Indiana Court Decisions – Nov. 24-Dec. 9, 2014

7th Circuit Court of Appeals

Dec. 1

Civil – Appellate Jurisdiction/Termination of Employment/Discrimination

Emily Herx v. Diocese of Fort Wayne – South Bend, Inc. and St. Vincent de Paul School

14-3057

A Fort Wayne woman’s discrimination lawsuit against the Diocese of Fort Wayne-South Bend will continue despite the Catholic Church’s attempt to get the 7th Circuit Court of Appeals to intervene before trial and dismiss the complaint on religious freedom grounds.

Emily Herx sued the diocese when her employer, St Vincent de Paul School, did not renew her teacher’s contract. The school said she violated the moral teachings of the church by undergoing in vitro fertilization treatments.

Herx filed a complaint, arguing the diocese and the school violated Title VII of the Civil Rights Act and the Americans with Disabilities Act by discriminating against her on the basis of sex and disability.

The diocese moved for summary judgment on both claims and the U.S. District Court for the Northern District of Indiana granted the motion with respect to the ADA claim but not on the Title VII claim.

Although the church argued as a religious organization it was exempt from Title VII, the District Court disagreed. Instead the District Court found that religious-employer exemptions apply only to claims alleging religious discrimination and do not bar Title VII claims against religious organizations alleging discrimination on the basis of race, color, sex or national origin.

The diocese then appealed to the 7th Circuit under the collateral-order doctrine. It argued a collateral-order review was necessary to avert a serious encroachment on its First Amendment religious-liberty interests.

The 7th Circuit ruled there was no merit for a collateral-order review.

“We do not question the importance of the interests the Diocese has asserted,” Judge Diane Sykes wrote. “But those interests will not be irreparably harmed by enforcement of the final-judgment rule. … Because the district court’s decision is not effectively unreviewable on an appeal from a final judgment, the collateral-order doctrine does not apply.”
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Dec. 4

Civil – Social Security Disability Benefits

Michele A. Herrmann v. Carolyn W. Colvin, acting commissioner of Social Security

13-3624

Finding several things “wrong” with an administrative law judge’s decision denying a Fort Wayne woman’s application for Social Security Income for the years prior to her turning 55, the 7th Circuit Court of Appeals reversed and remanded for further proceedings.

Michele A. Herrmann has several ailments, including fibromyalgia, spinal disk disease, and abnormal sensitivity to light that prevent her from doing light work on a full-time basis.

The ALJ turned down her request for the years before she turned 55, but because of a less demanding showing of disability required of applicants age 55 and older, Herrmann was deemed to have become disabled when she turned 55.

In making his decision, the ALJ brushed aside the physicians’ findings and gave a garbled explanation of the evidence of Dr. Michael Holton, a consultative physician.

Herrmann appealed before the Social Security Administration and the District Court, but lost.

“The district court’s statement that ‘the ALJ’s evaluation of Dr. Holton’s opinion may not be perfect’ is a considerable understatement,” Judge Richard Posner wrote. “Coupled with the administrative law judge’s unreasoned brush off of the evidence offered by the other consulting physicians, his confused rejection of Dr. Holton’s evidence should have persuaded the district judge to reverse the denial of relief to the applicant and remand the matter to the Social Security Administration.”

The judges also took issue with the testimony by the vocational expert regarding the number of jobs in the local, state and national economy that an applicant for Social Security Disability Benefits is capable of performing. This is not the first time the 7th Circuit has expressed doubts regarding the source and accuracy of such statistics, Posner pointed out, citing Browning v. Colvin, 766 F.3d 702, 708-12 (7th Cir. 2014).

“We do not know how the vocational expert in this case calculated the numbers to which he testified. Nothing in the record enables us to verify those numbers, which the administrative law judge accepted,” Posner wrote.

Indiana Supreme Court

Dec. 4

Miscellaneous – Lien Foreclosure Prohibition/Tax Sale

In Re: The Carroll County 2013 Tax Sale: Twin Lakes Regional Sewer District v. Richard C. Ray and Patricia A. Alford, et al.

