Indiana Court Decisions – 8/3-8/16

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. 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

July 12

Mutidistrict Litigation – Employment

Carlene M. Craig, et al. v. FedEx Ground Package System Inc.

10-3115

The 7th Circuit Court of Appeals was unable to determine under Kansas law how that state’s Supreme Court would rule on whether FedEx drivers are employees or independent contractors, so the court sent two certified questions to the Kansas justices.

Current and former drivers for FedEx filed lawsuits across the country claiming to be employees rather than independent contractors under the laws of the states in which they worked and under federal law. The drivers want overtime wages and repayment of costs and expenses they paid while employees. The lawsuits were consolidated and transferred to U.S. Judge Robert Miller Jr. in Northern District of Indiana. Miller used Carlene M. Craig, et al., a case using Kansas law, as the “lead” case.

Miller granted summary judgment to FedEx in Craig and then ruled in FedEx’s favor on summary judgment in the other cases. There are 21 cases on appeal before the 7th Circuit, but the judges, following the lead of the District Court, put the others on hold and focused on Craig.

In a per curiam decision, the judges decided that they could not answer whether the drivers are employees under the Kansas Wage Payment Act. There is conflicting caselaw out of Kansas and the judges are unsure how the Kansas court would rule on the matter.

“This case will have far-reaching effects on how FedEx runs its business, not only in Kansas but also throughout the United States. And it seems likely that employers in other industries may have similar arrangements with workers, whether delivery drivers or other types of workers. Thus, the decision in this case will have ramifications beyond this particular case and FedEx’s business practices, affecting FedEx’s competitors and employers in other industries as well,” the opinion says.

The judges sent two certified questions to the Kansas Supreme Court: “Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under the KWPA?” and “Drivers can acquire more than one service area from FedEx. See 734 F. Supp. 2d at 574. Is the answer to the preceding question different for plaintiff drivers who have more than one service area?”
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July 20

Civil – Social Security Disability

Bradley M. Shideler v. Michael J. Astrue, commissioner of Social Security

11-3284

The 7th Circuit Court of Appeals was sympathetic to a man’s medical condition but affirmed that the decision by an administrative law judge that he’s not disabled is supported by the evidence.

Bradley M. Shideler has osteogenesis imperfecta, or “brittle bone disease.” He applied for Social Security Disability Insurance benefits in 2006, alleging a disability onset date of June 30, 1995. His last date of being insured was March 31, 2000.

At a hearing, he testified that his back pain was a constant “10 out of 10” and was limited in what household chores he could do. He said he couldn’t stand or walk for very long and had to frequently lie down. He previously worked as a carpet cleaner in 1997 and as a rental consultant for three years. In 1999, he was injured while riding his motorcycle and had to have knee surgery. He claimed to have broken 55 bones over the years, but his medical records only supported a handful of surgeries.

A vocational expert testified that based on most of Shideler’s physical restrictions, he could work as a credit clerk, order clerk, or telephone clerk. When the ALJ gave the vocational expert a very specific list of restrictions, including a person who couldn’t work a full eight hours without needing additional breaks, the vocational expert said there would be no jobs available under those restrictions.

A state physician completed a residual functional capacity assessment of Shideler and found he could perform medium work and could even occasionally climb ladders.

The ALJ denied Shideler’s application; the Appeals Council denied his request for review. The District Court also upheld the decision. He challenged the ALJ’s conclusion that he was not disabled prior to March 31, 2000, claiming her findings weren’t supported by the evidence.

The 7th Circuit found the ALJ’s reasons for finding Shideler’s testimony to not be fully credible are sound and not “patently wrong.” Whatever Shideler’s current condition is, the ALJ’s decision finding that he was not disabled as of March 2000 is supported by substantial evidence, the judges held. The appellate court agreed his condition didn’t rise to the level of a disability prior to his date last insured.
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July 23

Civil – Construction Agreement/Collective Bargaining

Mark McCleskey, trustee, et al. v. DLF Construction Inc., an Indiana corporation

11-1826

The 7th Circuit Court of Appeals agreed with the federal court that a construction company that entered into a working agreement with a cement masons union had to contribute to two funds for all hours worked, not just bargaining unit work.

DLF Construction’s agreement with Local 692 of the Cement Masons Union bound DLF to all collective bargaining agreements between the union and various employer associations. Under the CBAs, DLF is required to make fringe benefit contributions to a pension fund and a health and welfare fund established by the union.

An audit revealed that DLF didn’t make contributions to the funds on behalf of a journeyman cement mason and member of the local union over the course of two years. DLF only contributed to the funds for cement-related work, not other work the union member performed for DLF, including painting and demolition. The audit report indicted DLF owed nearly $12,000 in fringe benefit contributions.

The District Court granted summary judgment in favor of the union funds.

