7th Circuit Court of Appeals
Criminal — Felon in Possession of a Firearm/Sentencing Enhancement
USA v. Alandous Briggs
The fact that drugs and guns were in the same place at the same time wasn’t enough to prove a man should have received a sentence enhancement for his convictions, the 7th Circuit Court of Appeals ruled.
During a parole visit at Alandous Briggs’ home, Briggs was arrested after admitting that there were more than 10 ounces of marijuana, 0.45 grams of cocaine and three loaded firearms in his bedroom.
When Briggs petitioned to enter a plea of guilty to being a felon in possession of a firearm, he objected to the addition of a four-level enhancement under U.S. Sentencing Commission Guidelines § 2K2.1(b)(6)(B). That enhancement said he had committed a felony drug offense in connection with the firearm possession, but Briggs argued that the drugs had no connection to the firearm possession.
Southern District Court Judge Tanya Walton Pratt held that the enhancement applied, however, and ultimately sentenced Briggs to seven years in prison. But the 7th Circuit Court of Appeals disagreed with that conclusion in USA v. Alandous Briggs, 18-1415, finding issue with the fact that the district court never made any findings about how Briggs’ felony cocaine possession was connected to his firearms.
“It simply assumed that because the firearms were probably connected to drug trafficking (because of the combination of the cocaine, marijuana, and a digital scale), they were probably connected to his mere possession of the cocaine. But that logic doesn’t hold up,” Circuit Judge Amy Coney Barrett wrote. “Analyzing whether firearms are connected to drug trafficking is different from analyzing whether they are connected to possessing a small quantity of drugs.”
The 7th Circuit also noted that neither that the drug scale nor the amount of marijuana found in Briggs’ home bore directly on his cocaine possession.
“Instead, they go to whether he might have been dealing drugs. And the court’s vague suggestion that the guns might have been there ‘to protect something’ — apparently made in the context of drug trafficking — wouldn’t be enough to connect the guns to felony possession of cocaine even if that had been what the court was referring to,” Coney Barrett continued. “In short, the mere fact that guns and drugs are found near each other doesn’t establish a nexus between them. A court must say more to connect the two.”
Therefore, the 7th Circuit concluded the district court clearly erred in applying the ... enhancement as its findings did not support a conclusion that Briggs’ firearms were connected to his possession of less than half a gram of cocaine. It subsequently vacated his sentence and remanded for resentencing.
Indiana Supreme Court
Criminal — Probation Violation/Obscene Material
Nathaniel Bennett v. State of Indiana
A probation violation will be removed from a convicted sex offender’s record after a divided Indiana Supreme Court determined a trial judge’s inconsistent statements meant there was insufficient evidence to support it.
In Nathaniel Bennett v. State of Indiana, 18S-CR-538, Nathaniel Bennett was sentenced to seven years on community corrections in 2016 after pleading guilty to Level 4 felony sexual misconduct with a minor. Three years of Bennett’s sentence was suspended to sex offender probation, and as part of his community corrections placement he was prohibited from possessing “obscene matter,” as defined in Indiana Code section 35-49-2-1.
During a compliance check on Bennett’s home in 2017, community corrections officers found photos of a naked woman and sexual videos on his cellphone. The Marion Superior Court determined Bennett had violated his community corrections placement, so he was ordered to serve four years in the Department of Correction. Prior to revoking his community corrections placement, Judge Lisa Borges noted the individuals in the video appeared to be consenting adults, so the entirety of the definition of “obscene material” was not necessarily met.
Bennett seized on that statement on appeal, arguing it meant there was insufficient evidence to support revocation of his probation. The Indiana Court of Appeals affirmed last August, but after hearing oral arguments in November, a majority of the Indiana Supreme Court reversed.
Writing for a majority that included Chief Justice Loretta Rush and Justice Christopher Goff, Justice Steven David noted that Paragraph 2 of I.C. 35-49-2-1 — which the trial judge said was not met in this case — defined “obscene material” as including a “matter or performance (that) depicts or describes, in a patently offense way, sexual conduct… .”