08S04-1402-MI-97

In Re: The Carroll County 2012 Tax Sale: Twin Lakes Regional Sewer District v. Steven E. Hruska, Virginia Hanna, et al.

08S02-1402-MI-78

The Indiana Supreme Court issued two opinions dealing with the same issue: whether a tax sale could be used to collect unpaid sewer bills. The justices ruled it could and reversed judgment in favor of the homeowners.

In both cases, the trial court granted landowners’ requests to remove their properties from the list of properties subject to tax sale. The landowners were delinquent in paying fees and penalties owed to the Twin Lakes Regional Sewer District, and the sewer district perfected liens against the properties. The Carroll County treasurer and auditor ordered the properties sold at a tax sale to satisfy the unpaid bills.

The central issue is the interpretation of the last sentence of the lien foreclosure prohibition clause in I.C. 13-26-14-4: “A lien under this chapter that is the only lien on a property may not be foreclosed.” Another issue is whether that clause applies to prohibit a tax sale when the sewer bill lien is the only lien on a property, as is the case in these two matters.

The sewer district argued that clause doesn’t apply to tax sales; the landowners say the plain meaning of “foreclosed” applies broadly to encompass both a traditional real estate foreclosure as well as a tax sale.

Four sections of I.C. 36-9-23 explain how a municipality may collect unpaid and delinquent sewer bills. And while those sections expressly authorize the county treasurer to collect assessed sewer fees in the manner of collecting delinquent property taxes, which includes resort to a tax sale, these sections do not define sewer fee collection liens as “tax liens” or refer to a “tax sale” as a “lien foreclosure,” Justice Brent Dickson wrote in Ray.

“We conclude that a tax sale does not fall within the regional sewer district lien foreclosure prohibition,” he wrote. “We recognize the landowners’ earnest opposition to their property being subject to regional sewer district fees and their belief that the legislature’s enactment of the lien foreclosure prohibition clause provided them with immunity in the absence of other liens. We must be guided, however, by the language enacted and thus find that, while it precludes the foreclosure of assessed regional sewer district fee liens when such liens are the only liens on a property, this preclusion does not extend to collection of such fees and charges by tax sale.”

The cases are remanded for further proceedings.

Adoption – Jurisdiction/Local Rule

In the Matter of the Adoption of Minor Children: J.T.D. and J.S.: Ind. Dept. of Child Services v. N.E.

45S03-1406-AD-387

The Indiana Supreme Court noted that the parties and both of the previous courts involved in an adoption matter were partly correct in their analyses as to where the petitions needed to be filed. But the Lake Superior Court, Civil Division should have transferred the petitions from its court to the juvenile division, where a local rule requires adoption petitions to be filed.

N.E. sought to adopt her cousins, J.T.D. and J.S. She filed her petitions in 2013 in Lake Superior Court 2, part of the court’s civil division. Statute divides Lake Superior Court into four divisions and says that the civil division includes probate. But Lake County’s Caseload Allocation Plan indicates that the adoption of minors should be exclusively filed in the juvenile division.

The Department of Child Services moved to intervene and asked that the adoptions be transferred to the juvenile division. Lake Superior Judge Calvin D. Hawkins denied the motion, saying local rules do not trump statute. The judge believed the case could be filed in his court. He then certified the order for interlocutory appeal.

The Court of Appeals affirmed, but the justices pointed out that the local rule doesn’t impermissibly expand jurisdiction beyond statutory bounds, it simply prescribes venue. Like all local rules, it is binding on the courts and litigants, Chief Justice Loretta Rush wrote.

