Indiana Court Decisions – May 14 to 27, 2014

Indiana Supreme Court

May 16

Attorney Discipline – Disbarment

In the Matter of: Steven B. Geller

49S00-1106-DI-318

A criminal defense lawyer accused of instigating a physical altercation with a former client at the City-County Building in Indianapolis and committing numerous rules violations has been disbarred.

Steven B. Geller had to be restrained by guards after accosting a former client he believed owed him money at the courthouse in Indianapolis. He yelled at the ex-client, “I’ll f***ing kill you!”, according to the Indiana Supreme Court order of disbarment.

“The Court concludes that (Geller) violated the Indiana Rules of Professional Conduct by multiple acts of misconduct, including dishonesty to a court and to the (Disciplinary) Commission, improper ex parte communication with a judge, improper communication with a represented party, pervasive neglect of vulnerable clients, disorderly conduct in a judicial facility, and conduct prejudicial to the administration of justice,” the 15-page per curiam order says.

Justices approved disbarment in a 4-1 decision. Justice Mark Massa concurred in part and dissented in part and would have imposed a three-year suspension without automatic reinstatement.

Geller had been suspended for one year in 2000 for threatening to reveal a client’s conviction for child molesting to fellow inmates in retaliation when the client threatened to file a grievance, the court noted, along with three financial violations.

“The Court notes [Geller’s] history of misconduct, his unsuccessful prior attempt at rehabilitation, his inability to appreciate the wrongfulness of his current misconduct (except admitting “losing it” in Count 1), and his confrontational attitude toward those involved in the disciplinary process,” the order reads.

“Of particular concern is (Geller’s) continued inability to manage his anger, his attempts to blame others, including his own clients, for his misconduct, and his dishonesty toward a court and the Commission. Under these circumstances, the Court concludes that disbarment is warranted.”

The court found Geller violated a dozen Rules of Professional Conduct. They are:

1.3: Failure to act with reasonable diligence and promptness;

1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter;

1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information;

1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions;

1.5(b): Failing to communicate the scope of the lawyer’s representation and the basis or rate of the fee for which a client will be responsible;

1.16(d): After the termination of representation, failure to protect a client’s interests, failure to refund an unearned fee, and failure promptly to return to a client case file materials to which the client is entitled;

3.3(a)(1): Knowingly making a false statement of fact or law to a tribunal;

3.5(b): Engaging in an improper ex parte communication with a judge;

4.2: Improperly communicating with a person the lawyer knows to be represented by another lawyer in the matter;

8.1(a): Knowingly making a false statement of material fact to the Disciplinary Commission in connection with a disciplinary matter;

8.4(b): Committing a criminal act (disorderly conduct) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer; and

8.4(d): Engaging in conduct prejudicial to the administration of justice.

Separately, Geller was criminally charged in March 2013 with five counts of Class D felony tax evasion for failing to file Indiana individual or business income tax returns for the years 2007 through 2011.

According to the Marion County Prosecutor’s Office, Geller is due in Marion Superior Criminal Court 25 for a pretrial conference on May 29. His trial date is currently set for June 10.

Geller was admitted to practice in 1989.

Indiana Tax Court

May 14

Tax – Exemption/Product Creation

Hoosier Roll Shop Services, LLC v. Indiana Department of State Revenue

49T10-1104-TA-29

The Indiana Tax Court has ruled in favor of a Hammond company in its attempt to exempt certain equipment from the state’s sales and use taxes.

Hoosier Roll Shop Services LLC challenged the Indiana Department of State Revenue’s final determination denying it an exemption for equipment used and materials consumed in grinding and calibrating its mill customers’ work rolls during the 2007 and 2008 tax years. These work rolls create the proper thickness, flatness, surface texture and luster of the sheet product as it passes through them. The surfaces of the rolls must be ground and calibrated to certain specifications.

