Indiana Court Decisions – Nov. 5-17, 2020

Indiana Supreme Court

Nov. 16

Juvenile — Dangerous Possession of a Firearm/Jurisdiction

K.C.G. v. State of Indiana

20S-JV-263

Juvenile courts lack jurisdiction to adjudicate the offense of dangerous possession of a firearm because an adult cannot be charged with that crime, the Indiana Supreme Court ruled. The decision vacating a delinquency adjudication casts doubt on the state law that bars possession of guns by minors.

The state’s high court overturned a delinquency adjudication under the dangerous possession of a firearm statute in K.C.G. v. State of Indiana, 20S-JV-263.

K.C.G. was adjudicated delinquent in Marion Superior Court after he was accused of stealing and crashing a car then fleeing from the scene. Police also found marijuana on the 16-year-old when they found him, and he was placed on probation after he agreed to admit to two delinquent acts.

While on probation, K.C.G. told others he had a gun and a bomb, and police and his probation officer found a rifle while searching his bedroom. The state filed a delinquency petition alleging dangerous possession of a firearm, Ind. Code § 35-47-10-5, and the court adjudicated K.C.G. a delinquent on that count, modifying his probation with a suspended commitment to the department of correction.

The Indiana Court of Appeals previously affirmed the adjudication. In seeking to harmonize conflicting statutes, the COA panel looked to C.C. v. State, 907 N.E.2d 556 (Ind. Ct. App. 2009), and to Indiana Code § 31-30-1-1(14), which gave juvenile courts jurisdiction over “other proceedings specified by law.”

“But we decline to embrace that approach,” Justice Geoffrey Slaughter wrote for the unanimous Indiana Supreme Court. “Rather than crediting the asserted intent behind the criminal statute, I.C. § 35-47-10-5, we give dispositive weight to the plain language of the jurisdictional statute, id. § 31-30-1-1. … (T)he jurisdictional statute establishes that the State must allege the child committed an ‘act that would be an offense if committed by an adult’. Id. § 31-37-1-2. Even if the State were correct about legislative intent, we decline to ignore the clear jurisdictional mandate of Section 31-30-1-1 based on an inference from an entirely separate statute.

“… When the legislature is imprecise, the State does not get the benefit of the doubt,” the court held.

“(T)he dangerous-possession statute defines the offense in terms of a ‘child’ who ‘knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in [IC 35-47-10-1],’” which permits possession for hunting, target shooting and other activities as well as possession with parental consent. “… This provision is clear and applies only to children; adults cannot commit dangerous possession of a firearm. Thus, K.C.G.’s alleged possession of a firearm could never be an offense committed by an adult, and the State’s nominal allegation that K.C.G. is a ‘delinquent child’ because he committed a ‘delinquent act’ failed as a matter of law, meaning the juvenile court lacked jurisdiction.”

The state high court also rejected the state’s argument that vacating K.C.G.’s adjudication would produce an absurd result.

“We could not ‘fix’ the alleged absurdity here merely by changing or supplying a word or phrase. Any judicial fix would require that we expand the statute’s potential class of offenders to include adults with unauthorized firearms. Yet this proposed revision would implicate not only separation of powers by rewriting the legislature’s narrow enactment but also perhaps the Second Amendment by treating even protected firearms as potentially off limits to adults, see McDonald v. Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). Moreover, applying the doctrine here would be qualitatively different from our other applications of it. … Thus, we reject the absurdity doctrine on this record and interpret the dangerous-possession statute not to apply to adults.”

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Nov. 17

Post Conviction — Murder/Juvenile Sentencing

State of Indiana v. Matthew Stidham

20S-PC-634

A Delaware County man sentenced to more than 100 years for a crime he committed as a 17-year-old was granted a new sentence after the Indiana Supreme Court found “two major shifts in the law” provide the opportunity to reconsider sentences that were “manifestly unreasonable.”

