Opinions

Indiana Court of Appeals
Dwayne T. Clemons v. State of Indiana
24A-CR-1601
Criminal. Affirms Warren Circuit Court Judge Hunter Reece’s judgment revoking Dwayne Clemons’ probation and ordering him to serve 544 days in the Indiana Department of Correction. Finds that given the number and nature of Clemons’s violations, the trial court’s decision to order execution of 544 days of Clemons’s previously suspended sentence was well within its discretion. Judge Melissa May dissents with a separate opinion. Attorney for appellant: Justin Wall. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General John Oosterhoff.

Indiana Court of Appeals
Russell Bernacchi and Judith Bernacchi v. Yon M. Lindborg and Kenneth L. Rutz
24A-CT-1686
Civil tort. Dismisses without prejudice Russell and Judith Bernacchi’s appeal of LaPorte Circuit Court Judge Thomas Alevizos’ order denying the Bernacchis’ motion for summary judgment against Kenneth Rutz and Yon Lindborg’s complaint. Finds the trial court’s order denying the Bernacchis’ motion for summary judgment is neither a final judgment nor an appealable interlocutory order, and the appellate court lacks appellate jurisdiction over the Bernacchis’ appeal. Attorney for appellants: Martin Lucas. Attorney for appellees: R. Brian Woodward

Indiana Court of Appeals
Jerry D. McBride v. State of Indiana
24A-CR-2213
Criminal. Reverses Jerry McBride’s conviction by an Elkhart Superior Court jury of Class A misdemeanor invasion of privacy for violating a protective order prohibiting him from communicating with a next-door neighbor. Finds that that McBride failed to preserve the claim of evidentiary error, but that the trial court committed reversible error in declining to give a pattern jury instruction on the defense of property. Remands for a new trial. Attorney for appellant: Donald Shuler. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Megan Smith.

Indiana Court of Appeals 

Matthew Eversole v. State of Indiana 

24A-CR-1910

Criminal. Affirms Clay Circuit Court Judge Joseph Trout’s judgment on the drug-interdiction fee, but finds an indigency hearing was required for the fine, costs and fees for which the agreement did not specify amounts. Reverses the trial court’s judgment to all expenses other than the $200 drug-interdiction fee. Remands the trial court to conduct or schedule an indigency hearing in conjunction with its imposition on Eversole of any other fine, costs and fees. Attorney for appellant: Kay Beehler. Attorneys for appellee: Indiana Attorney General Todd Rokita and Deputy Attorney General J.T. Whitehead.

Indiana Court of Appeals
Richard J. Campos v. State of Indiana
24A-PC-2008
Post-conviction relief. Affirms the denial by Franklin Circuit Court Judge Clay Kellerman of Richard Campos’ petition for post-conviction relief. Finds Campos has not demonstrated the trial court’s discussion with the parties – about why it would not accept their plea agreement and what sentence it might possibly accept – rendered his guilty plea involuntary.  Attorneys for appellant: Indiana Public Defender Amy Karozos, James Acklin. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Caroline Templeton.

Indiana Court of Appeals
State of Indiana v. Devin A. Dickens
24A-CR-1912
Criminal. Reverses Dubois Superior Court Special Judge Nathan Verkamp’s dismissal of two counts alleging Devin Dickens possessed, and possessed with intent to deliver, a controlled substance. Finds the dismissal of the charges was improper because the charging information, taken as true, alleges valid criminal offenses and to the extent the probable cause affidavit can be said to contain conflicting facts, it is the function of a trier of fact to ascertain whether the substance was, in fact, contraband. Remands the case for further proceedings. Attorneys for appellant: Attorney General Todd Rokita, Deputy Attorneys General Kathy Jo Bradley, Brandon Smith. Attorney for appellee: Victoria Bailey Casanova.

Indiana Court of Appeals
Norman Thomas, II v. State of Indiana
24A-CR-1731
Criminal. Reverses Hendricks Superior Court Judge Mark Smith’s denial of Norman Thomas II’s motion to suppress drug evidence obtained during a search of his home pursuant to two search warrants. Finds that the first search warrant is invalid because it was unsupported by probable cause and the items listed as sought to be searched were not sufficiently particularized. Also finds the good-faith exception does not apply to the first search. Finally, finds that because the first search was invalid, the second search was necessarily invalid as well, and the evidence obtained from the searches must be suppressed and the trial court erred by denying the motion to suppress. Attorney for appellant: Brian Johnson. Attorneys for appellees: Attorney General Todd Rokita, Deputy Attorney General Alexandria Sons.

