Indiana Court Decisions: July 27-Aug. 9, 2023

7th Circuit Court of Appeals

July 28

John Doe and A.B. v. Adam Gray, et al.

22-1501

Gender identity, sexual preference not established rights to privacy in criminal/child welfare cases, 7th Circuit affirms

A district court ruled correctly in granting summary judgment to Starke County Sheriff’s Department and Indiana Department of Child Services’ officials and denying a transgender man and his significant other’s claims that they were arrested without probable cause and had their rights to privacy violated, the 7th Circuit Court of Appeals ruled in affirming the lower court’s decision.

According to court records, John Doe, a transgender male who was born female, and A.B. were investigated and arrested for neglecting a dependent and failing to support a dependent child.

R.M., 17, met with Adam Gray, a detective with the Starke County Sheriff’s Department, and family case manager Katherine Purtee with the Indiana Department of Child Services and claimed Doe and A.B. abandoned him in February 2018.

R.M. had been living with his mother and stepfather since November 2017.

In January 2018, they discovered R.M. knew about his sister sneaking out of the house one evening.

As a result, Doe and A.B. told R.M. to leave the home and not return. He had been staying with his friend, M.B., at Suzanne Brewer’s home before then and remained with them afterward.

During his meeting with Gray and Purtee, R.M. informed them of text messages between him and his mother in which she said he could return home, but he would be grounded.

R.M. told her that he didn’t want to be grounded and that he had told his school that he couldn’t return home to avoid being charged as a runaway.

After the meeting, R.M. was brought to the Starke County Sheriff’s Department for a recorded interview. There, he reiterated what he said in the meeting and that it wasn’t the first time he had been kicked out of the house.

His statements also raised concern that Doe was sexually assaulting R.M.’s sisters.

Brewer confirmed in a letter to Gray that R.M. had stayed in her home and that A.B. had not called her about R.M. or stopped by to check on him, nor had she provided money to support him.

Brewer took R.M. to his home to gather his belongings, and when they arrived, a bag of his clothes was on the porch.

Gray arrested A.B. and Doe for neglect of a dependent and nonsupport of a dependent child after contacting a prosecutor about possible charges and being advised that probable cause of a crime existed.

While interviewing A.B., Gray informed her about the allegations made against Doe.

Gray told A.B. that K.B.’s birth certificate had been falsified to name Doe as the father. He also told her that Doe was born female, used to be named Barbara B. and has female genitalia.

A.B. claimed she didn’t know Doe had female genitalia until Gray told her in the interview.

After the arrests, Purtee took the minor children into custody for placement in foster or kinship care.

While on the phone with A.B.’s sister, April Hopkins, Purtee disclosed that Doe was born female. Purtee also disclosed this while at the Brewers’ home to Brewer, M.B., J.M. and R.M.

Doe and A.B. sued Gray and Purtee in their individual capacities, the Starke County Sheriff’s Department and the Indiana Department of Child Services under 42 U.S.C. Section 1993.

In a 14th Amendment claim against Gray and Purtee, Doe alleged they violated his right to privacy by disclosing his “sexual preference.” The couple also claimed Gray lacked probable cause to arrest them under the Fourth Amendment, and brought a state-law claim of intentional infliction of emotional distress against Gray and Purtee.

The defendants moved for summary judgment on the remaining claims, and a month later the plaintiffs moved to amend their complaint.

They wanted to change their 14th Amendment claim to assert a right to privacy in “gender identity” rather than “sexual preference.”

The United States District Court for the Northern District of Indiana denied the motion to amend and granted summary judgment to the defendants.

On appeal to the 7th Circuit Court of Appeals, Doe and A.B. raised three issues, the first being whether the defendants were entitled to qualified immunity on Doe’s 14th Amendment claim because they claimed there was a clearly established right to privacy in one’s sexual preference or gender identity at the time that information was disclosed.

Judge Michael Brennan wrote the opinion for the court.