The parties’ motions for summary judgment present just one issue for the Tax Court to decide: whether Hoosier Roll produces a new good, thereby entitling it to the exemptions, when it grinds and calibrates work rolls. Hoosier Roll claimed that it does: it takes a work roll, a tool ground and calibrated for a certain use, and, through its grinding and calibration process, creates an entirely new tool for a different use (i.e., a remanufactured work roll). The department argued, however, that Hoosier Roll does not produce a new good, but instead provides a repair service that is designed merely to perpetuate the usable life of the work roll.

Senior Judge Thomas Fisher relied on the four questions outlined in Rotation Products Corporation v. Department of State Revenue, 690 N.E.2d 795 (Ind. Tax Ct. 1998), to determine whether a “remanufacturing” or “repairing” process produces a new product. Those questions are: What is the substantiality and complexity of the work done on the existing article and what are the physical changes to the existing article, including the addition of new parts?; How does the article’s value before and after the work compare?; How favorably does the performance of the “remanufactured” article compare with the performance of newly manufactured articles of its kind?; and Was the work performed contemplated as a normal part of the life cycle of the existing article?

Fisher determined that the answer to each of those four questions favors Hoosier Roll. It produces other tangible personal property when it grinds and calibrates its customers’ work rolls. As such, Fisher granted the company’s motion for summary judgment and denied summary judgment in favor of the Department of State Revenue.

Indiana Court of Appeals

May 21

Criminal – Burglary/Evidence

Jacob Herron v. State of Indiana

56A03-1306-CR-210

Because the state called a witness solely to impeach her with a pretrial statement, and the jury may have relied on the witness’s testimony to convict the defendant, a majority on the Indiana Court of Appeals reversed burglary and receiving stolen property convictions.

Teresa Beever returned home from dining at Earl’s restaurant in Brook, Ind., to find her home had been burglarized. Kelly Tebo, a waitress at the restaurant, texted her boyfriend, Jacob Herron, to tell him the Beever home would be unoccupied, according to her statement to investigators. She also said she saw him carry two bags, one of which he said contained things stolen from the Beever home.

The state put Tebo on the stand to impeach her with her pre-trial statements over Herron’s objection. At his trial, Tebo said Herron said nothing about stealing from the Beevers and that they traveled out of town for a bridal shower, thus the two bags. She also denied discussing the burglary with anyone other than investigators, but the state then called Beever to the stand, who said Tebo admitted texting Herron on the night of the burglary and that the bags had things from her home.

“Put simply, the record belies the State’s argument that Tebo’s testimony served a legitimate non-impeachment purpose. The State knew before trial that Tebo’s testimony would be inconsistent with her pretrial statement.  Tebo’s direct examination spans thirty-five pages, thirty of which pertain to her pretrial statement, and the remaining pages do not contain substantive testimony,” Chief Judge Nancy Vaidik wrote. “These facts, when considered in light of the minimal evidence tying Herron to the burglary, lead us to conclude that the State’s only purpose in calling Tebo as a witness was, in fact, impeachment. Tebo readily admitted that her testimony was inconsistent with her pretrial statement. Despite admitting herself a liar, the State drove the point home by reading, line-by-line, from her pretrial statement. This was improper and unnecessary.”

The jury couldn’t use Tebo’s pretrial statement as substantive evidence against Herron because it was admitted solely for impeachment. But when a witness is impeached as Tebo was — by reciting portions of the witness’s pretrial statement — there is a very real threat that the impeachment evidence will be used as substantive evidence, Vaidik continued.

Vaidik and Judge Melissa May voted to reverse his conviction and held he could be retried.

Judge Patricia Riley dissented in part, believing that while the state’s procedure for impeaching Tebo was improper, the error was harmless. She found enough circumstantial evidence existed to prove Herron committed the offenses, including a glove found at Herron’s home that matched a photographic imprint taken at the Beevers’ residence.

She found the trial court did not abuse its discretion in allowing the state to call Tebo as a witness because the jury may have wondered why such a valuable witness was being kept from the stand if she was not called.

Civil Tort – Negligence/Dram Shop

Tierra Rae Pierson, a Minor, Deceased, by her next friend and parent, Betina Pierson, and Betina Pierson, Individually, and Ryan Pierson, Individually v. Service America Corporation, et al.

