7th Circuit Court of Appeals
Mark Benner v. Jesse Carlton, Chief Probation Officer of St. Joseph County, Indiana
Ex-high school basketball coach convicted of child seduction loses federal appeal
A disgraced high school basketball coach convicted of seducing one of his players has failed in his bid for relief from the federal courts after two appeals at the Court of Appeals of Indiana previously failed.
Petitioner-appellant Mark Benner had been an assistant girls’ basketball coach at Mishawaka High School before he was convicted in 2018 of Class C and D felony counts of child seduction.
As far back as 2013, Benner, then 43, had a sexual relationship with a 17-year-old basketball player.
Benner had resigned his position that March, and the sexual relationship began that August. Benner continued to coach the player, P.A., one-on-one after his resignation.
The relationship came to light in 2015, one year after the player had graduated. Benner was charged and convicted, and his case has already gone to the Court of Appeals of Indiana twice: once in 2017 when his constitutional challenge to the charges was rejected, and again in 2019 when his direct appeal failed.
Benner then moved to the federal courts, filing a petition for collateral relief in the Indiana Northern District Court on the basis that the statute he was charged under — Indiana Code § 35-42-4-7(n) — is unconstitutionally vague. That statute prohibits an adult who “has or had” a professional relationship with a minor from using or exerting that relationship for sex with the minor.
According to Benner, “A person of ordinary intelligence would not understand how he might ‘use’ or ‘exert’ a professional relationship to engage in sexual conduct with a child when that professional relationship no longer exists.” The district court rejected that argument, as did the 7th Circuit.
“This might puzzle Benner’s lawyer, but it would not puzzle an ordinary person,” Judge Frank Easterbrook wrote. “Recall that the statute defines the crime as abusing a professional relationship that a person ‘has or had’ with the victim.
“It is easy to see how a coach can use that position to groom a youngster for sex, even if the coach plans that the sexual activity will follow the basketball season’s end,” Easterbrook wrote. “A jury readily could find that Benner used his time as P.A.’s official coach to set up a situation in which she would depend on him afterward and be easier to seduce.”
Even after his resignation, Benner had a “professional relationship” with P.A. under the statute “because Benner told P.A. that he would take her under his wing and continue coaching her,” the judge wrote. He added, “Benner’s vagueness argument strikes us as an ex post facto argument in disguise.”
“As an argument based on the Ex Post Facto Clause, this is a flop,” he continued. “Indiana did not charge Benner with any conduct that preceded July 2013. It contended — and the jury found — that after July 2013 Benner seduced P.A. by using his influence gained from his former (‘has or had’) position as an assistant coach … .”
Looking to the vagueness issue specifically, the appellate court concluded, “Indiana’s statute does not require courts to hypothesize idealized cases; it calls for concrete application of ordinary words such as ‘use’ and ‘exert’. Compared with some statutes that the Supreme Court has held valid … §35-42-4-7 is a model of precision.”
The case is Mark Benner v. Jesse Carlton, Chief Probation Officer of St. Joseph County, Indiana, 22-1139.
Howard Smallwood v. Don Williams, et al.
7th Circuit vacates summary judgment for prison defendants after inmate alleges sexual assault
An inmate who claims he was sexually assaulted after being forced to undergo a blood draw will get another chance to pursue his case after the 7th Circuit Court of Appeals vacated summary judgment for the defendants.
Pendleton Correctional Facility inmate Howard Smallwood is currently serving a life sentence for murder. In 2017, he was found unconscious in his cell.
Smallwood was treated with Narcan for an assumed drug overdose, but when he was revived he told a nurse that he was diabetic and had been found unconscious before. Dr. Paul Talbot ordered a urine screening, which showed there weren’t any drugs in Smallwood’s system.
Despite the results, Talbot order a blood test. Smallwood asked for a form to refuse his consent to the blood test, but prison guards refused.
The guards then called for backup guards, who twisted Smallwood’s hands and wrists, put him in a head lock and held a taser to his chest while they placed restraints on him. Once Smallwood was in a chair, he was held down while his blood was drawn.
The blood test came back negative for drugs.
