Justices take 3 new cases, split on others

The Indiana Supreme Court approved transfer to three cases last week involving duties of social hosts, compensation for teachers’ ancillary duties and jury instructions in a drunken-driving case. Justices were split 3-2 on four other petitions for transfer.

Justices granted transfer in these cases:

• In F. John Rogers v. Angela Martin, 02A05-1506-CT-520, the COA ruled the host of a birthday party for her live-in boyfriend had a duty to render aid to a guest she saw unconscious after he’d been drinking and involved in a fight, and who later died. “(T)he trial court erroneously granted summary judgment to Martin on the Appellants’ Dram Shop Act claim,” Judge Michael Barnes wrote for the panel that reversed a trial court grant of summary judgment in favor of the defendants. “(W)e conclude that Martin, as a social host, owed (Paul) Michalik a duty render aid, and questions of fact remain regarding whether she breached that duty.”

• In Jay Classroom Teachers Association v. Jay School Association, 49A05-1412-PL-586, the COA ruled the order of the Indiana Education Employment Relations Board affirmed by a trial court contained errors. “We find … a teacher can receive additional compensation for ancillary duties, and that covering another teacher’s class during the normal workday can be a compensable ancillary duty outside the scope of normal teaching duties — where both parties agreed to the same additional-compensation provision and included it in their respective (last best offers),” Chief Judge Nancy Vaidik wrote for the panel. The COA also ruled a provision that allowed the school superintendent to set salaries for people hired after the beginning of the school year was impermissible and should have been stricken by the board.

• In Dannie Carl Pattison v. State of Indiana, 27A05-1411-CR-517, Dannie Carl Pattison argued an instruction given at his drunken driving trial for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.08 percent or more was improper. The instruction said if the evidence establishes that a chemical test was performed within three hours and the person charged had at least 0.08 percent of alcohol in 210 liters of the person’s breath, the jury shall presume that Pattison had an ACE of at least 0.08 percent at the time he operated the vehicle. The last sentence of the instruction said the presumption is rebuttable; Pattison argued the presumption created in the instruction unconstitutionally shifted the burden of proof to him. The Court of Appeals agreed, noting the instruction was essentially the same one given in Hall v. State, 560 N.E.2d 561, 563 (Ind. Ct. App. 1990).

Four decisions were not granted transfer by 3-2 votes. James E. Pugh v. State of Indiana, 15A04-1503-CR-131, was a not-for-publication decision affirming a 30-year sentence for conviction of Class A felony dealing in a controlled substance, which justices Brent Dickson and Robert Rucker voted to transfer. Dickson and Rucker also dissented in the decision denying transfer in Derrick Hicks v. State of Indiana, 49A02-1504-CR-195.

In Hicks, the COA affirmed convictions of child molesting as a Class A felony and a Class C felony; Class A felony attempted child molesting; two counts of rape and one count of incest as Class B felonies; and Class D felony battery. The COA reversed in part and remanded for resentencing of Hicks’ 70-year prison term because one Class B felony conviction carried an excessive 50-year sentence, and the sentencing order did not state which sentences are to be served consecutively or concurrently.

Chief Justice Loretta Rush and Rucker voted to transfer KE v Indiana Department of Child Services, 49A05-1505-JT-437, and Jordan Gray v State of Indiana, 49A05-1409-CR-424, but the other three justices denied them. KE affirmed a parent’s termination of parental rights and Jordan Gray affirmed Gray’s convictions of murder, attempted murder and carrying a handgun without a license.

Justices denied transfer in 24 cases. Weekly Supreme Court transfer dispositions may be viewed here.