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Opinions Jan. 31, 2018

January 31, 2018

Indiana Court of Appeals
J.G. v. State of Indiana

49A02-1706-JV-1419
Juvenile. Affirms J.G.’s adjudication as a delinquent for dangerous possession of a firearm, a Class A misdemeanor if committed by an adult. Remands with instructions to vacate the true finding against J.G. of carrying a handgun without a license, a Class A misdemeanor if committed by an adult. Finds J.G.’s detention by police was constitutional and his confession to possessing the handgun was voluntary. Also finds the Marion Superior Court presumably disregarded inadmissible portions of an audio recording. Finally, finds the true finding for carrying a handgun without a license must be vacated on double jeopardy grounds.

Estate of Carrie Etta Mills McGoffney v. Anonymous Skilled Nursing Facility
49A02-1707-MI-1657
Miscellaneous. Affirms the denial of the Estate of Carrie Etta Mills McGoffney’s motion to correct errors and an order affirming the prior dismissal of the estate’s second amended proposed complaint in favor of Anonymous Skilled Nursing Facility. Finds the Marion Superior Court did not err or abuse its discretion.
 
Brent Orange v. Indiana Bureau of Motor Vehicles
29A02-1707-MI-1549
Miscellaneous. Affirms the denial of Brent Orange’s petition for specialized driving privileges. Finds as an issue of first impression that Indiana Code section 9-30-16-3 does not require trial courts to hold a hearing prior to making a decision on a petition for specialized driving privileges. Also finds the trial court did not err when it did not hold a hearing because Orange’s petition did not assert any claims of merit. Finally, finds the trial court did not abuse its discretion when it denied Orange’s petition for specialized driving privileges.
 
In the Matter of the Guardianship of Nathaniel C. Hurst, Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst v. Nathaniel C. Hurst
45A03-1612-GU-2790
Guardianship. Grants the petition for rehearing, vacates its earlier decision and dismisses the instant appeal. Finds the Indiana Supreme Court’s opinion in Town of Ellettsville v. DeSpirito, 87 N.E.3d 9 (Ind. 2017), holds the proper remedy for a premature notice of appeal from an order that has not been made final is to dismiss the appeal. Remands to the trial court for further proceedings.

In Re: The Paternity of I.I.P.: Kailei L. Poteet v. Justin Rodgers and Nathan T. Poteet
63A01-1706-JP-1265

Juvenile paternity. Reverses the dismissal of Kailei L. Poteet’s petition to establish paternity of her child. Finds Nathan T. Poteet, the legal father, was not entitled to judgment as a matter of law. Remands for further proceedings. Judge John Baker dissents with separate opinion.
 
George F. Hauk, IV v. State of Indiana (mem. dec.)
70A01-1710-CR-2455
Criminal. Affirms the revocation of George F. Hauk IV’s probation and order for him to serve his four-year sentence in the Indiana Department of Correction. Finds Hauk’s contention that the state failed to present sufficient evidence to prove that he committed rape while on probation was without merit.

In the Matter of the Termination of the Parent-Child Relationship of A.G. (Child) and J.B. (Father); J.B. (Father) v. The Indiana Department of Child Services (mem. dec.)
55A01-1710-JT-2323
Juvenile termination of parental rights. Affirms the involuntary termination of J.B.’s parental rights to A.G. Finds the Morgan Circuit Court’s unchallenged findings supported its conclusion that the conditions under which A.G. was removed would not be remedied.

Carpenter Realtors and Susan Hodges v. John Watkin and Susan Watkin (mem. dec.)
41A05-1706-PL-1286
Civil plenary. Affirms the judgment holding Carpenter Realtors liable to John and Susan Watkin for breach of contract. Finds the Johnson Superior Court did not err.

David R. Deel v. State of Indiana (mem. dec.)
59A01-1704-CR-939
Criminal. Affirms David R. Deel’s convictions of Level 2 felony dealing in methamphetamine, Level 6 felony maintaining a common nuisance, Class B misdemeanor possession of marijuana and the finding that he was a habitual offender. Remands with instructions to vacate Deel’s conviction of Level 3 felony possession of meth based on double jeopardy principles. Finds a substantial basis supports the Orange Circuit Court’s finding of probable cause for a search warrant under the Fourth Amendment. Also finds the totality of the circumstances supports the officers’ execution of the search warrant under Article I, Section 11 of the Indiana Constitution.

In the Matter of the Termination of the Parent-Child Relationship of A.A.D. and A.C.D.; E.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)
79A05-1708-JT-1949
Juvenile termination of parental rights. Reverses the termination of E.B.’s parental relationship with her children, A.A.D. and A.C.D. Finds the Tippecanoe Superior Court committed reversible error when it failed to ensure the appointment of a court-appointed special advocate to represent the interests of the children in the termination hearing, as required under Indiana Code section 31-35-2-7. Remands with instructions for the trial court to ensure the appointment of a CASA. Judge Mark Bailey concurs with separate opinion.

