Indiana Court Decisions – June 17-30, 2021

7th Circuit Court of Appeals

June 29

Criminal – Competency/Weapons

United States of America v. Jacob K. Wessel


The 7th Circuit Court of Appeals has upheld a finding that a defendant facing a weapons charge was competent to stand trial despite defense counsel’s insistence to the contrary.

Issues began in United States of America v. Jacob K. Wessel, 19-3002, after police received a call in August 2016 that defendant-appellant Jacob Wessel had talked about suicide and had stolen a car. Once police found the car and Wessel, he ran and was ordered to the ground.

Wessel refused and told officers to shoot his head, but they refused. Wessel then said, “Well, if you’re not going to do it …” and drew a gun, raising it toward an officer.

Police shot the gun out of Wessel’s hand and hit his shoulder. He was later charged and convicted as a felon in possession of a firearm.

Prior to his conviction, Wessel was ordered to three, 45-day evaluations by mental health experts. He was evaluated by multiple other mental health experts sent by defense counsel and underwent three competency hearings.

The Indiana Southern District Court ultimately found Wessel competent to stand trial, but during voir dire, Wessel struck the table, rose from his chair and “erupted in a volcano of profanity and accusations, including accusations that the United States was trying to kill him and ‘It’s alien mind control!’”

After now-Chief Judge Tanya Walton Pratt sent him to a remote room where he stayed for most of the trial, she later brought Wessel back and advised him of his rights to testify or not. After asking defense counsel if he and Wessel had discussed the issue, Wessel’s attorney said, “Your Honor, I haven’t had any rational discussions with Mr. Wessel in three years.”

Wessel ultimately did not testify and was convicted by a jury “quickly.” He was sentenced to 100 months in prison.

The 7th Circuit Court of Appeals rejected Wessel’s request to vacate the conviction, ruling that the district court committed no clear error in finding Wessel competent to stand trial, despite multiple assertions from defense counsel that he was not.

On Wessel’s argument that the district court applied the wrong standard for competency, the 7th Circuit noted that the chief judge “quoted that exact language from (Dusky v. United States, 362 U.S. 402 (1960)) at the outset of her analysis and reiterated that standard throughout.”

“We are not convinced (Price v. Thurmer, 637 F.3d 831, 833–34 (7th Cir. 2011)) lowered the Dusky standard. And it is clear the judge did not rely solely on Price,” Senior Judge Daniel Manion wrote for the 7th Circuit. “… It is important that we defer to the district judge because she was in the courtroom, she heard the testimony of the three experts, she was in a position to evaluate their strengths and weaknesses, and she could also evaluate Wessel’s demeanor over time.”

The appellate panel likewise found the district court was well-positioned to conclude that Wessel was not presently suffering from a mental disease or defect rendering him incompetent, and that he could cooperate if he wanted to during trial. Thus, it found no clear error in the court’s reliance on the government’s experts.

Finally, the panel concluded the chief judge committed no clear error in determining Wessel was competent for trial even though she denied his attempted jury waiver. It further noted that it found nothing in the record to indicate the district court did not consider and carefully weigh defense counsel’s position.

“To the contrary, she took him very seriously. She entertained doubts. She ordered multiple evaluations and competency hearings. She assessed and re-assessed. Again, we see no clear error,” Manion wrote.

“We commend Chief Judge Pratt. She exercised great patience, took many steps to assess Wessel’s competency and respect his rights, and demonstrated open-mindedness all along the case’s long, zig-zag path.”

The court closed with a footnote saying, “Wessel has our sympathy.”

Indiana Supreme Court

June 21

Criminal – Accidental Release/Credit Time

Jordan Allen Temme v. State of Indiana


It’s now up to a trial court to calculate credit time and determine whether a man who was released from prison too soon should be reincarcerated or remain free, the Indiana Supreme Court wrote in a June 21 reversal.

Justices after hearing oral argument have ruled in the case of Jordan Allen Temme v. State of Indiana, 21S-CR-310, one of first impression involving man who was erroneously released from prison more than two years early and later ordered back behind bars.

