Opinions

Indiana Court of Appeals
Michael Rodgers v. State of Indiana
No. 26A-CR-88

Appeal from the Huntington Circuit Court, Judge Davin G. Smith. Michael Rodgers was convicted of multiple burglary and theft counts. He contested the sufficiency of evidence regarding his burglary convictions and the trial court’s restitution order. The court affirmed the convictions, stating that the evidence, including the intention of the property owner to return, supported the classification of the structures as dwellings. The court also held that the trial court did not abuse its discretion in the restitution order because the victim provided an itemized list of losses directly related to the crimes, consistent with legal standards for restitution. Chief Judge Tavitas authored the opinion, with Judges Bradford and Felix concurring. Appellant’s attorney: Kristina L. Lynn, Lynn Law Office PC, Wabash, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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7th Circuit Court of Appeals
Jacqueline J. Agee and John J. Agee v. Paige N. Hickenbottom, et al.
No. 25-1737 & 25-2180

Appeal from the United States District Court for the Northern District of Indiana, Judge Gretchen S. Lund. The court affirmed the dismissal of the claims for malicious prosecution, false arrest and failure to intervene, as well as the denial of leave to amend the complaint to add an abuse-of-process claim. However, the court reversed the denial of leave to add class-of-one equal protection claims, finding that the plaintiffs’ allegations were not futile and warranted further proceedings. Before Judges Hamilton, Maldonado and Taibleson. Judge Hamilton authored the opinion. There were no concurrences or dissents.

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Indiana Court of Appeals
Deonta Nelson v. State of Indiana
No. 25A-CR-2898

Appeal from the Marion Superior Court, Judge Marshelle Dawkins Broadwell. Deonta Nelson appeals his conviction of murder, contending that the trial court abused its discretion by admitting surveillance footage. The court affirms, concluding that the testimony surrounding the surveillance system provided adequate authentication under the silent witness theory, as the system was verified to be reliable and unalterable. Additionally, even if the trial court had erred in admitting the footage, any such error was deemed harmless given the overwhelming evidence, including eyewitness accounts and Nelson’s own admissions. Judge May authored the opinion, and Judges Pyle and Scheele concurred. Appellant’s attorney: Christopher Taylor-Price, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Carey Lee Fleener, Jr. v. State of Indiana
No. 25A-CR-2776

Appeal from the Marion Superior Court, Judge Marie L. Kern and Magistrate Heather M. Dean-Barton. Affirming in part and reversing in part, the court upheld Fleener’s conviction for criminal confinement but found his conviction for domestic battery violated substantive double jeopardy principles, thus ordering it vacated. The court determined evidence supported the conviction for criminal confinement, noting Fleener’s actions during a confrontation with his former fiancé, which resulted in bodily injury. In evaluating double jeopardy, the court found Fleener’s conduct during a short timeframe constituted a single transaction, warranting the reversal of the domestic battery conviction. Chief Judge Tavitas authored the opinion, with Judges Weissmann and Foley concurring. Appellant’s attorney: Willow Thomas, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
VoCare, Inc. v. AGS Capital, LLC, et al.
No. 25A-CC-2413

Appeal from the Hamilton Superior Court, Judge Michael A. Casati. VoCare, Inc. appeals the trial court’s order granting summary judgment in favor of AGS Capital, LLC and other investors. The court determined that the investors established a prima facie case for breach of contract due to VoCare’s non-payment on convertible promissory notes. VoCare’s arguments regarding the illegality of the notes and impossibility of performance were deemed waived and unpersuasive, as the trial court had no opportunity to address them. The court affirmed the trial court’s order. Judge Scheele authored the opinion, with Judges Bailey and Vaidik concurring. Appellant’s attorneys: Katherine M. Haire and Anthony L. Holton, Reminger Co. LPA, Indianapolis, Indiana; and Joseph S. Simms, Reminger Co. LPA, Cleveland, Ohio. Appellee’s attorneys: Jonathan D. Mattingly and Jeffrey N. Furminger, Mattingly Burke Cohen & Biederman LLP, Indianapolis, Indiana.

