Indiana Court Decisions Jan. 26-Feb. 8, 2012

For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section of the Indiana Lawyer. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.

7th Circuit Court of Appeals

January 31

Civil – Ineffective Counsel

Dale J. Atkins v. Michael Zenk

11-1891

A man who stabbed his wife repeatedly, leaving her with a collapsed lung and ruptured spleen, was unable to prove that he received ineffective counsel at trial, the 7th Circuit Court of Appeals held.

A jury convicted Dale Atkins of attempted murder, criminal confinement, domestic battery, and invasion of privacy and sentenced him to 51 years in prison. After filing an unsuccessful petition for post-conviction relief, he filed a habeas corpus petition. The U.S. District Court for the Northern District of Indiana, South Bend Division, denied that petition, but granted a certificate of appealability.

Atkins claimed he was not present in his wife’s home at the time she was stabbed. But on the eve of trial, he admitted to his lawyer, Todd Ess, that he had stabbed his wife, but that it was an accident and he had not intended to kill her. In the wake of this revelation, Ess asked Atkins if he wanted to proceed using an accident defense or a misidentification defense, but Atkins was uncooperative and said he did not wish to testify or talk about his relationship at trial.

Atkins claimed that insufficient evidence exists to support his conviction of attempted murder, but in the 7th Circuit opinion, the court wrote: “Atkins’ entire argument boils down to the fact that Yvonne’s stab wounds were not particularly deep. Therefore, a jury could have reasoned that Atkins lacked the requisite intent to kill.” But the court said that argument is flawed, particularly because “ten stab wounds – one that was less than one inch from her heart and another that cut her spleen – are damning evidence supporting an intent to kill.”

Civil – Discrimination/Schools

Amber Parker, et al., v. Franklin Community School Corporation, et al.

10-3595

The 7th Circuit Court of Appeals believes the appellants in a discrimination claim have presented a genuine question of fact that merits further review.

Amber Parker – a former varsity girls’ basketball coach at Franklin County High School – filed the complaint against 14 Indiana public school corporations. Parker, whose daughter played on the Franklin team, claimed that the practice of holding boys’ games primarily on weekends and girls’ games primarily on weeknights was discriminatory.

During the 2009-2010 season, nearly 95 percent of the Franklin boys’ varsity games were played during “primetime” – nights that do not precede school days. In that same season, only 53 percent of girls’ games occurred during primetime. Parker’s complaint stated that because girls’ teams are relegated to weeknight play, the players have trouble keeping up with homework obligations, are less likely to have fan support, and generally feel that their accomplishments are less important than the boys’ teams.

The 7th Circuit agreed that Parker’s complaint may be actionable under Title IX of the Education Requirements of 1972, 20 U.S.C. Section 1681(a). It therefore vacated the entry of summary judgment in favor of the defendants that had been issued by the U.S. District Court, Southern District of Indiana, Indianapolis Division. It further vacated the District Court’s dismissal of the plaintiffs’ equal protection claim pursuant to 42 U.S.C. Section 1983, on the basis of sovereign immunity, and remanded for proceedings consistent with its opinion

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February 2

Criminal – Sentencing/Online Child Exploitation

United States of America v. Erik D. Zahursky

11-2054

The 7th Circuit Court of Appeals has upheld the 210-month sentence received by a defendant on remand for his conviction of attempting to coerce or entice a minor to engage in sexual activity.

Erik D. Zahursky was originally sentenced to 262 months for his conviction, which was based on his attempts to meet and have sexual relations with what he believed to be two 14-year-old girls he met online. He appealed that sentence, which the 7th Circuit vacated because it found the sentencing enhancement imposed based on Section 2G1.3(b)(2)(B) of the sentencing guidelines was inapplicable. At that time, Zahursky didn’t challenge the pseudo-count enhancement based on Section 2G1.3(d).

The District Court, relying in part on Section 2G1.3(d) of the guidelines, sentenced him to 210 months in prison. Zahursky again appealed, arguing that the earlier 7th Circuit ruling not only precludes the section (b) enhancement, but also the section (d) enhancement.

“Zahursky chose in his first appeal to focus on the undue influence enhancement described in § 2G1.3(b)(2)(B). If he had complained on that appeal about the section (d) pseudo-count enhancement, then we might have ordered an evidentiary hearing on Holly’s identity or age and remanded for resentencing on these grounds as well. But he did not, and so he has forfeited this line of attack,” wrote Judge Diane Wood.

Civil – Attorney Bar Admission

Bryan J. Brown v. Elizabeth Bowman, et al.

11-2164

A Kansas attorney who was denied admission to join the Indiana bar can’t bring his suit against various state actors in federal court because of the Rooker-Feldman doctrine, the 7th Circuit Court of Appeals ruled.

Bryan K. Brown, who was a practicing attorney in Kansas before moving to Indiana, sought admission to practice here. The Indiana Board of Law Examiners referred Brown to the Judges and Lawyers Assistance Program for an evaluation. He was eventually denied admittance because he couldn’t demonstrate good moral character and fitness under Admission and Discipline Rule 12.

