Indiana Court Decisions – Jan. 21 to Feb. 3, 2015

7th Circuit Court of Appeals

Jan. 29

Criminal – Sentencing

United States of America v. Anthony Bailey

13-3229

The 7th Circuit Court of Appeals reversed the denial of a prisoner’s motion for a reduced sentence for distributing crack cocaine, finding that he is allowed to bring his petition for relief under 28 U.S.C. Section 2255.

Anthony Bailey pleaded guilty in 2011 to distributing crack cocaine and agreed to a 240-month sentence. The agreement allowed for Bailey to seek a sentence modification if Congress or the Supreme Court later determined the Fair Sentencing Act of 2010 should apply to cases like his. He committed his crime before the Act took effect but was sentenced after it was in place. When the Supreme Court of the United States decided Dorsey v. United States, 132 S. Ct. 231 (2012), holding that the FSA should apply to cases like Bailey’s, Bailey sought a reduced sentence. The District Court denied relief under 18 U.S.C. Section 3582(c)(2).

The judges decided that Bailey’s motion is best understood as a petition for relief under 28 U.S.C. Section 2255, the general post-conviction remedy for convicted federal prisoners, for a sentence that was imposed contrary to the law.

“Bailey was sentenced on the mistaken belief that federal law required a 20-year mandatory minimum sentence. That view was certainly understandable. It was consistent with this circuit’s law at the time,” Judge David Hamilton wrote. “Nevertheless, the Supreme Court’s decision in Dorsey shows that was a mistake and that the statutory minimum was 10 years.”

“We acknowledge that the issue we decide is not the issue as the case was presented to the district court. It would be easy to find that Bailey had waived or forfeited reliance on §2255. Even so, in the interest of justice we have discretion to relieve Bailey from his forfeiture or waiver.

“This is an appropriate case to exercise that discretion. The procedural issues have been challenging for Bailey’s capable counsel, and both sides recognize that when they entered the plea agreement, they meant for Bailey to have an opportunity to benefit from the FSA if Dorsey were to be decided in his favor. We commend the government for its fair-minded approach to the case, for its focus on having Bailey’s sentence decided on the merits, and for its decision to forgo reliance on possible procedural obstacles to Bailey’s motion,” he wrote.

The judges ordered the District Court to hold a new sentencing hearing and expressed no opinion on what the appropriate sentence is in this case.

Indiana Supreme Court

Jan. 22

Civil Plenary – Workers’ Comp/Contractor

Jason Young v. Hood’s Gardens, Inc.

29S02-1405-PL-314

The “value” attributable to the performance of work that triggers secondary liability under the Worker’s Compensation Act includes both direct monetary payment as well as any ancillary consideration received for the work, the Indiana Supreme Court ruled in a case of first impression.

The justices had to decide whether Hood’s Gardens Inc. was liable for the injuries of subcontractor Jason Young, who was hired to remove a tree from the company’s property, and in the course of the work was severely injured and rendered a paraplegic. Hood’s Garden hired Discount Tree Extraction to remove the tree at a cost of $600. As part of the job, Discount Tree Extraction would keep the wood, which it intended to sell.

Hood’s Gardens did not verify that Discount Tree had workers’ compensation insurance, which it did not. Under I.C. 22-3-2-14(b), Hood’s Gardens becomes secondarily liable when a contract for work exceeds $1,000 in value. Hood’s Gardens argued that the contract price was $600, so it is not liable; Young claimed the value of the contractor’s work also included the price of the firewood, which would be more than $400, setting off Hood’s Gardens’ liability.

Section 14(b), which the justices found is ambiguous, shows the legislative intent to enhance the availability of workers’ compensation benefits for workers injured during their employment with employers not providing such coverage, Justice Brent Dickson wrote. It also incentivizes people who hire companies to seek those who can pay workers’ compensation benefits.

“Failure to obtain a certificate showing that an employer is able to provide worker’s compensation by insurance or by the employer’s own financial ability to pay benefits exposes the person engaging the employer to full liability for worker’s compensation benefits for any of the employer’s workers injured in the course of the work. This legislative objective is best served by interpreting Section 14(b) to trigger secondary liability for worker’s compensation benefits at the lowest threshold, that is by permitting the $1,000 trigger to be satisfied by both direct monetary payment as well as any ancillary consideration received by the employer for the work,” Dickson wrote.

