Opinions Aug. 31, 2020

Indiana Court of Appeals
Franciscan ACO, Inc., Franciscan Alliance, Inc., and Charlotte Sweezer v. Vaughn Newman, as personal represenatative of the Estate of Virginia Newman
19A-CT-2465
Civil tort. Reverses the denial of Charlotte Sweezer, Franciscan ACO Inc. and Franciscan Alliance Inc.’s motion for partial summary judgment on a wrongful death claim brought by Vaughn Newman as personal representative of the Estate of Virginia Newman. Finds no genuine issue of material fact exists, so the Lake Superior Court erred in denying the motion for partial summary judgment. Remands for proceedings.

Robin Dale Kilgore Peppers v. State of Indiana
20A-CR-796
Criminal. Affirms Robin Dale Kilgore Peppers’ conviction of Class A misdemeanor intimidation. Finds the state presented sufficient evidence from which a reasonable jury could determine that the communication element of the intimidation statute was satisfied. Also finds Peppers has failed to show how the St. Joseph Superior Court’s voir dire procedure led to a jury panel that was not fair or impartial, and there is no error, fundamental or otherwise, in the trial court’s conduct of voir dire.

State of Indiana v. Michael Stone
20A-CR-421
Criminal. Reverses the grant of Michael Stone’s motion to suppress evidence found following the execution of a search warrant at his residence. Finds a reasonably prudent person could make a practical, common-sense determination, given all the circumstances set forth in Detective Joseph Nies’ testimony, that there was a fair probability that the stolen Sig Sauer handgun would be found at Stone’s home. Also finds the Cass Superior Court erred in suppressing the evidence seized during the execution of the search warrant. Remands.

Nolan Holloway v. Grant County Area Plan Commission (mem. dec.)
20A-PL-117
Civil plenary. Affirms the denial of Nolan Holloway’s petition for judicial review following an adverse decision by the Grant County Area Plan Commission. Finds the Grant Superior Court was not required to vacate the Plan Commission’s final decision following a violation of Indiana’s Open Door Law. Also finds Holloway did not preserve for judicial review his argument that the Plan Commission was required to approve his final concentrated feeding operation application as a ministerial act or his argument that the Plan Commission violated his due process rights at the final meeting on his request.

Sarah Nickolson, et al. v. Tammie Freed (mem. dec.)
20A-CT-1046
Civil tort. Affirms the grant of summary judgment to Tammie Freed on immunity grounds in the negligence suit brought by Sarah, Terry and Mataya Nickolson. Finds that because Freed was not acting clearly outside the scope of her employment at the time of the collision between Mataya’s vehicle and Freed’s school bus, Freed is entitled to government employee immunity. Also finds the DeKalb Superior Court properly granted summary judgment.

George W. Dixon v. State of Indiana (mem. dec.)
19A-CR-1112
Criminal. Affirms George W. Dixon’s convictions of unlawful possession of a firearm by a serious violent felon as a Class B felony, escape as a Class D felony and his adjudication as a habitual offender. Finds that the delay in bringing Dixon to trial did not violate Criminal Rule 4(C) and that Dixon has failed to make a cogent argument that the delay in bringing him to trial violated his federal and state constitutional rights. Also finds the Vigo Superior Court did not err when it denied Dixon’s motions to dismiss the charges against him or when it admitted evidence officers had seized during a warrantless search of his home. Finally, finds the trial court did not err when it denied Dixon’s motion to dismiss the habitual offender allegation.

Charles J. Sauter v. Robert Brack (mem. dec.)
20A-MI-751
Miscellaneous. Affirms the denial of Charles J. Sauter’s motion for summary judgment and the grant of Robert Brack’s motion for summary judgment on Sauter’s claim for unpaid sums. Finds the Marion Superior Court did not err in ruling for Brack on the competing motions for summary judgment.

Rene Tlatoa-Lara v. State of Indiana (mem. dec.)
20A-CR-792
Criminal. Affirms Rene Tlatoa-Lara’s conviction of Class A misdemeanor operating a vehicle while intoxicated endangering a person. Finds there is sufficient evidence supporting the conviction in Hamilton Superior Court.

Tosha Richardson v. State of Indiana (mem. dec.)
20A-CR-300
Criminal. Affirms Tosha Richardson’s sentence of 11 years, with three years suspended to probation, for her conviction of Level 4 felony dealing in methamphetamine. Finds Richardson’s sentence in Ripley Circuit Court is not inappropriate in light of the nature of the offense and her character.

Garrett M. Morrow v. State of Indiana (mem. dec.)
20A-CR-476
Criminal. Affirms Garrett Marcus Morrow’s sentence of 730 days in the Hancock County Jail for his conviction of Level 6 felony battery. Finds Morrow was not denied a fair opportunity to controvert the presentence investigation report. Also finds Morrow has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

Tracey Herron v. State of Indiana (mem. dec.)
19A-CR-3019
Criminal. Affirms Tracey Herron’s convictions of three counts of Class A felony child molesting, one count of Level 1 felony child molesting and one count of Level 4 felony sexual misconduct with a minor. Finds the Marion Superior Court did not abuse its discretion by admitting screenshots of Herron’s Facebook messages.