“The parties and both of the previous courts were all partly correct in their analyses. The trial court was correct that it did have subject matter jurisdiction over adoptions and that the Caseload Allocation Plan was a matter of venue and not jurisdiction. Yet DCS was correct that the trial court was bound by the Caseload Allocation Plan and therefore obligated to transfer the adoption to the Juvenile Division,” Rush wrote. “Because nothing in Indiana Code chapter 33-33-45 restricts the probate jurisdiction of any of the Lake Superior Court’s divisions, each division — including the Juvenile Division — is imbued with the same jurisdiction as the court at-large. Therefore, even though the Caseload Allocation Plan’s provisions establish only venue and not jurisdiction, they are binding on the court and litigants. Lake County was free to adopt a Caseload Allocation Plan establishing exclusive venue for adoptions in the Juvenile Division as a matter of administrative convenience and efficiency, and that Rule is binding on the court and litigants.”
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Dec. 5

Discipline – Judge

In the Matter of the Honorable Mickey K. Weber, Judge of the Clarksville Town Court

10S00-1409-JD-606

See page 22A.

Indiana Court of Appeals

Nov. 24

Criminal – Perjured Testimony/Prosecutorial Misconduct

Antonio Smith v. State of Indiana

71A04-1312-CR-609

A St. Joseph County man’s burglary conviction was reversed by the Indiana Court of Appeals. The state’s use of perjured testimony to obtain the conviction led the panel to refer the case for possible disciplinary action against a prosecutor.

“We are troubled that the State knowingly proffered perjured testimony but are even more concerned that the State granted the witness immunity from prosecution, which encouraged such testimony,” Judge Edward Najam wrote in an endnote. “Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments.”

A jury convicted Antonio Smith of the Class C felony after a witness, Nicole Greenlee, testified that Smith had broken into a Dollar General store. Greenlee, though, had previously pleaded guilty to the crime in which she admitted breaking in. Greenlee testified despite defense objections that this was perjury and should result in a mistrial. Smith was sentenced to four years in prison.

Video surveillance from the store showed a white woman breaking into the store. Greenlee is white and Smith is African-American. The state offered testimony from an officer who said cell phone records showed Greenlee and Smith were in close proximity. On cross-examination, though, the detective said he didn’t know how far away each cell phone was.

“Greenlee gave perjured testimony as a matter of law at Smith’s trial. … (A) conviction based on perjury will not be upheld. … Perjured testimony renders a witness’ oath to tell the truth, the whole truth, and nothing but the truth meaningless. Perjured testimony contaminates a trial, violates due process and strikes a blow to the heart of our judicial system,” Najam wrote.

The state had offered Greenlee immunity for her testimony, but also had a duty to correct her perjury and should have joined the defense motion for a mistrial.

The opinion does not identify the prosecutor who allowed the perjured testimony.

Miscellaneous – Grandparent Visitation

In re the Visitation of H.B., Adam Burris v. Timothy W. Schmidt and Anita J. Schmidt

87A04-1406-MI-263

Finding the evidence did not support the trial court’s ruling, the Indiana Court of Appeals tossed a visitation order in favor of the maternal grandparents.

Timothy and Anita Schmidt filed a petition for grandparent visitation to see their granddaughter, H.B. Adam Burris, H.B.’s father, had been awarded sole custody after the mother was found to be unfit because of alcohol abuse and instability.

However, the mother was allowed to visit H.B. three times a month and the grandparents could visit her once a month. Also, the grandparents were allowed to attend H.B.’s sporting events and Burris permitted H.B. to attend some special family functions with the grandparents.

The Warrick Superior Court granted the petition, drawing a key conclusion that Burris would not permit the grandparents to see their granddaughter without a court order. Burris appealed, arguing the evidence does not support the trial court’s conclusion.

The Court of Appeals agreed and reversed the trial court’s order.

The appellate court ruled the trial court had contradicted itself when it found, on the one hand, Burris would permit the grandparents to visit under his supervision but then it concluded Burris would not allow the grandparents to visit without a court order.

