Opinions May 23, 2019

The following opinions were posted after IL deadline Wednesday.
7th Circuit Court of Appeals
Barrington Music Products, Inc v. Music & Arts Center
18-2945
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Civil. Affirms the Northern District Court’s denial of Barrington Music Products, Inc.’s Rule 59(e) motion to amend a prior award of damages in its favor stemming from sales made through Guitar Center stores to include sales from Music & Arts Centers and Woodwind & Brasswind Inc. of products using the trademark “Ventus.” Finds no reason to conclude the jury’s determination would be different if it were aware that Music & Arts and Woodwind are divisions of Guitar Center, not distinct corporations.

Indiana Tax Court
Convention Headquarters Hotels, LLC v. Marion County Assessor
19T-TA-6
Tax. Dismisses Convention Headquarters Hotels, LLC’s second appeal that the 2010 assessment of its real property violated the Equal Protection and Due Process Clauses of the U.S. Constitution and the Property Taxation and Equal Privileges and Immunities Clauses of Indiana’s Constitution. Finds the Indiana Tax Court does not have subject matter jurisdiction over the appeal, the Marion County Assessor’s 12(B)(1) motion to dismiss is not time-barred and that the appeal is premature. Remands the matter to the Indiana Board of Tax Review for proceedings.

Thursday’s opinions
Indiana Supreme Court
Delmar Kelly v. State of Indiana
18S-CR-585
Criminal. Affirms the Hendricks Superior Court did not commit fundamental error in allowing the state to present during trial evidence of Delmar Kelly’s post-arrest, pre-Miranda silence. Finds Kelly opened the door to the evidence and that there was no fundamental error in admitting it.

Indiana Court of Appeals
City of Gary v. Smith & Wesson Corp., et al.
18A-CT-181
Civil Tort. Affirms in part, reverses in part and remands for further proceedings Lake Superior Court’s order granting a motion to dismiss the city of Gary’s complaint against various handgun manufacturers. Reverses the dismissal of the claims for public nuisance and negligent distribution and marketing, finding the state’s Immunity Statute does not bar claims against firearm and ammunition makers for unlawful conduct. Also reverses the trial court’s ruling that the federal Protection of Lawful Commerce in Arms Act bars the city’s claims and that the city’s lawsuit is an unlawful attempt to regulate firearms. Finally, reverses the finding that the manufacturers are entitled to attorney fees and costs. Affirms the city failed to establish that the amendment making the Immunity Statute retroactive to four days before the city filed its lawsuit was unconstitutional.

Alvin L. Lewis v. Putnam County Sheriff’s Department
18-MI-1869
Miscellaneous. Reverses the seizure of more than $77,000 in cash from Alvin Lewis’ vehicle and the turnover of the cash to the federal government. Finds the seizure of the cash was unlawful. Also finds the Putnam Circuit Court erred by granting the motion for turnover. Remands with instructions for the state to reimburse Lewis.

Gregory T. Hardin and Kelly T. Hardin v. Ruth McClintic
53A01-1712-PL-2964
Civil plenary. Affirms the Monroe Circuit Court’s entry of judgment in favor of Ruth McClintic on her adverse possession and prescriptive easement counterclaims. Also affirms judgment against McClintic’s neighbors Gregory and Kelly Hardin on their claims for injunctive relief and damages. Finds the trial court did not err by entering judgment in favor of McClintic. Notes the appellate court will not address the Hardins’ challenge to the trial court’s judgment on their claims, finding the claims would only be reviewable on appeal if judgement for McClintic’s counterclaims was reversed.  

John Jay Lacey v. State of Indiana
18A-CR-2623
Criminal. Reverses John Lacey’s 13-year sentence enhancement based on his habitual offender status. Finds insufficient evidence to support the enhancement, and remands with instructions for resentencing consistent with the opinion.

A House Mechanics, Inc. v. Michael Massey
18A-PL-2814
Civil Plenary. Affirms summary judgment for Michael Massey on AHM’s claims for breach of contract and foreclosure on a mechanic’s lien. Finds there is no issue of material fact and the Marion Superior Court did not err in ruling for Massey.

Patrick Coughlin v. State of Indiana ex rel. Indiana Department of Workforce Development (mem. dec.)
18A-PL-2846
Civil plenary. Affirms the Lake Superior Court’s order denying Patrick Coughlin’s motion for summary judgment and his motion to strike, as well as its grant of the state’s cross-motion for summary judgment. Finds Coughlin’s motion for summary judgment was properly denied. Also finds the trial court did not abuse its discretion in its denial of his motion to strike or in granting the state’s cross motion.

