Indiana Court Decisions: Feb. 8-21, 2024

7th Circuit Court of Appeals

Feb. 9

United States of America v. Junaid Gulzar

23-1204

7th Circuit affirms sentence in wire fraud case where victim was repaid before criminal proceedings

When a man’s efforts to defraud a friend out of $310,000 were detected should take priority in his sentencing for wire fraud, regardless of the fact that he paid her back before any criminal proceedings took place, the 7th Circuit Court of Appeals has affirmed.

The appellate court issued the per curiam opinion in United States of America v. Junaid Galzar, 23-1204.

In 2021, Junaid Gulzar convinced Ariana Small, a childhood friend, to invest money in Indiana gas stations that he would own and operate. He persuaded her and her father-in-law to wire $310,000, and he promised that he would invest the money and pay her back on fixed dates.

But instead of investing the money, Gulzar wagered it at a Michigan casino.

Under their agreement, Gulzar owed Small a certain amount by June 1, but he missed the deadline and fabricated excuses for the delay.

On June 4, Small accused Gulzar of scamming her.

Over the next several days, she repeated her demands for repayment and threatened to report him for bank fraud.

On June 11, at Gulzar’s request, Small drove from New York to Indiana to collect payment.

That day, he handed her several checks, but only $115,000 cleared the bank. On June 23, he wired her another $1,500.

Small reported Gulzar to the police, and on July 2, she sued him in Indiana for fraud. At his deposition in that case three weeks later, Gulzar offered to repay Small and her family.

The next day, he paid her $268,500 — the entire outstanding amount plus $75,000 in profit.

Meanwhile in March 2022, Gulzar was charged with three counts of wire fraud under 18 U.S.C. § 1343. Six months later, a jury found him guilty of each count.

At sentencing, the parties disputed the appropriate loss amount.

Central to the guidelines calculations is the determination of the amount of the victim’s “loss.” A fraud defendant’s offense level is increased under U.S.S.G. § 2B1.1(b)(1) if the “loss” amount exceeds $6,500.

The government, relying on Stinson v. United States, 508 U.S. 36, 45 (1993), argued that Gulzar intended for the victim to lose $310,000, corresponding to a 12-level increase.

The district court sided with the government, assessed the loss amount at $310,000 and applied a 12-level increase.

The court then sentenced him to 18 months. It acknowledged the “unusual” nature of the fraud in that the victim was repaid before the start of any criminal proceedings, but it deemed the fraud serious and highlighted Gulzar’s repeated lies to carry it out.

Gulzar appealed and maintained that the district court erred by increasing his total offense level based on Small’s loss at the time she detected his fraud.

He argued that the court should have followed Kisor v. Wilkie, 139 S. Ct. 2400 (2019), and exhausted all the traditional tools of statutory interpretation before deferring to guidelines commentary.

The 7th Circuit affirmed the district court’s judgment, ruling that the court was correct to defer to the guidelines commentary.

The appellate court’s opinion notes Gulzar’s argument that the district court should have rejected the guidelines commentary’s time of detection and measured the victim’s loss at the time of sentencing. He argued that any other time would be arbitrary because it lacks any grounding in the guidelines.

But according to the appellate court, caselaw offers several reasons to defer to the time-of-detection language.

Payments to victims after a fraudulent scheme may reflect a desire to avoid punishment and not genuine remorse for wrongdoing, the court stressed, citing United States v. Philpot, 733 F.3d 734, 749 (7th Cir. 2013).

The court also cited United States v. Lane, 323 F.3d 568, 589 (7th Cir. 2003), and pointed out that payment after the detection of fraud may indicate acceptance of responsibility but “does not change the fact of loss.”

“And measuring actual loss at the time of sentencing, as Gulzar proposes, would lead to perverse incentives: A defendant could simply repay the victims in full that day to assure himself the lowest of the possible sentencing ranges,” the opinion states.

Finally, the appellate court ruled that the district court may consider a defendant’s efforts to repay his victims, even after detection, under 18 U.S.C. § 3553(a) when fashioning a sentence.

