Opinions June 22, 2020

The following 7^th Circuit Court opinion was posted after IL deadline Friday.
USA v. Jerry J. Jones
19-1644
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard Young.
Criminal. Vacates Jerry Jones’ revised 840-month sentence for conviction of two carjackings, an armed bank robbery, and using firearms during those crimes of violence. Finds that the U.S. District Court for the Southern District of Indiana did not sufficiently justify the extent of its deviation from Jones’ effective guidelines range of 348–390 months. Remands for resentencing.

Indiana Court of Appeals
Micah Richard Kunkle v. State of Indiana
19A-CR-02617
Criminal. Affirms Micah Kunkle’s convictions In Marshall Superior Court of Level 3 felony costs of aggravated battery, battery resulting in serious bodily injury to a person less than 14 years old, neglect of a dependent resulting in serious bodily injury; and Level 5 felony battery resulting in bodily injury to a person less than 14 years of age. Finds Kunkle was not subjected to double jeopardy because the state argued different injuries to support each of his three convictions of battery. Finds sufficient evidence to convict Kunkle of Level 3 felony neglect of a dependent resulting in serious bodily injury.

Edward Cook v. Mark A. Beeman and State Farm Mutual Automobile Insurance Company
19A-CT-2145
Civil tort. Affirms the Clark Circuit Court’s jury verdict in favor of Mark Beeman in a lawsuit stemming from an automobile accident involving Edward Cook. Finds Cook waived his claims of error.

Robert W. Hamilton v. State of Indiana (mem. dec.)
20A-CR-133
Criminal. Affirms Robert Hamilton’s conviction in Decatur Circuit Court of unlawful possession of a firearm by a serious violent felon as a Level 4 felony, possession of methamphetamine as a Level 5 felony, assisting a criminal as a Level 6 felony, possession of marijuana as a Class B misdemeanor,  and possession of paraphernalia as a Class C misdemeanor. Rejects Hamilton’s claims that Sgt. David Durant’s visual observations in the home were an impermissible warrantless search and that all evidence seized subsequent to Durant’s visual observations should be suppressed as fruits of an illegal, warrantless search. Finds that the officers’ entry into Hamilton’s home was justified by exigent circumstances.

Charlton Jones v. State of Indiana (mem. dec.)
19A-CR-2291
Criminal. Affirms Charlton Jones’ concurrent 365-day sentences on each charge with credit for four days served and 361 days suspended on his convictions for Class A misdemeanor possession of marijuana and Class A misdemeanor operating a vehicle while intoxicated endangering a person. Finds sufficient evidence to support both convictions entered in Marion Superior Court.

In re the Termination of the Parent-Child Relationship of L.J.S. (Minor Child) and R.J.C. (Mother); R.J.C. (Mother) v. Indiana Department of Child Services (mem. dec.)
19A-JT-2984
Juvenile termination. Affirms the termination of R.J.C.’s parental rights to her son, L.J.S. Finds the Tippecanoe Superior Court did not err when it concluded that termination is in the child’s best interests.

Robert S. Flowers, Jr. v. State of Indiana (mem. dec.)
19A-CR-2800
Criminal. Affirms Robert Flowers’ 18-month sentence for conviction of Level 6 felony battery on a public safety official and Class B misdemeanor disorderly conduct. Finds Flowers has failed to prove that the prosecutor committed misconduct or, if he did, that any such misconduct constituted fundamental error in Delaware Circuit Court.

Jesus Ortiz v. State of Indiana (mem. dec.)
19A-CR-1473
Criminal. Affirms Jesus Ortiz’s aggregate 60-year sentence with 20 years suspended to probation for conviction in St. Joseph Superior Court of two counts of Class A felony child molesting. Finds the trial court was without authority to modify his sentence and did not abuse its discretion when it denied Ortiz’s motion.

Ken Gunn, Jr. v. State of Indiana (mem. dec.)
19A-CR-2346
Criminal. Affirms in part, reverses in part, remands Ken Gunn, Jr.’s aggregate 92-year sentence for conviction of Level 1 felony counts of child molesting and attempted child molesting, five counts of Level 4 felony child molesting, and one count of Class A misdemeanor intimidation. Finds that the evidence is sufficient to support Gunn’s conviction of Level 1 felony attempted child molesting but that two of Gunn’s convictions constitute double jeopardy. Reverses his conviction on amended Count VIII and remands to Marion Superior Court with instructions to vacate the judgment of conviction and the sentence entered on that count.

In re the Matter of L.D., E.Z, and C.Z. (Minor Children) and B.Z. (Father) v. Indiana Department of Child Services (mem. dec.)
20A-JC-9
Juvenile CHINS. Affirms the adjudication in Marion Superior Court of B.Z.’s three minor children as children in need of services. Finds father has not established reversible error and that DCS proved by a preponderance of the evidence that the children are CHINS.

Kenneth Sumner v. Loree Wheeler (mem. dec.)
19A-DC-2443
Domestic relations, children. Affirms the Hendricks Superior Court’s order denying Kenneth Sumner’s motion to modify child support and its requirement that he pay a portion of Loree Wheeler’s attorney fees. Finds the trial court did not abuse its discretion when it denied father’s motion to modify child support. Finds both father and father’s wife testified that his income had not changed since the 2018 order. Additionally, the trial court did not abuse its discretion in ordering father to pay a portion of mother’s attorney fees, as mother incurred substantial litigation expenses primarily because of father’s actions.

Byron N. Diaz v. State of Indiana (mem. dec.)
20A-CR-259
Criminal. Affirms Byron Diaz’s four-year sentence, with two years executed and two years to be served in home detention, for conviction in Elkhart Circuit Court of Level 5 felony operating a motor vehicle after his driving privileges were forfeited for life. Finds Diaz has not persuaded the court that the sentence imposed in case number F5-205 is inappropriate in light of the nature of the offense and the character of the offender. Finds in case number F5-210, the trial court did not abuse its discretion when it revoked Diaz’s probation and ordered him to serve his previously suspended one-year sentence in the Department of Correction.

Joseph Newcome v. State of Indiana (mem. dec.)
19A-CR-2961
Criminal. Affirms Joseph Newcome’s 38-year sentence following his plea of guilty mentally ill to Level 1 felony attempted murder. Finds the sentence in Jefferson Circuit Court is not inappropriate in light of the nature of his offense and his character as an offender, such that it warrants revision under Appellate Rule 7(B).