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Opinions July 31, 2017

July 31, 2017

Indiana Tax Court
William R. Larsen v. Indiana Department of State Revenue
49T10-1503-TA-8
Tax. Denies the Indiana Department of State Revenue’s motion for summary judgment in William R. Larsen’s challenge to its assessment of adjusted gross income tax for the 2013 tax year. Grants summary judgment in favor of Larsen. Finds Larsen has provided documentation that verifies the eligibility for his children for the federal dependency exemptions and shows those exemptions were allowed, so he was entitled to the Indiana dependency deductions in 2013.

Indiana Court of Appeals
K.G. v. State of Indiana
32A01-1611-JV-2590
Juvenile. Reverses K.G.’s adjudication as a delinquent child for having committed acts that, if committed by an adult, would be Class A misdemeanor carrying a handgun without a license, Class C misdemeanor illegal possession of an alcoholic beverage and Class C misdemeanor possession of paraphernalia. Finds police Lt. Robert Paris’ pat down of K.G. during the Terry stop was improper under the Fourth Amendment because it was not supported by particularized reasonable suspicion. Also finds the juvenile court should have suppressed the ammunition found during that pat-down and all evidence discovered during the searches that occurred thereafter.

Brandon McGrath v. State of Indiana
49A04-1610-CR-2270
Criminal. Reverses Brandon McGrath’s conviction of dealing in marijuana and possession of marijuana, both as Level 6 felonies. Finds a detective’s determination that there is a probability that evidence of criminal activity will be found at a particular place based upon his or her training and experience without evidence that corroborates a tip that criminal activity has occurred or is occurring at a particular location does not establish probable cause to issue a search warrant. Judge Cale Bradford dissents with separate opinion.

Erie Indemnity Company, as the Attorney-In-Fact for the Subscribers at Erie Insurance Exchange v. The Estate of Brian L. Harris, By Its Special Representative, Laura Harris, et al.
46A03-1606-CT-1261
Civil tort. Affirms summary judgment in favor of the widow and estate of Brian L. Harris. Finds Harris fell within his employer’s insurance policy’s uninsured motorist coverage.

Jeffrey Herbert v. Jacob Gardner, Ziaollah Loghmani, and Kamran Akhavan (mem. dec.)
49A02-1702-CT-391
Civil tort. Affirms the grant of summary judgment in favor of Jacob Gardner, Ziaollah Loghmani and Kamran Akhavan. Finds the Marion Superior Court did not err in granting summary judgment.

In the Termination of the Parent-Child Relationship of M.A. (Minor Child) and K.S. (Mother) v. Indiana Department of Child Services (mem. dec.)
91A02-1702-JT-352
Juvenile termination of parental rights. Affirms the termination of K.S.’s parental rights to her son. Finds the evidence was sufficient to support the White Circuit Court’s decision.

Noe Joaquin v. State of Indiana (mem. dec.)
49A02-1701-CR-190
Criminal. Affirms Noe Joaquin’s conviction for Class A misdemeanor operating a vehicle while intoxicated in a manner that endangered a person. Finds Joaquin waived any claim of error and that any error was not fundamental. Judge John Baker dissents with separate opinion.

Anthony H. Taylor v. State of Indiana (mem. dec.)
20A04-1703-CR-540
Criminal. Affirms the revocation of Anthony H. Taylor’s probation. Finds the Elkhart Superior Court did not abuse its discretion.

Jamie C. Carson, Sr. v. State of Indiana (mem. dec.)
49A02-1610-CR-2337
Criminal. Affirms the denial of Jamie C. Carson Sr.’s motion to correct erroneous sentence. Finds the Marion Superior Court did not err in denying Carson’s motion.

Brian Taylor v. State of Indiana (mem. dec.)
46A05-1608-CR-1938
Criminal. Affirms Brian Jordan Taylor’s convictions of Level 5 felony criminal recklessness and Level 6 felony criminal recklessness and sentence to an aggregate of five years, with one year suspended. Finds the amended charging information was an amendment to form and was timely filed. Also finds the LaPorte Superior Court did not abuse its discretion at sentencing.

Nykie C. Edwards v. State of Indiana (mem. dec.)
79A04-1701-CR-42
Criminal. Affirms the denial of Nykie Edward’s motion to withdraw his guilty plea to child molesting as a Level 1 felony. Finds Edwards has not overcome the presumption of validity of the Tippecanoe Superior Court’s denial of his motion to withdraw his guilty plea. Also finds the trial court did not abuse its discretion when it denied Edwards’ motion.

Jason M. Rich v. State of Indiana (mem. dec.)
02A05-1702-CR-361
Criminal. Affirms Jason M. Rich’s sentence to two years at the Indiana Department of Correction for his conviction of theft as a Level 6 felony. Finds the Allen Superior Court did not abuse its discretion in failing to identify the weight it assigned to the mitigating factors it found. Also finds Rich’s sentence is not inappropriate in light of the nature of his offenses or his character.

Andrea Simon and Jimmie Busbee v. Amanda Lynn Busbee and Levi A. Fuller (mem. dec.)
02A03-1612-JP-02811
Juvenile paternity. Affirms the denial of Andrea Simon and Jimmie Busbee’s petitions for child custody and grandparent visitation. Finds the Allen Superior Court did not commit clear error when it denied their petitions to modify custody and for visitation. Also finds the trial court did not abuse its discretion when it awarded Amanda Lynn Busbee her attorney fees.

Gary Ellis v. State of Indiana (mem. dec.)
49A05-1701-CR-37
Criminal. Affirms Gary Ellis’ conviction for Class A misdemeanor theft. Finds the Marion Superior Court did not violate his Sixth Amendment right to confrontation. Also finds the trial court did not commit fundamental error in admitting a surveillance video in the absence of testimony in front of the jury from that state’s foundational witness.

