Opinions Dec. 21, 2018

Indiana Court of Appeals
Roderick Vandrell Lewis v. State of Indiana,
18A-PC-767
Post-conviction. Affirms denial of post-conviction relief petition. While agreeing with Roderick Lewis that his attorney’s performance at sentencing was deficient, concludes Lewis’s 130-year sentence for his conviction of felony murder would not have been different if counsel had offered the mitigating circumstances raised at the post-conviction hearing. Finds the post-conviction court correctly determined that Lewis was required to establish prejudice under Strickland v. Washington, 466 U.S. 688, 694 (1984) rather than U.S. v. Cronic, 466 U.S. 648 (1984). Also holds appellate counsel was not ineffective.

Dick Sears v. Indiana Grain Buyers and Warehouse Licensing Agency
18A-MI-883
Miscellaneous. Affirms the Putman Circuit Court’s denial of Dick Sears’ petition for judicial review. Finds the trial court properly determined that the Indiana Grain Buyers and Warehouse Licensing Agency’s interpretation of the term “claimant,” defined in I.C. § 26-3-7- 2(5), was not arbitrary or capricious. Judge Robb dissents with a separate opinion.

Romana Balderas v. State of Indiana
17A-PC-3014
Post-conviction. Affirms the Clinton Circuit Court’s denial of Romana Balderas’ petition for post conviction relief after her conviction of Class C felony conspiracy to commit forgery. Finds that the post-conviction court’s application of laches was not erroneous, that Balderas was unreasonably late in seeking relief, and that she is not entitled to relief.
 
Shakur Johnson v. State of Indiana
27A02-1712-CR-2958
Criminal. Affirms Shakur Johnson’s murder conviction. Finds the Grant Superior Court did not err in admitting certain evidence seized pursuant to a search warrant and statements made by Johnson. Finds the small amount of information available to investigators led to Johnson and that the admission of his statements was neither a violation of the juvenile waiver of rights statute nor Indiana Evidence Rule 617.
 
Lisa L. Colbert v. State of Indiana (mem. dec.)
18A-CR-234
Criminal. Affirms Lisa Colbert’s convictions of five counts of Class A felony child molesting, five counts of Class B felony incest, two counts of Class B felony vicarious sexual gratification, two counts of Class C felony child molesting and two counts of Class D felony performing sexual conduct in the presence of a minor, and her aggregate 142-year sentence. Finds the evidence is sufficient and Colbert was not denied a fair trial. Also finds Colbert waived review of her evidentiary challenges by failing to make a contemporaneous objection at the time the challenged evidence was introduced at trial. Finally, finds Colbert’s sentence is not inappropriate. Remands for the Hamilton Superior Court to issue a new sentencing order and abstract of judgment clarifying which convictions are vacated after merging.

In re the Guardianship of A.D., Jesus M. Chacon v. Madelyn Dearmond and Clyde De La Paz, Jr. (mem. dec.)
18A-GU-1604
Guardianship. Affirms the denial of Jesus Chacon’s petition for guardianship of his great-grandson, A.D. Finds the evidence is sufficient to support the denial of Chacon’s petition.

Jerry Hatten v. State of Indiana (mem. dec.)
18A-CR-1182
Criminal. Affirms Jerry Hatten’s sentence for his convictions of three counts of Level 6 felony theft and one count of Level 6 felony check deception from four separate causes. Finds Hatten’s placement in the Department of Correction for his entire sentence was not inappropriate in light of the nature of the offenses and his character.
 
Wayne Zollman and Teresa Zollman v. James Albert Costello and Lisa Renee Costello (mem. dec.)
18A-PL-1537
Civil plenary. Affirms the findings of fact and conclusions of law in favor of James Albert and Lisa Renee Costello awarding Costello damages in the amount of $41,543 after Wayne and Teresa Zollman destroyed 31 trees on Costello’s property. Finds the Clark Circuit Court did not abuse its discretion by finding that Zollman’s maintenance of a lime pile uphill from Costello’s property line and trees was the direct cause of the destruction of the trees. Also finds the trial court properly admitted expert testimony in the form of an opinion. Finally, finds the trial court’s damage award was supported by sufficient evidence.
 
