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The Indiana Court of Appeals was faced with competing constitutional rights today: a mother’s right to free political
speech versus her daughter’s right to privacy as to whether her father allegedly sexually abused her.
Indiana Supreme Court
Myron Owens v. State of Indiana
49S02-0910-CR-429
Criminal. Affirms Owens’ convictions of and sentence for dealing cocaine and obstruction of justice, and that he has accumulated two unrelated convictions to be sentenced under the habitual offender statute. Holds conspiracy to deal conviction is not equivalent to a dealing conviction for purposes of the Indiana habitual offender statute.
Indiana Court of Appeals
Randy Edward Johnson v. State of Indiana
53A01-1002-CR-38
Criminal. Affirms conviction of Class A felony child molesting. No actual conflict existed that required the defense attorney to make a choice advancing his own interests to the detriment of his client’s interests, but only a potential conflict occurred between Johnson and his counsel. Finds that the trial court’s action of formally noting Johnson’s displeasure on the chronological case history and forwarding his request to the Monroe County Public Defender Officer reasonable. The State did not commit prosecutorial misconduct during closing arguments.
Paternity of H.S.; P.S. v. R.F.
91A02-1003-JP-334
Juvenile. Affirms summary judgment in favor of R.F. in P.S. and H.S.’s paternity action against him and the denial of their request for genetic testing of R.F. Any objections to Judge Overbeck’s presiding over the adoption were waivable and H.S. and P.S. have done just that due to mother P.S.’s failure to raise the issue in 1975. Concludes that a mere desire to know the identity of one’s biological father, whatever the reason, is insufficient once establishing legal paternity is not possible. The trial court correctly denied H.S and P.S.’s motion to compel genetic testing on R.F.
Lorenzo A. Taylor v. State of Indiana
29A02-0912-CR-1212
Criminal. Reverses conviction of conspiracy to commit dealing in cocaine as a Class A felony and remands with instructions to enter as a Class B felony and resentence accordingly. Taylor’s convictions and sentences for both dealing in cocaine and conspiracy to commit dealing in cocaine don’t violate the prohibition against double jeopardy.
City of Indianapolis v. Olive Duffitt
49A04-0911-CV-661
Civil. Reverses denial of City of Indianapolis’ motion for summary judgment in Duffitt’s tort action for damages arising out of injuries sustained from falling on a sidewalk. Given the budgetary considerations and cost-benefit analyses that produced the city’s prioritization scheme, Indianapolis’ designated evidence demonstrates that its decisions are discretionary under the “planning-operational test” as it is interpreted in Pairsh and Rutherford. In cases where certain policy decisions have been delegated to individual employees, discretionary immunity may be established through affidavits. Remands with instructions to enter summary judgment in favor of the city.
Adam Gibson v. State of Indiana (NFP)
47A01-1001-CR-28
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary.
Kathy Hardesty v. Larry Vickery (NFP)
08A04-1001-PO-117
Order of protection. Affirms order of protection against Hardesty.
Christopher Deardorff v. State of Indiana (NFP)
02A03-0911-CR-550
Criminal. Affirms conviction of Class D felony theft.
James Daugherty v. State of Indiana (NFP)
21A01-1001-CR-55
Criminal. Affirms sentence following guilty plea to public intoxication as a Class B misdemeanor.
Term. of Parent-Child Rel. of L.C. & G.C.; G.C. v. Marion County Dept. of Child Services and Child Advocates (NFP)
49A02-0912-JV-1253
Juvenile. Affirms termination of parental rights.
Saundra and Clyde Smithson v. Howard Regional Health System (NFP)
34A02-1001-CT-73
Civil. Reverses and remands summary judgment in favor of Howard Regional Health System that it was immune from liability under the Indiana Tort Claims Act.
S.C. v. State of Indiana (NFP)
49A02-0912-JV-1186
Juvenile. Affirms adjudication for false informing, a Class A misdemeanor if committed by an adult.
Sheldon Fogleman v. State of Indiana (NFP)
30A01-1002-CR-62
Criminal. Affirms sentence following guilty plea to Class D felony theft.