49A02-1307-CT-561

It should be up to the trial court or a jury to determine whether a vendor in Lucas Oil Stadium in Indianapolis should be held responsible for serving alcohol to a man who later hit two children while driving home after a game.

Trenton Gaff was intoxicated when he hit 12-year-olds Tierra Rae Pierson and January Canada with his vehicle as they walked along the side of a road around 6 p.m. Gaff had consumed alcohol before attending an Indianapolis Colts game, where he also drank alcohol, and then consumed more alcohol after the game before driving home. His blood-alcohol content was 0.200; he later pleaded guilty to Class B felony operating a motor vehicle with a BAC of 0.15 or greater causing death. Pierson died as a result of the impact.

Both girls’ parents filed lawsuits alleging that Centerplate, the vendor at Lucas Oil that sold alcoholic beverages to Gaff, negligently failed to restrict the sale of alcohol to visibly intoxicated patrons, including Gaff. It is unknown who actually sold Gaff the alcohol because volunteers from nonprofits serve alcohol at the game in exchange for a cut of the profits. The trial court granted Centerplate’s motion for summary judgment, concluding there was no evidence that a Centerplate employee or designee served Gaff when he was visibly intoxicated and that the alcohol provided at the game was the proximate cause of the accident.

In a combined appeal, the plaintiffs argued that, although the identity of the server is not known at this time, a reasonable inference may be drawn that Gaff would have exhibited visible signs of intoxication by the time he purchased beer from a Centerplate agent inside the stadium. And, as the sole source of alcohol sales inside the stadium, Centerplate is responsible for the actions of its agents, and the designated evidence allows an inference that Centerplate, through its agents, had knowledge Gaff was intoxicated when served.

“The designated record could be said to support one of several scenarios, that is, Gaff drank before and during the game to the point where he would have exhibited signs of intoxication observable by the stadium volunteer selling him beer; Gaff drank to excess only after leaving the stadium; or Gaff was intoxicated inside the stadium but did not exhibit visible signs of intoxication,” Judge L. Mark Bailey wrote. “Ultimately, it is the role of the fact-finder, and not the court in summary judgment proceedings, to determine issues of credibility or relative weight of the evidence – for example, whether self-reporting of alcohol consumption was inaccurate or an expert opinion based upon a toxicology report was flawed. Too, even though Gaff reportedly drank in different venues, it is the role of the fact-finder to determine whether any one drink was served to Gaff by someone knowing him to be visibly intoxicated.”

The appellate court also rejected Centerplate’s claims that no liability can ensue because no particular server to Gaff has been identified. To do so would circumvent public policy associated with the Dram Shop Act, Bailey wrote.

Criminal – Battery/Probation Conditions

Wayne Hurd v. State of Indiana

49A02-1309-CR-753

The Indiana Court of Appeals found a trial court abused its discretion when it originally imposed a probation condition prohibiting a man from going within two miles of where he committed battery against a stranger.

Wayne Hurd was convicted of Class B misdemeanor battery for grabbing Susan Schneider from behind a bus stop at 39th Street and College Avenue in Indianapolis. The two did not know each other. She kicked Hurd in the groin and ran home to call police. At his trial, Hurd denied touching Schneider and explained that he had been diagnosed with paranoid schizophrenia and was taking medication.

Hurd’s public defender wanted Hurd’s mother to testify about his mental illness and demeanor, but she was not identified as a potential witness until the morning of the trial. The trial court did not let her testify, which Hurd challenged on appeal. The Court of Appeals affirmed because the offer of proof was not specific as to the substance of Hurd’s mother’s testimony, she was not present at the bus stop, and the trial court found the victim’s testimony credible and Hurd’s testimony to have gaps.

Hurd also challenged the original probation condition imposed in August 2013 that he stay approximately two miles away from 38th Street and College Avenue. Although the trial court amended the condition three months later to a “one block radius” of Schneider’s home, the probation department filed a notice of probation violation less than two weeks after the original condition was imposed. It alleged he was in the area of 4100 N. College Ave. on Aug. 11.