Jordan Temme, who had been in jail since June 2016, was ordered to go back to the Department of Correction after he was released too early in July 2019. Temme was previously convicted under two causes of two Level 6 felony charges and eight misdemeanors. Factoring in time served and day-for-day credit, his projected release date should have been December 2020.

Upon intake into the DOC, Temme was erroneously awarded 450 days of jail credit, all of which were supposed to apply to his misdemeanor sentences. As a result, Temme was remanded to the custody of the Vanderburgh County Jail after serving only 10 months of his felony sentences. He was also discharged from parole supervision.

Another 450 days of credit time were given to Temme at the jail, and although he raised questions about whether his release date was too early, Temme was released from custody with 450 days left on his sentence.

When the state moved to reincarcerate him, Temme filed three motions: one to award credit time for time erroneously at liberty, one for the remainder of his executed sentence to be served in community corrections and one to modify his sentence to community corrections. But he was ordered back to the DOC in January 2020, and the Court of Appeals affirmed.

But the Indiana Supreme Court reversed after finding that, while erroneous release may not short-circuit the entirety of a person’s sentence, that person may, after the trial court holds a hearing, earn credit for time spent erroneously at liberty as if they were still incarcerated.

Writing for the unanimous high court, Justice Steven David began by noting that Indiana’s statutory scheme regarding credit time is not as comprehensive as the state suggests. Specifically, he noted that while it agreed Temme’s time at liberty does not qualify for credit time under Indiana Code Chapter 35-50-6, the statute occupies less space than the state would have the justices find.

“Read as a whole, we find the statute only covers what it says it covers. That is, Indiana Code chapter 35-50-6 only concerns credit time while an inmate is imprisoned or confined. We do not think the General Assembly has, by implication, excluded all other forms of credit time,” David wrote for the high court. “… Rather, we suspect this is the rare case that does not neatly fit into any particular box. Trying to shoehorn Temme’s quandary into the statute leads to an unworkable result that frustrates several purposes of our criminal code.”

The court thus concluded that although Temme may be entitled to credit for time spent at liberty, his erroneous release does not vacate the remainder of his sentence.

“As long as the defendant bears no active responsibility in his early release, he or she is entitled to credit while erroneously at liberty as if still incarcerated,” the court held. “This straightforward rule, however, does not relieve the defendant of his or her sentence. The defendant’s projected release date serves as a firm backstop. When it discovers an error, the State must petition a trial court to recommit the defendant to resume his or her sentence if, after calculating credit time, any sentence remains to be served.”

The Supreme Court added that Temme’s good behavior and successful reintegration into society “is certainly commendable and would likely qualify as ‘good time credit’ under the statute were he still incarcerated.” It also found that Temme may qualify for educational credit if he had previously been enrolled in a program but could not participate due to his erroneous release.

“We therefore reverse the trial court and remand this matter so that the trial court can calculate, consistent with this opinion, any credit time owed to Temme,” David concluded. “If time remains to be served after credit time is awarded, Temme must be recommitted to the appropriate authority.”


June 22

Criminal – Confidential Informant/Interview

State of Indiana v. Justin Jones


An order requiring a confidential informant to undergo a face-to-face interview with defense counsel has been reversed by the Indiana Supreme Court, which found that an individual’s identity would be inherently revealed through their physical appearance at such an interview.

In State of Indiana v. Justin Jones, 21S-CR-50, Justin Jones was charged in Marion Superior Court with Level 2 felony burglary, Level 3 felony counts of robbery, criminal confinement and kidnapping as well as Level 5 felony kidnapping and Level 6 felony auto theft.

A confidential informant who had specific information about a home invasion and possible subjects provided information to officers who were investigating the robbery and assault of a woman in her home, leading to Jones’ charges.

The Marion Superior Court, following three failed attempts at questioning the CI in a manner that protected the informant’s identity, ordered the state to produce the CI for a face-to-face interview with Jones’ counsel. The Indiana Court of Appeals affirmed the order on appeal, finding that Jones had met his burden to demonstrate that the CI had information relevant and helpful to his defense or necessary for a fair trial.

But Indiana Supreme Court justices disagreed, holding that an informant’s identity is inherently revealed through their physical appearance at a face-to-face interview.