Because Hood’s Gardens failed to designate evidence that the value of the wood received plus the $600 paid did not exceed $1,000, and the plaintiff designated testimony that the value of the wood triggered the $1,000 threshold, summary judgment should not have been granted to the business.

The justices reversed summary judgment for Hood’s Gardens and remanded for further proceedings.

Indiana Tax Court

Jan. 30

Tax – Witnesses/Handwritten Notes

Brandenburg Industrial Service Co., an Illinois Corp. v. Ind. Dept. of State Revenue

49T10-1206-TA-37

Two pages of handwritten notes prepared by an Indiana Department of State Revenue employee must be turned over to an Illinois company challenging the denial of four refund claims, the Indiana Tax Court held.

Brandenburg Industrial Service, which is based in Illinois, occasionally stores some of its equipment and consumable items in a Gary facility. After paying nearly $150,000 in sales/use tax in Indiana on those items in the 2006 and 2007 tax years, it sought refunds. At first, the IDSR granted the first and third claims and denied the second and fourth; later, it claimed the refunds were granted in error and that Brandenburg needed to repay them.

Brandenburg appealed, and now asks the Tax Court to intervene regarding one interrogatory and one request for documents that the revenue department has not completed. In the interrogatory, the company seeks the IDSR to identify each person it intends to call as a non-expert witness in the matter. Ultimately, the department identified its audit review supervisor, but no one else. In the request for production, Brandenburg seeks two pages of handwritten notes made by an employee that the department refuses to turn over. The department claims disclosure is unnecessary because they are not relevant to the subject matter of the case and even if they were, they are shielded from discovery pursuant to the deliberative privilege process and the work-product privilege.

Judge Martha Wentworth disagreed with the department regarding the notes, writing that they may contain information about its rationale for denying Brandenburg’s first and third refund claims. They could also possibly lead to admissible trial evidence with respect to Brandenburg’s allegation that proposed assessments were untimely issued.

She rejected the department’s claim that the deliberative process privilege protects the notes from discovery because that privilege does not exist in Indiana. They are also not protected by the work-product privilege because they are commonplace documents prepared by an employee during the ordinary course of the department’s general administrative duties.

Wentworth did deny Brandenburg’s request regarding the non-expert witness inquiry, finding the department adequately answered the interrogatory. Because the facts do not show that the department knew of any other witnesses when it answered the interrogatory, it is not required to do more at this time.

Indiana Court of Appeals

Jan. 22

Civil Tort – Insurer Duty to Defend/Third-Party Complaint

Arthur Barnard III v. Menard, Inc.; Menard, Inc., and Blue Line LP, Inc. v. Capitol Specialty Insurance Corp.

49A02-1407-CT-486

A trial court incorrectly granted summary judgment in favor of a loss prevention company’s insurer over whether it had a duty to defend a Menard customer’s lawsuit stemming from actions of the loss prevention specialist.

Arthur Barnard sued Menard Inc. and Blue Line LP Inc., alleging he was physically attacked by a loss prevention officer outside an Indianapolis Menard store. The officer suspected Barnard stole something from Menard. Menard and Blue Line filed a third-party complaint against Blue Line’s insurer, Capitol Specialty Insurance Corp., invoking the insurer’s duties to defend and indemnify.

Menard contracts with Blue Line to provide security services. Blue Line’s insurance policy also covers Menard.

The trial court granted summary judgment in favor of Menard on Barnard’s complaint and in favor of Capitol on the third-party complaints.

Summary judgment in favor of Menard was proper, the COA held. It agreed with the lower court that the actions allegedly taken by Blue Line’s loss prevention officer were not reasonably foreseeable by Menard, so it did not breach any duty owed to Barnard as a business invitee on the premises. The appeals court also noted it was a close call, but Blue Line is an independent contractor of Menard, so Menard, as principal, is not liable for the negligence of its independent contractors.

