Indiana Court Decisions – Aug. 2-15, 2017

August 23, 2017

7th Circuit Court of Appeals

Aug. 4

Criminal – Sex Trafficking

United States of America v. Douglas D. Jackson


The 7th Circuit Court of Appeals has vacated part of a man’s convictions for his involvement in a juvenile sex trafficking scheme, finding the statute under which he was convicted is unconstitutionally vague.

In May 2014, Jackson, who was then 25 years old, met 15-year-old J.T. and told her he was 17. Jackson asked J.T. if she wanted to make some money, then began paying for to alter her appearance and placing ads on the website Backpage.com

The ad listed a phone number of a prepaid flip phone Jackson had purchased, and he and J.T. used the phone to text customers, who paid $150 for 30 minutes with J.T. or $200 for an hour. The pair travelled from South Bend to Atlanta, Louisville and Grand Rapids, Michigan to meet customers.

While in Grand Rapids, police officers were conducting a routine patrol in an area known for prostitution when they saw J.T. leave the car with her underwear exposed and Jackson reaching into the floorboard of the vehicle. One of the officers shined a light into Jackson’s car and discovered a firearm, which he had a permit for.

Jackson was then arrested and J.T. was taken into custody. After J.T. admitted that she was engaged in prostitution, Jackson was charged by complaint with two counts of sex trafficking a minor. He was later indicted on several other counts, including one count of possession of a firearm during a crime of violence, namely, sex trafficking under 18 U.S. Code section 924(c), among others.

A jury found Jackson guilty as charged, but he moved under Federal Rule of Criminal Procedure 29 for acquittal of the charge under section 924(c), arguing that statute was unconstitutionally vague. The statute defines a “crime of violence” as a felony that, among other standards, “involves a substantial risk that physical force … may be used in the course of committing the offense.” That language, Jackson said, was subject to the same deficiencies that led to the invalidation of the residual clause Armed Career Criminal Act in Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 (2015).

The U.S. District Court from the Northern District of Indiana disagreed and denied Jackson’s motion. The court then determined his offense level should be increased by two levels because he was a manager or supervisor in the offense and another two levels because he falsely claimed ignorance of the prostitution.

Jackson was sentenced to 295 months, but on appeal he once again argued his conviction under section 924(c) must be vacated due to unconstitutional vagueness. The 7th Circuit Court of Appeals agreed, with Judge Ilana Rovner writing that Johnson has since been extended in United States v. Vivas-Ceja, 808 f.3d 719, to hold section 924(c)(3)(B) unconstitutionally vague. Based on the holding in Vivas-Ceja, that identical language of 18 U.S.C. section 16(b) was unconstitutionally vague, the court held in United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), that section 924(c) is also vague.

“We acknowledge that the case for distinguishing section 924(c)(3)(B) is not altogether unconvincing, but conclude that, unless we hear differently from the Supreme Court in (Sessions v. Dimaya, No. 15-1498), stare decisis and our recent precedents compel the conclusion that section 924(c)(3)(B) is unconstitutionally vague,” Rovner wrote.

The 7th Circuit vacated Jackson’s conviction under that statute, and also found the district court erred by enhancing his offense level as a manager or supervisor, because the victim of a crime cannot be a “participant.” Thus, the case was remanded for resentencing without the adjustment.

Criminal – Stun Belt

John M. Stephenson v. Ron Neal


A man convicted in a triple homicide and subsequently sentenced to death will get a new sentencing hearing after the 7th Circuit Court of Appeals determined the fact he was wearing a stun belt during the penalty phase of his trial may have impacted his jury.

In 1996, John Stephenson was charged in Indiana with the murders of three people riding in a truck and related crimes, including theft of ammunition for the type of rifle used in the murder. The ammunition was stolen from one of the victim’s trailer, and spent shell casings found at the murder site also matched those taken from the trailer.

After an eight-month trial, Stephenson was convicted and sentenced to death. The Indiana Supreme Court affirmed that sentence and the denial of post-conviction relief, leading Stephenson to seek federal habeas relief in the U.S. District Court for the Northern District of Indiana.

Stephenson prevailed on that motion, with the judge determining he had been denied the effective assistance of counsel when his attorney failed to object to his being forced to wear a stun belt in the courtroom. The district court vacated Stephenson’s conviction and sentence, but the 7th Circuit Court of Appeals reversed and remanded, determining that “the question of prejudice from Stephenson’s having been required to wear the stun belt at the penalty hearing will require the further consideration of the district court on remand.”

On remand, the district judge determined Stephenson was not prejudiced by his counsel’s failure to object to him wearing the stun belt, so he appealed again.