Matthew Stidham was 17 when he and two others murdered Daniel Barker. At trial, he was sentenced to 141 years after being convicted of murder, Class A felony robbery, Class B felony criminal confinement, Class C felony battery and Class D felony auto theft.

The Indiana Supreme Court reversed, finding some of the evidence had been improperly admitted at trial and remanding for a new trial. At his retrial, Stidham was again found guilty of the five charges and sentenced to 141 years. Another appeal came before the Indiana Supreme Court where the majority rejected Stidham’s argument that his sentence was “disproportionate to the crime committed” but found the auto theft and robbery charges should have been merged and therefore left him with a 138-year sentence.

In 2016, Stidham filed a petition for post-conviction relief, challenging the imposition of the maximum sentence for crimes committed while he was a juvenile. The post-conviction court granted his petition and eventually resentenced him to an aggregate 68 years.

The Indiana Court of Appeals reversed in State v. Stidham (Stidham III), 110 N.E.3d 410, 421 (Ind. Ct. App. 2018). Stidham subsequently sought transfer.

In State of Indiana v. Matthew Stidham, 20S-PC-634, the Indiana Supreme Court affirmed the post conviction court’s order and revised his sentence to an aggregate term of 88 years.

The majority found two “major shifts in the law” allowed them to revisit their prior decision about the appropriateness of Stidham’s sentence.

The first shift occurred when the Supreme Court changed the standard under which it could review and revise sentences that were determined to be “manifestly unreasonable.” As a result, the Supreme Court revised Appellate Rule 7(B) to allow state courts to revise a sentence if the sentence is “inappropriate in light of the nature of the offense and the character of the offender.”

Then the second major shift came when the U.S. Supreme Court began limiting when juveniles could be sentenced to the harshest punishments.

Writing for the majority, Justice Christopher Goff stated the two major shifts presented the “extraordinary circumstances” in which to reconsider its prior decision in Stidham’s case. Goff called Stidham’s crimes “horrific” but also noted his abusive childhood and his steps toward rehabilitation including completing his high school education and participating in substance abuse counseling.

“…(A)lthough we have said that ‘the maximum possible sentences are generally most appropriate for the worst offenders,’ Stidham received the maximum possible term-of-years sentence for crimes he committed as a juvenile,” Goff wrote citing Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (citations omitted). “As we and the U.S. Supreme Court have held before, Stidham’s juvenile status weighs against a maximum sentence.”

However, Justice Geoffrey Slaughter dissented. He maintained that although Stidham made constitutional arguments, the majority based its decision on a claim the appellee did not raise.

Slaughter included an exchange from the oral argument in his dissent to show what he described as the majority’s resolve to decide the case under Appellate Rule 7(B) even while Stidham expressly disclaimed it. A footnote in the majority opinion held that after initially saying relief under 7(B) was not available, Stidham’s counsel later cited precedent and said the appellate rule was applicable. Yet, Slaughter was not convinced and highlighted the oral argument with one of the justices telling the Stidham’s attorney to “change your argument al little” and “not concede that so fast.”

“Instead, Stidham argued that his sentence was unconstitutional and that he had raised sufficiently different arguments on direct appeal so that res judicata did not preclude reaching the merits of his constitutional claims,” Slaughter wrote. “In other words, Stidham did not seek to overcome res judicata so courts could decide an unraised 7(B) claim, but so courts could — and would — decide the alleged violations of his constitutional rights.”

Post Conviction — Murder/Juvenile Sentencing

Donnell Dontrell Wilson v. State of Indiana

19S-PC-548

The Indiana Supreme Court reduced the 181-year sentence for a man convicted of two murders committed when he was 16, finding his appellate counsel rendered ineffective assistance by failing to challenge the appropriateness of the teen’s sentence.

Donnell Dontrell Wilson’s sentence was trimmed to 100 years by the Indiana Supreme Court for his conviction of the March 2013 gang-related murders of Charles Wood and Shaqwone Ham in Gary.

