Indiana Court Decisions – July 5-18, 2017

7th Circuit Court of Appeals

July 12

Criminal – Armed Career Criminal Act

United States of America v. Marvin L. Bennett

16-3769

An Indiana man’s 15-year sentence for possession of a firearm in violation of the Armed Career Criminal Act has been reversed after the 7th Circuit Court of Appeals determined one of the man’s prior convictions did not constitute a violent felony and, thus, did not qualify him for a sentence above the 10-year statutory maximum.

Marvin Bennett pleaded guilty to possession of a firearm by a felon in violation of 18 U.S. Code Section 922(g)(1), an offense that normally carries a maximum of 10 years in prison. However, under the Armed Career Criminal Act, a person who violated U.S.C. 922(g)(1) after accumulating at least three previous “violent felonies” must be sentenced to a minimum of 15 years in prison.

Bennett’s plea agreement provided that he would be sentenced to 15 years, but prior to his sentencing hearing, he argued that his previous conviction for violating Indiana Code 35-44-3-3 — which punishes the offense of resisting law enforcement — was not a crime of violence, thus disqualifying the 15-year sentence. Chief Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana disagreed and sentenced Bennett according to the terms of his plea agreement, prompting the instant appeal.

Writing for a panel of the 7th Circuit Court of Appeals, Judge Richard Posner noted that violation of I.C. 35-44-3-3 constitutes a misdemeanor offense, so had Bennett only violated that portion of state law, he would not be subject to the 15-year sentence. However, Bennett was prosecuted pursuant to subsection (b)(1) of the statute by “inflict(ing) bodily injury on or otherwise caus(ing) bodily injury to another person,” prompting Springmann to conclude that Bennett’s conduct qualified under the ACCA.

However, Posner went on to write that “inflict(ing) bodily injury” does not necessarily connote violence.

“Suppose a person is handcuffed by a police officer, tugs in the hope of squeezing his hands through the cuffs, and accidentally causes the officer to trip and fall as a result of the tugs,” Posner wrote. “The person’s effort thereby to avoid arrest would be resisting law enforcement, but would not be considered violence or even threatening under 18 U.S.C. section 924(e)(2)(B)(i). The government has failed in this case to prove a violent felony.”

Based on that conclusion, the 7th Circuit reversed the district court’s judgment, vacated the plea agreement and remanded the case to the district court for further consideration.

Indiana Supreme Court

July 12

Criminal – Attempted Murder

Michael A. Miller v. State of Indiana

28S04-1707-CR-468

A Bloomfield man convicted of felony attempted murder will not get a new trial after the Indiana Supreme Court decided his case instead warranted reconsideration by the trial court.

The Supreme Court ruled that although the trial court applied the wrong standard of mens rea, the appropriate remedy to correct that error is reconsideration by the court.

On Aug. 10, 2014, Jeremy Kohn and his girlfriend, Kylee Bateman, were sitting on Kohn’s front porch laughing at a story when Michael Miller, believing the couple was laughing at him, calmly approached them, cut Kohn’s throat with a knife, then walked away. Kohn recovered with 40 stitches, and Miller was arrested in connection with the attack three days later.

During interviews with police, Miller admitted that he had cut Kohn’s throat. When police asked if the cut was meant to kill Kohn, Miller said he did not care. The state charged Miller with Level 1 felony attempted murder and Level 5 felony battery, with the murder charge reading, in part, that Miller “did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn.”

After a bench trial, the Greene Circuit Court found Miller guilty but mentally ill on both counts, finding “that Defendant had the requisite intent to kill… .” Miller appealed, arguing the state did not present sufficient evidence to prove his specific intent to kill Kohn, as is required to prove attempted murder.

In a March opinion, the Indiana Court of Appeals determined that the references to a “knowing” mens rea could indicate the application of the wrong standard of proof and, thus, remanded the case for a new trial. But in a per curiam opinion granting the state’s petition to transfer, the justices held the appropriate remedy for the application of the wrong standard of proof was a remand for reconsideration, not a new trial.