DLF argued that under the Memorandum of Joint Working Agreement, it’s not contractually bound to make contributions for non-bargaining unit work, but DLF has misinterpreted the working agreement. It cited Section 2 in support, but that section binds DLF to the CBAs and establishes what type of employee is covered under the CBA, the appellate court held. There is no language in either the working agreement or CBAs that limits DLF’s obligations to make fringe benefit contributions, so the District Court was correct in finding DLF must pay into the funds for each hour worked by the union journeyman.
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July 24

Civil – Armed Career Criminal Act

Jeffrey D. Kirkland v. United States of America

11-2507

Based on a sparse record of evidence that the District Court could consider in determining whether a man can be sentenced under the Armed Career Criminal Act, the 7th Circuit Court of Appeals found the government didn’t meet its burden to prove two of the man’s previous convictions from events on the same day were separate predicate offenses under the Act.

Jeffrey Kirkland was convicted of unlawful possession of a firearm by a felon and sentenced under the ACCA based on five previous “violent felony” convictions. Two of those included drunk-driving offenses, which later the U.S. Supreme Court determined are not violent felonies under the ACCA. The District Court denied Kirkland’s request for relief, and the 7th Circuit ordered the lower court to take another look at his remaining three convictions to see if he can still be sentenced under the Act.

The federal judge relied only on the charging documents, judgments and plea questionnaires from the burglary and robbery convictions, which both occurred on the same day in 1985. The information did not provide enough detail to determine whether the crimes were committed on “occasions different from one another” as required by the Act.

The judge believed the government met its burden to prove they did, and the burden shifted to Kirkland to prove otherwise, based on United States v. Hudspeth, 42 F.3d 1015, 1018 (7th Cir. 1994)(en banc). Since Kirkland was not allowed to provide any other information to support his argument based on Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the District Court found the ACCA applied.

The Circuit judges agreed that Shepard limits what documents a judge can consider in determining whether the prior offenses occurred on separate occasions. But in cases like Kirkland’s, where the evidence is not definitive as to whether the criminal events happened separately from each other, the burden is not on the defendant to prove the events are one occasion.

The burden-shifting scheme mentioned in a footnote in Hudspeth is “no longer tenable because it essentially requires an ACCA enhancement even if the available Shepard-approved documents – the only evidence a sentencing court may consider – is inconclusive as to whether the offenses occurred on separate occasions,” wrote Judge Ruben Castillo, of the Northern District of Illinois, who was sitting by designation.

The more appropriate burden allocation requires the government to establish by the preponderance of the evidence – using Shepard-approved sources – that the prior convictions used for the enhancement were “committed on occasions different from one another,” Castillo continued.

An ambiguous record regarding whether a defendant actually had the opportunity to stop or withdraw from his criminal activity doesn’t suffice to support the ACCA enhancement, the court ruled. The judges remanded for resentencing.

Indiana Supreme Court

July 12

Post Conviction – Ineffective Assistance/Prosecutorial Misconduct

State of Indiana v. Steven Ray Hollin

69S05-1201-PC-6

A Ripley County man convicted of conspiring to commit burglary is entitled to a new trial due to ineffective assistance from his trial counsel and prosecutorial misconduct, the Indiana Supreme Court held.

Steven Ray Hollin’s petition for post-conviction relief was granted by Ripley Circuit Judge Carl H. Taul. The Court of Appeals reversed, but the justices agreed with the post-conviction court’s ruling.

Hollin and Nathan Vogel in 2005 allegedly planned to burglarize homes in Ripley County. They entered an unlocked house and Vogel stole a camera bag containing money. A woman called police because she was suspicious of the two men walking along the side of the road. Police found the bag and money on Vogel.

Originally, Vogel didn’t implicate Hollin in the plan to burglarize the home, and Hollin denied any knowledge of the burglary. He believed Vogel knew the homeowners and they went in the house to use the phone. Vogel pleaded guilty to Class D felony theft, which could later be reduced to a misdemeanor. Vogel had other cases pending at the time in Decatur County and pleaded guilty to those charges, but petitions to revoke his suspended sentences were later filed. That’s when Vogel changed his story and said Hollin knew of the burglary plot.

Hollin was charged with and convicted of conspiracy to commit burglary as a Class B felony and being a habitual offender. His original 40-year sentence previously was reduced by the justices to 20 years.

The justices found Hollin’s argument that his counsel was ineffective for failing to present evidence that would have impeached Vogel’s credibility to be compelling. The details of Vogel’s plea agreements should have come out at trial – the jury only knew that Vogel had pleaded guilty and was in jail. The jury could have assumed he pleaded guilty to the same charge Hollin faced and was serving a lengthy sentence. There was also prosecutorial misconduct because the jury didn’t know that there was a petition to revoke Vogel’s probations, that there were pending charges against him, or that he didn’t implicate Hollin until after he was charged with battery with a deadly weapon and his probations may have been revoked. This violated Brady v. Maryland, 373 U.S. 83 (1963), the post-conviction court found, and the justices agreed. They remanded for a new trial.
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July 23

Civil Tort – Indiana Guest Statute

Robert L. Clark, Jr. and Debra Clark v. Robert L. Clark, Sr.

01S02-1112-CT-690

A divided Indiana Supreme Court found that a lawsuit filed by a son after his father hit him with his car while the son tried to help his father park isn’t barred by Indiana’s Guest Statute.