In the opinion, Judge Richard Posner wrote evidence existed that might have convinced a jury to acquit, such as testimony that another man, Brian Mossberger, had left his home on the night of the murders to chase a truck and had returned claiming he had “got them.” But such evidence suffers from contradictions and credibility issues, Posner wrote, so it fails to establish Stephenson’s innocence.

Stephenson further argued that he was denied an impartial jury due to the fact that the foreman knew one of the victim’s sisters and that two other jurors had been discussing Stephenson’s participation in a prior bar fight. But considering that the jury was given eight months’ worth of evidence, there is no reason to overturn the Indiana Supreme Court’s determination that Stephenson was not prejudiced at the guilt phase, Posner wrote.

However, Posner went on to write that the jurors’ ability to see the stun belt during the penalty phase could have been construed as evidence that he was violent and worthy of the death penalty. Thus, the 7th Circuit reversed the denial of Stephenson’s petition for habeas corpus and remanded the case with directions to vacate his sentence. The state may choose to once again seek the death penalty and hold a new penalty hearing without the stun belt, or seek a lesser sentence and hold the hearing before a judge.

Indiana Court of Appeals

Aug. 3

Civil Collection – Third-Party Beneficiaries

Ardis W. Tucker, Sr. and Sandra D. Tucker v. Tom Raper, Inc. and Clarke Power Services, Inc.


Although a couple alleging they were third-party beneficiaries to two contracts did not plead the existence of written contracts, the allegations were based on an oral contract and were sufficient to carry their case, the Indiana Court of Appeals ruled.

The case began in August 2012, when the RV owned by Ardis and Sandra Tucker was damaged by lightning. The Tuckers reported the damage to American Family Insurance, which in turn contacted Tom Raper Inc. to discuss repairs.

The RV was delivered to Raper’s facility, where it was inspected for damages. Raper also delivered the RV to Clarke Power Services Inc. to address damage to the transmission. Both Raper and Clarke submitted repair estimates to American Family, which accepted both estimates.

Then, while under Clarke’s care and control in 2014, the RV was damaged in a vehicle collision. Raper agreed to repair the damage, but when the RV was returned to the Tuckers, they discovered there were still existing electrical issues.

The couple returned the RV to Raper, which discovered the batteries had been hooked up backwards, causing additional electrical damage that the RV dealer agreed to fix. However, Raper had failed to repair the electrical issues by July 2015, causing American Family to declare it a total loss.

The Tuckers then filed a complaint against Raper and Clarke in June 2016, alleging the couple was a third-party beneficiary to contracts between American Family and Raper, and American Family or Raper and Clark, and that Raper and Clark had each breached those contracts. The couple also alleged gross negligence against Raper.

Both Clarke and Raper moved to dismiss, asserting the Tuckers’ allegations of third-party beneficiaries must be founded in a written contract, which was not attached to the complaint. The Wayne Circuit Court ordered the Tuckers to file an amended complaint that included a contract, but when the couple filed its amended complaint adding additional counts, it did not attach the written contract.

The trial court dismissed their lawsuit and denied a motion to correct error, prompting the instant appeal. The Indiana Court of Appeals reversed the dismissal, disagreeing with the defendants’ argument that the case of Cain v. Griffin, 849 N.E.2d 507, 514 (Ind. 2006) requires a written contract to bestow rights upon a third party.

“The language from Cain cited by Raper and Clarke directs a court, where there is a written contract, to focus on the parties’ intent and whether the contract manifests a clear intent to impose an obligation on a contracting party for the benefit of a third party,” Judge Margret Robb wrote. “… But nothing from Cain or this language, or other authorities cited by Raper or Clarke, forecloses the possibility that two or more parties may orally contract with the intent to benefit a third party.”

Although the Tuckers did not plead the existence of a written contract, their allegations “can be reasonably construed as based on oral contracts,” Robb continued. Thus, the trial court’s dismissal of their complaint was reversed and the case was remanded for further proceedings.


Aug. 4

Criminal – Serious Violent Felon

Arrion Walton v. State of Indiana


An Indiana trial court did not err in convicting a man on multiple counts of being a serious violent felon in possession of a firearm because existing Indiana case law allows multiple SVF convictions for each firearm that is possessed, a divided Indiana Court of Appeals ruled Friday.

Arrion Walton sold drugs to a confidential informant with the Tippecanoe County Drug Task Force on five separate occasions. Then, police conducted searches on two apartments Walton was renting in the same building and found cocaine and multiple handguns.

