Indiana Court Decisions — May 23-June 6, 2018

June 13, 2018

Indiana Supreme Court

May 24

Attorney Discipline — Disbarment

In the Matter of Fronse W. Smith, Jr.


A Mishawka attorney convicted of felony intimidation after threatening to kill his wife with an ax has been disbarred.

The Indiana Supreme Court reached that disciplinary decision May 24 in the case of In the Matter of Fronse W. Smith, Jr., 71S00-1711-DI-707, which began when Smith was on the phone with his estranged wife and threatened to “split (her) chest open with an axe” in May 2015. The wife called 911, while Smith continued to threaten her via text message and drove to her home.

Smith was attempting to enter the home when police arrived, at which point he told his wife, “Now you’ve really done it.” Police discovered an ax in Smith’s car, and he was arrested and charged with felony intimidation. Online court records show Smith was convicted in November 2015 and was given a one-year suspended sentence. The Indiana Court of Appeals upheld the Level 6 felony conviction in October 2016.

Smith’s law license has been under an interim suspension since December 2016. He was also indefinitely suspended in April 2017 for failure to cooperate with the Indiana Supreme Court Disciplinary Commission’s investigation against him, and he was administratively suspended for failure to pay dues and meet CLE requirements.

The Indiana Supreme Court wrote in its per curiam opinion that Smith violated Indiana Professional Conduct Rule 8.4(b) by “committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer.” Agreeing with Smith’s hearing officer that the incident represented “a total breakdown of self-restraint,” the justices agreed to disbar Smith, effective immediately.

“The circumstances of Respondent’s crime are profoundly troubling,” the justices wrote. “Respondent not only communicated to his wife a threat to murder her with an axe, he then immediately drove to her house with said axe and was in the process of entering her home when police arrived.”

“… We recognize that Respondent’s criminal conduct toward his estranged wife over the course of a single evening is distinguishable from the prolonged ‘scorched earth campaign’ committed by the attorney against his ex-girlfriend in (Matter of Keaton, 29 N.E.3d 103, 110 (Ind. 2015)), a distinction that prompted the hearing officer in this case to recommend a lengthy suspension rather than disbarment,” the court continued. “Nonetheless, the serious nature of Respondent’s misconduct, his resulting felony conviction, his noncooperation with the disciplinary process, and his failure to participate in these proceedings, collectively persuade a majority of this Court to conclude that disbarment is the appropriate sanction in this case.”

The order did not indicate which justice or justices may have disagreed with disbarment.

Indiana Court of Appeals

May 23

Civil Plenary — Employment/Non-Recruitment Agreements

American Consulting, Inc. d/b/a American Structurepoint, Inc. v. Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, et al.


An Indianapolis-based civil engineering firm will have the opportunity to defend its demand for liquidated damages from three employees who allegedly violated non-recruitment agreements after the Indiana Court of Appeals reversed summary judgment for the firm’s competitor. The court also upheld the denial of summary judgment to the competitor on two additional claims stemming from its alleged impermissible recruitment of employees.

After acquiring an ownership interest in his employer, American Structurepoint, Inc., in 2008, Marlin Knowles executed an employment agreement that, among other things, precluded him from recruiting ASI employees away from the company for two years. David Lancet and Jonathan Day signed similar agreements, and each were subject to a liquidated damages agreement if they breached the recruitment clauses. Another party to the instant appeal, former ASI employee Tom Mobley, was not required to execute an employment agreement.

Knowles resigned from ASI in May 2014 and began working for competitor HWC Engineering as vice president of operations. Knowles’ resignation began a series of resignations from ASI to HWC, with Knowles providing HWC with reviews of his former colleagues’ work. When Day joined HWC, he compiled a list of potential recruits from ASI, and Knowles commended him for that effort. Mobley and Lancet received HWC employment offers soon thereafter but did not immediately leave ASI.

