Articles

Opinions Sept. 14, 2022

Court of Appeals of Indiana
Jose L. Izaguirre v. State of Indiana
21A-CR-2258
Criminal. Affirms Jose L. Izaguirre’s convictions of two counts of Level 1 felony child molesting committed against his stepdaughter and his sentence to an aggregate of 40 years, with five years suspended to probation. Finds Izaguirre waived his arguments regarding Indiana Code § 35-40-5-13 by failing to make cogent arguments or cite relevant authority. Waiver notwithstanding, finds Izaguirre cannot demonstrate that he was prejudiced by the presence of the comfort animal when he confessed to two of the crimes of which the jury found him guilty.

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Opinions Sept. 13, 2022

Court of Appeals of Indiana
Robert Charles Sisk v. State of Indiana (mem. dec.)
22A-CR-619
Criminal. Affirms Robert Sisk’s convictions of Level 4 felony stalking, Level 5 felony stalking, Level 6 felony intimidation, Class A misdemeanor domestic battery and Class B misdemeanor criminal mischief. Finds the Hamilton Superior Court did not abuse its discretion in admitting evidence. Also finds there was sufficient evidence to support Sisk’s conviction of Level 4 felony stalking.

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Opinions Sept. 12, 2022

Court of Appeals of Indiana
Travis Armes, Eric Settles, and Debra Pennington v. State of Indiana
21A-CR-2384
Criminal. Affirms opinion in Armes v. State, 191 N.E.3d 942 (Ind. Ct. App. 2022) which reversed the Marion Superior Court denial of the motions to dismiss the charging information against Travis Armes, Eric Settles and Debra Pennington. Finds LSA Document N. 20-516(E) which is the emergency rule that designated MDMB-4en-PINACA as a Schedule I controlled substance did not provide the chemical composition so a person of ordinary intelligence would not be able to determine through appropriate testing whether a material contained it.

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Opinions Sept. 9, 2022

Court of Appeals of Indiana
Damon Daniels v. Jeffrey Drake and Lisa Drake
22A-CT-68
Civil tort. Reverses and remands the Franklin Circuit Court’s grant of summary judgment to Jeffrey and Lisa Drake after FedEx driver Damon Daniels sued them for damages after the Drakes’ dog bit him on the job. Finds a genuine issue of material fact as to the dangerous tendencies of Great Danes, which, if true, the Drakes are likely to be aware of. As a result, finds that would generate a genuine issue as to whether the Drakes took reasonable precautions under the circumstances to prevent their dog from causing injury to Daniels, an invitee on their land. Remands for further proceedings.

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Opinions Sept. 7, 2022

Court of Appeals of Indiana
American Freedom Insurance Company v. Marc Hires and Dennis Kellams (mem. dec.)
22A-CT-539
Civil tort. Affirms the denial of declaratory relief for American Freedom Insurance Company, which had sought a declaration that it had properly voided its entire contract with Marc Hires and that it owed no duty to indemnify Hires or Dennis Kellams, who was struck by Hires’ vehicle. Finds the judgment is not clearly erroneous.

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Opinions Sept. 6, 2022

Court of Appeals of Indiana
In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins
22A-JP-57
Juvenile paternity. Reverses the Warrick Circuit Court’s award of joint legal custody of child E.P. to Stephanie Tonevich and Kasey Perkins. Finds the evidence supports the trial court’s findings, but its findings do not support the award of joint legal custody to the parents. Remands with instructions for the trial court to enter an award of sole legal custody to either Tonevich or Perkins. Judge Elizabeth Tavitas concurs with separate opinion.

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Opinions Sept. 2, 2022

Court of Appeals of Indiana
Khalil Payne v. State of Indiana (mem. dec.)
21A-CR-2813
Criminal. Affirms Khalil Payne’s conviction of unlawful possession of a firearm by a serious violent felon as a Level 4 felony. Finds the Tippecanoe Superior Court did not abuse its discretion when it provided the jury with a supplemental instruction on possession during deliberations.

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Opinions Sept. 1, 2022

Court of Appeals of Indiana
Jeramie M. Elston v. State of Indiana
22A-CR-316
Criminal. Affirms and reverses in part the denial of Jeramie Elston’s motion to dismiss the state’s petition to revoke his probation. Finds tthe petition to revoke filed on Oct. 22, 2019, was untimely with regard to Cause No. 39D01-1711-CM-991 and should have been dismissed as to that case. Also finds the petition to revoke in Cause No. 39D01-1805-F5-512 was timely filed, so the Jefferson Superior Court did not abuse its discretion by denying the motion to dismiss as to that case. 

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Opinions Aug. 30, 2022

Court of Appeals of Indiana
 Lockerbie Glove Company Town Home Owner’s Association, Inc., Elliot J. Serena Androphy, Cherri D. Hobgood, Sashwati Roy, Chandan K. Sen, and Brian Edward West v. Indianapolis Historic Preservation Commission, Daniel C. Jacobs, and The Athenaeum Foundation, Inc.
22A-PL-204
Civil plenary. Affirms the Marion Superior Court’s grant of a motion for judgment on the pleadings on the basis of lack of standing by six residents challenging the construction of a retail, residential and parking project known as Block 20 in the Lockerbie Square Historic District in Marion County. Finds the appellants lack the necessary standing, so the trial court did not err in granting the motion for judgment on the pleadings filed by the Indianapolis Historic Preservation Commission, Daniel C. Jacobs and The Athenaeum Foundation Inc.

