Indiana Court Decisions – May 30 to June 13, 2012

7th Circuit Court of Appeals

May 31

Criminal – Drugs/Sentence

United States of America v. Aaron M. Davis, Bobby Suggs, et al.

11-1313, 11-1323

The 7th Circuit Court of Appeals upheld the sentences of six members of a Gary street gang for various crack cocaine and other offenses, finding none of the men are eligible to have their sentences reduced based on the retroactive crack cocaine amendments to the sentencing guidelines.

The appeals by Bobby Suggs, Aaron Davis, Sentai Suggs, Terraun Price, Terence Dilworth and William Davison were consolidated before the 7th Circuit. All appealed the denial of their motions to have their sentences reduced. Bobby and Sentai Suggs and Terraun Price were sentenced to life imprisonment; Davis received 405 months in prison; and Dilworth and Davison received 360-month sentences. At their sentencing hearings, the District Court concluded that each was responsible for distributing in excess of 1.5 kilograms of crack cocaine, but larger amounts attributable to each defendant were mentioned at their hearings.

After the United States Sentencing Commission adopted Amendment 706 in 2007, which lowered the base offense level for crack cocaine by two levels, the men requested sentence reductions. When they were sentenced, 1.5 kilograms or more of crack cocaine was assigned the highest possible base offense level of 38; after the amendment, only offenses of 4.5 kilograms or more would receive that level. Offenses between 1.5 kilograms and 4.5 kilograms received a base level offense of 36.

The District Court upheld each man’s sentence, finding it did not have statutory authority and jurisdiction to reduce Bobby Suggs’ sentence because his guideline range hadn’t been lowered by the amendment. With regards to the other men, the District Court found more than 4.5 kilograms of crack cocaine could be attributed to them, so their guideline range wasn’t impacted by the amendment.

The 7th Circuit agreed, noting that at the men’s original sentencing hearings, the presentence investigation reports and judge had discussed higher amounts each man could be responsible for, including more than 17 kilos to Bobby Suggs.  

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June 1

Criminal – Fraud

United States of America v. Michael Sheneman

11-3161

The 7th Circuit Court of Appeals has affirmed a District Court’s conviction and sentence for a man who defrauded buyers and lenders in northern Indiana.

Michael Sheneman and his son executed a scheme in which they sold more than 60 homes to four buyers with no real estate experience, two of whom were not United States citizens. The Shenemans falsified mortgage documents, misrepresenting citizenship status, income and employment, and forged signatures. They also deposited large sums of money into the buyers’ bank accounts to mislead lenders about the buyers’ assets.

Sheneman was subsequently convicted of four counts of wire fraud and sentenced to 97 months imprisonment. On appeal, he challenged the sufficiency of the evidence, as well as the District Court’s application of two sentencing enhancements.

The 7th Circuit rejected Sheneman’s claim that he was an unwitting participant in the scheme, holding that he played a crucial role in every aspect of its execution from beginning to end.

Sheneman argued that the District Court erred in applying a two-level enhancement because the scheme did not involve the use of sophisticated means. But the 7th Circuit held that the father and son used their knowledge of the real estate market and lending industry to avoid detection for several years and used other tactics to mislead buyers and lenders.

Sheneman also protested the sentence enhancements for a loss of more than $1 million and gaining more than $1 million in gross receipts from a financial institution, claiming his son’s conduct alone is what caused those losses. But the 7th Circuit held that Sheneman was involved in the overall scheme that caused those losses and could have reasonably foreseen that fraudulent funding was being secured for unqualified buyers. It therefore affirmed the District Court.

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June 8

Civil – Retaliation/Wrongful Termination

Kenneth Harper v. C.R. England, Inc.

11-2975

A man who claimed he was wrongfully terminated in retaliation for claiming racial discrimination at his workplace was fired for just cause, the 7th Circuit Court of Appeals ruled.

From 2005 to August 2007, Kenneth Harper – who is African-American – was an instructor for truck driving school C.R. England Inc. In March 2007, he alleged that another African-American employee called him a racial epithet within earshot of his immediate supervisor, Eric Metzler, who is also African-American. Metzler said he never heard the insult, and after interviewing other people who had been in the room with Harper, he was unable to substantiate Harper’s claims.

In July 2007, Metzler met with Harper to issue several written warnings about his poor attendance, telling him he could not miss any more work for the remainder of the year. Harper subsequently took several days off to attend his sister’s wedding. In August, Harper was fired; by that time, he had missed 17 days of work in 2007.

Following the termination of his employment, Harper filed a charge of racial discrimination with the Equal Employment Opportunity Commission against C.R. England. On March 6, 2008, after receiving a “right to sue letter” from the EEOC, Harper filed a complaint in the Porter Superior Court, alleging racial discrimination, harassment and retaliation under 42 U.S.C. Section 1981 and Title VII, 42 U.S.C. Section 2000e et seq. C.R. England removed the case to the District Court and, once removal was effected, moved for summary judgment.

The District Court concluded Harper had failed to set forth a prima facie case, under either the direct or indirect method of proof, to support his claim that C.R. England had retaliated against him for reporting what he believed to be unlawful racial discrimination. The 7th Circuit affirmed the District Court’s findings.

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June 11

Civil – Loan Sale/Escrow Accounts

IP of A West 86th Street 1, LLC, et al., v. Morgan Stanley Worldwide Capital Holdings, LLC

11-2891

The 7th Circuit Court of Appeals held that financier Morgan Stanley acted lawfully when selling a loan to another party.

In 2005, 20 limited liability companies joined together to invest in property in Indianapolis. They formed a new company – IP of A Fund Manager – and vested in that company the authority to negotiate and execute a loan on their behalf with Morgan Stanley, naming Edward Okun as the manager. Okun executed a loan, mortgage and reserve security agreement with Morgan Stanley.

The group had already secured a loan in 2004 for $7.1 million, which Morgan Stanley refinanced, lending the investors $6.1 million to refinance the property, with the additional $1 million placed into escrow accounts.

Morgan Stanley decided to sell the loan, ultimately agreeing to sell it to an Okun-controlled entity, IP of A 5201 Lender LLC. As it structured the sale, Morgan Stanley agreed to offset the purchase price of the loan by the amount of funds available in several escrow, reserve and impound accounts, in which it held a security interest and which were, under the terms of the loan with the investors, required to reimburse the investors for maintenance, taxes and other property-related expenses. IP of A 5201 Lender, now holding the loan, never re-established the escrow accounts, depriving the investors of $1,361,184.63 in which they, too, had an interest.

In 2008, Okun was convicted of wire and mail fraud, conspiracy and other crimes.

The investors alleged Morgan Stanley breached its agreement and committed conversion when it allowed Okun’s company to use escrow funds to finance the purchase of the loan. But the 7th Circuit found that nothing in the loan’s promissory note, mortgage agreement or reserve security agreement precluded Morgan Stanley from structuring the sale of the loan as it wished.

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June 12

Civil – Discrimination/Retaliation

Svetlana Arizanovska v. Wal-Mart Stores, Inc.

11-3387

The 7th Circuit Court of Appeals held that a woman failed to prove her claims of discrimination, retaliation and other complaints against her former employer.

Svetlana Arizanovska worked for Wal-Mart as a part-time stocker on the overnight shift. The job requires the ability to lift 50 pounds. In November 2008, she learned she was pregnant. She experienced bleeding during her pregnancy, and her doctor told her she could not lift more than 20 pounds. She was reassigned to work in the baby food and toothbrush aisles. On Jan. 27, 2009, Arizanovska learned she had miscarried.

