Opinions Oct. 4, 2017

Indiana Court of Appeals
Cardinal Health Ventures, Inc v. Michael Scanameo, M.D., Carol Scanameo, and Michael Scanameo, M.D., Inc
18A02-1703-CT-487
Civil tort. Reverses the Delaware Circuit Court’s order granting Michael Scanameo, M.D., Carol Scanameo and Michael Scanameo, M.D. Inc.’s request to strike their motion for a jury trial on their claim of securities fraud against Cardinal Health Ventures Inc. Finds the trial court erred in granting the Scanameos’ motion because Cardinal Health did not consent to the motion. Remands with instruction to the trial court to re-set the case on the jury trial calendar.

Darryl Leigh Kilgore, Jr. v. State of Indiana (mem. dec.)
45A04-1704-CR-882
Criminal. Affirms Darryl Leigh Kilgore Jr.’s conviction for Class B felony robbery resulting in bodily injury. Finds the Lake Superior Court did not err in denying Kilgore’s motion for mistrial following an unprompted remark by his ex-girlfriend, Michelle Cleveland, as the probable persuasive effect of the remark on the jury’s decision was minimal. Also finds the trial court’s prompt and thorough admonition instructing the jury to disregard Cleveland’s statement cured any resulting prejudice.

Kennan Dumas v. State of Indiana (mem. dec.)
49A04-1703-CR-577
Criminal. Affirms Kennan Dumas’ sentence to 12 years for his conviction of Level 4 felony possession of a firearm as a serious violent felon. Finds Dumas has not met his burden to demonstrate his sentence is inappropriate.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.S.P. (Minor Child) and T.P. (Mother) v. Indiana Department of Child Services (mem. dec.)
79A04-1705-JT-989
Juvenile termination of parental rights. Affirms the termination of T.P.’s parent-child relationship with her son, A.S.P. Finds T.P. has failed to establish clear error in the Tippecanoe Superior Court’s decision.

Audrey Mullins and Danny Mullins v. Robert Maas and Gail Maas (mem. dec.)
44A03-1611-MI-2631
Miscellaneous. Grants Audrey and Danny Mullins’ rehearing petition for the limited purpose of vacating any portion of a July 27, 2017, appellate order that indicated or suggested the LaGrange Superior Court awarded title in a disputed parcel of land to Robert and Gail Maas. Finds the Mullinses’ other claims are without merit and affirms the judgment of the trial court in all other respects.

Reodine S. Harding Revocable Trust, by Ryan Harding, Trustee, et al. v. Mary Lou Wolfe, as Personal Representative of the Estate of Reodine S. Harding, Deceased (mem. dec.)
71A03-1702-PL-281
Civil plenary. Affirms the St. Joseph Superior Court’s order in favor of Mary Lou Wolfe, as personal representative of the estate of Reodine S. Harding, declaring the Reodine S. Harding Revocable Trust invalid because of undue influence and requiring the assets held in the trust to be treated as probate assets. Finds the trial court did not err in finding the trust was invalid because of undue influence, and that the contention that the trust was also invalid as constructive fraud is moot. Also finds the trial court did not abuse its discretion when it did not award the estate attorney fees against Harding directly. Declines to award the estate appellate attorney fees, as the trust’s claims are not utterly devoid of plausibility and are not the product of substantive bad faith.

In the Matter of M.C. and D.M. (Minor Children), Children in Need of Services, and P.C. (Mother) v. Indiana Department of Child Services (mem. dec.)
49A02-1704-JC-753
Juvenile CHINS. Affirms the adjudication of P.C.’s children, M.C. and D.M., as children in need of services. Finds the evidence of P.C.’s current drug use, noncooperation and criminal activity is sufficient to support a finding of serious endangerment to the children stemming from her inability or unwillingness to make and sustain necessary changes in her lifestyle without court intervention.

Darren E. Essett v. State of Indiana (mem. dec.)
49A02-1704-CR-795
Criminal. Affirms Darren E. Essett’s conviction of attempted murder as a Level 1 felony and the finding that he is a habitual offender. Finds Essett has not established that the Marion Superior Court’s communication with the jury outside his presence, but with defense counsel’s knowledge and consent, constituted a blatant violation of basic principles making a fair trial impossible.

In re Termination of the Parent-Child Relationship of: D.L. (Minor Child) and D.P. (Father) v. The Indiana Department of Child Services (mem. dec.)
07A05-1707-JT-1582
Juvenile termination of parental rights. Affirms the termination of D.P.’s parental rights. Finds the Department of Child Services presented sufficient evidence to support the termination of D.P.’s parental rights.

Michael J. Jackson Jr. v. State of Indiana (mem. dec.)
79A04-1703-CR-660
Criminal. Affirms Michael J. Jackson Jr.’s sentence to an aggregate term of 20 years following his plea of guilty, pursuant to a single plea agreement, to four felony offenses. Finds that because Jackson pleaded guilty to all four offenses pursuant to a single plea agreement, Indiana precedent requires review of his entire aggregate sentence, not just the portion he challenged on appeal. Also finds Jackson has failed to carry his burden to show his sentence is inappropriate. Finally, finds the probation condition restricting Jackson from entering liquor stores is constitutionally sound.

Lucino Jorge v. State of Indiana (mem. dec.)
49A02-1703-CR-401
Criminal. Vacates the imposition of $340 in administration and probation-user fees against Lucino Jorge. Finds there is nothing in the record to indicate the Marion Superior Court imposed these fees. Remands to the trial court to determine what, if any, probation fees will be imposed on Jorge, including the category and amount.

Jeffrey A. Bowles v. State of Indiana (mem. dec.)
06A05-1702-CR-411
Criminal. Affirms the revocation of Jeffrey Bowles’ probation. The Boone Circuit Court properly found Bowles violated his probation by committing new criminal offenses in Clinton County. Also finds the trial court did not abuse its discretion in ordering Bowles to serve the balance of his previously suspended 10-year sentence.

Logan Sabik v. State of Indiana (mem. dec.)
49A02-1705-CR-907
Criminal. Affirms Logan Sabik’s conviction of Class A misdemeanor battery. Finds the evidence was sufficient to rebut his self-defense claim.

Markco Martez Lee v. State of Indiana (mem. dec.)
48A04-1704-CR-811
Criminal. Affirms the revocation of Markco Martez Lee’s probation. Finds fundamental error did not occur because Lee did not express a desire to make an allocution statement, and the Madison Circuit Court was not required to proactively ask him if he wished to make such a statement. Also finds Lee did not make an offer to prove to the trial court or to the Indiana Court of Appeals regarding what he would have said.

Jason Ell v. State of Indiana (mem. dec.)
69A01-1704-CR-822
Criminal. Affirms Jason Ell’s convictions of Level 6 felony domestic battery in the presence of a child and Level 6 felony criminal confinement and his sentence to an aggregate of 2 ½ years, with 180 days suspended to probation. Finds the state presented sufficient evidence to convict Ell. Also finds Ell has failed to carry his burden of establishing his sentence is inappropriate in light of the nature of the offense and his character.