“Thus, when a defendant requests such an interview — as Justin Jones did here — the State has met its threshold burden to show the informer’s privilege applies. And because the trial court did not apply the established balancing test before ordering disclosure, we reverse and remand,” Chief Justice Loretta Rush wrote for the unanimous court.

In agreeing with the state, the justices concluded that the trial court should have employed the established balancing test to determine whether an exception to the confidential informer’s privilege was warranted.

“The situation before us, though, is markedly different from that in Beville v. State, 71 N.E.3d 13, 21 (Ind. 2017),” the high court wrote. “Unlike the video of the controlled buy, Jones’s requested face-to-face interview with the CI ‘would obviously reveal’ the CI’s identity, as the interview would disclose physical appearance, which is tantamount to an informant’s identity.”

Justices then rejected Jones’ assertions that such a showing was insufficient to trigger the privilege and that the state must establish a recognition standard. They pointed out that proving recognition would be an impossible burden for the state to meet.

“Second, an interviewer’s recognition of a CI would depend on that CI’s personal characteristics. And it would be arbitrary to apply this privilege to people with distinct physical characteristics, making them more easily recognizable, but not to others who have less identifiable features,” the high court wrote.

Lastly, it noted that such a standard would vary based on geographical areas, like packed cities as compared to less populous rural communities.

On a final note, the justices reminded Jones that modern technology “offers plenty of ways to interview a CI without the meeting being face-to-face” through phone applications and camera filters.

“In an age where an attorney can appear in a Zoom court hearing as a cat, the State and defendants can certainly work together to provide the information necessary for a full defense without revealing a CI’s physical appearance and, thus, identity,” Rush wrote.

The high court went on to note that once the informer’s privilege is triggered, the burden shifts to the defendant to show why disclosure is warranted. A trial court must then engage in a balancing inquiry.

“Here, however, nothing in the record suggests the trial court engaged in the appropriate balancing inquiry when ordering a face-to-face interview,” it wrote. “Rather, the trial judge explained he had known defense counsel for a long time and trusted counsel was ‘looking for something real.’ The judge added that ‘I’d be curious, too,’ and so decided to ‘let him talk to the guy, let him find out what he can find out.’ But, as explained above, this is not sufficient.”


June 29

Domestic Relations – Divorce Mediation/Confidential Evidence

Russell G. Berg v. Stacey L. Berg


Despite the erroneous admission of confidential evidence prepared in anticipation of a divorce mediation, the Indiana Supreme Court has upheld the award of half of a man’s stock to his now-ex-wife due to his breach of the divorce agreement.

The high court on June 29 affirmed the Allen Circuit Court in Russell G. Berg v. Stacey L. Berg, 21S-DC-320. The high court ruled in the case that documents produced in anticipation of mediation are covered under settlement negotiation confidentiality requirements.

The case involves Stacey Berg, who was awarded half of the disputed $122,000 stock account held by her former husband, Russell Berg, after the couple entered into a mediated divorce settlement agreement.

Almost a year after the agreement was approved, Stacey filed a Trial Rule 60(B) motion claiming the stock account was omitted from the marital balance sheet used at mediation. Had it been included, Stacey argued, she would not have agreed to the settlement.

The trial court eventually awarded Stacey half of the stock, but she was stripped of that share on appeal, causing a split among a panel of the Indiana Court of Appeals. The majority of judges L. Mark Bailey and Robert Altice concluded that without the mediation evidence, there was insufficient evidence to find that Stacey could avoid the settlement agreement.

In a dissent, however, Judge Terry Crone wrote that he would have affirmed the grant of money to the ex-wife. He opined that Russell’s argument that Stacey’s exhibits were inadmissible under Indiana Evidence Rule 408 “falls far short of establishing that the trial court abused its discretion in relying on Wife’s exhibits.”

In an opinion granting transfer to the Bergs’ dispute, the Indiana Supreme Court sought to answer the question of whether documents produced in anticipation of mediation fall under settlement negotiation confidentiality requirements.