“Here, the trial court made conflicting statements about whether this definition was met,” David wrote. “… Even though the court ultimately found Bennett in violation and the statement about the definition not necessarily being met might have been an imprecise one, in light of our case law, this requires reversal.”
The majority relied on Kribs v. State, 917 N.E.2d 1249 (Ind. Ct. App. 2009), in which a firearms-related conviction was overturned because the trial court “made a statement that negated the mens rea element necessary to prove the crime.” In that case, the Court of Appeals said it would not have reversed had the trial court remained silent.
“Had the trial court not made the statement at sentencing that it did not believe part of the obscene matter definition was necessarily met, we would be in a different position,” David wrote, likening Bennett’s case to Kribs. “But under the circumstances, we cannot say the evidence is sufficient to revoke Bennett’s probation for possession of obscene matter.
“Unfortunately,” he continued, “here we have a well-respected trial court judge who inadvertently negated part of the definition necessary to find a violation.”
The trial court’s ruling was thus reversed and remanded to change the record. In a footnote, David said Bennett has been released from the DOC, but the record should still be corrected so that a probation violation does not have a future impact on him.
Justices Mark Massa and Geoffrey Slaughter dissented without a separate opinion, believing transfer should not have been granted.
Indiana Court of Appeals
Juvenile Children in Need of Services — Reversal of Adjudication/Evidence
In the Matter of A.R., A.S., L.S., and J.O., Children Alleged to be Children in Need of Services; M.O. (Mother) v. Indiana Department of Child Services
A mother whose kids were found to be children in need of services despite her successful efforts to stay sober and get the help she needed found favor with an appellate panel, which reversed the CHINS adjudication on the basis of insufficient evidence.
When mother M.O. gave birth to her fourth child, traces of methamphetamine were found in the baby’s cord blood, causing concern among her nurses. All four children were removed from M.O.’s care when she told nurses she wasn’t sure where she would live after leaving the hospital and that she was unsure of how the meth got into the baby’s system. DCS then filed a petition alleging the children to be CHINS.
M.O. later admitted to developing an opiate habit after using pain pills, which had led to a drug-related felony conviction. But upon her children’s removal, M.O. passed her drug test submissions and completed her other DCS-ordered services with flying colors, garnering praise from her DCS case manager for her success at remaining sober. Regardless, the Tippecanoe Superior Court adjudicated the children as CHINS.
On appeal, M.O. argued that insufficient evidence existed to demonstrate that the children were in need of care that they were not receiving or that they were unlikely to receive without the coercive intervention of the court.
The Indiana Court of Appeals agreed with M.O. in In the Matter of A.R., A.S., L.S., and J.O., Children Alleged to be Children in Need of Services; M.O. (Mother) v. Indiana Department of Child Services, 18A-JC-2523, finding that DCS failed to provide sufficient evidence to prove the kids were CHINS.
The appellate court noted M.O.’s action to seek and obtain counseling on her own accord without the assistance or direction from DCS in regard to her meth use, and that DCS did not present any evidence that she had tested positive since the petitions were filed.
But DCS alleged the children needed care that they were unlikely to receive without the coercive intervention of the court because M.O.’s new full-time job offer was contingent on her passing a drug test and background check, and that without that new position, she would be unable to afford a new condo she had secured.
“However, any concern that DCS may have that Mother ‘would likely not be able to afford her new apartment’ or might relapse is merely speculation about a potential future problem,” Judge Edward Najam wrote for the unanimous panel.
It pointed out that even if M.O. were to lose her new job, “the mere fact of an unemployed parent does not make a CHINS.” Neither would living in a shelter as a result of losing housing. Rather, the appellate panel noted that M.O. had made significant progress in securing employment, creating a budget, finding an appropriate place to live, actively and successfully participating in DCS services and obtaining help to remain sober.
“In sum, DCS did not meet its burden to demonstrate that the Children have needs that they were unlikely to receive without the coercive intervention of the court,” Najam wrote. “We therefore hold that the trial court erred when it found the Children to be CHINS, and we reverse the trial court’s judgment.”
Civil Tort — Drunken Driving Negligence/Punitive Damages
Ismael Alicea v. Ronald Brown
The victim of an alleged drunken driving accident will have the opportunity to seek punitive damages after the Indiana Court of Appeals determined summary judgment for the allegedly drunken driver was not appropriate.