C.G. v. State of Indiana (mem. dec.)
18A-JV-1373
Juvenile. Affirms the true finding that C.G. committed a delinquent act which would constitute battery as a Level 6 felony if committed by an adult. Finds any error in the admission of Officer Mitch Hubner’s testimony regarding pepper spray found in the pocket of C.G.’s jacket was harmless. Also finds the state presented evidence of a probative nature from which a reasonable trier of fact could find that C.G. committed an act which would constitute battery as a Level 6 felony if committed by an adult. Finally, finds C.G. has not demonstrated that reversal of the lack of a charge against her mother is warranted. Judge Mark Bailey concurs in result without separate opinion.

Timothy M. Brown III v. State of Indiana (mem. dec.)
18A-CR-1327
Criminal. Affirms Timothy Brown III’s three-year sentence for his conviction of Level 5 felony escape. Finds the Knox Circuit Court did not abuse its discretion in sentencing Brown. Also finds Brown’s sentence is not inappropriate.
 
B.F. v. State of Indiana (mem. dec.)
18A-JV-460
Juvenile. Affirms the true finding that V.F. committed what would be battery and three counts of confinement if committed by an adult, but reverses the true finding regarding hazing. Finds the evidence is sufficient to establish that B.F. acted knowingly or intentionally when he battered or confined E.S., the victim. Also finds there was no substantial evidence that E.S. was forced or required to endure the abuse in the bathroom as a condition of association with the soccer team. Remands for the juvenile court to vacate the hazing true finding.

Arvis Harrison Crawhorn, Jr. v. State of Indiana (mem. dec.)
18A-CR-1668
Criminal. Affirms Arvis Harrison Crawhorn, Jr.’s 16-year sentence for his conviction of Level 3 felony dealing in methamphetamine. Finds Crawhorn has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

Steven Clear v. State of Indiana (mem. dec.)
18A-CR-1561
Criminal. Remands Steven Clear’s sentence for being a habitual vehicular substance offender for entry of an amended sentencing order and abstract of judgment.
 
Vinson H. Tate v. State of Indiana, et al. (mem. dec.)
02A03-1705-MI-1204
Miscellaneous. Affirms the denial of Vinson H. Tate’s motion to correct error filed after the Allen Circuit Court granted the state’s complaint for civil forfeiture of $3,047 found when Tate was arrested for Class A felony dealing in cocaine. Finds the trial court did not abuse its discretion.

Augustus B. Gaines, Jr. v. State of Indiana (mem. dec.)
49A02-1711-CR-2656
Criminal. Affirms Augustus Gaines, Jr.’s convictions of Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 5 felony possession of a narcotic drug. Finds Gaines has failed to show any fundamental error in the admission of evidence. Also finds there was sufficient evidence to support the Level 4 felony conviction.
 
Debin Paige Gabbard v. State of Indiana (mem. dec.)
18A-CR-1618
Criminal. Affirms Debin Gabbard’s aggregate 21-year sentence for his convictions of dealing in methamphetamine as a Level 3 felony and as a Level 5 felony. Finds the Bartholomew Superior Court did not abuse its discretion when it sentenced Gabbard. Also finds Gabbard’s sentence is not inappropriate given the nature of her offenses and her character.

Lakila Jackson v. State of Indiana (mem. dec.)
18A-CR-823
Criminal. Affirms Lakila Jackson’s conviction of battery as a Class A misdemeanor. Finds the state presented sufficient evidence beyond a reasonable doubt to support Jackson’s battery conviction and to rebut her claim of self-defense.
 
Roger D. Campbell v. State of Indiana (mem. dec.)
18A-CR-1473
Criminal. Affirms Roger Campbell’s convictions of three counts of child molesting, one as a Level 1 felony and two as Level 4 felonies. Finds the evidence is sufficient.
 
Daniel T. Perrey v. State of Indiana (mem. dec.)
18A-CR-1498
https://www.in.gov/judiciary/opinions/pdf/12211804rra.pdf
Criminal. Affirms the revocation of Daniel T. Perrey’s placement in community corrections and order that he serve his suspended sentence in the Indiana Department of Correction. Finds the evidence is sufficient to support the Allen Superior Court’s finding that Perrey was intoxicated and under the influence of a mood- or behavior-altering substance, and that finding supports the court’s decision to revoke Perrey’s placement in community corrections.