“We conclude that they do and hold that the trial court erroneously admitted a marital balance sheet prepared for mediation to allow Wife to avoid the parties’ settlement agreement,” Justice Christopher Goff wrote for the unanimous court. “But, because the trial court also found that Husband had breached the settlement agreement, we affirm the trial court.”

The justices, who disagreed with her reading of the rules, first noted that Stacey’s evidence was inadmissible to avoid the settlement agreement under Rule 408. It concluded that information exchanged specifically to assist in mediation, but disclosed prior to mediation, falls under the rule.

Justices also found that the balance sheet wasn’t admissible as evidence discoverable outside of settlement negotiations, stating, “Rather, the figures on the balance sheet reflected the positions that the parties took on the value of certain property for the purpose of negotiation.”

Further, the court found that challenging the validity of the settlement agreement is not a collateral matter for the purposes of 408(b)’s exception. It concluded that because the trial court relied on the inadmissible evidence to find that fraud, constructive fraud, mutual mistake or misrepresentation had occurred, that finding cannot be the basis for Stacey’s relief.

However, the high court found that a warranty clause in which “each of the parties” warrants “one to the other” doesn’t preclude a party from demonstrating breach of warranty. It disagreed with the COA’s holding that because Stacey also warranted that all assets and debts had been “correctly and truly” revealed and reflected in the agreement, she is “estopped from obtaining relief because Wife is disputing the truth of her own assertions.”

“If we were to interpret the warranty clause as the Court of Appeals did, that clause would be meaningless because neither party would be able to enforce it,” Goff wrote.

“… The trial court didn’t abuse its discretion in determining that Husband breached the Agreement. And Indiana has a statutory presumption of a 50/50 division of marital assets. … Thus, the trial court didn’t err in awarding Wife 50% of the Edward Jones account because of Husband’s breach of the Agreement,” the justice concluded.


June 30

Certified Question – Medical Malpractice/Third-party Plaintiffs

Jeffrey B. Cutchin v. Amy L. Beard


Answering a question posed by the 7th Circuit Court of Appeals, the Indiana Supreme Court on June 30 ruled that Indiana’s Medical Malpractice Act applies to cases where a third-party plaintiff alleges that negligent treatment to someone else resulted in injury to the plaintiff. One justice, however, cautioned against the expansion of the Medical Malpractice Act.

Justice Geoffrey Slaughter wrote for the high court in Jeffrey B. Cutchin v. Amy L. Beard, 21S-CQ-48. Justice Steven David concurred in result.

The case involves then-72-year-old Sylvia Watson, who in 2017 took two prescription pills that resulted in her inability to lift her foot from the gas pedal at a red light. Watson ran the light and crashed into another vehicle, killing the other driver and her daughter, Claudine and Adelaide Cutchin, as well as Watson herself.

A blood test later showed that Watson had opiates in her system. The drugs were prescribed by a person named in the opinion only as “physician,” who had prescribed Watson at least eight medications over the years at a clinic.

About one year after the crash, Jeffrey Cutchin, husband to Claudine and father to Adelaide, filed a medical malpractice complaint with the Indiana Department of Insurance as well as a civil complaint in the U.S. District Court for the Southern District of Indiana. Cutchin alleged the physician had breached the standard of care as to Watson and had negligently caused the wrongful deaths of his wife and daughter. He sought declaratory judgment that the Indiana Medical Malpractice Act applied to his case.

The case proceeded to a settlement conference in the district court, and the physician agreed to pay the $250,000 statutory cap under the act in exchange for Cutchin dropping proceedings before a medical review board. However, Cutchin reserved his rights under the Patient’s Compensation Fund, which could pay up to $1 million beyond the physician’s liability.

The fund argued it had no liability because the case wasn’t covered under the Medical Malpractice Act, and the district court ultimately entered judgment for the fund on its cross-motion for summary judgment as to Cutchin’s request for declaratory relief. The case then went to the 7th Circuit, which certified two questions to the Indiana Supreme Court:

Whether Indiana’s Medical Malpractice Act prohibits the Patient’s Compensation Fund from contesting the act’s applicability to a claim after the claimant concludes a court-approved settlement with a covered health care provider.