Isaac J. Horne v. State of Indiana (mem. dec.)
20A-CR-877
Criminal. Affirms Isaac Horne’s convictions of Level 6 felony domestic battery resulting in moderate bodily injury and Class A misdemeanor invasion of privacy. Finds the Vanderburgh Superior Court did not err in determining that Horne’s constitutional right to confrontation was forfeited by his wrongful conduct.

Paternity: Terry P. Haymaker v. Carolyn A. Vessels and the State of Indiana (mem. dec.)
20A-JP-919
Juvenile paternity. Affirms the denial of father Terry P. Haymaker’s motion to correct error after the Tippecanoe Superior Court determined that he was $64,406 in arrears of his child support obligation. Finds the trial court did not abuse its discretion in rejecting Haymaker’s assertion that the 1993 and 1996 letters to the trial court should have been treated as requests to modify his child support obligation. Also finds the trial court did not abuse its discretion in denying Haymaker’s motion to correct error.

B.M. v. State of Indiana (mem. dec.)
20A-JV-335
Juvenile. Reverses the juvenile court’s dispositional order adjudicating B.M. as a delinquent child for acts that, if committed by an adult, would be Class B misdemeanor criminal mischief and awarding wardship of B.M. to the Indiana Department of Correction. Finds the juvenile court abused its discretion when it failed to determine that B.M. is a dual-status child and ordered that he be assessed by a dual-status assessment team as required by Indiana Code § 31-41-2-1 before entering a dispositional order. Remands with instructions for the Case Circuit juvenile court to enter an order finding that B.M. is a dual-status child and referring him to be assessed by a dual-status assessment team.

Coby Jent v. Jerrilee Cave (mem. dec.)
19A-DR-1411
Domestic relations. Affirms the order dividing the marital estate of Jerilee Cave and Coby Jent and the denial of Jent’s motion to correct error and motion for relief from judgment. Finds the Madison Circuit Court did not err in granting Cave a larger share of the marital estate, nor in rejecting Jent’s claim that Cave damaged or discarded personal property. Also finds the trial court did not abuse its discretion in failing to conclude that Cave intentionally destroyed evidence and imposing sanctions, or as to either the motion to correct error or the motion for relief from judgment. Finally, finds the trial court did not abuse its discretion by rejecting Jent’s request for attorney fees.

Charles D. St. Clair v. State of Indiana (mem. dec.)
20A-CR-662
Criminal. Affirms Charles St. Clair’s conviction of possession of marijuana as a Class B misdemeanor. Finds that because St. Clair failed to object to specific statements during officers’ testimony in Allen Superior Court and has not argued fundamental error on appeal, any claim as to the admissibility of challenged evidence has been waived.

Quinton Devon Newsome v. State of Indiana (mem. dec.)
20A-CR-414
Criminal. Affirms Quinton Newsom’s conviction in Tippecanoe Superior Court of Level 6 felony intimidation. Finds the state presented sufficient evidence to support Newsom’s conviction. Also finds Newsom has not shown fundamental error in the jury instructions.

In the Matter of the Termination of Parental Rights of M.C., Mother, N.J., Father, and Z.J., Child, M.C. v. Indiana Department of Child Services (mem. dec.)
20A-JT-399
Juvenile termination of parental rights. Affirms the termination of mother M.C.’s parental rights to her minor child, Z.J. Finds the Madison Circuit juvenile court did not err in making findings. Also finds the juvenile court’s termination of M.C.’s parental rights to Z.J. was not clearly erroneous.

Laura Gaye Perry v. State of Indiana (mem. dec.)
19A-CR-2986
Criminal. Affirms Laura Gaye Perry’s conviction of Class B misdemeanor battery in Boone Superior Court. Finds the evidence was sufficient to establish that Perry committed battery as a Class B misdemeanor and that she did not act in self-defense.

Eric J. Lairson v. State of Indiana (mem. dec.)
20A-CR-28
Criminal. Affirms Eric J. Lairson’s conviction of murder for beating his girlfriend to death and his 60-year sentence. Finds the Wayne Superior Court did not abuse its discretion in refusing to instruct the jury on reckless homicide. Also finds Lairson has failed to establish that his sentence is inappropriate.

In Re: The Termination of the Parent-Child Relationship of H.H. (Minor Child); D.M. (Father) v The Indiana Department of Child Services (mem. dec.)
20A-JT-718
Juvenile termination of parental rights. Affirms the termination of father D.M.’s parent-child relationship with his son, H.H. Finds there is sufficient evidence to support the St. Joseph Probate Court’s decision to terminate the parent-child relationship.