But the lower court erred in granting summary judgment in favor of Capitol based on the policy’s assault and battery exclusion, Judge John Baker wrote.

Barnard claims the loss prevention officer followed him to his car, grabbed his arm, and slammed him against his vehicle, causing injuries. He also said he was slandered and detained longer than he should have been after the office suspected him of stealing a hasp worth $1.99.

While the policy does exclude the physical altercation described by Barnard, the judges pointed out that Barnard also raised several alternate theories of liability, including being slandered and falsely accused of theft and detaining him longer than allowed by statute.

“While Capitol does not have a duty to defend or indemnify Menard or Blue Line with respect to the allegations of battery, there is no such exclusion applied to his claims of false imprisonment or slander,” Baker wrote.

Whether the insurer is responsible for a portion of the damages, if any, will have to be determined at a later date, he noted. The matter is remanded for further proceedings.
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Jan. 23

Protective Order – Extension/Civil Protective Order Act

J.K. v. T.C.

64A05-1406-PO-259

A trial court had insufficient evidence to extend a protective order a woman sought against her ex-husband, the Indiana Court of Appeals ruled in reversing the order.

J.K. continued to live two doors down from his ex-wife, T.C., in a Chesterton townhouse community after they divorced in 2008. When T.C. told J.K. she wanted a divorce in 2007, she claims he choked her with his forearm, causing her pain and to fear for her life. She got a protective order and has renewed two-year-long protective orders since.

The COA noted, though, that there was no testimony about the choking allegation at the original P.O. hearing. The account comes from T.C.’s most recent petition in which a five-year protective order was granted to T.C. ex parte last March, and which J.K. challenged.

The protective order barred J.K. from contacting or coming near T.C., going to a K-Mart store in Chesterton or Chesterton High School. It also forbade him from possessing firearms.

The COA noted that Porter Superior Judge Julia Jent told J.K.’s attorney at a hearing challenging the order, “The original basis is still there counsel. Look at the statute. There is no statute of limitations. If it happened ten years ago we can issue it still. Okay?”

Appellate Judge Michael Barnes disagreed. “We do not believe the legislature intended that protective orders can be reissued, renewed, or extended ad infinitum based solely upon evidence related to the protective order’s initial issuance, contrary to the trial court’s belief,” he wrote.

In reversing, the Court of Appeals cited its recent decision, A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014), which held an extension of a protective order “must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance,” and that “the extension must be equally supported by a court’s conclusion that such additional time, in excess of the statutorily two-year approved extension, is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence.”

The panel also concluded that the Civil Protective Order Act under I.C. § 34-26-5 places the burden on the petitioner to prove by a preponderance of the evidence that a P.O. should be extended. The panel also was troubled that the court cited the protective order as the reason there had been no instances of domestic violence since the choking allegation. “(I)t places a respondent in a no-win situation if full compliance with a protective order can be a basis for extending the order or issuing a new one,” Barnes wrote.

“We conclude that J.K. has demonstrated prima facie error. On the slim record before us, there simply is insufficient evidence that there is a proper basis for issuing a new, five-year protective order against J.K. … If T.C. believes such evidence exists, she may file another request for a protective order, and the trial court may issue one after conducting a hearing at which the burden of proof is placed upon T.C. and at which both parties have the opportunity to present evidence and cross-examine witnesses,” the panel concluded.

Civil Tort – Duty of Care/Contractor

Adam Nagel and Emily Nagel v. Northern Indiana Public Service Company

45A03-1403-CT-103

A man who sustained life-changing injuries from a workplace accident is entitled to have his day in court to present his claims to a jury, the Indiana Court of Appeals ruled.

The Court of Appeals reversed the order of summary judgment in favor of the defendant. In a footnote, the appellate court noted although there are discrepancies in the plaintiff’s account of the accident, they are for a jury to address.

Adam Nagel, as an employee of ThyssenKrupp Safeway Inc., was on the crew to construct a scaffold attached to a cooling tower at the NIPSCO power plant in Chesterton. The parts for the project were placed near a silo that collected fly ash. Semi-tractors pulling tanker trailers frequently got very close to the parts.