The high court sent the case back to the Greene Circuit Court to apply the appropriate legal standard – a specific intent to kill – and affirmed the Court of Appeals’ decision in all other respects.

In a separate opinion, Justice Geoffrey Slaughter wrote he agreed that the wrong legal standard was applied. However, Slaughter dissented on the court’s chosen remedy, writing he would remand the case for a new trial because he shares the Court of Appeals’ concern that the judge, on remand, “‘may have a difficult, if not impossible, task of distancing himself from the evidence already considered and in considering the case entirely anew.’”

Indiana Court of Appeals

July 5

Civil Plenary – Defamation

401 Public Safety and Lifeline Data Centers, LLC v. David Ray and the Committee to Elect David Ray

49A02-1609-PL-2132.

Summary judgment in a political defamation suit has been affirmed after a divided Indiana Court of Appeals decided that language included on a campaign flyer is considered protected speech under the anti-SLAAP statute.

In 2010 and 2013, Lifeline Data Centers LLC made political contributions to the campaign of Ben Hunter, the incumbent in the race for Indianapolis City-County Council. Meanwhile, 401 Public Safety entered into a 25-year lease with the city of Indianapolis, which allowed 401 to lease a portion of its North Shadeland Avenue property to the city.

Alex Carroll, the managing member of both 401 and Lifeline, supported Hunter through Lifeline, and Hunter was a strong advocate of the lease. However, in 2013, media reports began to suggest the building was unfit and unsafe for people to work in. Further, in 2014, reports showed the City-County Council was investigating the lease, and Carroll admitted to receiving notices of violation from the city.

Then in 2015, David Ray entered the race for a spot on the City-County Council against Hunter, and Ray established the Committee to Elect David Ray to assist with his campaign. The committee developed a series of campaign flyers, including one flyer that contained reproductions of Lifeline’s contributions to Hunter’s campaign, references to media stories about Hunter’s involvement in the lease, and text that stated, “Ben Hunter let us down,” and referring to the building, “It’s a mess… .”

The flyer did not mention or implicitly refer to 401, but both 401 and Lifeline filed a defamation complaint against Ray and the committee based on the flyer. Ray, who eventually beat Hunter in the race, filed a defense based on the anti-SLAAP statute, then moved to dismiss. The Marion Superior Court summarily granted the motion to dismiss based on that statute in August 2016.

The Indiana Court of Appeals upheld that decision, with Judge John Baker writing the court had “little difficulty concluding that the speech at issue here was made in connection with a public issue,” as is required for protection under the anti-SLAAP statute. The flyer was mailed in the context of a political election, and it addressed issues related to taxpayer dollars and political donations, Baker said.

Further, the flyer did not make any reference to 401, so it did not contain “a single even arguably defamatory or untrue statement with respect to 401,” Baker said. And in regard to Lifeline, the judge wrote there is no dispute that the statements on the flyer were either accurate or an opinion, so the trial court properly found Ray and his committee acted without malice, in good faith and with a reasonable basis in law in fact, as is required under Indiana Code 34-7-7-1.

However, in a separate opinion, Judge Paul Mathias said he dissented on the issue of whether Ray and the committee acted in good faith and with a reasonable basis with respect to Lifeline. While Mathias agreed the speech was a matter of public concern and that summary judgment was proper with respect to 401, he also said that after reviewing the flyer, he would conclude that there was a genuine issue of material fact as to whether Ray made the statements on the flyer without actual malice and in good faith.

Thus, Mathias would reverse summary judgment as to Lifeline’s claims.
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July 7

Juvenile – Paternity/Contempt

In the Paternity of J.W. Bailey R. Dailey v. Justin L. Piersimoni

76A04-1610-JP-2476

A mother’s appeal of the order finding her in contempt for not bringing her child to supervised parenting time sessions at a facility drew three opinions from a panel of the Indiana Court of Appeals. The majority agreed to reverse after holding the parenting time order improperly delegated parental authority to the facility.

