Opinions

Indiana Court of Appeals
Timothy Allen v. State of Indiana
24A05-1706-CR-1303
Criminal. Reverses the revocation of Timothy Allen’s probation and the imposition of the execution of his previously suspended 20-year sentence in the Department of Correction. Finds Allen did not waive his right to counsel at the fact-finding hearing on the petition to revoke his probation. Remands for a new fact-finding hearing.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. Ali Al-Awadi
16-2643
Appeal from the United States District Court for the Southern District of Indiana.
Judge Tanya Walton Pratt.
Criminal. Affirms Ali Al-Awadi’s convictions of making and attempting to make child pornography. Finds the pattern jury instructions given to the jury accurately told the jury how to assess evidence of acts other than charged crimes, and the jury was instructed that the government had to prove the elements of the charged crimes beyond a reasonable doubt for Al-Awadi to be found guilty. Also finds evidence of Al-Awadi molesting a young girl was permissible because he placed his intent in taking sexually explicit pictures of the girl at issue, the molestation evidence was relevant to his intent, and the government’s evidence was not unduly repetitive. Finally, finds sufficient evidence supports the jury’s conclusion that Al-Awadi used the young girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct.

Friday opinions
Indiana Court of Appeals
Dyamond Harris v. Lafayette LIHTC, LP
79A02-1703-SC-638
Small claims. Reverses the Tippecanoe Superior Court’s judgment and writ of possession in favor of Lafayette LIHTC LP on its claim against Dyamond Harris for unpaid rent. Finds the trial court committed clear error by improperly shifting the burden of proof. Also finds the trial court violated Harris’ due process right to an impartial decision-maker.

Indiana Court of Appeals
Lamasco Redevelopment, LLC v. Henry County, Indiana, Auditor and Henry County, Indiana, Treasurer
33A01-1702-MI-398
Miscellaneous. Grants rehearing and reaffirms the original opinion. Finds the amount a purchaser paid for one of the parcels of land at issue is immaterial to the decision in the case. Also finds the original opinion did not misstate key points of In re 2014 Johnson County Tax Sale, 48 N.E.3d 340 (Ind. Ct. App. 2015).

Indiana Supreme Court
Virginia Garwood and Kristen Garwood v. State of Indiana, et al.
31S01-1710-CT-647
Civil tort. Grants transfer for the limited purpose of vacating only the section of the Indiana Court of Appeals opinion that addresses subject matter jurisdiction. Finds a published order issued Feb. 8, 2016, that vacated the case of Garwood v. Indiana Department of State Revenue, 24 N.E.3d 548 (Ind. Tax Ct. 2014), which the Court of Appeals cited in its discussion on jurisdiction, resolved the issue of subject matter jurisdiction based on the parties’ representations at oral argument. Summarily affirms the remainder of the opinion.

Indiana Court of Appeals
In the Matter of the Guardianship of Nathaniel C. Hurst, A Minor, Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst v. Nathaniel C. Hurst
45A03-1612-GU-2790
Guardianship. Affirms the denial of Centier Bank’s motion for summary judgment in Nathaniel Hurst’s action against it and Patrick and Michelle Hurst, in which Nathaniel Hurst alleged he suffered damages as a result of fraudulent acts committed by the bank and by Patrick and Michelle Hurst during their guardianship of Nathaniel Hurst’s estate. Finds the Lake Superior Court did not err in denying the bank’s motion for summary judgment. Chief Judge Nancy Vaidik dissents with separate opinion.

Indiana Court of Appeals
Thomas N. Eckerle v. Katz & Korin, PC and Michael W. Hile
49A02-1608-CT-1894
Civil tort. Grants Thomas N. Eckerle’s petition for rehearing for the sole purpose of correcting two immaterial factual errors that indicated Branham Corp. filed bankruptcy in 2004 and that Eckerle was a defendant in a case brought by Branham. Reaffirms the Indiana Court of Appeals’ earlier opinion in all other respects.

Indiana Court of Appeals
Marquell M. Jackson v. State of Indiana
82A04-1609-CR-2074
Criminal. Reverses Marquell M. Jackson’s sentencing enhancement for being found to have been a member of a criminal gang and his convictions for robbery as a Level 2 felony and aggravated battery as a Level 3 felony. Finds the Vanderburgh Circuit Court committed fundamental error when it permitted the state to amend the charge on the criminal gang enhancement such that the charge no longer stated an offense under Indiana law.