Robert Clark Jr. was a passenger in his father’s car when he exited the car and walked in front of a parking space to help his father navigate into it. Robert Clark Sr. accidently hit the accelerator instead of the brake when Clark Jr. signaled for his father to stop, pinning Clark Jr. between the car and another vehicle. The son suffered significant leg injuries, leading to a lawsuit filed by Clark Jr. and his wife for negligence.

The father asserted the Indiana Guest Statute as an affirmative defense, and both parties sought summary judgment on the issue. The trial court ruled in favor of the father. The Indiana Court of Appeals reversed, although the judges were divided in their decision.

The Indiana justices were also split, with a 3-2 majority holding that the statute does not bar the son’s lawsuit. The high court took the case to resolve the conflict of authority, citing C.M.L. ex rel. Brabant v. Republic Servs. Inc., 800 N.E.2d 200 (Ind. Ct. App. 2003), and KLLM Inc. v. Legg (826 N.E.2d 136 (Ind. Ct. App. 2005).

The statute spells out when someone is not liable for loss or damage arising from certain people’s injuries or death resulting from the operation of the vehicle. The statute applies when specific relatives or a hitchhiker is being transported without payment “in or upon the motor vehicle” unless the injuries or death are caused by wanton misconduct.

The father claimed “upon” means “as long as the guest has a sufficient relationship to the vehicle, the guest is upon the vehicle for purposes of the statute.”

Chief Justice Brent Dickson and Justices Robert Rucker and Steven David found the Guest Statute to be unambiguous. “Upon” should be given its literal meaning, which connotes a physical connection or contact with the vehicle, Dickson wrote.

“Thus, if the injury is sustained at a time when a passenger is in mere physical contact with the motor vehicle but standing outside of or off of it or at a time when the passenger is not being ‘transported’ by the vehicle, then the Indiana Guest Statute does not bar a passenger’s damage action against the driver,” he wrote.

The majority ordered the trial court grant summary judgment in favor of Clark Jr.

Justices Frank Sullivan and Mark Massa dissented because they agreed with the trial court’s judgment. They believed the analysis of KLLM and the dissent of Chief Judge Margret Robb in this case are correct.

Indiana Court of Appeals

July 12

Post Conviction – Retrial

Andrew McWhorter v. State of Indiana

33A01-1202-PC-72

The post-conviction court erred in denying Andrew McWhorter relief when he challenged his conviction of voluntary manslaughter in connection to the death of his girlfriend, the Indiana Court of Appeals concluded. McWhorter may not be retried on the same charge, but may face a trial for reckless homicide.

In December 2005, McWhorter was at home with his girlfriend, Amanda Deweese. He shot Deweese in the head with a 12-gauge shotgun at close range, killing her. He admitted to shooting her but claimed he did not know the gun was loaded. The couple had argued prior to the shooting.

McWhorter was charged with murder, but the jury was instructed – without the objection of McWhorter’s attorney – on voluntary manslaughter and reckless homicide. McWhorter’s defense was that he had accidently killed Deweese. The jury found him guilty of Class A felony voluntary manslaughter.

His conviction was affirmed on direct appeal and the post-conviction court denied his petition for relief in January.

The Court of Appeals reversed, finding McWhorter’s attorney should have objected to the voluntary manslaughter instruction, wrote Judge L. Mark Bailey. The attorney acquiesced to the giving of an instruction that was not warranted by the evidence and invited a compromise or unreliable verdict.

The judges found the voluntary manslaughter instruction lacked evidentiary support regarding the presence of “sudden heat” and that the instruction prescribed sequential error for jury deliberation.

McWhorter was prejudiced as a result of his attorney’s performance. On remand, he can only be tried for reckless homicide.
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July 13

Civil Tort – Indiana Tort Claims Act

John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc.

49A04-1108-CT-406

A divided Indiana Court of Appeals panel affirmed the ruling that dismissed a case against a government-funded agency because the victims in a vehicle accident failed to provide notice under the Indiana Tort Claims Act.

John Schoettmer was a passenger in a vehicle that was being driven by Jolene C. Wright, who worked at South Central Community Action Program. Schoettmer was injured and sued after rejecting a $12,868 settlement offer from the agency to cover his medical expenses.

Judge Melissa May wrote that the Schoettmers acknowledged they didn’t provide notice to the agency as required in litigation against government agencies or political subdivisions that receive taxpayer funding. “Instead, they assert their communications with South Central’s liability insurer, Cincinnati Insurance, substantially complied with the ITCA notice provisions. We disagree,” May wrote.  

“(The) Schoettmers did not timely file their ITCA notice, nor may they find refuge from their failure in the theories of substantial compliance, waiver, and estoppel. Accordingly, we affirm the trial court,” May wrote in an opinion joined by Judge Elaine Brown. Judge Terry Crone dissented and wrote that Schoettmer worked with the insurer after the accident in December 2008 until the settlement offer was made in September 2009. More than a year later, the Schoettmers sued, but the insurer did not assert a defense under provisions of ITCA until amending its response to the suit more than 60 days after the initial response. “I would not hold the Schoettmers’ counsel to a higher standard of due diligence regarding discovery of South Central’s governmental status than I would South Central’s own counsel,” Crone wrote. He would reverse summary judgment in favor of South Central and stop South Central from asserting the Schoettmers’ noncompliance with the notice provisions of the ITCA as a bar to their claims.