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Opinions, Aug. 29, 2022

Court of Appeals of Indiana
David Bugay, et al. v. Jeffrey DeBoy, et al. (mem. dec.)
21A-PL-01667
Civil Plenary. Affirms the Tippecanoe Circuit Court’s judgment in favor of Jeffrey DeBoy and JBC Buildings, Inc. against David Bugay and Rolling Maul, LLC, for $139,601.98. Finds the trial court did not err when it declined to decrease DeBoy’s unjust enrichment award based on construction defects because Bugay had settled his defects crossclaim for $150,000 and dismissed that crossclaim with prejudice. Rules the trial court did not err when it refused to award DeBoy monies for disgorgement of profits from Legacy Sports Club.

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Opinions Aug. 26, 2022

Court of Appeals of Indiana
Indiana State Police and State of Indiana v. The Estate of Michael M. Damore

21A-CT-2536
Civil tort. Reverses a ruling in favor of the Estate of Michael M. Damore, who was killed in a vehicle accident involving Indiana State Police. Finds the Lake Superior Court abused its discretion by excluding evidence of Michael’s driving behavior in the minutes before the collision and by striking the entirety of the defendant’s expert’s testimony based on a minor violation of the motion in limine that posed no serious risk of prejudice to the estate. Finds the trial court erred in failing to give some of the defendant’s propose jury instructions. Finally, concludes that insufficient evidence was presented to establish that Michael’s mother was his dependent for purposes of the General Wrongful Death Statute, and her recovery must therefore be limited to the amounts permitted by the Adult Wrongful Death Statute.

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Opinions Aug. 23, 2022

Court of Appeals of Indiana
Robert Eugene Smith, Jr. v. State of Indiana
21A-CR-2493
Criminal. Affirms the Hendricks Superior Court’s denial of Robert Eugene Smith Jr.’s motion to dismiss the charging information alleging he committed two counts each of Level 5 felony failure to register as a sex or violent offender and Level 6 felony failure to register as a sex or violent offender. Finds that although Smith’s motion was timely, he was under a lifetime obligation to register as a sex offender at the time of the alleged offenses. Also finds the 2007 amendment to Indiana Code § 11-8-8-19 did not retroactively apply to Smith, and he is not similarly situated to sex offenders who committed their crimes under a different statutory regime than he did. Finally, finds Smith’s lifetime registration obligation follows from Indiana Code, and a letter from the Johnson County Sheriff does not remove that obligation.

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Opinions Aug. 22, 2022

Court of Appeals of Indiana
Michael Whitaker v. State of Indiana (mem. dec.)
21A-CR-2268
Criminal. Affirms Michael Whitaker’s convictions of Level 6 felony driving while intoxicated endangering a person and Class B misdemeanor leaving the scene of an accident. Vacates Whitaker’s conviction of Level 6 felony driving with an alcohol concentration equivalent over .15 on double jeopardy grounds. Finds the state presented sufficient evidence that Whitaker operated his vehicle. Also finds the Whitley Superior Court did not abuse its discretion when it admitted photographs of items found in Whitaker’s car because those items were found in plain view by an officer who had been called to an accident scene and their connection to criminal activity was immediately apparent.

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Opinions Aug. 19, 2022

Court of Appeals of Indiana
Donald Johnson v. State of Indiana
21A-CR-1234
Criminal. Affirms and reverses in part the denial of Donald Johnson’s motion to dismiss the 17 Class C felony securities-related charges filed against him. Finds the state sufficiently alleged Johnson committed positive acts of concealment that tolled the statute of limitations in all the challenged charges except two, and the charging information for all remaining 15 counts against Johnson were pled with sufficient certainty based on the language in the charging informations and probable cause affidavits. Also finds the arguments Johnson sets forth regarding the elements of the alleged crimes cannot be considered by the Court of Appeals as they are to be decided by the fact-finder, not within a motion to dismiss, so the Porter Superior Court did not abuse its discretion when it denied Johnson’s motion to dismiss, with the exception of the charges involving Randall Hunt. Finally, finds the trial court did not abuse its discretion when it granted the state permission to amend the charges against Johnson to include the word “knowingly.” Remands for further proceedings.

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Opinions Aug. 18, 2022

Court of Appeals of Indiana
Amberly Pointe Manufactured Home Community v. Stucker Fork Conservancy District
21A-EX-2805
Agency action. Affirms the Indiana Utility Regulatory Commission’s dismissal of Amberly Pointe Manufactured Home Community’s complaint for lack of subject matter jurisdiction, finding that Stucker Fork Conservancy District is not subject to Indiana Code § 8-1.5-3-8(l) or 170 Indiana Administrative Code (IAC) 6-1-16. Finds the commission did not err.

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