Indiana Court Decisions: Aug. 25-Set. 7, 2022

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Indiana Supreme Court

Aug. 29

James E. McCoy v. State of Indiana


Justices reverse convictions for man denied Pirtle rights

A Cass County man convicted of multiple felonies after police responded to a report of a possible robbery at his home has secured a reversal from the Indiana Supreme Court after convincing the justices his Pirtle rights were violated during a police search. However, one justice, while concurring, suggested the high court take another look at Pirtle in the future.

In August 2020, Officer Cody Scott was on patrol for the Logansport Police Department when he received a tip about a robbery in progress. The tip described the suspect and identified the victim’s residence, adding that the victim himself, James McCoy, had an outstanding warrant for his arrest. In a footnote, the court wrote, “The transcript reveals that the arrest warrant may have been related to unpaid fines and court costs McCoy had incurred.”

Upon arriving at the house, Scott observed McCoy, confirmed his identity and “immediately” detained him for the active warrant.

McCoy, once in handcuffs, said that several items from his residence had been stolen and that the robber had driven away just as the officer had arrived. The suspected robber, an acquaintance of McCoy’s, eventually returned to the residence, having been located in the vicinity by other officers.

At this point, a woman named Jalyn Parkevich approached Scott and claimed the incident was little more than a domestic dispute. Parkevich said she had been at McCoy’s house the night before, where she “observed methamphetamine” and where McCoy “had offered her” the drug in exchange for sex.

Evidently angered by the illicit proposition, the alleged robber sought retaliation by stealing some of McCoy’s possessions, Parkevich said.

Immediately following this exchange, and upon Scott’s request, McCoy identified several items belonging to him still inside the suspected robber’s vehicle. McCoy, still handcuffed, then agreed to escort Scott inside the house to document any other missing items.

Once inside the house, Scott detected the odor of burnt synthetic marijuana emanating from upstairs. When they arrived at McCoy’s bedroom on the second floor, the officer observed several plastic baggies strewn about the room.

Based on these observations, and with knowledge of “possible narcotics inside the residence,” Scott suspended the investigation and contacted the prosecutor to apply for a search warrant. The subsequent execution of that warrant revealed various drug paraphernalia including a glass pipe with residue that later tested positive for meth, a vape cartridge containing THC oil, an opened pack of syringes and a plastic baggie containing a substance that also tested positive for meth.

After Scott advised McCoy of his Miranda rights, McCoy admitted that most of the items belonged to him, with the glass pipe apparently used “for smoking crack cocaine.”

The state charged McCoy with Level 6 felony possession of meth, Level 6 felony unlawful possession of a syringe, Class A misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia.

At trial, McCoy moved to suppress the state’s evidence, arguing the search was unlawful because, despite his detention, the arresting officer failed to give the necessary Pirtle warning.

The Cass Superior Court denied the motion.

Acknowledging that McCoy “was in custody” when the officer asked to search the house, the trial court reasoned that McCoy’s detention rested on a “[w]arrant unrelated to the charges that [are] subject to this case.” Also, the court said it didn’t see it as a search but rather “as an attempt to identify stolen property” from the alleged robbery, of which McCoy was the “apparent victim.” Finally, the court found nothing to suggest the officer “was looking for evidence other than the stolen property,” adding that when the officer came across incriminating evidence, he stopped and left the premises to secure a proper search warrant.

A jury found McCoy guilty on all counts except the unlawful possession of a syringe charge. After entering judgment of conviction on all counts except the marijuana charge, for which it had entered a directed verdict of not guilty, the trial court sentenced McCoy to an aggregate term of nearly 2½ years.

The Court of Appeals of Indiana affirmed in a memorandum decision, holding that the trial court did not abuse its discretion by admitting evidence obtained during the search.

McCoy then sought transfer, which the court granted, reversing for transfer and reversed for McCoy.

The justices concluded McCoy’s rights under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), were, in fact, violated, so the evidence obtained during the search shouldn’t have been admitted.