Mother B.D. had daughter J.W. in 2009, and father J.P.’s paternity was established in 2012, when he was in prison for battery upon B.D. When he was released from prison, father sought parenting time. Mother had full custody and argued if he was granted parenting time, it should be under supervision. A May 2016 order granted father limited parenting time under the supervision and control of the Community Anti-Violence Alliance Family Ties program in Angola. His supervised visits were outlined in the order, which also allowed the parties by mutual agreement to alter the days and times.

Father had therapeutic sessions with Family Ties therapist Jeff Lewis, with which daughter J.W. participated. At some point, mother did not agree with her daughter receiving therapeutic sessions at Family Ties and wanted a different person to supervise the visits. She also asked the court to have parenting time relocated to the Children First Center because neither party lived in Angola anymore and it was a two-hour round trip to Family Ties.

Family Ties tried to reschedule the times, but mother said they conflicted with daughter’s exiting gymnastics practices or for other reasons. That’s when father filed a petition for contempt. The court denied mother’s motion to move the parenting time location, and found her in contempt for denying parenting time. She was ordered to serve 30 days in jail or pay a portion of father’s attorney fees.

In her appeal, in which father did not file an appellate brief, mother maintained the court infringed upon her parental rights to decide as to what type of parenting sessions would be conducted, who would conduct the sessions and when they would occur.

Judges L. Mark Bailey and Margret Robb voted to reverse the contempt order, but cited different reasons. Bailey cited Matter of A.R.R., 634 N.E.2d 786 (Ind. Ct. App. 1994), a parenting time order reversed by the COA that gave a service agency authority that properly resided with the parent. The majority also pointed out that the court ordered the father to participate in therapeutic counseling, not the child, so Family Ties had no authority to impose that element on the parenting time session.

Chief Judge Nancy Vaidik in her dissent maintained that if mother was unhappy with the trial court allowing Family Ties the discretion to decide if the supervised visits should be therapeutic in nature, she should have appealed within 30 days, but did not. To this point, Robb in her concurring opinion with Bailey, wrote the order did not put undue burdens on mother and therefore she had nothing to appeal. It wasn’t until Family Ties began exercising its limited discretion that was outside of the bounds of the order that the issue arose.

Vaidik also maintained that even if mother disagreed with the court order, it was still in effect when she petitioned to change locations and should have abided by it until the court ruled on her motion.

Miscellaneous – Judicial Review

Juan Vega v. City of Hammond and City of Hammond Board of Public Works and Safety

45A03-1605-MI-1067

A Hammond man’s petition for judicial review of an order to repair or remove an apartment in a building he owns will return to the trial court after the Indiana Court of Appeals ruled the Lake Superior Court erred in dismissing the case.

In 2012, Matt Saliga, an inspector for the city of Hammond, inspected Juan Vega’s home, and the city subsequently issued a notice of violation. Specifically, the property was found to contain an unsafe apartment lacking proper fire protection and was found to be contrary to Hammond zoning laws.

Vega was instructed to bring the property into compliance within 30 days, and a hearing on the issue before the City of Hammond Board of Public Works and Safety was continued several times until November 2014, when Saliga and the city’s counsel tendered the inspection findings. The findings were approved, but Vega moved for relief, arguing neither he nor his counsel had been advised of the hearing.

The order was vacated, and Vega’s counsel asked for a continuance to obtain a second inspection of the property. However, Saliga had not performed the requested inspection by April 29, 2015, so Vega’s counsel sent a letter to Kris Kantar, counsel for the city, saying he had not heard from Saliga since March.

Vega’s counsel also sent a motion to reassign date to Kantar, which indicated that unless otherwise indicated, counsel would appear at a hearing on April 30. But neither Vega nor his counsel appeared at that hearing, so Kantar moved for the board to give Saliga one week to prepare an order of demolition that Vega could appeal because “enough is enough.”

The board agreed, but Vega moved for relief, arguing that Kantar had agreed to communicate with Saliga and that Saliga had not responded to emails and faxes requesting the inspection. The board, however, entered findings of fact and a decision ordering Vega to remove the second-floor apartment.

