Opinions Aug. 24, 2020

Indiana Court of Appeals
Shiel Sexton Company, Inc., et al. v. Joshua Towe
18A-CT-01446
Civil tort. Affirms in part the Marion Superior Court’s grant of summary judgment to Joshua Towe as to Circle B Construction Systems’ assumption of a duty to protect Towe. Remands for further proceedings as to breach, causation, and damages. However, reverses the trial court’s grant of summary judgment to Towe as to the assumption of a duty by Shiel Sexton, and remands for the trial court to enter summary judgment for Shiel Sexton as it had no duty to protect Towe.

Michael A Mehringer v. State of Indiana
19A-CR-02281
Criminal. Affirms Michael Mehringer’s nine-year sentence with seven years executed in the Indiana Department of Correction for his conviction of Level 3 felony child molesting. Finds sufficient evidence to support his conviction. Finds the Johnson Circuit Court did not abuse its discretion by omitting mitigating factors in its sentencing statement, nor is Mehringer’s sentence inappropriate given the nature of his offense and his character. Finally, Indiana Code section 35-38-1- 7.5 does not violate either the separation of powers clause of the Indiana Constitution or Mehringer’s due process rights.

Logan M. Osborn v. State of Indiana (mem. dec.)
19A-CR-3071
Criminal. Affirms Logan Osborn’s concurrent two-year term sentences for each of his convictions of two counts of Level 6 felony battery against a public safety official. Finds Osborn’s sentence imposed in Jay Circuit Court is not inappropriate in light of the nature of the offenses and his character.

Sean Milligan v. Kelli Milligan (mem. dec.)
20A-DC-412
Domestic relations, with children. Affirms in part the Marion Superior Court’s discretion in limiting Sean Milligan to supervised visitation with A.M., forbidding private telephone calls, limiting his access to A.M.’s therapist, and finding him to be in contempt for failing to offer Kelli Milligan additional parenting time after that arrest. Agrees with Sean’s contention that the trial court abused its discretion in finding him to be in contempt for failing to inform Kelli of his July 11 arrest. Remands with instructions to determine the amount of attorney fees and reduce the award of attorney fees accordingly.

Daimia Anderson v. State of Indiana (mem. dec.)
20A-PC-585
Post conviction. Affirms the denial of Daimia Anderson’s petition for post-conviction relief in Allen Superior Court. Finds the post-conviction court did not err when it concluded that Anderson was not denied the effective assistance of appellate counsel or when it found that Anderson’s trial counsel was not ineffective when he agreed to waive a jury trial on the firearm enhancement.

Deiandre Bailey v. State of Indiana (mem. dec.)
20A-CR-176
Criminal. Affirms Deiandre Bailey’s convictions of Level 6 felony domestic battery and two counts of Class A misdemeanor domestic battery. Finds Bailey waived his argument because he did not challenge venue at trial in Marion Superior Court, and that, waiver notwithstanding, the state presented sufficient evidence to prove venue by a preponderance of the evidence.

Joanna Marie Allis-Rucker v. State of Indiana (mem. dec.)
20A-CR-518
Criminal. Affirms Joanna Allis-Rucker’s sentence of 8½ years with two years suspended to supervised probation with 1½ years of her executed sentence to be served in community corrections for conviction in Tippecanoe Superior Court of Level 4 felony dealing in methamphetamine. Finds her sentence is not inappropriate.

De Juna Don Sho Cox v. State of Indiana (mem. dec.)
20A-CR-560
Criminal. Affirms De Juna Don Sho Cox’s conviction in Marion Superior Court of Level 4 felony unlawful possession of a firearm by a serious violent felon and Class A misdemeanor resisting law enforcement, as well as a finding that he is a habitual offender. Finds sufficient evidence to support the convictions, but remands for correction of the sentencing order.

Matthew L. McClain, II v. State of Indiana (mem. dec.)
20A-CR-449
Criminal. Affirms Matthew McClain II’s conviction in Newton Superior Court of Level 6 felony intimidation and finding that he is a habitual offender. Finds McClain has not met his appellate burden of demonstrating that his 8½-year sentence is inappropriate in light of the nature of his offense and his character as an offender.

Jerome Wilderness, Sr. v. State of Indiana (mem. dec.)
20A-CR-88
Criminal. Affirms Jerome Wilderness Sr.’s aggregate 55-year sentence for conviction of murder. Finds the Lake Superior Court did not commit fundamental error in instructing the jury and did not abuse its discretion when it denied Wilderness’ request for a mistrial, among other things.

Genaro Garcia v. State of Indiana (mem. dec.)
19A-PC-1127
Post conviction. Affirms the denial of Genaro Garcia’s petition for post-conviction relief. Finds there was no error on Garcia’s assertions that the Greene Circuit Court erred in adopting the state’s proposed findings of fact and conclusions of law; and in denying him post-conviction relief on his claims of ineffective assistance of trial counsel.

In the Matter of the Termination of the Parent-Child Relationship of: K.D-C., Kag.D., Kan.D., Kai.D., Ko.D.; H.C. (Mother) and B.D. (Father) v. Indiana Department of Child Services (mem. dec.)
20A-JT-633
Juvenile termination. Affirms the termination in Jennings Circuit Court of H.C. and B.D.’s parental rights over their five minor children. Finds that termination of the parent-child relationships is in the children’s best interests.

William Robert McCarty v. State of Indiana (mem. dec.)
20A-CR-172
Criminal. Affirms William McCarty’s conviction of attempted murder. Finds sufficient evidence in Grant Circuit Court to support the conviction.