Brown appealed the decision to the Indiana Supreme Court, which left the BLE’s decision intact. The Supreme Court of the United States denied Brown’s petition for certiorari. He then brought a suit in federal court against JLAP, Indiana Chief Justice Randall T. Shepard and other state actors alleging federal and state constitution violations. Brown believed he was being prevented from joining the Indiana bar because of his religious beliefs.

Judge Theresa Springmann dismissed the suit, finding the claims were barred under the Rooker-Feldman doctrine because they were inextricably intertwined with the Indiana Supreme Court’s adjudication of his bar application and finding that his as-applied challenges to Admission and Discipline Rules were unripe. The 7th Circuit Court of Appeals agreed.

“Because Brown’s claims of religious bias require a federal district court to review the judicial process followed by the Indiana Supreme Court in deciding the merits of Brown’s bar admission application, Brown’s claims are ‘inextricably intertwined’ and fall squarely under Rooker-Feldman’s jurisdictional bar,” wrote Judge Richard Cudahy. “Further, a simple reading of Brown’s complaint shows that his religious discrimination claims in district court are essentially the same arguments he made to the Indiana Supreme Court.”

Civil – Hazardous Substance Cleanup/Automobile Accident

Emergency Services Billing Corp. Inc., individually (and as agent for) agent of Westville Volunteer Fire Department v. Allstate Insurance Co., et al.

11-2381

The billing agent for a central Indiana volunteer fire department can’t bill individuals involved in auto accidents with their personal vehicles for clean-up costs of hazardous substances, according to the 7th Circuit Court of Appeals.

Emergency Services Billing Corp., which is the billing agent for the Westville Volunteer Fire Department, sent invoices itemizing the response costs incurred by the fire department to four individuals involved in separate auto accidents. ESBC believed the individuals and their auto insurers would be liable under the Comprehensive Environmental Response, Compensation and Liability Act.

The District Court held that motor vehicles for personal use fall under the “consumer product in consumer use” exception to CERCLA’s definition of facility, and so defendants can’t be charged with the fire department’s costs for responding to the accidents.

The CERCLA allows for clean-up costs to be recovered from owners of a “facility” in which hazardous substances have been released. The CERCLA definition of facility includes motor vehicles, but the definition states a facility does not include “any consumer product in consumer use.”

ESBC argued that the phrase “consumer product” is ambiguous and the courts should defer to how the Environmental Protection Agency has defined the term; defendants maintained any use of tools outside of the statute to define the term is inappropriate.

The 7th Circuit affirmed the District Court’s decision, finding the defendant’s interpretation of “consumer product” to be persuasive.

“CERCLA’s ‘consumer product’ exemption from the term ‘facilities’ cannot reasonably be read to exclude personally-owned, personally-operated motor vehicles,” wrote Judge Joel Flaum. “The language of CERCLA is clear on its face, and a look into CERCLA’s legislative history, the term ‘consumer product’ as it is used in other statutes, and the EPA’s interpretation of the term only confirms our conclusion.”

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February 3

Civil – Public Employee Termination

Larry Davis v. Kris Ockomon, et al.

10-2589

The city of Anderson was justified in firing an official who failed to support a mayoral campaign, held the 7th Circuit Court of Appeals.

Larry Davis appealed his termination as senior humane officer, a job he held from 1988 to 2008. In 2007, Davis backed the mayoral campaign of Darryl Rensil, who was running against Kris Ockomon. After Ockomon won the primary, he reached out to Davis in attempt to gain support before the upcoming general election. Davis declined, purportedly because he thought Ockomon hadn’t lived in Anderson long enough to satisfy the residency requirement to become mayor.

Ockomon won the election and fired Davis in January 2008. Davis then filed suit in the United States District Court for the Southern District of Indiana, claiming his termination violated the First and 14th amendments of the U.S. Constitution.

The District Court looked at the job description for senior humane officer and determined that it could be characterized as a policymaking role, thereby subject to removal on the basis of political affiliation. Davis had contended his job had no policymaking authority. The 7th Circuit looked further into Anderson city ordinances to better understand the scope of the job and found that the senior humane officer has broad discretion over permits, policies and licenses, which indicates that it is a policymaking job. The 7th Circuit therefore affirmed the District Court in all respects.

Criminal – Possession of Firearm/Drug Trafficking

United States of America v. Gregory G. Eller

10-2465

The 7th Circuit Court of Appeals affirmed a man’s conviction of possessing a firearm in furtherance of a drug-trafficking crime, finding there was sufficient evidence to support the conviction.

Police found marijuana plants and other items behind a steel door in Gregory Eller’s basement and a loaded gun under the couch in his living room. Eller challenged the charge, arguing he used the gun for protection because the neighborhood was not safe.

