Opinions Jan. 31, 2020

Indiana Court of Appeals
Small Business in Transportation Coalition, et al. v. Indiana Department of Revenue, et al.
19A-PL-370
Civil Plenary. Affirms the Marion Superior Court order in favor of the Indiana Department of Revenue on a complaint by Small Business in Transportation and other plaintiffs’ class-action suit seeking the reimbursement of potentially hundreds of millions of dollars in state motor carrier fees collected through an internet portal. Hold the plaintiffs’ efforts to recoup fees voluntarily paid through the portal is without basis in law.

Daniel L. Hess and Leanna S. Hess v. Sheryll (Durbin) Novicki, and The Board of Directors of the Cordry-Sweetwater Conservancy District
19A-CT-1416
Civil tort. Affirms the Brown Circuit Court’s decision that it has the legal authority to rule on the merits of an Indiana Trial Rule 60(B) motion to supplement/modify an agreed permanent injunction entered by Daniel and Leanna Hess and Sheryll Novicki to a boundary dispute concerning a waterfront dock and approved.

Delta L. Chapman v. State of Indiana
19A-CR-1636
Criminal. Reverses the Allen Superior Court’s admission of evidence regarding Delta Chapman’s prior conviction for false informing in his jury trial for conviction of Level 6 felony sexual battery. Finds the trial court abused its discretion when it admitted evidence of Chapman’s prior conviction in violation of Indiana Evidence Rule 609(b). Remands with instructions for a new trial. Judge Terry Crone concurs in result with a separate opinion.

Thaddaus Scott v. State of Indiana
19A-CR-516
Criminal. Affirms Thaddaus Scott’s aggregate 10-year and six-month sentence for conviction of Level 5 felony battery resulting in bodily injury to a pregnant woman, Level 5 felony obstruction of justice, and 30 counts of Class A misdemeanor invasion of privacy. Finds Scott’s Sixth Amendment rights were not violated by the admission of statements in Marion Superior Court made by the victim. Finds sufficient evidence to support the convictions.

David Tellez-Salinas v. State of Indiana (mem. dec.)
19A-CR-486
Criminal. Affirms the denial of David Tellez-Salinas’ three motions to suppress related to narcotics discovered from his truck. Finds the Hendricks Superior Court did not abuse its discretion when it denied motions to suppress documents found in the truck and to suppress statements Tellez-Salinas made when he had not been advised of his Miranda rights. Also finds the canine sweep did not unreasonably extend the stop, so the trial court did not abuse its discretion in denying the motion to suppress the narcotics.

Nexgen Mold & Tool, Inc. v. Precise Tooling Solutions, Inc. (mem. dec.)
19A-CT-1369
Civil tort. Affirms the entry of judgment in favor of Precise Tooling Solutions Inc. and against Nexgen Mold & Tool Inc. Finds evidence to support the Bartholomew Superior Court’s conclusions that Precise met its obligations under a purchase order, and Nexgen breached its commitments by failing to pay. Also finds Precise, as the prevailing party on appeal, is entitled to appellate attorney fees. Remands for a calculation of attorney fees to be awarded to Precise.

Jordan Laycock v. Megan (Laycock) Seifrig (mem. dec.)
19A-DC-1721
Domestic relation with children. Affirms the order granting mother Megan Seifrig’s request for relocation and modification of physical custody, parenting time and child support as to her child with father Jordan Laycock, J.L. Finds the Marion Superior Court did not err in its statutory analysis of Megan’s notice of intent to relocate and the associated custody modification that her relocation prompted. Also finds sufficient evidence supports a finding that Megan’s relocation was proposed in good faith. Finally, finds the trial court’s findings as to J.L.’s best interests are supported by the facts presented, and its findings support its judgment approving J.L.’s relocation and awarding Megan primary physical custody.

Damion Cobb v. State of Indiana (mem. dec.)
19A-CR-762
Criminal. Affirms Damion Cobb’s conviction in Marion Superior Court of felony murder. Finds Cobb waived for appellate review his challenge to Detective Susan Woodland’s testimony by not objecting to the testimony at trial or requesting an admonition. Also finds admission of that testimony did not constitute fundamental error in light of the substantial other residence of Cobb’s guilt.

In re the Termination of the Parent-Child Relationship of E.S. (Minor Child) and J.H. (Father) v. Indiana Department of Child Services (mem. dec.)
19A-JT-1767
Juvenile termination of parental rights. Affirms the termination of father J.H.’s parental rights to his minor child, E.S. Finds J.H. has not established that the Greene Circuit Court violated his due process rights by drawing an adverse inference from his invocation of his Fifth Amendment privilege against self-incrimination. Also finds overwhelming evidence supports the trial court’s decision to terminate J.H.’s parental rights to E.S.

J.K. v. State of Indiana (mem. dec.)
19A-JV-1739
Juvenile. Affirms the dispositional order adjudicating J.K. as a delinquent child for committing conversion, a Class A misdemeanor if committed by an adult. Finds the Marion Superior juvenile court was presented with evidence that sufficiently established J.K. committed the offense of conversion.