After the blood draw, Smallwood alleged the officers took him to an observation cell where they put him in a chokehold, pulled his shirt over his head and punched him. He then claimed they pulled his pants down and placed a knee on his back while they inserted an object into his rectum. He was then left naked in the cell for an hour until guards found him curled up in a corner.
Smallwood was given aspirin for the pain and ice for swelling on his neck and wrist. The next day, Talbot gave him a shot for the pain but ignored his requests for an X-ray or MRI. He was then placed in segregation for physically resisting staff members.
Smallwood attempted to begin the prison grievance prison but was ultimately unsuccessful. At issue is the first step in the grievance process: an attempt at an informal resolution, which can be skipped in cases of sexual assault.
Despite 21 filings, Smallwood never completed the grievance procedure. Among the reasons that his filings were rejected were untimeliness and a failure to informally resolve his complaint.
Smallwood then asked a writ writer to help him file a complaint in the Indiana Southern District Court alleging his Eighth and 14th Amendment rights were violated.
The prison defendants moved for summary judgment, arguing Smallwood had not exhausted his administrative remedies. The district court agreed and granted summary judgment, also finding Smallwood had not completed the grievance process in a timely manner.
Smallwood appealed, and the 7th Circuit vacated the entry of summary judgment in the defendants’ favor.
The key issue the appellate court examined was whether Smallwood was given all necessary information about the grievance procedure.
The court focused, in particular, on the exception to informal resolution efforts in cases of sexual assault, which Smallwood had alleged. Also, it noted the grievance manual “remov[es] the standard time limits on submission for a grievance regarding an allegation of sexual abuse.”
“It was not until this appeal, when Smallwood received appointed counsel, however, that Smallwood’s counsel brought to the attention of this court the fact that the prison had erroneously required Smallwood to comply with this requirement,” Judge Ilana Rovner wrote.
“It is no wonder that Smallwood did not raise this issue while in prison or raise the issue in the district court,” Rovner continued. “The prison administrators themselves told him just the opposite — first, that they would not entertain his grievance as he failed to attempt to informally resolve the matter, and then, a second time, because he filed the grievance too late.
“The prison officials’ misinformation thus thwarted Smallwood from resolution of his sexual assault complaint both in prison and in the district court,” Rovner concluded.
The defendants had also argued that the lawsuit itself was untimely, but the appellate court declined to address that issue because the district court decided the case only on the exhaustion issue.
The case was remanded for further proceedings, including a Pavey hearing.
In a concurrence, Judge Michael Scudder wrote that he would follow a “different path of reasoning,” although he would still remand for a Pavey hearing.
“As best I can tell, the Department — and by extension, the defendants — have never explained why this provision of the Grievance Manual did not excuse Smallwood from pursuing the so-called step zero measure of seeking informally to resolve his sexual-abuse complaint,” Scudder wrote, referencing the sexual assault exception to the informal resolution process. “I would stop there and remand to allow the district court to hold a hearing to determine why, in this prison’s view, Smallwood’s … grievance was insufficient to excuse any informal effort to resolve his complaint with his alleged attackers. Something seems amiss with the Pendleton Correctional Facility’s grievance process, and the district court ought to get to the bottom of it.”
The case is Howard Smallwood v. Don Williams, et al., 21‐3047.
Indiana Supreme Court
Kyle N. Doroszko v. State of Indiana
Supreme Court reverses manslaughter conviction after voir dire error
The Indiana Supreme Court reversed an involuntary manslaughter conviction and ordered a new trial after finding the trial court erred by not allowing defense counsel to directly voir dire prospective jurors.
The case began when Kyle Doroszko arranged to meet Jeremiah Williams to sell him marijuana. The situation escalated quickly at their meeting and ultimately led to a death.
Prior to meeting Doroszko, Williams had been planning to steal the drugs with Traychon Taylor. Both Williams and Taylor got into a car with Doroszko to sample the drugs, but when Williams got out, another man named Atlantis Branch rushed the car with a rifle.
Bullets shattered the back windshield as Taylor and Doroszko fought. Doroszko shot Taylor three times, and Taylor soon died from his wounds.
After the police interviewed Doroszko, he admitted to shooting Taylor in what he claimed was self-defense. The state then charged Doroszko with murder and a firearm enhancement.
