Opinions Nov. 27, 2019

The following 7th Circuit Court opinion was posted after IL deadline on Tuesday.
Linda Waldon v. Wal-Mart Stores, Inc.
19-1529
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James R. Sweeney, II.
Civil. Affirms the grant of summary judgment to Walmart Stores on Linda Waldon’s negligence claims. Also affirms with order to show cause within 14 days of the date of the decision as to why Waldons’ counsel, James E. Ayers, should not be sanctioned under Rule 46 of the Federal Rules of Appellate Procedure for intentionally altering previously submitted photographs and misrepresenting the record to the court. The 7th Circuit will consider after Ayers’ response whether to send a copy of its opinion to the Indiana Supreme Court Disciplinary Commission.

Indiana Court of Appeals
Troy Ward v. State of Indiana
19A-CR-128
Criminal. Affirms Troy Ward’s convictions of three counts of felony murder under Indiana Code § 35-42-1-1(1), three counts of felony murder under I.C. 35-42-1-1(2), three counts of robbery resulting in serious bodily injury as a Level 2 felony and one count of carrying a handgun without a license as a Class A misdemeanor. Finds the Marion Superior Court did not abuse its discretion by admitting into evidence Ward’s song posted on social media. Also finds the trial court’s questioning of a witness did not amount to judicial bias. Finally, finds the state presented sufficient evidence to establish Ward’s conviction beyond a reasonable doubt.

Ernest Ray Snow, Jr. v. State of Indiana
19A-CR-00949
Criminal. Affirms Ernest Snow Jr.’s convictions in Hendricks Circuit Court of Level 5 felony counts of burglary, theft and conversion and Level 6 felony auto theft, as well as sentencing enhancements for committing a felony while a member of a criminal organization and for being a habitual offender. Remands with instructions to vacate one of two burglary convictions that was erroneously entered, finding the jury returned just one burglary conviction, and resentence Snow accordingly.

Kurt E. Baglan v. Jamey E. Baglan
19A-DN-858
Domestic relations no children. Affirms and reverses in part the division of the martial estate between Kurt and Jamey Baglan. Finds the Dubois Superior Court abused its discretion when it excluded Boeckman’s Furniture shares and German American Bank stock from the marital estate and when it valued the shares. Also finds the trial court acted within its discretion when it valued the Boeckman Rentals warehouse property. Remands with instructions.

In the Matter of the Delinquency of: N.S. v. State of Indiana (mem. dec.)
19A-JV-1173
Juvenile. Affirms the dispositional order committing N.S. to the Indiana Department of Correction. Finds the Vanderburgh Superior Court’s ordered placement is consistent with N.S.’s best interest and the safety of the community. Also finds the trial court did not abuse its discretion.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.T., B.T., and Z.T. (Minor Children) and S.T. (Father) v. The Indiana Department of Child Services (mem. dec.)
19A-JT-1034
Juvenile termination of parental rights. Reverses the termination of father S.T.’s parental rights to his children, A.T., B.T. and Z.T. Finds the termination of parental rights order was improper because the Indiana Department of Child Services failed to provide S.T. with written notice of the request for default judgment at least three days prior to the hearing on that request. Also finds the Elkhart Circuit Court abused its discretion when it entered default judgment against S.T. Remands for further proceedings with respect to S.T.

Gregory A. Lowery v. State of Indiana (mem. dec.)
19A-CR-965
Criminal. Affirms Gregory A. Lowery’s conviction of operating a vehicle while intoxicated as a Class C misdemeanor. Finds the state presented sufficient evidence to support Lowery’s conviction.

Alfredo Ortiz v. State of Indiana (mem. dec.)
19A-CR-656
Criminal. Affirms Alfredo Ortiz’s conviction of domestic battery as a Class A misdemeanor. Finds there is sufficient evidence to support Ortiz’s conviction.

Dax Lee Bailey v. State of Indiana (mem. dec.)
19A-CR-1239
Criminal. Affirms Dax Lee Bailey’s conviction of dealing in methamphetamine as a Level 3 felony and the finding that he is a habitual offender. Finds that based on the totality of the circumstances, the act of placing Bailey in handcuffs did not elevate the proper investigatory stop to an arrest. Also finds the detention of Bailey was permissible under Article 1, Section 11 of the Indiana Constitution. Finally, finds the Marion Superior Court did not abuse its discretion when it admitted evidence discovered during a search incident to arrest.