In May 2009, Arizanovska learned she was pregnant again and told Wal-Mart that due to medical restrictions, she could not lift more than 10 pounds. She asked to be transferred to a position where she could fold clothes, but no position like that exists – employees who fold clothes also participate in stocking. The human resources and personnel manager agreed that Arizanovska should take a leave of absence. The company’s Accommodation in Employment Policy states that employees may be entitled to a leave of absence if they have a medical condition – including pregnancy – that is not a disability. The policy also states that an “environmental adjustment” in the workplace may be granted, but that “does not include creating a job, light duty or temporary alternative duty, or reassignment.”

On May 20, Arizanovska said she did not want to take a leave of absence and requested a light-duty job. She did not return to work after May 20 and miscarried about a month later. She filed suit against Wal-Mart shortly thereafter.

Arizanovska claimed Wal-Mart had violated her rights under Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act. She complained that Wal-Mart failed to accommodate her under its Accommodation in Employment Policy because of her pregnancy and/or national origin. She also claimed that Wal-Mart retaliated against her for filing a charge of discrimination with the Equal Employment Opportunity Commission. Finally, Arizanovska brought several state-law claims against Wal-Mart – intentional and negligent infliction of emotional distress, negligent supervision, and liability for its employees’ actions under the theory of respondent superior. The District Court granted summary judgment against Arizanovska on all her federal and state-law claims.

To support both her pregnancy and national origin discrimination claims, Arizanovska contends that two pregnant, African-American employees were treated more favorably and were allowed to work in aisles with less heavy items. But the 7th Circuit held the evidence contradicts that – neither woman had medical restrictions, and neither was assigned to light-duty work.

Arizanovska claimed that after filing a discrimination complaint against Wal-Mart following her first miscarriage, the company retaliated by placing her on unpaid leave. But the appellate panel found no evidence that the suggestion to take a leave of absence was retaliatory. It also affirmed the District Court’s grant of summary judgment against Arizanovska on her state law claims.

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June 13

Criminal – Sentencing Guidelines

United States of America v. Cristofer Tichenor

11-2433

The United States Sentencing Guidelines aren’t susceptible to vagueness challenges, so a defendant’s claim that the career offender sentencing guideline is unconstitutionally vague failed, the 7th Circuit Court of Appeals ruled.

Cristofer Tichenor pleaded guilty to armed robbery and discharging a firearm in connection with robbing a bank in Cicero, Ind. Under the terms of his plea agreement, he retained the right to appeal the applicability of the career offender sentencing guideline. His attorney originally raised an objection to the application of this guideline, but later withdrew it at the sentencing hearing based on Sykes v. United States, 131 S. Ct. 2267 (2011).

The District Court applied the career offender enhancement – based on prior convictions of dealing hash oil and resisting law enforcement – and sentenced Tichenor to 300 months in prison.

Tichenor argued on appeal that the career offender sentencing guideline is unconstitutionally vague and the U.S. Sentencing Commission exceeded its authority in enacting the current definition of “crime of violence.”

Citing previous caselaw on these issues, the 7th Circuit found that the Sentencing Guidelines can’t be challenged for vagueness and that the Sentencing Commission didn’t exceed its authority by putting into effect the “crime of violence” definition.

“The vagueness doctrine is concerned with providing fair notice and preventing arbitrary enforcement. Since the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose,” wrote Judge Joel Flaum.

The judges also noted that Tichenor was on notice that his prior conviction of resisting law enforcement qualified as a “crime of violence” at the time he committed the armed robbery.

In addition, the Sentencing Commission has the authority to adopt the current definition of “crime of violence,” even if it is a deviation from the definition that Congress had envisioned, Flaum wrote, citing United States v. Rutherford, 54 F.3d 370, 374 n.11 (7th Cir. 1995).  

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Indiana Supreme Court

May 31

Criminal – Criminal Rule 4(B)/Speedy Trial

Mickey Cundiff v. State of Indiana

31S05-1108-CR-512

The Indiana Supreme Court clarified the ambiguity within its precedent on the issue of whether an incarcerated defendant has the right to be tried within 70 days under Indiana Criminal Rule 4(B) when the defendant is being held for an unrelated offense and not on the charges for which the speedy trial is demanded.

The state charged Mickey Cundiff on Dec. 21, 2009, with drunk driving offenses and he was released from incarceration after posting bond on Jan. 11, 2010. Shortly thereafter he was incarcerated on a probation-revocation case. On March 15, he filed a motion for speedy trial relating to the drunk driving case, relying on Criminal Rule 4(B). In July, the trial court held a hearing on the motion and denied it in August. He was found guilty of Class D felony operating a vehicle while intoxicated at the bench trial.

The Indiana Court of Appeals affirmed, although there has been a split in the panel on this issue. The justices used the Cundiff appeal to revisit its decision in Poore v. State, 685 N.E.2d 36 (Ind. 1997), in which the court held that Criminal Rule 4(B) applied to retrials of habitual-offender counts and so the defendant was entitled to discharge. Justice Steven David wrote that the opinion supports a holding that the rule applies only if a defendant is being held on the charge for which he requests a speedy trial. The ruling also supports a holding that as long as the defendant is in jail on the pending charge, Criminal Rule 4(B) applies to that charge, even if the defendant is also being held for another reason.

Poore did not extend the applicability of that rule to defendants who are not being held on the pending charge for which the speedy trial is requested but for a different reason altogether, he wrote. The confusion in what Poore held may have stemmed from the cases it relied on, David pointed out.

Criminal Rule 4(B) was not available to Cundiff on the pending charges for which he sought a speedy trial because he wasn’t incarcerated on those charges.

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June 12

Criminal – Evidence/Burglary

Michael W. Baker v. State of Indiana

89S01-1109-CR-543

The Indiana Supreme Court upheld a man’s burglary conviction, finding sufficient evidence that he broke into the church and entered it with the intent to commit theft.

Michael W. Baker appealed his Class B felony burglary conviction following a trial on the grounds that the state didn’t prove that he acted with the requisite intent to steal from a church. A church member who came to the church to pray let himself in with his key. He discovered a broken window and blood; blood was also found throughout the church, including on several kitchen cabinets and drawers that were open. It didn’t appear that anything was taken from the church. The DNA collected at the scene matched Baker’s DNA.

The Indiana Court of Appeals had reversed his conviction, citing insufficient evidence of Baker’s intent to commit theft. The justices upheld the conviction, finding that the evidence suggesting Baker opened the cupboards and drawers in the kitchen was enough to support a reasonable inference that he entered the church with the intent to steal something.

Looking through the drawers and cupboards is not a necessary step in the act of breaking and entering into the church, but is an additional act that Baker chose to do. The jury could have reasonably concluded that he broke into the church with the intent to commit theft, wrote Chief Justice Brent Dickson.

“That there was no evidence that the defendant had rummaged through the drawers or cabinets, as the defendant argues, is of no consequence. The act of opening the drawers and cabinets alone was enough to support an inference of intent to commit theft. Evidence of rummaging would simply bolster the already reasonable inference of intent,” he wrote.