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Indiana Court of Appeals
Latrell Vaughn v. State of Indiana
No. 26A-CR-306

Appeal from the St. Joseph Superior Coirt, Judge David L. Francisco. Vaughn appeals his 40-year sentence for robbery resulting in serious bodily injury, asserting that his appeal should be permitted despite an appeal waiver in his plea agreement. The court finds that Vaughn has waived appellate review of his sentence as the waiver explicitly covered his challenges, including the firearm enhancement and the proportionality of his sentence. The court concludes that Vaughn’s arguments do not fit the exceptions to enforcing such waivers. Judge Felix authored the opinion, with Chief Judge Tavitas and Judge Bradford concurring. Appellant’s attorney: A. Robert Masters, St. Joseph County Deputy Public Defender, Nemeth, Feeney Masters & Campiti PC, South Bend, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Andres Solis Guerra v. State of Indiana
No. 25A-CR-3231

Appeal from the Lake Superior Court, Judge Gina L. Jones. The court affirmed the convictions of Andres Solis Guerra for Class A felony child molesting and Level 1 felony child molesting. Guerra’s defense at trial included the exclusion of evidence regarding a physical altercation involving his girlfriend and the victim, arguing it was critical to his case. However, the court ruled that this evidence was irrelevant and could confuse the jury. Additionally, Guerra’s claims of insufficient evidence and violations of double jeopardy were rejected, as the evidence provided by the victim was sufficient for the jury to find him guilty. The court also found no abuse of discretion in the trial court’s sentencing. Judge DeBoer authored the opinion. Judges Mathias and Kenworthy concurred. Appellant’s attorney: Andrew P. Martin, Miller Sachs & Hess P.C., Crown Point, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
L.M. Zeller, et al., v. Indiana Fire Prevention and Building Safety Commission, et al.
No. 25A-CT-2267

Appeal from the Vanderburgh Circuit Court, Magistrate Celia M. Pauli. In this interlocutory appeal, plaintiffs L.M. Zeller and others contend that the trial court’s partial grant of summary judgment in favor of the Indiana Fire Prevention and Building Safety Commission and related agencies should be overturned. The appellate court affirmed in part, reversed in part, and remanded the case with instructions to grant summary judgment for the agencies on all claims. Chief Judge Tavitas authored the opinion, with Judges Bradford and Felix concurring. Appellants’ attorney: Douglas K. Briody, Law Office of Doug Briody, Evansville, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Zachary Clay Parksey v. State of Indiana
No. 25A-PC-2268

Appeal from the Vanderburgh Circuit Court, Judge Ryan D. Hatfield, Magistrate Celia M. Pauli. Zachary C. Parksey, after pleading guilty to Level 2 felony voluntary manslaughter, sought post-conviction relief, claiming he was not informed of the mandatory lifetime parole that accompanied his plea. The post-conviction court denied relief, asserting that no advisement of the parole requirement was necessary. The appellate court determined that mandatory lifetime parole is a direct consequence of the plea and that a defendant must be advised of it before pleading guilty. It found the post-conviction court had erred in its reliance on outdated case law, reversing the ruling and remanding the case for the necessary factual determinations regarding whether Parksey had been advised and whether this would have impacted his decision to plead guilty. Judge Altice authored the opinion, with Judges Brown and DeBoer concurring. Appellant appeared pro se. Appellee’s attorney: Office of the Indiana Attorney General.

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United States Court of Appeals
USA vs. Jonathan S. Rose
No. 24-1086

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division, Judge Holly A. Brady. Before Circuit Judges Easterbrook, Kirsch and Pryor. The court vacated the district court’s order dismissing charges against Rose under 18 U.S.C. §922(g)(4) and remanded the case for further proceedings. The district court concluded that a historical context for §922(g)(4) was insufficient to apply a lifetime prohibition on firearm possession to those who have been committed for mental health reasons but are no longer deemed dangerous. The district court also emphasized the necessity for a detailed record regarding Rose’s mental state and the conditions of his prior commitment and release. It noted that determinations on current dangerousness must be made based on individualized proof, allowing both Rose and the prosecution to present evidence in light of recent rulings. Judge Easterbrook authored the opinion.

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The following opinions were published on June 30 after The Indiana Lawyer’s deadline. 