At trial, the St. Joseph County judge informed the parties that he would ask the voir dire, but the attorneys could submit questions for the court’s consideration.
Doroszko filed a motion to question the prospective jurors directly, which was denied. He then submitted 60 questions, which included 16 about self-defense. His attorney also renewed his objection to the voir dire procedure as a violation of the Indiana Trial Rules, but he was overruled.
Doroszko’s claim of the self-dense was the focus of his trial. The state, however, argued Doroszko shot Taylor to prevent the drug theft, not out of self-defense.
The jury convicted Doroszko of involuntary manslaughter, which he appealed. The Court of Appeals of Indiana found that the trial court erred by not allowing his counsel to question prospective jurors directly, but the error was held harmless.
In his first opinion, Justice Derek Molter wrote for the high court that reversed the trial court.
“As the State acknowledged at oral argument, the parties now agree the trial court ran afoul of Trial Rule 47(D) during voir dire when it prohibited Doroszko’s counsel from questioning prospective jurors directly,” Molter wrote. “… The trial court not only denied Doroszko the opportunity to conduct his own examination, it also inadequately examined the prospective jurors on controversial legal principles relevant to his claim of self-defense.
“… In short, we have previously held that it is reversible error for the trial court to prohibit any inquiry of prospective jurors regarding self-defense,” Molter continued. “… It follows that an inadequate opportunity requires the same remedy. Because the trial court’s voir dire procedure here was inadequate to ensure a fair and impartial jury with respect to self-defense, we must reverse for a new trial.”
The case is Kyle N. Doroszko v. State of Indiana, 23S-CR-25.
Court of Appeals of Indiana
Akinfemiwa Akinribade v. State of Indiana
Accused rapist wins discovery victory, but COA splits
A split Court of Appeals of Indiana has partially reversed for an accused rapist on interlocutory appeal after finding the state failed to justify the disclosure of six pages of a DNA summary after the defendant introduced just one page into evidence at a deposition.
Akinfemiwa Akinribade was charged with rape in 2021 and provided a DNA sample that was sent to a local crime lab for testing.
Crime lab DNA analyst Amanda Wilson generated a DNA profile from the sample and compared it with DNA profiles generated from samples from the alleged victim’s sexual assault kit, then compiled a report of her findings. Akinribade obtained a copy of the report and retained an expert, who prepared a seven-page “Consultation Summary.”
In June 2022, Akinribade deposed Wilson. During the deposition, Akinribade handed Wilson the consultation summary’s third page, which was entered into the record, and questioned her about it.
Following the deposition, the state filed a motion for discovery requesting disclosure of the entire summary. The Marion Superior Court granted the state’s motion without a hearing.
Akinribade then filed a motion to reconsider, acknowledging that the state is “entitled to reports and identities of any expert witnesses that [he] intends to call as witnesses at a trial or hearing.” But he also argued that he did not intend to call any expert witnesses other than Wilson, and that the expert’s consultation summary was protected by the work-product privilege.
At a hearing on the motion to reconsider, the state countered that Akinribade waived the privilege with respect to the entire summary by introducing the single page into evidence at Wilson’s deposition.
The trial court agreed with the state and an appeal ensued.
At the COA, judges were split on whether the six pages could be entered. The majority ultimately ruled for Akinribade.
“…(A)s for the remaining six pages of the summary, we agree with Akinribade that the State failed to make the requisite threshold showing of either substantial need or exceptional circumstances under Trial Rule 26(B), and thus we do not even reach the question of whether Akinribade waived the work-product privilege.
“… We note that the State cites no authority to support its assertion that a deposition is a court proceeding for purposes of Evidence Rule 502(a), and we leave that question for another day,” Crone continued.
Crone was joined by Judge Leanna Weissmann in the majority while Judge Melissa May dissented with a separate, seven-page opinion.
“I believe it is an accepted fact that a deposition is a court proceeding and, thus, the State was not required to set forth specific argument to demonstrate something that is well-known in trial practice,” May wrote. “… Because Akinribade waived work-product privilege when he intentionally introduced a portion of his expert’s report during a deposition, I would hold the trial court did not abuse its discretion when it refused to overturn its grant of the State’s motion for discovery of that expert’s entire report.”