“But we decline to adopt Gulzar’s suggestion that a victim’s loss should be measured at the time of sentencing to calculate the applicable sentencing range,” the court concluded.

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Feb. 20

United States of America v. Adam Tyrale Williams, Jr.

23-2313

For 2nd time, 7th Circuit faults district judge for insufficient explanation in sentence modification denial

“Yet another” round of district court review has been ordered in a sentence modification case after the 7th Circuit Court of Appeals, for the second time, vacated an order denying a modification, finding the judge did not provide a sufficient explanation.

In 2001, Adam Tyrale Williams Jr. was convicted of conspiring to distribute more than 50 grams of crack cocaine, distributing more than 50 grams of crack and distributing more than five grams of crack.

As the then-mandatory sentencing guidelines required, the Indiana Northern District Court imposed three concurrent sentences: life imprisonment for Counts 1 and 2 and the statutory maximum 40-year term for Count 3.

The 7th Circuit dismissed Williams’ direct appeal.

Over the years, Williams has tried repeatedly to secure reductions in his sentences.

Two of his post-conviction motions were dismissed because the judge found he still posed a threat to public safety. The 7th Circuit affirmed each of those judgments.

But when Williams filed his third motion, the guidelines range for Counts 1 and 2 were 235 to 293 months’ imprisonment, rather than life.

Williams thus received a small reduction to 30 years’ imprisonment on all counts. The 7th Circuit affirmed that ruling.

Then in October 2019, Williams filed a fourth motion for a reduced sentence, this time relying on Section 404(b) of the then-recently enacted First Step Act.

The First Step Act yields statutory ranges of 60 to 480 months’ imprisonment for Counts 1 and 2 and a maximum of 240 months’ imprisonment for Count 3.

A new judge took over the case after the prior judge died, but the new judge, James T. Moody, declined to further reduce the 30-year sentence.

Williams again appealed, arguing that Moody’s explanation was insufficient because, rather than addressing his First Step Act motion, the new judge “relied excessively” on the previous judge’s rationale in his third post-conviction ruling.

“Nowhere did the order calculate the new statutory ranges for Williams’s three convictions, as the First Step Act requires; worse, it misstated the statutory maximum for Count 3 (indicating that it was 360 months, when it was actually 240 months),” Senior Judge Diane Wood wrote. “Although Williams had forfeited this challenge, we concluded that the error was plain because it deprived Williams ‘of the benefit of any anchoring effect that the new statutory ranges could have had on Judge Moody’s decision’ and it ‘affect[ed] the fairness, integrity, and public reputation of the proceeding.’”

The 7th Circuit thus vacated the order and remanded the case for reconsideration.

On remand in May 2022, the judge ordered the U.S. Probation Department to submit a revised addendum to Williams’ presentence report. The revised addendum stated William’s modified statutory penalties and his current guidelines range of 235 to 293 months’ imprisonment.

A year later, Williams renewed his First Step Act motion. That motion requested the guidelines maximums of 293 months for Counts 1 and 2 and the statutory maximum of 240 months for Count 3. If granted, the adjustments would allow him to immediately begin the supervised-release portion of his sentence.

A day after receiving Williams’ submission, the judge denied it in an order “nearly identical” to the previous order that was vacated.

“The only differences in the two orders are the addition of a paragraph stating the properly calculated statutory and guidelines range and trivial rephrasings of a few sentences,” Wood wrote. “Williams has appealed, again arguing that Judge Moody did not adequately explain his decision.”

Agreeing, the 7th Circuit again vacated Moody’s order.

The appellate court noted that Williams’ motions under the First Step Act, considered by Moody, were different than his previous post-conviction filings, considered by the late Judge Rudy Lozano.

“Yet Judge Moody’s order incorporates Judge Lozano’s rationale wholesale and refers repeatedly to it, without explaining how an explanation issued in 2015 and based on an outdated record and a different legal landscape automatically applies to a 2023 motion,” Wood wrote. “… Absent at least some explanation showing why Judge Lozano’s ruling maps onto a motion filed nearly a decade later under new legislation, we have no way to know whether Judge Moody considered how the relevant statutory framework, and the policy judgments that it reflects, applies to Williams’s current situation.”

