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Opinions Aug. 17, 2017

August 17, 2017

The following Indiana Court of Appeals opinions were posted after IL deadline Wednesday:
Robert Bowman, Tommy Maurry, and Jacob Murphy, et al. v. State of Indiana
49A02-1606-MI-1463
Miscellaneous. Reverses the Marion Superior Court’s order granting the state’s motion to transfer approximately $30,000 to the United States. Finds the seizure of the money exceeded the scope of the search warrants, so the seizure was unlawful and the money may not be overturned to the federal government. Remands with instructions to order the return of the money to Jacob Murphy, Robert Bowman and Tommy Maurry.

In Re: the Guardianship of J.P.F., K.B.F., and B.M.F., Heather-Su Sheets v. Jessica M. Forrester and Michael A. Forrester (mem. dec.)
76A03-1702-GU-305
Guardianship. Affirms the Steuben Circuit Court’s order terminating Heather-Su Sheets’ guardianship over her grandchildren, J.F., K.F. and B.F. Finds the trial court did not err by denying a motion to appoint a guardian ad litem. Also finds the trial court did not apply an incorrect burden of proof, and its findings support its judgment. Finally, finds the trial court did not err by allowing Jerrica and Michael Forrester to decide where the children would live after the guardianship was terminated.

Thursday opinions
7th Circuit Court of Appeals
Wine & Canvas Development, LLC, Anthony Scott, Tamara McCracken, and Donald McCracken v. Christopher Muylle, Theodore Weisser, YN Canvas LLC d/b/a Art Uncorked, Art Uncorked, LLC and Weisser Management Group, LLC
15-2088 and 15-3658
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the verdict in favor of Christopher Muylle on Wine and Canvas Development LLC, Anthony Scott, Tamara McCracken and Donald McCracken’s trademark infringement and false designation of origin claims and on Muylle’s abuse of process counterclaim. Finds the district court did not abuse its discretion in sanctioning the plaintiff-appellants or in admitting statements Scott made to Muylle during settlement negotiations. Also finds Muylle established implied consent to use the Wine & Canvas trademark and that he was entitled to summary judgment on the unfair competition claim. Finally, finds the district court did not err in its award of attorney fees to Muylle.

Indiana Court of Appeals
Troy Shaw v. State of Indiana
02A03-1312-CR-505
Criminal. Affirms the Allen Superior Court’s decision to allow the state to amend the charging information against Troy Shaw 17 months after the omnibus date. Finds the trial court did not err when it allowed the state to amend the charging information.

Earl D. Hammond v. State of Indiana
20A03-1612-CR-2948
Criminal. Affirms Earl D. Hammond’s conviction of Class B misdemeanor possession of marijuana. Finds Hammond was not in police custody when he consented to a warrantless search, so he was not entitled to a Pirtle advisement or to an attorney. Also finds the search was constitutional. Finally, finds the Elkhart Superior Court did not abuse its discretion in admitting marijuana found in the search.

DSA Property, LLC, and HJA Property, LLC v. Old National Bank (mem. dec.)
41A01-1610-PL-2252
Civil plenary. Affirms and reverses in part the grant of summary judgment to Old National Bank on the bank’s complaint and DSA Property LLC and HJA Property LLC’s counterclaim. Finds the Johnson Superior Court properly granted the bank’s motion for summary judgment. Reverses and remands for a recalculation of the amount owed to the bank.

Brian Clinton Judd v. State of Indiana (mem. dec.)
48A02-1611-CR-2726
Criminal. Affirms the Madison Circuit Court’s imposition of five years of Brian Judd’s previously suspended sentence following revocation of his probation. Finds there was sufficient evidence for the trial court to find the syringe was Judd’s, and the trial court properly exercised its discretion in ordering Judd to serve five years of his previously suspended sentence.

Wilhelm Construction, Inc. and J.C. Ripberger Construction Corporation v. Secura Insurance, a Mutual Company and Davenport Masonary, Inc. (mem. dec.)
49A02-1604-CT-811
Civil tort. Grants rehearing for the limited purpose of explicitly stating that the Indiana Court of Appeals affirms the Marion Superior Court’s determinations that Wilhelm Construction Inc. did not qualify as an additional insured under the additional insured provision of the Secura Insurance policy and that Secura does not owe a defense and indemnity to Ripberger Construction Co. because Ripberger failed to satisfy the conditions precedent to coverage as set forth in the Secura policy. Denies rehearing on all other issues.

L.R. v. G.R. (mem. dec.)
49A02-1608-DR-1827
Domestic relation. Vacates the portion of a dissolution order terminating the home-schooling of L.R.’s three children. Affirms the order in all other respects. Finds L.R. has not shown the Marion Superior Court erred in ordering a three-month period of counseling. Also finds the trial court improperly restricted L.R.’s authority to make educational decisions for the children because the trial court did not make specific findings required by Indiana Code 31-17-2-17. Remands for further proceedings.

Tiara White v. State of Indiana (mem. dec.)
49A02-1702-CR-244
Criminal. Affirms Tiara White’s conviction of possession of a narcotic drug as a Level 4 felony. Finds the Marion Superior Court did not abuse its discretion in admitting evidence procured during a residential search. Also finds there is sufficient evidence supporting White’s conviction.

Perpetual Wambugu, as Personal Representative of the Estate of Kelvin Mwangi, et al. v. Palmer Funeral Homes, Inc. (mem. dec.)
71A03-1609-CT-2255
Civil tort. Affirms the judgment in favor of Palmer Funeral Homes Inc. on Perpetual Wambugu and John Mwangi’s claims for negligent and intentional infliction of emotional distress that resulted from viewing the remains of Kelvin Mwangi. Finds Wambugu and Mwangi waived their argument as to the admission of evidence of intervening cause by failing to object at trial. Also finds that waiver notwithstanding, the St. Joseph Superior Court properly instructed the jury on intervening cause.

Maddox Macy v. State of Indiana (mem. dec.)
12A02-1703-CR-440
Criminal. Affirms Maddox Macy’s convictions of dissemination of matter harmful to minors as a Level 6 felony and distribution or exhibition of obscene matter as a Class A misdemeanor. Finds the evidence is sufficient to support Macy’s convictions.

Vincent Battle v. State of Indiana (mem. dec.)
71A03-1703-CR-688
Criminal. Affirms Vincent Battle’s conviction for battery as a Level 6 felony. Finds Battle has not demonstrated an abuse of the St. Joseph Superior Court’s admission of evidence. Also finds sufficient evidence supports Battle’s conviction.

Emmett L. Waltz, III v. State of Indiana (mem. dec.)
02A03-1702-CR-263
Criminal. Affirms Emmett Waltz III’s conviction of Level 6 felony strangulation. Finds Waltz has waived his appellate challenge to a detective’s testimony regarding cycles of domestic violence and the percentage of victims who recant in domestic abuse cases by failing to object. Also finds the evidence presented at trial and the inferences drawn therefrom were sufficient for a reasonable jury to conclude that Waltz impeded Melanie Bell’s breathing when he shoved his fingers down her throat.

 

 

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