Another ASI employee eventually informed his boss that he was being recruited to HWC, prompting an investigation that led to Mobley and Lancet’s termination from ASI. ASI then filed a complaint against HWC, Knowles, Day, Mobley and Lancet, raising numerous claims including breach of contract, liquidated damages and tortious interference, among others. The Marion Superior Court granted ASI’s motion for a preliminary injunction against Knowles, Lancet and Day, but denied the request as to Mobley. The injunction against Knowles was later dissolved, and the Indiana Court of Appeals upheld those rulings in November 2016.

HWC then moved for summary judgment, which the trial court granted on the issue of liquidated damages after finding the remedies clauses in the non-compete agreements were unenforceable penalties. But the court denied summary judgment on ASI’s claims regarding tortious interference and breach of employment.

Both parties brought interlocutory cross-appeals against those rulings, while a jury trial was set for all remaining counts. In a 43-page opinion handed down May 23, the Indiana Court of Appeals ruled against HWC on all counts.

First, the appellate court reversed summary judgment for HWC on the issue of liquidated damages, with Judge Margret Robb writing the ASI employment agreements were individually negotiated and specific to each employee, while the actual damages ASI suffered are difficult to ascertain due to the relational nature of the business.

“Whether or not the HWC Parties’ conduct caused ASI employees to leave ASI and/or ASI clients to terminate or reduce their business with ASI is a question of fact, the resolution of which will ultimately determine whether the liquidated damages set in the employment contracts are roughly proportionate to the actual damage ASI incurred by their loss as employees or clients,” Robb wrote.

But in a partially dissenting opinion, Judge Patricia Riley agreed with the trial court that the liquidated damages ASI sought — which exceeded $687,000 — were disproportionate.

“Essentially, ASI’s evidence of loss amounts to the cost of employee turnover that may be expected in any competitive market,” Riley wrote. “While I do not disagree that hiring seven new employees with the same skill set and earning potential would result in certain costs, any loss that may have resulted due to a breach of the employment contracts is clearly grossly disproportionate to the $687,351.79 sought in liquidated damages.”

The case was remanded to the trial court for proceedings with regard to liquidated damages.

But the court was unanimous in its decision to uphold the denial of HWC’s motion for summary judgment on the tortious interference and breach of employment claims, pointing to conflicting evidence over whether HWC had a legitimate business purpose that justified its recruitment of ASI employees. The court similarly found a genuine issue of material fact as to the loss ASI suffered, precluding summary judgment on the breach of employment claims.

The case is American Consulting, Inc. d/b/a American Structurepoint, Inc. v. Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet, 49A02-1611-PL-2606.

May 25

Adoption — Father’s Consent

In Re: The Matter of the Adoption of: E.M.L., (Minor) S.L. v. K.G.


A Hamilton County judge’s ruling that a father’s consent was not required for a stepfather to adopt his child was clearly erroneous, the Indiana Court of Appeals ruled May 25, reversing the adoption.

In Re: The Matter of the Adoption of: E.M.L., (Minor) S.L. v. K.G., 29A05-1710-AD-2250, involved an adoption to which father S.L. objected. He is the father of E.M.L, who was born in 2009. The family lived together for a year before mother and child moved out, according to the record.

Father subsequently ran into trouble with the law. He was convicted of dealing methamphetamine in 2013 and incarcerated for more than a year. He pleaded guilty to a domestic battery charge in 2016 after slapping a girlfriend in front of children.

Meanwhile, mother T.G. and the child’s paternal grandparents, who lived in Brown County, kept in touch, and the child often spent weekends with them. Father often would talk to his child by phone and visit when the child stayed with grandparents.

After his domestic violence incident, though, mother sought to curtail E.M.L.’s contact with S.L., and eventually, the child’s grandparents. At the same time, father had been working steadily and significantly catching up on his child support obligations.

After stepfather K.G. moved to adopt the child, father objected. At a hearing, Hamilton Superior Judge Steve Nation granted mother and stepfather’s motion to exclude father from the proceedings over father’s objection. The trial court granted the adoption petition with findings that father’s consent was not required, that father had failed to pay child support including during periods of incarceration, and that father failed to significantly communicate with his child in the year before the adoption petition was filed.