What happened to Nagel is not exactly known, but co-workers found him face down on the ground unconscious and severely injured. Nagel’s recollection is that he was looking for a part when he glimpsed a truck tire and then felt something strike him.

He was in a coma for six weeks and continues to suffer from serious mental and physical problems.

NIPSCO argued to the Court of Appeals that it did not owe a duty of care to Nagel because he was an independent contractor working on its premises.

Pointing to Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind. 2004), which held there was a genuine issue of material fact to be decided by a jury as to who controlled the property at the time and place of the accident, the Court of Appeals ruled the Nagels’ claims should be heard by a jury.

NIPSCO had control not only of the staging area where the parts were stored but also of the road and traffic flow at the power plant, the court stated. NIPSCO would have “reasonably expected” Nagel to walk in the vicinity of the parts, and the power company knew about the danger of the location.

“Finally, even if the danger here was obvious (to Nagel), it is a question of fact as to whether NIPSCO could or should have done more to reduce the danger, i.e., by directing Safeway to move the parts rack to a safer location and/or by instituting better road design or traffic control methods, at least while Safeway’s work in the vicinity of the fly ash silo was ongoing,” Judge Michael Barnes wrote for the court. “NIPSCO was not entitled to summary judgment on the basis that the danger here was allegedly obvious and thus there was no breach of duty to Adam.”
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Jan. 27

Criminal – Dealing Synthetic Drug (Spice)

Christopher Tiplick v. State of Indiana

49A04-1312-CR-617

Aadil Ashfaque v. State of Indiana

49A02-1404-CR-286

Divided Court of Appeals panels found Indiana’s “spice” law void for vagueness in two separate cases.

In Christopher Tiplick v. State of Indiana, 49A04-1312-CR-617, a panel found synthetic drug statutes unconstitutional as applied to the owner of three Indianapolis Smoke Shop locations who was indicted for dealing synthetic drugs.

Christopher Tiplick was accused in an 18-count indictment of numerous felony charges including possessing and dealing synthetic drugs. Tiplick appealed a Marion Superior Court’s denial of his motion to dismiss 11 counts, and a majority of a Court of Appeals panel reversed on interlocutory appeal, dismissing those counts.

Writing Judge Melissa May and concurring Judge James Kirsch focused on the statutory scheme in which dozens of banned synthetic drugs are identified in the Indiana Code, and additional compounds may be declared a synthetic drug by pharmacy board rulemaking.

“Tiplick argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because their numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person. … We agree,” May wrote.

“As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts (7-18), and we hold those statutes are unconstitutionally vague based on the definition of ‘synthetic drug’ set forth in Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Tiplick’s motion to dismiss those charges.”

Tiplick was indicted after he allegedly sold a synthetic drug called XLR11. The drug was not listed as a synthetic drug under I.C. §§ 35-31.5-2-321(1-8) at the time of the alleged sales, the majority held, and the pharmacy board shortly before had declared XLR11 a “synthetic substance” by emergency rule, but not a “synthetic drug.”

“While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language. For example, the Pharmacy Board may declare a new chemical concoction used to treat a deadly disease a ‘synthetic substance’ and such a declaration would not invoke the criminal consequences as would the Pharmacy Board’s declaration of something as a ‘synthetic drug,’” May wrote.

“To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a ‘Where’s Waldo’ expedition is ludicrous,” the majority held.

Dissenting Judge L. Mark Bailey took exception with that characterization.

“It seems to me that Tiplick’s void-for-vagueness challenge is more akin to an attempt to claim ignorance of the law as a defense to criminal liability,” Bailey wrote.

“Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of the sale of XLR11 on the basis of vagueness.”

In Aadil Ashfaque v. State of Indiana, 49A02-1404-CR-286, a separate panel reached a similar conclusion, reversing a trial court’s denial of Aadil Ashfaque’s motion to dismiss Class D felony charges of dealing in a synthetic drug and possession of a synthetic drug after XLR11 was found in his vehicle after a traffic stop.

Again writing for the majority joined in this case by Judge Ezra Friedlander, May writes that Ashfaque argues the statutes “are void for vagueness because ‘[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.’ … We agree.