Pointing to Neuhoff v. Ubelhor (In re C.S.N.), 14 N.E.3d 753, 762 (Ind. Ct. App. 2014), the Court of Appeals said judicial intervention is more likely to infringe upon the parent’s fundamental right when the disagreement between parent and grandparent is over the scope of the visitation.

“That is, where the dispute ‘is not whether [H.B.] and [the Grandparents] will have a relationship but on whose terms it will be, there is no need for court intervention into [Father’s] decisions as a fit parent,’” Judge Edward Najam wrote for the court. “Thus, as the trial court found first that Father did not deny the Grandparents visitation altogether, but merely restricted the scope of such visitation, the trial court’s conclusions to the contrary are clearly erroneous.”
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Nov. 26

Guardianship – Visitation Evaluation

In Re: The Guardianship of C.R. and A.R., E.R. v. M.S. and D.S.

79A05-1404-GU-176

A trial court that expressed in the record reservations about the legal status of granting a visitation evaluation sought by grandparents of children in the care of another grandparent had those doubts confirmed when the Court of Appeals reversed.

E.R. is the paternal grandfather of two children with whom maternal grandparents were seeking a visitation order. Those grandparents asked for a visitation evaluation, which Tippecanoe Circuit Special Judge Benjamin Diener granted with reservations.

“I think we are probably exceeding the scope of what grandparent visitation is and can be, but we will run that risk and then we will make findings and enter orders later,” Diener said in granting the visitation evaluation over E.R.’s objection.

The appeals panel in a 10-page order found the trial court order was contrary to the clear language of I.C. 31-17-2-12, which says only parents or their custodians may request such evaluations.

“It is not this court’s place to provide grandparents with a newfound right to request psychological evaluations for their grandchildren against the wishes of the parents,” Judge Cale Bradford wrote for the panel. “Should the legislature wish to provide grandparents that power, it can do so at any time.”

“Accordingly, we find that Grandparents did not have standing to petition the trial court for a parenting time evaluation and that the trial court did not have the authority to order such an evaluation sua sponte. Because there was no authority to order the evaluation, we need not address whether the evaluation was in the best interest of the Children,” the panel held.

“We reverse the portions of the trial court’s March 20, 2014 order concerning the visitation study. … The provisions of the order concerning Grandparents’ visitation time with the Children are unaffected by this decision.”
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Dec. 2

Mortgage Foreclosure – Default Judgment/Excusable Neglect

The Huntington National Bank v. Car-X Associates Corp.

64A04-1405-MF-227

The bank that promises customers 24-hour grace overdraft protection received more than 20 days grace in an Indiana Court of Appeals ruling.

A divided appeals panel reversed default judgment a trial court entered against Huntington National Bank in a mortgage foreclosure case. The majority held the bank’s failure to timely respond to a lawsuit from another creditor was excusable neglect because the person who normally handled court notices was on maternity leave.

Huntington held a first mortgage on property in Porter County owned by Susanne and Terry Wood. That loan was made in 2005 in an original principal amount of $310,500. Car-X Associates Corp. also had an interest in the property and earlier this year sued to foreclose a judgment lien in the amount of $200,359.90 plus fees and costs.

The trial court granted default judgment against Huntington in favor of Car-X after Huntington didn’t file a responsive pleading within the timeframe established under Trial Rule 6(E). The court later denied Huntington’s motion to set aside the default judgment.

“Finding that Huntington has established that it was entitled to relief from the default judgment by demonstrating excusable neglect and a meritorious defense, we conclude the trial court abused its discretion in denying Huntington’s Trial Rule 60(B)(1) motion to set aside the default judgment,” Judge Elaine Brown wrote for the majority joined by Judge Cale Bradford.

Dissenting Judge Michael Barnes wrote that he understood the majority’s reasoning but disagreed with it.

“One employee’s maternity leave is not such a circumstance and should not be used as an excuse for delaying judicial proceedings beyond the clear deadlines set by our Trial Rules, especially where a large and sophisticated party such as Huntington is concerned,” Barnes wrote. “I would defer to the trial court’s exercise of its discretion in this matter, and I vote to affirm its denial of Huntington’s motion for relief from judgment.”

