Opinions Sept. 12, 2019

Indiana Court of Appeals
William Hedrick v. State of Indiana
18A-CR-01945
Criminal. Grants William Hedrick’s petition for rehearing to correct errors in the Indiana Court of Appeals’ original opinion. Reaffirms the original opinion in all other respects, holding the erroneous admission of the Drug Enforcement Administration agent’s deposition testimony was harmless.

Danish Pulido v. State of Indiana
19A-CR-00834
Criminal. Reverses Danish Pulido’s conviction of Class B misdemeanor public intoxication. Finds the state failed to prove beyond a reasonable doubt that Pulido endangered his own life as required by the public intoxication statute.

Jeffrey Archer v. State of Indiana
18A-PC-2681
Post conviction. Reverses on rehearing the prior denial of a post-conviction relief petition, finding an error in that earlier ruling. Holds that Jeffrey Archer established both that appellate counsel was ineffective and that he was prejudiced as a result by failing to raise the issue of a biased juror who was seated in his child molesting trial. Finds the Marion Superior post-conviction court erred by denying Archer’s petition for post-conviction relief. Remands for a new trial.

State of Indiana v. Luke Bryon Fahringer
18A-CR-2985
Criminal. Dismisses the state’s interlocutory appeal of the Tippecanoe Superior Court’s suppression order in a rape case. Finds the trial court abused its discretion when it certified for interlocutory appeal its July 26, 2018 order suppressing the evidence garnered from Luke Fahringer’s cell phone and finds no compelling reason to disregard the state’s failure to initiate a timely interlocutory appeal.

Linda Martinez, as the Personal Representative of the Estate of Roy Martinez v. Oaklawn Psychiatric Center, Inc.
18A-CT-2883
Civil tort. Grants rehearing for the limited purpose of clarifying that there is a genuine issue of material fact as to whether Roy Martinez or Kennedy Kafatia began the physical altercation that led to Martinez’s death. Finds that this fact is disputed, but the dispute is not material to the original July 12, 2019, conclusion that the claim raised by Martinez’s estate falls within the scope of the Medical Malpractice Act. Affirms the original opinion in all other respects.

J.W. v. State of Indiana (mem. dec.)
19A-JS-468
Juvenile status. Affirms the Hendricks Superior Court’s dispositional order following J.W.’s admission to the delinquent act of truancy. Finds the juvenile court treated J.W. as a person “in need of care, protection, treatment, and rehabilitation.” Thus, finds its dispositional order is consistent with J.W.’s best interest and does not constitute an abuse of discretion.

Scottie M. Kincade v. State of Indiana (mem. dec.)
18A-CR-655
Criminal. Affirms Scottie Kincade’s conviction of murder and Level 4 felony arson. Finds the Warren Circuit Court’s failure to record bench conferences concerning, but that the remedy for such a failure is to give the defendant the benefit of the doubt regarding the preservation of evidentiary issues on appeal, not a retrial. Concludes the trial court did not err by admitting evidence of the violent, combative nature of Kincade’s relationship with the victim when considering his claims on the merits.

Justin Vance v. State of Indiana (mem. dec.)
18A-CR-2924
Criminal. Affirms Justin Vance’s conviction for Class A misdemeanor resisting law enforcement. Finds there is sufficient evidence to support the trial court’s conclusion that the state proved the element of forcible resistance beyond a reasonable doubt.

Joseph Thomas Smith v. State of Indiana (mem. dec.)
19A-CR-698
Criminal. Remands Joseph Smith’s 41-year sentence for conviction of Level 1 felony rape, Level 5 felony domestic battery, and Level 6 felony strangulation. Finds the Elkhart Superior Court erred in delegating to the probation department the task of fixing the amount of Smith’s restitution obligation. Remands with instructions for the trial court to make the proper inquiries into Smith’s ability to pay and to set the terms of his restitution obligation accordingly.

Dennis Challoner v. Wendy Challoner (mem. dec.)
18A-DR-1241
Domestic relation. Affirms the Porter Superior Court’s decree dissolving Dennis Challoner’s marriage to Wendy Challoner. Finds the trial court properly found that father was voluntarily underemployed and affirms the trial court’s calculation of father’s imputed weekly gross income. Also finds the trial court did not abuse its discretion by finding mother was not in contempt of the parenting time order or in dividing the marital estate.

Stephanie L. Jones v. Jed D. McAlister (mem. dec.)
19A-JP-91
Juvenile paternity. Affirms in part, reverses in part. Finds the Switzerland Circuit Court acted within its discretion when it modified its previous parenting time order and awarded Stephanie Jones and Jed McAlister shared physical custody of their child, C.M. However, finds the trial court erred when it failed to give mother credit for her previously born child in its child support calculation. Remands with instructions to recalculate the parties’ respective child support obligations.

Ronald Walton and Debora Walton v. Ryan Cangany (mem. dec.)
19A-CT-35
Civil tort. Affirms the Marion Superior Court’s grant of summary judgment to Ryan Cangany after he received no response to admission requests from either Ronald or Debora Walton regarding their negligence action filed against him. Finds the Waltons failed to meet their burden of persuading the appellate court that the trial court erred in granting summary judgment to Cangany.

Robert Lewis, Jr. v. State of Indiana (mem. dec.)
19A-CR-60
Criminal. Affirms Robert Lewis, Jr.’s aggregate six-year sentence for conviction of Level 5 felony criminal confinement. Finds the LaPorte Superior Court did not abuse its discretion in sentencing Lewis and that his sentence is not inappropriate given the nature of the offense and his character.

James Mark Osburn v. Community Newspaper Holdings of Indiana, LLC, Heredos Enterprises, Inc., and Doane Keyes Associates, Inc. (mem. dec.)
19A-CT-209
Civil tort. Affirms the Cass Superior Court’s grant of summary judgment to Doane Keyes Associates, Inc. in James Osburn’s negligence action against it. Finds that DKA did not owe Osburn a duty and that the trial court did not err in granting summary judgment for DKA.

Penny Denecho, Edward Denecho, and Darlene Johnson v. Indiana Farm Bureau Insurance Company (mem. dec.)
18A-CT-2900
Civil tort. Affirms the Indiana Farm Bureau Insurance Company is entitled to the summary judgment awarded it by the Madison Circuit Court after Penny and Edward Denecho’s complaint. Finds the Denechos breached their insurance contract and are now precluded as a matter of law from maintaining an action against Farm Bureau for uninsured motorits benefits.

Marcus Lloyd v. State of Indiana (mem. dec.)
18A-CR-2649
Criminal. Grants Marcus Lloyd’s petition for rehearing for the limited purpose of correcting the memorandum decision in his case. Finds Lloyd correctly observed the memorandum decision incorrectly stated that he had to prove “reasonable fear of death or serious bodily harm.” However, finds the state negated Lloyd’s claim of self-defense by proving that he willingly participated in the fight and refused to withdraw from the fight when ordered to do so by police officers. Affirms the decision in all other respects.

Abraham Erastus Perry II v. State of Indiana (mem. dec.)
19A-CR-769
Criminal. Affirms Abraham Perry’s conviction of Level 5 felony intimidation and Class B misdemeanor criminal mischief. Finds there is sufficient evidence to support Perry’s intimidation conviction.

Eran D. Haddock v. State of Indiana (mem. dec.)
19A-CR-154
Criminal. Affirms Erin Haddock’s 14-year sentence for conviction of Level 3 felony dealing in cocaine or a narcotic drug. Finds the Huntington Superior Court did not abuse its discretion in determining mitigating factors and that Haddock’s sentence is not inappropriate.