Indiana Court Decisions – Oct. 21-Nov. 3, 2021

7th Circuit Court of Appeals

Nov. 1

Criminal-Enhanced Sentence/Felon in Possession of a Firearm

United States of America v. Michael Price

20-2490

The 7th Circuit Court of Appeals has overturned the enhanced sentence of an Indiana man, ruling the enhancement did not apply because the gun he possessed was not the one used in the commission of the crime.

Michael Price was captured by police as he fled from an Indianapolis home where he had fired a revolver through the closed front door, striking a resident in the leg before dropping and leaving the gun at the scene. Upon pulling him over, officers found a Taurus pistol in Price’s truck, which was illegal for him to possess because he has a felony record.

Price subsequently pleaded guilty to one count of being a felon in possession of a firearm and was sentenced to 110 months in prison. The presentence report recommended that the judge add four offense levels under U.S. Sentencing Guidelines § 2K2.1(b)(6)(B), which applies when the defendant “used or possessed any firearm or ammunition in connection with another felony offense.”

According to his brief filed at the 7th Circuit, Price objected to the four-point increase to his sentence.

The federal appellate court overturned the judgment in United States of America v. Michael Price, 20-2490, finding the U.S. District Court for the Southern District of Indiana erred by not specifying the sentence was independent of §2K2.1(b)(6)(B).

Taking a closer look, the 7th Circuit found that Judge James Sweeney quoted from a paraphrase of §2K2.1(b)(6)(B) rather than the actual text at sentencing. The paraphrase stated four levels could be added if the “defendant possessed the firearm while committing another felony offense,” but the actual language made the distinction that the enhancement is appropriate only if the firearm was involved in or contributed to the other felony.

Judge Frank Easterbrook noted the district court did not find that the Taurus played a role in the crime. The failure to make that essential finding, Easterbrook wrote, is why the 7th Circuit had to remand.

“We have encouraged district judges to say on the record that the parties’ dispute about a particular issue under the Guidelines does not matter to the sentence,” Easterbrook continued, citing United States v. White, 883 F.3d 983, 987 (7th Cir. 2018). “The district judge could have said this, given the fact that Price committed a separate federal felony by possessing and shooting the revolver. But the judge did not declare that the sentence is independent of §2K2.1(b)(6)(B), so we could not find the error to be harmless even if the United States had made a harmless-error argument.”

Court of Appeals of Indiana

Oct. 22

Criminal-Admission of Evidence/Double Jeopardy

Connor Ralland Kerner v. State of Indiana

20A-CR-2377

A teenager convicted of killing two people in a drug deal-turned-robbery has lost his appeal of his murder convictions and 150-plus-year sentence, though that sentence will be slightly reduced after the Indiana Court of Appeals threw out an attempted robbery conviction on double jeopardy grounds.

The case of Connor Ralland Kerner v. State of Indiana, 20A-CR-2377, began on Feb. 24, 2019, when Thomas Grill and Molley Lanham returned from a trip to Denver. The couple brought with them a large quantity of THC cartridges.

Grill and 17-year-old Connor Kerner had plans to meet to settle Kerner’s $15,000 debt. The plan was for Kerner to give Grill 37 pounds of marijuana in exchange for 1,000 THC cartridges. What the two didn’t know, however, was that each had a plan to rob the other.

Kerner and his friend John Silva drove to Kerner’s grandparents’ home, each armed with a handgun. When Grill arrived at the home, Kerner fired six shots, then beat him with a wrench until he died.

Kerner then went outside and forced Lanham into the garage, telling her that she would also be killed if she told of what he had done. Though he initially agreed to let her go, Kerner shot Lanham in the head as she tried to leave, killing her.

After the killings, Kerner returned to his home in Valparaiso, drove his mother to the airport, went back to his grandparents’ house, got a haircut and spent the evening with his girlfriend. He eventually admitted to his girlfriend that he had killed Grill and Lanham. Though she didn’t initially believe him, Kerner later shared additional details with his girlfriend and threatened to hurt her and her family if she told anyone.

Kerner then returned to the crime scene, cleaning it up and placing the bodies into a vehicle, which he drove into the woods and set on fire. He finished cleaning about 90 minutes before his grandparents returned from a trip, at which point his grandfather discovered that his handgun was missing. Kerner claimed he had taken the gun for target practice.

Meanwhile, Grill and Lanham’s families began looking for the couple and learned that they had planned to meet up with Kerner. They contacted local police, who called Kerner. He claimed Grill had said he was going to travel to Illinois before their meeting, and then he never heard from him again.