The case is Akinfemiwa Akinribade v. State of Indiana, 22A-CR-1757.
Edna Martin Christian Center, Inc., and Edna Martin Holdings LLC v. Jeremiah Smith, as Personal Representative for the Estate of Johnny T. Purchase, Deceased
Reversal: Personal rep can’t pursue emotional distress damages under wrongful death statute
The estate of a contractor who was shot and killed while canvassing an Indianapolis apartment complex will not receive emotional distress damages, the Court of Appeals of Indiana has ruled.
In January 2021, Johnny T. Purchase was on the premises of New Bridge Apartments in Indianapolis working as an independent contractor for the Edna Martin Christian Center and Edna Martin Holdings LLC. Purchase was canvassing the area and distributing flyers with information about the Martin Christian Center, which provides civic outreach services in conjunction with B4U Fall Inc. and Big Homies of America.
While at New Bridge, which was managed by TBH Realty and Management, Purchase was shot and killed by a tenant or visitor on the premises. Purchase was unmarried and was the father of six nondependent adult children and one dependent child.
In April 2021, Purchase’s estate filed a complaint against the Martins, Big Homies, B4U and TBH alleging various claims. Count III — the subject of the interlocutory appeal — asserted intentional infliction of emotional distress in a wrongful death action that was initiated by Jeremiah Smith as personal representative of the estate.
Count III included the verbiage: “The Defendants’ conduct constitutes extreme and outrageous conduct that goes beyond all possible bounds of decency. As a direct and proximate result of Defendants’ acts and omissions, the surviving children of Decedent Purchase … suffered damages, including, but not limited, to the loss of love and companionship of their father, and severe pain, suffering, and mental and emotional anguish, and a loss of enjoyment of life, which will continue into the future.”
An interlocutory appeal ensued after the Marion Superior Court declined to summarily dismiss the claim.
At the Court of Appeals, judges reversed, finding the estate failed to state a claim upon which relief can be granted.
Judges looked at Ind. Patient’s Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010), among other cases, when looking at Indiana’s three wrongful death statutes and making the determination.
“Moreover, although the plaintiff in Patrick sought to bring a separate claim for emotional distress as an individual, Purchase’s children are not proper parties here, as only the Estate set forth the causes of action,” Chief Judge Robert Altice wrote. “And, because only statutorily prescribed damages are allowable under our wrongful death statutes, to permit the Estate to advance a separate claim for emotional distress damages would result in an improper expansion of liability. … In short, a claim for intentional infliction of emotional distress, and any resulting damages, is not permitted under the (general wrongful death statute).”
On remand, judges ordered the trial court to grant the Martins’ motion to dismiss the claim.
The case is Edna Martin Christian Center, Inc., and Edna Martin Holdings LLC v. Jeremiah Smith, as Personal Representative for the Estate of Johnny T. Purchase, Deceased, 22A-CT-1420.
In the Matter of the Adoption of C.W.; J.R. v. L.W.
COA: Mother didn’t abandon child, consent needed for adoption
A northern Indiana mother has won a reversal on an adoption petition granted to her child’s stepmother after the Court of Appeals of Indiana concluded she did not abandon her child and her consent was required for the adoption.
C.A.W. was born in October 2008 to mother J.R. and father S.W. The couple executed a paternity affidavit and the child remained in the mother’s custody until 2015, when C.A.W. was adjudicated as a child in need of services.
Father filed a petition to modify custody, and in 2016, the parties entered into an agreed order providing: (1) joint legal custody of the child; (2) S.W. having primary physical custody of the child; (3) “a child support order in the amount of $0.00” because the parties agreed to “contribute to the minor child’s expenses equally”; and (4) mother having “liberal parenting time of every other weekend and at all other time[s] as parties may reasonably agree.”
S.W. and C.A.W. lived with stepmother L.W. for three years, and father and stepmother married in September 2020.
J.R. visited with C.A.W. once or twice a month and last saw her child a few days after his birthday in October 2020. Mother then spoke with the child the week before Christmas 2020 to make arrangements to see him for the holidays.
