Opinions Aug. 22, 2022

Court of Appeals of Indiana
Michael Whitaker v. State of Indiana (mem. dec.)
21A-CR-2268
Criminal. Affirms Michael Whitaker’s convictions of Level 6 felony driving while intoxicated endangering a person and Class B misdemeanor leaving the scene of an accident. Vacates Whitaker’s conviction of Level 6 felony driving with an alcohol concentration equivalent over .15 on double jeopardy grounds. Finds the state presented sufficient evidence that Whitaker operated his vehicle. Also finds the Whitley Superior Court did not abuse its discretion when it admitted photographs of items found in Whitaker’s car because those items were found in plain view by an officer who had been called to an accident scene and their connection to criminal activity was immediately apparent.

Peter A. Sparks v. Irina V. Sparks (mem. dec.)
22A-DC-495
Domestic relations with children. Affirms the St. Joseph Circuit Court’s denial of father Peter Sparks’ request to move his 16-year-old son to Wisconsin with him following his divorce from Irina Sparks. Finds it’s in the best interests of the child to stay in Indiana. Also finds Peter waived any irregularities in the proceedings, and he hasn’t met his burden of showing the court abused its discretion.

Christian Toledo Rojo v. State of Indiana (mem. dec.)
22A-CR-652
Criminal. Affirms Christian Toldeo Rojo’s conviction of operating while intoxicated but reverses his conviction of Class B misdemeanor possession of marijuana. Finds the Hendricks Superior Court did not abuse its discretion in the admission of evidence. Also finds the state presented insufficient evidence from which a reasonable factfinder could conclude beyond a reasonable doubt that the substance seized from Rojo was in fact marijuana. Remands for the trial court to vacate the Class B misdemeanor conviction.

In the Matter of the Adoption of L.M. and K.M., Minor Children, A.O. and J.O. v. D.M. (mem. dec.)
22A-AD-712
Adoption. Reverses the grant of father D.M.’s motion to dismiss mother A.O. and stepmother J.O.’s petitions to adopt L.M. and K.M. Finds the adoption petitions did not allege facts about the prior petitions that are the basis for the D.M.’s res judicata defense, the Hendricks Superior Court did not take judicial notice of any facts or materials, and the trial court did not provide any analysis explaining how the order from the Huntington Circuit Court operated to bar the Hendricks Superior Court litigation. Also finds it was premature for the trial court to grant the motion to dismiss. Remands for further proceedings.

Tony Kelvin Campbell, Jr. v. State of Indiana (mem. dec.)
21A-CR-2083
Criminal. Affirms Tony Kelvin Campbell Jr.’s convictions of Level 3 felony dealing in a narcotic drug and Level 6 felony operating a vehicle while suspended as a habitual traffic offender, the finding that he was a habitual offender, and the revocation of the probation he was serving for convictions of Level 4 felony possession of a firearm by a serious violent felon and Level 6 felony domestic battery. Finds the Grant Superior Court did not abuse its discretion when it denied Campbell’s motion to reveal a confidential informant, nor did it abuse its discretion in admitting audio-video evidence of Campbell’s controlled-buy transactions because the state had enough evidence to support it. Also finds the trial court did not abuse its discretion in denying Campbell’s motion to strike evidence. Finally, finds the court didn’t abuse its discretion in denying Campbell’s motion for mistrial because of a police officer’s reference to a probation slip with his name on it, as it did not put him in grave peril.

Wesley L. Lee v. State of Indiana (mem. dec.)
21A-CR-2844
Criminal. Affirms the denial of Wesley L. Lee’s motion for discharge. Finds the Marion Superior Court didn’t clearly err when it continued Lee’s trial and rejected his request for discharge after he had been exposed to COVID-19 at the Marion County Jail. Also finds Criminal Rule 4(B)1 allowed for the emergency continuance.

Costco Wholesale Corporation v. James Rush (mem. dec.)
22A-SC-232
Small claims. Affirms the judgment in favor of James Rush for $2,126.17 plus court costs and interest against Costco. Finds the Marion Small Claims Court could have reasonably determined the fuel Rush bought from Costco contained 30-35% biodiesel and damaged his car.

In the Matter of the Termination of the Parent-Child Relationship of J.P., Father, B.P., Mother, and L.P., Minor Child, J.P. and B.P. v. Indiana Department of Child Services and Kids’ Voice of Indiana (mem. dec.)
21A-JT-2776
Juvenile termination of parental rights. Affirms the termination of father J.P. and mother B.P.’s parental rights to minor child L.P. Finds any error in the admission of evidence was, at most, harmless. Also finds no error in the Marion Superior Court’s conclusion that there was a reasonable probability that the conditions resulting in the removal of L.P. and continued placement outside of the home were unlikely to be remedied. Finally, finds that given the totality of the evidence, J.P. and B.P. cannot show that the juvenile court erred when it concluded that termination of their rights is in L.P.’s best interests.

Deborah Louise Claspell v. State of Indiana (mem. dec.)
21A-CR-2891
Criminal. Affirms one of Deborah Louise Claspell’s two convictions of Class B misdemeanor leaving the scene of an accident. Finds Claspell’s two convictions violate the double jeopardy prohibition. Also finds sufficient evidence to support the Vanderburgh Superior Court’s restitution order. Judge Paul Mathias concurs in part and dissents in part with separate opinion.

Matthew Aron Barricks v. State of Indiana (mem. dec.)
22A-CR-650
Criminal. Affirms the Tippecanoe Superior Court’s revocation of Matthew Aron Barricks’ probation. Finds the trial court did not abuse its discretion.

Robert Antonio Lesure, II v. State of Indiana (mem. dec.)
22A-CR-511
Affirms Robert Antonio Lesure II’s 25-year sentence for Level 4 felony operating a vehicle while intoxicated causing death and being a habitual offender. Finds his sentence isn’t inappropriate in light of the nature of the offense and his character. Remand to the Shelby Superior Court for the limited purpose of severing the post-conviction waiver term from the plea agreement.