Justices grant transfer to 2 cases, deny transfer to case against couple that allegedly abandoned adopted daughter

A burglary conviction that was tossed and a dispute over insurance coverage for a pair of bars are both headed to the Indiana Supreme Court for review. But the case against an Indiana couple accused of abandoning their adopted daughter has been denied transfer.

The Indiana justices last week granted transfer to Zachary Allen Fix v. State of Indiana, 22S-CR-7, and Dan R. Parks, et al. v. Illinois Casualty Company, 22S-PL-8. The justices denied transfer to 22 other cases, splitting in two of those denials.

In Fix, the Court of Appeals of Indiana overturned a conviction for Level 2 felony burglary while armed with a deadly weapon entered against Zachary Fix, who was convicted after he wrestled a firearm away from a man he was attempting to rob, then struck the man with the weapon.

Fix argued and the Court of Appeals agreed that Indiana Code § 35-43-2-1 concerns what happens at the threshold of a premises, not inside. Thus, the appellate court remanded for the entry of conviction of a lesser-included form of burglary.

In Parks, the COA ruled that insurer Illinois Casualty Company had a duty to defend to two Kokomo bars and their owners after they were sued following a traffic accident caused by a customer. The customer had been ejected from one of the bars after getting into an altercation with another patron before getting in his truck and striking another car.

“Without commenting on the validity of the claims, or their likelihood of success on their merits, we find that the negligence theory based on allowing (the customer) to leave the premises despite knowledge of his intoxication, for example, does not require proof that the bars ‘caused and contributed’ to said intoxication,” Judge Elizabeth Tavitas wrote in August. “As such, this is not a claim for which the business owner’s policy excludes coverage, and thus, the duty to defend attaches.”

Oral arguments have not yet been scheduled in either case.

Among the cases denied transfer was State of Indiana v. Kristine Elizabeth Barnett, et al., 20A-CR-1967.

There, Michael and Kristine Barnett adopted Natalia, whom they believed was 8 years old, in 2010. Natalia is from the Ukraine and has dwarfism.

The Barnetts came to believe Natalia was actually an adult and legally changed her age to 22, claiming they believed she was a con artist trying to kill them. The couple moved to Canada without Natalia in 2013, placing her in a Tippecanoe County apartment. Natalia never saw Kristine again and only saw Michael once in court.

The Barnetts were later charged with six counts of neglect of a dependent and two counts of conspiracy to commit neglect of a dependent. The neglect charges were later dismissed.

On interlocutory appeal, the state argued the trial court erred in applying issue preclusion to exclude evidence that Natalia was a minor when the Barnetts adopted her.

Although the COA rejected that argument,  it also noted that its conclusions “do not prevent the (Tippecanoe County Prosecutor’s Office) from pursuing prosecution of the Barnetts for neglect of Natalia under the theory that she was a dependent because of physical disability. … Our conclusions prevent the TCPO from litigating Natalia’s age.”

Chief Justice Loretta Rush and Justice Mark Massa each voted to grant transfer to the Barnett case.

Rush also dissented from the denial of transfer in Brandon D. Winn v. State of Indiana, 21A-CR-623, in which the COA affirmed the revocation of Brandon Winn’s probation and the imposition of his previously suspended sentence.

Additionally, Rush did not participate in the decision to deny transfer in Payton Thomas Jarrard v. State of Indiana, 20A-PC-2403, which upheld the denial of Payton Thomas Jarrard’s petition for post-conviction relief.

The full list of transfer decisions for the week ending Jan. 7 is available online.