“Because there’s no dispute over his custodial status when Officer Scott asked to search his home, and because there’s no dispute that the officer failed to advise him of his right to counsel before requesting that consent, this case, McCoy contends, amounts to a clear-cut violation of Pirtle’s ‘core holding,’” Justice Christopher Goff wrote.

“… Pirtle applies when a person (1) is in custody and (2) is asked by police to consent to a home or vehicle search,” Goff wrote. “And because no one here — not the State, not the trial court, not the Court of Appeals, and certainly not McCoy — disputes these elements have been met, we need not inquire into the arresting officer’s subjective views of whether McCoy was a victim or a suspect.”

Thus, justices remanded for a new trial.

“In so holding, we emphasize that our decision should not be viewed as an extension of the Pirtle doctrine to cases where an officer asks the victim of a crime for permission to enter the home for investigative purposes, so long as that victim has not been detained,” Goff wrote. “Nor should our decision be viewed as a constraint on our highly valued police officers.

“To the contrary, our opinion today preserves the status quo by requiring a Pirtle warning when a person (1) has been detained and (2) is asked to consent to a home or vehicle search.”

In a concurring opinion, Justice Mark Massa wrote he was “hard-pressed to dissent” from the majority but suggested reconsidering Pirtle in the future.

“… (M)echanically applying this unique precedent to these rare facts leads to a result that borders on the absurd and leaves me open to reconsidering Pirtle in a future case,” Massa wrote. “As the trial court and Court of Appeals implicitly recognized below, there ought to be a difference between asking a suspect, ‘Can I search your home?’ and asking a victim, ‘You want to show me what’s missing?’

Pirtle birthed a precedent unnecessary to its result and largely ignored in sister states,” Massa continued. “… The Court today nonetheless elevates it rhetorically to the pantheon of state-constitutional jurisprudence as if it were on par with, say, Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) … and Brady v. State, 575 N.E.2d 981 (Ind. 1991). … Yet if a lawyer today tracked Pirtle’s reasoning in a brief to support an independent state constitutional basis for its result, we would find waiver for lack of cogent argument.

“… Pirtle is an Indiana case grounded in federal constitutional law … that other states have declined to adopt,” Massa concluded. “And today, despite the Court’s disclaimer to the contrary, we have expanded it to a situation where no police officer in Indiana would have thought a warning was necessary. A precedent of questionable foundation and doubtful force compels my concurring in the judgment and invites further scrutiny. Ultimately, Pirtle is what it is — ‘good law’ until overruled.”

Court of Appeals of Indiana

Aug. 26

Indiana State Police and State of Indiana v. The Estate of Michael M. Damore


Key evidence excluded in fatal crash case involving motorcyclist, state police

The estate of a motorcyclist who was killed after colliding with an Indiana State Police vehicle while exiting an Indiana tollbooth faced a reversal after the Court of Appeals of Indiana concluded evidence of his high-speed chase with police just before the fatal accident was wrongly excluded from trial.

While driving his motorcycle on Interstate 90, 28-year-old Michael Damore crashed into an ISP patrol car after exiting the Portage Toll Plaza in July 2016.

The ISP trooper was making a U-turn into westbound traffic after conducting a stop in the eastbound lane when his vehicle struck the motorcyclist, who had accelerated between two cars once he left the tollbooth. Damore was thrown from his bike and sustained fatal injuries, prompting his estate to sue under the General Wrongful Death Statute.

Accounts of what happened differed between accident reconstruction experts for Damore’s estate and law enforcement. The estate’s expert argued that Damore’s maximum speed after exiting the tollbooth was only 43 miles per hour, that based on the timing of trooper’s U-turn, the motorcyclist had insufficient perception-reaction time to avoid the collision, and that Damore’s speed was, therefore, not a contributing factor to the accident.

The defendants’ expert, Kevin Johnson, opined that Damore had been following the car ahead of him too closely and that the motorcyclist was driving nearly 80 mph at the moment of the collision.