Civil Tort – Insurance/Building Contractor

Brotherhood Mutual Insurance Company as Subrogee of Plymouth Wesleyan Church v. Michiana Contracting, Inc., et al.

50A03-1111-CT-518

The Indiana Court of Appeals reinstated an insurer’s case against contractors who built a Plymouth church gymnasium addition in 2008 in which the basketball court floor was ruined when a frozen sprinkler burst eight months later.

Brotherhood Mutual Insurance paid a $37,355.80 claim to repair the floor and brought suit against the contractors. The trial court granted the defendants’ motion for summary judgment on the basis that a contract for the addition was subject to a waiver of subrogation.  

On appeal, Brotherhood argued the waiver didn’t apply because the church installed the wood floor on the basketball court. The trial court had determined that the installation of the court was within the scope of the work under the contract.

“Brotherhood asserts the wooden gym floor, which was the subject of the insurance claim, was not ‘Work’ because, while Michiana poured and sealed the concrete for the gym floor, the Church installed the wood floor atop the concrete without assistance from Michiana,” Judge Melissa May wrote. “In addition, Brotherhood contends the contract does not contain exact specifications for the installation of the wooden gym floor; instead, the contract mentions the gym floor as a series of options.”

“The wooden gym floor therefore was not within the ‘Scope of Work’ for the project and therefore was not subject to the waiver of subrogation. Therefore, we reverse the summary judgment and remand for proceedings consistent with this opinion,” May wrote.

Criminal – Hearsay Testimony/Fair Trial

Corey Cole v. State of Indiana

49A02-1111-CR-1019

A man convicted of rape based on DNA evidence and his admission that he had sex with the victim failed to prove to the Indiana Court of Appeals that he was denied a fair trial due to the admission of hearsay testimony and a sustained objection to an attempt to refresh the victim’s memory.

Corey Cole was convicted of rape for an assault in a car at a bar parking lot where the victim, J.S., had been placed by her bartender boyfriend, D.R., after she became intoxicated and passed out at the bar, according to court records.

D.R. and J.S.’s roommate checked on her periodically, but the last time the roommate checked, she witnessed a man exit the car and take off running. J.S. was passed out in a state of undress, witnesses said.

Police and a sex crimes investigator arrived and attempted to rouse J.S. but couldn’t. She didn’t wake until she was in an ambulance on the way to the hospital, where evidence was collected using a rape kit.

DNA analysis of fluids found on the victim identified Cole as a suspect. At trial Cole said he had intercourse with the victim but it was consensual. He was convicted and sentenced to 12 years in prison with six years suspended.

In his appeal, Cole said the Marion Superior Court committed fundamental error by allowing hearsay evidence from witnesses regarding a beer bottle found in the parking lot with his fingerprints. Cole argued the court committed reversible error when it sustained a state objection to his attempt to refresh the victim’s memory with a nurse’s notes about how much the victim had to drink.

Judge Melissa May wrote, “Cole invited some of the error, the uninvited statements were cumulative of other testimony, and they did not likely contribute to the decision regarding Cole’s guilt. Accordingly, we affirm.”

The court cited Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct.App. 2003), that holds that erroneous admission of evidence is not a reason for reversal if there is “substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction.”
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July 16

Civil Collection – 14th Amendment/Tax Deed

M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank

03A04-1112-CC-639

The Indiana Court of Appeals affirmed the denial of a petition for a tax deed after a Bartholomew County tax sale, finding that the court was correct in ruling that the state’s statutory notice violated the 14th Amendment guarantee of due process.

The trial court denied M&M’s petition for a tax deed after it purchased a property in Columbus at a tax sale. Monroe Bank had been the mortgagee, lending money to Ahlemeyer Farms in 2006 and 2007.

The Bartholomew County auditor provided Ahlemeyer Farms notice of tax sale but didn’t provide notice to Monroe Bank before the sale took place.

Indiana Code 6-1.1-24-3(b) says auditors shall mail notice to any mortgagee who annually requests, but states, “However, the failure of the county auditor to mail this notice or its nondelivery does not affect the validity of the judgment and order.”

Even though Monroe Bank had not requested notice of tax sale as the statute describes, the appeals court said it had been denied due process. The court cited Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), in which the U.S. Supreme Court struck down an earlier version of Indiana pre-tax-sale notice law.

“When a mortgagee has a publicly recorded mortgage, as in the present case, we conclude, under the holdings of both Mennonite and [Jones v. Flowers, 547 U.S. 220 (2006)], that due process requires that the government must supplement notice by publication with pre-tax sale notice mailed to the mortgagee’s last known available address or by personal service, regardless of whether the mortgagee has requested such notice,” Judge James Kirsch wrote.

“We therefore conclude that the Indiana pre-tax sale notice statute violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected,” Kirsch wrote.

Criminal – Drugs/In-Court Substance Test

Kyle L. Doolin v. State of Indiana

32A01-1111-CR-545

An appeals court panel ruled that a deputy’s in-court field test to prove a substance was marijuana should not have been allowed, but it declined to use the error as a basis to reverse the man’s misdemeanor conviction.