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Indiana Tax Court

June 1

Tax – Sales Tax/Exemption

Fresenius USA Marketing, Inc. v. Indiana Department of State Revenue

49T10-1008-TA-45

A medical supplier’s lawsuit seeking a refund of sales taxes its customers paid to purchase dialysis equipment will go forward, the Indiana Tax Court ruled.

Judge Martha Wentworth denied the state’s request to dismiss. The state argued that the tax court did not have subject matter jurisdiction; that Fresenius USA Marketing lacked standing; and that Fresenius did not certify its claim as a class action.

Fresenius sued the state for a refund of sales taxes its patients paid for such dialysis supplies as dialysis machines, dialyzers, fistula needles, bloodlines, compression dressings and bandages, intravenous sets and syringes from 2004 through October 2007.

The company claimed the sales were relieved from taxation pursuant to the durable medical equipment exemption and that once it received the refund, it would return the proper amounts to each of its customers.

Wentworth wrote that the court will schedule the matter for a case management conference in a separate order.

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Indiana Court of Appeals

May 30

Criminal – Evidence/Police

Clifton Ervin v. State of Indiana

29A05-1109-CR-454

The Indiana Court of Appeals upheld the partial denial of a defendant’s motion to suppress evidence, finding that the trial court properly determined that the evidence seized by the uniformed on-duty police officers shouldn’t be suppressed pursuant to the exclusionary rule.

Carmel Police Officer Jeff Sedberry was driving home with his wife and daughter when he saw Clifton Ervin’s car weaving and crossing the center line. Sedberry believed Ervin might be drunk, so he called the Fishers Police Department to report Ervin’s location. He continued to follow Ervin’s car until Ervin abruptly pulled into a neighborhood, stopped his car and got out, walking toward Sedberry’s car. Sedberry was not in a police vehicle or police uniform and was off duty at the time.

Sedberry drew his gun, told Ervin he was a police officer and ordered him back to his car. Sedberry said he felt his family could be in danger based on Ervin’s behavior. Police arrived to the scene shortly thereafter and ultimately arrested Ervin for driving while intoxicated and other related offenses.

He filed a motion to suppress, claiming he was illegally seized by Sedberry since he wasn’t in uniform or driving a marked police car. The trial court only granted the motion relating to the time Sedberry ordered Ervin back to his car until uniform officers arrived. The trial court denied suppressing the evidence relating to the uniformed officers, finding application of the exclusionary rule would be inappropriate.

The appellate court analyzed Indiana Code 9-30-2-2, which outlines when an officer may arrest someone, with the goal of preventing police impersonators. It found that the statute wasn’t implicated to the extent that the evidence should be suppressed. The statute says an officer may not arrest a person for “violation of an Indiana law regulating the use and operation of a motor vehicle on an Indiana highway” unless the officer is in uniform or a marked police vehicle. However, Sedberry didn’t arrest Ervin. The Court of Appeals remanded for trial.

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Civil Tort – Jury Instructions/Wrongful Death

James Androusky, II, Individually and as Personal Rep. of the Estate of James Androusky, III, Deceased v. Cole A. Walter and Tammra Androusky

83A01-1103-CT-137

The Indiana Court of Appeals affirmed a jury verdict in favor of the owner of a pool in a lawsuit filed by the father of a young boy who drowned in the pool. The appellate court found the trial court did not abuse its discretion in giving certain jury instructions.

James Androusky III drowned in Cole Walter’s residential swimming pool. Walter is the former stepfather of the boy’s mother’s boyfriend, Matthew Hollingsworth. The mother, Tammra Androusky, was married to James Androusky II for a period of time and had three children with him. James Androusky II did not pay child support and even attempted to sign away his rights to the children at one point.

Tammra Androusky, Hollingsworth, and her children stayed at Walter’s home over his objections. He did not want them staying there, but allowed them to stay just one night as long as they left after eating breakfast. Walter went to work, but Hollingsworth and the others stayed late in the morning. Two of the boys were allowed to play outside unsupervised near the pool. When Hollingsworth and Tammra Androusky discovered James Androusky III was missing, they found him at the bottom of the pool.

James Androusky II, individually and as a personal representative of his son’s estate, filed a wrongful death action against Walter. The jury ruled in favor of Walter, leading James Androusky II to appeal, claiming the trial court abused its discretion by instructing the jury to determine whether the boy was an invitee or licensee; by instructing the jury regarding abandonment under the Child Wrongful Death Act; by instructing on a state administrative pool safety regulation; and whether the trial court properly instructed on the effect of a parent’s failure to supervise his or her child around a known and obvious condition upon the land.

The evidence at trial shows the boy and his family were licensees and not social guests or invitees. There was also evidence introduced to show that James Androusky II rarely saw his son and provided little to no financial support. He even filed with the court a document to attempt to terminate his parental rights for the exchange of the non-enforcement of his child support obligation. Under the Child Wrongful Death Act, a parent who abandoned a deceased child while the child was alive is not entitled to recovery.

The trial court didn’t err in giving the instruction on the administrative pool safety regulation in place at the time of the boy’s death. James Androusky II argued that the regulation required that the fencing outlined in the regulation was to be immediately around the pool, not just the yard. But a plain reading of the regulation doesn’t support that interpretation, wrote Judge Ezra Friedlander.

Finally, James Androusky II’s complaint with respect to the instruction on parental supervision turns on the perceived unfairness in depriving him of recovery for the death of his son due to the negligence of his ex-wife and her boyfriend. His argument is misguided, Friedlander wrote, because it is focused entirely on his right to recover damages and ignores the fact that Walter’s negligence must first be established. Walter did not owe a duty to the boy, and the sole proximate cause of the boy’s death was the mother’s lack of supervision.

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Civil Plenary – Emotional Distress/Sexual Abuse

Dianne L. Perkins v. Jeffrey Stesiak, and Pfeifer, Morgan and Stesiak

71A03-1111-PL-521

The woman who sued a northern Indiana lawyer and his law firm for not filing her lawsuit against a school district following the discovery that her grandson was sexually abused by a teacher’s assistant lost her appeal.

Dianne Perkins, who had legal custody of her teenaged, grandson, hired Jeffrey Stesiak of Pfeiffer Morgan & Stesiak to represent her and her grandson in all claims against the school district arising out of the sexual abuse. Perkins wanted Stesiak to also file a claim on her behalf for emotional distress. She terminated his representation three years after hiring him because he never filed a lawsuit against the school. With new legal counsel, she was able to settle her grandson’s claims but the statute of limitations had run on her claim prior to her firing of Stesiak.

In 2010, she sued Stesiak and the firm for legal malpractice because he didn’t file the lawsuit on her behalf within the statute of limitations. The trial court granted summary judgment in favor of Stesiak.

Perkins argued that she had a claim based on her own emotional distress relating to the sexual abuse of her grandson based on the bystander theory of recovery and Indiana’s modified impact rule. The Court of Appeals found her arguments under either rule failed.

The fact that Perkins experienced a number of physical confrontations with her grandson at home during the period of sexual abuse doesn’t establish the necessary direct physical impact required under the modified impact rule, wrote Judge Ezra Friedlander. The bystander rule applies when a close relative witnesses or comes upon the scene soon after the death or severe injury of a loved one. Perkins never came upon the scene during or in the immediate aftermath of the sexual abuse, and she learned of it months later.