On appeal, the judges rejected his claim that the conviction should be reversed because 18 U.S.C. Section 924(c) is unconstitutionally vague as applied. Eller contended that the “in furtherance of” nexus between the drugs and the firearm requires a greater level of participation than proving the “during and in relation to” prong. Eller claimed that in order to prove the former, the government must show the gun was more than merely available, that it actually advanced the drug-trafficking operation. Other jurisdictions have rejected Section 924(c) void-for-vagueness challenges, as did the 7th Circuit.

The government provided sufficient evidence to satisfy the “in furtherance of” nexus required to convict Eller, and the District Court did not commit plain error when it allowed the government to present the testimony of a special agent with extensive experience working in drug-related cases.

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February 7

Civil – Municipal Land Use/Doctrine of Mootness

Roy Wirtz, et al. v. City of South Bend

11-3811

The 7th Circuit Court of Appeals was presented a novel jurisdictional issue: whether a municipal land-use case can come within the exception to the doctrine of mootness for cases that are capable of repetition yet elude review.

The city of South Bend bought land next to a Catholic high school with the intention of transferring it to the school in exchange for use of the athletic complex. Some residents challenged the transfer, arguing it violated the establishment clause since no value had been attached to the use right that was the only compensation the city sought. The District Court granted a preliminary injunction, and instead of appealing, the city filed two subsequent motions to modify the injunction, eventually opening up the process to the highest bidder. The high school purchased the land.

After the sale, the city appealed the two interlocutory orders denying motions it made in the course of the litigation. At no time after the motions were denied did the city appeal. The city claimed that it didn’t appeal those orders because the high school needed to begin construction of the complex immediately in order to complete it by the 2012 school year. South Bend claimed that the District Court’s rulings establish precedents that will prevent the city from transferring land to religious institutions in the future.

“… the fact that a dissolved injunction may have consequences even though the case in which it was issued is now moot is not a permissible ground for invoking the doctrine that allows the appeal of moot cases that are capable of repetition but evade review,” wrote Judge Richard Posner. To allow the timing of a project as a ground for permitting moot cases to be appealed would bring “an unmanageable host of such cases into the appellate courts,” he continued.

The city’s appeal is moot and untimely.

Indiana Supreme Court

January 31

Civil – Expert Witness Admissibility/Personal Injury

Henry C. Bennett and Schupan & Sons, Inc. v. John Richmond and Jennifer Richmond

20S03-1105-CV-293

Civil Tort – Expert Witness Admissibility/Automobile Accident

Reginald N. Person Jr. v. Carol A. Shipley

20S03-1110-CT-609

The Indiana Supreme Court released companion cases on the issue of admitting certain expert testimony under Indiana Rule of Evidence 702 in two separate car accident cases.

Justice Frank Sullivan authored the opinions in these cases, with justices finding neither trial court abused its discretion in admitting the testimony in question.

In Bennett, John and Jennifer Richmond sued Henry Bennett and his employer after Bennett rear-ended John Richmond’s van with his company roll-off container truck. At issue in the case is whether the testimony of psychologist Dr. Sheridan McCabe – who determined that John Richmond had experienced a traumatic brain injury in the accident – should be admitted. The trial court allowed it; but the Indiana Court of Appeals reversed.

Sullivan noted the split in other jurisdictions as to whether psychologists may testify as to the cause of a brain injury. The justices looked at McCabe’s qualifications and testimony and found the testimony was allowed under Rule 702.  Sullivan pointed out that other courts have not required specific qualifications in determining the etiology of brain injuries before allowing psychologists or neuropsychologists to testify in this regard.

“Our review of the record, read in conjunction with the requirements of Rule 702, leads us to conclude that the trial court did not abuse its discretion in admitting Dr. McCabe’s causation testimony. The trial court extensively and thoughtfully considered the admissibility of Dr. McCabe’s testimony on three separate occasions during this litigation. Mindful that the trial court is afforded broad discretion in these matters, we decline to find any abuse of it,” he wrote in Bennett.

A similar issue arose in Person, except the expert testimony at issue was that of Dr. Charles Turner, who has a background in engineering and biomechanics. Turner testified on behalf of Carol Shipley – whose vehicle rear-ended Reginald Person’s tractor-trailer when she fell asleep at the wheel – that Person’s lower-back injuries were unlikely caused by the accident based on the speed or velocity of the accident.

Person objected to the admittance of Turner’s testimony, but the trial court allowed it and the jury returned a defense verdict in favor of Shipley. Again looking at Rule 702 and the qualifications and testimony of Turner, the justices found the trial court didn’t abuse its discretion in admitting Turner’s testimony.

“Although we find it unnecessary in this case to expound upon Dr. Turner’s qualifications to offer an opinion on medical causation, we note here as we noted in Bennett that neither the criteria for qualifying under Rule 702 (knowledge, skill, experience, training, or education) nor the purpose for which expert testimony is admitted (to assist the trier of fact) seems to support disallowing an otherwise qualified expert to offer an opinion regarding medical causation simply because he or she lacks a medical degree,” wrote Sullivan in Person.