Evidence regarding Damore’s driving behavior in the minutes prior to the accident, including his act of fleeing from the police at high speeds before reaching the Portage tollbooth, was not introduced after the Lake Superior Court granted the estate’s related motion in limine.

A jury found in favor of the estate and awarded $4 million in damages, and the trial court entered judgment accordingly. It later denied in part and granted in part the defendants’ subsequent motion to correct error, reducing the judgment to $700,000 under the Indiana Tort Claims Act, plus costs.

In reversing, the COA found that the trial court abused its discretion to the extent that it concluded Indiana Evidence Rule 403 required exclusion of evidence regarding how Damore was driving in the minutes prior to the accident. Evidence showing that Damore had recently been in a high-speed chase with the police and drove significantly over the speed limit before reaching the Portage tollbooth was relevant, the court explained.

“That is, evidence that Michael was fleeing from police and was driving unsafely in the minutes prior to the collision tends to make it more probable that he drove his motorcycle in an unsafe manner to allude police after he exited the Portage tollbooth. And Michael’s driving was clearly of consequence in the action, because any negligence on his part that contributed even slightly to the accident would bar recovery by the Estate,” Judge Elizabeth Tavitas wrote.

Citing its previous decision in Wages v. State, 863 N.E.2d 408 (Ind. Ct. App. 2007), the appellate court concluded that evidence of a motorist’s driving behavior immediately before the accident is relevant to the issue of whether the driver acted recklessly — or, in the present case, merely negligently.

“The contrary position, taken to its logical conclusion, would mean that only the driver’s final driving maneuver was relevant to whether the driver contributed to the accident,” Tavitas wrote. “We rejected this reasoning in Wages and see no reason to deviate from our holding in Wages now.”

Judges further disagreed with the estate’s assertion that the evidence of Damore’s driving before he approached the Portage tollbooth, even if relevant, was unfairly prejudicial.

Addressing the trial court’s sanction and striking of the defendants’ only expert testimony, the COA noted that although the expert violated the order granting the estate’s motion in limine, it failed to see how the estate was harmed by “this brief, one-time mention” of the motion “with no discussion of the prohibited evidence.”

“At most, Johnson’s violation of the motion in limine was brief and harmless. Under these facts and circumstances, excluding the entirety of Johnson’s testimony was overly severe,” Tavitas wrote, noting that Johnson was the defendants’ only witness and the trial court’s sanction essentially deprived them of their defense.

The COA also found that the trial court abused its discretion by failing to give two of the defendants’ proposed jury instructions: one about Damore following too closely to the vehicle in front of him, contrary to Indiana Code §9-21-8-14, and the other concerning the substance of passing on the right under I.C. 9-21-8-6.

“Under these facts and circumstances, we cannot say that the failure to give these instructions was harmless, i.e., that the verdict would have been the same under the proper instructions,” Tavitas wrote.

Finally, the appellate court wrote that the estate did not provide sufficient evidence to prove that Damore’s mother was his dependent. It noted that although he made $100 to $200 monthly payments to his mother while living in her home, those payments were a “mere fraction of his monthly income of $5,833.”

“Because Denise was not a dependent next of kin, she cannot recover under the GWDS, and the Estate’s recovery must be limited to reasonable medical, hospital, funeral and burial expenses, plus no more than $300,000 for loss of love and companionship pursuant to the AWDS,” the court concluded. “Accordingly, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.”

Aug. 30

Lockerbie Glove Company Town Home Owner’s Association, Inc., Elliot J. Serena Androphy, Cherri D. Hobgood, Sashwati Roy, Chandan K. Sen, and Brian Edward West v. Indianapolis Historic Preservation Commission, Daniel C. Jacobs, and The Athenaeum Foundation, Inc.


COA again denies attempt to stop new construction in historic Indianapolis district

Continued attempts to halt the construction of a parking lot and retail center in a historic Indianapolis district by a collection of nearby homeowners has been bulldozed after the Court of Appeals of Indiana ruled the residents lacked standing when they failed to allege injury as a result of the project.