Brennan wrote the defendants were entitled to qualified immunity, as there is no clearly established right to privacy on one’s sexual preference or gender identity during a criminal or child welfare investigation.

“A general recognition of a privacy right in certain medical or sexual information is not enough to show a more specific privacy right in one’s sexual preference or gender identity during a criminal or child welfare investigation, especially one involving allegations of child sexual abuse,” Brennan wrote.

The second issue raised on appeal was whether the text messages between A.B. and R.M. established a genuine dispute of material fact as to whether Gray had probable cause to arrest Doe and A.B., precluding summary judgment on their Fourth Amendment claim.

“The totality of the circumstances also supports probable cause for the arrests for nonsupport of a dependent child. Doe and A.B. failed to provide R.M. with food while he was out of their home, except on one occasion. Moreover, the evidence did not conclusively establish the affirmative defense that R.M. abandoned the home,” Brennan wrote.

Lastly, Doe and A.B. argued that Gray, in his official capacity, is not entitled to immunity under the Indiana Tort Claims Act because he was not adopting or enforcing state law in disclosing Doe’s sexual preference or gender identity.

The court found that Gray was entitled to immunity under the ITCA, as was the Starke County Sheriff’s Department.

“Gray told A.B. during the interview that the children’s placement needed to be reevaluated, which was why he needed to speak with A.B. For purposes of child placement, therefore, it was relevant to identify K.B.’s father. Gray thus provided information about Doe to A.B. while enforcing state law within the scope of the Starke County Sheriff’s Department’s operational power,” Brennan wrote.

Judges Joel Flaum and Ilana Rover concurred.

The case is John Doe and A.B. v. Adam Gray, et al., 22-1501.

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Aug. 1

A.C., a minor child by his next friend, mother and legal guardian, M.C. v. Metropolitan School District of Martinsville and Fred Kutruff, in his official capacity as Principal of John R. Wooden Middle School; B.E. and S.E., minor children by their next friend, mother and legal guardian, L.E. v. Vigo County School Corporation and Principal of Terre Haute North Vigo High School, in his official capacity

22-1786, 22-2318

7th Circuit upholds preliminary injunctions ordering 2 schools to allow trans kids to use gender-affirming bathrooms

The 7th Circuit Court of Appeals declined to reverse preliminary injunctions against two school districts, upholding orders for the districts to allow transgender students to use the boys’ bathrooms and opining that the U.S. Supreme Court will eventually give more guidance on the issue.

The consolidated appeal involves three transgender boys — A.C., B.E. and S.E. — who want to use the boys’ bathrooms at their schools. During the time relevant to the case, A.C. attended a middle school in Martinsville, and B.E. and S.E., who are twins, attended high school in Terre Haute.

Both schools denied the boys’ requests. In the case of B.E. and S.E., they were also denied access to the boys’ locker room to change for gym class.

The students sued the districts and school principals, alleging sex discrimination in violation of Title IX of the Education Amendments Act of 1972 and the equal protection clause of the 14th Amendment.

The students requested preliminary injunctions that would order the schools to grant them access to the bathrooms and locker rooms.

The U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted a preliminary injunction for A.C. in April 2022. The Indiana Southern District Court, Terre Haute Division, did the same for B.E. and S.E. in June 2022.

Both district courts relied on the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017).

In that case, a 17-year-old transgender boy sued the Kenosha Unified School District in Wisconsin for not allowing him to use the boys’ bathroom. The 7th Circuit held Whitaker’s worsening mental and physical health, coupled with his suicidality, meant the harm was irreparable and could not be adequately remedied at law.

In a consolidated appeal, the school districts argued Whitaker is no longer authoritative.

The districts argued Whitaker was partially abrogated by Illinois Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020). They also pointed to the U.S. Supreme Court’s intervening guidance on how to analyze issues of transgender discrimination in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and they said Whitaker didn’t accommodate for a provision in Title IX that permits educational institutions to maintain “separate living facilities for the different sexes.”

