Opinions March 16, 2022

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Cheryl Weaver v. Speedway, LLC
21‐1957
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge John E. Martin.
Civil. Affirms the Indiana Northern District Court’s entry of summary judgment for Speedway LLC in a premises liability dispute with Cheryl Weaver. Finds that the district court correctly determined that a rational jury, properly instructed on the law of Indiana, could not have determined that Speedway was liable to Weaver on account of her fall outside its store.

Wednesday opinions
Court of Appeals of Indiana
In re the Matter of the Adoption of I.B., A.B. (Father) v. B.B. (Stepfather)
21A-AD-1792
Adoption. Reverses the order granting stepfather B.B.’s petition to adopt I.B. Finds the St. Joseph Probate Court erred when it found father A.B. had not communicated significantly with I.B. for one year prior to the filing of B.B.’s petition to adopt I.B. because mother S.B. thwarted A.B.’s attempts to communicate with I.B. Also finds A.B.’s consent was required for B.B. to adopt I.B.

Kathleen Anne Whaley, M.D. v. Medical Licensing Board of Indiana
21A-MI-1525
Miscellaneous. Affirms the Marion Superior Court’s denial of Kathleen Whaley’s petition for review after the Medical Licensing Board of Indiana denied her request to amend her disciplinary records to show that her conviction of reckless driving had been expunged and to remove other sanctions it had imposed. Finds the board did not misinterpret the law or abuse its discretion in denying Whaley’s motion for rehearing. Also finds the trial court did not err in denying her petition for review. 

Wayde M. Coleman v. Marion County Treasurer and Marion County Auditor (mem. dec.)
21A-TP-365
Petition for tax deed. Dismisses Wayde M. Coleman’s appeal of the denial of his motion to void the tax deed transferring ownership of his property to Marion County. Finds Coleman filed his notice of appeal five days late, so he forfeited it under Indiana Appellate Rule 9(A)(5), and there are no extraordinarily compelling reasons to restore it.

Jose D. Sanchez Maldonado v. State of Indiana (mem. dec.)
21A-CR-1479
Criminal. Affirms Jose D. Sanchez Maldonado’s conviction of Level 5 felony domestic battery with a prior battery conviction related to the same person but vacates his conviction of Level 6 felony domestic battery in the presence of a child less than 16 years old. Finds the deposition of an unavailable witness was admissible as an exception to the hearsay rule because the state demonstrated it made a reasonable but futile effort to secure the witness by serving her with a subpoena requiring her appearance at trial. Also finds that because Maldonado admits his defense counsel had the opportunity to cross-examine the witness during the deposition, no constitutional violation of his right to confront and question a witness against him took place. Finally, finds, and the state concedes, that Maldonado’s Level 6 felony conviction is a lesser-included offense of the Level 5 felony conviction. Remands for resentencing.

Cyrita Desiree Costello v. State of Indiana (mem. dec.)
21A-CR-1592
Criminal. Affirms Cyrita Desiree Costello’s convictions of Level 5 felony intimidation Level 6 felony intimidation and Class A misdemeanor possession of marijuana, and her sentence to an aggregate of four years, with three years executed and one year suspended to probation. Finds the Tippecanoe Circuit Court did not err in admitting State’s Exhibit 26 consisting of body camera video. Also finds Costello has not sustained her burden of establishing that her sentence, including her placement in jail, is inappropriate in light of the nature of the offenses and her character.

J.C. v. State of Indiana (mem. dec.)
21A-JV-1660
Juvenile. Affirms the Elkhart Circuit Court’s dispositional order placing J.C. “in the home environment with services in place.” Finds the further dispositional issue was properly before the trial court even without a formal motion from the probation department because the juvenile court could hold such a hearing on its own motion. Also finds J.C. waived any argument about the authority of the presiding magistrate judge, and waiver notwithstanding, he has not demonstrated fundamental error.

Darius J. Henderson v. State of Indiana (mem. dec.)
21A-CR-1816
Criminal. Reverses the denial of Darius Henderson’s motion to suppress evidence from a warrantless search after he was charged with Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds Henderson’s rights under the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution were violated. Also finds the Elkhart Superior Court abused its discretion in denying Henderson’s motion to suppress. Remands for further proceedings. Judge Derek Molter concurs in result with separate opinion.

Ronald Leroy Dolak, Jr. v. Indiana Department of Correction (mem. dec.)
21A-MI-2243
Miscellaneous. Reverses in part the dismissal of Ronald Dolak Jr.’s petition seeking removal from the Indiana Sex Offender Registry as it applies to a provision requiring Dolak to register for life due to his age and the age of his victim. Finds the retroactive application of the lifetime registration requirement of the age provision violates the ex post facto clause of the Indiana Constitution. Remands for further proceedings.

Brett Miller v. Jessica Miller (mem. dec.)
21A-DR-2311
Domestic relations. Remands for a new child custody hearing between father Brett Miller and mother Jessica Miller regarding their two children. Finds the Crawford Circuit Court’s most recent order in the custody dispute, entered on remand, lacks particularized findings necessary to evaluate the propriety of the order, and there has been a significant lapse of time after custody evidence was heard. Also finds Brett has demonstrated prima facie error.

K.H. v. State of Indiana (mem. dec.)
21A-JV-2391
Juvenile. Affirms K.H.’s adjudication as a delinquent child for possessing a firearm in violation of Indiana Code § 35-47-10-5. Finds the juvenile court had jurisdiction. Also finds the evidence is sufficient to sustain the delinquent finding.

Gary Lee Higgins, IV v. State of Indiana (mem. dec.)
21A-CR-2396
Criminal. Affirms Gary Lee Higgins IV’s sentence to 30 years, with two years suspended to probation, for his conviction of Level 2 felony attempted robbery resulting in serious bodily injury. Finds Higgins has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense resulting in J.P.’s death and his character.