The Indiana Court of Appeals affirmed a conviction and one-year suspended sentence for Class A misdemeanor possession of marijuana, but it agreed with Kyle Doolin’s argument that the trial judge should not have allowed a sheriff’s deputy to conduct a test on the evidence during a bench trial.

At trial, Hendricks County Sheriff’s Deputy Brian Petree testified about a search of a vehicle in which Doolin was a passenger after a traffic stop. Petree found what appeared to be marijuana concealed in a locked glove box. Doolin admitted after his arrest that it was his and he wished to take responsibility for it.

The court allowed Petree to perform a field test during the trial on the evidence over Doolin’s repeated objection. Petree placed a small amount of the green, leafy substance in a glass bottle into which Petree dropped a capsule and shook the bottle to break the capsule, releasing a chemical that turned blue when in contact with THC, the active compound in marijuana.

The first test failed, and the judge allowed a second test over Doolin’s objections that there was no foundation for the reliability of the test and that Petree was not a chemist.

“The State simply presented no foundational evidence of the test used. Because of this dearth of evidence regarding this field test, we find the State failed to establish the test’s reliability under Rule 702(b), and the trial court abused its discretion in admitting the results into evidence,” Judge James Kirsch wrote.

But the court said the error would not likely have invalidated Doolin’s conviction. He acknowledged possessing the marijuana, and Petree’s training, observation and circumstantial evidence were sufficient to determine that the substance was marijuana.

The opinion also said the judges’ findings should not be read too broadly and hinted at guidance in terms of when such tests may be admissible during court.

“We note that our holding today does not represent a conclusion that all field tests of marijuana conducted in the courtroom are, per se, inadmissible; nor do we find that in-court field tests on marijuana may never be used as substantive evidence of guilt, as Doolin asks us to do. Rather, we hold that under the facts and circumstances of this case, the trial court abused its discretion when it admitted the results of Deputy Petree’s in-court field test because of the lack of foundation as to its reliability,” Kirsch wrote.
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July 17

Criminal – Waiver of Right to Challenge

Darrell Larue Brown v. State of Indiana

10A04-1109-CR-551

A Southern Indiana man, as part of his plea agreement on child molesting charges, knowingly and voluntarily waived his right to challenge the propriety of his sentence on appeal, the Indiana Court of Appeals ruled.

Darrell Larue Brown faced nine counts of child molesting, but seven of those counts were dismissed through a plea agreement. Brown pleaded guilty to two counts of child molesting as Class B felonies and his agreement stated that he agreed to waive his right to appeal his sentence as long as the judge sentenced him within the sentencing range outlined in the agreement.

At the guilty plea hearing, Clark Circuit Judge Vicki Carmichael asked Brown several times if he understood that he was waiving his right to appeal his sentence. He answered in the affirmative.

He now appeals his sentence of two 20-year concurrent terms with four years suspended to probation. The appellate judges, citing Creech v. State, 887 N.E.2d 73, 77 (Ind. 2008), affirmed the sentencing, finding he waived his right to appeal it.

Criminal – Child Exploitation/Evidence

Anthony W. Browning v. State of Indiana

49A05-1110-CR-540

The Indiana Court of Appeals found that the state presented sufficient evidence to support a Marion County man’s five convictions of child exploitation.

Anthony Browning appealed his Class C felony convictions, arguing the state didn’t provide sufficient evidence to show he knowingly disseminated child pornography. An Indianapolis Metropolitan Police Department detective conducted an Internet investigation using a file-sharing program looking for people who possess and share child pornography. Based on an IP address and Global Unique Identifier, police believed Browning was sharing these files. A search by police of his laptop showed the GUID connected to the suspicious files matched the GUID on Browning’s laptop.

Browning told police that he had downloaded pornography through the file-sharing service, but he would delete any child pornography.

The judges pointed to Browning’s statement to police to support his conviction. Even if Browning didn’t open and view the files once they were downloaded, their filenames indicated they were photos of children. Also, because he kept them in a folder to share with other users, he should have known there was a high probability others would download the pictures, Chief Judge Margret Robb wrote.

Miscellaneous – Sex Offender/Residency Restrictions

Mark Gaither v. Indiana Dept. of Correction, et al.

18A02-1111-MI-1073

A convicted sex offender, who argued that a probation condition prohibiting him from living within 1,000 feet of a school is unduly restrictive on his property interest in a home he owns, lost his appeal before the Indiana Court of Appeals.

Mark Gaither committed child molesting in 1995 and 1996 but wasn’t convicted until August 2008. As part of his probation and parole, he isn’t allowed to live within 1,000 feet of school property. He owns a home in Muncie that is within 1,000 feet of a middle school, and he wants to live there. The statute requiring that sex offenders on probation/parole be prohibited from living within 1,000 feet of a school was enacted in 1999.

Gaither claims because he committed his offenses before the statutes were enacted, he isn’t subject to them and the residency restriction placed on him violates the ex post facto clause of the Indiana Constitution.

Even though his probation has since expired, the COA ruled on the case because of public importance.

Gaither tried to distinguish his case from Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in which the Indiana justices ruled that Hevner, who had been convicted of a sex offense, was subject to conditions of probation, including living within 1,000 feet of a school. Gaither claimed that because he owned his home before he committed the child molesting, he should be allowed to stay in it.