Those rulings were clearly erroneous, Judge Michael Barnes wrote for the panel.

“(T)he trial court’s decision to effectively impose a retroactive child support obligation upon Father while incarcerated put the ultimate strain upon a family relationship, as it was used as partial justification to terminate his parental rights,” Barnes wrote. “Its finding that Father’s nonpayment of support while incarcerated obviated the need for his consent to Child’s adoption is clearly erroneous, as there is insufficient evidence he had the ability to pay during that time.”

Father also should not have been penalized for child support paid through tax intercepts rather than voluntarily when he returned to work, the court ruled. “The trial court’s finding that Father knowingly failed to provide for Child’s support during this time period is clearly erroneous,” the panel held.

Regarding lack of communication, the panel noted it was mother who sought to limit communication between her child and the child’s father, so the trial court’s ruling in this instance also was clearly erroneous.

“After Father’s release from incarceration, Mother terminated the previous arrangement — in place since Child’s infancy — whereby Child frequently spent weekends with Grandmother, which facilitated visitation between Father and Child even when Mother refused to allow Child to spend time alone with Father at his own residence,” Barnes wrote. “On occasion, Father did phone Mother to attempt to arrange some communication or visitation with Child. Unfortunately, these phone calls would disintegrate into arguments when Mother insisted that Father had to, for example, undergo counseling before he could see or talk to Child.

“Mother and the trial court discounted her clear efforts to hamper communication between Child and Father by essentially claiming that he should have expended more effort to force such communication, through legal channels or by simply, for example, showing up at Child’s sporting events in Noblesville unannounced and without Mother’s invitation and in contravention of Mother’s clearly-expressed desire that Father have no contact with Child. We conclude, however, that Father’s failure to fight Mother more aggressively with respect to communicating with Child does not mean he lacked justifiable cause for failing to communicate or that he was practically able to communicate.

“Father’s parenting time rights were never curtailed by any court order. We do not wish to be overly critical of Mother’s natural desire to protect Child, and there is no question that Father has been far from an ideal parent. However, there are established legal procedures to follow if a custodial parent believes restriction or complete cessation of a noncustodial parent’s parenting time is warranted. ... Those procedures were not followed here. A custodial parent should not be able to unilaterally limit, place conditions on, or completely terminate a noncustodial parent’s parenting time, and then successfully assert in an adoption proceeding that the noncustodial parent was able to communicate with the child but failed to do so without justifiable cause.”

The adoption petition was thus reversed.

Civil Plenary/Lake Freeman Access Dispute

Patricia M. Jones v. Von Hollow Association, Inc.


A dispute over shoreline rights between a property owner and the association that controls access to part of Lake Freeman in Carroll County will go back to the trial court after the Indiana Court of Appeals granted the property partial relief.

Patricia M. Jones was locked out of an area of the shoreline she had improved on Lake Freeman by the Von Hollow Association. Her property of a little more than half an acre does not front on the lake, but she is granted access to the shore through a yearly license issued by the Shafer and Freeman Lakes Environmental Conservation Corp. Von Hollow also is issued a separate license for the same shorefront.

After a lake access dispute arose with neighbors who were members of the Von Hollow Association, the association changed the locks granting shore access in 2015 and didn’t give Jones a key to the property she’d used since 1998.

Jones sued in 2016, seeking a declaratory judgment that she had a prescriptive easement; an injunction preventing Von Hollow from obstructing or interfering with her use of the easements over the Von Hollow property; and a judgment against Von Hollow for trespass. Von Hollow counterclaimed for trespass, and Carroll Circuit Judge Benjamin Diener ruled for Von Hollow on its trespass counterclaim against Jones and denied her other claims.