Back in 2016, some downtown Indianapolis locals became angry about a new development project near the Lockerbie Glove Factory Town Homes proposed by developer Dan Jacobs when he submitted an application for a certificate of appropriateness. That application, reviewed and later approved by the Indianapolis Historic Preservation Commission, called for a five-story, multiuse building with 67 apartment units, retail and gallery space, a roof deck and 261 internal parking spaces.

Eight homeowners in the surrounding area who are not members of the local neighborhood association submitted an objection letter to the commission concerning the project, arguing that the efforts would break a covenant issued to The Athenaeum Foundation in 2001 by the Lockerbie Square People’s Club.

The commission ultimately approved the application for a certificate of appropriateness and the Court of Appeals of Indiana affirmed the denial of the homeowners’ petition for judicial review and motion to compel certain discovery from Athenaeum and Jacobs.

After the COA affirmed, some of the homeowners filed a verified complaint for declaratory and injunctive relief in April 2021. On second appeal, they claimed that construction of Block 20, the name of the development, did not match the certificate of appropriateness and that it had expired without being properly extended.

They also argued that the defects were in violation of Indiana statutes governing historic preservation.

The trial court granted a motion for judgment on the pleadings on the basis of the appellants’ lack of standing, which the COA affirmed.

Finding the issue to be dispositive, the COA noted that despite the appellants’ argument that the appellate court should apply the definition for “interested party” found in Chapter 11.3 as the meaning of “interested person” in Chapter 11.1, that latter chapter ultimately does not mention “standing” or “injury.”

“And Appellants concede that they have not alleged an injury,” Judge Elizabeth Tavitas wrote.

The COA noted that while the appellants claimed for the first time on appeal that they have suffered an injury, they still asserted that they were exempt from proving it.

“More importantly, however, we must reject the suggestion that requiring a showing of injury for standing purposes commits us to ruling that the statutes in question are unconstitutional,” Tavitas wrote. “None of the relevant statutes are violative of Article 1, Section 12 of the Indiana Constitution. It does not follow from the fact that the remedies are unavailable to Appellants that the remedies do not exist.”

The court further declined to interpret Chapter 11.1 as granting standing to the undefined “interested person” even in the absence of injury.

“Given that Appellants concede they alleged no injury below, and injury is a constitutionally minimum requirement to establish standing, we conclude that the trial court did not err in granting Appellees’ motion for judgment on the pleadings,” the opinion concluded.


Aug. 31

Jane Doe v. Indiana Department of Insurance and the Indiana Patient’s Compensation Fund


MMA doesn’t apply to woman’s claims for damages based on sexual assault

An Indiana woman who was sexually assaulted by a nurse during her stay at a Muncie hospital has failed to convince the Court of Appeals of Indiana that the state’s medical malpractice statute should apply to her claims for damages based on the sexual assault.

Jane Doe was admitted to Indiana University Ball Memorial Hospital’s intensive care unit in January 2018 after having suffered a stroke. Nathaniel Mosco, a registered nurse at the hospital, was assigned to care for the woman.

On two occasions that day, after administering morphine and cleaning her catheter, Mosco sexually assaulted Doe. After the second assault, Doe reported the incidents to another nurse.

Mosco was arrested the next day and later charged with Level 6 felony sexual battery. Following a jury trial, Mosco was convicted of Class B misdemeanor battery in May 2019.

Doe filed her complaint for damages against the hospital and Mosco in Delaware County on Oct. 4, 2019, alleging the intentional tort of sexual battery, for which the hospital was vicariously liable, as well as the negligent hiring, retention and supervision of staff. Doe also filed a proposed complaint for damages with the Indiana Department of Insurance, which parroted her civil complaint.

In April 2021, Doe and the hospital entered into a release and settlement agreement. In exchange for payments totaling $400,000, Doe agreed to dismiss her proposed complaint before the IDOI and her civil complaint for damages.