Court of Appeals Chief Judge Nancy Vaidik dissented in Ashfaque, aligning her dissent with Bailey’s in Tiplick.

“Because I do not believe that the statutory scheme that was in effect at the time of Ashfaque’s alleged crimes for dealing in and possession of synthetic drugs is void for vagueness, I respectfully dissent and would affirm the trial court’s denial of Ashfaque’s motion to dismiss the dealing and possession counts,” Vaidik wrote.
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Jan. 28

Civil Plenary – Teachers/Wage Negotiation

Ind. Education Employment Relations Board and Nettle Creek School Corp. v. Nettle Creek Classroom Teachers Assoc.

49A02-1402-PL-78

A dispute between a school corporation and teachers association that made its way before the Indiana Court of Appeals led to the court concluding the teachers may qualify for overtime for performing school-related duties outside of their normal teaching hours.

The Nettle Creek School Corporation and the Nettle Creek Classroom Teachers Association were unable to reach an agreement regarding the 2011-2012 school year contracts. Mediation also failed, so the two sides submitted their last best offers to the Indiana Education Employment Relations Board.

The teachers association initiated judicial review after the board adopted the school corporation’s LBO. In November 2013, the trial court found that the board erroneously determined that the relevant proffered provisions of the parties’ LBOs included an improper attempt to bargain hours rather than wages. The trial court also found that the board erroneously concluded that the teachers association’s LBO contained an improper attempt to bargain for an overtime compensation system that is inconsistent with both federal and Indiana law.

“[W]e interpret the law to provide that although the law does not allow for the receipt of overtime compensation by teachers related to their direct teaching functions, teachers are not necessarily excluded from receiving additional wages for required or agreed upon ancillary duties,” Judge Cale Bradford wrote.

“As such, we conclude that teachers may negotiate with their employers for the receipt of additional wages for these ancillary duties. In reaching this conclusion, however, we do not mean to say that a school corporation must compensate teachers for the ancillary duties, but only that the law allows that teachers may negotiate with their employers for additional compensation for said ancillary duties.”

On remand, the judges ordered the board to review the parties’ proffered LBOs taking into consideration the COA’s conclusion that the parties may negotiate for additional wages for required ancillary duties, i.e., duties that are required by the school corporation but are not considered to be direct teaching functions.

“We note, however, that in issuing this opinion, we do not mean to dictate any particular outcome to the Board. Our opinion merely sets forth the legal parameters under which the Board should consider the parties’ LBOs. The determination of which LBO to adopt as the parties’ contract is within the discretion of the Board so long as the Board’s decision is made in accordance with the legal parameters set herein,” Bradford wrote.

Criminal – Sentence/Consecutive Crimes

Brent Anthony Dimmitt v. State of Indiana

79A02-1406-CR-443

The convictions of a gang member stemming from his role in a bar fight were upheld by the Court of Appeals, but the judges ordered his sentence shortened because the convictions all occurred during a single episode of criminal conduct.

Brent Anthony Dimmitt got into a fight at Lafayette bar with a group of men. While inside the bar, he showed off his gang tattoos and told the other men that he was part of the Rebel Cause gang. The gang has a history of violence and attacking people. Two men were injured in the fight, one seriously.

Dimmitt was convicted of Class C felony battery, Class A misdemeanor battery, Class D felony criminal gang activity, and being a habitual offender. He was sentenced to consecutive sentences of eight years for felony battery, one year for misdemeanor battery, two years for criminal gang activity, and eight years for being a habitual offender, for a total of 18 years served and one year suspended to probation.

He claimed that the trial court committed fundamental error by failing to properly instruct the jury on the elements of a charge of criminal gang activity. But the judges found no fundamental error because there was no substantial harm to Dimmitt. The state provided substantial evidence with created a nexus between Dimmitt’s offenses and his furthering the goals of his criminal gang.

