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Opinions Dec. 7, 2012 ILD

For publication opinions are detailed in the stories above. The 7th Circuit Court of Appeals and Indiana Supreme Court and Tax Court released no opinions by IL deadline.

Indiana Court of Appeals
Brenda Varo v. State of Indiana (NFP)
49A05-1203-CR-144
Criminal. Affirms convictions of Class C felony conspiracy to commit battery and Class D felony criminal gang activity.

In Re the Marriage of Lisa L. Shisler and Ned L. Shisler; Ned L. Shisler v. Lisa L. Shisler (NFP)
57A03-1109-DR-450
Domestic relation. Reverses distribution of marital estate and remands for further proceedings.

Vickie Jessie v. State of Indiana (NFP)
49A02-1205-CR-413
Criminal. Affirms conviction of Class A felony criminal deviate conduct and order that Jessie pay $2,090 in restitution to her victim.

Michael R. Krohn v. State of Indiana (NFP)
45A03-1203-CR-131
Criminal. Affirms sentence for Class D felony operating a motor vehicle while intoxicated causing serious bodily injury.

Quinn Nelson v. State of Indiana (NFP)
49A04-1203-CR-145
Criminal. Affirms conviction of Class A felony attempted murder and adjudication as a habitual offender.

Anthony White v. State of Indiana (NFP)
49A02-1204-CR-321
Criminal. Affirms convictions of Class D felony attempted theft and Class A misdemeanor criminal trespass.

Deandre L. Mathews v. State of Indiana (NFP)
49A02-1205-CR-416
Criminal. Affirms conviction of Class B felony burglary.

Andrea Averitte v. State of Indiana (NFP)
49A02-1203-CR-251
Criminal. Affirms conviction of Class C felony forgery.

Michael McClellan v. State of Indiana (NFP)
02A03-1204-CR-180
Criminal. Affirms sentence following conviction of two counts of Class C felony stalking.
 

Opinions Dec. 7, 2012

Indiana Court of Appeals
Terry L. Brown v. Tammy S. Brown
77A01-1204-PL-180
Civil plenary. Reverses civil judgment in favor of Terry Brown’s ex-wife. The trial court abused its discretion when it admitted evidence regarding criminal offenses he committed more than 20 years ago. Remands for further proceedings.

COA splits over reversing possession conviction

A divided Court of Appeals upheld a man’s possession of marijuana conviction that stemmed from a 911 call. Dissenting Judge James Kirsch doesn’t believe that the providing of a name by a 911 caller removes this case from the category of an anonymous caller, thus the call doesn’t give police enough evidence to stop the car the defendant was in.

Judge moves venue for trial of IMPD officer

Marion Superior Judge Grant Hawkins has ordered the trial for Indianapolis Metropolitan Police Officer David Bisard moved from the Indianapolis media market because of publicity surrounding the fatal accident involving the officer in 2010.

Opinions Dec. 6, 2012 ILD

The stories above detail the for-publication Indiana Court of Appeals decisions released today. The Indiana Supreme Court and Tax court release no decisions, and 7th Circuit Court of Appeals released no Indiana decisions, prior to IL deadline.

Indiana Court of Appeals
In Re: The Adoption of K.H.: S.H. (Mother) v. W.B. and B.B. (Guardians) (NFP)
59A01-1205-AD-212
Adoption. Affirms denial of motion to correct error, which challenged the adoption of K.H.

Toni Cox v. State of Indiana (NFP)
49A02-1205-CR-367
Criminal. Affirms conviction of disorderly conduct.

Hugh Z. Nelson v. Renee Burtin (NFP)
45A03-1111-DR-576
Domestic relation. Dismisses appeal of the disposition of the marital assets.

Andra Dossey v. State of Indiana (NFP)
27A04-1204-CR-175
Criminal. Affirms order Dossey serve his entire previously suspended sentence after his probation was revoked.

Steven Kamp v. State of Indiana (NFP)
66A05-1109-PC-485
Post conviction. Grants rehearing to clarify certain factual assertions made in the original opinion and reaffirms in all respects.

Opinions Dec. 6, 2012

Indiana Court of Appeals
Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp
50A04-1204-CT-192
Civil tort. Reverses grant of partial summary judgment to Kemp on the Yateses’ and Tibbses’ claims for nuisance. Based on the plain language of I.C. 14-22-31.5-6 and its context in the act as a whole, Kemp is not shielded by section 6 from liability related to his neighbors’ nuisance claims arising from noise pollution. There is also a material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance or discomfort.

Insurer doesn’t have to cover cleanup of California sites

Relying on California law and a case from 2006, the Indiana Court of Appeals affirmed that an insurer of former film-processing sites has no obligation to indemnify Thomson Inc. for the remediations of three California locations.

Paralegals collect thousands of teddy bears for program

The IndyBar Paralegal Committee Thursday delivered the thousands of teddy bears it has collected from various law firms to the “Bears on Patrol” program. The program is run by the Indianapolis Metropolitan Police Department, Marion County Sheriff’s Department, Indianapolis Fire Department and Wishard Health Services EMS.