Vega moved for judicial review, and his counsel conducted a deposition in which Saliga said he “misspoke” when he told the board he had not been contacted about setting up an inspection.

After Vega rested his case-in-chief at March 2016 judicial hearing, the city moved for a directed verdict, arguing Vega had failed to meet his obligation of submitting the entire administrative record to the court. The judge granted the city’s motion, prompting the instant appeal.

On appeal, Vega argued the city erred in stating he had an obligation to offer the entire administrative record into evidence, and that even if he had that obligation, he satisfied it by tendering video recordings of the relevant board hearings to the trial court.

The Indiana Court of Appeals agreed, with Judge Elaine Brown noting that Vega filed for judicial review pursuant to Indiana Code 36-7-9-8, which required him to file his complaint within 10 days and to include the findings of fact and action taken by the hearing authority. Vega met those requirements, Brown wrote, and the statute does not require anything additional, such as the full administrative record.

Instead, Vega was required to produce evidence relevant to his theory of the case, which was based upon the notion that the board ruled before Saliga performed a second inspection. Vega met that requirement, so the trial court erred in granting the motion for a directed verdict on the basis of a lack of the entire record, Brown wrote.

Further, the appellate panel found that Vega “made a requisite showing that the Board’s order was made without consideration or in disregard of the facts and circumstances of the case and was therefore arbitrary and capricious and that trial court erred in dismissing Vega’s complaint for judicial review at the close of his case-in-chief.” Thus, the court’s order was reversed and the case was remanded for further proceedings.

Criminal – Robbery/Double Jeopardy

Brandon Black v. State of Indiana

09A04-1610-CR-2312

A trial court improperly applied sentencing enhancements to both of a criminal defendant’s robbery and conspiracy convictions, the Indiana Court of Appeals ruled. The panel found a double-jeopardy violation and reduced the man’s sentence from 60 to 36 years in prison.

Brandon Black received the 60-year aggregate sentence after he was convicted of Level 2 felony conspiracy to commit robbery resulting in serious bodily injury and Level 2 felony robbery resulting in serious bodily injury.

Black joined Christopher Brown in a scheme to rob Logansport hotel worker Sanjay Amin, who had agreed to pay Ashley Reinholt, an acquaintance of the two men, for sex. Black’s convictions were each enhanced at sentencing by the aggravating factor that he had knocked out three of Amin’s teeth during the robbery. Black argued this was double jeopardy.

“We agree, and we remedy the violation by reducing Black’s robbery conviction to a Level 5 felony,” Judge John Baker wrote for the court. Imposing the maximum sentence at that level reduces Black’s sentence on the robbery conviction from 30 years to 6 years, served consecutively to the 30-year sentence on the conspiracy conviction.

The court also ruled that any errors in the trial court’s failure to ensure legal representation for Black during a critical stage of proceedings was not prejudicial, and any error in admitting into evidence the victim’s identification of Black was harmless.
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July 14

Criminal – Pat-Down Search

Louis Bell v. State of Indiana

49A05-1606-CR-1390

A divided panel of the Indiana Court of Appeals has affirmed a man’s felony and misdemeanor drug and firearm charges after finding the officer who arrested the man did not violate his constitutional rights by stopping him or conducting a pat-down search.

Indianapolis Metropolitan Police Department Officer Justin Gough observed a man, later identified as Louis Bell, riding a bicycle at 1 a.m. and trailing another bike by holding its handlebars. Gough said Bell appeared to be scanning the area to see if someone was watching him.

State law requires bikes operated at night to have a red rear light and white front light, but Bell’s bike did not have the appropriate lighting. Thus, when Bell came near the parked police vehicle, Gough asked if he could talk to him, and Bell rode his bike over to the officer.

Though Bell claimed he was not in possession of anything illegal and a search of his name did not yield any warrants, Gough said Bell’s heart was beating extremely fast and he continued to scan the area as he talked to Gough. Gough observed a bulge in Bell’s front pocket, and when Bell refused to answer questions about the bulge, the officer conducted a pat-down search and discovered it was a gun.

