Opinions Dec. 28, 2022

Court of Appeals of Indiana
Fredrick Austin v. State of Indiana
22A-CR-1240
Criminal. Reverses Fredrick Austin’s convictions of two counts of Level 1 felony child molesting. Finds the evidence is insufficient to support the convictions. Remands with instructions to replace the two Level 1 felony convictions with two convictions of Level 4 felony child molesting and to resentence Austin accordingly.

Reese Levi Keith v. State of Indiana
22A-CR-930
Criminal. Affirms Reese Levi Keith’s sentence to an aggregate of 42 years, imposed on remand. Finds the sentence is not inappropriate.

Indiana Department of Child Services v. C.M., et al. (mem. dec.)
22A-AD-1145
Adoption. Reverses the grant of adoptive parents C.M. and K.M.’s motion for rule to show cause, the order finding the Indiana Department of Child Services in contempt and the order for DCS to pay $9,000 of the adoptive parents’ attorney fees. Finds the adoption decrees were ambiguous regarding whether DCS was prohibited from conducting wellness checks on the children, J.S.M. and J.D.M. Also finds the Hamilton Superior Court abused its discretion when it held DCS in contempt.

In Re: The Adoption of: H.B. (Child) M.B. (Father) v. S.B. (mem. dec.)
22A-AD-1483
Adoption. Affirms the order granting adoptive father S.B.’s petition to adopt H.B. Finds the Vanderburgh Superior Court did not err in finding that father M.B.’s consent was unnecessary for the adoption. Also finds the evidence supports the trial court’s conclusion that adoption is in H.B.’s best interests.

George Eltzroth v. Zaki Ali, and Zaki Ali Attorney at Law LLC d/b/a Zaki Ali Trial Lawyers (mem. dec.)
22A-PL-963
Civil plenary. Affirms the order enforcing the settlement agreement between George Eltzroth, represented by the Nice Law Firm LLP, and Zaki Ali and Zaki Ali Trial Lawyers, and the conclusion that Eltzroth had authorized Nice to settle his legal malpractice lawsuit. Finds the Madison Circuit Court did not err.

Pekin Insurance Company and American Eagle Tree Service, LLC v. Grove U.S. L.L.C. (mem. dec.)
22A-CT-2208
Civil tort. Affirms the grant of Grove U.S. LLC’s renewed motion to dismiss for failure to prosecute the negligence suit filed by Pekin Insurance Company and American Eagle Tree Service LLC. Finds the hearing on Grove’s initial motion was sufficient to satisfy the hearing requirement set forth in Indiana Trial Rule 41(E). Also finds the Warrick Superior Court did not abuse its discretion in granting Grove’s renewed motion to dismiss for failure to prosecute.

Thomas Grover Brooks III v. Tracy Joy Brooks (mem. dec.)
22A-DC-1528
Domestic relations with children. Reverses the denial of father Thomas Grover Brooks III’s motion to modify his child support obligation. Finds Brooks has established prima facie error. Remands with instructions to enter an amended child support modification order that sets Brooks’ basic weekly child support obligation based on an annual gross income of $75,000 or a weekly gross income of $1,442.31, retroactive to Aug. 26, 2021, and to determine the exact amount of his arrearage or the credit mother Tracy Jo Brooks may owe him.

Jessica Campbell v. State of Indiana (mem. dec.)
22A-CR-1139
Criminal. Affirms Jessica Campbell’s conviction of dealing in a controlled substance resulting in death as a Level 1 felony. Find the amended information was not unconstitutionally vague, and the Delaware Circuit Court did not err in denying the motion to dismiss it on those grounds. Also finds the trial court did not abuse its discretion when it granted the motion to amend the information as the amendment did not prejudice Campbell’s substantial rights in violation of state law.

Mya L. Moody v. State of Indiana (mem. dec.)
22A-CR-1658
Criminal. Affirms Mya Moody’s conviction of dealing in a controlled substance resulting in death as a Level 1 felony. Finds Moody has not demonstrated reversible error in the admission of evidence. Judge Nancy Vaidik concurs in result without separate opinion.

Darryl A. Davis v. State of Indiana (mem. dec.)
22A-CR-1247
Criminal. Affirms Darryl Davis’ convictions of felony murder and Level 4 felony unlawful possession of a firearm by a serious violent felon and an enhancement for the use of a firearm in the commission of an offense. Finds the state presented sufficient evidence to demonstrate that Davis was the person who had shot and killed Stephon Holland. Also finds any error in the court’s admission of the jail phone calls was harmless in light of the other evidence before the jury.