Further, the 7th Circuit distinguished Williams’ case from Chavez-Meza v. United States, 138 S. Ct. 1959 (2018). It also pointed to Concepcion v. United States, 597 U.S. 481, 501 (2022), where the justices held that “when deciding a First Step Act motion, district courts bear the standard obligation to explain their decisions and demonstrate that they considered the parties’ arguments.”

“Measured against those standards and taking into account the fact that we are dealing here with a substantially enhanced record, not a simple, discretionary choice about which point within an established guidelines range the judge thinks is proper, we conclude that the district court’s revised order fell short,” Wood wrote. “The court did not so much as nod at Williams’s new arguments, which are based on significant developments post-dating the now-
vacated order.

“… It is regrettable that yet another round is necessary in the district court, but it is,” Wood concluded. “We trust that the district court will expeditiously complete the job, in light of the fact that Williams will be eligible for supervised release at the end of 2025.”

The case is United States of America v. Adam Tyrale Williams, Jr., 23-2313.

Indiana Supreme Court

Feb. 15

Jennifer R. Teising v. State of Indiana

24S-CR-55

Justices vacate ex-trustee’s theft convictions because state didn’t prove criminal intent

Concerns about a former trustee accused of theft because she worked out-of-state during COVID should have been handled via a civil action, not a criminal action, the Indiana Supreme Court has ruled, vacating the ex-trustee’s 21 theft convictions.

The trustee at issue was Jennifer Teising, who was elected trustee of West Lafayette’s Wabash Township in November 2018 and took office the following January for a four-year term. At the time, she owned a house in Wabash Township on Princess Drive.

But during the COVID-19 pandemic, Teising sold her house, moving some of her things into her mother’s home in Vincennes and the rest into her ex‐boyfriend’s home on Knox Drive in Wabash Township. She also changed both her BMV and voter registration address to the Knox Drive address, and she bought a truck and recreational travel trailer.

Even though Teising began to use the Knox Drive home as her personal address, cellphone records reflect that she rarely stayed there. From June 17, 2020, through March 19, 2021, she spent only 27 overnights there and seven overnights at another address in Lafayette.

She spent the other 241 days traveling the country on trips to Minnesota, Colorado and Florida. She also visited other cities in Indiana.

Throughout her travels, Teising continued working remotely as trustee. Her office manager, Tricia Fultz, kept the office open and continued working there in person.

Teising maintained she was complying with the requirements of her office while working remotely.

But in November 2020, Teising was informed that township residents and elected officials had begun to express concerns about her residency.

A grand jury ultimately indicted Teising on 21 counts of theft. The indictment alleged that Teising no longer resided within Wabash Township, so she forfeited her office and the right to continue collecting her salary. Thus, the 21 paychecks she collected after she allegedly moved away constituted theft.

Teising filed pretrial motions for a change of venue and the appointment of a special prosecutor, but the Tippecanoe Superior Court denied both motions. A bench trial was held in December 2021, after which the trial court found her guilty as charged and sentenced her to 1,095 days, with 847 days suspended, leaving 124 days to be served in the Tippecanoe County Jail and 124 days to be served in community corrections.

Teising appealed her convictions, which the Court of Appeals of Indiana reversed.

The state then petitioned the high court for transfer, which was granted in the Feb. 15 opinion.

Before the justices, Teising argued that the court should vacate her convictions because she never stopped residing within Wabash Township and, therefore, never forfeited office.

But Justice Derek Molter wrote that they did not need to decide the constitutional residency question because they agreed with her second point: that even if she did forfeit her office, the state’s remedy was to remove her from office through a civil quo warranto action, not to convict her of theft.

“… (E)ven if we assume Teising stopped residing in the township and therefore forfeited her office as a matter of law (questions we do not decide), the State didn’t prove Teising knew she forfeited her office, nor, more importantly, that she knew her paychecks had become ill‐gotten gains,” Molter wrote. “And without knowing she wasn’t supposed to be receiving the paychecks, Teising could not have had the necessary criminal intent.