Indiana Court of Appeals
Judy Lammons v. EDCO Environmental Services, Inc.
24A-CT-2057
Civil tort. Reverses Lake Superior Court Judge Bruce Parent’s judgment in favor of EDCO Environmental Services, Inc. in its defamation lawsuit against Judy Lammons. Finds that because Lammons’ statements neither state nor imply a provably false fact but merely indicate her honestly held opinion, the trial court’s findings are clearly erroneous. Attorneys for appellant: Gavin Rose, Stevie Pactor. Attorney for appellee: Adam Sworden.

Indiana Supreme Court
McKinley Kelly v. State of Indiana
25S-PC-108
Post-conviction relief. Affirms the Lake Superior Court’s denial of McKinley Kelly’s post-conviction petition for resentencing or a reduced sentence after he was found guilty of three counts of murder and sentenced to 110 years in prison. Finds the state and federal constitutional provisions Kelly cites with various sentencing restrictions and requirements for equal treatment do not compel a more lenient sentence. Also finds Kelly’s sentence is appropriate considering the nature of his offenses and his character. Attorneys for appellant: Indiana Public Defender Amy Karozos, Deputy Public Defenders Katherine Province, Joanna Green. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean.

Indiana Court of Appeals
In the Matter of the Civil Commitment of: T.M. v. Community Health Network, Inc.
24A-MH-1437
Mental health. Affirms the Marion Superior Court’s judgment ordering T.M.’s temporary involuntary civil commitment to the Community Health Network for her treatment of mental illness. Finds that the public interest exception applies to T.M.’s claims, that there was sufficient evidence supporting her commitment order and that the procedural irregularities did not constitute fundamental error. Attorneys for appellant: Talisha Griffin, Joel Schumm, Certified Legal Intern Jon Gobeyn. Attorneys for appellee: Jenny Buchheit, Sean Dewey, Rani Amani.

Indiana Court of Appeals
Sobirjon Rakhimov v. State of Indiana
24A-CR-2172
Criminal. Affirms Sobirjon Rakhimov’s two convictions in Whitley Circuit Court for reckless homicide. Finds no reasonable interpretation of the facts suggests that Rakhimov’s conduct was merely negligent. Also finds that while Rakhimov was free to, and did, argue to the jury that he acted only negligently, the trial court did not abuse its discretion by refusing any of the jury instructions proposed by Rakhimov. Attorney for appellant: Cara Schaefer Wieneke. Attorneys for appellee: Attorney General Todd Rokita, Assistant Section Chief, Criminal Appeals Jesse Drum.

7^th Circuit Court of Appeals
Erika Mabes and Brian Mabes, individually and on behalf of L.M., J.R.M., and J.A.M., minor children v. Shannon Thompson, et al.
24-1048 and 24-1082
Civil. Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James Sweeney. Reverses the district court’s denial of nine Indiana Department of Child Services employees and consultant doctor Shannon Thompson’s motions for summary judgment because it found that unresolved factual disputes precluded their requests for qualified immunity. Finds no evidence in the record (or identified in the Mabeses’ brief), that Thompson acted in a reckless or otherwise improper manner in providing her recommendation to DCS. Also finds that none of the nine DCS defendants violated the Mabeses’ clearly established rights, entitling them to qualified immunity across the board. Attorneys for appellant: Ryan Hurley, Stephanie Gutwein, Liam Williams, Addison Zielinski. Attorneys for appellees: Ronald Waicuskauski, Joseph Williams, Brad Catlin.

Indiana Court of Appeals
James Beau Burkhart v. State of Indiana
24A-CR-1237
Criminal. Affirms James “Beau” Burkhart’s murder conviction in Wayne Superior Court and his 55-year prison sentence. Finds the trial court did not abuse its discretion by excluding evidence of the father’s prior criminal charges and convictions, and Burkhart’s mitigated sentence is not inappropriate under Appellate Rule 7(B). Attorney for appellant: Cara Schaefer Wieneke. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Jennifer Anwarzai.

Indiana Court of Appeals
MIB, LLC, Ryan Polokoff, and Sabine Kissee v. City of Noblesville and The Planning and Development Director for the City of Noblesville, Indiana
24A-PL-1893
Civil plenary. Affirms Hamilton Superior Court Judge Michael Casati’s entry of a preliminary injunction ordering that MIB cease its operations at a certain location in Noblesville and enjoining the respondents from reopening the business in any zoning district in Noblesville where sex shops are prohibited unless approved through a use variance or rezoning petition. Finds that the city and planning development director have shown they have at least a reasonable likelihood of success at trial by establishing a prima facie case. Also finds that as the city and director have shown a reasonable likelihood that MIB is in violation of the city’s ordinance, pursuant to the “per se” injunctive standard, they “need not make a showing of irreparable harm or a balance of the hardship” in their favor. Attorneys for appellant: Lonnie Johnson, Justin Schwemmer, Robert Esrock. Attorneys for appellees: Vivek Hadley, Donald Morgan, Beth Copeland.