After drinking nearly three beers while driving from Hobart to Valparaiso, Ronald Brown rear-ended Ismael Alicea and fled the scene. Despite later lying to a sheriff’s deputy about being the driver who caused the accident, Alicea learned Brown’s identity and filed a negligence complaint. According to a footnote in Ismael Alicea v. Ronald Brown, 18A-CT-2495, it’s unclear how Alicea determined that Brown was the driver.
Brown then testified at a subsequent deposition that he had been drinking at the time of the accident, so Alicea filed an amended complaint seeking punitive damages. The Porter Superior Court, however, granted partial summary judgment to Brown on the punitive damages claim, prompting the instant appeal.
On appeal, Alicea argued Brown did not sustain his summary judgment burden to negate an element of the punitive damages claim, and the Indiana Court of Appeals agreed. Writing for a unanimous appellate panel, Judge Edward Najam said Brown’s summary judgment motion “ignores the undisputed evidence that calls into question his credibility.”
“For instance, Brown violated the law when he drank alcohol while driving, left the scene of a collision, and lied to law enforcement shortly thereafter about those acts,” Najam wrote. “Moreover, the facts as alleged by Brown, such as whether he was impaired or intoxicated at the time of the collision, ‘are peculiarly’ within Brown’s knowledge, and there should be an opportunity to impeach him at trial.
“Because a reasonable trier of fact could choose to disbelieve Brown’s account of the facts,” Najam continued, “we hold that Brown has not sustained his burden to affirmatively negate an element of Alicea’s punitive damages claim, and the trial court erred when it granted partial summary judgment for Brown on that claim.”
Thus, the trial court’s decision was reversed, and the case was remanded for further proceedings.
Criminal — ‘Red Flag Law’/Return of Firearms
Robert E. Redington v. State of Indiana
After more than six years of being considered statutorily “dangerous” and unfit to possess firearms, a man whose 51 guns were taken from him by the state for his bizarre behavior will have them returned to his care.
The Indiana Court of Appeals reversed a lower court’s ruling Friday that had denied Robert Redington the return of his firearm collection after he was deemed to be dangerous due to strange actions near a Bloomington sports bar in 2012. Redington argued the “dangerous” finding no longer applied because it was based on evidence of his behavior years earlier when law enforcement said Redington had acted erratically near the site where missing Indiana University coed Lauren Spierer had last been seen. The Indiana SupremeCourt in 2013 affirmed the seizure of Redington’s guns.
Redington’s guns had been confiscated by police pursuant to Jake Laird’s Law, enacted after Laird, an Indianapolis police officer, was shot and killed by a mentally ill man wielding a gun. More commonly known as the “red flag law,” I.C. § 35-47-14-1(a)(2)(B) enables law enforcement to take possession of firearms, pending formal hearings, from people who are found to be statutorily “dangerous.”
The state relied on the same evidence years later when Redington unsuccessfully petitioned for their return. Redington was denied upon the finding that he failed to carry his burden of proving by a preponderance of the evidence that circumstances had changed since 2012 and that he was no longer dangerous.
But an appellate panel disagreed with the state’s reliance on evidence from 2012, noting that it failed to offer current evidence and elicit testimony on cross-examination of Redington’s witnesses that he had a current propensity for emotionally unstable conduct.
On appeal, Redington argued that because the original finding he was “dangerous” was based on the possibility of future conduct, there was no legitimate way for him to prove he was no longer dangerous.
The appellate court agreed in Robert E. Redington v. State of Indiana, 18A-CR-950, noting that the statute is written in the present tense and has no qualifying language requiring Redington to prove that he “is no longer dangerous.”
“In other words, the trial court in 2012 made a determination at that specific point in time, but in 2018, the trial court should have made a determination based on the instant timeframe rather than incorporating its earlier decision,” Judge Margret Robb wrote for the unanimous panel. “Likewise, we are not revisiting the 2012 determination but reviewing the facts and circumstances before the trial court in 2018.”