Adam M. Bullins v. State of Indiana (mem. dec.)
22A-CR-1424
Criminal. Affirms Adam Bullins’ convictions of Level 4 felony possession of methamphetamine with intent to deliver and Class B misdemeanor possession of marijuana, and his sentence to an aggregate of 10 years executed. Finds the state presented sufficient evidence to demonstrate that Bullins constructively possessed methamphetamine and marijuana. Also finds Bullins’ sentence is not inappropriate in light of the nature of the offenses and his character.

Willard E. Beeman v. State of Indiana (mem. dec.)
22A-CR-1325
Criminal. Affirms Willard E. Beeman’s conviction of dealing in methamphetamine as a Level 2 felony. Finds the trial court did not abuse its discretion when it admitted evidence of text messages that took place in the two months prior to Beeman’s arrest, as that evidence was relevant and admissible under Indiana Evidence rule 404(b)(2) to show his intent to deal or deliver methamphetamine.

Jermain Martise Lamar v. State of Indiana (mem. dec.)
22A-CR-1435
Criminal. Affirms Jermaine Martise Lamar’s convictions of murder and attempted murder. Finds the Marion Superior Court did not abuse its discretion in denying Lamar’s motion for a competency evaluation. Also finds the trial court informed Lamar that he had an “absolute right to” make a statement in allocution, so he did not demonstrate fundamental error.

In Re the Termination of the Parent-Child Relationship of: M.K. (Minor Child) And J.K. (Mother) and K.J. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JC-1365
Juvenile CHINS. Affirms and reverses in part the adjudication of mother J.K. and father K.J.’s child, M.K., as a child in need of services. Finds the Department of Child Services established that the parents, independently and collectively, are unable to provide M.K. with basic care and necessities. Also finds there is no evidence to support the Marion Superior Court’s decision to order K.J. to undergo drug testing. Remands with instructions to vacate that portion of the dispositional order and to consider placement of M.K. closer to the parents’ residence.

T.M. v. State of Indiana (mem. dec.)
22A-JV-1761
Juvenile. Affirms the order committing T.M. to the Indiana Department of Correction. Finds the Lake Superior Court did not abuse its discretion.

K.T. v. State of Indiana (mem. dec.)
22A-JV-2144
Juvenile. Affirms the order awarding wardship of K.T. to the Indiana Department of Correction for housing in a correctional facility for children. Finds the placement ordered by the Allen Superior Court is consistent with K.T.’s best interests and the safety of the community and, thus, is not an abuse of discretion.

In re the Termination of the Parent-Child Relationship of K.R. (Minor Child) and D.R. (Mother) D.R. (Mother) v. Indiana Department of Child Services (mem. dec.)
22A-JT-840
Juvenile termination of parental rights. Affirms the termination of mother D.R.’s parental rights to K.R. Finds the trial court did not abuse its discretion in denying D.R.’s motion to continue. Also finds the Floyd Circuit Court did not err when it concluded there is a reasonable probability that the conditions leading to K.R.’s removal will not be remedied.

In the Termination of the Parent-Child Relationship of: R.M., C.M., P.M., & J.M. (Minor Children) and M.M. (Mother) and R.D. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JT-1362
Juvenile termination of parental rights. Affirms the order terminating father R.D. and mother M.M.’s parental rights to R.M., C.M., P.M. and J.M. Finds the termination order was supported by the evidence and, thus, was not clearly erroneous.

In the matter of the Name Change of Israel James Croney: Apryl E. Underwood (mem. dec.)
22A-MI-1892
Miscellaneous. Reverses the denial of mother Apryl Underwood’s motion to correct error, which challenged the Allen Circuit Court’s order denying her petition to change the name of her minor child, Israel James Croney, to include Underwood’s surname. Finds the trial court misinterpreted Indiana Code § 34-28-2-2 to require, with the filing of the petition, the written consent of both parents of a child for whom a name change has been requested. Remands with instructions to conduct a hearing regarding the child’s best interests.

Kevin Sweat v. State of Indiana (mem. dec.)
22A-PC-924
Post-conviction. Affirms the denial of Kevin Sweat’s petition for post-conviction relief. Finds the evidence as a whole does not lead unerringly to a decision opposite that reached by the post-conviction court. Judge Nancy Vaidik concurs in result without separate opinion.

David Andrew Dimmett v. State of Indiana (mem. dec.)
22A-PC-1484
Post-conviction. Affirms the denial of David Andrew Dimmett’s amended petition for post-conviction relief. Finds no reversible error.

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