After he was convicted of the killings, a Lake Superior jury sentenced Wilson to an aggregate 183 years for the murder convictions served consecutively to his armed robbery convictions and criminal gang enhancements. Two years of the sentence were reduced on direct appeal.

In the instant post-conviction relief appeal, Wilson argued that his Eighth Amendment rights were violated and his trial and appellate counsel were ineffective for failing to challenge the appropriateness of his sentence, among other things. After his petition was denied at the trial court, the Indiana Court of Appeals reversed what it considered a de facto life sentence.

Justices granted transfer and granted Wilson partial relief in Donnell Dontrell Wilson v. State of Indiana, 19S-PC-548. First, the court held Wilson’s sentence was not cruel and unusual punishment under the Eighth Amendment, even under the U.S. Supreme Court holding in Miller v. Alabama, 567 U.S. 460, 479 (2012), which forbids a sentencing scheme that mandates life in prison without the possibility of parole for juveniles convicted of murder.

“Looking at the information considered by the trial judge, as a whole, the sentencing court sufficiently considered Wilson’s background, environment and immaturity before determining that Wilson was sufficiently corrupted and his crimes so serious that he deserved a long term of years sentence,” Justice Mark Massa wrote.

But the court found Wilson’s appellate counsel was ineffective for failing to seek relief under Indiana Appellate Rule 7(B), and adjusted his sentence accordingly. “A 100-year sentence means that after receiving good time credit Wilson will likely be eligible for release in his mid-to-late sixties, meaning that he has reasonable hope for a life outside prison.”

Justice Geoffrey Slaughter concurred in part and dissented in part and would not have found Wilson’s appellate counsel ineffective and therefore would not have reduced Wilson’s sentence.

IndianaCourt of Appeals

Nov. 6

Criminal — Possession of Cocaine/Strip Search Constitutionality

Stephanie J. Reagan v. State of Indiana

20A-CR-907

A woman who was strip searched while being processed at the Marion County Jail, turning up a small packet of cocaine on her breast, lost her drug-conviction appeal. The newest member of the Indiana Court of Appeals dissented, warning the majority’s holding in the case “would render per se reasonable a strip search of every person being processed for a substance offense, no matter how minor.”

The case of Stephanie J. Reagan v. State of Indiana, 20A-CR-907, began the evening of June 8, 2018, when Stephanie Reagan was driving a vehicle that collided with a vehicle driven by off-duty Deputy Darrius Austin of the Marion County Sheriff’s Office. Austin and responding officers smelled marijuana coming from Reagan’s vehicle and noticed a blunt on the floor.

Reagan was arrested on suspicion of operating a vehicle while intoxicated. She was given a pat-down search at the scene, and after she was transported to a hospital for a blood draw, she was taken to the Arrestee Processing Center at the Marion County Jail. There, Deputy Joana Jimenez conducted a strip search after noticing Reagan was “fidgety,” shaking her leg, trying to engage in small talk and looking around the room, according to the record.

“During the ensuing strip search of Reagan, Deputy Jimenez found a small baggie stuck to Reagan’s breast. Reagan asked if Deputy Jimenez could ‘get rid of it’ and Deputy Jimenez said no. … The baggie contained a powdery substance that Deputy Jimenez suspected was cocaine,” which lab tests confirmed.

The evidence was admitted over continued defense objections. Reagan ultimately was convicted of Level 6 felony possession of cocaine and Class C misdemeanor possession of marijuana, but jurors in Marion Superior Court found her not guilty of OWI.

A divided panel of the Indiana Court of Appeals affirmed. The majority held that though the search involved a high degree of intrusion, law enforcement needs balanced in favor of permitting the strip search.

“(L)aw enforcement had a high degree of suspicion and a strong need to protect Reagan and others in custody. On balance, we conclude that the search was reasonable under the totality of the circumstances,” Judge L. Mark Bailey wrote for the majority joined by Judge Nancy Vaidik. “We therefore conclude that the search did not run afoul of Article 1, Section 11 of the Indiana Constitution. Thus, the court did not abuse its discretion in admitting evidence obtained from the strip search.”

