Opinions Oct. 19, 2022

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Tuesday:
Daniel Koch, et al. v. Jerry W. Bailey Trucking, Inc., and Estate of Jerry W. Bailey
21-2952
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Judge Holly A. Brady.
Civil. Affirms the award of attorney fees to Ronald Weldy, who represented truck drivers in a Fair Labor Standards Act action. Finds the district court did not abuse its discretion when it lowered the fee award after it concluded that Weldy overbilled his hours and the employees obtained only partial success on the merits.

Wednesday opinions
7^th Circuit Court of Appeals
United States of America v. Travis Gates
21-3314
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Criminal. Affirms Travis Gates’ four-year sentence for his conviction of being a felon in possession of a firearm. Finds Gates’ sentence was procedurally sound and substantively reasonable.

Court of Appeals of Indiana
Andrew Phillip McQuinn v. State of Indiana
21A-CR-1637
Criminal. Reverses Andrew Phillip McQuinn’s convictions of attempted murder and unlawful possession of a firearm by a serious violent felon, but affirms his convictions of domestic battery, theft of a handgun and carrying a handgun without a license. Finds the jury was erroneously instructed on the attempted murder charge, which prejudiced McQuinn’s substantial rights. Also finds McQuinn did not communicate a desire to waive his right to jury trial on the unlawful possession charge. Finally, finds McQuinn’s carrying a handgun without a license conviction does not violate double jeopardy. Remands to the Johnson Superior Court for a new trial on the attempted murder and unlawful possession convictions.

Robert K. Whipple, as Personal Representative of the Estate of Joseph C. Schaub, III, and Sharon Schaub v. Butler Toyota and Bob Butler (mem. dec.)
22A-PL-1557
Civil plenary. Reverses and remands the Marion Superior Court’s striking of an affidavit filed by Joseph Schaub that was designated in response to a summary judgment motion filed by Butler Toyota and its owner, Bob Butler, as well as the court’s grant of Butler’s summary judgment motion on the negligence complaint filed by Joseph and Sharon Schaub. Finds Butler failed to affirmatively negate the element of causation as required by Indiana’s summary judgment standard. Remands for further proceedings.

Stephen J. Michael v. State of Indiana (mem. dec.)
21A-CR-2485
Criminal. Affirms and reverses in part Stephen J. Michael’s convictions of rape, sexual misconduct with a minor, child molesting and incest. Finds Michael’s criminal acts were sufficiently connected, so he was not entitled to severance. Also finds any error in the admission of messages between Michael and S.M. did not affect Michael’s substantial rights. Finally, finds that while there was evidence of continuing sexual contact between E.M. and Michael, there was no evidence placing one of those instances in the eight-day period necessary to sustain a Class B felony conviction. Remands to the Greene Circuit Court to enter Count VI, sexual misconduct with a minor, as a Level 4 felony and sentence Michael accordingly.

Marcus E. Hardy v. State of Indiana (mem. dec.)
22A-CR-1071
Criminal. Affirms the revocation of Marcus Hardy’s probation and the order that he serve 850 days of his previously suspended sentence. Finds the Lawrence Superior Court did not abuse its discretion.

Antonn Ridgnal v. State of Indiana (mem. dec.)
22A-CR-1064
Criminal. Affirms Antonn Ridgnal’s conviction of Class A misdemeanor theft. Finds sufficient evidence to support the conviction.

Chad M. Grimball v. State of Indiana (mem. dec.)
22A-CR-810
Criminal. Affirms Chad Grimball’s convictions of intimidation and two counts of resisting law enforcement. Finds there was evidence of probative value from which the jury could find that Grimball committed intimidation as a Level 6 felony. Also finds that under the circumstances, the facts as adduced at trial were not so compressed in terms of time, place, singleness of purpose and continuity of action as to indicate a single transaction.

Lindsay C. Hunt v. State of Indiana (mem. dec.)
22A-CR-1036
Criminal. Affirms Lindsay Hunt’s four-year sentence for trafficking a controlled substance with an inmate, a Level 5 felony. Finds her sentence is not inappropriate in light of the nature of the offense and her character.

Rebecca Irene McVey v. State of Indiana (mem. dec.)
22A-CR-1140
Criminal. Affirms Rebecca Irene McVey’s conviction of Level 6 felony possession of methamphetamine. Finds sufficient evidence to support the conviction.

Jacob Rasner v. State of Indiana (mem. dec.)
21A-CR-1989
Criminal. Affirms in part Jacob Rasner’s 62-year sentence for two counts of felony murder, robbery, criminal confinement, battery and kidnapping. Finds Rasner’s sentence is not inappropriate. Also finds, sua sponte, that the Wayne Superior Court sentenced and entered judgment of conviction on felony murder based on the underlying felony of kidnapping as well as on Level 3 felony kidnapping, creating a double jeopardy violation. Finally, finds the trial court sentenced and entered judgment of conviction on two felony murder counts — one while committing robbery and one while committing kidnapping — but it is axiomatic that one cannot be convicted of two counts of felony murder for the death of the same victim. Remands with instructions to vacate the kidnapping conviction and sentence on Count VI and the conviction and sentence for felony murder based on the robbery offense.