“… Since the State had no evidence Teising believed the money she received wasn’t rightfully hers,” he concluded, “the only available remedies were civil.”

All justices concurred in Jennifer R. Teising v. State of Indiana, 24S‐CR‐55.

Court of Appeals of Indiana

Feb. 9

James T. Morgan v. State of Indiana

23A-CR-1489

Man’s manic episode, behavior justify seizure of firearms, ammo, COA affirms

The Montgomery County Sheriff’s Office properly applied the state’s red flag law when it seized firearms and ammunition from a man after investigating a domestic dispute at his home, the Court of Appeals of Indiana affirmed.

According to court records, on April 19, 2023, James Morgan was at home with his children; his fiancée, Brooke Geller; Brooke’s daughter, Kayleigh Geller; and Elly Benjamin, who was in a relationship with Brooke’s son, Michael Geller. Morgan and Benjamin were arguing about who was responsible for a dog kept at the house.

Benjamin and Kayleigh Geller drove away from the house, but returned a short time later with Michael Geller, who went inside while Kayleigh and Benjamin stayed outside.

Next, Morgan walked outside, wielding a handgun. He had a second handgun “in his pocket,” and was carrying a shotgun on his back.

Morgan approached the car, waving the handgun “back and forth” as he cursed, yelled, and ordered Kayleigh Geller and Benjamin to leave.

Deputy Shelby Curtis was dispatched to investigate a domestic disturbance at the home. He wore a body camera.

Several other officers were present when Curtis arrived. Some of them had drawn their weapons, including rifles, because Morgan was still holding a handgun as he stood outside the house.

Morgan was arguing with Brooke Geller, who yelled at him to drop the handgun.

Morgan temporarily went out of Curtis’ sight, and he did not have the handgun when he returned.

The deputy ordered Morgan to walk backward toward him and get on his knees, and Morgan complied. Curtis handcuffed Morgan and questioned him. Curtis interviewed other residents of the home, as well.

At the end of the investigation, the officers seized two handguns, four shotguns, one muzzleloader rifle, two .22 caliber rifles and two .223 AR rifles, along with ammunition.

On April 20, 2023, Curtis filed an affidavit of probable cause listing the firearms and ammunition the officers had seized. He explained the officers seized the items “for the safety of the family and others … using the ‘red flag law.’”

The Montgomery Superior Court held an evidentiary hearing on the MCSO’s seizure of the firearms.

During the hearing, the state, without objection from Morgan, played a five-minute-long portion of Curtis’ body camera recording, which showed the deputy’s interaction with Morgan.

In addition, Brooke Geller testified Morgan was having “a manic episode” following a “bad night,” during which he experienced night terrors. She also said she manages Morgan’s medications, including for “schizophrenic tendencies.”

Brooke further acknowledged Morgan had a prior conviction of domestic battery against her. She claimed all the firearms and ammunition belonged to her, and she said they could be released to her father-in-law.

At the end of the hearing, the trial court stated, “(T)here’s clear and convincing evidence that . . . Mr. Morgan is an individual who is likely to pose — who will present a risk of personal injury to himself or to another individual in the future, and that specifically on April 19 he did present a risk of harm to himself or another individual.”

The court declined to release the firearms to a third party, noting Brooke’s father-in-law had not appeared in court to confirm he would take custody of them.

It ordered that Morgan’s ability to register a firearm in the state of Indiana was suspended until further order of the court.

Morgan appealed, arguing the trial court erred in allowing Curtis to testify about statements Brooke made to him, claiming the statements were inadmissible hearsay, and claiming the court’s order directing the MCSO to retain the firearms and ammunition lacked sufficient evidentiary support.

The Court of Appeals affirmed, finding the trial court did not abuse its discretion in admitting Curtis’ testimony about Brooke’s statements to him and that there was a probability Morgan would present a risk of personal injury to himself or to another individual in the future.