Whether Indiana’s Medical Malpractice Act applies to claims brought against qualified health care providers for individuals who did not receive medical care from the provider but who are injured as a result of the provider’s negligence in providing medical treatment to someone else.

Answering only the second question, the high court responded affirmatively based on the definition of “patient” in Indiana Code § 34-18-2-22: “an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes the person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.”

Based on that definition, Slaughter said, there are two categories of “patients”: a traditional patient and a third party with a claim against a health care provider under state law.

“This latter category refers to a third party whose claim results from a provider’s malpractice to someone in the first category, namely, a traditional patient,” Slaughter wrote. “Here, Cutchin is not a traditional patient because he has no patient-provider relationship with either Physician or Clinic. But he is nevertheless a statutory ‘patient’ because he has a wrongful-death claim resulting from Physician’s and Clinic’s alleged malpractice to Watson, who is their traditional patient.”

That holding is supported by precedent including Cram v. Howell, 680 N.E.2d 1096 (Ind. 1997), Goleski v. Fritz, 768 N.E.2d 889 (Ind. 2002), and Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011), Slaughter said.

The fund supported its argument with Midtown Community Mental Health Center v. Estate of Gahl, 540 N.E.2d 1259 (Ind. Ct. App. 1989), but the high court disapproved of Gahl’s implicit reasoning to the extent that it conflicts with the Legislature’s broad definition of “patient.” It likewise disapproved of Preferred Professional Insurance Co. v. West, 23 N.E.3d 716 (Ind. Ct. App. 2014), which the fund also cited.

“Section 34-18-2-22 says that a third party who did not receive medical care from a provider but who has a claim due to the provider’s medical malpractice to a traditional patient also is a ‘patient’ under the Act. We thus answer the second certified question in the affirmative,” Slaughter concluded.

Because answering the second question resolved the case, the justices declined to answer the first regarding whether the fund can contest the applicability of the act after a claimant concludes a settlement.

While Justice David concurred in result “given the unique factual background and procedural posture of the case,” he wrote separately to “express (his) concerns about the expansion of the Medical Malpractice Act.”

“While the majority makes much of the language ‘claim of any kind’ and ‘and,’ I believe the opinion’s broad definition of ‘patient’ renders the whole opening clause of its definition meaningless,” David wrote. “Additionally, I interpret the ‘and’ differently as I do not think it is separating two kinds of patients, but rather setting guardrails for who may bring a claim under the Act.

“… Because the statute is open to more than one reasonable interpretation, it is ambiguous. Therefore, I believe it must be construed narrowly,” he wrote.

“I remain concerned with continued expansion of the Act and believe that this expansion may have unintended consequences,” David concluded. “While it may help this particular plaintiff, it may hurt future litigants who would be better served filing their claims not through the Medical Review Panel, but directly and initially through the court.”

Indiana Court of Appeals

June 24

Criminal – Inmate Discipline/Double Jeopardy

Kennic T. Brown v. State of Indiana


Disciplinary sanctions imposed by the Indiana Department of Correction against a Miami County inmate for battering an officer did not constitute double jeopardy barring criminal prosecution, the Indiana Court of Appeals has ruled.

While serving time as an inmate at the Miami Correctional Facility in 2019, Kennic Brown was charged with Level 6 felony battery against a public safety officer after he allegedly fought with and scratched an on-duty prison guard.

A DOC disciplinary hearing regarding the allegation was held and Brown was found to have violated a conduct code. He was subsequently sentenced to nearly one year in the restrictive housing unit, a 45-day commissary restriction, deprivation of 180 days of credit time and demotion of one credit class.

In addition to his DOC punishment, the state charged Brown with battery against a public safety officer based on the same charge. His motion to dismiss on double jeopardy grounds was denied, however, when the Miami Superior Court found the criminal charge did not constitute double jeopardy barring criminal prosecution.

The Indiana Court of Appeals agreed, finding that in the terms used in United States v. Ward, 448 U.S. 242 (1980), deprivation of credit time is not so punitive either in purpose or effect that it constitutes a criminal penalty that would subject a person to double jeopardy.