“It was reasonable for the trial court to express concern for Hurd’s mental health, and the court did so by ordering Hurd to comply with his treatment regimen at Gallahue. Further, given that Hurd’s conviction was for a crime against a person, it was also reasonable for the court to prohibit contact with Susan. However, prohibiting Hurd from entering a significant area of the central part of Indianapolis is not tailored to his rehabilitation or public safety,” Judge Nancy Vaidik wrote.

The judges remanded with instructions to vacate any pending probation violations based upon the original condition.
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May 22

Civil Collection – Contract

Yellowbook Inc. f/k/a Yellow Book Sales and Distribution Company, Inc. v. Central Indiana Cooling and Heating, Inc. and Lawrence E. Stone a/k/a Larry Stone

30A05-1311-CC-561

A heating and cooling company does not owe Yellow Book for a contract it tried to break after finding the publication didn’t change the terms of the contract as promised, the Indiana Court of Appeals held. But, the heating and cooling company is on the hook for two other contracts it had that it failed to fully pay.

Larry Stone’s company, Central Indiana Cooling and Heating, entered into three 12-month contracts with Yellow Book to advertise in certain directories for the years 2008 – 2010. Yellow Book sued in August 2011, claiming the company failed to pay for the advertising as provided by the contracts and his personal guarantee on two of the contracts.

The trial court found that Stone and his company were appropriately credited for payments he testified he made to Yellow Book which he claimed the company didn’t apply, and it ruled that he properly cancelled Contract 3. This contract Stone claimed he signed with the understanding that the terms of the contract were just a placeholder until he could sign a new, less expensive contract. But after no one contacted him with a new contract, he was unable to reach anyone at Yellow Book afterward to cancel the contract.

The trial court also denied attorney fees for Yellow Book.

The Court of Appeals found that Stone, in fact, was credited for payments that he claimed were missing. Stone admitted at trial that all payments he had perceived as omitted from Yellow Book’s account statement had in fact been credited toward his unpaid balances. Thus, the trial court improperly concluded he was not indebted to Yellow Book under contracts 1 and 2.

There was no error in concluding that Contract 3 was properly cancelled. Yellow Book argued that evidence of the oral misrepresentations made by Yellow Book’s salesperson to Stone are not admissible due to an integration clause in Contract 3. But Stone can overcome this clause because he relied on misrepresentations by Yellow Book when he signed Contract 3 as a placeholder contract. He was supposed to have a smaller contract, but he never received one and his attempts to reach someone at the company were not answered.

The trial court remanded for calculation of pre-judgment interest on contracts 1 and 2 and a determination of attorney fees for work done on those contracts.

Criminal – Resisting Law Enforcement

Maddox T. Macy v. State of Indiana

52A02-1309-CR-808

Opening a police officer’s car door and refusing to place one’s feet inside the car are not acts constituting forcible resistance, the Indiana Court of Appeals ruled. The judges reversed a Miami County woman’s conviction of resisting law enforcement.

Officer Roger Bowland and two animal control officers went to Maddox Macy’s home on the report that her neighbor had been bitten by two dogs owned by Macy. Macy made a scene as Bowland left her home to talk to the neighbor, yelling at the officers that her dogs did not bite anyone. She was placed under arrest, handcuffed and placed in the front seat of Bowland’s police car. She somehow opened the shut door, got out and yelled some more. She then refused to place her feet inside the vehicle after Bowland forced her back inside. He picked them up, put them in the car and then shut the door.

Maddox was convicted of Class B misdemeanor disorderly conduct and Class A misdemeanor resisting law enforcement, but she only appealed her resisting conviction.

The appeals court noted that the definition of “forcibly” within the resisting law enforcement statute, as outlined in Spangler v. State, 670 N.E.2d 720, 723 (Ind. 1993), has “softened” and become “blurry, to say the least.”

However, each case affirming a conviction of forcible resistance seems to involve, at a minimum, some physical interaction with a law enforcement officer, the judges noted. Macy’s act of opening the car door did not involve any interaction with Bowland, nor was it directed toward him or did it present a threat to him.