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Juvenile – Parental Rights

Term. of Parent-Child Rel. of D.K.; O.K. v. Indiana Department of Child Services

22A01-1110-JT-485

The Indiana Court of Appeals found ample evidence that a mother took little to no steps to correct the problems that led to her son’s removal and continued placement out of her care, so it affirmed the termination of parental rights. In its opinion, the judges also discussed Indiana Evidence Rule 201(b) regarding judicial notice of “records of a court of this state.”

Mother O.K. appealed the termination of her parental rights to her son, D.K. He was removed from O.K.’s care in 2009 and placed in foster care after the Department of Child Services substantiated a report of neglect. D.K. was adjudicated as a child in need of services and O.K. was ordered to participate in several programs and obtain stable housing and employment. Over the course of the next two years, she lived at eight different residences, didn’t participate in services, and didn’t keep a job.

At the hearing to terminate her parental rights, she said she had just put a deposit down on an apartment with the help of her father and her boyfriend. The trial court terminated her parental rights in 2011.

The appellate court found clear and convincing evidence that the conditions that led to D.K.’s initial removal and continued placement outside of his mother’s care would not be remedied. She had an opportunity to reunite with him, but instead was concerned more with her own desires than her son’s welfare.

The judges also discussed the fact that at the termination hearing, DCS asked the trial court to take judicial notice of the underlying CHINS proceedings, and the trial court agreed to do so. In its brief, the DCS related facts that are based on documents filed in the CHINS action that aren’t supported by any evidence actually introduced at the termination of parental rights hearing. Neither party provided these documents for appellate review.

The trial court didn’t err in taking judicial notice of the CHINS proceedings based on Rule 201(b), but it can present problems for appellate review, noted Judge Michael Barnes, citing the post-conviction case Graham v. State, 941 N.E.2d 1091, 1097. TPR cases are similar to PCR cases in that they often must refer to and rely heavily on records in different, but related proceedings, he wrote.

“In that respect, what we noted in Graham applies equally here, and in fact in any situation where a trial court takes judicial notice of records of another court proceeding in deciding a case. Evidence Rule 201(b) now allows trial courts to take judicial notice of records of other court proceedings, but if a court does so, there must be some effort made to include such ‘other’ records in the record of the current proceeding,” he wrote. “Furthermore, if a party on appeal wishes to rely on parts of the ‘other’ record or records in making an argument before this court, it should include those parts in an appendix submitted to this court under Indiana Appellate Rule 50.”

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May 31

Domestic Relation – Child Support/Social Security

Fred N. Martinez v. Susan K. Deeter

32A01-1108-DR-359

The Indiana Court of Appeals was faced with a situation not specifically addressed in the Child Support Guidelines and Commentary or in any Indiana case – whether Social Security survivor benefits paid to children due to the death of a custodial parent’s subsequent spouse are or should be included in the custodial parent’s weekly gross income.

Ex-spouses Fred Martinez and Susan Deeter appealed the trial court’s ruling on how much child support Martinez owed Deeter for 2007 and whether their children’s survivor benefits should be included in the calculation of Deeter’s weekly gross income for child support purposes.

Martinez and Deeter have three children, who lived with Deeter. She remarried and when her husband died, she and the two youngest children received survivor benefits in August 2007. Previously, they were receiving disability benefits, but could not receive both. That same year, the oldest child began living with Martinez.

The trial court included the children’s survivor benefits when determining how much child support Martinez owed.

On appeal, Martinez argued that the trial court erred in calculating the child support owed on his 2007 bonuses, by failing to adjust his effective tax rate and by making inconsistent findings. The Court of Appeals agreed, ordering the trial court to take another look at the matter. The trial court made conflicting findings that Martinez both owed $51,000 and more than $7,200 in child support for 2007. The judges ordered the trial court to recalculate his 2007 child support obligation and clarify the issue on remand whether the trial court intended to use his proposed adjusted tax rate.

Deeter argued on appeal that the court erred in using the survivor benefits from the children in her weekly gross income and in denying her request for attorney fees. The appellate court found different language in the guidelines and the commentary regarding survivor benefits – the guidelines exclude “survivor benefits received by or for other children residing in either parent’s home” and the commentary excludes “survivor benefits paid to or for the benefit of their children.”

The COA found the language of both indicates that survivor benefits received by or for children aren’t included in a parent’s weekly gross income. Inclusion of those benefits would result in a windfall to Martinez. This will require the trial court to recalculate the child support from 2007 through the present time.

The judges also ordered Deeter’s attorneys to provide clear authority to the trial courts, if any exists, to support the withholding of their attorney fees from Deeter’s child support judgment. The trial court ordered the child support judgment in her favor be paid first to her attorneys. The COA also directed the trial court on remand to recalculate the appropriate ratio of post-secondary education expenses to be paid by the parents.

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June 1

Miscellaneous – Tax Deed/Notice

City of Elkhart, Indiana v. SFS, LLC and Jefferson Group, LLC

20A04-1104-MI-213

An Alabama company that purchased a property at a tax sale in Elkhart but subsequently failed to pay property taxes did not receive adequate notice that the city was seeking a tax deed on the property, the Indiana Court of Appeals ruled.

The COA affirmed that Elkhart officials didn’t comply with state law to provide notice of tax sale proceedings. The appeals court also affirmed the trial court’s ruling that vacated Elkhart’s tax deed for a single-family home at 1701 Kilbourn St. 

“We hold that the trial court did not abuse its discretion when it granted SFS’ motion to correct error and that its order was correct both as a matter of fact and as a matter of law. Because the City failed to provide adequate notice, the City’s tax deed is void,” Judge Edward Najam Jr. wrote for the panel.

At issue is the city’s failure to provide notice to a company that owned the property after a paralegal found an address for the company through independent investigation. State law spells out a variety of means by which officials can use public records to obtain addresses of property owners to serve notice of tax sales, but other requirements for notice are unsettled, according to the ruling.

Najam wrote that the city was required to use “ordinary means” to give notice to SFS under I.C. 6-1.1-25-4.5(d). “Our case law does not define the ‘ordinary means’ requirement … we hold simply that where, as here, a governmental entity has knowledge or the means of knowledge at hand of the address of a person with a substantial property interest of public record, it is not ordinary to disregard that knowledge when providing notice to that person.”

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June 5

Criminal – Probation Revocation

James Ripps v. State of Indiana

15A01-1109-CR-436

A trial court erred when it revoked a man’s probation because it failed to consider several factors before issuing that order, Indiana’s Court of Appeals ruled.

James Ripps pleaded guilty to child molesting as a Class C felony in March 2009 for molesting his son in 1997 or 1998. He was sentenced to eight years, with six years and 300 days suspended to probation.

In 2011, the state filed a probation revocation petition, alleging Ripps committed a Class D felony when he failed to comply with sex offender registry requirements. Ripps had been living within 1,000 feet of a youth program center and failed to inform all people living at his residence of his sexual conviction. Ripps admitted the violations, and the trial court revoked his probation and ordered him to serve the remaining portion of his sentence in prison.

Ripps, who is terminally ill, entered an assisted living facility in March 2011 and informed the sheriff of his new address. The sheriff told Ripps that his new residence was within 1,000 feet of a public library, which qualifies as a youth program center. The state filed notice of a probation violation and arrested Ripps, and the court ordered him to serve the remainder of his sentence – two years and 266 days – in prison.