The appeals court ordered his sentence revised, however, because Dimmitt’s convictions stem from a single episode of conduct, so they should be capped at 10 years. And his habitual offender sentence should not be a separate count, but instead should be a sentence enhancement on the underlying felony conviction. The appellate court remanded for further proceedings to correct that issue as well as resentence Dimmitt to 10 years on his convictions instead of 11 years.

Juvenile – Illegal Search/Drugs/Weapons

N.S. v. State of Indiana

49A05-1407-JV-338

Because the physical evidence used to adjudicate a teen as delinquent was the direct result of an illegal search of his backpack by police, the Indiana Court of Appeals reversed.

Police began an inventory search of a stolen car, which included a backpack found in the back seat where N.S. was seated when the stolen car was located. The backpack had a firearm and marijuana. The formal inventory search wasn’t completed because the car’s owner arrived at the scene and the car was released to him.

N.S. challenged the evidence and any derivative testimony as illegal under the Fourth Amendment. The juvenile court at first granted his motion to suppress because it found the search was illegal, but later allowed D.M., the driver when the stolen car was recovered, to testify regarding the contents of the backpack. After he testified, the court adjudicated N.S. for committing what would be dangerous possession of a firearm and possession of marijuana, as Class A misdemeanors, if committed by an adult.

“On the record before us, it is clear that the State obtained the physical evidence – the firearm and the marijuana – as a direct consequence of the illegal search of the backpack. These items were, consistent with our Indiana Supreme Court’s guidance in Pirtle, inadmissible,” Judge L. Mark Bailey wrote.

The State contended that D.M.’s knowledge of the contents of the backpack were independent of the backpack search, so they should be allowed.

“N.S. argues that D.M.’s own legal jeopardy allowed exploitation of the original illegality in this case. We agree, as no facts of record point to an intervening circumstance to clear the taint of the illegal search. D.M. did not, on his own initiative, direct officers to contraband. Rather, for a favorable plea bargain, he made an in-court identification of contraband he claimed to know that N.S. had possessed,” Bailey wrote. “Both the physical exhibits and D.M.’s testimony were fruit of the illegal search.”
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Jan. 29

Miscellaneous – Seized Funds

State of Ind., Consolidated City of Indianapolis/Marion Co., et al. v. El Rodeo #11, LLC

49A05-1406-MI-257

A Mexican restaurant that is part of a chain which has been under investigation by Marion and Tippecanoe county officials will not have insurance funds seized from a bank account returned, the Indiana Court of Appeals ruled.

The Tippecanoe County Prosecutor’s Office served a warrant in November 2013 for seizure of El Rodeo No. 11’s funds in a PNC bank, which consisted of nearly $1 million in insurance proceeds following a fire that destroyed the Greenfield location. After that prosecutor’s office obtained the funds, the Marion County Prosecutor’s Office got a court order to freeze the restaurant’s PNC account, but at that point the balance was zero.

Earlier this year, civil lawsuits were filed in Tippecanoe and Marion counties, accusing the owners of the El Rodeo restaurant chain and others involved with the business of illegally obtaining millions of dollars. The owners of the chain recently agreed to plead guilty to criminal theft charges and forfeit more than $4.5 million for failing to report accurate sales figures to the state.

El Rodeo No. 11 sought a return from Marion County of the $967,840.81 seized by Tippecanoe County officials. Marion County then filed a motion to dismiss the restaurant from its forfeiture complaint since the Tippecanoe County Prosecutor’s Office had possession of the money and also filed a forfeiture complaint against it.

The trial court denied Marion County’s motion to dismiss and granted the restaurant’s request that Marion County turn over the seized funds. On interlocutory appeal, the Court of Appeals reversed.

The money was seized by and located in Tippecanoe County when the Marion County Prosecutor’s Office sought forfeiture of it; therefore, it could not meet the statutory requirements for filing a forfeiture complaint under I.C. 34-24-1-3 or 34-24-2-2, wrote Judge Paul Mathias. And because El Rodeo No. 11’s funds were not located in Marion County, the trial court should have granted the county’s motion to dismiss.

In addition, El Rodeo No. 11’s request for the seized funds is moot because Marion County cannot produce funds that it does not and never possessed, Mathias continued. Tippecanoe County is not a named party in the case, and the judges disagreed with the restaurant’s assertion that it does not matter which prosecutor’s office is holding the funds because the “agency holds it by and under the laws of the State of Indiana.”