The justices “made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public,” wrote Judge John Baker.

The appellate court ruled that Indiana courts have held that prohibiting a sex offender from living within 1,000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible.

Civil Plenary – Breach of Contract

State of Indiana Military Dept., State Armory Board of the State of Indiana, and Governor Mitch E. Daniels, Jr. v. Continental Electric Co., Inc.

45A05-1109-PL-465

The Indiana Court of Appeals reversed a judgment against the state in a lawsuit filed by a subcontractor working on an airport project in Gary, holding the lower court erroneously determined the state had breached a contract between it and the subcontractor.

Subcontractor Continental Electric Co. sued the State of Indiana Military Department, State Armory Board of Indiana and Gov. Mitch Daniels for breach of contract and quantum meruit. The Indiana Military Department hired Larson-Danielson Construction Co. as contractor. Continental submitted a bid to Larson for $1,794,660 to “furnish and install the labor, material and equipment necessary for the electrical portion of the above project.”

At dispute is an alternative known as Alternate No. 2 relating to the installation of a generator at the facility and what was included in the bid. Continental contended to Larson that it included all labor and materials associated with the generator in its bid and that the company would need a change order of $207,000 because this was the amount above the cost for the generator quoted to Continental at the time of the bid.

After trying to resolve the dispute with the state, Continental sued the state actors, claiming it performed all work under the contract and hadn’t been paid all of the money owed. Continental also made a claim for quantum meruit, claiming the government accepted the benefits it provided, despite the opportunity to decline them, and that Continental had not been paid. It also argued it was denied due process because Daniels refused to respond to an appeal by Continental even though the main contract between Larson and the government provided a remedy and appeals process.

The trial court ruled Continental was allowed to recover under its unjust enrichment claim, that the state was in breach of contract by refusing to participate in the administrative appeal, and it awarded Continental nearly $207,000 plus costs.

The Court of Appeals found there was no contract between the state and Continental, so the lower court erroneously ruled the state breached a contract between the two. Any remedy Continental sought had to be against Larson as general contractor.

The judges also found there was no showing the state unjustly retained a benefit without paying for it. Despite what Continental claimed, there was no confusion in the main contract about what was or was not to be included in the agreement regarding the generator.
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July 18

Criminal – First Impression/Public Intoxication

Annette Pittman v. State of Indiana

49A02-1112-CR-1132

In a case of first impression, the Indiana Court of Appeals rejected a woman’s argument that the Indiana Code requires law enforcement personnel to evaluate if there could be other reasons a person is displaying signs of intoxication before an arrest for public intoxication.

Indiana Code 12-23-15-2 says, “An individual to be taken to the city lock-up or county jail shall be evaluated at the earliest possible time for nonalcoholic factors that may be contributing to the appearance of intoxication.”

Annette Pittman was arrested by police officer Ivalee Craney at a gas station on suspicion of public intoxication. Pittman appeared to be drunk and refused to leave the gas station after asked by employees.

Pittman argued that the state didn’t follow I.C. 12-23-15-2 and determine if some other reason could have caused her speech to be slurred, be unsteady on her feet, and to smell of alcohol. Pittman’s conviction is based solely on Craney’s observation of Pittman’s behavior and condition at the gas station.

The COA found no cases discussing the statute in question. Pittman claimed the statute requires medical or scientific testing to rule out other causes of intoxication symptoms, but her argument would place a large burden on the state to disprove a subject’s behavior was caused by anything other than alcohol, the judges ruled.

“I.C. § 12-23-15-2 did not require Officer Craney, or other law enforcement personnel elsewhere, to perform an evaluation so thorough as to eliminate all other possible causes for each of the symptoms of alcoholic intoxication that Pittman exhibited,” Judge Ezra Friedlander wrote. “Although we can envision scenarios that would warrant further evaluation, including but not limited to those involving behavior reasonably suggestive of mental illness or dementia, this was not one of them. The dictates of I.C. § 12-23-15-2 were satisfied. This being Pittman’s only challenge to the sufficiency of the evidence, the challenge fails.”

Civil Plenary – Insurance/UIM Coverage

Howard Justice v. American Family Mutual Insurance Co.

49A02-1112-PL-1078

The Indiana Court of Appeals reversed the grant of summary judgment in favor of an insurer in a dispute over whether it should pay a claim for underinsured motorist coverage.

American Family Mutual Insurance denied Howard Justice’s claim under his policy for underinsured motorist coverage. Justice, an Indianapolis city bus driver, was injured in an accident with another driver. That driver’s insurer paid the policy limit of $25,000 to Justice. He also was paid more than $77,000 in benefits in workers’ compensation coverage under his employer’s policy.

Justice’s policy limits with American Family were $50,000 per person and $100,000 per accident in underinsured motorist coverage.

American Family argued at the trial level that the workers’ compensation setoff provision reduced the limits of the liability policy so that its liability under the policy was zero.