Ripps moved to correct error, contending his conviction for failure to comply with sex offender registration requirements, and the subsequent probation revocation, violated the Indiana and United States Constitutions’ prohibitions against ex post facto application of the law because the statute giving rise to such criminal act took effect in July 2006 and his qualifying offense occurred prior to that time. The trial court agreed and vacated the conviction; by that time, he had already served one year to 18 months in prison.

The state had claimed only that Ripps committed a new crime; it had not specifically mentioned Ripps living within 1,000 feet of a youth program center.

The appellate court held that the trial court abused its discretion in revoking Ripps’ probation, given his medical condition and his attempt to adhere to the terms of his probation. The COA also held that the distance between the residential facility and the library was about 20 feet shy of 1,000 feet, and some ambiguity existed about how that distance was calculated.

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Criminal – Jury Instructions

Kevin C. O’Connell v. State of Indiana

18A02-1109-CR-889

The Indiana Court of Appeals affirmed a trial court’s decision to refuse a man’s tendered jury instructions.

Kevin O’Connell argued that the trial court abused its discretion by not allowing the word “voluntary” to be added to the elements of the offenses he was charged with committing.

O’Connell had stumbled into a gas station and knocked over a shelving unit before he lit a cigarette inside the store. The cashier asked O’Connell to leave, and once outside, the man sat in his car, proclaiming that he was Jesus Christ, and then got out and sat by the entrance to the gas station. Police noticed a strong odor of alcohol on O’Connell and arrested him, and O’Connell later tried to escape. He was convicted of Class C felony attempted escape, Class B misdemeanor disorderly conduct and Class B misdemeanor public intoxication.

The COA held that the substance of O’Connell’s tendered jury instructions was included in other instructions given by the trial court, and therefore, the instructions as a whole did not misstate the law or otherwise mislead the jury.

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June 6

Criminal – Sentencing/Plea Agreement

Keith D. Jackson v. State of Indiana

20A03-1105-CR-222

A trial court erred in sentencing a man who was on probation for one offense when he committed another, the Indiana Court of Appeals ruled.

Keith Jackson pleaded guilty in 2004 to Class B felony robbery using a deadly weapon. He was released from the Indiana Department of Correction in 2009.

Later that year, the state charged Jackson with unlawful possession of a firearm by a serious violent felon under cause number 063. The probation department filed a petition for violation of probation under cause number 196, the offense for which he was sentenced in 2004. That petition recommended Jackson serve the balance of his previously suspended four-year sentence in the DOC.

On Jan. 11, 2010, Jackson and the state filed a plea agreement with the trial court in cause number 063. Under the terms of the plea agreement, Jackson pleaded guilty to the firearm charge and admitted the probation violation in cause number 196. In exchange, the state agreed to the following: 12 years incarceration with six of those 12 years suspended in cause number 063; two years served (as one with good-time credit) in cause number 196; discharged from probation in cause number 196, case closed; and probation to calculate credit time in cause number 063.

At a hearing, the trial court accepted the plea agreement and agreed to be bound by its terms. But the trial court eventually sentenced him to serve his previously suspended four-year sentence.

The COA held that the express terms of the plea agreement indicated that Jackson should receive a two-year executed sentence, rather than the four-year suspended sentence originally imposed in cause number 196. After applying the time credit, the trial court was obligated to discharge Jackson from probation in cause number 196. The COA found the trial court erred by imposing the suspended sentence of four years contrary to the accepted plea agreement, and therefore reversed and remanded to the trial court to resentence Jackson in accordance with the plea agreement.

The appellate panel also found that the trial court abused its discretion in ordering Jackson to pay public defender fees and perform community service.

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Juvenile – Termination of Parental Rights

In the Matter of the Term. of the Parent-Child Rel. of: D.W., K.K., Ke.K., & L.W.; and J.K. v. The Indiana Dept. of Child Services

85A05-1109-JT-591

A trial court properly terminated parental rights of a father with a history of incarceration and substance abuse, an Indiana Court of Appeals panel ruled.

The court upheld a ruling in the Wabash Circuit Court revoking the father’s parental rights.

The case involves four minor children of J.K. and their mother, who is not a party to the suit. The children, now between the ages of 2 and 8, were placed into foster care beginning in late 2009 after the mother was living in a car or leaving the children in the care of others while J.K. was incarcerated. Both parents admitted to the allegations within the Department of Child Services petitions for children in need of services that suspended their parental rights pending completion of mandated substance-abuse treatment and counseling.

When J.K. was released, he initially completed a substance-abuse assessment, but did not comply with or failed required random drug screens or mandated counseling. Court records said the father tested positive for drugs from marijuana to heroin and did not accept offers for treatment.

“We determine that the trial court’s findings supported its conclusion that the conditions causing the children’s continued removal from Father’s home will not be remedied,” Judge Patricia Riley wrote. “As Father does not dispute any of the trial court’s other conclusions of law, we also find that the trial court did not err in terminating Father’s parental rights to his four minor children.”

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Civil Tort – Duty of Care

W.D., a minor by his parents R.D. and S.D., and R.D. and S.D., individually v. City of Nappanee

20A05-1112-CT-698

The city of Nappanee was not negligent and didn’t breach its duty of care when a 5-year-old boy required CPR after lifeguards rescued the child as he floated face-down in a city pool, the Indiana Court of Appeals ruled.

The court affirmed a decision of summary judgment in favor of the city entered in the Elkhart Superior Court.

The parents brought suit against the city on behalf of their child after taking him and his 8-year-old sister to the public pool on June 24, 2009. The older girl had taken swimming lessons at the pool, and the mother was registering her son for lessons. The boy, who the record says had limited swimming skills, watched from the shallow end as his sister dove in the deep end when about 120 swimmers were at the pool.

After the girl’s second dive, she walked toward the shallow end and saw her brother floating face down in the water near the edge of the pool. At about the same time, lifeguards pulled the boy from the water, cleared the pool and began administering lifesaving CPR.

“What more the City of Nappanee’s lifeguard staff could have done to protect [W.D.] is hard to fathom,” Judge Paul Mathias wrote for the unanimous panel.

“Although our courts rarely determine whether a breach of duty occurred as a matter of law, this case represents one of those rare exceptions. Because the record lacks any designated evidence of disputed factual questions that would preclude the entry of summary judgment in this case, we affirm the trial court’s entry of summary judgment in favor of the City and its dismissal of W.D.’s complaint,” Mathias wrote.

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June 7

Juvenile – Child Molesting/Videotaped Statement

A.R.M. v. State of Indiana

71A05-1111-JV-613

St. Joseph Probate Court did not err when it allowed videotaped evidence of a child molesting victim to be presented at the fact-finding hearing of a minor who subsequently was placed at the Indiana Boys School.

“The juvenile court did not err when it determined that the child victim’s videotaped statement to a forensic interviewer was reliable and that, on the facts presented, the child victim had testified at the fact-finding hearing, which was equivalent to the trial required by the (Protected Persons Statute),” Judge Edward Najam wrote for the Indiana Court of Appeals panel.

The appeal involves A.R.M., one of four children of a mother who lived with two friends in South Bend. A.R.M. was a 13-year-old boy accused of crimes against an 8-year-old boy that would have been felony child molestation and battery if committed by adults, according to court records. At trial, A.R.M. was adjudicated a delinquent and committed to the Indiana Department of Correction for placement at the Indiana Boys School.

At issue in the appeal was the reliability of the videotaped interview with the victim, S.M., conducted several days after the incident. The interview took place at the office of St. Joseph Child Abuse Services Investigation and Education Center.