Walton was then charged with five counts of dealing in cocaine related to the five controlled buys, as well as the lesser-included offense of possession of cocaine. Walton was charged with six additional counts related to the search of his apartments, including felony dealing in cocaine – possession with intent to deliver, felony possession of cocaine and two counts unlawful possession of a firearm by a serious violent felon, among other counts. Walton was also accused of being a habitual offender based on prior convictions.

After being found guilty as charged, Walton was sentenced to 34 years for the convictions related to the controlled buys and 30 years for those related to the searches, for an aggregate of 64 years. Walton appealed, arguing that his two serious violent felon convictions violate double jeopardy protections under Article 1, Section 14 of the Indiana Constitution.

But Indiana Court of Appeals Chief Judge Nancy Vaidik, writing for the majority, pointed out one of Walton’s SVF convictions was based on the handguns found in the upstairs apartment, while the other was based on the handgun found downstairs. Thus, his double jeopardy claim fails, Vaidik wrote, relying on the case of Taylor v. State, 929 N.E.2d 912 (Ind. Ct. App. 2010).

However, in a dissenting opinion, Judge Mark Bailey wrote the SVF statute, Indiana Code 35-47-4-5, is ambiguous in that it does not expressly say whether separate convictions for possession of each firearm is permitted. Thus, Bailey said he would interpret the statute so that the phrase “possesses a firearm” means that the possession of multiple firearms amounts to one offense.

“Here … the legislature did not provide for elevation of the instant offense based on the quantity of firearms in possession, just as the legislature did not elevate the offense of underage possession of alcohol based on the quantity possessed,” Bailey wrote. “Yet, just because the legislature created an elevation framework for certain offenses and not for other offenses, it does not necessarily follow that, here, the legislature intended to create a distinct punishable offense for each item of contraband.”

Vaidik, however, rejected the notion that Taylor was wrongly decided and instead wrote that if the General Assembly “had intended to allow only a single possession conviction regardless of the number of firearms possessed, it could have used the phrases ‘possesses one or more firearms’ or ‘possesses any firearm.’”

The majority then went on to find, sua sponte, that Walton’s convictions of dealing in cocaine with intent to deliver and possession of cocaine cannot both stand because “a defendant cannot be convicted on two counts of drug possession based on two quantities of drugs simultaneously possessed in two closely related locations.” Thus, the majority remanded the case to the trial court to vacate the possession conviction.

Further, the majority agreed that running Walton’s sentences related to the controlled buys and apartment searches consecutively is inappropriate, as the additional drug-related convictions are supported by evidence from the controlled buys. Thus, the majority remanded the case for the imposition of a 42-year sentence – 34 years on a Level 2 felony dealing count and eight years on the SVF counts, with all other sentences running concurrently.

Bailey wrote in his dissent that he would instruct the trial court to vacate the lesser-included offenses due to errors, but agreed the drug-related sentences should run concurrently. However, Bailey also wrote he would defer to the trial court to determine resentencing.


Aug. 10

Civil Plenary – Taxes/Annexation

City of Fort Wayne v. Southwest Allen County Fire Protection District and Tera K. Klutz, in her official capacity as Auditor of Allen County, Indiana


An Indiana trial court has jurisdiction to hear a dispute between Allen County fire departments that is grounded in both annexation and tax law as the facts of the case do not require the interpretation of “substantive tax law,” the Indiana Court of Appeals has ruled.

Beginning in December 1987, the city of Fort Wayne began a series of 15 annexations formerly located within the jurisdiction of the Southwest Allen County Fire Protection District. Once the annexations were in effect, the Fort Wayne Fire Department began providing fire protection services to the annexed territories, though it continued working collaboratively with SWFD.

However, even after the annexations took effect, neither the city nor Fort Wayne Fire received any distribution of property tax revenue related to fire services in the annexed areas. Instead, Auditor Tera Klutz continued to distribute those revenues to SWFD.

The city sent a letter to SWFD and Klutz informing them that pursuant to Indiana Code 36-8-11-16 and -22, the tax proceeds from the annexed areas should be redirected to the municipal fire protection funds. However, based upon a 1988 unofficial advisory letter from the Office of the Indiana Attorney General, Klutz believed that SWFD was grandfathered in to receive the revenue from the annexed districts. Specifically, the unofficial letter advised the city could not tax the annexed areas in order to avoid double taxation.

The city filed a complaint for declaratory and other relief against SWFD and the auditor in May 2016, seeking a declaration that the municipality is entitled to the challenged property tax revenues. However, Allen Superior Judge Craig J. Bobay granted a motion to dismiss the city’s complaint last December, finding the issues raised should be resolved by the Department of Local Government Finance and the Indiana Tax Court.

