Opinions Sept. 27, 2021

Indiana Court of Appeals 

Zachary Fix v. State of Indiana
20A-CR-1566
Criminal. Affirms and reverses in part Zachary Fix’s convictions of Level 2 felony burglary while armed with a deadly weapon, Level 5 felony robbery and Level 6 felony theft. Finds the state did not present sufficient evidence to prove Fix committed Level 2 felony burglary while armed with a deadly weapon because Fix was not armed when he broke and entered the burglarized building. Also finds that Fix can be convicted of both burglary and robbery without violating the Indiana Constitution’s prohibition against double jeopardy. Remands with instructions for the Madison Circuit Court to vacate Fix’s conviction of Level 2 felony burglary and enter convictions of Level 3 felony armed robbery and a lower-level burglary offense and to resentence him.

State of Indiana v. C.D.
21A-CR-72
Criminal. Affirms the dismissal of charges of Class B felony child molesting against C.D. Finds the criminal court does not have jurisdiction to try C.D. — who has a juvenile at the time of the alleged offense — for the alleged act. Also finds that the plain language of Indiana Code § 31-30-1-11(a) requires a criminal court to transfer such a case to juvenile court. Finally, finds that any transfer by the criminal court to juvenile court in this case would be a moot action.

Jason B. Swopshire v. State of Indiana
21A-CR-224
Criminal. Affirms and reverses in part the denial of Jason B. Swopshire’s motion to dismiss. Affirms the Allen Superior Court’s application of the 2013 amendment to Indiana Code § 35-31-4-2 to the state’s charges and, for the dates alleged in Counts 1-3 and 5 from July 1, 2009, forward, the application of the 2019 amendment to the same statute. Also affirms the trial court’s denial of the motion to dismiss under Article 1, Section 23. Reverses the denial of Swopshire’s motion to dismiss with respect to dates alleged prior to July 1, 2009, in Counts 1-3 and 5. Finds that a person who is alleged to have committed an offense on a date that requires the application of one statute of limitations is not similarly situated to a person who is alleged to have committed the same offense but on a different date under a different statute of limitations. Remands with instructions for the trial court to permit the state to amend the information on Counts 1-3 and 5 to omit the dates prior to July 1, 2009, and to allege only the dates from July 1, 2009, forward.

In the Matter of To.R. (Child in Need of Services), Th.R. (Father), and L.R. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc.
21A-JC-409
Juvenile CHINS. Affirms the adjudication of To.R., child of father Th.R. and mother L.R., as a child in need of services. Finds the Marion Superior Court did not err when it adjudicated To.R. as a CHINS. Also finds the trial court did not abuse its discretion or violate CHINS venue requirements when it did not grant Th.R.’s request to transfer prior to its dispositional order.

Sidney Corey Kirkland v. State of Indiana
21A-CR-568
Criminal. Dismisses Sidney Kirkland’s appeal of the order revoking his probation. Finds Kirkland’s claims are not properly before the Indiana Court of Appeals. Also finds Kirkland must pursue his claims through post-conviction proceedings, if at all.

Timothy J. Glenn v. State of Indiana (mem. dec.)
21A-CR-294
Criminal. Affirms Timothy J. Glenn’s conviction of Level 4 felony burglary. Finds the Tippecanoe Superior Court did not abuse its discretion or cause a manifest injustice when it refused to allow Glenn to withdraw his guilty plea. Also finds the record supports the trial court’s finding that Glenn entered into the plea agreement knowingly and voluntarily. Finally, finds the trial court was not required to credit Glenn’s claims of intoxication or his protestations of innocence when these assertions directly contradicted what he said when he entered his guilty plea.

Danny R. DeBaun v. Cathy L. DeBaun (mem. dec.)
21A-DR-576
Domestic relations. Affirms the contempt order against Danny R. DeBaun for his failure to comply with a 2006 decree dissolving his marriage to his ex-wife, Cathy L. DeBaun, and a 2007 agreed order entitling Cathy to half of Danny’s retirement account distributions upon his retirement. Finds the Switzerland Circuit Court acted within its discretion in finding Danny in contempt for willful disobedience of court orders to provide Cathy with copies of his vehicle titles and pay her one half of his monthly pension disbursements. Also finds the appealed order does not involve an order of direct payment or garnishment from exempt sources of income or contrary to statute.

Phillip Smith v. State of Indiana (mem. dec.)
21A-CR-609
Criminal. Affirms Phillip Smith’s sentence to five years, with three years executed and two years suspended to probation, for his conviction of Level 5 felony dealing in marijuana. Finds Smith’s sentence is not inappropriate.

In the Matter of the Termination of the Parent-Child Relationship of A.M., Mother, V.B., Father, and A.M., Minor Child, A.M. v. Indiana Department of Child Services (mem. dec.)
21A-JT-682
Juvenile termination of parental rights. Affirms the termination of mother A.M.’s parental rights to child A.M. Finds the Dearborn Circuit Court did not commit clear error.

Gregory Obrien v. State of Indiana (mem. dec.)
21A-CR-798
Criminal. Affirms Gregory Obrien’s conviction of Class A misdemeanor resisting law enforcement. Finds sufficient evidence supports Obrien’s conviction.

Keep it Moving, LLC v. Connie Dawson, individually and as parent and natural Guardian of Landen Dawson, Minor Child (mem. dec.)
21A-CT-913
Civil tort. Affirms the denial of Keep it Moving LLC’s motion to set aside a default judgment with respect to a negligence action brought against it by Connie Dawson, individually and as parent to her minor child, Landen Dawson. Finds the Lake Superior Court properly denied Keep it Moving’s motion to set aside the default judgment. Also finds the trial court properly refused the damage award pursuant.

Charles Summers v. State of Indiana (mem. dec.)
21A-CR-974
Criminal. Affirms Charles Summers’ conviction for Level 5 felony auto theft. Finds the evidence is sufficient.