Opinions Nov. 28, 2023

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Court of Appeals of Indiana
Anonymous Provider 2 v. Estate of Ryan K. Askew, by Fornetta Askew, Personal Representative
Civil tort. Dismisses Anonymous Provider 2’s appeal of the denial of his motion to dismiss under Indiana Trial Rule 12(B)(1). Finds Anonymous Provider 2 is appealing from an interlocutory order, but he does not assert the right to do so under Appellate Rule 14(A), there is no indication he sought certification from the Lake Superior Court or permission from the Court of Appeals to file a discretionary interlocutory appeal, and he has not stated a statutory right to appeal. Remands for further proceedings.

In re the Paternity of L.J. and L.M. (Minor Children) Erin Jackson (Mother) v. Nikolas A. McElroy (Father), and David and Angela Jackson
Juvenile paternity. Reverses the order modifying custody of mother Erin Jackson’s children to grandparents David and Angela Jackson. Finds that Erin’s abandonment was so far in the past that it does not rebut the parental presumption in her favor, and the Vanderburgh Superior Court’s judgment to the contrary is clearly erroneous. Remands with instructions to award Erin custody of the children and reinstate the prior order giving David and Angela visitation and father Nikolas McElroy parenting time. Judge Cale Bradford dissents with separate opinion.

State of Indiana v. Franciscan Alliance, Inc. f/k/a Sisters of St. Francis Health Services, Inc.; The Market Place at State Road 37, LLC; Hook SupeRX, LLC; SCP 2010-C36-018 LLC; and Johsnon County, Indiana
Civil plenary. Reverses the jury award of $680,000 to Franciscan Health Alliance and $1.5 million to SCP 2010-C36-018 LLC. Finds the jury award given to Franciscan and SCP wrongly included noncompensable damages. Remands with instructions to vacate the judgment in favor of SCP, enter judgment for Franciscan and recalculate the prejudgment interest.

Clinton M. Odom v. State of Indiana (mem. dec.)
Criminal. Affirms Clinton Odom’s convictions of unlawful possession of a firearm by a serious violent felon as a Level 4 felony and possession of cocaine as a Level 6 felony. Finds the state presented sufficient evidence beyond a reasonable doubt to support Odom’s convictions.

John C. Bradley III v. State of Indiana (mem. dec.)
Criminal. Affirms John C. Bradley III’s conviction of Level 4 felony possession of methamphetamine. Finds the alleged constitutional provisions are inapplicable because the nurse who found the meth in Bradley’s coat pocket was acting as a private citizen and not a state actor.

Matthew J. Gilbert v. State of Indiana (mem. dec.)
Criminal. Affirms Matthew Gilbert’s convictions of Level 3 felony possession of a narcotic drug and Level 4 felony possession of methamphetamine. Finds the evidence is sufficient to support Gilbert’s convictions. Also finds the Clinton Superior Court erred by denying Gilbert’s motion for a separation of witnesses, but given the overwhelming evidence supporting the convictions, that error was harmless.

Cynthia Worrell v. Brian Worrell (mem. dec.)
Domestic relations. Affirms and reverses in part the denial of mother Cynthia Worrell’s motion to modify custody, parenting time and child support and the award of attorney fees to father Brian Worrell. Finds the Boone Superior Court did not err in concluding that a change in custody was not in the child’s best interests. Also finds the trial court abused its discretion in ordering Cynthia to pay $16,665.

Keith Lee Jabaay v. State of Indiana (mem. dec.)
Criminal. Affirms the denial of Keith Lee Jabaay’s motion for jail-time credit. Finds the Carroll Circuit Court did not err.

Laray D. Burks v. State of Indiana (mem. dec.)
Criminal. Affirms the denial of Laray D. Burks’ motion to correct erroneous sentence. Finds the Marion Superior Court did not err.

Jason Perry v. State of Indiana (mem. dec.)
Post-conviction relief. Affirms the denial of Jason Perry’s petition for post-conviction relief. Finds the post-conviction court did not err by relying on Exhibit R in crafting its overview of the relevant underlying facts. Also finds Perry has failed to prove that he was prejudiced by trial counsel’s allegedly deficient performance. Finally, finds the post-conviction court did not abuse its discretion in determining that Perry was not entitled to PCR because there was “zero evidence as to how any such [alleged] conflict affected the voluntary nature of [Perry’s] plea.”

Nicholas Wilkie-Carr v. State of Indiana (mem. dec.)
Criminal. Affirms Nicholas Wilkie-Carr’s sentence to a total of 10 years, with five years executed, four years on probation and one year suspended, for four Level 5 felony counts of possession of child pornography. Finds Wilkie-Carr cannot challenge the amended charging information that added Count 4 because he pleaded guilty to all charges, including Count 4. Also finds any error in the admission of an article and screening tool at the sentencing hearing was harmless, and the minor discrepancy between the oral and written statements was harmless because the Morgan Superior Court impose the same sentence in both. Finally, finds the trial court did not abuse its discretion in its identification of mitigating and aggravating circumstances, and Wilkie-Carr has not met his burden of proving that his sentence is inappropriate in light of the nature of his offenses and his character.

Donald Brown v. Jassica Brown (mem. dec.)
Domestic relations with children. Affirms the order dissolving the marriage of Jassica and Donald Brown. Finds the Elkhart Circuit Court did not abuse its discretion in awarding the marital home to Jassica, failing to include her IRA in the marital estate, or in its distribution of student loan liability.

Devante Lavon King v. State of Indiana (mem. dec.)
Criminal. Affirms Devante Lavon King’s convictions of Level 1 felony dealing in a controlled substance resulting in death and Level 4 felony dealing in cocaine or a narcotic drug. Finds the LaPorte Superior Court did not abuse its discretion in the admission of text messages between King and a third party. Also finds the state presented sufficient evidence to support King’s convictions.

Santana R. Robinson v. State of Indiana (mem. dec.)
Criminal. Affirms Santana R. Robinson’s conviction of Level 3 felony armed robbery. Finds the evidence was sufficient to support the conviction.

Historic Landmarks Foundation of Indiana d/b/a Indiana Landmarks v. Nicholas Yrjo Nifadeff (mem. dec.)
Civil plenary. Reverses the denial of Indiana Landmarks’ motion for a preliminary injunction requesting that the LaPorte Circuit Court order Nicholas Nifadeff to comply with the protective covenants of Orr Lake Mansion in LaPorte. Finds the trial court failed to comply with the requirements of Indiana Trial Rule 52(A). Remands with instructions for the trial court to issue an order that contains the required findings of fact and conclusions thereon.

Damion Bryant v. State of Indiana (mem. dec.)
Criminal. Affirms Damion Bryant’s six-year sentence for Level 5 felony reckless homicide. Finds Bryant’s sentence is not inappropriate in light of the nature of his offenses or his character.

In Re The Adoption of: A.M.; M.M. v. B.H. (mem. dec.)
Adoption. Affirms the judgment that father M.M.’s consent to the adoption of A.M. was not necessary. Finds the St. Joseph Probate Court’s findings and conclusions are supported by the record.

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