Kerner’s girlfriend, Holly Letnich, eventually told her mother about the killings, and the family filed a report with the police. Their information led to the discovery of the burned vehicle and Grill and Lanham’s remains. Kerner was arrested the same day.

As the investigation began, law enforcement obtained a search warrant for Kerner’s iPhone and passcode. Silva also gave law enforcement two voice recordings from his iPhone: one capturing the shooting of Thomas and another capturing Kerner and Silva’s conversation about the shooting. Other evidence was found in the area linking Kerner to the killings.

Kerner was ultimately charged with two counts of murder, two counts of felony murder, two counts of Level 2 felony attempted robbery, one count of Level 4 felony arson and one count of Level 6 felony intimidation. He was tried in October 2020, with the state admitting evidence from Kerner and Silva’s iPhones over Kerner’s objection.

The jury convicted Kerner on all counts except the intimidation charge. The Porter Superior Court imposed an aggregate sentence of 179 years.

On appeal, Kerner challenged the admission of the iPhone evidence, the sufficiency of the evidence supporting the attempted robbery convictions and the appropriateness of his sentence, as well as a claim that his murder and attempted robbery convictions violated double jeopardy. The Court of Appeals did find a double jeopardy violation in the two attempted robbery convictions, but otherwise affirmed in full.

Specifically, the appellate court rejected Kerner’s argument that compelling him to provide his passcode violated his rights against self-incrimination pursuant to Seo v. State, 148 N.E.3d 952 (Ind. 2020). Judge Paul Mathias wrote that Kerner had actually volunteered his passcode, and he did not raise a Fifth Amendment challenge until almost two years after he voluntarily provided access.

As for Silva’s iPhone, the COA acknowledged testimony that the recordings had been altered but determined those alterations were insignificant. Instead, the court said there was significant evidence supporting the authenticity of the recordings.

The appellate court also found sufficient evidence to support Kerner’s conviction for attempted robbery causing serious bodily injury as to Grill. In a footnote, the court noted that Kerner had raised a similar claim as to his conviction of attempted robbery of Lanham, but the COA said it would not address that claim because it was throwing out that conviction on double jeopardy grounds.

“We reach this conclusion by applying our supreme court’s analysis in Powell, which controls when a single criminal act violates a single statute but results in multiple injuries,” Mathias wrote, citing Powell v. State, 151 N.E.3d256 (Ind. 2020).

He continued, “Although both Thomas and Molley suffered serious bodily injury, there was only one act of attempted robbery. … While the serious bodily injury to a second victim can elevate the offense, it cannot form the basis of a separate attempted robbery. Accordingly, Kerner’s conviction for attempted armed robbery of Molley must be vacated.”

However, the court rejected Kerner’s argument that his convictions of murder and attempted robbery together violated double jeopardy, relying on Wadle v. State, 151 N.E.3d 227 (Ind. 2020).

Finally, the appellate panel rejected Kerner’s challenge to his sentence under Indiana Appellate Rule 7(B), though his sentence will be reduced to 154 years on remand when his attempted robbery conviction is vacated.

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Oct. 29

Criminal-Credit Time/Dismissed Charges

Billy D. Glover v. State of Indiana

21A-CR-767

The Indiana Court of Appeals affirmed that a Lake County man’s request to put his credit time from a previous charge toward his current child molesting sentence was properly denied.

In the case of Billy D. Glover v. State of Indiana, 21A-CR-767, Billy Glover pleaded guilty to Level 4 felony child molesting in exchange for the dismissal of Level 6 felony sexual battery charges in a different case regarding a different child. The Lake Superior Court granted Glover 481 days of credit time for the pretrial confinement on the latter charge on which he was sentenced.

Glover appealed, arguing his previous 168-day pretrial confinement for the dismissed charges should also be credited toward his term of imprisonment for the subsequent child molesting conviction.

But a panel of appellate judges disagreed, affirming that the trial court was correct in its denial of his request.

The Court of Appeals first noted that the test remains whether the confinement was the result of the criminal charge for which the sentence was imposed.

“Here, unlike in (Purdue v. State, 51 N.E.3d 432 (Ind. Ct. App. 2016)), Glover was not being detained on both the dismissed and sentenced charges at the same time, so he is not eligible for credit for the confinement related to the dismissed charges,” Judge Derek Molter wrote for the appellate court.

The panel also rejected Glover’s argument that by not crediting him with the 168-day confinement period, he will never receive credit for that time because the associated charges have since been dismissed.