The 7th Circuit disagreed with each of those arguments.

The abrogation issue arose from the U.S. Supreme Court’s holding in Nken v. Holder, 556 U.S. 418 (2009), in which justices said “[i]t is not enough that the chance of success on the merits be better than negligible.” Adhering to that guidance in Illinois Republican Party, the 7th Circuit concluded the showing must be a strong one, though the applicant “need not show that [he] definitely will win the case.”

But the 7th Circuit ruled Whitaker was not affected by the need to make a more compelling showing of likelihood of success.

In appealing to Bostock, the school districts argued the U.S. Supreme Court’s decision undermines Whitaker because the court refrained from addressing how “sex-segregated bathrooms, locker rooms, and dress codes” were affected by its ruling.

“That is reading quite a bit into a statement that says, in essence, ‘we aren’t reaching this point,’” the 7th Circuit ruled. “The Supreme Court, and for that matter our court, does this all the time.”

The opinion continued: “Applying Bostock’s reasoning to Title IX, we have no trouble concluding that discrimination against transgender persons is sex discrimination for Title IX purposes, just as it is for Title VII purposes. As Bostock instructs, we ask whether our three plaintiffs are suffering negative consequences (for Title IX, lack of equal access to school programs) for behavior that is being tolerated in male students who are not transgender.”

Addressing the districts’ appeal to Title IX, the 7th Circuit ruled Whitaker took into account the relevant implementing regulation, 34 C.F.R. § 106.33, which affirmatively permits recipients of educational funds to “provide separate toilet, locker room, and shower facilities” on the basis of sex, provided that the separate facilities are comparable.

“We noted that neither Title IX nor its implementing regulations define the term ‘sex,’” the opinion says, “and in looking to case law for guidance, we saw nothing to suggest that ‘sex’ referred only to biological sex.”

Finally, the 7th Circuit noted a circuit split on the issue.

“The Fourth Circuit has decided that denying gender-affirming bathroom access can violate both Title IX and the Equal Protection Clause,” the opinion says, “while the Eleventh Circuit found no violations based on substantially similar facts.”

It makes “little sense,” the opinion says, “for us to jump from one side of the circuit split to the other, particularly in light of the intervening guidance in Bostock.”

After settling the question of Whitaker’s authoritative value, the 7th Circuit went on to rule the district courts didn’t err in concluding the plaintiffs made a sufficiently strong showing of sex discrimination.

The 7th Circuit noted that no students complained about A.C.’s use of the boys’ bathroom, while the school district argues such evidence is unnecessary and that denying gender-affirming facility access is about protecting students from “exposure of their bodies to the opposite sex.”

“But the district is fighting a phantom,” the opinion says. “Gender-affirming facility access does not implicate the interest in preventing bodily exposure, because there is no such exposure.”

The 7th Circuit also noted the school districts may be in violation of Indiana law.

“Given that all three plaintiffs have received amended birth certificates and legal name changes that identify them as boys, they appear to be boys in the eyes of the State of Indiana,” the opinion says. “If so, then it would be contrary to Indiana law for the school districts to treat A.C., B.E., and S.E. as though they are not boys and to require them to use the girls’ bathrooms and locker rooms. But no plaintiff has pursued this theory of state-law violation, and so we do not explore it further.”

Senior Judge Diane Wood wrote the opinion.

In a concurring opinion, Judge Frank Easterbrook wrote that while he concurs in the judgment, he believes Adams v. St. Johns County School Board, 57 F.4th 791 (11th Cir. 2022), “better understands how Title IX applies to transgender students.”

“Title IX does not define the word, which can refer to biological sex (encoded in a person’s genes) or to social relations (gender),” Easterbrook wrote. “Sex is such a complex subject that any invocation of plain meaning is apt to misfire. I think, however, that Adams is closer to the mark in concluding that ‘sex’ in Title IX has a genetic sense, given that word’s normal usage when the statute was enacted.”