COA rules against longtime shooting range owner

A Marshall Circuit judge erred in granting partial summary judgment in favor of a shooting range owner on his neighbors’ claims of nuisance, the Indiana Court of Appeals held Thursday. The appellate judges found a statute cited by the trial court did not apply to the owner.

Opinions Dec. 5, 2012 ILD

Indiana Court of Appeals
Tarique Henderson v. State of Indiana (NFP)
49A04-1202-CR-50
Criminal. Affirms convictions of Class A felony attempted murder and Class B felony unlawful possession of a firearm by a serious violent felon.
 
Agustin Martinez v. State of Indiana (NFP)
49A02-1203-CR-197
Criminal. Affirms convictions of two counts of Class C felony child molesting.

Kamari Hogue, A Minor, By and Through His Parent And Next Friend, Trent Hogue v. Robert Critz, Jr. (NFP)
02A05-1204-CT-192
Civil tort. Affirms jury verdict in Critz’s favor on Houge’s suit for negligence.

Robert D. Rogers, Jr. v. State of Indiana (NFP)
02A05-1204-CR-211
Criminal. Affirms conviction of failure to register as offender, elevated to a Class C felony as a result of a previous conviction for failure to register.

Mahamat Outman v. State of Indiana (NFP)
20A03-1204-CR-197
Criminal. Affirms application of the credit restricted felon statute to Outman’s conviction for Class A felony child molesting as alleged in Count III was not an ex post facto violation.

Kelvin Whitby v. State of Indiana (NFP)
02A03-1205-CR-226
Criminal. Affirms sentence for Class D felony domestic battery.

First Chicago Insurance Company v. Philip Hempel, Farm Bureau Insurance Company of Michigan, and American Transportation on Time, Inc. (NFP)
71A03-1202-PL-64
Civil plenary. Affirms dismissal of First Chicago’s complaint for declaratory judgment. The trial court did not err in dismissing the declaratory judgment action on principles of comity.

Susan Edwards v. Deutsche Bank National, Trust Company (NFP)
02A03-1201-MF-24
Mortgage foreclosure. Affirms summary judgment in favor of the bank in the bank’s in rem action against real property owned by Edwards.

Term. of the Parent-Child Rel. of: A.T., Minor Child, M.T., Father v. Indiana Dept. of Child Services (NFP)
42A04-1203-JT-118
Juvenile. Affirms involuntary termination of father’s parental rights.

Herman Gehl, II v. State of Indiana (NFP)
13A01-1203-CR-92
Criminal. Affirms sentence following guilty plea to two counts of Class D felony invasion of privacy.
 

Opinions Dec. 5, 2012

7th Circuit Court of Appeals
United States of America v. Gregory Wolfe
11-3281
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms convictions of bank theft and interstate transportation of stolen goods for Wolfe’s role in a copper theft scheme and his 88-month sentence, followed by concurrent three-year terms of supervised release, and order of more than $3 million in restitution. Wolfe argued that he was deprived of a fair trial because of statements the prosecutor made during closing argument. He also challenged the sentence and restitution order. Wolfe’s contentions lack merit.

7th Circuit upholds $3M restitution order for copper theft

The 7th Circuit Court of Appeals rejected a defendant’s argument that the court should go against its precedent that restitution is not a criminal penalty and that a recent U.S. Supreme Court holding means the jury should determine the amount of restitution he should pay for his role in copper theft.

Judges affirm 911 recording properly admitted as evidence

Ruling on the issue for the first time, the Court of Appeals held a 911 recording that involves statements by a caller that were relayed from a victim are admissible where the victim had personal knowledge of the underlying incident but the caller did not.

COA not persuaded by defendant’s claims on appeal

The Indiana Court of Appeals affirmed Bret Lee Sisson’s felony convictions of burglary, theft, receiving stolen property and unlawful possession of a firearm by a serious violent felon, finding no abuse of discretion or fundamental error during his trial.

Refusal to give jury instruction not harmless error

A trial court’s error in refusing to give a defendant’s tendered self-defense and resistance of unlawful force instructions during his trial was not harmless and requires the man’s conviction of Class D felony resisting law enforcement be overturned, the Indiana Court of Appeals held Wednesday.

Mother’s consent to adoption not required

The Indiana Court of Appeals reversed the decision by the Wabash Circuit Court to deny a father and his wife’s petition to allow his wife to adopt his minor child, finding the biological mother’s consent is not required.

Court split over valid ID requirement for name change

The Court of Appeals concluded Wednesday that the trial court erred when it required a valid driver’s license or state identification card as a prerequisite to grant a petition for a name change under Indiana Code 34-28-2, but split over whether an elderly man can change his name because he’s never had a valid state-issued ID.

IBA: Got a question? ‘Safe Ask’ has an answer

Have you ever had a question that you couldn’t answer, and didn’t feel comfortable asking a colleague at your firm or even a close friend? Perhaps you’re in a solo practice and aren’t quite sure where to turn … or maybe you just need a second opinion on a course of action.