The Indiana Court of Appeals reversed that decision in part May 25 in Patricia M. Jones v. Von Hollow Association, Inc., 08A02-1709-PL-2175. Writing for the panel, Judge Robert Altice reversed the trial court’s finding of criminal trespass against Jones, as well as its order directing the shorefront be licensed jointly to Jones and Von Hollow by the Shafer and Freeman Lakes Environmental Conservation Corp.

“Recognizing the discord that existed between the parties with respect to the (shorefront license) agreements and each party’s rights within the shorefront area, the trial court attempted to mitigate the situation by directing SFLECC to issue the parties joint licenses to use the area. However, SFLECC is not a party to this action,” Altice wrote. “Regardless of its good intentions, the trial court erred by directing SFLECC to issue joint licenses. We reverse the trial court’s judgment in this regard.”

The trial court properly determined that Von Hollow did not commit trespass; “however, its conclusion that Jones committed criminal trespass under Ind. Code § 35-43-2-2 is not supported by the record and is clearly erroneous,” because she had authorization to use the shoreline through her license.

“Because the trial court erred when it determined that Jones committed criminal trespass, it also erred when it concluded that Von Hollow was entitled to costs of the action and reasonable attorney fees under Ind. Code § 34-24-3-1 (pecuniary loss as a result of property offenses),” Altice wrote. “We, therefore, reverse the trial court’s judgment on this issue.”

The panel affirmed, however, that Jones did not establish a prescriptive easement over the property. The court noted such easements are disfavored in Indiana. The matter was remanded for proceedings.

May 29

Civil Tort — Negligence/Premises Liability

Jeffery Certa v. Steak ’n Shake Operations, Inc., Mikal Gillham, and Matthew Hulett


A negligence case against an Indiana Steak ’n Shake restaurant will proceed to trial after the Indiana Court of Appeals determined the restaurant owed a duty to protect one of its patrons from a third-party injury, making summary judgment inappropriate.

Jeffery Certa and Rick and Arlene Luse were at a Lafayette Steak ’n Shake in the early morning hours of May 4, 2013, when they saw a man and woman arguing in the parking lot. The man shoved the woman into a wall, so Certa stepped between them and told the man not to touch the woman. Certa then began arguing with Mikal Gillham, a woman who was with the couple, and told Certa to stay out of their business.

Certa then entered the restaurant, followed shortly by Gillham, who was joining friends who were already inside. Gillham’s aunt, Ladonna Musik, was the server working that night, and Gillham told her aunt not to allow Certa and his friends into the restaurant because she believed they had been drinking and would start a fight. Gillham and her friends had also been drinking.

Musik tried to diffuse the situation and advised her managers of the situation, and though the groups did not speak to each other, they spoke loudly about each other. Both groups then left the restaurant around the same time, and as Certa exited the building, he saw Gillham punching Arlene.

Certa ran into the restaurant and asked employees to call the police, then returned to the scene and attempted to get Gillham’s license plate number, but one of Gillham’s friends put her car in reverse and backed it over him. As a result, Certa sued multiple parties, including Steak ’n Shake, which he alleged was negligent in failing to reasonably control customers, properly train staff to handle intoxicated guests, provide proper security and call the police in a timely manner.

The Tippecanoe Superior Court initially denied Steak ’n Shake’s subsequent motion for summary judgment, but then entered summary judgment after granting a motion to reconsider. The Court of Appeals, however, reinstated the trial court’s original decision on May 29 after finding the restaurant owed a duty to Certa.

Specifically, Senior Judge Betty Barteau — relying on the analyses laid out in Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) — wrote that here, the broad type of plaintiff is a restaurant patron, and the broad type of harm is an injury caused by a third party.

“In determining the foreseeability, we are mindful that Steak ’n Shake did not have to know the precise harm that its customers would suffer, only that there was some probability or likelihood of harm that was serious enough to induce a reasonable person to take precautions to avoid it,” Barteau wrote. “…Given these circumstances, we conclude that Steak ’n Shake’s knowledge of the events on its premises in this case gave rise to a duty to take reasonable steps to provide for Certa’s safety as a patron of its establishment.”