Billy Dix v. Indiana State Department of Health, et al. (NFP)
03A01-1001-MI-13
Miscellaneous. Affirms order on judicial review affirming the Indiana State Department of Health’s administrative determination that Dix’s involuntary transfer was in compliance with Indiana’s regulations.
Spencer Jones v. State of Indiana (NFP)
49A05-0912-CR-719
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.
Donald Fisher v. Tower Bank and Trust Co. (NFP)
02A05-1002-MF-97
Mortgage foreclosure. Affirms summary judgment in favor of Tower Bank upon the court’s determination that the bank’s lien on property owned by Stauffer Development was first in priority.
L.M. v. State of Indiana (NFP)
49A02-1001-JV-15
Juvenile. Affirms adjudication for Class B felony child molesting if committed by an adult.
Cynthia Sericati v. State of Indiana (NFP)
49A04-0911-CR-673
Criminal. Affirms conviction of Class D felony neglect of a dependent.
Alvino Pizano v. State of Indiana (NFP)
45A04-1002-CR-128
Criminal. Affirms denial of motion to remove defendant from Indiana’s Sex Offender Registry Act’s Residency Restriction Portion.
Kevin Holloway v. State of Indiana (NFP)
49A05-0911-CR-649
Criminal. Affirms conviction of Class C felony child solicitation.
Indiana Tax Court had posted no opinions at IL deadline.
Indiana Supreme Court
Andre
Peoples v. State of Indiana
79S02-0912-CR-549
Criminal. Affirms finding Peoples is a habitual offender. People’s instant dealing offense is to be counted in calculating
the total number of unrelated felony convictions an individual has for drug dealing. While a single felony drug conviction
is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the
instant offense.
The Indiana Supreme Court Monday answered the certified question sent to them by the U.S. District Court in New York about
what standard should be applied in determining whether a director is “disinterested” under Indiana Code Section
23-1-32-4(d).
The Indiana Supreme Court granted four transfers June 24, including one in which the Indiana Court of Appeals extended the
duty to prevent injury to sports participants to include sporting event volunteers.
Indiana Court of Appeals
Julianne
E. Tamasy v. Peter S. Kovacs
49A05-0910-CV-563
Civil. Affirms order granting physical custody of the parties’ children to Kovacs. The trial court did not abuse its
discretion in denying Tamasy’s request to transfer the custody proceedings to Massachusetts, in excluding certain testimony
at trial, in modifying the previous custody order, and in issuing a July 23, 2009, order regarding Tamasy’s emergency
motion to compel parenting time.
American
Family Insurance v. Beazer Homes, et al.
49A02-0912-CV-1292
Civil. Reverses dismissal of American Family Insurance’s claim for failure to prosecute against Beazer Homes and other
defendants. The trial court abused its discretion in dismissing the claim under Indiana Trial Rule 41(E). The record does
not reveal a history of an egregious pattern of deliberate delay on the part of American Family or that American Family defied
any court orders. Remands with instructions to reinstate the cause of action.
Elmer
D. Baker, v. State of Indiana
17A04-0905-CR-299
Criminal. Grants rehearing to clarify holding on the issue of the amendment of the charging information but affirms original
opinion affirming convictions of two counts of Class A felony child molesting and one count of Class C felony child molesting.
Clarifies holding to state that the applicable deadline for amending the information is not “before the commencement
of the trial” that ended in a mistrial; rather, it is “before the commencement of the trial” that was held
on the amended charges, and the one from which Baker filed his appeal.
Eliud
Anthony Delgado v. State of Indiana (NFP)
29A02-0911-CR-1142
Criminal. Affirms revocation of placement in community corrections.
Travis
Halveland v. State of Indiana (NFP)
89A04-1002-CR-111
Criminal. Affirms sentence following guilty plea to Class D felony theft.
Stardust Development, LLC v. City of Bloomington (NFP)
53A04-0908-CV-487
Civil. Reverses small claims judgment in favor of Bloomington in Stardust Development’s action to recover costs of
a tree branch removal. Remands with instructions.