Bell admitted he did not have a permit to carry the gun, so Gough arrested him and conducted a search incident to arrest. That search led to the discovery of baggies containing substances that Gough believed were cocaine and heroin, a glass pipe and two burnt marijuana cigars.

Bell was charged with various felony and misdemeanor drug and firearm charges, but he filed a motion to suppress the fruits of Gough’s search, arguing the pat-down violated his constitutional rights because his encounter with Gough was non-consensual. The Marion Superior Court denied the motion, and Bell was found guilty as charged.

A majority of a panel of the Indiana Court of Appeals affirmed Bell’s convictions, with Judge Melissa May writing that because Bell was riding a bike in the middle of the night that did not have the required lights, Gough had reasonable suspicion to detain him for a traffic violation.

Further, May wrote for the majority joined by Judge James Kirsch that the pat-down search was permissible under the Fourth Amendment because Bell was behaving nervously and refused to answer questions about the bulge in his pocket, causing Gough to be concerned for his own and the public’s safety. Similarly, Bell’s Article 1, Section 11 rights were not violated because, under Litchfield v. State, 824 N.E.2d 356, 359, the degree of suspicion and law enforcement needs were high, while the intrusion into Bell’s privacy was low, the majority held.

However, dissenting Judge Margret Robb wrote she would hold the pat-down search did violate Bell’s Fourth Amendment rights.

Specifically, Robb wrote she did not believe Gough’s description of Bell’s behavior and his refusal to answer Gough’s question could support reasonable suspicion that he posed a danger. Further, Gough never actually described the bulge in Bell’s pocket, so he did not establish a reasonable belief that Bell was hiding a weapon, she said. Thus, after he learned Bell had no outstanding warrants, Gough should have written a traffic citation and let Bell go on his way, she wrote.

Juvenile – Child Molesting

D.P. v. State of Indiana

85A04-1702-JV-383

A 10-year-old boy adjudicated as a delinquent for acts that would be considered Level 4 felony child molesting if committed by an adult will have his adjudication dropped after the Indiana Court of Appeals held there was insufficient evidence to support a true finding of the conduct.

In August 2016, the Department of Child Services contacted the Wabash City Police Department after 4-year-old B.M. made child molesting allegations against 10-year-old D.P. B.M.’s father lived with D.P.’s mother, and the molestations allegedly occurred when B.M. would visit her father on the weekends.

B.M.’s allegations were made during a videotaped interview at the Child Advocacy Center in Marion, though the video was not admitted as evidence under the Protected Person Statute. But during a fact-finding hearing, B.M. testified D.P. touched her genitals with his hand, though she had her clothes on and did not feel the touching.

The state filed a petition alleging D.P. was a delinquent for committing acts that, if committed by an adult, would be Level 3 felony child molesting for sexual intercourse or other sexual conduct and Level 4 felony child molesting for fondling or touching with intent to arouse or satisfy sexual desires. The juvenile court found only the Level 4 felony child molesting allegation true and adjudicated D.P. a delinquent on that count. He was ordered to serve 10 days in a detention facility and was placed on probation for 12 months.

On appeal, D.P. argued the evidence was insufficient to support the true finding for Level 4 felony child molesting. The Indiana Court of Appeals agreed, with Chief Judge Nancy Vaidik writing the state failed to prove beyond a reasonable doubt that D.P.’s touching was intended to arouse or satisfy sexual desires.

Specifically, Vaidik said there was no evidence of exactly where D.P. touched B.M., although she identified it as her genital area on an anatomical drawing of a little girl. Further, there was no evidence of how or how long he touched her, nor was there evidence of kissing or of D.P. asking B.M. to also touch him.

“While we acknowledge that B.M. was a young witness and there was great difficulty in procuring her testimony, we are restricted to the evidence presented at the fact-finding hearing,” the chief judge wrote. “And based on that evidence only, we do not believe that a reasonable factfinder could find beyond a reasonable doubt that D.P. touched or fondled B.M. with the intent to arouse or satisfy his sexual desires.”

Thus, the appellate court reversed the true finding against D.P. for Level 4 felony child molesting.•