Opinions Jan. 30, 2023

Court of Appeals of Indiana
Tina M. Isley v. State of Indiana
21A-CR-2837
Criminal. Affirms the denial of Tina Isley’s motion to suppress blood draw results and medical records. Finds Isley’s rights under the Fourth Amendment, Article 1, Section 11 of the Indiana Constitution and Indiana’s implied consent laws were not violated. Judge Melissa May concurs in result with separate opinion.

Demond Latroy Welch v. 1106 Traub Trust
21-PL-2888
Civil plenary. Affirms the denial of Demond Latroy Welch’s request for attorney fees against 1106 Traub Trust, the grant of his counterclaim under Indiana Code Chapter 32-31-8, and the denial of the trust’s request for attorney fees and late fees. Finds the Marion Superior Court did not err by denying Welch’s claim for attorney fees, by denying the trust’s request for attorney fees or late fees, or by grant Welch’s counterclaim. Also finds the small claims court did not abuse its discretion by transferring the matter to the superior court.

Merrillville Apartments, LLC v. Review Board of the Indiana Department of Workforce Development, and D.W.
22A-EX-780
Agency action. Affirms the grant of unemployment benefits to D.W. Finds the Review Board of the Indiana Department of Workforce Development did not err when it granted D.W. unemployment benefits.

Robert F. Bailey v. State of Indiana
22A-CR-808
Criminal. Affirms Robert F. Bailey’s convictions of Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a narcotic drug (fentanyl) and Level 6 felony unlawful possession of a syringe, but reverses his sentence as to Count II, Level 2 felony dealing in a narcotic drug. Finds Bailey has not established fundamental error in the admission of evidence. Also finds the state presented sufficient evidence that Bailey constructively possessed the drugs. Finally, finds the Marion Superior Court imposed an illegal sentence on Count II: one year, when the statute requires 10-30 years. Remands with instructions for the trial court to resentence Bailey on Count II within the proper statutory range.

Donald L. Keene v. State of Indiana
22A-CR-1335
Criminal. Reverses the LaPorte Circuit Court’s order awarding Donald L. Keene 184 actual days “under Credit Class A” for time served from Nov. 10, 2021, to May 12, 2022, after he was sentenced to 30 months in the Department of Correction for Level 6 felony auto theft. Finds the decision in Glover v. State, 177 N.E. 3d 884 (Ind. Ct. App. 2021), trans. denied., informs the decision in the instant case. Also finds Keene is entitled to credit for more time spent in pretrial confinement than was awarded by the trial court. Remands with instructions to award Keene an additional nine days of credit for his pretrial confinement.

Edna Martin Christian Center, Inc., and Edna Martin Holdings LLC v. Jeremiah Smith, as Personal Representative for the Estate of Johnny T. Purchase, Deceased
22A-CT-1420
Civil tort. Reverses the denial of Edna Martin Christian Center Inc. and Edna Martin Holdings LLC’s motion to dismiss a claim against them and all other defendants for intentional infliction of emotional distress in a wrongful death action that was initiated by Jeremiah Smith as personal representative of the estate of Johnny T. Purchase. Finds the personal representative of an estate may not properly assert a claim for emotional distress damages for the benefit of the decedent’s minor dependent children and nondependent adult children in a wrongful death action. Remands to grant the Martins’ motion to dismiss and for further proceedings.

In the Matter of the Adoption of C.W.; J.R. v. L.W.
22A-AD-1804
Adoption. Reverses the grant of stepmother L.M.W.’s petition to adopt C.A.W. without the consent of mother J.R. Finds the St. Joseph Probate Court erred by determining that J.R.’s consent was not required due to abandonment. Also finds L.M.W. failed to meet her burden of demonstrating that J.R. failed to support the child. Remands for further proceedings.

Brent Bilski v. State of Indiana (mem. dec.)
21A-CR-2843
Criminal. Affirms Brent Bilski’s convictions of domestic battery by means of a deadly weapon as a Level 5 felony, strangulation as a Level 6 felony, criminal confinement as a Level 6 felony, two counts of domestic battery as a Class A misdemeanor, invasion of privacy as a Class A misdemeanor and possession of cocaine as a Level 6 felony. Finds the Marion Superior Court did not err when it read a stipulation of the parties to the jury but failed to formally admit the exhibit. Also finds sufficient evidence supported the invasion of privacy and domestic battery by means of a deadly weapon convictions.