The mother, however, received a text message from S.W. that she would not be allowed to see or talk to the child and that the father was blocking her telephone number. J.R. has been unable to speak to or see C.A.W. since that time despite efforts to see the child at his school and at S.W.’s residence.
In June 2022, the St. Joseph Probate Court granted L.W.’s petition to adopt C.A.W., concluding J.R. had not seen or communicated with the child since October 2020, had a “very sporadic role” in the child’s life and “would abandon” the child for significant time over the years.
Upon review, the Court of Appeals found the petition shouldn’t have been granted without the consent of J.R.
First, the COA found that the evidence was clear that S.W. thwarted communication between J.R. and her child, citing E.B.F. v. D.F., 93 N.E.3d 759 (Ind. 2018), in concluding the trial court erred on the abandonment claim.
Further, the judges found the mother did provide some items to the child, while the stepmother was asking to reweigh the evidence regarding failure to provide support.
“Under these circumstances, we cannot say the trial court erred in concluding that Indiana Code Section 31-19-9-8(a)(2) did not provide a basis by which to dispense with the consent requirement,” Judge Elizabeth Tavitas wrote.
The case is In the Matter of the Adoption of C.W.; J.R v. L.W., 22A-AD-1804.
Brittany Rubendall, on her own behalf and on behalf of those similarly situated v. Community Hospital of Anderson and Madison County
Hospital that broadcast patient information on radio doesn’t have to pay emotional distress damages, COA affirms
Despite her private health information being broadcast to the public on the radio, a woman failed to overturn the entry of summary judgment in favor of an Anderson hospital that she sued for negligence.
Since 2001, Community Hospital of Anderson and Madison County has used an email-to-pager system to notify departments and staff members of any scheduling changes. The messaging system includes protected health information of patients.
A news reporter learned of the system and purchased a software-defined radio to investigate any possible HIPAA violations. The reporter discovered they were able to intercept the transmissions and later decoded them.
In 2019, Brittany Rubendall was scheduled to have an add-on same-day procedure. The hospital used its email-to-pager system to inform the surgery department of Rubendall’s add-on surgery. A few months later, Rubendall was contacted by the reporter informing her that they were able to decode the transmission sent by the hospital. The reporter was able to recite her date of birth, the date she received the treatment in the emergency room and the diagnosis she received from the doctor.
Rubendall filed a putative class-action lawsuit against the hospital claiming negligence and invasion of privacy. The hospital attempted to dismiss the complaint under Indiana Trial Rule 12(B)(6), but the Madison Circuit Court denied the motion.
Rubendall then filed an amended complaint, and the hospital answered and filed affirmative defenses.
The matter remained largely quiet until the Indiana Supreme Court ruled in Cmty. Health Network v. McKenzie, 185 N.E.3d 368 (Ind. 2022).
There, the court addressed the requirements for emotional distress damages in a negligence action and recognized public disclosure of private facts, or PDPF, as a viable cause of action in Indiana. The court also addressed the element of publicity in proving a PDPF claim.
The hospital filed a motion to stay briefing on class certification so it could seek summary judgment. The trial court granted that motion and later granted summary judgment for the hospital.
The trial court relied on McKenzie in ruling that Rubendall couldn’t recover emotional distress on her negligence claim because she didn’t satisfy the Modified Impact Rule. It also ruled that her PDPF claim failed because the designated evidence negated the publicity element.
Rubendall then appealed but the Court of Appeals of Indiana affirmed.
Rubendall presented two issues to the court.
First, she argued the trial court erred in concluding her negligence claimed failed as a matter of law because she didn’t satisfy the Modified Impact Rule.
Rubendall labeled her damages as “loss of privacy,” which she associated with “embarrassment, stress and anxiety.” However, under the Modified Impact Rule, the COA concluded she didn’t suffer physically.
“Because she admits that she has not suffered any physical impact, her negligence claim fails as a matter of law,” Chief Judge Robert Altice wrote.
The second issue on appeal was whether the trial court made an error in concluding Rubendall’s PDPF claim failed as a matter of law because there wasn’t evidence to support the finding.
Rubendall argued that because the hospital broadcast patients’ personal information over short-wave radio airwaves without encryption, her privacy was invaded. She relied on Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009), to support her argument. In Yath, private information was available on the internet, but only a small amount of people viewed it.