The court remanded Jeffery Certa v. Steak ’n Shake Operations, Inc., Mikal Gillham, and Matthew Hullet, 79A05-1708-CT-1873, noting that the issues of breach of the duty to Certa and proximate cause must be resolved by a trier of fact.

May 30

Estate, Unsupervised — Motion to Amend/Timeliness

In Re the Estate of James E. Hurwich, Scott D. Hurwich v. Stacey R. MacDonald


The St. Joseph Probate Court must reopen an estate that led to years-long litigation between two siblings after the court failed to follow proper statutory procedure when closing the estate, the Indiana Court of Appeals ruled May 30.

After James Hurwich died in 2004, his daughter, Stacey MacDonald, administered the estate until it closed in 2007. However, MacDonald failed to distribute approximately 600 items from the estate, so her brother, James Hurwich, petitioned to reopen the estate in 2013.

The St. Joseph Probate Court granted Hurwich’s petition and appointed Paul Cholis as successor personal representative. Hurwich then filed a complaint against his sister in October 2014, alleging she had mismanaged the estate’s assets and breached her fiduciary duty.

MacDonald moved to dismiss her brother’s complaint as untimely, and the probate court agreed. Hurwich moved to amend his complaint in February 2016, further alleging that MacDonald committed fraud by representing that she had fully administered the estate, and that she had taken personal property for her own use. The probate court denied Hurwich’s motion to amend his complaint, finding, among other issues, that the complaint was time-barred. Cholis then distributed the assets, filed a distribution report and requested that the estate be closed. The probate court approved the report and closed the estate the same day, prompting the appeal of In Re the Estate of James E. Hurwich, Scott D. Hurwich v. Stacey R. MacDonald, 71A04-1705-EI-990.

On appeal, Hurwich first challenged the denial of his motion to amend his complaint, arguing he had a “right” to replead his claim pursuant to Indiana Trial Rule 12(B). But the Indiana Court of Appeals disagreed, with Judge John Baker writing that Rule 12(B) requires a motion for leave to amend a complaint to be filed within 10 days of service of notice of the grant of a motion to dismiss. Hurwich’s motion was filed eight months after the probate court granted MacDonald’s motion to dismiss, Baker wrote.

Hurwich also challenged the dismissal of his complaint with prejudice, and the appellate panel agreed that dismissal under Trial Rule 12(B)(6) is done without prejudice. However, Hurwich did not appeal the dismissal with prejudice — a final appealable order — until two years after the dismissal, making his appeal on that point “untimely and unavailing,” Baker said.

But the appellate court ruled in Hurwich’s favor on the second issue he raised on appeal – whether the probate court followed the proper procedure for closing the estate when it denied his statutory right to object to the distribution report. Baker pointed to Indiana Code section 29-1-16-6(b), which requires courts to set a timeframe for objections and to give notice to parties entitled to a share of the distribution when an account for final settlement is filed.

“Here, it is undisputed that Hurwich is entitled to share in the distribution of the Estate, that Cholis knew Hurwich’s name to furnish to the clerk for notice, and that Cholis did not fulfill his duties to ensure that notice was given regarding the report,” Baker wrote. “It is also undisputed that neither the probate court nor the clerk set a timeframe for objections or gave notice about the Report of the timeframe for objections. In other words, the probate court failed to follow proper statutory procedure when closing the Estate.”

The case was remanded for further proceedings.

May 31

Criminal — Syringe Possession Enhancement

Tyler Dale Knutson v. State of Indiana


A felony enhancement against a Clinton County man convicted of possessing a syringe must be dismissed after the Indiana Court of Appeals found the man’s offense is not subject to an enhancement.

In Tyler Dale Knutson v. State of Indiana, 12A04-1709-CR-2246, Tyler Dale Knutson was charged in April 2017 with unlawful possession of a syringe, a Level 6 felony under Indiana Code section 16-42-19-18. The state then separately enhanced the charge under section -27 to a Level 5 felony based on a prior conviction.