Post Conviction – Intimidation/Ineffective Counsel

Kevin Soucy v. State of Indiana

25A05-1406-PC-276

A mother’s refusal to convey her son’s threats of harm possibly saved the man from violating Indiana’s intimidation statute.

While incarcerated in Fulton County Jail, Kevin Soucy was charged with two counts of intimidation as Class D felonies. He made several phone calls from the jail to his mother repeatedly asking her to relay the threats to a woman whom he blamed for having him arrested.

The state claimed that Soucy had violated the state’s intimidation statute, Indiana Code 35-45-2-1(a), by threatening to kill the woman and burn down her house.

Soucy eventually pleaded guilty and was sentenced to an aggregate sentence of six years. A little more than a year later, he filed a petition for post-conviction relief. He argued his court-appointed counsel was ineffective because she did not realize the threats were never communicated directly to the woman. Instead, Soucy told his mother to convey his harmful intentions, but his mother never did.

He asserted because his mother did not relay his threats to the woman, he did not violate the state law. But he pleaded guilty since his counsel failed to advise him of a potential defense against the charges.

The post-conviction court rejected his argument and denied his petition, but the Indiana Court of Appeals reversed, finding Soucy has established the probability he would have prevailed at trial.

The state countered that Soucy clearly intended for the threats to be conveyed to the woman and he had reason to believe the threats would be communicated.

Taking a plain reading of the statute, the Court of Appeals rejected that contention since the law requires the threat actually be communicated rather than the defendant intend for the threat to be relayed.

The Court of Appeals ruled Soucy is entitled to post-conviction relief on the grounds of ineffective assistance of counsel.

Civil Tort – Retaliatory Firing/Evidence

Beverly S. Stillson v. St. Joseph County Health Department

20A03-1406-CT-191

A nurse fired from a St. Joseph County clinic that treated patients with sexually transmitted diseases may go forward with a lawsuit claiming her termination was in retaliation for expressing concern that treating undiagnosed patients went beyond her scope of practice.

The Indiana Court of Appeals reversed summary judgment in favor of the St. Joseph County Health Department and remanded Beverly S. Stillson’s complaint to Elkhart Superior Judge Evan S. Roberts.

The record shows Stillson inquired multiple times about department policies and procedures in treating patients who claimed they had been exposed to STDs by their partners. The trial court granted summary judgment after the county said Stillson’s firing followed a series of disciplinary problems.

But the appeals panel found that part of the disciplinary record included Stillson’s refusal to administer a shot of penicillin to a patient who had not been diagnosed, based on a nursing director’s assumption that the patient had primary rather than latent syphilis.

“The facts are sufficient to raise a genuine issue of material fact as to whether (the health department’s) true motive for terminating Stillson’s employment was her refusal to treat patients without diagnoses being made or to otherwise exceed the scope of her nursing license,” Judge Edward Najam wrote for the panel.

“(T)he question of retaliatory motive is a question properly for the trier of fact.”
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Dec. 4

Miscellaneous – Change of Gender

In Re Petition for Change of Birth Certificate

79A03-1403-MI-91

The birth certificate of a person who was born a woman but now identifies as a man and has undergone extensive medical treatment for gender transition should be changed to show he is male, the Indiana Court of Appeals ruled.

A Tippecanoe County man asked the court to grant his petition for change of gender, which is required to change a birth certificate. He had begun living as a male in 2011 and later completed sex reassignment surgery. All other important documents in his life reflected his male gender except for his birth certificate. The trial court denied the petition, believing it did not have authority to grant the request since the General Assembly had not yet spoken on the issue.

“I.C. §16-37-2-10 provides general authority for the amendment of birth certificates, without any express limitation (in the statute or elsewhere) regarding gender amendments. In light of this statute, as well as the inherent equity power of a court of general jurisdiction, we conclude that the trial court had authority to grant the petition at hand,” Judge Ezra Friedlander wrote.