J.L.F.-D. v. C.N.D. (mem. dec.)
19A-DR-1381
Domestic relation. Affirms the order modifying child custody and suspending father J.L.F.-D.’s parenting time. Finds that because father’s appeal brief is not in compliance with Indiana Appellate Rule 46, it is not clear what issue or issues he raises on appeal, so his appeal is waived. Waiver notwithstanding, and assuming father raises the issue of whether the Wayne Circuit Court erred when it modified child custody and suspended parenting time, also finds the trial court did not abuse its discretion. Finally, finds father failed to establish prima facie error.

In the Matter of the Termination of the Parent-Child Relationship of D.F., Father, K.P., Mother, and W.F., Minor Child, K.P. v. Indiana Department of Child Services (mem. dec.)
19A-JT-1802
Juvenile termination of parental rights. Affirms the termination of mother K.P.’s parental rights to her minor child, W.F. Finds the termination in Starke Circuit Court was not clearly erroneous.

Randy Allen Horn v. State of Indiana (mem. dec.)
19A-CR-2185
Criminal. Affirms Randy Horn’s convictions in Hamilton Circuit Court of Level 5 felony sexual misconduct with a minor, Level 6 felony performing sexual conduct in the presence of a minor and Level 6 felony child seduction. Finds there is sufficient evidence proving Horn was over the age of 18 at the time he committed the offenses.

Michael Gay v. State of Indiana (mem. dec.)
19A-CR-2204
Criminal. Affirms Michael Gay’s two-year executed sentence for his convictions of Level 6 felony criminal recklessness and Level 6 felony failure to appear. Finds Gay has not met his burden to demonstrate his sentence imposed in Ripley Superior Court is inappropriate.

Durrell L. Shepherd v. State of Indiana (mem. dec.)
19A-CR-1740
Criminal. Affirms Durrell L. Shepherd’s conviction of Level 6 felony domestic battery. Finds the record was sufficient to establish that Shepherd knowingly, voluntarily and intelligently waived his right to a jury trial in Marion Superior Court.

India Covington v. State of Indiana (mem. dec.)
19A-CR-1186
Criminal. Affirms India Covington’s conviction in Marion Superior Court of Class A misdemeanor theft. Finds the state presented sufficient evidence that Covington deprived Meijer of the value or use of the items in the shopping cart and her purse, and that she did so knowingly or intentionally.

David E. Allen v. State of Indiana (mem. dec.)
19A-CR-986
Criminal. Affirms David E. Allen’s aggregate 55-year sentence for his convictions in LaPorte Superior Court of Class A felony child molesting and Level 4 felony child molesting. Finds Allen has not met his burden of demonstrating that his sentence is inappropriate.

Orlando D.D. Mitchell v. State of Indiana (mem. dec.)
19A-CR-1816
Criminal. Affirms the revocation of Orlando Mitchell’s probation and the order that he serve the entirety of his five-year sentence at Michiana Community Corrections. Finds Mitchell has not established a violation of his due process rights in St. Joseph Superior Court.

Jaquail Smith v. State of Indiana (mem. dec.)
19A-CR-1613
Criminal. Affirms Jaquail Smith’s murder conviction. Finds there is sufficient evidence to support the conviction entered in Howard Circuit Court.

Alexzander F. Dutton v. State of Indiana (mem. dec.)
19A-CR-799
Criminal. Affirms Alexzander F. Dutton’s conviction of Level 3 felony aggravated battery. Vacates Dutton’s convictions of two counts of Level 5 felony battery. Finds the state presented sufficient evidence to rebut Dutton’s self-defense claim. Also finds any error committed by the prosecutor was not fundamental. Finally, finds that remand to Clinton Superior Court to vacate the Level 5 felony convictions is required to avoid double jeopardy concerns. Remands with instructions.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: V.R. (Minor Child) and J.R. (Father) v. The Indiana Department of Child Services (mem. dec.)
19A-JT-1967
Juvenile termination of parental rights. Affirms the termination of father J.R.’s parental rights to his daughter, V.R. Finds clear and convincing evidence supports the Clark Circuit Court’s findings related to J.R.’s ongoing issues with substance abuse, so it did not clearly err in determining that conditions leading to removal were not likely to be remedied. Also finds the trial court’s conclusion that terminating J.R.’s parental rights is in V.R.’s best interests. Finally, finds sufficient evidence supports the decision to terminate J.R.’s parental rights.

In the Matter of the Guardianship of W.S., Protected Person, Steven Strong and Susan Cocquyt v. Mallor Grodner LLP (mem. dec.)
19A-GU-1428
Guardianship. Vacates the St. Joseph Probate Court’s order granting the attorney fees petition filed by Mallor Grodner LLP in the guardianship proceedings of W.S. Finds the trial court’s order granting the protective order and the motion to quash should be reversed. Remands to the trial court so further discovery can be conducted.