The Minnesota court viewed that disclosure as being similar to a newspaper or radio broadcast because the information was available to the public.
“We first note that Yath has no precedential value and that, in any event, it is distinguishable,” Altice wrote.
For its part, the hospital noted that the messages could only be accessed at a precise moment, rather than readily available to the public.
“For these reasons, the Hospital’s transmission of PHI via short-wave radio airwaves between departments is not actionable here,” Altice concluded. “As in McKenzie, where our Supreme Court concluded as a matter of law that the designated evidence did not support a finding of publicity, we likewise conclude that there is no designated evidence that the Hospital disclosed the information to, or in a way that was sure to reach, the public or a large number of people.”
The case is Brittany Rubendall, on her own behalf and on behalf of those similarly situated v. Community Hospital of Anderson and Madison County, 22A-CT-2223.
Chad A. Keister v. State of Indiana
‘Confusing’ jury instruction leads to reversal of child molesting conviction
The July 2014 revision to Indiana’s criminal code has resulted in the Court of Appeals of Indiana vacating a man’s child molesting conviction after finding that a jury instruction straddling both sides of the effective date of the revision could have confused jurors.
Appellant-defendant Chad Keister was living with his girlfriend, A.L., and her 11-year-old daughter, A.W., in 2012 when he began inappropriately touching A.W. on multiple occasions. The girl didn’t report the molestation until December 2015, when she confided in a school counselor.
Keister and A.L. broke up and Keister was subsequently charged with Class C and Level 4 felony counts of child molesting.
A.W. testified at the ensuing trial, but she was not able to pinpoint the exact dates when the molestations occurred.
To that end, the state proposed a jury instruction that said it was “not required to prove the crime charged was committed on the particular date or during a particular time period alleged in the charging information.”
Keister objected to that instruction, but the Warrick Circuit Court gave it to the jury over his objection. He was then found guilty as charged and was sentenced to an aggregate of six years, with four years executed.
On appeal, Keister argued the jury instruction contained a misstatement of law that could have misled the jury. The Court of Appeals agreed and partially reversed in Chad A. Keister v. State of Indiana, 22A-CR-1531.
In a Feb. 8 opinion, Judge Margret Robb pointed to the July 1, 2014, effective date of the revision to the Indiana criminal code as presumably explaining why Keister was charged with both a Class C felony and a Level 4 felony. The Class C charge related to incidents in August 2012 and June 2014, while the Level 4 felony charge related to incidents in July 2014 and August 2015.
The revision also changed the applicable sentences: A Class C felony was punishable by up to eight years while a Level 4 is punishable by up to 12.
In explaining the decision to partially reverse, Robb focused on Count II and noted that A.W. testified to one molestation in all of 2014.
“She did not pinpoint a more specific date or a narrower time period, and the State did not try to elicit any testimony from which a date or a time period could be inferred, such as which grade she was in at school, or what type of clothing she was wearing (i.e., shorts versus a winter coat) when it happened,” Robb wrote. “With the entirety of 2014 on the table as to the date of the offense, the question is whether instructing the jury that the specific time period does not matter is problematic as to Count II. … (W)e conclude it was.
“The evidence showed the single 2014 act may have occurred in the time period alleged in Count II (July 1, 2014 to August 26, 2015) but it also may have occurred in the time period alleged in Count II (August 27, 2011 to June 30, 2014),” Robb continued. “Because the classification of and penalties for crimes changed in mid-2014, it does matter to that extent when the 2014 molestation occurred. Based on the evidence elicited by the state, we simply cannot know into which count the 2014 act should be sorted.
“The trial court did read the charging information as part of the final instructions, including the date ranges alleged for each count. But by instructing the jury thereafter that the State did not have to prove the 2014 offense occurred on a particular date or during the particular time period alleged in the information, the jury could have been misled into believing that if the single act of molestation occurred anytime in 2014, it could find Keister guilty of Count II.”
Not only was that erroneous, the COA found, but it was also prejudicial to Keister’s substantial rights. Thus, the appellate court remanded for the trial court to vacate the Level 4 felony conviction and to issue a new sentencing order on the Class C felony only.•