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February 2

Criminal – Driver’s License Suspension/Drugs

Michael B. Adams v. State of Indiana

29S02-1109-CR-542

The Indiana Supreme Court has affirmed the suspension of a man’s driver’s license following his conviction of possessing marijuana. While the driver’s license suspension statute generally applies only when the defendant uses the vehicle in the commission of the offense, it’s not required that the defendant must either own or be driving the vehicle when he commits the offense.

Michael Adams was a passenger in a car pulled over for speeding. The officer smelled burnt marijuana and later discovered a jar of marijuana on the floor of the passenger’s side of the car, where Adams’ feet would have been. After being found guilty of possession of marijuana, the trial judge suspended Adams’ license and registration for 180 days pursuant to Indiana Code 35-48-4-15(a), believing that the driver’s license suspension statute left her no discretion in the matter even though Adams wasn’t driving the car.

Adams argued that the statute couldn’t have applied to him because he didn’t drive or own the car; the state argued that any use of a vehicle by a defendant requires the court to suspend the defendant’s driver’s license and registration. The justices reached a conclusion in between the parties’ arguments.

The justices concluded that the statute requires proof that the defendant used a motor vehicle, at least in cases in which the defendant’s liability doesn’t turn on an accomplice theory. However, it doesn’t follow that the defendant must either own or be driving the car when he commits the offense, wrote Chief Justice Randall T. Shepard. A defendant could use the car by hiding drugs in the trunk or selling drugs out of the window.

“The State must demonstrate that a defendant made more than an incidental use of a motor vehicle in committing his offense, but once the State makes this showing, then a trial court must order the defendant’s driver’s license, registration, and ability to register other vehicles suspended. The court may exercise its discretion only in setting the length of that suspension,” he wrote.

Indiana Court of Appeals

January 26

Agency Appeal – Personal Injury/Workers’ Comp

Jeff Reeves v. Citizens Financial Services

93A02-1107-EX-604

The Indiana Court of Appeals has affirmed that a man is not entitled to ongoing palliative care because he failed to specify what treatment he believes he needs.

Jeff Reeves was injured in a car accident while in the course of his employment with Citizens Financial Services. He had pain in his neck, lower back, left hip and legs. Over the course of seven years, he saw numerous doctors or specialists to try to diagnose and treat the pain.

The matter went before a single hearing member of the Worker’s Compensation Board because Reeves and Citizens Financial could not agree on the company’s liability for any further treatment. The single hearing member found Reeves had reached maximum medical improvement, had a permanent partial impairment of five percent and was not entitled to palliative care. The full board adopted the hearing member’s opinion in full.

Reeves appealed the decision that he’s not entitled to ongoing palliative care, but did not specify what type of treatment he thinks he should receive. Citizens Financial argued that none of the doctors’ opinions clearly indicate that palliative care would reduce the extent of Reeves’ impairment.

There is conflicting evidence in this case as to whether palliative care – medicine, physical therapy or some other measure – reduces the extent of Reeves’ impairment, ruled the COA. Since he has not met the burden of showing the evidence is undisputed and leads inescapably to the opposite result of what the board found, the judges affirmed the board’s decision.

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January 27

Civil Plenary – Law Enforcement

City of Indianapolis v. Rhodora Earl

49A02-1102-PL-89

The Indiana Court of Appeals held the Tort Claims Act does not grant immunity to law enforcement officers who fail to exercise reasonable care while driving.

Rhodora Earl was seriously injured when a high-speed police pursuit ended with the suspect crashing into her car. Earl sued the city for her injuries, and in her amended complaint, she alleged the city was liable for her injuries because Indianapolis Police Officer Shannon Harmon continued chasing the suspect without regard to the safety of other drivers or pedestrians in a high-traffic area.

The city appealed the trial court’s denial of its motion for summary judgment, citing the law enforcement provision of Indiana’s Tort Claims Act. The COA held that while the law enforcement provision does grant immunity for certain actions that occur in the line of duty, an officer still has an obligation to exercise sound judgment.

Citing the Indiana Supreme Court opinion in Patrick v. Miresso, 848 N.E.2d 1083, 1084 (Ind. 2006), the appellate court wrote that a governmental unit and its police officer are not immune from liability for injuries caused by the officer’s negligent operation of a police vehicle while pursuing a fleeing suspect.

Criminal – Admissibility of Testimony/Child Molestation

Bradley Bradford v. State of Indiana

59A01-1104-CR-215

A man who was convicted of Class C felony child molesting is entitled to a new trial, according to the Indiana Court of Appeals.

Bradley Bradford had been convicted of molesting his niece in a hotel room where he, his then-wife and other children were staying during a family vacation. Bradford’s niece, A.T., reported the incident to her mother upon returning home to Marion, Ind. After an investigation by the police and the Department of Child Services, Bradford was arrested on the molestation charge.

At trial, the DCS caseworker who interviewed A.T. testified that the abuse allegation was substantiated. Bradford objected, arguing that the caseworker’s testimony violated Indiana Evidence Rule 704(b), which states: “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.”