Senior Judge Randall Shepard wrote the opinion for the appellate court.

Morgan argued that the state failed to show Brooke was still under stress when she spoke with Curtis. Morgan claimed the deputy did not speak with her until he had been at the home for 15 minutes.

According to Shepard, Morgan’s claim lacks evidentiary support because he cites a portion of the deputy’s body camera recording that was not played for the trial court during the evidentiary hearing.

Shepard wrote that Curtis’ interaction with Brooke occurred shortly after she had witnessed her fiancé angrily wielding a firearm while yelling at her daughter and her son’s girlfriend, followed swiftly by her fiancé having an armed confrontation with several officers, during which Brooke told her fiancé to put down the handgun.

“Brooke appeared to be upset and cried as she spoke with the deputy. This evidence supports a conclusion Brooke was still under the stress of the event when she spoke with Deputy Curtis,” Shepard wrote, citing Holmes v. State, 480 N.E.2d 916, 918 (Ind. 1985).

The appellate court also rejected Morgan’s claims that Brooke’s statements to the deputy did not relate to Morgan’s armed confrontations with her daughter and the police.

“Brooke told the officers about Morgan’s mental health history, his refusal to take his medication, and his need for help. Brooke also said she was scared of Morgan. These statements related to Morgan’s recent frightening behavior while armed,” Shepard wrote.

Finally, the appellate court dismissed Morgan’s claim that the trial court’s order directing the MCSO to retain the firearms and ammunition lacked sufficient evidentiary support.

Brooke did not say Morgan’s night terrors and manic episodes had stopped, but merely that he was taking his medication, Shepard wrote.

“This evidence demonstrates a high probability Morgan has a propensity for violent or suicidal conduct,” Shepard concluded, also rejecting his argument that the trial court should have released his firearms to a third party.

Judges Elaine Brown and Rudolph Pyle concurred in James T. Morgan v. State of Indiana, 23A-CR-1489.

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Feb. 13

Desmond Banks v. State of Indiana

23A-CR-896

COA splits in reducing 220-year sentence for teen convicted in ‘worst of the worst’ murder

A convicted murderer sentenced as a teen to more than 200 years will have his sentence reduced to 135 years, although one Court of Appeals of Indiana judge would uphold the 220-year term.

Judge Nancy Vaidik wrote the opinion in Desmond Banks v. State of Indiana, 23A-CR-896. The case began in February 2020, when Jalen Roberts and Marcel Wills were living at Carriage House East Apartments at 42nd Street and Mitthoeffer Road on the east side of Indianapolis.

Braxton Ford and Kimari Hunt, who was Wills’ girlfriend, were hanging out with Roberts and Wills at the apartment on the night of Feb. 5.

Also that night, Lasean Watkins called his friend Rodreice Anderson to ask for a ride. When Anderson arrived at Watkins’ house, brothers Cameron and Desmond Banks were with Lasean.

The three got into Anderson’s gold Oldsmobile, and Watkins told Anderson to drive them to Roberts and Wills’ apartment so they could buy marijuana.

Meanwhile, Anton Wilson and his brother, Mikalus Hervey, arrived at the apartment around 9:30 p.m. Anton went inside while Hervey stayed in the car.

Anderson, Watkins, Cameron and Desmond arrived a short time later. Anderson stayed in his car while the other three went inside.

Wilson didn’t know the trio but later identified them in a photo lineup.

Wilson noticed that Watkins was acting “jittery” and pacing around. Wills asked Watkins why he was acting that way, but he didn’t respond.

Wills also asked Watkins if he wanted him to buy back the gun he had sold him, and he responded that it would cost more because he had modified it.

The situation made Wilson feel “uncomfortable,” so he told Wills that he was leaving and would see him later.

Wilson got to his car, where he saw Watkins leave the apartment and walk over to Anderson and ask if he had change for $20. Anderson said no, and Watkins informed him there were four people inside he was about to rob. Anderson stayed in his car.

Wilson’s car pulled away as Watkins reentered the apartment. Soon after, Anderson heard gunshots.