A.R.M. contended the videotape didn’t meet the standard under the PPS to be reliable, and that the state didn’t meet the requirement of having S.M. testify or showing, through medical testimony or other evidence, that S.M. was unavailable to testify at the fact-finding hearing. The appeal also suggested the victim had been coached by his mother.

The appeals court ruled otherwise, saying no evidence of coaching existed, and that the court satisfied admission requirements to assure the videotaped evidence was reliable.

“We cannot say that the juvenile court abused its discretion when it determined that the time, content, and circumstances of the videotape provide sufficient indications of reliability,” Najam wrote.

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Civil Plenary – Negligence/Trespass

TDM Farms, Inc. of North Carolina and Dale Johnson v. Wilhoite Family Farm, LLC 

79A02-1101-PL-33

A North Carolina commercial hog operation must face an Indiana farmer’s claims of nuisance, negligence and trespass after an intentionally introduced, highly contagious virus infected his neighboring herd, causing damages in excess of $275,000.

The Indiana Court of Appeals on Thursday rejected an appeal of the Tippecanoe Circuit Court’s refusal to grant summary judgment in favor of the North Carolina operation, TDM Farms.

The COA dismissed TDM’s arguments that Wilhoite Family Farm’s claims were either preempted by the federal Virus-Serum Toxin Act, 21 U.S.C. Sections 151-159, or they are barred by Indiana’s Right to Farm Act, Ind. Code 32-30-6-9.

TDM had contracted to use Dale Johnson’s farm to raise weaned female pigs in a “gilt acclimation facility.” The company used a serum to inoculate its pigs en masse against a highly contagious virus, Porcine Reproductive and Respiratory Syndrome.

Alan Wilhoite, owner of the Wilhoite farm, said his herd three-quarters of a mile away became infected a short time later with a strain of PRRS that was a 99 percent genetic match to the strain from the hogs TDM inoculated with the serum.

Wilhoite farm argued that it was never notified about the inoculation program, and an outbreak of the disease requires “biosecurity” measures be taken to quarantine animals or otherwise protect them from infection.

“It is the custom and practice in the hog industry, for both operators and their veterinary consultants, to alert neighboring or potentially affected operations of PRRS,” Wilhoite’s suit says.

The appeals court found no reason the trial court should have granted summary judgment in favor of TDM, and that because the claim is not covered by federal law, the suit is properly in state court.

The court also rejected TDM’s claims that the suit would be barred by the state’s Right to Farm Act.

“The Act, by its plain terms, was intended to prohibit nonagricultural land uses from being the basis of a nuisance suit against an established agricultural operation. I.C. § 32-30-6-9(b). Our case law has consistently applied the law according to the General Assembly’s plainly stated intent, and we will not reconsider those conclusions for TDM’s sake,” Judge Edward Najam wrote in the unanimous opinion.

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June 8

Criminal – Attempted Rape

Betwel Birari v. State of Indiana

49A02-1111-CR-1009

A man who tried to sexually assault a female co-worker as she slept in her home where he was a guest lost his appeal of an attempted rape conviction.

The Indiana Court of Appeals upheld a Marion Superior Court ruling, finding that evidence was sufficient to support the Class B felony conviction of Betwel Birari and that a prosecutor’s comments did not result in fundamental error.

Birari’s appeal raised issues including the reliability of evidence, his intent and whether the victim, A.J., was aware of his actions.

The case stems from an incident in July 2011 in which A.J. allowed Birari to stay overnight in her apartment, along with her 2-year-old cousin, and awoke to find Birari on top of her and attempting to have sex.

“The record reveals that A.J. repeatedly told Birari that she merely wanted to remain friends. While A.J. was asleep in bed with her two-year-old cousin, Birari removed his clothes, removed A.J.’s sweatpants, and placed his erect penis near A.J.’s vagina,” according to the opinion. “After A.J. and her roommate were able to remove Birari from their apartment, Birari yelled, ‘Please, don’t call the police. Just kill me.’”

The appeals court rejected Birari’s claims on evidence, intent or the victim’s awareness. But the court ruled a prosecutor made improper statements to the jury intimating that Birari might have wanted the child to watch. However, the court said, “under the circumstances, we cannot say that the prosecutor’s comments resulted in fundamental error.”

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Civil Plenary – FSSA/Discontinued Program

Michael A. Gargano, in his official capacity as Secretary of the Indiana Family and Social Services Administration, et al. v. Lee Alan Bryant Health Care Facilities, Inc., et al.,

49A02-1105-PL-449

The Indiana Court of Appeals held that a trial court erred in ruling in favor of health care providers regarding payments from the state’s Residential Care Assistance Program.

The appellants contended that the trial court violated separation of powers when it found that the Family and Social Services Administration and Division of Aging had acted unlawfully in refusing to accept RCAP applications after Dec. 1, 2009.

The FSSA had notified providers that relied on RCAP funds in October 2009 that due to budgetary constraints affecting all state agencies, the RCAP would not be accepting new applications effective Dec. 1, 2009. Following that date, a number of applications for the RCAP submitted by individuals admitted to providers’ facilities were denied.

The COA declined to hold that FSSA and the DOA may not exercise or perform conventional administrative and executive steps of directing or redirecting allotted funds in order to meet the directives of the State Budget Agency, and therefore reversed the trial court’s award of damages to providers.

The appellants also claimed that the court erred in ordering them to recalculate reimbursement rates paid to RCAP providers. The trial court had ordered the state agencies in 2011 to recalculate reimbursement amounts from 2003 to 2009.

Citing Indiana Code 12-10-6-2.1, subsection (g), the COA held that “a prenegotiated payment rate is predicated on a reasonable cost related basis with a growth of profit factor in accordance with generally accepted accounting principles and methods and written standards and criteria as established by the division.” RCAP providers had been paid the upper rate limit and therefore were not entitled to additional reimbursement, nor were the reimbursement rates unlawful, the COA held.

The Court of Appeals remanded for proceedings consistent with its opinion.

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Domestic Relation – Emancipation/Child Support

Tricia Sexton v. Travis Sexton

34A02-1111-DR-1059

A 20-year-old woman will remain emancipated from her divorced parents after the Indiana Court Appeals upheld a Howard Circuit Court order.

The court also offered guidance regarding a forthcoming change in state law that will lower the age of child support termination from 21 to 19: Parents still may be obligated to provide educational support past age 19.

The young woman, K.S., was emancipated when the father successfully sued to discontinue child support payments after she became pregnant. Her mother appealed claiming the trial court erred in finding that K.S. was outside the care or control of her parents and was self-supporting.

K.S. had obtained a certified nursing assistant license in high school and had been working at a nursing home and taking classes at Ivy Tech while her father continued weekly child support payments of $240. Two months after she became pregnant, she quit her job.

The father sued before K.S.’s child was born and court records say K.S. told the father that she refused to see him, and he would no longer have a relationship with her or his grandson. K.S. lived with her mother and didn’t work or pay rent, but received government assistance and financial aid that fully paid her tuition at Ivy Tech. She also testified she was in a relationship with the child’s father who provided support for the child as she requested.

“While a finding that a child placed herself outside the care or control of her parents cannot be based solely on the fact that she gave birth to a child, that fact, when taken in conjunction with others, may support such a finding. That is the case here,” Judge Nancy Vaidik wrote for the panel.