But Judge Leanna Weissmann noted the evidence in the case was found based on Jimenez’s arbitrary “feeling” that Reagan may have been in possession of contraband.

Jimenez “testified that the processing center received more than 3,000 detainees in January 2020. … (H)er testimony reasonably suggests she subjects to strip searches at least thirty to sixty percent of the OVWI detainees she processes in Marion County. … If Deputy Jimenez had a ‘feeling’, she seemingly could strip search the detainee, regardless of the underlying circumstances.

“… The only additional evidence available to Deputy Jimenez to determine whether to execute a strip search was her knowledge that Reagan had been arrested for OVWI. Such knowledge likewise is not enough, alone or in combination with Deputy Jimenez’s ‘feeling,’ to justify a strip search,” Weissmann wrote in dissent. “To say otherwise would render per se reasonable a strip search of every person being processed for a substance offense, no matter how minor. Our Supreme Court made clear in [Edwards v. State, 759 N.E.2d 626 (Ind. 2001)] that such an approach contravenes article I, section 11. … Based on this record, I find the degree of concern or suspicion that the arrestee is secreting contraband was low.”

The majority, however, held that “(W)here — as here — there is a high degree of suspicion that an arrestee is concealing contraband, law enforcement has a strong need to search for contraband during the intake procedures” for the safety of the offender and that jail population, among other things. It noted that while Edwards ruled against the routine practice of subjecting all misdemeanor arrestees to a warrantless strip search, it permitted them on the basis of reasonable suspicion.

Weissmann in dissent acknowledged law enforcement “undeniably” has a strong interest in protecting inmates and keeping jails free from contraband. “In this case, however, I am not persuaded the State established law enforcement needs for a strip search were significant. This is particularly true in light of the seemingly indiscriminate manner in which law enforcement selected Reagan and other arrestees for strip searches.”

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Nov. 9

Criminal — Involuntary Manslaughter/Judgment of Acquittal

John B. Larkin v. State of Indiana

19A-CR-2705

The Indiana Court of Appeals ordered the acquittal of John Larkin, convicted of involuntary manslaughter in connection with the 2012 shooting death of his wife. In overturning the verdict, the appellate panel concluded the LaPorte Superior Court erred in instructing Larkin’s jury.

John B. Larkin of Long Beach was charged with Class A felony manslaughter after being accused of fatally shooting his wife, Stacey Renee Larkin, in December 2012. Long Beach Police Department officers found his wife dead in their home from two gunshot wounds.

His case proceeded against a history of police and prosecutorial misconduct that led the trial court to dismiss the charges against him, which a divided panel of the Indiana Court of Appeals affirmed in June 2017.

Also that year, former LaPorte deputy prosecutor Robert Neary was suspended from the practice of law for four years for, among other things, eavesdropping on criminal defendants’ conversations with their attorneys, including Larkin.

Indiana Supreme Court justices, however, reinstated the manslaughter charge against Larkin in June 2018, finding dismissal to be “an extreme remedy” for police and prosecutorial misconduct.

The case went to trial in September 2019, where the prosecutor requested that the trial court instruct the jury on the offense of involuntary manslaughter, which was granted.

A jury ultimately found Larkin guilty of Class C felony involuntary manslaughter, which his counsel had moved to vacate, arguing that the state had six years to amend the information to charge him with involuntary manslaughter or some form of battery but never did.

Representing Larkin, defense attorney Stacy Uliana of Bargersville argued, among other things, that with minutes before final instructions and closing arguments, Larkin was provided a copy of the state’s proposed jury instruction on involuntary manslaughter based on a battery, and he objected. But the trial court issued an order denying Larkin’s motion to vacate the judgment and sentenced him to two years, stayed until the completion of the appeal.

Larkin claimed the shooting was an accident in the course of self-defense.