However, the agreement expressly provided: “Plaintiff does not release the Indiana Patient’s Compensation Fund [(the Fund)] for liability in damages in excess of the monies received from Defendant, and Plaintiff will pursue the Fund for additional monies. This settlement is not conditioned on Plaintiff’s ability to recover additional funds from the [Fund].”

In tandem with execution of the agreement, Doe initiated an action in Marion County by filing a petition against the fund and the commissioner of the IDOI for additional compensation. Doe requested a damages hearing and indicated that she sought excess damages from the fund not to exceed $1 million.

The fund eventually moved for summary judgment on the basis that Doe’s underlying claims against the hospital and Mosco were not covered by the Indiana Medical Malpractice Act.

Following a hearing, the Marion Superior Court granted the fund’s motion for summary judgment in December 2021. The Court of Appeals affirmed.

Doe relied on Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019), on appeal.

The COA found that the disagreement centered on whether the tortious conduct — the sexual assault — was “based on health care or professional services” that were provided to her.

“… According to Doe, the effect of Martinez is that courts in Indiana should no longer limit application of the MMA to curative or salutary conduct of a health care provider acting within his or her professional capacity or exclude conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Rather, relying on Martinez, Doe argues that courts need only consider whether the alleged misconduct arose naturally or predictably from the relationship between the health care provider and the patient or from an opportunity provided by that relationship,” Judge Robert Altice Jr. wrote. “Because Mosco’s employment as a nurse to Doe authorized him to touch her genitals, Doe reasons that his sexual assault of her is subject to the MMA. This is a bridge too far.

“… Martinez did not involve the sexual assault of a patient by a health care provider, an act that has consistently been held to be outside the definition of medical malpractice because its very nature is antithetic to the promotion of the patient’s health or a provider’s exercise of professional expertise, skill, or judgment,” Altice continued. “We refuse to completely unmoor a medical malpractice action from ‘the provision of what our case law has established is the very essence of health care, i.e., conduct, curative or salutary in nature, by a health care provider acting in his or her professional capacity.’

“… A medical review panel is no more equipped to address Doe’s sexual assault allegations in this case than the average juror. Accordingly, we conclude that Doe’s claims do not fall within the purview of the MMA and, therefore, the trial court properly granted summary judgment in favor of the Fund.”


Sept. 6

In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins


Joint custody not supported, court must choose which parent gets sole custody

The Court of Appeals of Indiana has reversed a custody arrangement for a feuding couple, ordering the Warrick Circuit Court to choose which parent will have sole custody of their child after concluding the case’s findings did not support the award of joint legal custody.

Prior to the birth of her child E.P., Stephanie Tonevich obtained a protective order against the child’s father, Kasey Perkins, based on allegations that he had been physically and verbally aggressive with her and her other children. Once she obtained the protective order, Tonevich relocated to Lake County but continued her relationship with Perkins.

After E.P. was born in June 2019, Perkins executed a paternity affidavit.

Perkins traveled to Lake County on the weekends to visit with E.P. until September 2019, when the parents had a verbal altercation involving Tonevich’s current boyfriend. After that, Tonevich and Perkins were unable to agree on a time and place for him to exercise parenting time.

Perkins filed a petition to establish parenting time and joint legal custody in December 2019 in Warrick Circuit Court, and a guardian ad litem was appointed for E.P. At the sixth and final hearing on Perkins’ petition, GAL Kelly Ferguson recommended that the parties share “modified” joint legal custody of E.P., giving Perkins input on major decisions but giving Tonevich the final say.

In August 2021, the trial court entered its order awarding the parents joint physical and legal custody of E.P. A motion to correct error filed by Tonevich was later denied. The Court of Appeals, however, reversed.

“Mother argues that the trial court’s findings do not support the judgment, and we agree,” Judge Patricia Riley wrote. “The trial court entered findings that ‘the parties have demonstrated an inability to cooperate and agree on what is in [C]hild’s best interests’ and that ‘the parties are currently unable to communicate with each other in a constructive fashion.’ There is ample evidence in the record to support these findings, as the parties were unable to successfully arrange videocalls between Child and Father or exchanges of Child for Father’s parenting time.