“While it is possible that Macy’s conduct may qualify as some other crime, it was not a crime of forcible resistance,” Judge Margret Robb wrote.

The judges also found Macy’s refusal to place her feet inside the vehicle was an act of passive resistance that is not punishable under Indiana Code 35-44.1-3-1(a)(1).

“Finally, we would be remiss not to address the State’s claim that forcible resistance by Macy may be reasonably inferred based on Officer Bowland’s testimony that he had to ‘force’ Macy back into the car and physically pick up her feet and place them in the vehicle,” she wrote. “We disagree for two reasons. First, an officer’s use of force does not establish that the defendant forcibly resisted. Second, on cross-examination, Officer Bowland was asked whether Macy ever physically resisted him, at which point Officer Bowland clarified that Macy resisted his commands. In light of that testimony, we do not believe the evidence supports the State’s proposed inference.”

Juvenile – Custody/Jurisdiction

In the Matter of the Paternity of B.C., M.B. and N.S. v. J.C.

54A01-1309-JP-398

The Indiana Court of Appeals reversed an order out of Montgomery County regarding custody and parenting time of a boy because that court could not properly exercise jurisdiction. Marion County had exclusive jurisdiction over the custody of the boy.

M.B. and N.S. were appointed guardians of B.C. by Marion Superior Court, Probate Division, on July 31, 2012. M.B. is the boy’s maternal grandfather. At this time, paternity had not been established. J.C., the boy’s biological father, filed a petition to establish paternity, custody, support and parenting time in Montgomery Circuit Court Dec. 19, 2012. In May 2013, the guardians filed a petition for adoption in Marion Superior Court.

At issue is whether Montgomery Circuit Court or Marion Superior Court had jurisdiction to determine the custody of B.C.

The Court of Appeals found the Marion Superior Court had jurisdiction to enter its July 31, 2012, order appointing M.B. and N.S. as guardians over B.C. because, at that time, J.C. had not yet filed his verified petition to establish paternity. And based on statute, Montgomery Circuit Court was authorized to enter its order Dec. 20, 2012, establishing paternity because the issue of whether J.C. was B.C.’s father was not an issue pending before Marion Superior Court.

But the Montgomery Circuit Court was precluded from entering its July 5, 2013, order finding that the guardians should retain physical custody of B.C. at that time, that J.C. and the biological mother share joint legal custody, and that both parents should have parenting time. The guardianship, paternity, and adoption proceedings all relate to custody – a subject that was properly before the Marion Superior Court due to the guardianship action, the appeals court held.

The judges found that I.C. 31-19-2-14, which governs the exclusive jurisdiction when a petition for adoption and a petition to establish paternity are pending at the same time, controls rather than I.C. 31-30-1-1(3).

“While the Guardians did not cite Ind. Code § 31-19-2-14 to the Montgomery Circuit Court, they did request a transfer of the case to the Marion Superior Court, albeit to the guardianship proceedings, and the evidence presented at the hearing in the Montgomery Circuit Court included mention of the adoption petition filed by the Guardians,” Judge Elaine Brown wrote.

“Because the petition for adoption and the paternity action were pending at the same time, the court in which the petition for adoption had been filed had exclusive jurisdiction over the custody of B.C. Accordingly, the Montgomery Circuit Court could not properly exercise jurisdiction to enter its July 5, 2013 order as the Marion Superior Court had exclusive jurisdiction over the custody of B.C., and the Marion Superior Court erred when it dismissed the guardianship and adoption proceedings. We reverse the Montgomery Circuit Court’s July 5, 2013 order and remand with instructions for the Marion Superior Court to comply with all provisions of Ind. Code §§ 31-19 and 29-3.”
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May 23

Criminal – Patronizing a Prostitute/Entrapment

Kenneth Griesemer v. State of Indiana

49A04-1308-CR-382

The Indiana Court of Appeals reversed a misdemeanor conviction for patronizing a prostitute, with two judges ruling the state was unable to rebut the man’s entrapment defense by showing he had a history of trying to buy sex.