Indiana Supreme Court
State of Indiana v. Augustine Armando Gomez Jr.
No. 25S-CR-14

Direct appeal from the Tippecanoe Superior Court, Judge Randy J. Williams. The trial court’s dismissal of misdemeanor and felony unlawful carrying charges against Gomez, based on alleged misapplication of statutory provisions regarding prior felony convictions, was reversed. The Supreme Court held that the trial court incorrectly found the charging information lacked sufficient certainty and erred in declaring the relevant statutes unconstitutional. The court confirmed that Gomez had adequate notice regarding the crimes charged and thus reinstated the charges. Justice Massa authored the opinion. Justice Slaughter concurred, Justice Molter concurred in result, and Chief Justice Rush partially concurred and dissented in part with a separate opinion, joined by Justice Goff. Chief Justice Rush concluded the handgun statute required the state to show Gomez’s Illinois conviction was substantially similar to an Indiana felony before it could support the Level 5 felony enhancement, and that the charging information failed to identify the necessary Indiana comparator. She would have allowed the misdemeanor handgun charge to proceed but would have affirmed dismissal of the Level 5 felony charge and resolved the case on statutory, rather than constitutional, grounds. Appellant’s attorney: Office of the Indiana Attorney General. Appellee’s attorney: Shay J. Hughes, Lafayette, Indiana.

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Indiana Court of Appeals
Barry Dircks v. Joseph Delamater and Razumich & Delamater, P.C.
No. 25A-CT-932

Appeal from the Marion Superior Court, Judge Timothy W. Oakes. The trial court granted summary judgment in favor of the defendants, finding no attorney-client relationship existed between Barry Dircks and Joseph Delamater beyond an emergency intervention during a standoff. The court determined that even if such a relationship had existed, Delamater’s actions did not proximately cause Dircks’ damages, as the decision to detain Dircks’ children was already in motion before Delamater’s involvement, and ultimately Dircks’ own actions led to further complications. Chief Judge Tavitas authored the opinion, with Judge Bailey concurring and Judge Kenworthy dissenting, believing genuine issues of material fact exist regarding the legal malpractice claim — including whether there was an assumed, ongoing attorney-client relationship beyond the standoff. Appellant appeared pro se. Appellees’ attorney: Vincent P. Antaki, Reminger Co. LPA, Indianapolis, Indiana.

Indiana Court of Appeals
Ed Carpenter Racing, LLC v. Milton “Todd” Ault, III, and VForward2, LLC
No. 25A-CC-2721

Appeal from the Marion Superior Court, Judge Kurt Eisgruber. Ed Carpenter Racing, LLC appeals the dismissal of its complaint for damages against Milton “Todd” Ault, III, and VForward2, LLC. The court affirms the dismissal of the complaint against Ault for lack of personal jurisdiction but reverses the dismissal with prejudice, remanding for a dismissal without prejudice. The court finds Ed Carpenter Racing failed to establish personal jurisdiction over Ault. In addition, the court upholds the dismissal against VForward2 for failure to state a claim, allowing Ed Carpenter Racing an opportunity to amend its complaint. Senior Judge Crone authored the opinion, and Judges Mathias and Pyle concur. Appellant’s attorney: Richard B. Kaufman, Indianapolis, Indiana. Appellees’ attorneys: Jeffrey M. Heinzmann, Heinzmann Law Office LLC, Fishers, Indiana; and Robert B. Volynsky, Weltz Kakos Gerbi Wolinetz Volynsky LLP, Carle Place, New York.

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Indiana Court of Appeals
John H. Murphy v. The City of South Bend
No. 26A-CT-94

Appeal from the St. Joseph Circuit Court, Special Judge Jenny Pitts Manier. John Murphy fell and injured his leg during a parade, claiming the city’s negligence in maintaining the road created a pothole that caused his fall. The city sought summary judgment, asserting immunity under Indiana law for discretionary functions related to road maintenance. The trial court granted this motion, but the appellate court reversed, stating the city did not provide sufficient evidence to prove its entitlement to immunity. It concluded that the pothole repair process did not clearly constitute a policy-oriented decision-making process, and therefore, the city is not immune from liability for Murphy’s negligence claim. The court remands for further proceedings. Judge Felix authored the opinion, with Judges Weissmann and DeBoer concurring. Appellant’s attorneys: Edward J. Chester, Laura L. Ezzell and J. Thomas Vetne, Chester Law Office, Elkhart, Indiana. Appellee’s attorney: Elizabeth A. Klesmith, THK Law LLP, South Bend, Indiana.

