is not inappropriate in light of the nature of the offense and the character of the offender.

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