“The legislature is free to craft specific requirements. Without such guidance, however, it is our view that the ultimate focus should be on whether the petition is made in good faith and not for a fraudulent or unlawful purpose. There can be no question in this case that Appellant made an adequate showing in support of his petition. He presented ample medical evidence regarding his gender transition, which culminated in sex reassignment surgery. Moreover, Appellant’s genuine desire to have all identifying documents conform to his current physical and social identity is apparent.”

The case is remanded for the trial court to grant the petition and issue an order directing the Indiana State Health Department to amend the birth certificate to reflect his male gender.

Civil Tort – Underage Drinking/Liability

Albert C. Gentry, II v. Nora Day, and Sean Bloomquist; Nora Day v. Sean R. Bloomquist

32A01-1406-CT-226

The Indiana Court of Appeals reversed summary judgment in favor of a Pittsboro man in a lawsuit alleging he was liable for the death of friend because he furnished alcohol at a party. The friend died in a car accident while riding with another teen who had consumed alcohol at the party.

In 2012, 18-year-old Sean Bloomquist threw a party at his father’s home while his father, stepmother and older brother were away. Bloomquist, Nathan Gentry and Andrew Gaddie gave money to 19-year old Dustin Stamm to buy alcohol. Stamm purchased a case of beer, which was left in the open trunk of his car during the party. Seventeen-year-old Christopher Hubbard arrived later at the party and he drank some of the beer. The next morning, he and Gentry left to drive another partygoer to softball practice. Hubbard’s car struck a tree and Gentry died as a result of the collision.

Gentry’s father, Albert C. Gentry II, sued Bloomquist, alleging he was liable for his son’s death because he furnished alcohol to Hubbard with actual knowledge that Hubbard was visibility intoxicated and the intoxication was a proximate cause of Nathan Gentry’s death. The trial court granted Bloomquist’s motion for summary judgment.

The COA reversed and remanded for further proceedings because there is a genuine issue of material fact as to whether Bloomquist furnished the alcohol to Hubbard. The judges found Brattain v. Herron, 159 Ind. App. 663, 309 N.E.2d 150 (1974), to be instructive. In that case, Brattain, the older sister of 20-year-old Farmer, allowed Farmer and his friend to drink her alcohol while in her house. They later drove home and collided with a pickup truck, resulting in the death of three of its occupants. The court found Brattain violated the statute by providing alcohol to people under 21.

“Bloomquist did not personally purchase the beer, but he contributed money for the beer. Like Brattain, Bloomquist allowed Hubbard, his guest, onto the premises and gave him permission to drink the beer, which was kept in a car trunk on the premises. At the very least, conflicting inferences could be drawn regarding whether Bloomquist was the active means by and through which the beer was placed in Hubbard’s custody and control,” Judge Terry Crone wrote.

Civil Plenary – Zoning

Caddyshack Looper, LLC v. Long Beach Advisory Board of Zoning Appeals

46A03-1404-PL-110

The Indiana Court of Appeals has reversed the portion of a trial court’s order that affirmed the decision by a board of zoning appeals denying a company’s request for a variance which allowed its newly completed seawall to remain intact. The judges found Caddyshack Looper LLC demonstrated that strict application of the setback requirement will result in practical difficulties.

After a severe storm in December 2010 sheared a portion of Caddyshack’s property facing Lake Michigan and created several cliffs, Caddyshack decided to construct a seawall. The clerk-treasurer of Long Beach in Porter County issued a building permit to Caddyshack. During construction, a Long Beach inspector never brought up that the seawall was located further than 106.6 feet from the zoning lot line. It wasn’t until the seawall was complete that the building commissioner for the town notified Caddyshack that the construction violated a town ordinance.

Caddyshack then filed a petition for a variance to extend the seawall beyond the 106.6 foot setback, but the BZA denied the petition. It found the use and value of the area adjacent to the property would be adversely affected, the contractor should have known it was constructing the seawall in violation of the ordinance, and that the seawall could have been built within the setback.