“… Despite the evidence of Parents’ inability to communicate and cooperate to advance Child’s interests and the trial court’s findings, the trial court entered an award of joint legal custody. Given the importance of this factor to a determination of joint legal custody, we conclude that the trial court’s findings do not support the judgment in this case,” Riley continued. “Rather, it appears that the trial court attempted the very ‘cutting [of] the baby in half’ we have concluded is inappropriate where parents cannot work together. … In addition, we observe that Mother and Father had not agreed to joint legal custody, which, apart from the trial court’s findings, does not support an award of joint custody.”

The case was thus remanded “for the trial court to enter an award of sole legal custody for either Father or Mother.” The COA noted the trial court is not required to accept additional evidence and can render its decision based on the six evidentiary hearings.

In a separate concurring opinion, Judge Elizabeth Tavitas emphasized the “need for clear findings.”

“I recognize that the trial court was not required to make specific findings unless requested by the parties,” Tavitas wrote. “The trial court here entered sua sponte findings of fact and conclusions thereon, but it did not enter findings regarding the Child’s best interest, the statutes it applied, or the factors it considered in awarding joint legal custody.

“Such abbreviated findings, although permissible, make review of the trial court’s order more difficult,” she continued. “Under these circumstances, we must review those issues without findings under the general judgment standard — we will affirm ‘if it can be sustained on any legal theory supported by the evidence.’ Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1145 (Ind. Ct. App. 2022).

“A better practice, however, would be to cite the applicable statutes and make findings regarding the child’s best interests and the relevant factors,” she concluded.

The case is In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins, 22A-JP-57.


J.L. v. M.M.


Father allowed limited contact with teen son despite protective order

A father accused of physical abuse against his teenage son can have limited contact with his son despite a protective order after the Court of Appeals of Indiana determined the protective order went too far in cutting off contact between the father and son for two years.

In August 2021, mother M.M. filed a petition for a protective order on behalf of her teen son, Z.B.M.L., against J.L., the child’s father, alleging J.L. had threatened, attempted and caused physical harm to the teen. She also alleged J.L. placed the teen in fear of physical harm and “committed repeated acts of harassment against the child.”

An ex parte order for protection on behalf of Z.B.M.L. was granted, and the matter was transferred to the trial court that was addressing the parties’ paternity action.

Z.B.M.L. testified that his dad has held his hand over his mouth, squeezed his cheeks, pushed him down, held him on the bed, held his arms tightly and pushed him into a wall. He characterized his father’s actions as a repetitive situation that makes him feel as if he is “walking on [] explosive eggshells.”

The Allen Superior Court determined J.L. presented a “credible threat to the safety” of his son and that domestic or family violence had occurred sufficient to justify the issuance of a protective order. The protective order prohibited J.L. from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating” with his son for two years and ordered for him “to stay away from” the teen’s home and school.

In a partial reversal, the appellate court found that although the grant of the protective order against J.L. was proper, the trial court erred in denying him direct or indirect contact with his son for two years.

“If Father does have contact, he could be charged with invasion of privacy, a Class A misdemeanor,” Judge Elizabeth Tavitas wrote. “We find that Mother presented insufficient evidence to warrant a two-year order of protection with absolutely no contact between Father and Child, and the order exceeded that which was necessary to stop the violence.”

The COA further concluded that the trial court did not find that all types of parenting time, including supervised parenting time, . would “endanger Child’s physical health or emotional development.” Rather than removing all contact for two years, the COA said a better practice would be to issue a limited-duration protection order and fashion a parenting time order that implements supervised parenting time, therapeutic parenting time and/or other methods.

“… Accordingly, we affirm in part, reverse in part, and remand for the trial court to amend the protection order to allow certain contact between Father and Child, including supervised and/or therapeutic parenting time with Child, and attendance at the Child’s school functions until this matter is addressed more fully in the paternity action.”•

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