Regarding issues of future risk, the appellate court noted that no documented evidence existed at the time of the 2018 hearing that gave rise to reasonable belief that Redington had a propensity for being violent or exhibiting emotionally unstable conduct. It also rejected the state’s reliance on Redington’s comments regarding his ability to see spirits or prophesy as irrelevant.
“We note two things about section 35-47-14-1(a)(2)(B): first, it requires documented evidence that an individual has a propensity for certain conduct. Like section 35-47-14-8, this section is written in the present tense and therefore requires current evidence of such a propensity,” the panel continued. “Second, to be found ‘dangerous,’ the statute requires a propensity for violent or emotionally unstable conduct. The statute does not hinge on thoughts or words.”
Thus, the appellate court found the trial court’s denial of returning Redington’s guns to be clearly erroneous. The court reversed and remanded the case to the Monroe Circuit Court to issue an order that the firearms and ammunition be returned to Redington.
Criminal — Battery Resulting in Bodily Injury to a Public Safety Officer/Reversal
Michael Hickingbottom v. State of Indiana
An inmate’s claims he was denied a fair trial can move forward now that the Indiana Court of Appeals has concluded the state’s failure to provide him with an Indiana Department of Corrections professional conduct manual left him unable to prepare a proper defense against an officer who shoved him.
Michael Hickingbottom was charged with Level 5 felony battery resulting in bodily injury to a public safety officer after a physical altercation with Department of Corrections officer Larrie Fleenor regarding the use of Hickingbottom’s meal card.
Initially representing himself, Hickingbottom was denied a request of the DOC’s “rulebook” to determine whether a witness’s testimony was correct regarding the policies and procedures of the facility and its training tactics for DOC officers. The state responded that it wasn’t sure if such a manual existed, and later informed the trial court that one did not and therefore would not admit such a manual into evidence.
However, during cross-examination, the witness revealed that information regarding professional conduct for the facility’s officers was included in the training policies and procedures. He did not deny a rulebook’s existence.
Hickingbottom thus moved for mistrial, arguing that he was unable to properly cross-examine the witness as to whether Fleenor had improperly acted during the altercation when he shoved Hickingbottom, and therefore was unable to adequately prepare a defense and was being denied a fair trial. His motion was denied, and Hickingbottom was ultimately found guilty. Hickingbottom was further denied all of his subsequent motions to correct error and motion for a new trial based on newly discovered evidence that the manual did exist.
But the Indiana Court of Appeals determined that such a manual did exist and that the trial court abused its discretion in denying the motion for mistrial in Michael Hickingbottom v. State of Indiana, 18A-CR-627.
“Although the State represented that a manual detailing the use of force by DOC officers did not exist, the manual is referenced specifically, and included in part, on the DOC website,” Judge James Kirsch wrote for the court.
The appellate court concluded that at all pertinent times, the manual existed and was publicly available online at https://www.in.gov/idoc/2830.htm. It further found that although the state may not have known of the existence of the manual prior to the trial, the witness’s testimony confirmed the existence of the manual during trial and established that DOC officers received training on when the use of force is appropriate.
The appellate court concluded that the manual was critical to Hickingbottom’s self-defense claim, and that the state’s failure to produce it affected the outcome of Hickingbottom’s trial and undermined confidence in the outcome.
“The manual was material to a determination of Hickingbottom’s guilt because his claim of self defense rested on an assertion that Officer Fleenor acted unlawfully through his aggressive physical confrontation and the use of a racial slur toward Hickingbottom,” Kirsch continued.
“The failure of the State to provide Hickingbottom with the manual probably impacted the jury’s deliberations because the jury was not given the most important evidence regarding Hickingbottom’s self-defense claim. Without the manual, Hickingbottom had no ability to substantiate his self-defense claim because it necessarily rested on proof that Officer Fleenor violated the manual’s use of force provisions when dealing with Hickingbottom and, therefore, acted unlawfully.”
It therefore concluded that no other remedy other than a mistrial could cure the error, as the trial was almost complete at the time the testimony revealed the manual existed.
Finding the state’s failure to be “so prejudicial that Hickingbottom was placed in a position of grave peril to which he should not have been subjected,” the appellate court reversed his conviction and remanded for a new trial with instructions for the DOC to produce the manual to the state before any subsequent proceedings take place, so that Hickingbottom can review and utilize it.