Joshua A. Billman v. State of Indiana (mem. dec.)
21A-CR-2816
Criminal. Affirms and reverses in part Joshua Billman’s convictions for Level 5 felony reckless homicide, Level 5 felony neglect of a dependent resulting in bodily injury, Class A infraction driving while suspended and Class B misdemeanor criminal recklessness, and his aggregate eight-year sentence. Finds Billman has not shown that the Wells Superior Court abused its discretion in refusing to send the transcript from a protected persons hearing to the jury for use during deliberations, so his claim that his fundamental rights were violated fails. Also finds that both of Billman’s offenses were the result of one act, reckless driving, so those offenses constituted a single transaction, meaning his convictions for both neglect of a dependent and criminal recklessness cannot stand. Finally, finds Billman’s total consecutive sentence was not limited to seven years, so the trial court did not err in imposing the eight-year aggregate sentence. Remands with instructions to vacate the criminal recklessness conviction and sentence.

Keith Faulkner v. Jodie Faulkner (mem. dec.)
21A-DN-2669
Domestic relations, no children. Affirms the Howard Superior Court’s division of property following the dissolution of Keith Faulkner’s marriage to Jodie Faulkner. Finds the trial court did not abuse its discretion in its valuation of the marital estate. Also finds the trial court did not abuse its discretion when it awarded spousal maintenance to Jodie because it found she cannot work as a result of her various medical ailments. Finally, finds the trial court did not abuse its discretion in considering additional assets from the couple’s trucking company as part of the marital estate separate from the value of the business.

Michael Wayne Clark v. Elisa Clark Mrozinski, Personal Representative of the Supervised Estate of James L. Clark, Deceased (mem. dec.)
22A-ES-531
Estate, supervised. Affirms the denial of Michael Clark’s expedited petition to remove Elisa Clark Mrozinski as the personal representative of the Estate of James L. Clark. Finds Michael has not demonstrated that the evidence leads only to a conclusion opposite that reached by the LaPorte Circuit Court, in that Elisa’s birth certificate shows she is James’ heir. Also finds Michael has not met his burden to show that the court abused its discretion when it denied his late assertions that Elisa was unsuitable to be the personal representative.

In the Matter of: A.S., B.S., C.S., and D.T., Children in Need of Services: C.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)
22A-JC-928
Juvenile CHINS. Affirms the finding that mother C.W.’s children, A.S., BS., C.S. and D.T., are children in need of services. Finds the juvenile court did not abuse its discretion in admitting the challenged statements during the factfinding hearing.

In Re the Paternity of B.Y., Andrea Yanes-Mirabal v. Pardeep Badasay (mem. dec.)
22A-JP-916
Juvenile paternity. Affirms the Hamilton Superior Court’s ruling that father Pardeep Badasay should have primary physical custody of his child with mother Andrea Yanes-Mirabal and that the parents should share legal custody of their son, B.Y. Finds Yanes-Mirabal waived her challenge to the joint custody award by failing to challenge the trial court’s findings that the parents “indicated they agree[d]” to joint legal custody of Child.” Also finds the trial court did not abuse its discretion when it gave Badasay primary physical custody of B.Y. Finally, finds the trial court did not abuse its discretion in its consideration of whether a move to Florida was in B.Y.’s best interests.

In re The Richard Lee Baker and Patty J. Baker Family Trust Brenda J. Rippy and Richard K. Baker, individually and as successor co-trustees of the Richard Lee Baker and Patty J. Baker Family Trust, Jordan Brown, and Nicole Brown v. Lee Ann Riggs (mem. dec.)
22A-TR-581
Trust. Reverses and remands the Clay Circuit Court’s denial of motions for relief from judgment filed by Brenda J. Rippy, Richard K. Baker, and Jordan and Nicole Brown, challenging the order unwinding conveyances and appointing a new trustee to The Richard Lee Baker and Patty J. Baker Family Trust. Finds the trial court committed reversible error in not allowing the Browns, Rippy and Kent to respond to Lee Ann Riggs’ countermotion for summary judgment.

Autoform Tool & Manufacturing, LLC v. Whitesell Precision Components, Inc., et al. (mem. dec.)
21A-PL-1962
Civil plenary. Affirms the Marion Superior Court’s order dissolving an agreed preliminary injunction that had required Whitesell Precision Components Inc. to continue supplying Autoform Tool & Manufacturing LLC with automotive component parts during litigation between the parties. Finds the trial court did not abuse its discretion in imposing conditions on Autoform’s ability to switch injector cup suppliers upon dissolution of the agreed preliminary injunction.

In re the Termination of the Parent-Child Relationship of E.M., H.W., and Ja.W. (Minor Children) and J.W. (Father) J.W. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JT-1146
Juvenile termination of parental rights. Affirms the termination of father J.W.’s parental rights to his three children. Finds the Orange Circuit Court did not err in finding J.W.’s drug use “harmed” his children. Also finds the trial 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.