Jacob Stephen Wootoon v. State of Indiana (mem. dec.)
22A-CR-728
Criminal. Affirms Jacob Stephen Wootton’s sentence to 52 years for his convictions of Level 1 felony neglect of a dependent causing death, Class B misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia, and his adjudication for being a habitual offender. Finds the Madison Circuit Court did not abuse its sentencing discretion.

Nicholas Ryan Bethards v. State of Indiana (mem. dec.)
22A-CR-796
Criminal. Affirms Nicholas Ryan Bethards’ conviction of Level 6 felony stalking. Finds Bethards has not demonstrated fundamental error in the admission of certain character evidence or in the charging information.

Ashley Humphrey v. State of Indiana (mem. dec.)
22A-CR-1389
Criminal. Affirms Ashley Humphrey’s conviction of Level 5 felony battery resulting in bodily injury to a disabled person but reverses his conviction of Level 6 felony strangulation. Finds the Marshall Superior Court did not abuse its discretion by excluding Cody Cole’s testimony regarding his history of self-harm. Also finds the trial court correctly concluded that a conviction under Counts I and II would constitute double jeopardy, but the proper procedure was to vacate Count II, rather than merge the offenses. Remands with instructions to vacate the Level 6 felony conviction.

In the Matter of the Adoption of T.K.; K.W. v. M.N. (mem. dec.)
22A-AD-1421
Adoption. Affirms and reverses in part the grant of stepmother M.N.’s petition to adopt T.K. Finds the Dubois Circuit Court’s finding that mother K.W.’s consent was not required due to her lack of communication with T.K. was supported by sufficient evidence. Also finds the trial court failed to comply with the statutory requirement that M.N. undergo a criminal background check. Remands with instructions that the trial court order a criminal history check of M.N. that complies with the requirement of the adoption statutes.

Dawn M. Carden v. State of Indiana (mem. dec.)
22A-CR-1619
Criminal. Affirms Dawn Carden’s consecutive sentences totaling 11 years in the Department of Correction. Finds the Lake Superior Court did not abuse its discretion.

Brandon Godsey v. Amanda Godsey (mem. dec.)
21A-DC-2502
Domestic relations with children. Grants rehearing for the limited purpose of correcting the standard of review. Finds the analysis of the issues of physical and legal custody, relocation, weekly child support and property division do not need to be revised due to the application of an incorrect standard of review. Affirms the original opinion in all other respects.

Devante King v. State of Indiana (mem. dec.)
22A-CR-660
Criminal. Affirms Devante King’s sentence to 10 years for his conviction of dealing in a narcotic as a Level 4 felony but declines to dismissal for lack of jurisdiction. Finds the Court of Appeals has jurisdiction. Also finds King’s sentence is not inappropriate.

Kristy L. Hawkins v. State of Indiana (mem. dec.)
22A-CR-1282
Criminal. Affirms Kristy Hawkins’ conviction of felony murder. Finds the state presented sufficient evidence to negate Hawkins’ claim of self-defense and support her conviction of murder. Also finds Hawkins demonstrated no fundamental error or abuse of discretion in the St. Joseph Superior Court’s evidentiary rulings. Finally, finds Hawkins demonstrated no fundamental error in the jury instruction.

Kevin R. Yurkus v. Heather R. Yurkus (mem. dec.)
22A-DR-1384
Domestic relations. Reverses the order modifying parenting time, child support, and state and federal tax exemptions in favor of mother Heather Yurkus. Finds the trial court abused its discretion in modifying father Kevin Yurkus’ ability to claim children as dependents on his tax returns. Also finds Heather has failed to establish that there had been a change in circumstances justifying a modification of the child support order in light of the Indiana Code 31-16-6-1.5(b) factors, so the trial court’s decision to reallocate the tax exemption to Heather was contrary to the logic and effect of the facts and circumstances presented to it. Remands for further consideration on the issue of dependent-tax-exemption. Judge Nancy Vaidik concurs in result without separate opinion.