Opinions April 18, 2022

Court of Appeals of Indiana
Town of Linden, Indiana, Montgomery County, Indiana, Montgomery County Commissioners, Montgomery County Drainage Board, and Montgomery County Surveyor v. Darrell Birge and Sandra Birge
21A-PL-1811
Civil plenary. Reverses the Montgomery Circuit Court’s order finding there had been a permanent physical invasion by Montgomery County and the town of Linden of property owned by Darrell and Sandra Birge and setting the matter for a determination of damages. Finds the trial court erred by applying the wrong legal standard to its takings analysis. Also finds temporary flooding does not fall within the category of a permanent physical invasion of property. Remands with instructions that the trial court consider the Penn Central/Arkansas Game factors in determining whether the intermittent flooding of the property caused by improvements to a drain constitute a taking of the property.

The Estate of Michael David Estridge, Sr. v. Lana Ann Taylor
21A-DN-1379
Domestic relations, no children. Affirms the denial of the Estate of Michael David Estridge Sr.’s request for annulment of the marriage between the decedent, Michael David Estridge Sr., and Lana Ann Taylor, as well as the denial of Taylor’s request for attorney fees. Finds the Marion Superior Court did not err in denying the Estate’s petition to annul the marriage. Also finds no statutory provision allows Taylor to request attorney fees following an action based on Indiana Code 31-11-8-4, so she is not entitled to attorney fees. Finally, finds the economic conditions of both parties are not sufficiently disparate to support attorney fees.

Katrina Griffith v. State of Indiana (mem. dec.)
21A-CR-1673
Criminal. Affirms Katrina Griffith’s conviction of Level 2 felony burglary while armed with a deadly weapon and her aggregate 65-year sentence. Finds the jury instructions did not result in fundamental error. Also finds the Marion Superior Court did not abuse its discretion during sentencing. Finally, finds Griffith has not met her burden to demonstrate that her sentence is inappropriate.

Shaun Anton Whitelow v. State of Indiana (mem. dec.)
21A-CR-1822
Criminal. Affirms Shaun Whitelow’s conviction of murder but reverses the enhancement for using a firearm during the commission of the offense. Finds the Lake Superior Court did not err in admitting hearsay evidence. Also finds the evidence was sufficient to support Whitelow’s conviction. Finally, finds the trial court did not secure a proper jury waiver from Whitelow for the enhancement phase. Remands for the trial court to either hold a jury trial on the enhancement or obtain proper waiver.

In re the Termination of the Parent-Child Relationship of: O.P. (Minor Child) and S.P. (Father), S.P. (Father) v. Indiana Department of Child Services (mem. dec.)
21A-JT-1877
Juvenile termination of parental rights. Affirms the termination of father S.P.’s parental rights to his daughter, O.P. Finds the evidence supports the Sullivan Circuit Court’s conclusions that there is a reasonable probability the conditions resulting in O.P.’s removal or the reasons for placement outside the home will not be remedied, and that termination is in the best interests of O.P.

Jeffrey L. Glasgow, Jr. v. State of Indiana (mem. dec.)
21A-CR-1923
Criminal. Affirms Jeffrey L. Glasgow Jr.’s 12-year aggregate sentence for his convictions of two counts of Level 5 felony burglary. Finds the Vigo Superior Court did not abuse its discretion by finding Glasgow’s commission of a new offense while on pretrial release was an aggravating factor. Also finds Glasgow failed to carry his burden to show that his sentence is inappropriate.

Darren K. Day and Gabrielle A. Day v. Deborah Whitaker, Diane Cormican, William R. Hoskins, Garnet Gail Kuntz, Denise Kruthaupt, and Elizabeth Hoskins (mem. dec.)
21A-MI-1975
Miscellaneous. Reverses the Franklin Circuit Court’s finding that Deborah Whitaker, Diane Cormican, William R. Hoskins, Garnet Gail Kuntz, Denise Kruthaupt and Elizabeth Hoskins have an easement by prescription on property owned by Darren K. and Gabrielle A. Day. Finds the Hoskinses did not present evidence at trial that their continuous use of the driveway, or the use by their predecessors-in-interest, was unexplained for at least 20 years, nor did they present evidence of any other 20-year period of “unexplained” continuous use by them or their predecessors-in-interest. Also finds the undisputed evidence shows that the Hoskinses’ use of the driveway since 1976 was by “agreement” between Garnett Hoskins and Donald Day, which did not cease to operate until “recently.” Finally, finds the trial court erred when it found that the presumption of adverse use applied here.

Cameron J. Davenport v. State of Indiana (mem. dec.)
21A-CR-2017
Criminal. Affirms the sanction imposed on Cameron J. Davenport — serving one year of his previously suspended sentence, plus three years of probation — after the Allen Superior Court determined he violated the terms and conditions of his work release program and probation. Finds that under the circumstances, the events of Davenport’s case are “extraordinarily compelling” reasons that allow the appeal to proceed on the merits. Also finds the trial court did not abuse its discretion in imposing the sanction.

A.A. V. K.A. (mem. dec.)
21A-PO-2051
Protective order. Affirms the issuance of a permanent order for protection in favor of K.A. and against A.A. Finds there was sufficient evidence to support the issuance of the protective order.

In the Termination of the Parent-Child Relationship of: D.W. & Da.W. (Minor Children) and J.H. (Mother) v. Indiana Department of Child Services (mem. dec.)
21A-JT-2065
Juvenile termination of parental rights. Affirms the termination of mother J.H.’s parental rights to D.W. and Da.W. Finds the challenged findings of fact are supported by the record. Also finds sufficient evidence showed there is a reasonable probability that the reasons for the children’s removal will not be remedied. Finally, finds the juvenile court’s decision was not clearly erroneous.

Juan Guerrero v. State of Indiana (mem. dec.)
21A-CR-2629
Criminal. Affirms Juan Guerrero’s conviction of felony murder. Finds Guerrero waived the issue of whether the Lake Superior Court abused its discretion in excluding evidence of unspecified “exculpatory” statements he made to a police officer during an interrogation after his arrest. Also finds Sheri Czerwinski’s statement to Officer Timothy Heath qualified as an excited utterance under Indiana Evidence Rule 803(2), so that trial court did not abuse its discretion when it admitted Heath’s testimony. Finally, finds Guerrero has not shown reversible error as to the admission of testimony regarding the reason for the traffic stop of his car in Illinois.

Marquise Venters v. State of Indiana (mem. dec.)
21A-CR-2730
Criminal. Affirms Marquise Venters’ sentence to an aggregate of nine years, with five years suspended to probation, for his convictions of Level 4 felony burglary, Level 6 felony domestic battery and Class B misdemeanor leaving the scene of an accident. Finds the Madison Circuit Court did not abuse its discretion in sentencing Venters. Also finds Venters’ sentence is not inappropriate given the nature of his offenses and his character. Finally, finds Venters’ sentence is not unconstitutionally disproportionate to the nature of his offenses.