The Martinsville case is A.C., a minor child by his next friend, mother and legal guardian, M.C v. Metropolitan School District of Martinsville and Fred Kutruff, in his official capacity as Principal of John R. Wooden Middle School, 22-1786.

The Vigo County case is B.E. and S.E., minor children by their next friend, mother and legal guardian, L.E. v. Vigo County School Corporation and Principal of Terre Haute North Vigo High School, in his official capacity, 22-2318.

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Aug. 3

The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance

22-2183

Bail Project loses appeal of denied preliminary injunction against ‘charitable bail’ law

A split 7th Circuit Court of Appeals has affirmed a district court’s denial of The Bail Project’s motion for a preliminary injunction against a law that puts limits on whom charitable bail organizations can bail out of jail.

Judge Thomas Kirsch wrote the majority opinion in The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance, 22-2183. Senior Judge Joel Flaum concurred while Judge Candace Jackson-Akiwumi dissented.

Plaintiff-appellant The Bail Project is a nonprofit organization that advocates for the abolition of cash bail. It also pays cash bail for thousands of individuals across the country.

According to court records, The Bail Project began operating in Indiana in 2018 and has assisted approximately 1,000 pretrial defendants in Marion and Lake counties. Its clients in Indiana include those who have been charged with, or previously convicted of, offenses that qualify as crimes of violence under state law.

But last year, the Indiana Legislature passed, and the governor signed into law, House Enrolled Act 1300, which requires charitable bail organizations to register with the state and establishes limits for whom those groups can pay cash bail.

The Bail Project and the American Civil Liberties Union of Indiana sued in the United States District Court of the Southern District of Indiana, alleging the law would violate the bail organization’s First Amendment rights and its rights under the equal protection clause of the 14th Amendment. The group requested a preliminary injunction to prohibit the Indiana Department of Insurance from enforcing the law.

The district court issued an order in June 2022 denying the preliminary injunction after concluding that The Bail Project had not shown a likelihood of success on the merits of its motion.

The Bail Project appealed, and the 7th Circuit majority affirmed.

According to Kirsch, the principal question on appeal is whether the conduct HEA 1300 regulates — the payment of cash bail — is protected by the First Amendment. The appellate majority determined the answer is “no.”

That’s because, according to Kirsch, “Conduct that does not convey a message without the aid of additional speech … receives no First Amendment protection.”

The Bail Project argued that its payment of bail is inherently expressive conduct because it intends to convey a message through bail payments and, when viewed in context, a reasonable observer would understand its payment as communicative.

But the appellate court disagreed that the act of paying cash bail inherently expresses any message.

“On its own, paying bail for a pretrial defendant does not communicate even the most general version of The Bail Project’s message — its opposition to cash bail,” Kirsch wrote. “Without knowledge of The Bail Project’s mission and repeat-player status, a reasonable observer would not understand its payment of cash bail at the clerk’s office as an expression of any message about the bail system.”

The appellate majority also concluded that the law does not violate the equal protection clause because it is rationally related to the state’s legitimate interest in regulating pretrial detention of criminal defendants.

“The legislature could have determined that charitable bail organizations have different incentives, resources, and ties to the community than other bail payors, and therefore, that it was appropriate to treat them differently than bail payors who risk their own money and weigh their own safety to bail out a defendant,” Kirsch wrote. “Perhaps this is bad policy, perhaps not. That is not for us to say.

“… In sum, The Bail Project’s payment of bail is not inherently expressive conduct, and the distinctions HEA 1300 draws between charitable bail organizations and other bail payors is rationally tied to Indiana’s legitimate interest in regulating its pretrial detention system,” the majority concluded. “Accordingly, The Bail Project has not demonstrated a likelihood of success in its constitutional challenge to HEA 1300, and we affirm the district court’s denial of a preliminary injunction.”