Knutson moved to dismiss the charge, arguing there were not statutory grounds to enhance it to a Level 5 felony. The Clinton Superior Court denied the motion to dismiss, but the Indiana Court of Appeals reversed.

Chief Judge Nancy Vaidik wrote for the panel that the only section in Chapter 19 that includes an offense level is the section dealing with possession of a syringe. Meanwhile, section -27, known as the general offense-level statute, lays out the grounds for when certain drug convictions can be enhanced based on prior convictions.

The panel agreed with Knutson that the general-offense level statute does not apply to the syringe statute because the former begins with the phrase “(u)nless otherwise specified,” and the latter “otherwise specifies” that the offense of possession of a syringe is a Level 6 felony.

“Thus, in back-to-back sections of the same public law, the legislature specified that it is a Level 6 felony to possess a syringe (but notably did not add offense levels to any of the other sections in Chapter 19) and then added the phrase ‘Unless otherwise provided’ to the general offense-level statute,” Vaidik wrote. “Given these back-to-back amendments, it is clear to us that the legislature did not intend for the general-offense level statute to apply to unlawful possession of a syringe.”

“… Although we can understand why the legislature might want to penalize the possession of a syringe as a Level 6 felony – which has a sentencing range of six months to two-and-a-half years … – we can see why it would not want to crowd our prisons with drug addicts by making it a Level 5 felony, which has a significantly higher sentencing range of one to six years …,” she wrote.

The case was remanded with instructions for the trial court to dismiss the Level 5 felony enhancement.

Agency Action — Utility Rate Increase

NIPSCO Industrial Group v. Northern Indiana Public Service Company and Office of the Utility Consumer Counselor


The Indiana Utility Regulatory Commission relied on the wrong metrics to calculate a rate increase passed on to large industrial users, the Indiana Court of Appeals ruled May 31, reversing the rate hike.

Northern Indiana Public Service Company supplies electric and natural gas service to more than 460,000 customers in northern Indiana, including the NIPSCO Industrial Group, which represents a group of five of NIPSCO’s largest industrial customers. NIPSCO Industrial Group sued the utility after a rate increase was approved by the IURC last year. The increase was based on a total load calculation — which includes interruptible service users may opt for — rather than a firm load basis, the cost of more reliable and uninterruptable service.

The COA sided with industrial users who challenged the rate increase in NIPSCO Industrial Group v. Northern Indiana Public Service Company and Office of the Utility Consumer Counselor, 93A02-1711-EX-2735.

The IURC’s rate-increase ruling, Judge Patricia Riley wrote for the panel, “failed to comply with Indiana Code section 8-1-39-9(a)(1), which requires allocation of rate adjustment to be based on firm load, by approving NIPSCO’s computation which utilized an allocation based on total load.

“We conclude that the Commission exceeded its statutory authority by allowing a rate adjustment based on allocation factors computed on total load.”

Juvenile CHINS — Evidence

In the Matter of: Ad.M., An.M., and S.M. (Minor Children); A.M. (Mother) v. Indiana Department of Child Services


The Indiana Court of Appeals reversed a trial court’s adjudication of children in need of services, finding the mother’s struggle for stable housing and her positive drug tests did not meet the Indiana Supreme Court’s standard that the children were seriously endangered.

The Indiana Department of Child Services investigated the family after receiving a report of the children being present during a domestic dispute and living in a house with drugs. DCS workers learned the mother, who told them she was an attorney, knew marijuana plants were in the home. DCS also noted the condition of house was “terrible,” with no drinking water and an inoperable toilet. Also, two of the children were having to sleep on uninflated air mattresses.

While DCS was assessing the family, the mother and children moved into the home of the father’s mother. However, when the DCS worker attempted to put a safety plan in place to protect the children from domestic violence, the mother became angry. Then DCS offered resources such as food stamps, but the mother said she didn’t need those things because she was an attorney.