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Indiana Court of Appeals
Douglas Hicks v. Rebecca Hicks
No. 25A-DC-2054

Appeal from the Wayne Circuit Court, Judge April R. Drake. Douglas Hicks appeals the trial court’s dissolution of his marriage to Rebecca Hicks, arguing that the trial court abused its discretion in dividing the marital estate. The court found that the division was inequitable, as it awarded a slight advantage to husband based solely on income disparities, failing to address all statutory factors for such a division. The appellate court ruled that the trial court’s plan for handling the marital residence, contingent on its sale, would result in the husband receiving only 4% of the marital estate if sold, which the appellate court found to be clearly erroneous. The appellate court thus reversed the trial court’s decision and remanded for further proceedings consistent with this opinion. Chief Judge Tavitas authored the opinion, with Judges Weissmann and Foley concurring. Appellant’s attorneys: Alexander N. Moseley and Adrian Deneen, Dixon & Moseley P.C., Indianapolis, Indiana. Appellee’s attorney: Christopher T. Armour, BBFCS Attorneys, Richmond, Indiana.

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Indiana Court of Appeals
DeJuan Lamar Kelley v. State of Indiana
No. 25A-CR-1454

Appeal from the Monroe Circuit Court, Judge Valeri Haughton. DeJuan Kelley, after facing a mistrial in his first murder trial, was retried and convicted of reckless homicide and carrying a handgun without a license. Kelley appealed, arguing that his retrial violated procedural double jeopardy and that the trial court abused its discretion in sentencing him. The court affirmed the trial’s judgment, finding that the mistrial was justified by manifest necessity due to defense counsel’s improper remarks, which violated the court’s order in limine against character evidence. The court held that Kelley’s retrial did not violate double jeopardy principles. Additionally, Kelley’s challenge to his sentencing was deemed moot as he had already served his sentence. Chief Judge Tavitas authored the opinion, with Judge Foley concurring and Judge Weissmann dissenting, critiquing the majority’s justification for the mistrial. Appellant’s attorney: Rachel M. Rogers, Monroe County Public Defender, Bloomington, Indiana. Appellee’s attorney: Office of the Indiana Attorney General

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Indiana Court of Appeals
Erica Anders, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
No. 25A-CR-3171

Appeal from the Marion Superior Court, Magistrate Matthew E. Symons and Judge Helen W. Marchal. Erica Anders was found guilty of battery resulting in bodily injury. On appeal, Anders contended there was a material variance between the charging information and the evidence presented at trial, asserting that this variance prejudiced her defense. The court disagreed and affirmed the trial court’s decision, concluding that the specific terms used in the charge were surplusage and did not affect the charge’s validity. The court found no material variance because Anders had sufficient notice of the charges to prepare her defense, which did not rely on the precise nature of the alleged touching. Chief Judge Tavitas authored the opinion, with Judges Bradford and Felix concurring. Appellant’s attorney: Steven J. Halbert, Indianapolis, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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The following opinion was published on June 18 after The Indiana Lawyer’s deadline. 

7th Circuit Court of Appeals
Tushawn Craig, et al., v. City of Richmond, Indiana
No. 26-1864

Appeal from the United States District Court for the Southern District of Indiana, Judge Matthew P. Brookman. The court affirmed the district court’s order to remand the case to state court, concluding that the local event or occurrence exception to the Class Action Fairness Act is jurisdictional. The court found all claims arose from a single event — an industrial facility fire in Richmond, Indiana — which satisfies the exception as it resulted in injuries within the state. Chief Judge Brennan authored the opinion. No concurrences or dissents were noted.

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Indiana Court of Appeals
Antonio Ferguson v. State of Indiana
No. 25A-CR-608

Appeal from the Wayne Superior Court No. 1, Judge Ronald J. Moore. Antonio Ferguson appeals his conviction for Level 2 felony dealing in methamphetamine, arguing that the trial court erred by admitting the methamphetamine evidence obtained during a traffic stop, claiming it violated his constitutional rights. The state cross-argues on waiver grounds, asserting that Ferguson did not properly object to the evidence. The court concludes that Ferguson’s right to appeal was preserved despite procedural nuances, and it finds no violation of either the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution during the search. The court affirms Ferguson’s conviction. Judge May authored the opinion, and Judges Weissmann and DeBoer concur. Appellant’s attorney: Nathaniel S. Connor, The Law Office of Nathaniel S. Connor LLC, Winchester, Indiana. Appellee’s attorney: Office of the Indiana Attorney General.

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