“Brown also argues that his 360-day confinement in the restrictive housing unit is punitive in nature because it was psychologically and physiologically detrimental to him,” Judge Margret Robb wrote for the appellate court, which acknowledged Brown had suicidal thoughts during his time in that placement.

“All disciplinary actions are to some extent intended to punish an inmate for violating DOC rules. And some disciplinary actions are more severe than others,” Robb wrote. “As acknowledged in (Lyons v. State, 475 N.E.2d 719 (Ind. Ct. App. 1985), trans. denied), that is how DOC ensures peace and order within its facilities. … But the question when considering a double jeopardy claim is not whether the discipline is punitive, but whether it is so punitive as to essentially be a criminal punishment.”

Citing Williams v. State, 493 N.E.2d 431 (Ind. 1986), the appellate panel noted that although the defendant in Williams was only confined for 31 days as opposed to Brown’s 360-day confinement, “Brown does not argue that the length of his confinement made it punitive, only that the fact of his confinement was punitive.”

It therefore concluded that the disciplinary action taken by the DOC against Brown for his conduct violation did not preclude the state’s criminal prosecution of him for the same act.

The case is Kennic T. Brown v. State of Indiana, 20A-CR-2261.

Civil Tort – 911 Call/Governmental Immunity

Howard County Sheriff’s Department and Howard County 911 Communications v. Derrick Duke and Dustin Duke, as Co-Personal Representatives of the Estate of Tammy Lynn Ford, Deceased


A genuine issue of material fact still exists on the willful or wanton exception to governmental immunity for the use of a 911 system in the case of mishandled Howard County emergency call that resulted in a woman’s death, the Indiana Court of Appeals has affirmed.

In the interlocutory appeal of Howard County Sheriff’s Department and Howard County 911 Communications v. Derrick Duke and Dustin Duke, as Co-Personal Representatives of the Estate of Tammy Lynn Ford, Deceased, 20A-CT-1936, the Howard County Sheriff’s Department and Howard County 911 Communications appealed an order denying their motion for summary judgment on a complaint filed by Derrick Duke and Dustin Duke as co-personal representatives of the estate of Tammy Lynn Ford.

In 2015, Ford had called 911 and said she couldn’t breathe, giving her address when asked by dispatcher Zachary Rudolph. But Rudolph did not enter Ford’s address into the computer as required by protocol and hung up when a second dispatcher, Hillary Farmer, took over the call.

Without verifying Ford’s address, medics and the Kokomo Fire Department were dispatched to Ford’s apartment. But the address was incorrect, leaving the medics 10 blocks away from Ford. Upon arrival at the correct location, they found her without a pulse, and Ford was later pronounced dead at the hospital.

Her estate filed a complaint against the county and sought damages recoverable under the wrongful-death statute, alleging, in part, that the county had negligently and carelessly sent the medics to the incorrect address and that the delay had resulted in Ford’s death. It also alleged the county’s actions amounted to willful or wanton misconduct.

The Howard Circuit Court issued an order denying the county’s summary judgment motion, concluding genuine issues of material fact existed as to the issue of willful or wanton misconduct.

The Indiana Court of Appeals in its June 24 decision noted there’s no dispute that 911 system immunity under Indiana Code § 34-13-3-3(a)(19) would be applicable to the county — but only so long as there was no willful or wanton misconduct by the county’s 911 dispatch.

“The County designated evidence to suggest that the dispatchers’ actions were a mistake, but, as the trial court concluded, the Ford Estate designated evidence to show that there were ‘genuine issues of material fact as to whether the actions of the Howard County employees constituted willful or wanton misconduct so as to except the Howard County defendants from governmental immunity,’” Judge Rudolph Pyle wrote for the appellate court.

“Specifically, the Ford Estate designated an incident report concluding that the failure to dispatch KFD to Ford’s address played a ‘big role’ in her death, and evidence that KFD and (the Kokomo Police Department) had reported of prior reported problems with the County’s 911 dispatch prior to the 2015 incident with Ford. As a result, summary judgment should not be granted where material facts conflict or conflicting inferences are possible,” Pyle wrote.

