Opinions

Indiana Supreme Court
In the Matter of Marjonie Diane Gabriel
18S-DI-6
Attorney discipline. Suspends Carmel attorney Marjonie Gabriel for 90 days with automatic reinstatement after she committed attorney misconduct by knowingly disobeying court orders. Affirms Gabriel violated Professional Conduct Rule 3.4(c) but did not violate Rule 8.4(b), as the disciplinary commission alleged. Finds her act of making payments and withdrawals her estate to herself without obtaining the requisite court approval did not equate to criminal conversion or exploitation of an endangered adult.

The following Indiana Tax Court opinion was published after IL deadline Wednesday:
Tony W. Smith and Shirlena Smith v. Indiana Department of State Revenue
49T10-1605-TA-13
Tax. Grants Tony and Shirlena Smith’s motion for partial summary judgment against the Indiana Department of State Revenue. Finds the department’s modifications to the Smiths’ adjusted gross income tax liabilities for 2005 through 2007 were limited to the final modifications made by the Internal Revenue Service to resolve the federal audit for those years. Orders the court to schedule a case management conference with the parties to discuss pretrial matters and scheduling. 

Indiana Court of Appeals
Tre Ron Smith v. State of Indiana
18A-CR-1633
Criminal. Affirms Tre Ron Smith’s Class A misdemeanor possession of a handgun conviction. Finds police had reasonable suspicion under the federal and state constitutions to conduct a Terry stop of Smith, and they did not exceed the permissible scope of such a stop. Also finds the trial court did not err when it allowed into evidence the firearm found in the search conducted after the Terry stop. Judge Melisa May dissents with separate opinion.

Indiana Court of Appeals
Robert Earl Davis v. State of Indiana (mem. dec.)
18A-PC-556
Post conviction. Affirms the denial of Robert Davis’ petition for post-conviction relief. Finds Davis failed to show a reasonable probability that the Indiana Court of Appeals’ decision in his direct appeal would have been different absent any misstatement. Concludes the Lake Superior Court did not err in its denial of David’s request.

Indiana Court of Appeals
Michael Hickingbottom v. State of Indiana
18A-CR-627
Criminal. Reverses Michael Hickingbottom’s six-year sentence for conviction of Level 5 felony battery resulting in bodily injury to a public safety officer. Finds the Miami Superior Court abused its discretion when it denied Hickingbottom’s motion for mistrial. Finds the state failed to produce the Indiana Department of Correction manual that contains policies and procedures on the use of force by DOC officers. Remands for a new trial with instructions for the DOC to produce the manual to the state before any subsequent proceedings take place, so Hickingbottom can review and utilize it.

7th Circuit Court of Appeals
Stephen West v. Charter Communications, Inc.
18-1906
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Richard Young.
Civil. Dismisses Stephen West’s appeal of the partial dismissal of his claim against Charter Communications, Inc. for lack of appellate jurisdiction. Finds the conditional dismissal of West’s claims against Louisville Gas and Electric Company renders the judgment non-final.

Indiana Court of Appeals
Sidney A. Berry v. State of Indiana
18A-CR-1769
Criminal. Affirms the denial of Sidney Berry’s motion to suppress evidence. Finds Detective Marc Deshaies had sufficient basis under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution to perform a safety pat-down of Berry.

Indiana Court of Appeals
Ismael Alicea v. Ronald Brown
18A-CT-2495
Civil tort. Reverses the grant of partial summary judgment in favor of Ronald Brown on Ismael Alicea’s claim for punitive damages. Finds Brown has not sustained his burden to affirmatively negate an element of Alicea’s punitive damages claim. Also finds the Porter Superior Court erred in granting partial summary judgment in favor of Brown on that claim. Remands for further proceedings.

Indiana Supreme Court 
Nathaniel Bennett v. State of Indiana
18S-CR-538
Criminal. Reverses the Marion Superior Court’s finding that Nathaniel Bennett violated a term of his community corrections placement. Finds the trial court made factual findings that negate one part of the statutory definition to prove the violation. Remands for the trial court to change the record accordingly. Justices Mark Massa and Geoffrey Slaughter dissent without separate opinion, believing transfer should have been denied. 

Indiana Court of Appeals
In the Matter of A.R., A.S., L.S., and J.O., Children Alleged to be Cihldren in Need of Services; M.O. (Mother) v. Indiana Department of Child Services
18A-JC-2523
Juvenile CHINS. Reverses the Tippecanoe Superior Court’s adjudication of M.O.’s four minor children as children in needs of services. Finds the trial court erred in adjudicating A.R., A.S., L.S., and J.O. as CHINS. Concludes the Department of Child Services did not meet its burden to demonstrate that the children have needs that they were unlikely to receive without the coercive intervention of the court.