The appellate judges cited Beam v. Wausau, 765 N.E.2d 524, 528 (Ind. 2002), a similar case from the Supreme Court, to support their ruling reversing summary judgment. The justices held the trial court erred by reducing the damages award by the gross amount of workers’ compensation benefits paid. The Supreme Court held that the exclusion called for a reduction of damages by any amount of workers’ compensation benefits received for the same element of damages insured by the policy.

“In this case, the trial court’s order granting summary judgment reflects, without opinion, its agreement with AFI that the setoffs should result in a reduction from the UIM policy limits. Under the rationale of Beam, however, this is incorrect as a matter of law. After a determination of liability and damages, Justice’s damages award should be reduced by the $25,000.00 recovery from Wagner and the percentage of worker’s compensation benefits paid to Justice based upon Wagner’s percentage of comparative fault, up to a maximum of $25,000.00,” wrote Judge James Kirsch.

Civil Plenary – Annexation

Covered Bridge Homeowners Association, Inc., Clark County, Indiana Commission, et al. v. Town of Sellersburg, Indiana

10A01-1101-PL-13

The town of Sellersburg’s annexation proceedings should take priority over an incorporation proceeding involving the same area of land, the Indiana Court of Appeals held.

Landowners in the 1,800 acres in Clark County that Sellersburg intended to annex filed a remonstrance against it. Sellersburg’s town council approved a written fiscal plan and introduced its annexation ordinance in June 2008, but it failed to send out notices to all affected landowners. A hearing scheduled in August was cancelled, and negotiations between the council and the landowners on the proposed annexation failed.

In August 2009, the landowners filed a petition with the Clark County Commissioners to incorporate the new town of Covered Bridge. The commissioners adopted an ordinance approving the landowners’ petition. Just days later, the Sellersburg council adopted the proposed annexation ordinance.

Sellersburg sued the commissioners, arguing it was “first in time” and its annexation should take priority. The landowners’ association and others also filed a remonstrance against the annexation, to which Sellersburg filed a motion to dismiss based on remonstrance waiver provisions executed by subdivision developers as a condition for connection to Sellersburg’s sewer system.

The trial judges ruled in favor of Sellersburg in both cases. The Court of Appeals affirmed, holding that the annexation proceeding is first in time and takes priority over the incorporation proceeding because it was validly instituted in June 2008. Sellersburg’s initial failure to comply with the statutory notice provisions and hold a public hearing didn’t invalidate the annexation.

The COA also held that the statutory remonstrance waiver requirements were substantially complied with and so the remonstrance lacks sufficient valid signatures.
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July 19

Criminal – Sexually Violent Offender Registry

Bobby A. Harlan v. State of Indiana

84A01-1110-CR-474

The order that a man convicted of child molesting must register as a sexually violent predator did not violate the ex post facto clause of the Indiana Constitution, the Court of Appeals ruled.

Bobby Harlan challenged his 10-year sentence imposed after he pleaded guilty to two counts of Class B felony child molesting for acts that occurred between 1986 and 1994. Harlan admitted to molesting a girl he and his wife babysat. According to court documents, the girl’s sister, A.C., was also molested, but he was not charged in connection to her.

A.C. wore a wire while talking to Harlan that recorded his admission to molesting L.G. twice.

He also challenged the requirement he register as a sexually violent predator.

Giving deference to Supreme Court precedent on this issue as determined in Lemmon v. Harris, 949 N.E.2d 803, 809 (Ind. 2011), and Jensen v. State, 905 N.E.2d 384 (Ind. 2009), the judges found the requirement he register is not an ex post facto violation.

They also found Wallace v. State, 905 N.E.2d 371, 374-75 (Ind. 2009), doesn’t apply because Harlan committed one of his crimes after the sex offender registration requirements took effect.

The appellate court upheld his sentence and found the trial court did not abuse its discretion in the course of identifying and weighing aggravating and mitigating factors.

Civil Tort – Intentional Infliction of Emotional Distress

David Daniel Johnson, Jr., by Next Friend, Indiana Dept. of Child Services v. The Marion County Coroner’s Office and City of Indianapolis

49A02-1111-CT-1070

The Indianapolis teenager who saw his deceased mother’s remains dragged out of their apartment on a mattress because she was extremely obese will have his claim for damages for intentional infliction of emotional distress against the coroner and city heard by the trial court.

In May 2009, then-13-year-old D.J. lived with his mother, Teresa Smith, and father, David Johnson Sr., in an apartment. Due to her weight, Smith was bedridden. D.J. called 911 after Johnson found Smith unresponsive. Police arrived and declared her dead. D.J. left the apartment at that time, but he later watched men drag Smith’s body out on the mattress, covered by a sheet, because the mortuary employees who were contracted by the coroner’s office mistakenly believed they didn’t have equipment that could transport her to the coroner’s office. A dirty carpet was tossed over her body on the back of the truck.

After contacting the coroner’s office and receiving instructions, the deputy coroner on the scene instructed Smith’s body be transported by a tow truck. Chief Deputy Coroner Alfarena Ballew, after being contacted by the deputy coroner about how to handle the transportation, did not look into whether Digger Mortuary Services could transport the body. She later discovered Digger had the equipment to do so.