The judges remanded for further proceedings, including instructions to grant Marion County’s motion to dismiss its forfeiture complaint.
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Feb. 3

Civil Tort – Personal Injury/Negligence

Nick Hunckler v. Air Sorce-1, Inc., Timothy Miller and Kelly A. Brannen

84A01-1405-CT-217

A negligence case involving a Terre Haute HVAC business and a man injured while helping move a furnace will move forward now that the Indiana Court of Appeals has reversed summary judgment in favor of the company.

Timothy Miller, the owner and sole employee of Air Sorce-1, delivered a new furnace to Kelly Brannen’s home. Nick Hunckler lived with Brannen at the time and was home when the furnace arrived. Miller asked Hunckler to help him move the furnace to the basement, and he agreed. Huckler was at the top of the stairs and when he attempted to get a better grip on the furnace and sliced his hands on metal edges. His injuries required several surgeries and left him with continued impaired use of his left hand.

Hunckler sued Miller and Air Sorce-1 for negligence, and the trial court granted the defendants’ motion for summary judgment. It determined that Hunckler was a volunteer and applied the volunteer duty of care as stated in Thompson v. Owen, 141 Ind. App. 190, 218 N.E.2d 351 (Ind. Ct. App. 1966).

Hunckler argued that Thompson does not apply to him because the case at bar is not a premises liability case, as was Thompson. That case involved a man injured while helping a neighbor start her father’s lawnmower on her property. Judges John Baker and James Kirsch – the majority in this case – questioned whether even Thompson is binding precedent as it was decided by a split panel of the COA at a time when the panel was made up of four judges. But, they decided to adopt an approach used by Michigan that abandoned the volunteer doctrine and returned this area of the law to traditional agency and tort principles.

“We will continue to rely on traditional tort and agency principles and, to the extent it was ever applied, abandon the volunteer doctrine. Therefore, it follows that ordinary negligence principles apply in the instant case. We find that there are genuine issues of material fact as to duty, causation, breach, and damages,” Baker wrote.

Judge Margret Robb agreed with her colleagues that summary judgment should be reversed, but wrote separately to address that the appeals court didn’t even need to discuss Thompson nor abandon the volunteer doctrine it espoused. It may not be binding precedent and the situation decided by Thompson is not the same situation as in Hunckler’s case.

Criminal – Drugs/Unreasonable Search

Antonio Garcia v. State of Indiana

49A05-1402-CR-61

A police officer had no reasonable suspicion to believe that a container found in a man’s pocket during an arrest held any illegal substances, the Indiana Court of Appeals ruled. As such, it reversed his Class D felony possession of schedule III controlled substance conviction, ruling it violated the Indiana Constitution.

Antonio Garcia was pulled over by an Indianapolis police officer for driving at dusk without headlights on and not signaling while moving from the travel lane. Garcia was cooperative with the officer. He did not have a valid driver’s license, so the officer arrested him for Class C misdemeanor driving without a license. During a pat-down search of Garcia, the officer found a small metallic cylinder in his pants. The officer believed the container could have legal or illegal pills in it. He opened it and discovered a hydrocodone/acetaminophen pill, for which Garcia did not have a valid prescription with him or in his car.

At his trial, Garcia provided evidence that a recently deceased aunt who lived with his family had a valid prescription for the pill and he had placed it in the cylinder so his 9-year-old son would not find it.

Garcia appealed his possession conviction, claiming the evidence found in the container was inadmissible because opening it was unreasonable under Article I, Section 11 of the state constitution. The appeals court agreed and reversed the conviction.

The judges looked at the three factors outlined in Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) – the degree of concern, suspicion or knowledge that a violation has occurred; the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and the extent of law enforcement needs. While the officer had probable cause to arrest Garcia for driving without a license, there is no evidence that the officer had any concern or suspicion that the container held anything that threatened his or the public’s safety, Judge Terry Crone wrote. There was also no reasonable suspicion that the cylinder contained any illegal substances.•