In her dissent, Jackson-Akiwumi pointed to Spence v. State of Washington, 418 U.S. 405 (1974), which “held that, to determine whether conduct ‘possesses sufficient communicative elements to bring the First Amendment into play,’ courts must ask whether (1) ‘[a]n intent to convey a particularized message was present,’ and (2) ‘the likelihood was great that the message would be understood by those who viewed [the conduct].’”

According to Jackson-Akiwumi, the majority opinion does not properly consider context and audience when asking whether observers of The Bail Project’s conduct understand, without the assistance of explanatory speech, that a message is being conveyed.

“When considering the context — including the relevant audience — of The Bail Project’s actions, I see a high likelihood that those who observed the conduct understood that some type of message was being conveyed,” she wrote. “I would remand to the district court for further proceedings on whether The Bail Project has a likelihood of success on the merits for preliminary injunction purposes.”

Addressing Jackson-Akiwumi’s argument, Kirsch wrote, “The dissent views HEA 1300 as proof that the Indiana legislature was perhaps the most relevant observer of The Bail Project’s conduct. That far-reaching view of a reasonable observer — to include legislative bodies not present when the conduct occurs but aware of it after-the-fact and in the aggregate — cannot be squared with” Rumsfeld v. F. for Acad. & Inst. Rts., Inc., 547 U.S. 47 (2006). The majority cited Rumsfeld in its “inherently expressive” analysis.

Court of Appeals of Indiana

July 27

Freeman Hochstetler, Willard Yoder, and Joe Hochstetler v. State of Indiana

22A-CR-2154

Amish men who told woman to rescind protective order against husband lose appeal of intimidation convictions

The convictions of three men in an Amish community on misdemeanor intimidation charges were not barred by the church autonomy doctrine and were supported by sufficient evidence, the Court of Appeals of Indiana affirmed.

According to court records, the Old Order Amish Church is a religious organization that has members living in several counties in Indiana.

The OOAC in Indiana is divided into districts. In 2016, J.W. and E.W. were members of OOAC District 50 living with at least five of their seven children in LaGrange County.

The Indiana Department of Child Services first became involved with the family in December 2016, after it received a report that the father, J.W., was using inappropriate physical discipline in the home.

DCS opened an informal adjustment with the family. E.W. and J.W. worked with Amish support groups, as well as DCS, during the informal adjustment period.

A safety plan prohibiting J.W. from disciplining the children was imposed, but J.W. violated the plan by directing E.W. to discipline the children in the manner he preferred.

The DCS informal adjustment ended in the spring of 2017 with the filing of a child-in-need-of-services petition after J.W. was arrested for battery against one of his children.

In May 2017, E.W. and J.W. separated.

DCS instituted a new safety plan for the family.

On May 31, 2017, a civil protective order was issued against J.W. in favor of E.W. and five of their minor children who were still living at home. E.W. believed that to comply with DCS’s safety plan, she needed to keep J.W. away from their children and keep the protective order active.

DCS employees told E.W. that if she had the protective order rescinded and there were further instances of abuse in the home, she was at risk of having her children removed from her care.

In January 2018, E.W. moved with the children to OOAC’s District 70-1, which is in Elkhart County.

It is the practice of the members of the OOAC not to involve secular authority or law enforcement in their lives. Although it was unclear from the record whether the members of District 50 were upset about J.W.’s abuse of his family, E.W.’s procurement of a protective order against J.W. or both, some members of District 50 supported E.W., while others did not.

It is also a practice of the OOAC that when there is strife or discord in a district, a panel of three bishops from outside the district is formed to work with the community to resolve whatever issue it is facing.

Joe Hochstetler, Freeman Hochstetler and Daniel Hershberger, who are all bishops in the OOAC, were empaneled in 2017 to work with District 50, a process that began with the bishops discussing the matter with every family in the district.