The COA agreed, holding that admission of that testimony likely had a prejudicial impact on the jury. It reversed Bradford’s conviction and remanded for retrial.

Civil Plenary – Damages/Blighted Property

Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A., et al.

45A03-1102-PL-84

The Indiana Court of Appeals has affirmed a trial court’s finding that a man was not entitled to damages for taking care of a blighted property.

Robert Holland rented a home in Gary, Ind., on a block where many homes became vacant due to foreclosure between 2002 and 2009. Holland claimed he had made improvements to a nearby vacant home totaling $75,000, yet was unable to provide documentation of those expenses.

On May 29, 2009, Holland, identifying himself as a concerned citizen for the redevelopment of Gary, filed his Complaint for Foreclosure of Lien for Costs of Abating Nuisance and the Decrease in Value of Property. He claimed the prior owners of the home were liable for his expenses. First Midwest Bank filed a motion to intervene because it was the title-holder on the vacant home.

The trial court granted the bank’s motion for summary judgment and declared a common law lien filed by Holland to be invalid. The court denied his motion to correct error and motion for relief from judgment and awarded attorney fees in the amount of $400. The COA affirmed the trial court on those decisions.

The COA denied a cross-appeal from the bank requesting appellate attorney fees, holding that the bank did not properly upkeep the property and that inaction gave rise to the litigation of Holland’s complaint.

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January 30

Criminal – Traffic Violation/Suspended License

Latoyia Billingsley v. State of Indiana

02A03-1107-CR-301

A woman convicted of Class A misdemeanor driving while suspended within 10 years of a prior infraction misinterpreted a prior case in support of her appeal.

Police stopped Latoyia Billingsley when she disregarded a traffic signal in January 2011. She produced an altered Illinois license and when questioned by the officer who initiated the traffic stop, admitted that she knew her Indiana driver’s license had been suspended indefinitely in June 2010. The officer issued two citations – one for driving while suspended within 10 years of a similar prior infraction and the other for disregarding an automatic signal. The vehicle was impounded and Billingsley was allowed to leave.

At a bench trial in June 2011, the state admitted into evidence Billingsley’s driving record, which indicated that her driver’s license had been suspended indefinitely since June 11, 2010, stemming from her failure to appear in a vehicular offense. The driving record noted that her license had been suspended five other times, and she had been convicted of driving while suspended in 2007.

Citing Trotter v. State, 838 N.E.2d 553, 560 (Ind. Ct. App. 2005), Billingsley argued she should be charged only with an infraction, not a misdemeanor. But the COA held that the Trotter case does not apply, as in that matter, the driver’s record showed his license had been previously suspended, but not that he had been convicted of driving while suspended. The COA therefore affirmed the trial court in the Billingsley case.

Criminal – Traffic Stop/Evidence

State of Indiana v. Johnnie S. McCaa

56A04-1107-CR-341

The Indiana Court of Appeals has reversed a trial court’s grant of a truck driver’s motion to suppress evidence, holding that police did not violate his rights in an unusual traffic stop.

Police stopped Johnnie McCaa, the driver of a semitrailer, after receiving reports that he had been driving erratically. But because of a pre-existing crash, when police pulled over McCaa, his truck was blocking the only open lane of traffic.

Newton County Sherriff’s Sgt. Shannon Cothran questioned McCaa about his driving, and McCaa said he had been driving erratically because he spilled a can of soda in his lap. Cothran did not observe any obvious signs of intoxication, but because McCaa was blocking the roadway, Cothran ordered him to drive his truck to a nearby gas station. Cothran and another officer followed him and saw McCaa drive off the road three times en route to the gas station.

McCaa argued that by asking him to drive to the gas station, police created a situation to enhance probable cause to believe McCaa was intoxicated. At the gas station, while his breath test showed no alcohol in his blood, he failed standard field sobriety tests. Cothran took McCaa to a hospital for urinalysis, the details of which were not included in the appeal.

The COA wrote that due to the fact McCaa was blocking the only open lane of traffic, it was not unreasonable to ask him to move his vehicle, nor was it unsafe, as police followed him. It therefore reversed the trial court’s grant of McCaa’s motion to suppress evidence obtained after the initial stop.

Judge Michael Barnes issued a separate opinion and wrote that he “begrudgingly concurred” with the majority opinion, stating, “No mistake should be made that law enforcement officers could or should allow a person to drive a vehicle, observe the driver, and buttress their probable cause because of these observations. These circumstances are the proverbial ‘once in a lifetime,’ fortunately for police.”

Domestic Relation – Change of Judge/Custody

A.T. (Mother) v. G.T. (Father)

39A05-1107-DR-335

Indiana’s appellate court has reversed a trial court in denying a mother’s request for change of judge in a custody dispute.

A.T., the mother, and G.T., the father, divorced in Trimble County, Ky., in 2009, and the father was appointed as the primary custodial parent. At some point in 2010, the family members moved to Indiana, and in February of that year, the Jefferson Superior Court issued a no-contact order based on allegations of domestic violence committed by G.T. upon A.T. The Trimble Family Court, which retained jurisdiction over the domestic issues, ordered that the mother should have temporary physical custody of the children.