Jesse W. Carfield v. State of Indiana (mem. dec.)
19A-CR-2073
Criminal. Affirms Jesse Carfield’s aggregate 3½-year sentence for conviction in Dearborn Superior Court of Level 6 felony residential entry and Class A misdemeanor operating while suspended with a prior unrelated violation. Finds the sentence is not inappropriate in light of his character and the nature of his offenses.

Benjamin David Stein v. State of Indiana (mem. dec.)
19A-CR-1841
Criminal. Affirms the Fountain Circuit Court’s judgment ordering Benjamin Stein to serve the balance of his previously suspended sentence. Finds the trial court did not abuse its discretion.

Randall Earl Myers v. State of Indiana (mem. dec.)
19A-CR-1736
Criminal. Remands for a determination of credit time due Randall Myers, if any, based upon his second incarceration awaiting trial in this cause in Vermillion Circuit Court and his placement in the Truman House.

In the Matter of: A.A. and H.A. (Children in Need of Services) A.S. (Mother) v. Indiana Department of Child Services (mem. dec.)
19A-JC-1851
Juvenile CHINS. Affirms the adjudication of A.A. and H.A. as children in need of services. Finds the adjudication of the children as CHINS in Elkhart Circuit Court is not clearly erroneous.

Robert L. Moore v. State of Indiana (mem. dec.)
18A-CR-2870
Criminal. Affirms Robert Moore’s six-year sentence for conviction in Dearborn Superior Court for Level 5 felony dealing in a narcotic drug. Finds his sentence is not inappropriate.

DeShawn Lamont Luten v. State of Indiana (mem. dec.)
19A-CR-1488
Criminal. Affirms DeShawn Luten’s conviction in St. Joseph Superior Court of Level 3 felony armed robbery. Finds Luten did not receive ineffective assistance of counsel.

Ricky L. Burnett v. State of Indiana (mem. dec.)
19A-CR-1770
Criminal. Affirms Ricky Burnett’s conviction in Huntington Circuit Court of Level 1 felony child molesting and four counts of Level 4 felony child molesting. Finds sufficient evidence to support Burnett’s conviction of Level 4 felony child molesting as to one of the victims.

Michael Brandon Swafford v. State of Indiana (mem. dec.)
19A-CR-724
Criminal. Affirms Michael Swafford’s convictions of Level 1 felony attempted murder, and Level 6 felony resisting law enforcement. Finds the Marion Superior Court properly denied Swafford’s motion for a mistrial.

Tina Gallo and Rubino, Ruman, Crosmer & Polen, LLC v. Allstate Property and Casualty Insurance Company (mem. dec.)
19A-CT-2308
Civil tort. Dismisses an appeal from the law firm of Rubino, Ruman, Crosmer & Polen, LLC of sanctions entered against it by the Lake Superior Court in a discovery dispute. Finds the appellate court lacks subject matter jurisdiction.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.L. and J.R. (Minor Children) and J.L. (Mother) v. Indiana Department of Child Services (mem. dec.)
19A-JT-1781
Juvenile termination of parental rights. Affirms the termination of J.L.’s parental rights to her children A.L. and J.L. Finds the termination in Marion Superior Court is not clearly erroneous.

Jada Nichole Russell v. State of Indiana (mem. dec.)
19A-CR-1941
Criminal. Affirms Jada Russell’s 545-day sentence for conviction of Class A misdemeanor battery and Class B misdemeanor battery. Finds the Hamilton Superior Court did not abuse its discretion in denying Russell’s request to reopen the case.

Stephanie Schofield v. State of Indiana (mem. dec.)
19A-CR-1751
Criminal. Affirms Stephanie Schofield’s conviction of Class B misdemeanor criminal mischief. Finds sufficient evidence to support her conviction in Marion Superior Court.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.D., Jr. and S.D. (Minor Children) and J.D. (Father) v. The Indiana Department of Child Services (mem. dec.)
19A-JT-1882
Juvenile termination of parental rights. Affirms the termination of J.D.’s parental rights to his children J.D., Jr. and S.D. Finds the termination in Putnam Circuit Court was not clearly erroneous.

Jacob D. Hudson v. State of Indiana (mem. dec.)
19A-CR-1921
Criminal. Affirms the Madison Circuit Court’s order revoking Jacob Hudson’s placement in community corrections and committing him to the Indiana Department of Correction to execute the remainder of his two-year sentence. Finds the trial court did not abuse its discretion.

J.S. v. State of Indiana (mem. dec.)
19A-JV-2147
Juvenile. Affirms and finds the St. Joseph Probate Court did not err by finding that it had no viable alternative for J.S. other than placement in the Department of Corrections.

In the Matter of the Termination of the Parent-Child Relationship of J.C., Mother, and M.H. and M.H., Jr., Minor Children, J.C. v. Indiana Department of Child Services (mem. dec.)
18A-JT-3147
Juvenile termination of parental rights. Affirms the Marion Superior Court’s termination of J.C.’s parental rights to her two minor children. Finds the Department of Child Services adequately complied with the requirements to provide proper notice to J.C.