Civil Tort — Qualified Settlement Offer/Motion to Enforce
Ana Martins v. Richard Hill and Diana Hill
Years after three Crown Point bicyclists sued each other for negligence after a crash, the Indiana Court of Appeals reversed an order and implementation of a settlement agreement when it found the parties had never come to a valid agreement.
While cycling on a paved Crown Point bike path in August 2012, Ana Martins collided with tandem riders Richard and Diana Hill. The Hills sued Martins asserting negligence and claiming they suffered injuries from the crash, to which Martins responded with a counterclaim asserting the same thing.
Through attorney Richard K. Shoultz, Martins offered to settle for $100,000, and counsel for the Hills said they would accept the offer “as long as everyone dismisses and everything is over.” But when Martins was immediately unavailable to confirm to dismiss her counterclaim, the Hills filed a Motion to Enforce Unconditionally Accepted Qualified Settlement Offer.
The Lake Superior Court granted the motion, ordering the case be settled within 30 days, including the filing of a stipulated dismissal of the Hills’ claim and Martins’ counterclaim with prejudice.
However, Martins argued on appeal that the trial court erred in determining the parties had negotiated a valid settlement agreement and ordering that it be implemented. The Indiana Court of Appeals agreed in Ana Martins v. Richard Hill and Diana Hill, 18A-CT-2740
“A close review of the plain language of the parties’ communications reveals that there was no mutual assent and no contract was formed. Attorney Shoultz’s letter discussed the Hills’ claims and Martins’ defenses but omitted any mention of Martins’ counterclaim. In addition, the letter emphasized the release and dismissal of the Hills’ claims against Martins, with no mention of the release and dismissal of her counterclaim,” Senior Judge John Sharpnack wrote for the panel.
“The Hills argue that Attorney Shoultz’s offer necessarily included Martins’ counterclaim because Indiana Code section 34-50-1-3 requires that a qualified settlement offer ‘must resolve all claims and defenses … between the offeror and the recipient.’ Nevertheless, the counterclaim was not included in Shoultz’s offer. As a result, we must conclude that the offer failed to meet the requirements for a qualified settlement offer,” Sharpnack wrote.
The COA further found that the Hills’ response did not qualify as an acceptance, but was rather a counteroffer due to the addition of the term: “as long as everyone dismisses and everything is over.” The appellate court added that the responses indicated that the negotiations were not at an end, when it asked Martins to “please confirm” that everyone was “dismiss[ing].”
Therefore, the appellate court reversed and remanded the case after concluding that the parties failed to agree upon a contractual settlement of the case under the Qualified Settlement Offer statutes, or otherwise, and that the trial court erred in granting the Hills’ motion.
Criminal — Attempted Manufacture of Methamphetamine/Sleeping Juror
Curtis S. Gridley v. State of Indiana
Convictions for a man who attempted to make meth were upheld by an Indiana Court of Appeals panel after it concluded no abuse of discretion occurred when a sleeping juror in his case was replaced, and that his argument for a new trial was waived.
Curtis Gridley was found guilty and received an aggregate 11-year sentence for charges of Level 4 felony attempting to manufacture methamphetamine and Level 6 felony theft after he made a deal to buy his underaged nephew alcohol in exchange for his assistance in buying lighter fluid, a cold pack, drain cleaner and pseudoephedrine. Gridley also stole a pipe cutter used to strip lithium out of batteries for the process of making meth.
On Gridley’s appeal of his convictions, the appellate court found that the Ripley Circuit Court did not abuse its discretion by replacing a juror who continually fell asleep and made noises during trial. It noted that the alternate juror was present and, presumably, awake up to the point of the sleeping juror’s dismissal.
The appellate court also found that the jury had not yet begun deliberating and that the trial court’s explanation of the juror’s dismissal negated any possible effect the dismissal may have had on the jury deliberations later in the process.
The panel further concluded that Gridley’s argument that a state trooper who received a confession from Gridley’s nephew about his plans to make meth testified in violation of an order in limine regarding references to Gridley’s prior bad acts failed to meet the fundamental error standard and did not warrant a new trial.•