The Kentucky court restored joint custody in October 2010, and the Jefferson Circuit Court eventually assumed jurisdiction in January 2011. When the mother moved from Madison, Ind., to Bloomington, Ind., the father – who had been convicted of misdemeanor domestic battery – filed a petition to modify custody. A hearing was set, and the mother filed her motion for a change of judge, which was denied.

The Court of Appeals held that the trial court should have granted the request for automatic change of judge under Trial Rule 76(B). Furthermore, the trial court should not have held the modification hearing, as it was deprived of jurisdiction by the timely filing of the Trial Rule 76(B) request.

The COA reversed and remanded with instructions that the judge grant the mother’s request for change of judge and that the procedures for the selection of a new judge be immediately implemented. “We urge the parties to cooperate in the timely selection of a new judge and to consider the welfare of their children in resolving this matter,” the court wrote.

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January 31

Criminal – Police Search

Christopher Stark v. State of Indiana

49A05-1104-CR-152

A police officer who arrested a man and then found a gun in his coat did not violate the man’s rights, the Indiana Court of Appeals held.

A police officer arrested Christopher Stark after approaching his idling vehicle and finding Stark – who was under age 21 – had been drinking alcohol. Stark was acting suspiciously and appeared to slide something underneath his coat, which was on his lap.

After the officer arrested Stark, he returned to the car and retrieved the coat, which contained a loaded handgun. In his interlocutory appeal, Stark appealed his denial of his motion to suppress that evidence, holding his rights had been violated when the officer retrieved his coat.

The COA held that the degree of intrusion was minimal, and that with three unsecured passengers still in the idling vehicle, safety concerns existed for the arresting officer. The appellate court affirmed the trial court’s denial of Stark’s motion to suppress. 

Criminal – Drugs/Evidence

Steven Nowling v. State of Indiana

31A01-1010-CR-552

A man convicted of Class D felony possession of methamphetamine asked the Indiana Court of Appeals to review its original opinion affirming the trial court.

Steven Nowling asked the COA to review the testimony of William Bowles.

Bowles, a forensic scientist with the Indiana State Police Laboratory, testified that a pen hull found in Nowling’s home tested positive for methamphetamine. Nowling did not object during trial. Therefore, the COA affirmed its original opinion.

Criminal – Admission of Testimony/Evidence

Nathan Anderson v. State of Indiana

49A05-1105-CR-243

The erroneous admission at trial of a statement a man made to police unquestionably influenced the jury verdicts regarding his convictions of burglary and abuse of a corpse, causing the Indiana Court of Appeals to reverse those convictions. But the COA affirmed his conviction of and sentence for murder.

Nathan Anderson crawled through an open window and stabbed Jane Pepper numerous times, killing her. He also had sexual intercourse either before or after the murder, and he told police during an interview that his intent in entering the apartment was to rob Pepper.

A jury found Anderson guilty of murder, Class B felony burglary, and Class D felony abuse of a corpse. On appeal, Anderson claimed that a buccal swab that produced DNA evidence linking him to the crime – obtained by police after he was convicted of another felony – was a violation of Indiana statute and his federal and state constitutional rights.

The COA held that the DNA evidence was obtained by “mistake,” which constitutes a valid exception to the applicable statute and federal and state exclusionary rules. But the appellate court agreed that Anderson was denied his right to counsel during questioning, and that the questioning ultimately resulted in Anderson making statements about his motive for burglary and his abuse of Pepper’s corpse. The COA therefore reversed those convictions and sentences and held that he could be retried on those charges.

The court held sufficient findings of fact support the murder conviction and his sentence of 65 years is appropriate in light of the nature of the murder.  

Criminal – Voyeurism

William R. Wallace v. State of Indiana

26A01-1101-CR-9

The Indiana Court of Appeals has affirmed a voyeurism charge for William R. Wallace, a former candidate for Gibson County prosecutor. Wallace, who videotaped himself and a woman engaged in sexual intercourse, had filed an interlocutory appeal, claiming that he was innocent of Class D felony voyeurism because the sex was consensual.

Wallace had visited a woman – A.J. – while she was in jail in 2009 and offered her legal representation. She was initially scheduled to be released on Sept. 29 of that year, and Wallace later told her that date had been pushed back, but that if she agreed to have sex with him upon her release, he could ensure that she would get out of jail on Sept. 29.

After her release, A.J. met Wallace at an apartment belonging to Wallace’s friend. She engaged in sex with Wallace, unaware that he had videotaped the encounter. In March 2010, A.J. contacted police after she learned Wallace had shown the videotape to her boyfriend. The boyfriend told police that the video showed Wallace turning on the camera before A.J. entered the room, and that the camera continued to run after she left. A.J. demanded Wallace turn over the recording, and after at first denying it existed, he claimed he had destroyed it.