“But credit time does not work like store credit where it can be redeemed with the next crime. Instead, credit time protects against double jeopardy by precluding two punishments — first pre-conviction confinement and then post-conviction confinement — for the same offense,” Molter wrote. “And it protects against disparate treatment.”

Because his 168-day confinement completely predated the arrest for the charge on which Glover was sentenced, the COA affirmed the denial of Glover’s request and found no error by the trial court.

Criminal-Prior Convictions/Bright-line Rule

Terrance Trabain Miller v. State of Indiana

20A-CR-2315

The Indiana Court of Appeals has overturned the conviction of a Cass County man sentenced to an aggregate of 49 years, asserting a “bright line must be drawn” over the admissibility of a defendant’s prior convictions during trial.

Terrance Trabain Miller was arrested after a traffic stop found him in possession of baggies of heroin and methamphetamine, cash and a handgun. He was subsequently convicted of one count of Level 2 felony dealing in meth, one count of Level 2 felony dealing in heroin, a narcotic drug, and one count of Class A misdemeanor resisting law enforcement, along with one count possession of a firearm by a serious violent felon.

After the trial, the state moved dismiss the serious violent felon charge, telling the Cass Circuit Court it had not proven the armed robbery that was alleged. The trial court granted the motion. Miller then admitted his status as a habitual offender and was sentenced.

On appeal, Miller argued a fundamental error occurred when the jury was instructed on the serious violent felon charge. In particular, he asserted, the jurors then knew he had a prior felony conviction for robbery that was not relevant to the other charges and that possession of the firearm was already established because it elevated the two other charges of dealing and possession of a narcotic drug.

The Court of Appeals agreed in Terrance Trabain Miller v. State of Indiana, 20A-CR-2315, highlighting a line of cases which, according to the court, showed the “slippery slope” that has developed over the years under the SVF charge relevancy analysis.

“We can think of no reason why a jury should be made aware of the fact of a defendant’s prior conviction to support an SVF charge during the phase where the other primary charges are being tried,” Senior Judge Ezra Friedlander wrote for the court.

The appellate panel found that the jury instruction should not have been used because of its prejudicial nature and that Miller’s counsel should have moved for bifurcation of the serious violent felon charge. Even though the state dismissed the SVF charge after the jury had rendered its verdict, that did not balance the rights Miller was deprived of during the trial.

“We believe that a bright line must be drawn here,” Friedlander wrote. “… The prejudicial nature of the prior-crimes evidence in the primary charge phase of the trial erodes if not eviscerates the defendant’s right to the presumption of innocence.

“This is so no matter the level of sophistication of the juror tasked with divorcing himself from applying that knowledge to the primary charge,” the senior judge continued. “We believe that bifurcation of SVF charges serves the purpose of protecting a defendant’s right to the presumption of innocence and ensures a fair trial. Miller did not receive a fair trial because of this fundamental error.”

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Nov. 2

Civil Collections-Damages/Conversion

CT102 LLC d/b/a Metro Motors and Herman Jeffrey Baker v. Automotive Finance Corporation

21A-CC-904

The Marion Superior Court erred in calculating damages awarded to a vehicle-financing company but correctly determined an auto seller wasn’t guilty of conversion, the Indiana Court of Appeals has ruled.

In 2017, Metro Motors and Herman Jeffrey Baker executed an agreement whereby Automotive Finance Corporation would finance Metro to enable the business to purchase vehicles to sell. In addition, Baker executed a personal guaranty for “all amounts due and owing to AFC” under the terms of the agreement.

The agreement provided that, upon the sale of any vehicle financed by AFC, Metro would “hold the amount received from the disposition of inventory in trust for the benefit of [AFC]” and would “remit the proceeds of [the] sale of any AFC-financed vehicle within forty-eight (48) hours of disposition.”

In early 2018, AFC “received numerous returned checks from Metro.” That April, Michael Flanagan, a branch manager with AFC, conducted an audit at Metro and discovered it had sold eight vehicles “out of trust,” meaning Metro had not remitted the proceeds from the sale of those vehicles to AFC as provided under the agreement.

Additional audits revealed Metro had sold other vehicles out of trust. Metro promised to make the payments to AFC, and AFC gave Metro additional time to pay, but Metro was unable to make the payments.

On May 28, Flanagan returned to the Metro lot “to conduct a lot audit and request vehicle keys, intending to amicably secure possession of AFC’s collateral” under the terms of the agreement. But Metro refused to give Flanagan the keys.

Flanagan also discovered that an additional six vehicles had been sold out of trust, and four vehicles financed by AFC were missing from the lot. Metro owed AFC a total of $78,996.46 for those 10 vehicles.