Indiana Court of Appeals
State Farm Mutual Automobile Insurance Company v. Michelle DiPego and Michael DiPego
24A-PL-1268
Civil plenary. Affirms Delaware Circuit Court Judge Thomas Cannon Jr.’s partial summary judgment order in Michelle DiPego’s favor on her declaratory judgment motion that she was entitled to uninsured motorist coverage under her State Farm automobile insurance policy. Finds find that the electric foot scooter that negligently crashed into DiPego, causing her bodily injury and related damages. was a “land motor vehicle” under the plain and ordinary meaning of that policy term and that State Farm waived any challenge to the scooter’s “uninsured” status. Attorneys for appellant: Crystal Rowe, Jacob Zigenfus. Attorney for appellee: Michael Peek.

Indiana Supreme Court
Kiera Isgrig v. Trustees of Indiana University
24S-CT-158
Civil tort.  Reverses Monroe Circuit Court Judge Geoffrey Bradley’s order granting summary judgment for the Trustees of Indiana University against Kiera Isgrig’s complaint alleging negligence by the university and asserting res ipsa loquitur. Finds that the doctrine of res ipsa loquitur may be applied to premises liability cases involving fixtures where an invitee is injured on a landowner’s premises. Also finds that Isgrig has demonstrated a genuine issue of material fact to overcome summary judgment. Remands for further proceedings. Justice Derek Molter dissents with separate opinion in which Justice Geoffrey Slaughter joins. Attorney for appellant: Timothy Devereux. Attorneys for appellee: Angela Della Rocco, Amy Fisher. Attorneys for Amicus curiae: Lucy Dollens, Robert Palmer.

Indiana Court of Appeals
In the Matter of J.J. and Jer.J. (Minor Children), Children in Need of Services, and M.J. (Mother) v. Indiana Department of Child Services and Kids’ Voice of Indiana
24A-JC-1676
Juvenile CHINS. Affirms Marion Superior Court’s adjudication of M.J.’s two youngest sons as children in need of services. Finds the trial court determined the children are CHINS because the mother “needs assistance managing her living conditions and [Jer.J.’s] health condition and requires the coercive intervention of the court to ensure she gets the services she needs.” Also finds Indiana Department of Child Services presented ample evidence to support that determination, and the judgment is not clearly erroneous. Attorney for appellant: Daniel Foote. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Katherine Cornelius.

Indiana Court of Appeals
Parker DePalma v. State of Indiana
24A-CR-2864
Criminal. Affirms LaPorte Superior Court Judge Jaime Oss’ revocation of Parker DePalma’s probation and order for DePalma to serve his previously suspended one-year sentence in jail for operating a vehicle while intoxicated endangering a person. Finds the trial court did not abuse its discretion by permitting the victim’s family members to give statements at the probation revocation hearing. Also finds the trial court did not abuse its discretion by ordering DePalma to serve his previously suspended sentence in jail. Attorney for appellant: Nicholas Otis. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Rebekah Bennett.

Indiana Court of Appeals
Bruce A. Waldon v. State of Indiana
24A-CR-1824
Criminal. Affirms Bruce Waldon’s convictions in Tippecanoe Superior Court for two counts of burglary and two counts of theft for incidents that occurred over the course of one night. Finds the trial court did not abuse its discretion by finding that the offenses did not constitute a single episode of criminal conduct. Attorney for appellant: Timothy Broden. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean, Deputy Attorney General Brandon Smith.

Indiana Court of Appeals
Salvador A. Jones v. State of Indiana
24A-CR-1102
Criminal. Affirms Salvador Jones’ conviction in Floyd Circuit Court for Level 5 felony robbery. Finds there is no Sixth Amendment right to counsel in Indiana prior to the initial hearing before an Indiana judicial officer. Also finds Jones did not properly invoke his right under the Interstate Agreement on Detainers to be brought to trial within 180 days of the state’s detainer request. Finally, finds the trial court did not commit fundamental error when it permitted the state to use self-authenticating affidavits as part of the foundation for the admissibility of surveillance videos and photographs. Attorney for appellant: Andrew Rutz. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ellen Meilaender.