About five minutes later, Cameron got in the car, shortly followed by Desmond and Watkins. Each carried a gun and a duffel bag.

Anderson drove them to Cameron and Desmond’s house, and Cameron gave Anderson a jar of marijuana.

Indianapolis Metropolitan Police Department officers responded to the apartment and found the bodies of Roberts, Wills, Ford and Hunt inside. Roberts had been shot 29 times, Wills and Ford were shot seven times and Hunt was shot five times.

The state later charged Watkins, Cameron and Desmond each with four counts of murder, four counts of felony murder and four counts of Level 3 felony robbery. The state also charged Anderson with four counts of felony murder and four counts of Level 2 felony robbery.

Anderson and the state entered into a plea agreement for four counts of Level 2 felony robbery, and the state dismissed the four counts of felony murder. He agreed to testify against Watkins, Cameron and Desmond and was sentenced to 35 years, with five years suspended to probation.

A five-day jury trial was held in February and March 2023, at which Watkins, Cameron and Desmond were tried together. Wilson and Anderson testified.

At the end of the second day of trial, the Marion Superior Court was giving the jurors instructions for the night when it appeared that a spectator in the gallery started talking to the defendants or the attorneys.

Desmond and Cameron turned around, and a Marion County Sheriff’s Office deputy walked toward the gallery and directed the spectator to exit the courtroom.

After the trial court said, “All rise,” and as the jurors started filing out of the courtroom, three members of the Marion County Sheriff’s Office Critical Emergency Response Team, who had been stationed in the courtroom during the trial, approached Cameron and Desmond and stood behind them.

The CERT members, who were wearing special uniforms that resembled SWAT uniforms, told Desmond and Cameron to face forward.

Desmond’s attorney moved for a mistrial, arguing that because the CERT members stood behind Cameron and Desmond while the jury was still in the room, it gave the impression they were in custody and essentially supervised by the sheriff’s office, and that they were dangerous.

After reviewing a video of the incident and speaking at length with the parties, the court denied the motion for mistrial.

After the trial, the jury found Watkins, Cameron and Desmond guilty as charged.

At Desmond’s sentencing, the trial court acknowledged that he was 16 years old at the time of the shooting, but also said it was “the most horrific” murder trial because it involved the “slaughter” and “execution” of the victims.

The court didn’t find any mitigators and sentenced Desmond to a total of 220 years.

The court acknowledged that it was a “de facto life sentence” but found that it was warranted because this “was one of the worst things I’ve ever seen in my entire life.”

Desmond appealed, first arguing that the trial court erred in denying his motion for a mistrial.

Rejecting that argument, Vaidik wrote, “The court, who was present during this incident and reviewed the video, found that the CERT members approached and stood behind Desmond and Cameron as the jurors exited the courtroom but that Desmond and Cameron were not removed from the courtroom until after the last juror had exited. Given our great deference to trial courts in ruling on requests for mistrial … we cannot say the trial court abused its discretion here.”

Next, the court addressed Desmond’s argument that there was insufficient evidence to support four separate convictions for Level 2 felony robbery because he did not take property from each victim.

The state conceded that point, so the appellate court reversed three of Desmond’s robbery convictions.

Desmond also argued that his convictions for murder and Level 2 felony robbery of Wills constitute double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020), because the robbery was enhanced to a Level 2 felony “due to the same serious bodily injury that formed the basis” of the murder.

The appellate court agreed, remanding for the trial court to enter a conviction for Level 5 felony robbery instead.

Lastly, Desmond argued his 220-year sentence was inappropriate and requested that the court to reduce it.

The COA found that given Desmond’s age, a reduction was warranted, but not a substantial one.

The court reduced his sentence to 135 years.

“We recognize this is still a de facto life sentence, since Desmond would have to serve over 100 years even with credit for good behavior,” Vaidik wrote. “But reducing Desmond’s sentence to 135 years now makes it more likely that, with good behavior, a trial court would grant a modification under Section 35-38-1-17(n) and reduce his sentence to a point that would allow for some life outside of prison.”