“At nineteen, K.S. is a mother. She continues to have a romantic relationship with her child’s father, who provides supplies for the child as requested by K.S. In addition, K.S. applied for, and receives, some governmental assistance. She refuses a relationship with her own father and denies her father a relationship with his grandson. These decisions are those of an adult not under the care or control of either parent. The trial court did not err in finding that K.S. put herself outside her parents’ care or control,” Vaidik wrote.

The father also raised a point about Public Law 111-2012, which will change the age for termination of child support from 21 to 19 on July 1. The court didn’t rule on the father’s claim that the law would have automatically emancipated his daughter, but it used this case to point out an exception and offer guidance and a warning.

“Although Public Law 111-2012 will modify the presumptive age for termination of child support, it will not alter a child’s ability to obtain educational support – with one important exception. It will amend the time frame in which certain children may seek educational support,” the opinion said.

“Since designating support as ‘educational’ support was often not vital before the enactment of Public Law 111-2012, we anticipate that many support orders for college-age students may not specifically refer to the support as educational, although in reality it is. Trial courts must determine on a case-by-case basis whether support is in fact educational support. Thus, obligors who believe that their support obligation will terminate under the new legislation on July 1 would be wise to seek legal advice instead of unilaterally stopping support payments. To do otherwise risks a finding of contempt and possible criminal sanctions for failing to pay support.”

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June 11

Criminal – Attempted Murder/Sentence

Michael Phelps v. State of Indiana

55A01-1108-CR-410

A Martinsville teen who as an eighth-grader shot and seriously wounded a classmate will continue to serve a 35-year sentence with five years suspended for his attempted murder conviction as an adult.

The Indiana Court of Appeals unanimously upheld the conviction and sentence of Michael Phelps, 17, who shot classmate Chance Jackson at Martinsville West Middle School in March 2011, three days after Phelps’ mother had formally withdrawn him from school.

The appeals court found that the Morgan Superior Court ruling “took great care” in arriving at Phelps’ sentence after a bench trial.

“Our focus is upon whether Phelps’s case is ‘the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ We find nothing unusual about a thirty-five year sentence, with five years suspended, for a conviction of attempted murder,” Judge Ezra Friedlander wrote.

Phelps appealed on four bases: whether the trial court with juvenile court jurisdiction abused its discretion by waiving its jurisdiction; whether it erred by denying Phelps’ motion to close the proceedings; whether it committed reversible error by denying Phelps’ motion for change of venue; and whether the sentence is inappropriate in light of the nature of the offense and the character of the offender, or whether the sentence constituted cruel and unusual punishment.

The appeals court noted Phelps’ history of disciplinary referrals and juvenile delinquent adjudication that culminated with violence against other students and threats against the school. It outlined an escalating pattern of behavioral problems that resulted in Phelps stealing a gun, showing it to other children and confronting Jackson at the school he’d been banned from attending.

“Phelps, who had the intellectual ability to succeed at school, chose not to take advantage of those opportunities, especially in light of his substance-abuse-ridden family setting,” the ruling says.

“Phelps himself suffered from substance-abuse issues. Phelps refused to take advantage of the rehabilitative efforts offered by people within his school system. We cannot say that the slightly enhanced sentence for attempted murder is inappropriate in light of the character of the offender.”

The court found no errors pertaining to issues raised on appeal. It noted the defense’s second request for change of venue had been withdrawn after the defense requested a bench trial.

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Criminal – Sex Offender/Ex Post Facto Law

David S. Healey v. State of Indiana

02A04-1110-CR-537

The Indiana Court of Appeals held that a man who was convicted of violating requirements of the Indiana sex offender registry statute failed to show evidence of ex post facto law.

In 2011, a trial court found David Healey guilty of thee counts of Class C felony failure to register as a sex offender and sentenced him to the maximum eight years for each offense. He was found guilty of a fourth charge of using a social media website that allowed people under age 18 to register, receiving an additional year’s sentence for that offense, with all sentences to be served concurrently for a total executed sentence of eight years.

Healey argued that because he originally pleaded guilty to Class C felony child molesting on July 7, 1995, based on an offense that occurred in 1994, the amendment to Indiana’s Sex Offender Registration Act in 1995 does not apply to him. The amendment requires sex offenders to register on the SORA for 10 years after the date the offender was released from prison, placed on parole or placed on probation, whichever occurred last.

The COA held that the 10-year requirement is not intended to be punitive and that Healey failed to prove that the regulatory scheme that changed with the 1995 amendment is punitive.

In arguing that his sentence was inappropriate, Healey said the court failed to consider as mitigators his character, his ability to benefit from a shorter sentence, and his substance abuse problems. But the COA held that Healey’s long criminal record – including committing additional offenses almost immediately after being released from incarceration – does not show that short terms of imprisonment have reduced his tendency to commit crimes. It also held that no evidence suggests Healey committed the SORA offenses because he was under the influence of drugs or alcohol.

The COA also disagreed with Healey’s claim that he had accepted responsibility for his actions. “In the present case, Healey did not plead guilty to violating SORA, but merely admitted that he committed acts that would be in violation of SORA if he were subject to its registration requirement. In fact, he argued – and argues still – that he should not be subject to its provisions and thus should suffer no consequences,” Judge Ezra Friedlander wrote in the opinion.

The appellate panel affirmed the trial court, but remanded for correction of a technical error found in the record.

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Criminal – Rehearing/Drugs

Canon Harper v. State of Indiana

10A01-1012-CR-687

The Indiana Court of Appeals upheld on rehearing a Clark County man’s convictions of drug dealing and possession, among other charges.

The Court of Appeals ruled that Canon Harper constructively possessed cocaine and other drugs and paraphernalia in a motel room and in his car after his arrest.

Harper was convicted of dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors; and maintaining a common nuisance, a Class D felony.

“The contraband in the vehicle was in close physical proximity to Harper, and the contraband in the motel was discovered relatively soon after Harper checked into the room and not long after he left and came back with a friend,” Chief Judge Margret Robb wrote in the unanimous opinion.

“Sufficient evidence existed for a reasonable finder of fact to conclude Harper constructively possessed the contraband,” the court found in reaffirming Harper’s convictions.

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Criminal – Murder/Sentence

Delmas Sexton II v. State of Indiana

02A03-1110-CR-465

A man convicted of murder in Allen County will continue to serve a 65-year sentence after the Indiana Court of Appeals ruled that the callousness of the crime merited the consideration of numerous aggravators.

Delmas Sexton argued that the trial court abused its discretion in sentencing him when it found as an aggravating circumstance the fact that as a multiple-conviction felon, he unlawfully possessed the gun he used to kill his victim.

The court also rejected Sexton’s claim that the Allen Superior Court sentence was improper because its consideration of his criminal past resulted in double jeopardy.

In March 2009, Sexton went to the home of Donald McKee, ordered him at gunpoint to write checks, then bound him with duct tape, covered his head and forced him into a truck. According to court documents, Sexton shot McKee in the head three times and left him in the truck, where McKee was found more than a week later.

Sexton was charged with murder; felony murder; Class A felony robbery; criminal confinement and unlawful possession of a firearm by a serious violent felon, both Class B felonies; and two counts of Class C felony forgery. The state also alleged that Sexton was a habitual offender.

According to court records, Sexton punched his attorney in the face in open court as a trial was set to begin in 2009, resulting in the trial’s cancellation. As another jury trial was about to begin, Sexton pleaded guilty to felony murder and the state dropped the remaining charges.