Caddyshack asked for judicial review, where the judge found no evidence that Caddyshack should have known the building permit was invalid as the BZA held. The judge also found there was no evidence that adjacent properties’ values would be affected by the seawall. But the judge did find that the BZA had sufficient evidence to find that the denial of the variance would not result in practical difficulties.

It was on this point that the COA reversed.

“Based upon the evidence before the BZA, we conclude that Caddyshack demonstrated that strict application of the setback requirement will result in practical difficulties in the use of the property under Ind. Code § 36-7-4-918.5(3),” Judge Elaine Brown wrote. “Further … we do not disturb the findings of the trial court with respect to subsections (1) and (2) of Ind. Code § 36-7-4-918.5.”

The evidence shows substantial removal or relocation costs for Caddyshack, ranging from $245,000 to nearly $300,000. The judges noted that Caddyshack did not attempt to get a variance before construction, but it was issued a permit by the clerk-treasurer and the building inspector never raised the issue of the setback during most of construction. There were also no feasible alternatives for the location of the seawall, the judges found.

The COA remanded for any necessary proceedings consistent with the opinion.
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Dec. 8

Post Conviction – Ineffective Assistance of Counsel

Brian S. Adcock v. State of Indiana

47A01-1407-PC-283

The Indiana Court of Appeals reversed a man’s convictions of Class A felony child molesting and Class B felony sexual misconduct with a minor based on his sexual advances toward his stepdaughter when she was in junior high and high school. The judges acknowledged as a result of their decision, the stepfather won’t face any legal consequences for those actions, but the state had a duty to present sufficient evidence to support those convictions.

Brian Adcock was convicted to two counts each of the felony child molesting and sexual misconduct with a minor in September 2009 after a jury trial. L.P was 20 at the time of the trial when she testified. The child molesting charges were based on incidents that took place when L.P was under 14 years of age in junior high; the sexual misconduct charges relate to when she was in high school.

Adcock directly appealed, but the COA affirmed his convictions, noting Adcock did not challenge the sufficiency of the evidence. He later sought post-conviction relief, contending he received ineffective assistance of trial and appellate counsel. The PCR court denied relief.

The COA focused on his appellate counsel claims, which argued his attorney should have challenged the sufficiency of the evidence on all counts. His appellate counsel said they had not considered moving for directed verdicts or challenging the sufficiency of the evidence on appeal, but believed there was in fact insufficient evidence on all the convictions.

When then Court of Appeals looked at the trial record, the judges found it littered with issues. L.P. couldn’t recall whether she was 13 or 14 when Adcock digitally penetrated her vagina. This is important because if she was 14, Adcock would have to have been charged with the less serious crime of Class B felony sexual misconduct of a minor, not Class A felony child molesting.

In addition, any charges against Adcock for sexual misconduct with a minor occurring before May 21, 2003, would have been time-barred by the five year statute of limitations since the state filed its information on May 21, 2008. Again, L.P. could not testify exactly when certain acts occurred on or after May 21, 2003, which would have been at the end of her eighth grade year.

“[W]e conclude appellate counsel, for no apparent strategic or tactical reason, overlooked significant and obvious problems with the sufficiency of the evidence supporting each of Adcock’s convictions. If such arguments had been made, there is more than a reasonable probability that they would have been successful; we would have been required to vacate each of the convictions. And, because those vacations would be based upon insufficient evidence, the State would be precluded by the Double Jeopardy Clause from retrying Adcock,” Judge Michael Barnes wrote. “We also conclude that these sufficiency problems are stronger than the issues appellate counsel actually raised on direct appeal. As such, Adcock received ineffective assistance of appellate counsel as a matter of law, and his convictions must now be vacated.”
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Dec. 9

Criminal – Traffic Stop/Reasonable Suspicion

Kolyann Williams v. State of Indiana

34A02-1406-CR-418

A police officer was mistaken when he pulled over a vehicle that, due to a broken tail light, emitted more white light than red light, the Indiana Court of Appeals ruled. The statute only requires that some red light be visible, which occurred in this case.