On May 29, AFC repossessed 15 AFC-financed vehicles from Metro’s lot and later sold them at auction for a total of $64,651.39. AFC applied that amount to the balance Metro owed for each AFC-financed vehicle, leaving a deficiency balance of $123,666.66.

That December, AFC filed a complaint against Metro alleging breach of contract and conversion, seeking, in part, treble damages under the Crime Victim’s Relief Act, Indiana Code § 34-24-3-1.

Following a bench trial, the trial court entered judgment in favor of AFC on its breach of contract claim in the amount of $202,663.12 plus 15% interest and attorney fees, for a total judgment of $322,315.97. The trial court also found Metro did not commit conversion.

Metro filed a motion to correct error, which the trial court denied. An appeal and a cross-appeal ensued.

The Court of Appeals found the trial court double counted when it awarded damages, reversing and sending instructions to the trial court on remand.

“In calculating the damages award, the trial court double-counted the $78,996.46 representing the amount owed for the ten SOT vehicles,” Judge Edward Najam wrote for the court. “Because it is undisputed that the trial court’s award of $202,663.122 includes the same $78,996.46 twice, we reverse and remand with instructions that the trial court enter judgment in favor of AFC in the amount of $123,666.66, plus 15% interest from May 30, 2018, and $32,618.75 in attorney’s fees and expenses.”

On cross-appeal, AFC contended the trial court clearly erred in concluding Metro had not committed conversion. The COA disagreed.

“At trial, AFC bore the burden to prove conversion and, as such, now appeals from a negative judgment,” Najam wrote. “… An assertion that a debtor knowingly failed to pay what he owed, without more, is insufficient as a matter of law to prove conversion.

“… Now, for the first time on appeal, and only in its reply brief, AFC argues that the proceeds from the sale of the SOT vehicles constituted special chattel because, under the agreement, the proceeds were ‘entrusted for a particular purpose,’” the judge continued. “But it is well settled that an argument presented for the first time on appeal is waived for purposes of appellate review.”

The case is CT102 LLC d/b/a Metro Motors and Herman Jeffrey Baker v. Automotive Finance Corporation, 21A-CC-904.

Miscellaneous-Property Dispute/Dismissal

Mark Baker v. Adam Pickering, Kathleen Pickering, Lauren Flanagan, and Kesslerwood East Lake Association, Inc.

21A-MI-354

In a dispute between neighbors over a dock being built on a shared lake, the Indiana Court of Appeals has dismissed the plaintiff’s appeal.

Mark Baker lives next door to Adam and Kathleen Pickering in Indianapolis on Lake Kesslerwood. Both parties are members of the Kesslerwood East Lake Association Inc., which requires homeowners to sign and adhere to a Declaration of Covenants and Restrictions.

The Pickerings constructed a dock extending from the shoreline into the lake, but in June 2020, Baker filed a complaint in Marion Superior Court against the Pickerings alleging the dock violated the terms of the declaration and interfered with Baker’s right to access the area around the lake. The complaint sought compensatory damages as well as declaratory and injunctive relief.

The Pickerings denied the material allegations of Baker’s complaint and asserted Baker failed to name Lauren Flanagan, the owner of an adjoining property, and the association as indispensable parties pursuant to Indiana Trial Rule 19(A). In their counterclaim, the Pickerings also accused Baker of being the party in breach of the declaration, and it asserted claims of intentional infliction of emotional distress, trespass and abuse of process.

The Pickerings’ third-party complaint was filed against the association. It alleged the association approved their plans for the dock and, therefore, the association had a duty to indemnify the Pickerings if Baker is entitled to any relief. Further, the Pickerings filed a motion to compel arbitration and stay proceedings pending arbitration based on the declaration’s arbitration clause.

Baker sought and was granted leave to amend his complaint to add the association and Flanagan as additional defendants. He further filed an objection to the Pickerings’ motion to compel arbitration, arguing the arbitration provision in the declaration didn’t apply to this dispute.

This past January, the trial court granted the motion to compel arbitration.

Baker then filed a Motion for Relief from Order, ostensibly pursuant to Indiana Trial Rule 60(B). Both the association and the Pickerings opposed Baker’s motion, and the trial court denied it.

On March 2, Baker filed a notice of appeal. Baker asserted in his notice of appeal that he was appealing from a final judgment, but the Pickerings and the association filed a joint motion to dismiss Baker’s appeal on the basis that the notice of appeal was untimely and improper.

Baker asserted his filing of the notice of appeal was timely because it was filed less than 30 days after the trial court denied his motion for relief. On April 15, the motions panel voted to deny the joint motion to dismiss.