In August 2018, the two Hochstetlers and Hershberger met with E.W. to pressure her to reconcile with J.W. After the meeting, Hershberger left the panel and Willard Yoder took his place.

In February 2020, the Hochstetlers and Yoder and their wives met with E.W. at her home in Elkhart County. E.W. told them she would not remove herself from the protective order because doing so would violate DCS’s safety plan and would increase the risk of her children being removed.

Returning to E.W.’s home in June 2020, the three men advised E.W. that District 50 had voted the previous day to place her in the “Bann,” which, according to court records, is how the Amish describe being excommunicated from the church.

They explained to E.W. that, to have the “Bann” lifted, E.W. would have to remove her name from the protective order, go to District 50, make a public confession of fault and start working with an entirely different support group. E.W. was open to reconciliation with J.W., but not to removing herself from the protective order.

On May 28, 2021, the state charged the three men with Class A misdemeanor intimidation for communicating a threat to E.W. to expose her to “hatred, contempt, disgrace, or ridicule, with the intent that [E.W.] engage in conduct against her will, to wit: petition to remove herself from a protective order[.]”

The men filed an unsuccessful motion to dismiss the charges, arguing that their actions were protected by the First Amendment and the church autonomy doctrine.

During the ensuing bench trial in Elkhart Superior Court, the Hochstetlers and Yoder argued that their threatened speech — the “Bann” — invoked a matter of public or general concern within the OOAC community.

They read Brewington v. State, 7 N.E.3d 946 (Ind. 2014), as requiring the state to prove actual malice.

Finding that actual malice did not apply, the trial court convicted the three men of intimidation.

The men appealed and the Court of Appeals affirmed, finding the evidence was sufficient to sustain the intimidation convictions. The appellate court held that those convictions were not barred by the church autonomy doctrine and that the defendants had waived their remaining constitutional claims.

Judge Patricia Riley wrote the opinion for the appellate court.

Riley noted that, on appeal, without explanation, the state reversed course and joined the defendants in urging that their convictions be reversed because the evidence of actual malice is lacking.

According to Riley, the state did not present the appellate court with any authority that it must accept its concession.

“Therefore, despite the State’s change of stance, we will examine the law and the facts before us to determine whether the evidence supports Defendant’s convictions,” Riley wrote.

Given the three men’s pattern of behavior concerning the protective order — combined with the content of their threat, uttering the threat in E.W.’s home and the men’s power position in the church — the COA determined the state presented sufficient evidence of intimidation.

The three men cited no cases where an Indiana appellate court had reversed a criminal conviction based on the church autonomy doctrine, Riley noted.

Further, the appellate court found the men were not shielded from criminal liability by the First Amendment or the church autonomy doctrine.

Riley rejected the defendant’s citation of Cantwell v. Connecticut, 310 U.S. 296, 60, S.Ct. 900, 84 L.Ed. 1213 (1940), where the U.S. Supreme Court overturned the convictions of Jehovah’s Witnesses who had been distributing literature and soliciting donations.

“… Cantwell was not decided on the grounds that the defendants’ convictions interfered with the autonomy of their church, it does not directly support Defendants’ argument, and it has not been cited by any Indiana court to overturn a criminal conviction on the basis urged by Defendants,” she wrote.

Judges Cale Bradford and Leanna Weissmann concurred.

The case is Freeman Hochstetler, Willard Yoder, and Joe Hochstetler v. State of Indiana, 22A-CR-2154.

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Aug. 1

In the Matter of the Civil Commitment of: K.K. v. Community Health Network, Inc.

23A-MH-114

Medical resident qualifies as expert, COA affirms, upholding involuntary commitment

A hospital psychiatry resident had enough training, experience and interactions with a mentally ill woman to be considered an expert when she testified at the woman’s commitment hearing, the Court of Appeals of Indiana affirmed.

According to court records, in the early morning hours of Dec. 13, 2022, residents of a home in Marion County called police and reported that K.K., whom they did not know, had been standing on their front porch for hours, clothed only in pajamas.