D.J. filed a complaint in 2010, seeking damages for negligent and intentional infliction of emotional distress. The coroner’s office and city of Indianapolis sought summary judgment, which the trial court granted. The judge ruled the governmental actors were entitled to the law enforcement immunity pursuant to the Indiana Tort Claims Act.

The Court of Appeals reversed in part, finding the coroner’s office’s conduct in following its own rules does not fall within the definition of enforcement for purpose of immunity under the Act. By transporting Smith’s body to the office, the deputy coroner on scene was not compelling enforcement of a law against another person, but just following the law to enable a more detailed investigation, wrote Judge Patricia Riley.

The judges found that summary judgment was appropriate for the city and coroner’s office on D.J.’s claim for negligent infliction of emotional distress, but they found a genuine issue of fact regarding his claim for intentional infliction of emotional distress. The question remains whether the coroner’s office’s conduct is so outrageous that it satisfies the reckless element of the tort.
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July 20

Criminal – Probation Revocation

Devon D. Dokes, Jr. v. State of Indiana

71A03-1111-CR-503

All of the arguments made by a man as to why his probation shouldn’t have been revoked failed before the Indiana Court of Appeals.

Devon Dokes Jr. was on probation – which included a prohibition against possessing a firearm – when he was charged in 2011 with possession of a handgun by a serious violent felon. The state petitioned to revoke his probation based on this offense and for not paying probation fees.

The probation revocation hearing was held simultaneously with the bench trial on the criminal charge. Two witnesses said they saw Dokes handle the gun in question, but he was found not guilty of the criminal charge. The court did find, however, that he violated his probation, citing the possession charge.

Dokes argued that the state didn’t meet its evidentiary burden to prove he was on probation; and that because he was found not guilty on the criminal charge, the testimony that he possessed the gun was incredibly dubious and insufficient to support the probation revocation.

There’s no question that Dokes was on probation at the time he was charged with possession, the judges held, and the rule of incredibly dubious testimony doesn’t apply to his case.

They also rejected his argument that he can’t have his probation revoked because the trial judge found him not guilty of the crime.

“Because of the difference between the burden of proof required to convict someone of a crime and the burden of proof required to revoke probation, the court could revoke probation after finding Dokes not guilty based on the same evidence,” Judge Melissa May wrote.

Criminal – Murder/Sentence

James Lee Paul v. State of Indiana

82A05-1111-CR-634

Nothing about a defendant’s “extremely violent character” merited the Indiana Court of Appeals to reduce his murder sentence, the appellate judges ruled.

James Lee Paul was convicted and sentenced to 65 years for the murder of Charles Burns Jr.

Paul and Richard Wroten went to Burns’ home, where Paul beat the sleeping man in the head with a crowbar as many as 60 times. Paul had a feud with Burns’ father over Paul’s personal property.

After the murder, Paul and Wroten washed up and Paul threatened Wroten not to call the cops. Later that night, Wroten told police about what happened and where they could find Paul. The police did not know which apartment was Paul’s, but saw him through an open apartment door, working on Burns’ bicycle. Police did not have a search warrant when they announced themselves, entered his apartment, and arrested Paul. After securing a search warrant, police confiscated the bicycle and a backpack containing bloody clothes and the murder weapon.

Paul claimed the trial court’s decision to not suppress the evidence violated the Fourth Amendment. The COA found the trial court didn’t abuse its discretion in admitting the evidence because the police found themselves in a situation where they saw Paul, whom they had probable cause to believe just committed a vicious murder, while the police where standing on an exposed stairway.

“We cannot say that the trial court abused its discretion as the danger to the officers and tenants, coupled with the tampering of evidence, was an exigent circumstance that made it impracticable for the officers to obtain an arrest warrant before making the arrest,” Judge Carr Darden wrote.

The judges declined to revise his sentence, citing Paul’s “gory act” of repeatedly beating Burns as he slept.
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July 24

Civil Tort – Housing Agency/Qualified Privilege

Kelvin T. Brown v. Indianapolis Housing Agency

49A05-1111-CT-648

The Indiana Court of Appeals affirmed summary judgment for the Indianapolis Housing Agency, finding the agency had a qualified privilege to report an employee’s suspected criminal conduct while on the job.

Ex-employee Kelvin Brown sued IHA for malicious prosecution and intentional infliction of emotional distress after he was fired from work and charged with ghost employment, official misconduct and deception.

The IHA suspected based on witness accounts and the GPS system installed in his employer-provided car that Brown was dealing with matters involving non-Section 8 rental properties he owned during work hours. Brown was a Section 8 housing inspector for IHA.

Brown appeared in small claims court for a case related to one of his properties and did not properly request time off to attend court. The GPS also showed his car located at one of his properties during work when there was no reason for it to be. The cars were only used during work hours.

The prosecutor eventually dropped the charges due to evidentiary issues.

The Court of Appeals agreed with the lower court that the IHA had a qualified privilege to make a criminal complaint against Brown. This privilege has been applied to claims of defamation, false imprisonment, intentional infliction of emotional distress and negligence. The judges extended the privilege to malicious prosecution.

They found the designated evidence in the case didn’t raise a genuine issue of material fact regarding whether the privilege was abused. The evidence didn’t establish that IHA’s conduct rose to the level of extreme or outrageous, the judges ruled.•