Kenneth Ramsey v. State of Indiana (mem. dec.)
89A04-1702-CR-385
Criminal. Affirms Kenneth Ramsey’s convictions of Level 5 felony operating a motor vehicle after forfeiture of license for life and Class A misdemeanor operating a vehicle while intoxicated in a manner that endangers a person. Finds the state presented sufficient evidence from which the jury could have inferred that Ramsey was operating the truck when it slid off I-70 and came to rest in the median.

Keith A. Foor, II v. PennyMac Loan Services, LLC (mem. dec.)
64A03-1701-MF-149
Mortgage foreclosure. Affirms the grant of PennyMac Loan Services LLC’s motion for summary judgment on all issues raised in its mortgage foreclosure action against Keith Foor II, including on the counterclaims asserted by Foor. Finds Foor did not direct the Indiana Court of Appeals to any designated evidence that might have created a genuine issue of material fact on the issue of whether PennyMac is in possession of the original promissory note.

Michael Elsbury v. State of Indiana (mem. dec.)
15A01-1703-CR-449
Criminal. Affirms the revocation of two years of Michael Elsbury’s previously suspended 2 ½- year sentence. Finds the Dearborn Superior Court did not abuse its discretion.

Donald Richardson v. State of Indiana (mem. dec.)
49A05-1612-CR-2671
Criminal. Affirms Donald Richardson’s convictions for Class A felony criminal deviate conduct, Class A felony rape and Class B felony carjacking, his adjudication as a habitual offender and his aggregate sentence of 70 years. Finds the Marion Superior Court did not err by admitting into evidence Richardson’s statements to police. Also finds Richardson’s sentence is not inappropriate. Remands for clarification of written sentencing order.

Darrell Brooks v. State of Indiana (mem. dec.)
49A02-1703-CR-403
Criminal. Affirms Darrell Brooks’ conviction of Level 6 felony battery resulting in moderate bodily injury. Finds the state presented sufficient evidence to negate Brooks’ self-defense claim beyond a reasonable doubt.

Sir Christopher Lee Jones v. State of Indiana (mem. dec.)
49A02-1606-CR-1448
Criminal. Affirms Sir Jones’ conviction for murder. Finds the prosecutor did not commit misconduct amounting to fundamental error. Also finds the evidence is sufficient to sustain the conviction.

Mitza N. Durham v. JP Morgan Chase Bank, N.A. (mem. dec.)
36A05-1608-MF-1925
Mortgage foreclosure. Affirms the denial of Mitza N. Durham’s motion to set aside a judgment of mortgage foreclosure in favor of JPMorgan Chase Bank, N.A. Finds the Jackson Superior Court did not err in denying Durham’s motion. Judge Michael Barnes dissents with separate opinion.

Alex E. Witmer v. State of Indiana (mem. dec.)
20A04-1610-CR-2231
Criminal. Affirms the denial of Alex W. Witmer’s petition for post-conviction relief. Finds the three aggravators found by the trial court without a jury and used to enhance Witmer’s sentence did not violate his right to a jury as explained in Blakely v. Washington, 542 U.S. 296 (2004).

Jacob T. McDaniel v. State of Indiana (mem. dec.)
79A04-1612-CR-2877
Criminal. Affirms Jacob T. McDaniel’s convictions for robbery as a Level 2 felony, criminal confinement as a Level 5 felony, battery as a Level 5 felony, auto theft as a Level 6 felony, theft as a Class A misdemeanor, possession of marijuana as a Class B misdemeanor and four counts of invasion of privacy, each as a Class A misdemeanor. Finds McDaniel’s convictions for both robbery and battery do not violate double jeopardy. Also finds the Tippecanoe Superior Court did not err in its jury instructions. Finally, finds sufficient evidence was presented to support McDaniel’s conviction for robbery.

Alvin D. Allen v. State of Indiana (mem. dec.)
84A04-1702-CR-406
Criminal. Affirms Alvin Allen’s sentence to an aggregate of 20 years for his convictions of Level 2 felony dealing in methamphetamine, Level 4 felony dealing in methamphetamine and Level 6 felony theft of a firearm. Finds Allen’s sentence is not inappropriate in light of the nature of the offenses and his character.

Clarel Strausburg and Kandy Strausburg v. Town of Bryant (mem. dec.)
38A02-1702-SC-329
Small claims. Affirms the Jay Superior Court’s ruling in favor of the town of Bryant on its small claims complaint against Clarel and Kandy Strausburg. Finds the trial court did not inappropriately raise the affirmative defense of exhaustion of administrative remedies on behalf of the town, but instead examined the relevant ordinances.

Edward Chandler v. State of Indiana (mem. dec.)
49A04-1702-CR-245
Criminal. Affirms Edward Chandler’s sentence to six years for his conviction of Level 5 felony robbery. Finds Chandler’s sentence was not inappropriate based on the nature of the offense and his character.

Ronnell Roberts v. State of Indiana (mem. dec.)
09A05-1702-CR-283
Criminal. Affirms Ronnell Roberts’ convictions of Level 2 felony dealing in cocaine and Class A misdemeanor dealing in marijuana. Finds Roberts has failed to establish an abuse of discretion in the Cass Superior Court’s admission of evidence. Also finds the evidence is sufficient to support Roberts’ convictions.

In re the Matter of the Adoption of J.R., B.R. v. R.S. (mem. dec.)
82A01-1702-AD-321
Adoption. Affirms the grant of R.S.’s petition to adopt J.R. Finds the Vanderburgh Superior Court did not abuse its discretion in denying B.R.’s motion for continuance. Also finds the trial court did not err in determining B.R.’s consent to adoption was not required.

 

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