Opinions Feb. 28, 2022

The following opinions were posted after IL deadline Friday:
7^th Circuit Court of Appeals
USA Gymnastics v. Liberty Insurance Underwriters, Inc.
20-1245
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Affirms and reverses in part the district court’s order adopting bankruptcy court findings that initial insurance claims filed by USA Gymnastics related to Larry Nassar were timely made and that a wrongful-conduct exclusion applied only to those claims for which Nassar was criminally convicted. Finds USA Gymnastics’ claims were timely made during the policy period, and the wrongful conduct exclusion in the Liberty Insurance Underwriters policy applies to 10 instances of Nassar’s sexual abuse, but not to all claims related to his abuse. Also finds a bodily injury exclusion in the policy does not preclude coverage, and that insurance coverage is proper for various government investigations and other matters. Finally, finds the policy contains a $250,000 “Third Party EPL” sublimit, and the bankruptcy court should have considered extrinsic evidence about the meaning of this endorsement. Remands for further proceedings on the endorsement question. Judge Michael Brennan concurs and dissents in part with separate opinion.

Indiana Supreme Court
Progressive Southeastern Insurance Company v. Bruce A. Brown, et al.
21S-CT-496
Civil tort. Affirms the Carroll Circuit Court’s judgment that Progressive Southeastern Insurance Company had not duty to defend or indemnify trucker Bruce Brown following an accident but reverses its judgment that the MCS-90 endorsement to an insurance policy applied. Finds Brown was neither engaged in interstate commerce at the time of the accident nor transporting hazardous property, so the MCS-90 endorsement did not apply under either federal or state law.

In the Matter of Jason M. Smith
20S-DI-577
Attorney discipline. Suspends Jason M. Smith for 30 days with automatic reinstatement. Finds Smith committed attorney misconduct by making several statements about a judge’s qualification or integrity, either knowing the statements were false or with reckless disregard for their truthfulness.

Monday opinions
Court of Appeals of Indiana
James Louis Warren v. State of Indiana
21A-CR-247
Criminal. Affirms James Warren’s convictions for level 2 felony dealing in methamphetamine, Level 6 felony possession of a controlled substance while in possession of a firearm and Level 6 felony maintaining a common nuisance but vacates the Howard Superior Court’s sentencing order. Finds any error in the admission of evidence was harmless. Also finds the trial court erred by denying Warren’s request to exercise his right to be physically present during his sentencing hearing. Remands with instructions for the trial court to hold a sentencing hearing where Warren is physically present.

Sjon Martin v. Joe Krise, Tina Krise, Top Quality Professional Construction, LLC
21A-SC-1337
Small claims. Grants Sjon Martin’s petition for rehearing for the limited purpose of responding to his petition. Finds that under Indiana Small Claims Rule 10(B), Tina Krise did not need to appear, and default against her would have been improper. Also finds Martin did not make other claims of “a significant departure from the trial rules” in his trial proceedings and thus waived that claim by making it for the first time on appeal. Finally, finds the Court of Appeals did not err by “’significantly’ misquoting a particular passage of Martin’s brief.’”

Randall S. Mitchell II v. State of Indiana
21A-CR-1570
Criminal. Affirms and reverses in part Randall Mitchell II’s sentence to 1½ years in the Indiana Department of Correction for his convictions of Level 6 felony possession of methamphetamine and Class C misdemeanor possession of paraphernalia. Finds the sentence is not inappropriate. Also finds the Allen Superior Court abused its discretion when it sentenced Mitchell to the DOC. Remands with instructions to correct the abstract of judgment and sentencing order so that Mitchell can be transferred to the appropriate county jail.

Espedicto Padilla Carranza v. State of Indiana
21A-CR-1742
Criminal. Affirms Espedicto Padilla Carranza’s convictions of Level 1 felony child molesting and Level 4 felony child molesting, and his sentence to an aggregate of 43 years. Finds there was no double jeopardy violation.

Michael R. Hamilton v. State of Indiana
21A-CR-2519
Criminal. Affirms Michael R. Hamilton’s conviction for burglary as a Level 4 felony. Finds the Marion Superior Court did not abuse its discretion in the admission of evidence. 

In Re: The Termination of the Parent-Child Relationship of J.S. (Minor Child); L.S. (Mother) v. The Indiana Department of Child Services
21A-JT-1632
Juvenile termination of parental rights. Affirms the termination of mother L.S.’s parent-child relationship with J.S. Finds there is sufficient evidence to support the termination.

Charles Allen Jackson v. State of Indiana (mem. dec.)
21A-CR-1455
Criminal. Affirms Charles Allen Jackson’s conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds there is sufficient evidence to support the conviction.

