Opinions Nov. 30, 2015

Indiana Court of Appeals
In the Matter of S.M., J.M., A.M., H.G., Children in Need of Services, A.M. (Mother) v. The Indiana Department of Child Services
49A02-1505-JC-377
Juvenile. Reverses CHINS adjudication of S.M., J.M., A.M. and H.G. Finds no evidence that the children were ever in danger or ever lacked food, shelter or love and care. Although mother has a history of sporadic marijuana use, she has passed every drug test given by DCS and her substance abuse assessment did not recommend her for substance abuse treatment.  

Kent W. Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County v. Eric C. Gulden, Jeremy Crawford, David J. Klahn, et. al.
45A03-1503-MI-73
Miscellaneous. Reverses trial court grant of five defendants petitions for judicial review of BMV’s 10-year suspension of driver’s licenses based on determinations the defendants qualified as habitual traffic offenders. Majority Judges Patricia Riley and Robert Altice find that the dates of predicate offenses rather than the dates of judgments are determinative as to whether a person is a habitual traffic offender, and a procedural amendment adopted in 2012 requiring BMV to use the dates of the offense rather than dates of judgment is not an ex post facto violation. Dissenting Judge Elaine Brown would affirm the trial court’s determination that the change in statute as applied to the appellees is an ex post facto violation, as they would not have been deemed HTVs under the prior statute.  

Anna Wood v. D.W., Minor Child, by next friend, Rhonda Wood
29A02-1507-PO-856
Protective order. Reverses protective order barring Anna Wood from contact with minor child D.W. The trial court abused its discretion because the order was issued based on evidence that was hearsay and because it relied on a detective’s opinion about the truthfulness about the child’s allegation of sexual abuse. Remands with instructions to vacate the protective order.

Pamela Marlow v. Better Bars, Inc.
32A01-1504-CT-144
Civil tort. Reverses trial court grant of summary judgment in favor of Better Bars Inc. and remands for proceedings in Marlow’s negligence action. Majority Judges Patricia Riley and Robert Altice concluded that the trial court erred because there are genuine issues of material fact regarding whether the bar had actual knowledge that Kenneth Marlow was visibly intoxicated when it served him an alcoholic beverage after which Marlow fled from an officer and was struck by a car and seriously injured. Dissenting Judge Elaine Brown would affirm the trial court, holding that the intervening act of Marlow’s flight was the proximate cause of his injuries.

Janet C. Turner (deceased), James R. Turner, and Jan Tee, Inc. v. Nationstar Mortgage, LLC
53A05-1504-MF-139
Mortgage foreclosure. Affirms trial court’s grant of Nationstar’s motion to enforce a settlement agreement and denial of the Turners’ motion to dismiss. The Turners have not established the trial court erroneously denied their motion to dismiss or that the parties’ settlement agreement should not be enforced as it relates to the forfeiture.

Michael Hunt v. State of Indiana (mem. dec.)
35A04-1412-PC-555
Post conviction. Affirms denial of post-conviction relief.

Luis Torres-Reynoso v. State of Indiana (mem. dec.)
79A02-1412-CR-867
Criminal. Affirms 35-year aggregate sentence and convictions of Class A felony conspiracy to deal cocaine, six Class A felony counts of dealing cocaine and eight other drug offenses.

Nakisha Morris v. State of Indiana (mem. dec.)
49A04-1504-CR-170
Criminal. Affirms conviction of Class D felony theft.

Allen Riley v. State of Indiana (mem. dec.)
49A02-1503-CR-151
Affirms convictions of Class A felony robbery, Class B felony robbery, unlawful possession of a firearm by a serious violent felon, two counts of Class D felony criminal confinement and Class A misdemeanor carrying a handgun without a license. Remands for clarification of sentencing documents.

Jamie R. Aldred v. State of Indiana (mem. dec.)
02A03-1503-CR-108
Criminal. Affirms four-year sentence for convictions of Class C felony neglect of a dependent and Class D felony maintaining a common nuisance.

In Re Support of J.D. T.F. v. J.J.D. (mem. dec.)
37A03-1507-JP-906
Juvenile. Affirms trial court denial of motion for appointment of a guardian ad litem.

Brent D. Sharp v. State of Indiana (mem. dec.)
18A02-1410-PC-728
Post conviction. Affirms denial of post-conviction relief.

Troy Belk v. State of Indiana (mem. dec.)
49A05-1503-CR-105
Criminal. Affirms convictions of Class A felony robbery, Class B felony robbery and aggravated battery, and two counts of Class D felony criminal confinement. Remands for clarification of sentencing documents.

Antwion Carter v. State of Indiana (mem. dec.)
49A04-1503-CR-106
Criminal. Affirms convictions of Class A felony robbery, Class B felony robbery and aggravated battery, and two counts of Class D felony criminal confinement. Remands for clarification of sentencing documents.

Tracey A. Hardy v. State of Indiana (mem. dec.)
20A03-1506-CR-538
Criminal. Affirms aggregate 41-year sentence and convictions of two counts of Class A felony dealing in cocaine and one count of Class B felony dealing in cocaine.

Christopher Lozier v. State of Indiana (mem. dec.)
15A01-1503-CR-105
Criminal. Affirms denial of petition for sentence modification and remands with instructions to remove any reference to post-conviction relief proceedings.

Devon Sterling v. State of Indiana (mem. dec.)
49A02-1412-PC-891
Post conviction. Affirms denial of post-conviction relief.

Clarence White v. State of Indiana (mem. dec.)
49A02-1504-CR-222
Criminal. Affirms plea agreement requirement to pay restitution.  

Janet Daugherty v. Dollar Tree Stores, Inc. (mem. dec.)
93A02-1505-EX-393
Agency action. Affirms rulings of the Indiana Workers Compensation Board that certain of Daugherty’s injuries were not causally related to a workplace fall from a ladder and denial of her request for permanent total disability.