Perry D. Shilts v. Anthony Kohrman (mem. dec.)
18A-PL-2339
Civil plenary. Affirms the Allen Superior Court’s grant of declaratory judgment in favor of Anthony Kohrman against Perry Shilts. Finds the trial court’s judgment was not clearly erroneous.

David N. Templin v. State of Indiana (mem. dec.)
18A-CR-2447
Criminal. Affirms David Templin’s conviction of Level 6 felony escape, Class A misdemeanor impersonation of a public servant and Class A misdemeanor resisting law enforcement. Finds the trial court did not abuse its sentencing discretion. Also finds Templin did not receive ineffective assistance of counsel and that he may not seek to set aside his guilty plea.

Larry Gene Vickery v. State of Indiana (mem. dec.)
18A-CR-2477
Criminal. Affirms Larry Vickery’s 12-year sentence for conviction of Level 3 felony criminal confinement. Finds his sentence is not inappropriate.

James Edward Williams, Jr. v. State of Indiana (mem. dec.)
18A-CR-2764
Criminal. Affirms James Williams’ aggregate 78-year sentence for conviction of Class A felony child molesting, two counts of Level 1 felony child molesting, two counts of Level 4 felony sexual misconduct with a minor, and three counts of Class C felony child molesting. Funds the sentence is not inappropriate in light of the nature of the offenses and Williams’ character.

Lionel Ray Mackey, Jr. v. State of Indiana (mem. dec.)
18A-CR-2624
Criminal. Affirms in part, reverses in part Lionel Ray Mackey, Jr.’s sentence and convictions of Level 1 felony attempted murder; Level 2 felony possession of a destructive device or explosive; Level 5 felony intimidation; Level 6 felony criminal recklessness; and Level 6 felony perjury. Finds the trial court did not abuse its discretion in admitting the recording of Mackey’s incriminating statements. Reverses his conviction of intimidation and remands with instructions to vacate it on double jeopardy grounds. Also remands for resentencing within the statutory limit, finding Mackey’s aggregate sentence for possession of a destructive device or explosive and criminal recklessness exceeds the statutory limit and must be reduced by six months.

Allan H. Walker, Jr. v. State of Indiana (mem. dec.)
18A-CR-2305
Criminal. Affirms Allan Walker, Jr.’s conviction of murder, Level 3 felony robbery and Level 6 felony criminal confinement. Finds Walker is not entitled to discharge pursuant to Criminal Rule 4(B) and that his murder conviction is supported by sufficient evidence.

Jonathan S. Couch v. State of Indiana (mem. dec.)
18A-CR-2753
Criminal. Affirms the Switzerland Circuit Court’s order sentencing Jonathan Couch to nine years executed in the Indiana Department of Correction for his conviction of Level 4 felony burglary. Finds his sentence is not inappropriate in light of the nature of the offense or his character.

Ronald Williams v. State of Indiana (mem. dec.)
02A03-1712-PC-3000
Post conviction. Affirms the denial of Ronald Williams’ petition for post-conviction relief. Finds that none of the errors alleged by Williams amount to ineffective assistance of trial counsel.

R.A.W. v. S.L.W. (mem. dec.)
18A-DR-2959
Domestic relation. Affirms the Jennings Superior Court’s order denying father R.A.W.’s motion to modify child custody. Finds R.A.W. has failed to establish prima facie error and that the trial court did not abuse tis discretion.

Carl L. Dahlin v. State of Indiana (mem. dec.)
64A04-1607-CR-1716
Criminal. Affirms Carl L. Dahlin’s conviction of Level 5 felony carrying a handgun without a license with a prior felony conviction within the last 15 years. Finds any error in the admission of evidence regarding Dahlin’s case and the handgun was harmless and that the evidence is sufficient to support Dahlin’s conviction.

Jared L. Haynes v. State of Indiana (mem. dec.)
18A-CR-2657
Criminal. Affirms Jared Haynes’ 40-year sentence for conviction of Level 1 felony rape of a severely disabled woman. Finds his sentence is not inappropriate in light of the nature of the offense and Haynes’ character. Finds the trial court erred in concluding that Haynes was a credit-restricted felon under Indiana Code Section 35-31.5-2- 72 and remands with instructions to correct the error.