Judge Elaine Brown concurred while Judge Cale Bradford concurred in part and dissented in part with a separate opinion.

Bradford disagreed with the majority that Desmond’s sentence is inappropriate.

“(Desmond) Banks is amongst the worst of the worst. Banks was an active participant in the ruthless, execution-style killing of four human beings,” Bradford wrote.

Also, Bradford noted Desmond’s juvenile adjudication for improperly handling a firearm.

“Clearly, court intervention following Banks’s juvenile adjudication did not dissuade him from using a firearm in an illegal manner in the future,” he wrote.

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Feb. 21

Tipton County Board of Zoning Appeals v. Hope for the Hurting

23A-MI-1733

COA rules zoning exception for treatment center must be granted, agreeing that denial was based on ‘irrational animus’

The denial of a zoning exception for a drug treatment center was based on “fear and bias” and must be reversed, the Court of Appeals of Indiana ruled.

The case of Tipton County Board of Zoning Appeals v. Hope for the Hurting, 23A-MI-1733, involves a drug treatment center that faith-based charity Hope for the Hurting wants to open in rural Tipton County. Warren and Michelle Stine donated their property to the charity to open the treatment center.

To open the center, known as the “Oasis,” Hope for the Hurting applied for a special use exception because the donated property was zoned as agricultural.

But at a hearing in June 2022, remonstrators opposed the exception because they did not want people who are “not disciplined and irresponsible,” meaning those in recovery, living nearby.

The BZA denied the special use exception, citing the remonstrators’ safety concerns.

Hope then sought judicial review, and the Grant Circuit Court reversed the BZA.

According to the trial court, “the opponents’ presentations did not consist of factual observations regarding the project or the Property (other than its proximity to their real estate) but was made up largely of opinions of people in recovery and speculative ‘parade of horribles’ of imagined scenarios where the patients of the facility would engage in criminal or reckless behavior.’”

The trial court also found, “The BZA’s findings … rest not on facts but on the opponents’ unreasonable and irrational animus towards those trying to recover from addiction.”

The BZA appealed the trial court’s reversal, but the Court of Appeals affirmed the trial court’s decision, looking to Subsections B and G of the local zoning ordinance.

“The comments voiced by remonstrators during the hearing about their beliefs and concerns against granting Hope the special use exception do not amount to evidence upon which a reasonable mind would rely,” Judge Patricia Riley wrote. “… The BZA’s own findings acknowledged that remonstrators’ statements veered into unsupported territory when it observed that ‘[t]he BZA gives appropriate weight and due consideration to the testimony and statements which appear to be based on reason or supported by credible argument. Any testimony or statements which appeared utterly devoid of relevant facts, or which seemed to go against all common sense, was [sic] discounted and not relied upon.’

“However, by still crediting these ungrounded statements and explicitly incorporating them in its findings, the BZA elevated fear and bias to the level of evidence,” Riley wrote. “The BZA cannot support its decision with conjecture or speculation, but that is precisely what it did in its findings on Subsection B. Because there was ‘no basis that would lead a reasonable and honest person to the same conclusion,’ the BZA’s conclusion with respect to Subsection B should be reversed.”

Further, the Oasis would not be contrary to the local Comprehensive Plan, the COA held.

“We agree with the trial court’s statement that ‘[p]erhaps the best evidence that operating a Social Rehabilitation Center is consistent with the Comprehensive Plan is the [O]rdinance itself, which has long allowed such use as a special exception under the zoning ordinance,’” Riley wrote. “If the Ordinance itself encourages the establishment of new Social Rehabilitation Centers, then such use would certainly include the Oasis, which will be located in existing residential houses on Property that has always complied with the Ordinance.

“… The totality of the evidence before us reflects that the BZA’s findings in denying Hope’s request for a special use exception are based on a catalogue of speculative and hypothetical dangers the Oasis residents might pose,” Riley concluded. “This hyperbole and conjecture have no basis in fact and do not amount to substantial evidence sufficient to support the BZA’s denial.•