Kenneth Griesemer was convicted of Class A misdemeanor patronizing a prostitute based on his interaction with an undercover detective posing as a prostitute on Washington Street in Indianapolis. He saw her, circled back in his car and asked the detective if she needed a ride. Detective Tabatha McLemore declined, saying she was trying to make money. She asked how much money he had and then told him what she would perform for $20. She said he could pick her up down the street, where he was arrested by police. During this interaction, Griesemer simply nodded in response to McLemore’s questions.

Griesemer argued that his conviction should be reversed because he was entrapped. The judges found he established police inducement, so the burden of proof shifted to the state to demonstrate that the conduct was not the result of police efforts or that Griesemer had a predisposition to commit the crime.

The state argued Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct. App. 1997), supports that police merely afforded Griesemer an opportunity to commit a crime, so the state may not have induced his criminal behavior. In Shelton, two brothers were charged with road hunting for stopping their vehicle on the side of the road and shooting at a deer decoy set up by police.

“We cannot, however, hold that the facts herein are analogous to those in Shelton. Detective McLemore was not merely standing on the side of the road dressed like a prostitute. She was the first to mention money, a sex act, and the possibility of exchanging the two. For Shelton to be analogous, the deer decoy would have needed a sign or recording announcing to passers-by that they were welcome to shoot at the deer for twenty dollars,” Judge Melissa May wrote. “As the deer decoy contained no such explicit invitation to commit criminal behavior, we decline the State’s invitation to follow Shelton. Detective McLemore’s question and statements were sufficient to induce Griesemer to commit patronizing a prostitute.”

The state did not present any evidence to demonstrate Griesemer was predisposed to patronizing a prostitute, so it did not rebut his defense of entrapment, the majority held.

Chief Judge Nancy Vaidik dissented, writing, “I believe that the State proved that Griesemer was predisposed to commit the offense because the State established that Griesemer was not reluctant to commit the offense.”

She did not agree with the majority’s suggestion that in order to demonstrate predisposition, the state needed to show Griesemer has a history of patronizing prostitutes or is familiar with the jargon of the prostitution business.
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May 27

Miscellaneous – Criminal Record

John Alden v. State of Indiana

30A05-1309-MI-463

Because a man filed his motion to prohibit the release of his criminal record before the Indiana Legislature repealed the relevant statute, the Indiana Court of Appeals ordered the Hancock Superior Court to consider the motion.

Hancock Superior Judge Dan E. Marshall denied John Alden’s motion on two grounds: Alden failed to provide notice to the Office of the Indiana Attorney General and the Indiana State Police Central Repository; and the Legislature had repealed I.C. 35-38-8-5.

Alden filed his motion to prohibit the release of his criminal record June 4, 2013, and served his motion only on the Hancock County prosecutor. Shortly after he filed the motion, the General Assembly repealed the statute.

Alden argued he met the requirements of the statute, which at the time allowed courts to restrict access to the conviction records of qualifying offenders eight years after they completed their sentences.

The Court of Appeals reiterated its April 30 ruling in Pittman v. State, that I.C. 35-38-8-3 does not require petitioners to serve notice on either the attorney general or the ISPCR.  Alden fulfilled the notice requirements of Indiana Criminal Rule 18 by serving the prosecutor, the adverse party “of record” under the rule. The petition is an additional filing in the criminal case and not a new, free-standing cause of action.

The judges also found I.C. 1-1-5-6 dispositive; the statute applies to the repeal of a statute or part of a statute that has expired and provides that the repeal does not affect the validity of an action taken before the statute has expired.

“While Indiana courts have never interpreted this provision of the Indiana Code, its plain language indicates that a party has a right to pursue an action allowed by statute even if that statute is later repealed, as long as the party undertakes the action prior to the repeal. Accordingly, because Alden filed his motion before the Legislature repealed Indiana Code § 35-38-8-3, we conclude that the repeal did not affect the validity of his action,” Judge Rudolph Pyle III wrote.•