While a person may shoot another person with an intent to batter rather than with an intent to kill, the Indiana Court of Appeals concluded that the charging instrument did not make such an allegation in the case of John B. Larkin v. State of Indiana, 19A-CR-2705.

“The State does not assert that it advanced an argument that Larkin intended to commit a battery by shooting Stacey. Rather, in requesting the involuntary manslaughter instruction, the prosecutor argued Larkin pushed Stacey and that was a battery. Additionally, the prosecutor argued to the jury in closing that Larkin intended to commit a battery by pushing Stacey. Nor can we conclude the charging instrument made an allegation that Larkin committed battery by pushing Stacey,” Judge Elaine Brown wrote for the unanimous appellate court.

“Stacey died as a result of her gunshot wounds. The charging information referred to a handgun. It did not allege all of the elements of a battery by pushing. We decline to conclude that the mere assertion that the charged offense was committed by means of a handgun, without more, automatically means the information also asserted a battery. The charging instrument did not assert a battery or incidental killing,” it concluded.

Thus, because involuntary manslaughter was not an inherently or factually included lesser offense of the charged crime, the appellate court concluded that the jury should not have received an involuntary manslaughter instruction.

Additionally, it found there to be, at a minimum, a reasonable doubt as to whether the state’s charging instrument provided Larkin with fair notice of the charge of which he was eventually convicted. The appellate court ultimately concluded that the trial court erred in instructing the jury on involuntary manslaughter.

“For the foregoing reasons, we reverse Larkin’s conviction for involuntary manslaughter and remand with instructions to enter a judgment of acquittal and order that he be discharged,” the panel concluded.

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Nov. 12

Criminal — Theft/Money Left at Self-Checkout

Michael D. Williams v. State of Indiana

20A-CR-1209

The Indiana Court of Appeals has reversed a ruling against an off-duty grocery store employee after he took money from a self-checkout machine, finding his conviction could not stand under an existing theft statute.

While shopping at a Richmond Kroger store in 2019, a man used a self-checkout station to make a purchase using a $100 bill. The leftover change of his purchase was $83.33, which was left in the dispense tray after the man got distracted and forgot to take the cash before he left the store.

A second customer then approached the station and used a debit card to complete a transaction. After several minutes passed, Michael Williams, an off-duty Kroger employee, approached the station and completed a transaction at the same machine.

Seeing the cash, Williams put it in his pocket and left the store after paying with a credit card. The man who left the cash behind later returned to the store to report what had happened, and the store reviewed surveillance footage of the transactions to find that Williams had taken the money. It gave the man $83 “because it was an off-duty associate that had taken the money,” and then reported the incident to police.

Williams, charged with Class A misdemeanor theft, was alleged by the state to have “knowingly or intentionally exert(ed) unauthorized control over the property of Roger Stinson, to-wit: cash with the intent to deprive Roger Stinson of any part of the use or value of the property, contrary to Indiana law.”

Although the case proceeded to a bench trial and charging information identified the victim as Roger Stinson, no person by that name testified, and no witness or exhibit identified Roger Stinson as the man who left the money behind. Regardless, the trial court found Williams guilty as charged and sentenced him to 180 days in jail, all suspended to probation.

But the Indiana Court of Appeals reversed, finding that it could reverse Williams’ conviction solely based on the fact that the state did not present evidence establishing the identity of the man who left the money.

“But there is a more fundamental problem with Williams’s conviction. Indiana’s theft statute does not criminalize the taking of lost or mislaid property, unlike statutes in many other states,” Judge Nancy Vaidik wrote for the appellate court, noting that Indiana used to have such a statute in place in Ind. Code § 35-17-5-5 (1976).

“However, the legislature repealed that statute over forty years ago. If such conduct is to be recriminalized, that is a decision for the legislature. Under the existing theft statute, Williams’s conviction cannot stand,” the panel concluded.

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Nov. 13

Protective Order — Motion to Dismiss/Identity

R.W. v. J.W.