Police believed K.K. was displaying “erratic behavior” and took her to a Community Health Network hospital, where she was admitted.

Over the next few days, Dr. Beatrice Thunga, a psychiatry resident at the hospital, examined K.K. and found her to have a “disorganized thought process” and “disorganized behavior.” K.K. was “barely talking” and, when she did talk, she was “incoherent.”

When asked questions, K.K. would not reply and instead produced items, such as a crayon or a piece of paper, but could not explain their significance. She was also “unable to express emotions” and did not understand that she had a mental illness or needed to take medication.

Based on her behavior and prior medical history, including an involuntary commitment earlier that year, doctors at the hospital diagnosed K.K. with schizoaffective disorder, bipolar type.

On Dec. 15, a report was filed with the Marion Superior Court requesting temporary involuntary commitment for up to 90 days.

At an ensuing evidentiary hearing, Thunga testified that she had recently graduated from medical school, held a temporary medical license and was six months into her residency at the hospital.

For four of those months, she had been working in psychiatry, which she identified as the “particular focus of [her] training.” She said she primarily worked with adult patients “with various mental disorders of mood, substance use and psychosis.”

Over K.K.’s objection, the trial court found Thunga met the qualifications as an expert in psychiatry.

Thunga then testified that she had examined K.K. nine times since her admission and confirmed K.K.’s diagnosis.

A friend of K.K.’s also testified at the hearing that he could give her a temporary place to stay should she be released, but could not offer any permanent housing and was unwilling to be responsible for her taking prescribed medication or attending medical appointments.

After the hearing, the trial court entered an order of temporary commitment not to exceed 90 days.

K.K. appealed, arguing that the trial court erred in allowing Thunga to testify as an expert witness under Indiana Evidence Rule 702. She also argued that even with Thunga’s testimony, there was insufficient evidence to support her involuntary commitment.

The Court of Appeals disagreed, finding that Thunga had sufficient knowledge and experience to qualify as an expert and that there was sufficient evidence to support the involuntary commitment

Judge Nancy Vaidik wrote the opinion for the appellate court.

Vaidik pointed to Thunga’s resume, which includes four years of medical school; a temporary medical license; six months of residency, four of which focused on psychiatry; experience treating adults with various mental disorders of mood, substance use and psychosis; and her work as K.K.’s treating physician, including examining her nine times.

“Given this evidence, and the deference given to trial courts in these circumstances, we cannot say the court erred in determining Dr. Thunga met the qualifications for an expert witness,” Vaidik wrote.

As for K.K.’s sufficiency challenge, the COA held that Thunga’s testimony established that K.K. was unable to meet her needs.

Vaidik pointed to Thunga’s testimony that, in the five days K.K. was hospitalized, she did not appear to be eating, never changed clothes or showered, and would not take prescribed medication.

K.K. was also experiencing poverty of speech and cognitive decline and was never able to coherently communicate with Thunga about her medical needs or housing situation.

“Ultimately, K.K.’s inability to communicate, combined with her hygiene, food, and housing issues, supports the trial court’s determination that she was gravely disabled,” Vaidik concluded.

Judges Paul Mathias and Rudolph Pyle concurred.

The case is In the matter of the Civil Commitment of: K.K. v. Community Health Network, Inc., 23A-MH-114.

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Aug. 8

Chase Turner v. State of Indiana

22A-CR-2404

COA orders new trial after finding ‘evidentiary harpoon’ placed defendant in peril

A trial court abused its discretion by not granting a man’s request for a mistrial based on an “evidentiary harpoon,” the Court of Appeals of Indiana ruled in a reversal.

According to court records, 18-year-old Chase Turner was driving a car when two of his passengers, including Chordae Spearman, fired several gunshots at another car that had just crashed on Interstate 65 in Indianapolis.

Turner acknowledged that his group had been following the car, trying to determine whether a particular individual was inside whom they wished to confront about a friend’s death, but Turner claimed the shooting was unplanned and surprised him.