Richard A. Cope v. State of Indiana (mem. dec.)
46A05-1707-CR-1674
Criminal. Affirms the order of restitution against Richard A. Cope and his sentence to an aggregate of four years for his conviction of intimidation as a Level 6 felony, torturing or mutilating a vertebrate animal as a Level 6 felony and animal neglect/abandonment as a Class A misdemeanor. Finds the LaPorte Superior Court did not abuse its discretion in ordering Cope to pay restitution. Also finds Cope has not sustained his burden of establishing his sentence is inappropriate in light of the nature of the offenses and his character.

J.M. v. State of Indiana (mem. dec.)
02A04-1708-JV-1976
Juvenile. Affirms J.M.’s commitment to the custody of the Indiana Department of Correction after a violation of probation. Finds the juvenile court did not abuse its discretion.

Amir Basic, et al. v. Mohammad Alsam Chaudhry, et al. (mem. dec.)
71A03-1707-PL-1573
Civil plenary. Affirms the award of $16,860.45 in attorney fees to the Imam of the Islamic Society of Michiana and the members of its boards of directors and trustees. Finds the St. Joseph Superior Court did not abuse its discretion in quashing subpoenas. Also finds there was sufficient evidence to support the amount of the attorney fee award.
 
Tommie R. Shelton v. State of Indiana (mem. dec.)
49A05-1708-CR-1878
Criminal. Affirms Tommie Shelton’s conviction of Level 5 felony battery resulting in injury to a person less than 14 years of age. Finds the state presented sufficient evidence to rebut Shelton’s defense that his actions were protected by parental privilege.
 
Donald G. Karr, Jr. v. State of Indiana (mem. dec.)
29A02-1707-CR-1502
Criminal. Affirms Donald G. Karr, Jr.’s convictions of Level 6 felony domestic battery committed in the presence of a child less than 16 years of age and two counts of Level 3 felony rape, his sentence to an aggregate 12½ years and the denial of his petition for post-conviction relief. Finds the state presented sufficient evidence to sustain Karr’s three convictions. Also finds Karr failed to establish that the Hamilton Superior Court abused its discretion when it sentenced him. Finally, finds the trial court correctly determined Karr’s trial court did not provide ineffective assistance and did not err in denying his PCR petition.
 
Darick L. Loving v. State of Indiana (mem. dec.)
82A01-1706-CR-1416
Criminal. Affirms the denial of Darick R. Loving’s motion for discharge pursuant to Indiana Criminal Rule of Procedure 4(C). Finds the Vanderburgh Superior Court did not abuse its discretion in denying Loving’s motion.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.B. (Minor Child) and W.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)
49A02-1708-JT-1928
Juvenile termination of parental rights. Affirms the involuntary termination of W.B.’s parental rights to her minor child, C.B. Finds sufficient evidence support the Marion Superior Court’s conclusion that there is a reasonable probability of unchanged conditions, that termination of W.B.’s parental rights is in C.B.’s best interests and that the Department of Child Services has a satisfactory plan for the care and treatment of C.B.
 
B.B. v. E.W. and K.W. (mem. dec.)
53A04-1705-AD-1113
Adoption. Affirms the order determining B.B.’s consent to E.W. and K.W.’s adoption of A.B. was not required, and that the adoption was in A.B.’s best interests. Finds B.B. failed to provide A.B. with care and support for more than one year when he was able to do so. Also finds there is sufficient evidence to support the trial court’s determination that the adoption was in A.B.’s best interests.

Ronald L. Lynch v. State of Indiana (mem. dec.)
88A01-1707-CR-1583
Criminal. Affirms Ronald L. Lynch’s conviction of child solicitation as a Level 4 felony and sentence to 10 years. Finds there was sufficient evidence to support Lynch’s conviction and to rebut his claimed defense of entrapment. Also finds the Washington Circuit Court properly sentenced him.

In the Matter of the Termination of the Parent-Child Relationship of: D.W. (Minor Child) and T.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)
45A04-1705-JT-1238
Juvenile termination of parental rights. Affirms the termination of T.W.’s parent-child relationship with her daughter, D.W. Finds there is sufficient evidence to support the Lake Superior Court’s decision to terminate the parent-child relationship.

Nakomi Tamasha Neal v. State of Indiana (mem. dec.)
71A03-1708-CR-1814
Criminal. Affirms Nakomi Tamasha Neal’s sentence for his convictions of carrying a handgun without a license as a Level 5 felony and criminal recklessness as a Level 6 felony. Finds Neal’s sentence is not inappropriate in light of the nature of the offenses and his character.

 

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