Opinions Aug. 24, 2022

Keywords Opinions

The following Indiana Supreme Court opinion was posted after IL deadline on Tuesday:
Frank E. Minges, III v. State of Indiana
22S-CR-285
Criminal. Reverses the Dearborn Superior Court’s denial of Frank Minges’ motion to compel the Dearborn County prosecutor to turn over the police report related to his misdemeanor charges. Overrules State ex. Rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985). Finds Keaton conflicts with Indiana’s current discovery rules, including Trial Rule 26(B)(3), which provides the courts with a framework to determine when the work product doctrine applies. Also finds the “undue burden” cited in Keaton has been eliminated by technology. Remands to the trial court with instructions to reconsider whether the police report is protected by the work product privilege.

Wednesday opinions
Court of Appeals of Indiana
Ernest Ray Snow, Jr. v. State of Indiana, Bureau of Motor Vehicles
22A-IF-471
Infraction. Affirms the Marion Superior Court’s grant of relief from judgment for the Indiana Bureau of Motor Vehicles in a dispute with Ernest Ray Snow Jr. Finds Indiana Code § 34-28-5-15(b) does not apply to the BMV because the agency isn’t a case management system. Also finds the trial court did not err.

Paul Dean Newcomb, Jr. v. State of Indiana
22A-PC-318
Post-conviction. Reverses the partial denial of Paul Dean Newcomb Jr.’s petition for post-conviction relief. Finds Newcomb has attempted at every stage of the trial and appellate proceedings to comply with the relevant rules and draw attention to a wrongful conviction with no relief, creating a rare circumstance of “fundamental error raised in the context of ineffective assistance of counsel but demonstrated as a matter of law.” Remands with instructions to vacate Newcomb’s conviction of Class B felony dealing in methamphetamine, enter a conviction of possession of precursors with intent to manufacture, conduct further proceedings upon the habitual substance offender allegation and sentence Newcomb accordingly. Chief Judge Cale Bradford dissents in part and concurs in part with separate opinion.

Cody Albert v. State of Indiana
21A-CR-2617
Criminal. Affirms Cody Albert’s murder conviction. Finds the Hendricks Circuit Court did not abuse its discretion in instructing the jury regarding intent and in excluding certain evidence regarding Albert’s mental health history.

Vivian Moore v. State of Indiana (mem. dec.)
21A-CR-2256
Criminal. Affirms Vivian Moore’s sentence to 30 years, with 28 years executed, for her conviction of Level 1 felony conspiracy to commit murder. Finds Moore’s sentence is not inappropriate in light of her character or the nature of her offense.

Henry Lee Savage v. State of Indiana (mem. dec.)
21A-CR-2510
Criminal. Affirms Henry Lee Savage’s conviction of Class A misdemeanor invasion of privacy and his sentence to one year with time served, as well as the revocation of his probation and the order that he serve his previously suspended 1,238-day sentence for two counts of Level 5 felony intimidation. Finds Savage’s action demonstrated a familiarity with the legal process that, when coupled with the trial court’s line of questioning, was sufficient to establish a knowing, voluntary and intelligent waiver of his right to counsel. Also finds Savage’s one-year sentence is not inappropriate in light of either the nature of his offense or his character. Finally, finds the trial court did not abuse its discretion in finding that the state satisfied its burden of proving that Savage had violated the terms of his probation, nor did it abuse its discretion in ordering him to serve his previously suspended sentence.

Nathan F. Morrow v. State of Indiana (mem. dec.)
22A-CR-377
Criminal. Affirms Nathan Morrow’s sentence to 11 years in the Department of Correction for his conviction of Level 4 felony operating a vehicle while intoxicated causing death. Finds Morrow’s sentence is not inappropriate in light of the nature of his offense and his character.

City of Hammond, Indiana, and Hammond Advisory Board of Zoning Appeals v. Phantom Fireworks Showrooms, LLC (mem. dec.)
22A-PL-507
Civil plenary. Reverses the grant of Phantom Fireworks Showrooms LLC’s petition for judicial review of the Hammond Advisory Board of Zoning Appeals’ denial of Phantom’s application for an improvement location permit. Finds Phantom’s property is subject to both the Hammond Zoning Ordinance and the Woodmar-Gateway Economic Development Plan and, therefore, was required to comply with both. Also finds the Hammond Redevelopment Commission had the authority to determine whether Phantom’s proposed business complied with the plan, and the city of Hammond was free to rely on that determination. Finally, finds the BZA’s decision to affirm the city was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Remands with instructions for the Lake Superior Court to reinstate the decision of the BZA.

Michael N. Jacobs v. State of Indiana (mem. dec.)
22A-CR-653
Criminal. Affirms Michael Jacobs’ convictions of five counts of Level 1 felony child molesting, two counts of Level 4 felony child molesting, two counts of Level 6 felony performing sexual conduct in the presence of a minor and one count of Level 6 felony contributing to the delinquency of a minor, and the finding that he was a habitual offender. Finds the Whitley Circuit Court did not err in admitting video-recorded statements made by victim L.H. after finding L.H. to be a protected person under Indiana Code § 35-37-4-6.

Ryan M. Shea v. State of Indiana (mem. dec.)
22A-CR-692
Criminal. Affirms Ryan Shea’s conviction of carrying a handgun without a license as a Class A misdemeanor. Finds the state presented sufficient evidence from which a reasonable factfinder would infer that Shea knowingly carried a firearm without a license.

Brian L. Meyer v. The Laverne R. and Nancy P. Meyer Revocable Living Trust Dated June 6, 2006, Thomas Meyer, and Jan DeWees (mem. dec.)
22A-PL-893
Civil plenary. Affirms the denial of Brian L. Meyer’s motion to correct error, filed after the Jasper Superior Court entered judgment in favor of The Laverne R. and Nancy P. Meyer Revocable Living Trust Dated June 6, 2006, Thomas Meyer and Jan DeWees on Brian’s complaint contesting Laverne’s will and his petition to docket and determine beneficiaries of the trust. Finds the trial court did not err in rejecting Brian’s claim that it should presume Thomas unduly influenced their parents, nor did it err in determining Laverne and Nancy acted of their own free will in removing Brian as a trust beneficiary. Also finds the trial court, in this context, did not set a higher standard of proof by its use of the word “clearly.”

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