But in a Nov. 2 opinion, the COA dismissed Baker’s appeal, finding the arbitration wasn’t a final judgment.

“… (T)he order compelling arbitration does not constitute a final order under either Indiana Appellate Rule 2(H)(1) or Rule 2(H)(2) because the order does not resolve the parties’ claims for damages and the order was not certified pursuant to Trial Rule 54(B),” Judge Melissa May opined for the COA, pointing to Maynard v. Golden Living, 56 N.E.3d 1232, 1237 (Ind. Ct. App. 2016).

The COA also ruled the Indiana Arbitration Act goes against Baker’s claims.

“Notably, this statute does not provide for the appealability of an order compelling arbitration, and thus, it does not make the trial court’s order compelling arbitration a final order,” May continued.

Baker also failed to meet the requirements for an interlocutory appeal, the court opined.

“… Baker has not met the requirements to bring an appeal of an interlocutory order under any of the subsections of Appellate Rule 14,” May wrote, pointing to Bacon v. Bacon, 877 N.E.2d 801, 805 (Ind. Ct. App. 2007). “Accordingly, we dismiss Baker’s appeal because he is attempting to pursue an interlocutory appeal without following the procedure for doing so outlined in the Rules of Appellate Procedure.”

The case is Mark Baker v. Adam Pickering, Kathleen Pickering, Lauren Flanagan, and Kesslerwood East Lake Association, Inc., 21A-MI-354.

Indiana Tax Court

Oct. 26

Tax-Assessed Value/Reduction

Marion County Assessor v. Kohl’s Indiana, LP

20T-TA-10

A Kohl’s department store will be allowed to keep the markdown on its property taxes after the Indiana Tax Court ruled the Marion County assessor failed to present a convincing argument or evidence for why the original assessment amounts should be charged.

In 1996, the retailer entered into a build-to-suit lease for the construction of a single-story, 94,699-square-foot store on 6.22 acres in the Fashion Mall Commons shopping center in Indianapolis. Fifteen years later, Kohl’s noticed its property assessments were increasing, starting with a 20% jump from the prior year to $6.02 million in 2011 and continuing to $7.79 million in 2012 and $7.90 million in 2013 and 2014.

The Indiana Board of Tax Review agreed with Kohl’s that the property had been over-valued and reduced the assessments to the store’s suggested amounts of $4.05 million for the 2011 and 2012 tax years as well as $4.10 million for the 2013 and 2014 tax years.

Appealing to the Indiana Tax Court, the Marion County assessor raised several issues but was unable to get the rebate recalled. The tax court affirmed the Indiana board’s final determination in Marion County Assessor v. Kohl’s Indiana LP, 20T-TA-10.

Arguing the Indiana board had abused its discretion, the assessor made two claims on appeal. First, the assessor asserted that neither the law nor the evidence supported the Indiana board’s finding that Kohl’s had standing to seek review of the property’s assessments. Second, the assessor contended the Indiana board abused its discretion when it reduced the property’s assessments by millions of dollars each year.

The Tax Court examined Indiana Code § 6-1.1-15-1 and Indiana Code § 6-1.1-15-3 as well as Kohls’ lease and concluded the Indiana board did not abuse its discretion in finding Kohl’s was a taxpayer that could seek administrative review of the subject property’s assessments for the years at issue.

Likewise, the Tax Court ruled the evidence was either lacking or did not support the assessor’s argument for restoring the original assessment amounts.

In particular, the assessor claimed the sale of the Kohl’s property in 2011 for $15.3 million is evidence of its market value-in-use and should have been given weight, especially because the store did not show why the information should have been disregarded.

“During the Indiana Board hearing, the Assessor’s own expert witness, Dr. (Frank) Kelly, testified that when trying to ascertain whether a property’s sales price coincides with its market value, portfolio sales tend to ‘muddy the water[s]’ because of a specific property’s allocated sales price may include the value of the real property, personal property, and intangibles,” Tax Court Judge Martha Wentworth wrote. “… Dr. Kelly did not contact any of the parties related to the 2011 sale of the subject property, however, because he believed that doing so was outside the scope of his employment, and he did not review any balance sheets.

“Therefore, the Court will not find that the Indiana Board erred in disregarding the 2011 sales price of the subject property because the evidence does not show whether the sales price reflected more than the value of the real property (i.e. the ‘sticks and bricks’),” Wentworth concluded, citing Marion Cnty. Assessor v. Gateway Arthur, Inc., 45 N.E.3d 876, 880-81 (Ind. Tax Ct. 2015).•