Michael D. Himes, Jr. v. State of Indiana (mem. dec.)
19A-CR-882
Criminal. Affirms Michael D. Himes Jr.’s enhanced aggregate nine-year sentence for his conviction of burglary as a Level 5 felony. Finds the Rush Superior Court did not impose an inappropriate sentence under Appellate Rule 7(B). Also finds Himes’ sentence does not warrant appellate revision.

Wilbert T. Sturgis v. State of Indiana (mem. dec.)
19A-PC-898
Post-conviction. Affirms Wilbert T. Sturgis’ 60-year sentence for his felony murder conviction. Finds that Sturgis has not shown that the LaPorte Circuit Court abused its sentencing discretion. Also finds his sentence is not inappropriate.

Michael D. Sample, Sr. v. State of Indiana (mem. dec.)
19A-CR-1552
Criminal. Affirms the order requiring Michael D. Sample Sr. to serve all his suspended time after he admitted to violating his probation. Finds the Bartholomew Superior Court was entirely justified in sending Sample back to the Department of Correction to serve out his sentence.

In the Matter of the Termination of the Parent-Child Relationship of A.J. and J.R. (Minor Children) and T.W. (Mother) and D.J. (Father of A.J.) v. Indiana Department of Child Services (mem. dec.)
19A-JT-1176
Juvenile termination of parental rights. Affirms the termination of mother T.W.’s parental rights to her two children, A.J. and J.R. and the termination of father D.J.’s parental rights to his daughter, A.J. Finds the Hamilton Circuit Court did not err when it concluded that there is a reasonable probability that the conditions resulting in the children’s removal and continued placement outside the home will not be remedied. Also finds the trial court did not err when it determined that termination is in the children’s best interests.

Gaylynn Burke v. David Burke (mem. dec.)
19A-DR-1329
Domestic relations. Affirms the post-dissolution order denying Gaylynn Burke’s petition to modify decree for fraud and granting David Burke’s cross-motion to enforce decree. Finds the Howard Superior Court did not abuse its discretion by denying Gaylynn’s petition. Also finds the order enforcing the dissolution decree did not constitute an improper modification of the decree.

In the Termination of the Parent-Child Relationship of: L.M., Z.M., A.S. & E.S. (Minor Children) And M.S. (Mother) and J.M. (Father) v. The Indiana Department of Child Services (mem. dec.)
19A-JT-484
Juvenile termination of parental rights. Affirms the termination of mother M.S. and father J.M.’s parental rights to their minor daughters, Z.M., L.M. and A.S., and the termination of M.S.’s parental rights to her son, E.S. Finds the Jennings Circuit Court’s conclusions that there was a reasonable probability that the conditions meriting continued placement would not be remedied and that termination was in the children’s best interest were not clearly erroneous.

Jordan Gilliam v. State of Indiana (mem. dec.)
19A-CR-1055
Criminal. Affirms Jordan Gilliam’s conviction of Class A misdemeanor domestic battery and Class C misdemeanor illegal consumption of an alcoholic beverage. Finds Gilliam knowingly waived his right to a jury trial.

Cleverly Lockhart v. State of Indiana (mem. dec.)
19A-PC-195
Post conviction. Affirms the Howard Circuit Court’s denial of Cleverly Lockhart’s successive petition for post-conviction relief. Finds the successive post-conviction court did not err when it found that Lockhart’s submissions were without evidentiary value without holding an evidentiary hearing.

Dontez West and Kyree Guajardo v. State of Indiana (mem. dec.)
19A-CR-414
Criminal. Affirms the denial of Dontez West and Kyree Guajardo’s motion to dismiss the criminal charges filed against them following their first trial, which ended in a mistrial. Finds the Madison Circuit Court did not clearly err in determining that the prosecuting attorney did not subjectively intend to cause a mistrial or intend to goad the defendants into requesting a mistrial. Finds the retrial therefore does not constitute double jeopardy.