Martin Serrano v. State of Indiana and the City of Fort Wayne (NFP)
02A03-0908-CV-362
Civil. Reverses judgment in favor of the state and City of Fort Wayne ordering the forfeiture of Serrano’s truck, which
was seized after a traffic stop.
Maurice
Hairston v. State of Indiana (NFP)
02A03-1003-CR-137
Criminal. Affirms convictions of burglary as a Class B felony, receiving stolen property as a Class D felony, and adjudication
as a habitual offender.
Jason D. Arbuckle v. State of Indiana (NFP)
72A01-0912-CR-618
Criminal. Affirms conviction of Class A felony dealing in methamphetamine.
Term.
of Parent-Child Rel. of T.L.; H.L. v. IDCS (NFP)
02A03-1002-JT-100
Juvenile. Affirms involuntary termination of parental rights.
Indiana Tax Court had posted no opinions at IL deadline.
Indiana Supreme Court
Richard
Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven
09S05-1003-CV-149
Civil. Reverses grant of summary judgment as to the plaintiffs’ liability claims against the sheriff for the conduct
of Deputy Brad Craven. Affirms summary judgment for claims against Craven personally. Holds that a law enforcement officer's
use of force in excess of the reasonable force authorized by statute is not shielded from liability under the "enforcement
of a law" immunity provided in Indiana Code § 34-13-3-3(8) and that genuine issues of fact exist, precluding summary
judgment. Chief Justice Shepard dissents without opinion.
The Indianapolis-Marion County Public Library should be able to pursue a cross-claim against an engineering company for breach
of professional standard of care, the Indiana Court of Appeals ruled today.
On a historic day for the Supreme Court of the United States, one justice stepped down after more than three decades as his
successor began her confirmation hearings before the U.S. Senate Judiciary Committee.
To address Indiana’s growing prison population and increasing related costs, the state is partnering with The Pew Center
on the States and the Council of State Governments Justice Center for the first comprehensive review of the state’s
criminal code and sentencing policies since 1976.
A law enforcement officer’s use of force in excess of reasonable force authorized by statute isn't shielded from
liability under the "enforcement of a law" immunity under Indiana Code Section 34-13-3-3(8), the Indiana Supreme
Court held today.
A partner at an Indianapolis law firm is being recognized by the National Center for State Courts for his work on judicial
recusals, and he has some ideas that state chief justices and Indiana's top court could find interesting.
The Indiana Court of Appeals has ruled against a Bluffton electric company, finding that corporations can’t simply create
subsidiaries internally and declare them separate entities in order to avoid paying higher tax rates under state unemployment
compensation law.
7th Circuit Court of Appeals
Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class
of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, … and obligations relating
to or created by or pursuant to … [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.
Indiana Supreme Court posted no opinions before IL deadline.
Indiana Court of Appeals
Weigand
Construction Co. Inc. and Ohio Farmers Insurance Co. v. Stephens Fabrication Inc. and Ball State University Board of Trustees
18A02-0910-CV-953
Civil. Concludes Stephens’ claims against Weigand, Weigand’s Surety, and Ball State University survived bankruptcy
proceedings. Therefore, Stephens is entitled to the unpaid sums under the base contract: $39,408.09 plus attorney fees, prejudgment
interest including the periods of time before and during the bankruptcy proceeding, postjudgment interest, and costs of collection
to Stephens. Also concludes Stephens’ claim for additional compensation was untimely under the terms of the relevant
contracts and that Weigand is entitled to enforce the contractual provisions in this regard.
M.B.
v. State of Indiana (NFP)
89A01-1001-JV-59
Juvenile. Affirms M.B.’s commitment to the Indiana Department of Correction.
Involuntary
Termination of Parent-Child Relationship of Z.H.; A.H. v. Indiana Dept. of Child Services (NFP)
20A03-1002-JT-49
Juvenile. Affirms termination of parental rights.