Jerrick L. Whitley v. State of Indiana (mem. dec.)
19A-CR-2833
Criminal. Affirms Jerrick Whitley’s convictions of two counts of murder, Level 3 felony aggravated battery and possession of a firearm. Finds the Marion Superior Court’s admission into evidence of statements made by Detective Brian Schemenaur and Whitley during a police interview did not constitute an abuse of discretion. Also finds Whitley has not shown that the evidence presented was insufficient to support his conviction for the murder of James Ratcliffe.

In the Matter of the Termination of the Parent-Child Relationship of M.E., M.E., and C.E. (children), A.B. (Mother) and D.E. (Father) v. Indiana Department of Child Services (mem. dec.)
20A-JT-77
Juvenile termination of parental rights. Affirms the involuntary termination of mother A.B. and father D.E.’s parental rights to two of their three children. Finds the Morgan Superior Court’s conclusion that there is a reasonable probability that the conditions that resulted in the children’s removal and/or continued placement outside the home will not be remedied was not clearly erroneous.

In the Matter of the Termination of Parental Rights of M.C., Mother, N.J., Father, and Z.J., Child, N.J. v. Indiana Department of Child Services (mem. dec.)
20A-JT-427
Juvenile termination of parental rights. Affirms the termination of father N.J.’s parental rights to his minor child, Z.J. Finds the Madison Circuit juvenile court’s termination of N.J.’s parental rights to Z.J. was not clearly erroneous.

Joseph L. Arrington v. State of Indiana (mem. dec.)
20A-CR-766
Criminal. Affirms Joseph L. Arrington’s sentence of 12 years, with two years suspended to probation on Count I and five years on Count II, served concurrently, for his convictions in Allen Superior Court of two counts of dealing cocaine. Finds Arrington has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

City of Rushville Board of Zoning Appeals, by Joe Rathz in his capacity as Chairman v. Gerald A. McCormick and Christopher Thayer, et al. (mem. dec.)
20A-PL-212
Civil plenary. Reverses the order setting aside the Rushville Board of Zoning Appeals’ decision that Christopher Thayer had abandoned a nonconforming use of property he had owned. Finds the evidence before the board was sufficient under the standards applicable to judicial review. Remands to the Rush Circuit Court for proceedings.

Robert Rogers v. State of Indiana (mem. dec.)
20A-CR-702
Criminal. Remands for correction of the Marion Superior Court order requiring Robert Rogers to pay an “Adult Probation Administrative Fee” of $290 after he was convicted of Class A misdemeanor battery resulting in bodily injury and was sentenced to 365 days, with all but two days suspended to probation. Finds the $290 fee is mislabeled. Remands with instructions that the trial court correct its fee order such that the “Adult Probation Administrative Fee” is $48.50 and the “Adult Probation Monthly and Initial User Fees” are $290.

Kevin L. Martin v. Superintendent Dick Brown (mem. dec.)
20A-CT-465
Civil tort. Reverses the dismissal of Kevin L. Martin’s complaint pursuant to Indiana Trial Rule 41(E) for Martin’s failure to prosecute his claim. Finds the Sullivan Circuit Court failed to set the required hearing and dismissed Martin’s case without notice to give him the opportunity to show cause why his complaint should not be dismissed. Also finds the trial court abused its discretion in dismissing Martin’s complaint. Remands with instructions to the trial court to set a hearing to allow Martin to show cause why his complaint should not be dismissed.

William J. Ray v. State of Indiana (mem. dec.)
19A-CR-2869
Criminal. Affirms William Ray’s convictions of Level 3 felony rape; Level 5 felony counts of kidnapping, criminal confinement and burglary; Level 6 felony sexual battery; and his status as a habitual offender. Finds the Allen Superior Court did not abuse its discretion in admitting drumbeat repetition evidence. Also finds that although the trial court did abuse its discretion in allowing vouching testimony, any error in the admission of evidence was harmless.

Pamela Anne Langguth v. Michael Langguth (mem. dec.)
20A-DC-441
Domestic relations with children. Affirms the order granting Michael Langguth’s motion to set aside a 2009 court order for acceptable processing that was tied to the decree of dissolution of his marriage to Pamela Langguth. Finds the Hendricks Superior Court had subject matter jurisdiction to consider Michael’s motion. Also finds the trial court did not err by granting the motion absent any evidence or fraud, or by finding implicitly that Michael met his burden under Trial Rule 60(B).

Gabriel Correa v. Bridgett Correa (mem. dec.)
19A-DC-2535
Domestic relations with children. Affirms the dissolution order in favor of Bridgett Correa and against Gabriel Correa. Finds the Madison Circuit Court acted within its discretion when it valued the marital home, divided the marital estate and calculated Gabriel’s child support obligation. Also finds the trial court did not abuse its discretion in denying Gabriel’s motion to correct error. Judge Melissa May concurs in result with separate opinion.