A police investigation ensued, and a search of Wallace’s home and the apartment where the video was recorded turned up at least two recordings of Wallace engaging in sex with women and a DVD of child pornography. A grand jury indicted Wallace on charges of Class D felony obstruction of justice, Class D felony possession of child pornography, Class A misdemeanor patronizing a prostitute, and Class B misdemeanor false informing. The Class D voyeurism charge was added on Nov. 30, 2010.

On appeal, Wallace argued that because A.J. knowingly disrobed in front of him, he could not be charged with voyeurism. But the COA held that she did not consent to being videotaped, that Wallace was aware of that fact, and that he tried to conceal the recording from officers searching his home. The appellate court therefore affirmed the trial court’s order denying Wallace’s motion to dismiss the voyeurism charge.

In a separate but concurring opinion, Judge Michael Barnes wrote that A.J. “made a barter choice, and I do not think she is a typical ‘victim’ envisaged by this statute.”

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February 7

Civil Plenary – Homeowners’ Association/Restrictive Covenants

Benjamin Crossing Homeowners’ Association, Inc. v. Rose Heide and David F. Wilkerson

79A04-1103-PL-185

The Indiana Court of Appeals reversed the decision that would allow two homeowners to run a child care operation out of their residences. The homeowners’ association has restrictive covenants in place prohibiting the operation of a child care home.

In Benjamin Crossing Homeowners’ Association, Inc. v. Rose Heide and David F. Wilkerson, No. 79A04-1103-PL-185, Rose Heide and David Wilkerson, residents of Benjamin Crossing, sought damages and a declaratory judgment that the Tippecanoe Area Building Commission and the Benjamin Crossing Homeowners’ Association couldn’t enforce a restrictive covenant preventing the operation of a child care home in their residence. The restrictive covenant was also incorporated into the planned unit development ordinance for Benjamin Crossing, but state law prohibits enforcement of a zoning ordinance that prohibits the operation of a child care home in a residence.

The trial court ruled in favor of the homeowners, but the Court of Appeals reversed. It found the trial court erred when it concluded that “restrictive covenants of a planned unit development have the status of a zoning ordinance” and that, because a zoning ordinance may not prohibit the operation of a child care home in the operator’s residence, neither may such a restrictive covenant be enforced where the restrictive covenant has been adopted in a planned unit development ordinance.

“Those restrictive covenants are enforceable by the private parties to the Declaration and were not vitiated by the adoption of the planned unit development ordinance that included them,” wrote Judge Edward Najam.

Criminal – Sexual Battery/Juvenile

Mitchell A. McCarter v. State of Indiana

26A04-1106-CR-409

Because the state didn’t prove an essential element needed to convict a man of Class D felony sexual battery, the Indiana Court of Appeals threw out his conviction.

Mitchell McCarter struck up a conversation with a teenage girl in Wal-Mart. He led her to believe he was a police officer and told her he could keep her out of trouble. The teen’s friend had tried to shoplift from the store and was being detained at the time McCarter began talking to the teen. He tried to get her to sit in his car and talk and got her to give him a kiss on the cheek. When she kissed him, McCarter grabbed her closer and tried to kiss her and put his hands on her and grabbed her buttocks.

He appealed his conviction of Class D felony sexual battery, arguing that force – which is needed to convict someone of the charge – wasn’t proved because the teen was never afraid and he didn’t use force in his interaction with her.

The judges found the state didn’t prove the element of whether D.H. perceived she was compelled to submit to the groping through force or the threat of force, so they reversed his conviction. But there is enough evidence to support a lesser charge. The COA ordered the trial court enter a judgment for Class B misdemeanor battery and resentence McCarter.

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February 8

Criminal – First Impression/Feticide

Bei Bei Shuai v. State of Indiana

49A02-1106-CR-486

In a case of first impression involving a mother who ingested rat poison in an attempt to kill herself and her unborn child, one Indiana Court of Appeals judge felt that if the feticide statute is applied to women’s prenatal conduct, it might lead to a “slippery slope” in which a full range of a woman’s conduct while pregnant could fall under the feticide statute.

See story on page 1.

Juvenile – Change of Venue/Paternity

In Re the Paternity of N.T.; B.T. v. D.K. and K.K.

09A02-1108-JP-693

The Indiana Court of Appeals reversed the grant of a stepfather’s motion for change of venue from the judge, holding the man is not a party to the underlying paternity action and therefore isn’t entitled to a change of venue from the judge under Indiana Trial Rule 76.

Mother D.K. and her husband, K.K., hid child N.T. from her biological father, B.T., and the state for more than three years to evade a change of custody order. As a condition of mother’s bail, she and K.K. were to have no contact with N.T. Father B.T. filed a supplemental application for contempt citation against K.K. for his active participation in D.K.’s violation of the 2003 court order.

K.K. filed a motion for a change of venue from the judge, which the paternity court granted. The paternity court concluded that the service of application for contempt promoted K.K. to actively protect his rights and defend the action, thus joining him as a party in the paternity proceeding.