19A-PO-2697

An appellate panel has affirmed the permanent protective order granted against a suspended Chicago television anchorman who threatened a Valparaiso woman he was romantically involved with. A concurring judge, however, disagreed that the man’s identity should be shielded from the public, writing separately to name the ex-anchor.

After becoming involved in a romantic relationship with J.W., who was married, nasty words were exchanged between Rafer Weigel, J.W. and another woman Weigel has previously dated, K.B.

K.B. was with Weigel after his relationship with J.W. soured, but when Weigel and J.W. were together, Weigel had shared with J.W. his plans to send a video of a nude K.B. to the man she was then dating. A part of the plan involved creating a new account on social media through which to reach that man at work, but J.W. counseled against Weigel’s plan.

As a result, Weigel left a threatening voicemail for J.W., which made J.W. feel threatened and terrified. Weigel further made several attempts by various means to contact J.W.’s husband, and semi-nude and nude pictures of J.W. from Weigel’s password-protected phone were later exposed by K.B. The woman also created a fake Bumble account using pictures of J.W. that used disparaging language to portray her as having herpes and behaving “trashy or tramp-like.”

At the hearing on J.W.’s protective order request, Weigel refused to answer 32 separate questions pertaining mostly to how K.B. came into possession of the pictures of J.W. that were meant only for him and the creation and existence of the Bumble account, citing his Fifth Amendment privilege against self-incrimination.

The Chicago Tribune reported in January that Weigel had been suspended from his job at Fox32 over the incident.

The Indiana Court of Appeals affirmed the trial court’s denial of Weigel’s motion to dismiss J.W.’s granted petition for a permanent protective order against him in the case of R.W. v. J.W.,19A-PO-2697.

Specifically, the appellate court found that as a resident of Porter County, J.W. properly filed her petition with the trial court because Indiana Code Section 34-26-5-4 (2002) gives a court of record jurisdiction to issue a civil order for protection in the county in which the petitioner currently or temporarily resides.

“Thus, the trial court correctly denied (Weigel)’s motion to dismiss the petition and correctly retained jurisdiction over the matter instead of transferring it to Illinois,” it concluded.

Moving to Weigel’s assertion that the trial court erred by finding and concluding that J.W. had established that an order of protection was necessary, the appellate court concluded that the trial court was correct in its decision.

“The trial court correctly found from the evidence and the inferences from the evidence that ‘there is no evidence that (Weigel) tried to stop or block [K.B.’s] harassment or stalking behavior utilizing or threatening to use the photos against [J.W.],’ and correctly concluded that ‘like [K.B.], (Weigel)was engaged in bringing harassment to bear on [J.W.]’ There was more than sufficient evidence to support the trial court’s findings of fact which, in turn, support the conclusions of law in favor of granting J.W.’s petition for a permanent protective order against (Weigel),” Senior Judge Ezra Friedlander wrote in the opinion joined by Judge Paul Mathias.

Writing in a separate concurring opinion, Judge Terry Crone agreed with affirming the protective order against Weigel but disagreed with the majority’s decision to refer to him in the opinion by his initials instead of his name.

“No statute, court rule, or court policy entitles Weigel to anonymity. In fact, pursuant to the Rules on Access to Court Records adopted by the Indiana Supreme Court, Weigel’s name is presumptively accessible to the public,” Crone wrote.

“As described in lurid detail above, Weigel threatened and publicly humiliated J.W., who sought and obtained a protective order against him. Weigel has challenged the sufficiency of the evidence supporting that order. If we had ruled in his favor, he could have petitioned to expunge all records relating to the protective order pursuant to Indiana Code Chapter 34-26-7.5. But since we have affirmed the trial court’s determination that Weigel harassed J.W., I can think of no principled reason why this Court should shield his identity from the public,” the judge continued.

“Indeed, naming the perpetrator of such depraved acts could only contribute to public safety, promote governmental transparency and accountability (by this Court and by any law enforcement agency that might have occasion to enforce the protective order, respectively), and prevent future harassment of J.W. and others.”•