Indiana Court of Appeals 
Cathy Jo Robertson v. State of Indiana ex rel. Curtis T. Hill, Jr., Attorney General of Indiana; Ronald Bloemer, Auto-Owners Insurance Company, and OneBeacon Insurance Company
18A-PL-1002
Civil plenary. Affirms the Jennings Superior Court’s denial of Cathy Jo Robertson’s Indiana Trial Rule 12(B)(6) motion to dismiss a complaint to recover public funds filed by the Office of the Indiana Attorney General. Finds the two-year statute of limitations did not begin to run until after the OAG received the final, verified report of the Indiana State Board of Accounts. Also finds the OAG’s complaint was filed within two years of receiving the final report, so, the claim was timely filed, and the trial court did not err in its denial of Robertson’s motion to dismiss. 

7th Circuit Court of Appeals
USA v. Alandous Briggs
18-1415
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Reverses the U.S. District Court for the Southern District of Indiana’s application of a four-level enhancement on Alandous Briggs’ guilty plea to a charge of being a felon in possession of a firearm after drugs and firearms were found at his home during a parole visit. Finds no factual findings were made connecting Briggs’ firearms to his conviction for cocaine possession. Vacates his sentence and remands for resentencing consistent with the opinion.

Indiana Court of Appeals
Rosemary Quillen, as Personal Representative of Patricia Cook, Deceased v. Anonymous Hospital and Anonymous Physicians A, B, and C
18A-CT-2743
Civil tort. Affirms the Porter Superior Court’s dismissal of Rosemary Quillen’s proposed medical malpractice complaints. Finds Quillen is not entitled to relief and that the trial court did not commit error in finding dismissal was the appropriate sanction for her failure to comply with the medical review panel chair’s schedule for submission of evidence.

Indiana Court of Appeals
B.D. v. Indiana University Health Bloomington Hospital
18A-MH-2672
Mental health. Affirms the Monroe Circuit Court’s order temporarily committing B.D. to Indiana University Health Bloomington Hospital for no more than 90 days. Finds the trial court’s order finding B.D. was a danger to herself and authorizing IU Health to medicate her was supported by clear and convincing evidence.

Indiana Court of Appeals
Indiana REMS, LLC v. Brock H. Medsker (mem. dec.)
18A-PL-1704
Civil plenary. Reverses the Marion Superior Court’s grant of summary judgment to Brock Medsker. Finds the trial court erred in granting summary judgment in favor of Medsker on Indiana REMS, LLC’s counterclaim for mutual mistake of fact. Finds genuine issues of material fact remain regarding REMS’ counterclaim for mutual mistake of fact. Remands for further proceedings.

7th Circuit Court of Appeals
United States of America v. Geraldo Colon
18-1233
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Criminal. Affirms Geraldo Colon’s money laundering convictions and the application of leadership enhancements to his advisory sentencing range. Finds the government’s evidence was sufficient to support the money laundering convictions. Also finds the district court erred in applying leadership enhancements, but those errors were harmless.

Indiana Court of Appeals 
David Hooker v. State of Indiana
18A-PC-2318
Post-conviction. Affirms the Vanderburgh Circuit Court’s denial of David Hooker’s petition for post-conviction relief on his conviction of Class C felony burglary. Finds Hooker failed to establish that the post-conviction court’s judgment was clearly erroneous. Judge L. Mark Bailey dissents witha separate opinion, finding Hooker’s plea was unreliable as a matter of law. 

Indiana Court of Appeals
Andrew Lee Swain v. State of Indiana (mem. dec.)
18A-CR-1838
Criminal. Affirms Andrew Swain’s aggregate six-year sentence following the revocation of his probation and his guilty plea to Level 5 felony escape and Level 6 felony unlawful possession of a syringe. Finds the sentence is not inappropriate in light of the nature of the offenses and his character. Finds the Grant Superior Court did not abuse its discretion in not finding Swain’s mental illness to be a mitigating factor.

7th Circuit Court of Appeals
Ja’Lin Williams v. Norfolk Southern Corporation and Norfolk Southern Railway Company
18-2517
Appeals from U.S. District Court for the Northern District of Indiana, Hammond Division
Magistrate Judge John E. Martin
Civil tort. Affirms grant of summary judgment to Norfolk Southern Corp. and Norfolk Southern Railway Co. Finds Ja’Lin Williams was more than 50 percent at fault for the injuries he sustained after running in front of a Norfolk train. Video evidence contradicted Williams’ testimony that the train was not sounding its horn or bells, did not have its light on and the warning signals were not flashing. Also cites Indiana law that a train operator has no duty to reduce a train’s speed if he sees a person crossing the tracks. 

Indiana Court of Appeals 
Dina Hasten Cohen v. Itamar Cohen
18A-DR-2139
Domestic relation. Affirms the Marion Superior Court’s order dissolving Dina Hasten Cohen’s marriage to Itamar Cohen and the distribution of assets of the marital estate between them. Finds the trial court did not abuse its discretion in failing to include an award of interest in the equalization payments the court ordered Itamar to pay to Dina.