“Sexton says the trial court’s finding of multiple aggravators relating to his criminal past (like his criminal convictions, his drug use, the escalating nature of his crimes of violence, that he is at high risk of reoffending) is akin to being punished multiple times for the same offense. We disagree,” Senior Judge Randall Shepard wrote in an opinion joined by Judge Edward Najam Jr.

“A trial court may consider multiple factors relating to a defendant’s criminal past at the sentencing stage. The trial court here convicted Sexton of felony murder. For that crime, the trial court imposed one sentence. There is no double jeopardy violation,” Shepard wrote.

Judge L. Mark Bailey in a brief concurring opinion wrote that he relied on Farmer v. State, No. 772 N.E.2d 1025 (Ind. Ct. App. 2002), as the proper application of Hammons v. State, 493 N.E.2d 1250 (Ind. 1986), cited as precedent in affirming Sexton’s conviction.

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June 13

Juvenile – CHINS

In Re the Matter of: B.N. and H.C., Children in Need of Services; M.C. v. Marion Co. Dept. of Child Services and Child Advocates, Inc.

49A02-1110-JC-1025

The Indiana Court of Appeals reversed the determination that a brother and sister are children in need of services, ruling there was “simply no evidence” to support the finding.

Mother M.C. challenged the finding that her children B.N. and H.C. are in need of services. After being stopped by police in May 2011, police found oxycodone, Xanax and marijuana in M.C.’s car. Her son B.N. was in the backseat. Her driver’s license was suspended at the time. She was charged with possession of a controlled substance and possession of marijuana. The Department of Child Services took custody of her two children and later filed a petition that they were CHINS under Indiana Code 31-34-1-1, which says that a child is a CHINS if the “child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision.”

M.C. complied with voluntary drug screenings – testing negative each time – and presented current prescriptions to DCS for the oxycodone and Xanax, although she did not have a valid prescription for Xanax when she was arrested. DCS had been involved with M.C. and her oldest child several years prior based on claims of domestic violence committed by the children’s father. M.C. now has a protective order against the father.

The DCS case manager testified and the court found the children to be CHINS.

The Court of Appeals found the juvenile court’s findings that M.C. didn’t have a valid prescription for the oxycodone when she was arrested and hasn’t proven she is employed weren’t supported by the evidence. At the CHINS hearing, M.C. provided her valid prescription for oxycodone, and the case manager testified that M.C. provided her a letter showing she was employed.

The judges found that although M.C. was charged with possession of marijuana and admitted to using it in the past, she tested negative at each screening, had valid prescriptions for the oxycodone and wasn’t charged with any crime relating to the Xanax possession. She volunteered to participate in services; they weren’t mandatory per DCS and there is no evidence that her suspended license affects the condition of the children, wrote Judge Nancy Vaidik. There is no evidence that the children’s physical or mental conditions were seriously impaired or endangered by their mother.

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Criminal – Witness Testimony/Robbery

Anthony D. Gorman v. State of Indiana

49A05-1110-CR-556

The Indiana Court of Appeals delved into the issues surrounding the reliance on just one witness’s identification and testimony regarding the person who robbed her to convict the defendant.

Anthony Gorman appealed his convictions of two counts of Class B felony robbery while armed with a deadly weapon. He was accused of robbing at gunpoint a couple while they sat in their car. The woman, Samantha Daniels, positively identified Gorman as the man who robbed them and testified that she was “100 percent” sure it was Gorman. Prosecutors didn’t recover the gun allegedly used in the crime.

Gorman argued that there should be some kind of evidence corroborating the identification by Daniels in order for there to be sufficient evidence to support his conviction. But Indiana Supreme Court precedent, Richardson v. State, 270 Ind. 566, 569, 388 N.E.2d 488, 491 (1979), holds that where a defendant’s conviction is based upon his identification as the perpetrator by a sole eyewitness, such identification is sufficient to sustain a conviction if the identification was unequivocal.

Under this precedent, Daniels’ in-court identification of Gorman as the robber was sufficient to support his convictions, the judges held. They also concluded that there is sufficient evidence to show he possessed a deadly weapon when he robbed the Danielses, finding that even though the couple’s testimony regarding the gun didn’t match, both said they saw Gorman with a gun.

The appellate court did explore other cases and studies on reliability issues that may arise with eyewitness identification, as well as instances of people being falsely convicted based on inaccurate eyewitness identifications. The court found it would be unwise to alter the rule stated in Richardson, thus allowing appellate courts to second-guess a fact-finder’s assessment of testimony.

“There would be potentially substantial criminal justice costs if a sole eyewitness’s identification of a defendant were not enough to sustain a conviction. Often times, despite the efforts of law enforcement, there simply is no other evidence to be found,” wrote Judge Michael Barnes.

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Domestic Relation – Settlement Agreement/First Impression

Dennis Jack Horner v. Marcia (Horner) Carter

34A02-1111-DR-1029

Even though the trial court erred in excluding an ex-husband’s offer of evidence of communications during a settlement agreement following his divorce to establish a mistake occurred in drafting the agreement, the error was harmless, the Indiana Court of Appeals ruled. This case raised an issue of first impression regarding whether communications during mediation can be used as extrinsic evidence.

Dennis and Marcia Horner, now Marcia Carter, divorced after more than 30 years of marriage. They entered into a mediated settlement agreement in which Horner would pay $550 a month toward the purchase of a new residence for Carter, which was outlined in the “real estate” section of the agreement. Under the “maintenance/support” section, Horner was to pay Carter either $500 or $600 a month until a modification of the court or death of Carter. If she remarried, this maintenance would end. Carter eventually remarried; Horner stopped paying the maintenance, but continued to pay toward her housing for several years. Carter and her new husband lived in the Horners’ former home and paid Horner $660 a month. Eventually they stopped making monthly payments and were evicted.

Horner stopped making the housing payments to Carter because he thought it was maintenance. He argued that there was an error in communications during their mediation, which he wanted to introduce at a hearing to show there was a mistake in the agreement. He claimed he communicated to his attorney that all payments to his ex-wife would stop once she was married. She argued they agreed he would continue to pay her housing because she agreed to give up any interest in his pension. The trial court ruled in favor of Carter and declined to allow Horner to testify as to what was said during mediation.

The Court of Appeals concluded that the settlement agreement is ambiguous, so it may consider extrinsic evidence. But the issue isn’t whether Horner can offer this evidence, it’s whether that evidence can be communications that happened during mediation, something the Court of Appeals has yet to answer.

Citing Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408, the judges concluded Horner should have been allowed to introduce the mediation communications as evidence. He sought to offer this evidence to establish that a mistake occurred in drafting the agreement, which would not be excluded under Rule 408. Only evidence that is offered to prove “liability for or invalidity of the claim or its amount” is excluded.

But it was a harmless error, the judges held, because Horner did testify to communications that happened during mediation and his statements fall far short of establishing any mistake that may entitle him to relief, wrote Judge Nancy Vaidik.

The COA also upheld the finding that the housing payment provision is for a property settlement. Even though that provision has characteristics that resemble maintenance, it was placed under the “real estate” portion of the agreement, and the parties did not expressly provide that this provision was subject to modification. Plus, Horner did not seek to modify his housing payments when Carter remarried in 2007, only his maintenance payments.•