Kokomo Police Officer Jeff Packard pulled over Koylann Williams’ car when he saw one of the tail lamps on the vehicle had a hole and was emitting white light. He testified that a “miniscule” amount of red light was emitting from the outer rim of the tail lamp.

As Packard approached the car, he smelled marijuana. A canine officer indicated the presence of drugs in Williams’ vehicle, and Williams admitted he had plastic bag of marijuana in his pocket. He was charged with and convicted of Class A misdemeanor marijuana possession.

Williams argued that all the evidence collected as a result of the traffic stop must be suppressed because the stop was illegal. The trial court denied his motion to suppress.

Ind. Code 9-19-6-4 says that a registered motor vehicle in Indiana must have at least two tail lamps mounted on the rear that, when lighted, emit a red light plainly visible from at least 500 feet.

“Our review of the record leads us to conclude that the evidence does not establish a violation of Indiana Code section 9-19-6-4. While Officer Packard did testify that the white light emanating from the tail lamp was ‘significant’ and overwhelmed the red, he never testified that the red light was not plainly visible,” Judge Cale Bradford wrote. “The plain language of section 9-19-6-4 does not only not prohibit colors of light other than red, it does not even prohibit those other colors from being the predominant color. So long as some red light is plainly visible at a distance of 500 feet from at least two tail lamps, there is no violation of section 9-16-6-4. In any event, the record does not establish that Officer Packard ever observed Williams’s vehicle from the required 500 foot distance, as his testimony was only that observed the vehicle from a distance of anywhere from 300 to 700 feet.”

Criminal – Possession of Syringe

Stuart Bookwalter v. State of Indiana

79A04-1402-CR-69

Because the state couldn’t prove that a man intended to use a syringe to inject a legend drug, as is required by the statute to convict him of possession of a syringe, the Indiana Court of Appeals reversed the man’s conviction. The man intended to use the syringe to inject heroin, which is not covered by the statute.

Lafayette police arrested Stuart Bookwalter after he and a friend prepared to inject heroin that Bookwalter had purchased in Illinois. Police were monitoring Bookwalter’s travels to and from the Chicago area. A search of his car recovered 18 grams of heroin and several syringes. Bookwalter was charged with dealing in a narcotic drug, possession of a syringe and possession of paraphernalia.

He was found guilty as charged and found to be a habitual substance offender.

Bookwalter claimed that he could not be convicted of possession of a syringe because the evidence shows he intended to inject heroin as opposed to a legend drug. To convict him under I.C. 16-42-19, the state had to prove beyond a reasonable doubt that Bookwalter possessed, with intent to violate the Legend Drug Act, a hypodermic syringe or needle for use of a legend drug by injection in a human being.

“[T] he expressed purpose of the Legend Drug Act is to supplement Indiana’s statutory scheme related to food, drug, and cosmetics safety, and most provisions of the Act pertain to the use of legend drugs, insulin, and anabolic steroids. Without reference to the use of a legend drug, insulin, or anabolic steroids, we cannot discern what it means to intend to violate the Legend Drug Act,” Judge L. Mark Bailey wrote.

Given the Act’s ambiguity, the COA must construe the statute in favor of Bookwalter to conclude that intent to inject heroin is not fairly covered by the Legend Drug Act’s definition of possession of a syringe.

In addition to reversing Bookwalter’s syringe possession conviction, the judges ordered his conviction of possession of a narcotic drug reversed based on double jeopardy concerns. The possession of a narcotic drug conviction and the dealing in a narcotic drug conviction were based on the same evidence.

There is sufficient evidence to uphold the Class A felony dealing in a narcotic drug conviction, the judges ruled. The case is remanded for further proceedings.•