Nicholas Owens v. State of Indiana (mem. dec.)
21A-CR-1523
Criminal. Affirms Nicholas Owens’ convictions for unlawful possession of a firearm by a serious violent felon as a Level 4 felony, possession of a narcotic as a Level 5 felony and resisting law enforcement as a Class A misdemeanor. Finds neither the admission of challenged evidence nor the fact that the Wayne Superior Court did not sua sponte bifurcate the proceedings require reversal.

Grace Akinlemibola v. Bolanle Sobande (mem. dec.)
21A-PO-1642
Protective order. Affirms the denial of Grace Akinlemibola’s petition to renew a protective order against Bolanle Sobande. Finds the Hendricks Superior Court did not err.

Jonathan Flick v. State of Indiana (mem. dec.)
21A-CR-1697
Criminal. Affirms Jonathan R. Flick’s conviction for Class B misdemeanor harassment. Finds the state presented sufficient evidence beyond a reasonable doubt to support Flick’s conviction for harassment. Also finds the Adams Superior Court did not err when it permitted a police officer to remain at the state’s table despite a separation-of-witnesses order.

Stanley Balcerak v. The Estate of Roger Craft (mem. dec.)
21A-ES-1731
Estate, supervised. Affirms the denial of Stanley Balcerak’s motion to transfer property. Finds that even if the mention in a contract that Balcerake pay property taxes and agree to hold Roger Craft harmless and indemnify him constituted consideration, reversal is not warranted because Balcerak does not assert that he paid the property taxes pursuant to the contract, and the record does not reveal that he presented any evidence regarding the payment of property taxes. Also finds the Brown Circuit Court did not consider the argument raised at the hearing regarding whether Balcerak was entitled to some value for the improvement he made to the property. Remands for the trial court to consider that claim.

Shane Lewis Allen v. State of Indiana (mem. dec.)
21A-CR-1773
Criminal. Affirms Shane Lewis Allen’s convictions of one count each of Class A misdemeanor resisting law enforcement, Class A misdemeanor refusal to leave an emergency area and Class B misdemeanor false informing, and his sentence to an aggregate of 365 days. Finds there was no error in the admission of State’s Exhibit 4. Also finds there is sufficient evidence to support Allen’s convictions of resisting law enforcement and refusal to leave an emergency incident area. Finally, finds his sentence is not inappropriate.

In the Matter of the Termination of the Parent-Child Relationship of: E.M., H.W., Ja.W. Hy.W., Je.W., and L.W. (Minor Children); J.W. (Mother) v. Indiana Department of Child Services (mem. dec.)
21A-JT-1788
Juvenile termination of parental rights. Affirms the termination of mother J.W.’s parental rights to six of her children. Finds J.W. has not established that the challenged findings are clearly erroneous. Also finds the Orange Circuit Court did not err when it concluded there is a reasonable probability that the conditions leading to the children’s removal will not be remedied. Finally, finds the totality of the evidence supports the trial court’s determination that termination of J.W.’s parental rights is in the children’s best interests.

Travis Arthur Graham v. State of Indiana (mem. dec.)
21A-CR-2019
Criminal. Affirms the revocation of Travis Arthur Graham’s probation. Finds the Hendricks Superior Court did not commit fundamental error when it revoked Graham’s probation and ordered him to serve the entirety of his previously suspended sentence. Also finds Graham was advised of his due process rights.

H.P. v. A.K. (mem. dec.)
21A-PO-2040
Protective order. Affirms the grant of a protective order in favor of A.K. and against H.P. Finds the Allen Superior Court’s factual findings were sufficiently specific. Also finds the evidence supported the issuing of the protective order.

In the Termination of the Parent-Child Relationship of K.P. and A.P. (Minor Children) And K.P. (Mother) and J.P. (Father) v. Indiana Department of Child Services (mem. dec.)
21A-JT-2078
Juvenile termination of parental rights. Affirms the termination of mother A.P. and father J.P.’s parental rights to A.P. and K.P. Finds the findings mother challenges are supporting by the record, which in turn supports the judgment. Also finds there was sufficient evidence to show that there is a reasonable probability that the reason for the children’s removal will not be remedied, and that termination of the parents’ rights is in the children’s best interests.

Rebecca K. Stuart v. State of Indiana (mem. dec.)
21A-CR-2100
Criminal. Affirms Rebecca K. Stuart’s sentence to 30 years in the Department of Correction, with 23 years executed and seven years suspended to probation, for her convictions of two counts of dealing in methamphetamine as a Level 2 felony. Finds the Decatur Superior Court properly sentenced Stuart.

Marquise Javon Huntr v. State of Indiana (mem. dec.)
21A-CR-2109
Criminal. Affirms the order for Marquise Javon Hunter to serve 365 days of his previously suspended sentence following revocation of his probation. Finds the Hamilton Superior Court did not abuse its discretion.