R.L.N. v. P.A.B., M.J.B., and C.L.B., Jr. (mem. dec.)
19A-PO-877
Protective order. Reverses the Clark Circuit Court’s denial of R.N.’s motion to correct error after the trial court entered a protective order against him in favor of P.B., M.B., and C.B. Finds the trial court did not abuse its discretion in denying R.N.’s motion to correct error based on improper venue. However, finds the evidence of stalking was insufficient. Judge Elaine Brown dissents in a separate opinion.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: D.A. (Minor Child) and S.A. (Father) v. The Indiana Department of Child Services (mem. dec.)
19A-JT-1396
Juvenile termination. Affirms the termiantion of S.A.’s parental rights to his child, D.A. Finds S.A. waived his due process arguments. Waiver notwithstanding, finds the Department of Child Services’ inability to provide services to S.A. during his incarceration did not result in a denial of his due process rights.

Earl B. Martin v. State of Indiana (mem. dec.)
19A-CR-627
Criminal. Affirms Earl Martin’s convictions of murder, attempted murder, two counts of robbery and conspiracy to commit robbery. Finds exigent circumstances existed and that any error committed in admitting certain evidence was harmless.

Weston Anakin Swanson v. State of Indiana (mem. dec.)
19A-CR-1281
Criminal. Affirms Weston Swanson’s conviction of Class B misdemeanor criminal mischief. Finds the St. Joseph Superior Court did not abuse its discretion when it denied the admission of evidence to prove Swanson acted in defense of another. Finds there is sufficient evidence to support the conviction.

P.T. (minor child), by next friend, Terry Tlustek v. Ka. A.-L. (minor child) and Ki. A.-L. (minor child), by next friend Rachel Leaneagh (mem. dec.)
19A-PO-1241
Protective order. Affirms the Lawrence Circuit Court’s issuance of two protective orders for Ka. A.-L. and Ki. A.-L. against P.T. Finds there is sufficient evidence in support of the protective orders.

Ronald Victor Johnson v. State of Indiana (mem. dec.)
19A-CR-994
Criminal. Affirms Ronald Johnson’s 5½-year sentence for conviction in Marshall Superior Court of Level 5 felony dealing in a lookalike substance. Finds his sentence is not inappropriate.

SourceOne Group, LLC, and Joy Denhouter v. Ray Gage and Myers & Gage, Inc. d/b/a Grabill Insurance Center (mem. dec.)
18A-PL-2153
Civil plenary. Reverses the Allen Superior Court’s grant of partial summary judgment in favor of Gage and Myers & Gage, Inc. d/b/a Grabill Insurance Center. Finds the trial court properly found that SourceOne has a legitimate, protectable interest, but that it erred by finding that the nonsolicitation provision is unreasonable and unenforceable. Remands with instructions to enter partial summary judgment in SourceOne’s favor and for further proceedings.

Bobb Auto Group, LLC v. John Zembillas (mem. dec.)
19A-PL-1511
Civil plenary. Affirms the Lake Superior Court’s grant of John Zembillas’ motion for summary judgment for breach of contract against Bobb Auto Group. Finds no error and concludes there is no genuine issue of material fact as to whether the parties’ employment agreement contained adequate consideration or mutuality of obligation. Finds Zembillas is entitled to have his promised severance package.

Eric Richardson v. State of Indiana (mem. dec.)
19A-CR-1492
Criminal. Affirms Eric Richardson’s conviction of Class A misdemeanor trespass. Finds there is sufficient evidence to support the conviction.

City of Crawfordsville v. Howard Pollchik (mem. dec.)
19A-PL-1374
Civil plenary. Reverses the Montgomery Circuit Court’s grant of motion for relief for Howard Pollchik. Finds Pollchik wholly failed to attempt to show a meritorious claim and the trial court thus erred by granting Pollchik’s motion for relief from judgment. Remands for proceedings.

L.B. v. M.B. (mem. dec.)
19A-DC-993
Domestic relations with children. Affirms the Hamilton Superior Court’s grant of sole legal custody to father, M.B., regarding medical decisions for his three children, as well as an order that they be vaccinated. Finds the trial court did not abuse its discretion in excluding one of mother, L.B.’s, expert witnesses and that its decision to grant M.B. sole legal custody as to medical decisions for their children is not clearly erroneous. Finds any error in the trial court’s order that the children be vaccinated is harmless.

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