The city challenged that decision in oral arguments before the Indiana Court of Appeals in late July, with attorney James Fenton telling the court the city’s complaint was grounded in annexation, not tax, law, thus giving the trial court jurisdiction to decide the case. The appellate panel unanimously agreed, with Judge Patricia Riley writing the facts of the case do not require consideration of “substantive tax law.”

“No calculation to determine a specific tax assessment must be made, and no interpretation of tax laws is required,” Riley wrote. “Rather, the City’s dispute merely centers on the intended recipient of taxes already assessed and collected, pursuant to I.C. section 36-8-11-22. This is not ‘quintessentially (a) tax matter.’”

“Although annexation invariably affects the allocation of tax revenue among units of government within the annexed area, it does not automatically follow than an action for a declaratory judgment with respect to an annexation statue arises under Indiana tax law and involves a dispute as to the interpretation of a tax law,” Riley continued. “… A trial court is not ousted of its jurisdiction to interpret I.C. section 36-8-11-22, an annexation statute, merely because the Auditor and DLGF have exclusive responsibility for calculating the allocation of tax revenue within the Annexed Territories.”

The Allen Superior Court’s dismissal of the city’s complaint was reversed, and the case was remanded for further proceedings under the trial court’s jurisdiction.

Miscellaneous – Gender Marker/Name Change

In re the Name Change of A.L. and In re the Name Change of L.S.


Transgender individuals in Indiana seeking to change their gender markers on their birth certificates are not required under Indiana law to publish notice of their intent to change, as there is currently no statutory authority requiring such notice, the Indiana Court of Appeals ruled.

That decision stems from an appeal filed by A.L. and L.S., transgender men who are working with counselors and medical professionals as they transition from female to male. A.L. has been living as a man for two years and has had related medical procedures, while L.S. has been living as a man for most of his life, but full time for the last four years.

In May 2016, A.L. filed a petition for a name change, published his intent to change his name in a newspaper, and was then granted the ability to change his name. He also requested to change the gender marker on his birth certificate, but the Tippecanoe Circuit Court told him to also publish that intent in a newspaper.

A.L. filed a motion to correct error, arguing the requirement for him to publish notice of his intent to change his gender marker was contrary to Indiana law. The trial court, however, denied his petition unless he would provide proof of publication.

Specifically, the trial court found that not requiring a notice for a legal gender marker change could increase the number of individuals seeking multiple gender changes in order to avoid creditors or “other aggrieved parties.” Thus, the protocol for obtaining a gender marker change should follow that of obtaining a name change, the court held.

Similarly, L.S. filed a petition for change of name and gender in September 2016 and requested a waiver of publication and a sealed record, as well as an exclusion of confidential information pursuant to Indiana Administrative Rule 9(G)(5). The trial court denied the motion to proceed under Administrative Rule 9 and instead ordered L.S. to publish his intent to change name and gender marker in a newspaper, repeating much of the same logic used in A.L.’s case.

In regard to L.S.’s Administrative Rule 9 argument, the court found he had not presented evidence to show that he would be subject to a greater risk of violence or harassment if the case proceeded publicly. However, the court noted that both L.S. and A.L.’s petitions were made in good faith and not for fraudulent or unlawful purposes, which was the standard laid out in the case of In re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014).

The trial court did not rule on L.S.’s petition, so he filed for interlocutory appeal. A.L. also appealed, and both cases were consolidated.

In the opinion, COA Judge John Baker first noted there is no statutory requirement for publication of an intent to change a gender marker, so it was erroneous for the trial court to impose the same standards for a name change on a gender marker change petition.

“Unless and until the General Assembly crafts specific requirements regarding gender marker changes, this Court’s common sense standard in Birth Certificate is the bar that must be met,” Baker wrote. “Thus, a gender marker change petitioner needs to establish that the petition is made in good faith and not for a fraudulent or unlawful purpose.”

Because both A.L. and L.S. met that standard, the trial court should have granted their petitions for gender marker change, Baker said. The case was reversed on that issue and remanded with instructions to grant both petitions and directing the Indiana State Department of Health to amend both birth certificates to reflect the male gender.

Further, the appellate court also found L.S. established that publication of his intent to change his name would create a significant risk of substantial harm, as he presented sufficient evidence concerning violence against transgender people in the country, state and his local community. Thus, under the exceptions to the publication requirement in Administrative Rule 9(G), the appellate court remanded the case with instructions to ensure the record in L.S.’s case remains sealed and for consideration of his name change petition.•


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