The shooting occurred in July 2021. One month earlier, Turner and Spearman’s roommate, Joseph Simmons, was shot and killed at a party.

They soon came to believe that Malik Shaw had committed the shooting and was going around town bragging about it. There were also rumors that Jaida Sanders was involved.

After waking up around noon on July 11, 2021, Turner received word that a fight was planned at an apartment complex in Indianapolis between Sanders and another female.

He and Spearman made their way to that area in Spearman’s Ford Fusion, along with their friends, Abel Luna and Robert Holmes. They circled the area multiple times to make sure that they were not being set up by Shaw, and then they parked and watched the fight take place in the parking lot.

There was a large group present to view the fight, some armed with guns.

After the fight, Sanders, her best friend, Dayonna Slaughter, and Slaughter’s sister went inside a nearby apartment. Turner and his friends waited down the road in the Ford, which Turner was driving.

They followed Sanders in her Kia Forte when she eventually left with Slaughter in the front passenger seat and Shaw in the back seat.

Sanders stopped at a red light in the left turn lane, preparing to turn onto the interstate, and noticed a car with dark tinted windows pull alongside her on the right. She pulled away from the light, started to lose control on the ramp’s sharp curve and then struck a cement barrier shortly after entering the interstate.

Turner was still driving on the ramp when the Kia crashed. Seconds after the Kia came to rest in the middle lane facing oncoming traffic, Spearman and Luna fired several shots as Turner drove by the crash scene, which was on their left.

Neither Turner nor Holmes fired any shots. Turner kept driving and left the scene.

Although Sanders sustained minor injuries from the accident, nobody inside the Kia was struck by any of the bullets.

On July 19, 2021, the state arrested and charged both Turner and Spearman with attempted battery by means of a deadly weapon and criminal recklessness, both Level 5 felonies.

Turner raised an objection at trial and claimed that Indiana State Police Sgt. Christopher Hanson launched an evidentiary harpoon at trial by testifying that Spearman — an unavailable witness — “gave [a] complete confession of everything.” Turner argued that this placed him in grave peril and requested a mistrial, noting the defense had no opportunity to cross-examine Spearman on his statement.

The trial court denied the mistrial based on its conclusion that Hanson’s evidentiary harpoon did not rise to the level of grave peril.

The jury found Turner not guilty of attempted battery, but guilty of criminal recklessness.

The Marion Superior Court subsequently sentenced him to a fully suspended sentence of five years in prison, with four years of probation and the first year of probation to be served on home detention.

Turner appealed and contended that the only proper remedy for Hanson’s testimony was a mistrial.

The Court of Appeals agreed, and reversed and remanded the case for a new trial.

Chief Judge Robert Altice wrote the opinion for the appellate court, which agreed that the state, through Hanson, had launched an evidentiary harpoon against Turner.

According to Altice, the trial court denied a mistrial on the basis that the error did not rise to the level of grave peril because there was other, properly admitted evidence tending to prove the same facts — that Spearman fired shots toward the Kia while Turner drove past the crash scene.

But Turner argued “that Sergeant Hanson’s testimony that Spearman gave a complete confession of everything was ‘an improper shortcut to making that showing,’ one likely to influence the verdict.”

The appellate court agreed.

“The prejudicial impact of testimony that Turner’s codefendant gave a complete confession of everything cannot be denied; it placed him in grave peril to which he should not have been subjected. And the peril was not eliminated by Sergeant Hanson’s subsequent clarification that, by said testimony, he meant only to communicate that Spearman confessed to firing the shots.

The jury was still left to wonder to what extent Spearman’s confession implicated Turner, especially given that ISP stopped investigating Turner’s social media accounts after obtaining the confession.”

Judges Patricia Riley and Rudolph Pyle concurred.

The case is Chase Turner v. State of Indiana, 22A-CR-2404.•