Indiana Court of Appeals
Cardinal Health Ventures, Inc v. Michael Scanameo, M.D., Carol Scanameo, and Michael Scanameo, M.D., Inc
18A02-1703-CT-487
Civil tort. Reverses the Delaware Circuit Court’s order granting Michael Scanameo, M.D., Carol Scanameo and Michael Scanameo, M.D. Inc.’s request to strike their motion for a jury trial on their claim of securities fraud against Cardinal Health Ventures Inc. Finds the trial court erred in granting the Scanameos’ motion because Cardinal Health did not consent to the motion. Remands with instruction to the trial court to re-set the case on the jury trial calendar.

Indiana Supreme Court
Jefferson Jean-Baptiste v. State of Indiana
49S02-1707-CR-500
Criminal. Affirms all portions of the Indiana Court of Appeal’s opinion reversing Jefferson Jean-Baptiste’s conviction of Class A misdemeanor resisting law enforcement, except its sua sponte constitutional analysis and holding, which remain vacated. Finds the state failed to present sufficient evidence to support Jean-Baptiste’s conviction. Declines to address the issue of the Court of Appeals’ constitutional analysis and holding.

Indiana Supreme Court
State of Indiana v. S.G.T.
29S02-1705-CR-284
Criminal. Reverses the Hamilton Superior Court’s dismissal of the charge of Class D felony dissemination of matter harmful to minors against 38-year-old S.G.T., who sent a photo of his genitals to a 16-year-old girl. Overrules Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009). Finds the dissemination statute, Indiana Code 35-49-3-3(a)(1) (2008), is not unconstitutionally vague.

Indiana Court of Appeals
David K. Miller v. Joy A. (Miller) Brown
03A01-1703-DR-512
Domestic relation. Reverses the Bartholomew Superior Court’s order requiring David Miller and Joy Brown to combine all the savings from four college savings accounts into a single, jointly owned account for the benefit of their youngest son, N.M. Finds the funds in the two accounts opened by Miller are his property and the trial court lacked authority to make Brown a co-owner. Remands for a new ruling on Brown’s petition for payment of N.M.’s college expenses.

Indiana Court of Appeals
Dori J. West v. State of Indiana
02A04-1704-CR-783
Criminal. Reverses Dori West’s conviction of Class A misdemeanor resisting law enforcement. The state failed to present sufficient evidence to support the conviction.

Indiana Court of Appeals
Nicholaus Knecht v. State of Indiana
06A05-1701-CR-131
Criminal. Affirms the revocation of Nicholaus Knecht’s probation and order he serve his suspended sentence in community corrections. The state proved Knecht violated his probation and he failed to show he was deprived due process.

Indiana Court of Appeals
2444 Acquisitions, LLC v. Michael Fish
49A02-1606-MF-1315
Mortgage foreclosure. Affirms the order granting Michael Fish’s motion for turnover of the tax sale surplus funds. Finds the current action is not estopped and that equity requires the disbursement of the funds to Fish.

The following 7th Circuit Court of Appeals opinions were posted after IL deadline Friday:
In Re: OneStar Long Distance, Inc., Elliott D. Levin v. Verizon Business Global, LLC
16-1940, -2094
Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil. Affirms the district court’s affirmation of the bankruptcy judge’s ruling that the new value, or additional telecommunications services, that MCI advanced during its preference period sufficed to make OneStar’s preferential payments unavoidable, so the debt assignment to a newly formed affiliate was irrelevant. Finds a debtor’s assignment of debt and contractual rights to an affiliate doesn’t have the effect of repaying a creditor for new value. Also finds MCI advanced subsequent new value that remained unpaid, so OneStar’s preferential transfers are unavoidable.

Indiana Court of Appeals
Jennifer Cox v. Evansville Police Department and The City of Evansville; Babi E. Beyer v. The City of Fort Wayne
82A01-1610-CT-2299
Civil tort. In a combined appeal, reverses and remands trial court orders granting summary judgment to the municipalities on two women’s claims that police officers sexually assaulted them while on duty. Reverses both cases and remands for further proceedings. In the city of Fort Wayne's cross-appeal, affirms the trial court’s denial of Fort Wayne’s summary judgment motion on Beyer’s respondeat superior claim.

Indiana Court of Appeals
Devan Lampe v. State of Indiana (mem. dec.)
34A02-1706-CR-1306
Criminal. Affirms 16-year prison sentence for conviction of Level 3 felony burglary, concluding the sentence is not inappropriate in light of the nature of Devan Lampe’s offense and his character.

7th Circuit Court of Appeals
E.T. Products, LLC v. D.E. Miller Holdings, Inc., et al.
16-1204
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Philip P. Simon.
Civil. Affirms the district court’s judgment that a noncomplete clause between Doug and Tracy Miller and E.T. Products LLC was enforceable, but that the Millers did not breach it. Finds the noncompetition agreement is not overbroad.