On interlocutory appeal, the COA reversed. The paternity court has the inherent power to subject nonparties to contempt proceedings for violation of its orders, wrote Judge Ezra Friedlander, and the service of application for contempt did not elevate K.K. to the status of a party. K.K. is still entitled to due process, which includes notice and the opportunity to be heard, in any contempt proceedings before the paternity court.

Criminal – Sentencing/Term of Imprisonment

Joey Jennings v. State of Indiana

53A01-1010-CR-541

The Indiana Court of Appeals granted the state’s request for rehearing to address the argument that its earlier decision on a man’s sentence conflicts with an Indiana Supreme Court decision. The appellate court reaffirmed its earlier decision in all respects.

The COA originally ruled that Joey Jennings’ term of probation couldn’t exceed 185 days. He was originally sentenced to 180 days with 30 days executed, 150 days suspended and 360 days of probation. The judges held that the statutory phrase “term of imprisonment” included both the executed and suspended portions of a misdemeanor sentence and because he was sentence to 180 days of imprisonment, his term of probation couldn’t go above 185 days.

The state claimed that this outcome conflicts with Smith v. State, 621 N.E.2d 325 (Ind. 1993), but in that case, the Supreme Court interpreted a prior version of the statute at issue that is materially different than the current version, noted Judge Paul Mathias.

“Thus, the current statute supersedes the holding of Smith because it specifically allows for the imposition of a term of probation extending beyond the maximum sentence for a misdemeanor, provided that the combined term of imprisonment and probation does not exceed one year,” he wrote.

Reciprocal Support – Petition for Modification

Zuri K. Jackson v. Demetrius Holiness

02A03-1103-RS-99

In addressing whether a trial court in Indiana erred in dismissing a woman’s petition for modification of child support previously entered in Maryland, the Indiana Court of Appeals noted an incongruity in that statutory scheme the leads to the “somewhat absurd result in this case.”

Zuri Jackson filed a petition for modification of child support in Indiana. She lived in Indiana, but her ex-husband, Demetrius Holiness, lived in Maryland, where the decree was registered. The two were originally married in Indiana but moved to Nevada, where they divorced. Holiness filed a motion to dismiss, which the trial court dismissed for lack of subject matter jurisdiction.

Indiana Code 31-18-6-11 says an Indiana tribunal may modify an order only if the child, obligee, or obligor do not live in the issuing state; the petitioner for modification is a nonresident of Indiana; and the respondent is subject to the personal jurisdiction of the Indiana tribunal; or all of the parties involved have filed a written consent providing Indiana may modify the order and assume jurisdiction. Since Jackson lives in Indiana and petitioned for modification, all the parties had to file consent with the court to have Indiana take over jurisdiction, which didn’t happen. Under Indiana statute, a court here can’t have subject matter jurisdiction to modify the order here, wrote Judge Edward Najam.

The appellate court held that the federal Full Faith and Credit for Child Support Orders Act doesn’t preempt the requirement that the child, obligee, or obligor do not live in the issuing state.

“It seems incongruous that a court that has personal jurisdiction over both parties to dissolve a marriage and adjudicate the incidences thereof or order support in the first instance could not modify an existing child support order,” he wrote. “Although the requirements of Section 31-18-6-11 are clear, the procedure for modifying an out-of-state child support order is less clear when Section 31-18-6-11 is considered in conjunction with other relevant statutes. However, because the incongruity between the statutory sections is a legislative matter, we must conclude that the trial court did not err in dismissing Mother’s petition to modify because she is not a non-resident petitioner as required by Section 31-18-6-11.”

Criminal – Credit Restricted Felon Statute

Anthony T. White v. State of Indiana

18A05-1108-CR-439

The Indiana Court of Appeals rejected a defendant’s claim that because he pleaded guilty to Class B felony child molesting instead of a Class A felony, the Credit Restricted Felon Statute shouldn’t apply.

Anthony White faced two counts of Class A felony child molesting and one count as a Class C felony for having sexual intercourse with his stepdaughter, who was age 11 and 12 during the molestations. He pleaded guilty to one count of Class B felony child molesting, was sentenced to 27 years in prison, and found him to be a credit restricted felon.

White argued that his age, which elevated the charge to the Class A felony, was an element specifically bargained out of the offense to which he pleaded guilty. The statute doesn’t require that the defendant’s age be alleged and established as an element of the crime for which the defendant was convicted. Rather, this provision of the Credit Restricted Felon Statute refers to conviction for the offense of child molesting involving sexual intercourse or deviate sexual conduct under Indiana Code 35-42-4-3(a), which addresses both Class A and B felonies.

“In the instant case, White was convicted of child molesting involving sexual intercourse under I.C. § 35-42-3-2(a). Moreover, the record clearly establishes that he was over the age of 21 when he committed the crime and his victim was under the age of 12. The credit restricted felon statute, therefore, plainly applies in this case, and it is of no moment that White pleaded guilty to class B felony child molesting, as opposed to class A felony child molesting,” wrote Judge Ezra Friedlander.•