Thus, because it found a genuine issue of material fact on the willful or wanton exception to governmental immunity for the use of a 911 system, the appellate panel concluded the trial court did not err by denying the summary judgment motion.


June 28

Criminal – Child Molesting/Victim Deposition

Steven Church v. State of Indiana


Following a recent decision that struck down a law limiting when defendants can take the deposition of an alleged child sex abuse victim, the Indiana Court of Appeals has once again allowed a defendant accused of child sex crimes to take the deposition of his accuser.

The case of Steven Church v. State of Indiana, 21A-CR-68, began in March 2020, when Steven Church was charged with two counts of Level 1 felony attempted child molesting and four counts of Level 4 felony child molesting. Less than two weeks later, Indiana Code § 35-40-5-11.5 took effect, limiting Church’s ability to take the deposition of his child accuser unless the prosecutor agreed or “extraordinary circumstances” existed.

Thus, when Church in July 2020 petitioned to depose the alleged child victim, the Marion Superior Court denied his petition, citing the newly-enacted statute. He then filed an appeal, and the Court of Appeals reversed in his favor.

“Church argues, inter alia, that the trial court abused its discretion in denying his Petition to depose the child victim because the Act impermissibly conflicts with Indiana Trial Rule 26 and Indiana Trial Rule 30, governing discovery and depositions,” Judge Elizabeth Tavitas wrote for a unanimous appellate panel that agreed with Church’s argument. She cited to the recent decision in Sawyer v. State, No. 20A-CR-1446 (Ind. Ct. App. May 19, 2021), which struck down the statute as a procedural law in conflict with the trial rules.

“Here, as in Sawyer, the process prescribed in the Act for a defendant’s deposition is incompatible with that enumerated in Trial Rules 26 and 30 such that the Act and the Trial Rules cannot both apply to Church. In such a scenario, we are compelled to find that the Trial Rules govern …,” Tavitas wrote, citing Bowyer v. Ind. Dep’t of Nat. Res., 798 N.E.2d 912, 917 (Ind. 2003).

She continued, “because the trial court erroneously resolved the conflict in favor of the Act, we conclude that the trial court abused its discretion in denying the Petition. Accordingly, we reverse and remand.”

Indiana Tax Court

June 29

Tax – Property Taxes/Exemption

Thelma Jean Hatke v. Katie Potter, Parke County Assessor


A lakefront property owner who claimed the government’s partial use of her land entitled her to a property tax exemption failed in her bid for relief at the Indiana Tax Court.

Petitioner Thelma Jean Hatke and her husband, Richard, owned lakefront property in Rockville that was subject to a U.S. Army Corps of Engineers flowage easement. The easement allowed the Corps to flood a little more than half of the Hatkes’ land to manage the water levels on Raccoon Lake.

In the 2019 tax year, the land subject to the flowage easement was assessed at $17,400. The Hatkes filed for an exemption, arguing that portion of the property should be exempt because its use was controlled by the federal government, but the Parke County Property Tax Assessment Board of Appeals disagreed.

The Hatkes appealed the denial to the Indiana Board of Tax Review, which also denied their exemption application, finding no provision in Indiana law allowing a property tax exemption due to a flowage easement. Also, the board ruled that the Hatkes failed to demonstrate they owned, occupied and used the land subject to the easement for educational, literary, scientific, religious or charitable purposes that would qualify for an exemption under Indiana Code § 6-1.1-10-16(a).

The Hatkes next took their case to the Indiana Tax Court, which also affirmed the exemption denial in the case of Thelma Jean Hatke v. Katie Potter, Parke County Assessor, 20T-TA-18.

“On appeal, Thelma Jean Hatke argues that because the Corps ‘completely controls’ .38 acres of her land, the Indiana Board erred in determining that the land did not qualify for an exemption. Hatke, however, misunderstands the law applicable to her exemption claim,” Judge Martha Blood Wentworth wrote.

Specifically, Wentworth wrote, there was no evidence in the administrative record that the land was used for educational, literary, scientific, religious or charitable purposes. Without that evidence, the judge held, Hatke failed to demonstrate that the portion of her land subject to the easement was entitled to an exemption.•

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