In
the Matter of R.J.K., a child alleged to be a delinquent child v. State of Indiana (NFP)
02A05-0909-JV-539
Juvenile. Affirms court’s finding that R.J.K. was a delinquent child who committed the offense of sexual battery, a
Class D felony if committed by an adult.
Indiana Tax Court posted no opinions before IL deadline.
7th Circuit Court of Appeals
Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, … and obligations relating to or created by or pursuant to … [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.
A decade-old old case from the Indiana Court of Appeals doesn’t apply to child molesting cases, the state’s second
highest appellate court has ruled.
The Indiana Supreme Court issued a pair of short per curiam opinions on Thursday afternoon that adopt what the Indiana Court
of Appeals decided on two criminal appeals.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Donald
Wilson v. State of Indiana (NFP)
10A04-1001-PC-12
Post conviction. Affirms denial of petition for post-conviction relief.
Androuckoo
Jones v. State of Indiana (NFP)
49A02-0911-CR-1108
Criminal. Affirms convictions of two Class A misdemeanors, one for domestic battery, and one for resisting law enforcement.
Term.
of Parent-Child Rel. of G.W.; J.W. v. IDCS (NFP)
48A02-0910-JV-1042
Juvenile. Affirms involuntary termination of parental rights.
Carleon
M. Ragsdale v. State of Indiana (NFP)
02A03-0912-CR-595
Criminal. Affirms sentence following guilty plea to Class D felonies criminal recklessness and resisting law enforcement,
and Class A misdemeanor possession of a firearm by a domestic batterer.
James
Walsh v. State of Indiana (NFP)
52A05-0911-CR-667
Criminal. Reverses sentence following guilty plea to Class B felony burglary and admission to being a habitual offender.
Remands with instructions.
R.D.
v. State of Indiana (NFP)
49A02-0909-JV-840
Juvenile. Affirms adjudication for committing what would be Class D felony criminal recklessness if committed by an adult.
Anthony
H. Taylor v. State of Indiana (NFP)
71A03-0912-CR-602
Criminal. Reverses adjudication as a habitual offender.
Terrence
Hopson v. State of Indiana (NFP)
29A02-0912-CR-1239
Criminal. Affirms conviction of Class B felony burglary.
Virgil
J. Smith v. State of Indiana (NFP)
85A02-1001-CR-176
Criminal. Revises sentence following guilty plea to Class B felony robbery and remands for the trial court to order concurrent
sentences for the robbery conviction and an unrelated case.
Robertson
Developers v. Jerry Hodges, et al. (NFP)
18A02-0910-CV-1051
Civil. Affirms judgment in favor of defendants Hodges and others upon a claim for payment of lease. Remands for determination
of reasonable attorney fees.
K.
K. B. v. R. K. B. (NFP)
26A05-0910-CV-595
Civil. Affirms evidence supports all but one of the findings in the order entry awarding physical custody of children to
father. Reverses finding that Mother did not adequately investigate S.B.’s allegation of sexual abuse is not supported
by the evidence. Remands for the dissolution court to reconsider the remaining findings and the other evidence from the hearing
on final custody in order to determine what physical custody order is in the children’s best interests, or, if no change
to the custody award is indicated, to so state.
Term. of Parent-Child Rel. of J.K., et al.; S.K. v. IDCS (NFP)
71A03-1002-JT-94
Juvenile. Affirms termination of parental rights.
Indiana Tax Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Douglas
Covey v. State of Indiana
30A01-0906-CR-311
Criminal. Affirms convictions of dealing in methamphetamine as a Class A felony, possession of methamphetamine as a Class
B felony, possession of methamphetamine as a Class B felony, possession of marijuana as a Class A misdemeanor, and possession
of paraphernalia a Class A misdemeanor. The state presented sufficient evidence to prove that Crosby lived in an “apartment
complex” and thus Covey delivered the methamphetamine and possessed the methamphetamine in or within 1,000 feet of a
“family housing complex.” Because Covey never placed the mitigating factors of Indiana Code Section 35-48-4-16(b)
at issue, the trial court did not commit fundamental error by not instructing the jury on those mitigating factors.