Opinions Aug. 9, 2022

Keywords Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline on Monday:
John Doe v. University of Southern Indiana
22-1864
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Chief Judge Tanya Walton Pratt.
Civil. Affirms the denial of John Doe’s motion for a preliminary injunction. Finds Doe, who was suspended for sexual assault, has not shown he is likely to succeed in his claim that the University of Southern Indiana discriminated against him on the basis of his sex in violation of Title IX of the Education Amendments of 1972.

Tuesday opinions
Court of Appeals of Indiana
Tabetha Smith v. Shawn Smith
21A-DC-2820
Domestic relations with children. Affirms and reverses in part the division of property in the dissolution of the marriage of Tabetha Smith and Shawn Smith. Finds the Marion Superior Court’s valuation, method of distribution and consideration of the tax consequences were well within its discretion. Also finds the trial court erred by failing to award either survivor’s benefits or protection of Tabetha’s portion of Shawn’s Indiana Public Retirement System pension benefits through other means, such as life insurance. Remands for further proceedings. 

Edgar Pimentel, Jr. v. State of Indiana (mem. dec.)
21A-CR-1480
Criminal. Affirms Edgar Pimentel Jr.’s 16-year sentence for his conviction of Level 3 felony dealing in methamphetamine, enhanced by eight years following his admission to being a habitual offender. Finds there is a discrepancy regarding the date that Pimentel posted bond and was released from incarceration. Also finds the Adams Circuit Court did not abuse its discretion in sentencing Pimentel. Finally, finds Pimentel has not presented any compelling evidence of his positive character or the nature of the offense that would render his sentence inappropriate. Remands for the trial court to review Pimentel’s jail records, determine the proper release date and award him one additional day of credit time if the release date of March 7, 2020, listed on the presentence investigation report is deemed correct.

Brandon L. Abbott v. State of Indiana (mem. dec.)
21A-CR-2193
Criminal. Affirms Brandon Abbott’s convictions of two counts of Level 1 felony neglect of a dependent resulting in death. Finds the evidence is sufficient to support Abbott’s convictions. Also finds the neglect statute is unambiguous, and each dependent whose death results from the defendant’s neglect constitutes a separate and independent violation of that statute, so Abbott could be convicted separately for each dependent he endangered, the result of which was the death of the dependent. Finally, finds Abbott’s convictions do not violate double jeopardy principles.

Michael Preston Polley v. State of Indiana (mem. dec.)
21A-CR-2411
Criminal. Affirms Michael Preston Polley’s convictions of Level 5 felony domestic battery, Level 6 felony domestic battery and Level 6 felony strangulation. Finds the Wayne Superior Court did not abuse its discretion in admitting evidence of two prior incidents of domestic violence, because the admission of the challenged evidence was relevant and did not violate Indiana Evidence Rule 404(b), and the trial court recognized and evaluated the probative value of that evidence and the danger of unfair prejudice that would result to Polley.

Jeffrey Lee Tracy v. State of Indiana (mem. dec.)
21A-CR-2413
Criminal. Affirms Jeffrey L. Tracy’s convictions of Level 3 felony aggravated battery and Level 5 felony battery by means of a deadly weapon and his sentence to an aggregate of 15 years, with six years suspended. Finds the state’s evidence at trial was sufficient to rebut Tracy’s claim of self-defense, and the facts are sufficient to support the jury’s determination. Also finds the Brown Circuit Court did not abuse its discretion when it refused to give the jury an instruction on Class B misdemeanor battery as a lesser included offense of the Level 3 felony aggravated battery offense, or when it refused to give a jury instruction on Class B misdemeanor battery as an included offense of Level 5 felony battery by means of a deadly weapon. Finally, finds Tracy has failed to carry his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

Carrie Heithoff v. State of Indiana (mem. dec.)
21A-CR-2648
Criminal. Affirms Carrie Heithoff’s conviction of resisting law enforcement. Finds there was sufficient evidence to sustain Heithoff’s conviction.

Russell D. Fox v. State of Indiana (mem. dec.)
22A-CR-315
Criminal. Affirms Russell Fox’s sentence to an aggregate of nine years for operating a motor vehicle while intoxicated. Finds Fox’s sentence is not inappropriate in light of the nature of the offense and his character.

Travis M. Downam v. State of Indiana (mem. dec.)
22A-CR-373
Criminal. Affirms Travis M. Downam’s sentence to an aggregate of 62 years, with six years suspended, for his convictions of four counts of Level 1 felony child molesting, four counts of Level 4 felony child molesting and two counts of Level 6 felony performing sexual conduct in the presence of a minor. Finds Downman’s sentence is not inappropriate and does not qualify for revision under Indiana Appellate Rule 7(B).

Chamis Bell Raab (Losey) v. State of Indiana (mem. dec.)
22A-CR-479
Criminal. Reverses Chamis Raab’s conviction of Class C misdemeanor possession of paraphernalia. Finds the state failed to prove that a metal grinder seized from her purse by police qualified as “paraphernalia” as defined in Indiana Code § 35-48-4-8.3(b).

In the Involuntary Termination of the Parent-Child Relationship of: A.V. and C.V. (Minor Children) and T.V. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JT-518
Juvenile termination of parental rights. Affirms the involuntary termination of father T.V.’s parental rights to minor children A.V. and C.V. Finds the Clark Circuit Court’s findings of fact amply support its conclusions that the conditions that resulted in the children’s removal or continued placement outside of T.V.’s home were unlikely to change. Also finds the trial court’s conclusion that termination of parental rights is in the children’s best interests was not clearly erroneous.

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