Opinions Oct. 4, 2022

Court of Appeals of Indiana
Carla Tinsley-Williamson, as Guardian of Ethan M. Tinsley v. A.R. Mays Construction, Inc., American Multi-Cinema, Inc., and Largo Theater Construction, Inc.
21A-CT-2230
Civil tort. Affirms the Hendricks Superior Court’s entry of partial summary judgment for A.R. Mays Construction Inc. on Ethan Tinsley’s complaint alleging negligence. Finds A.R. Mays’ designated evidence affirmatively negates an element of Tinsley’s negligence claim, namely, whether A.R. Mays owed Tinsley a duty of care.

Thomas E. Sparks v. State of Indiana (mem. dec.)
21A-PC-2216
Post-conviction. Affirms the dismissal of Thomas E. Sparks’ subsequent petition for post-conviction relief. Finds the Wayne Superior Court did not err when it dismissed Sparks’ subsequent petition for post-conviction relief because all his claims failed as a matter of law or were barred by the doctrine of res judicata.

Jaelynn Billups v. State of Indiana (mem. dec.)
21A-CR-2890
Criminal. Affirms Jaelynn Billups’ convictions of murder, felony murder, Level 6 felony theft and Class A misdemeanor carrying a handgun without a license and her 56-year sentence. Finds sufficient evidence to rebut her self-defense claim. Also finds the sentence is not inappropriate given the nature of the offenses and her character.

Daniel Carroll Stovall v. State of Indiana (mem. dec.)
22A-CR-224
Criminal. Affirms in part and reverses in part Daniel Stovall’s convictions for two counts of Level 1 felony child molesting, two counts of Level 4 felony child molesting and two counts of Level 4 felony incest. Finds Stovall’s argument under Blockburger v. State fails. Also finds no double jeopardy violation on in his incest convictions. Finally, finds Stovall’s Level 4 felony child molesting convictions were a single continuous crime with his Level 1 felony child molesting convictions. Remands with instructions for the trial court to vacate Stovall’s two Level 4 felony child molesting convictions. Judge Elizabeth Tavitas concurs in part and dissents in part with separate opinion.

Michael M. Fagin v. State of Indiana (mem. dec)
22A-CR-242
Criminal. Affirms Michael Fagin’s conviction of Level 5 felony burglary. Finds sufficient evidence to support the conviction.

Toby Wayne Lowry v. State of Indiana (mem. dec.)
22A-CR-346
Criminal. Affirms and reverses in part the revocation of Toby Lowry’s probation and community-corrections placement and an order that he serve the remainder of his sentence in the Department of Correction. Finds the Vermillion Circuit Court properly admitted both the evidence found in the search and Lowry’s statements. Also finds sufficient evidence was presented to support the revocation of Lowry’s probation. Finally, finds the trial court did not abuse its discretion when it ordered Lowry to serve the entirety of his previously suspended sentence, but it did not properly calculate his credit time and included an erroneous sentence on the abstract of judgment and CCS. Remands for a hearing to correct the award of credit time and the sentence entered as to Lowry’s Level 2 felony conviction. Judge Elaine Brown concurs with separate opinion.

Tristan V. Santos v. State of Indiana (mem. dec.)
22A-CR-616
Criminal. Affirms Tristan Santos’ aggregate 22-year sentence for s of Level 4 felony burglary, Level 5 felony escape, Level 6 felony resisting law enforcement, Level 6 felony auto theft, Level 6 felony domestic battery and Level 6 felony invasion of privacy. Finds the Bartholomew Circuit Court would impose the same sentence without considering the invalid aggravator. Also finds that the consecutive sentences for Santos’ convictions for auto theft and escape are not implicated by the statutory cap.

Larry P. Prouse III v. Miranda Prouse (mem. dec.)
22A-DR-697
Domestic relations. Reverses the Vigo Superior Court’s grant of mother Miranda Prouse’s petition to relocate out of state with her child and its denial of Larry Prouse III’s motion to reconsider. Finds the trial court’s denial of Larry’s motion to reconsider amounts to a denial of his right to due process. Remands for the setting of a new hearing on Miranda’s request to relocate and instructs the trial court to set the new hearing for no fewer than 30 days from the date of the new order.

Angela Fay Ross v. Jason Noel Ross (mem. dec.)
22A-DC-761
Domestic relations with children. Affirms the Hendricks Superior Court’s decree of dissolution of Angela Ross’ marriage to Jason Noel Ross. Finds Indiana Code is unambiguous that retirement pension benefits in which Jason vested only after he had filed his petition for dissolution are not marital property.

In re the Matter of S.A. and M.P-M. (Children) M.H. v. Indiana Department of Child Services (mem. dec.)
22A-JM-771
Juvenile miscellaneous. Dismisses guardian M.H.’s appeal of the Marion Superior Court’s decision to grant the Department of Child Services’ motion to compel M.H. to allow DCS to interview children M.P-M. and S.A. and inspect M.H.’s house following DCS’ receipt of a report that M.H. was neglecting the children. Finds the appeal is moot because the appellate court cannot provide M.H. with sufficient relief when the interviews and investigation at issue have already occurred and the report of neglect was unsubstantiated. Also finds M.H. has not demonstrated the issues she presents are likely to recur, involve a question of great public interest or could produce negative collateral damage if not decided.

Indiana Department of Child Services v. M.M.  (mem. dec.)
22A-MI-1117
Miscellaneous. Reverses the Hendricks Superior Court’s denial of the Indiana Department of Child Services’ motion to dismiss M.M.’s petition for judicial review for failure to timely file an agency record and the reversal of the Final Agency Authority’s decision affirming the substantiation of neglect against M.M. Finds DCS has demonstrated its entitlement to dismissal of M.M.’s petition for judicial review. Remands with instructions to grant the motion to dismiss.

Tamika La Shawn Ross v. State of Indiana (mem. dec.)
22A-CR-1173
Criminal. Affirms Tamika La Shawn Ross’ convictions for Class A misdemeanor operating a vehicle while intoxicated and Class B misdemeanor possession of marijuana. Finds the state presented sufficient evidence.