A short time later, the mother and her children moved back into their trailer which on a second visit, DCS found had been cleaned. But the mother then failed two drug tests, testing positive for marijuana.

Lake Superior Court authorized services for the mother and adjudicated the children to be CHINS.

The Court of Appeals reversed, ruling DCS did not meet its burden of demonstrating the mother’s actions or inactions seriously endangered her children.

The unanimous panel noted DCS filed the CHINS petition when mother was struggling to find a place to live and was a victim of domestic violence. However, she has since found housing and filed a protective order against the father.

In addition, DCS did not present any evidence that the children were endangered by the presence of marijuana or their mother’s use of the drug.

“We acknowledge that the ‘CHINS statues do not require the juvenile court and DCS to wait until a child is physically or emotionally harmed to intervene,’” Judge Edward Najam, Jr., wrote, quoting from the state’s brief. “But the CHINS finding must be based on facts. And it was DCS’s burden to prove that Mother’s actions or inactions have seriously endangered the Children. Here, DCS did not present any evidence that the Children’s physical or mental conditions were seriously impaired or endangered as a result of Mother’s actions or inactions.”

The case is In the Matter of: Ad.M., An.M., and S.M. (Minor Children); A.M. (Mother) v. Indiana Department of Child Services, 45A04-1711-JC-2634.

Criminal — Infraction/Windshield Obstruction Statute

John W. Anthony v. State of Indiana


A man’s infraction conviction for violating a windshield-obstruction law was thrown out May 31 by the Indiana Court of Appeals, which held that the plain meaning of the statute meant he couldn’t be convicted despite trash, clothes, food and other items piled from the floor to the ceiling of his vehicle.

John W. Anthony represented himself at a Marion Superior bench trial, where he was convicted and fined for violating Indiana Code section 9-19-19-3, which prohibits driving “with a sign, poster, sunscreening material, or other nontransparent material upon the front windshield, side wings, or side or rear windows of the vehicle that obstructs the driver’s clear view of the highway or an intersecting highway.”

An Indianapolis police officer testified that he cited Anthony after looking around the car and being able to see only in the driver’s window. The officer said Anthony’s car “had plastic bags of trash, canned foods, clothes, piled from the bottom of [its] floor to the ceiling … on the dashboard and along the side windows and rear windows.”

But at trial, Anthony insisted he had not violated the statute, repeatedly answering the state’s attorney’s questions about his vehicle by saying on cross examination that he had placed nothing “on” the windshield, and therefore was not in violation of the statute.

The Indiana Court of Appeals agreed in John W. Anthony v. State of Indiana, 49A02-1712-CR-2859, with Judge Melissa May writing, “As the State did not present any evidence to prove Anthony violated that statute, we reverse.”

Nevertheless, the panel noted there is a law on the books against driving in the manner for which Anthony was cited — just not the one for which he was charged.

“Indiana Code section 9-21-8-43 provides: ‘A person may not drive a vehicle when [it] is loaded in a manner … so as to obstruct the view of the person who drives the vehicle to the front or sides of the vehicle,’” May wrote. “Because the legislature has already provided a means to punish citizens who drive vehicles loaded in a manner that obstructs the driver’s view, we need not interpret Indiana Code section 9-19-19-3 so broadly that ‘on’ means more than its plain and ordinary meaning.

“While there seems to be little doubt Anthony’s vehicle was full of items that obstructed his view, those items were not affixed to the windows or dependent on the windows for their support. Rather, the items in Anthony’s car were resting on the floors, the seats, and the dashboard,” May wrote.

“By all accounts, his operation of the vehicle raised safety concerns because his view was obstructed,” according to the panel. “However, Indiana Code section 9-19-19-3 does not prohibit an ‘obstructed view,’ generally. It prohibits placement of ‘material upon … windows … that obstructs the driver’s clear view.’ ... The State did not present such evidence. Accordingly, we reverse.”


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