Opinions Nov. 15, 2016

Indiana Court of Appeals
Marco A. Galindo v. State of Indiana
32A05-1607-CR-1541
Criminal. Affirms Marco Galindo’s conviction of felony murder. Finds that the Hendricks Circuit Court did not abuse its discretion when it refused to instruct the jury on involuntary manslaughter.

In the Matter of the Tr.S. and N.S. (Minor Children) and To.S. (Mother); To.S. (Mother) v. The Indiana Department of Child Services
29A02-1603-JC-680
Juvenile. Dismisses To.S’s appeal of the Hamilton Circuit Court’s Order Approving Permanency Plan and On Review Hearing. Finds that the order is not an appealable final judgment.

David D. Wooten v. Caesars Riverboat Casino, LLC and Bernard J. Chamernik
31A04-1605-CT-1037
Civil tort. Affirms the Harrison Superior Court’s judgment in favor of Bernard J. Chamernik, which concluded as a matter of law that Chamernik’s actions fell within the range of ordinary behavior of participants in the sport of golf. Finds that the inclusion of golf carts in the sport of golf is commonly understood and that an inexact operation of a cart does not render unreasonable the ordinary conduct with the game in the absence of intent or recklessness.

Fernando J. Alvarez, Jr. v. State of Indiana (mem. dec.)
02A05-1603-CR-480
Criminal. Affirms Fernando Alvarez’s convictions of residential entry, a Level 6 felony, criminal mischief, a Class B misdemeanor, and invasion of privacy, a Level 6 felony. Finds that the state presented sufficient evidence to prove that it was Alvarez who damaged Kerri Pendergrass’ front door and that Alvarez knowingly or intentionally violated the ex parte protective order. Finds that Alvarez did not tender a jury instruction on the mistake of fact defense and, thus, waived that issue for appellate review.

Isiaka Habimana v. State of Indiana (mem. dec.)
49A02-1603-CR-509
Criminal. Affirms Isiaka Habimana’s convictions of armed robbery, a Level 3 felony, robbery resulting in bodily injury, a Level 3 felony, and auto theft, a Level 6 felony. Finds that there is sufficient evidence to sustain each of Habimana’s convictions and that he failed to demonstrate that the single larceny rule applies to his case.

Daniel N. Begly v. State of Indiana (mem. dec.)
20A05-1604-CR-939
Criminal. Affirms the Elkhart Superior Court order imposing a $10,000 fine on Daniel Begley following his convictions for attempted kidnapping as a Level 5 felony, battery against a public safety officer as a Level 5 felony, resisting law enforcement as a Level 6 felony and battery as a Class A misdemeanor. Finds that Indiana Code unambiguously provides that where the court suspends payment of a fine, as in Begly’s case, no hearing on a defendant’s ability to pay the fine will be conducted until it is due and that Begly’s contention to the contrary is without merit.

Angela Crim n/k/a Angela Domagalski v. Elias Crim (mem. dec.)
64A05-1603-DR-527
Domestic relations. Affirms the Porter Superior Court’s post-secondary education expenses order and attorney fee award against Angela Domagalski following a bench trial on Elias Crim’s post-dissolution petition to modify child support. Finds that Domagalski failed to establish a prima facie case that the trial court erred in its apportionment of post-secondary educational expenses for Domagalski’s daughter. Also finds that the trial court did not abuse its discretion when it considered Domagalski’s failure to cooperate in the proceedings and failure to appear before the court as ordered when making its attorney fees determination and that Domagalski failed to show that the trial court was biased against her.

Cissy Chantel Mae Russell v. State of Indiana (mem. dec.)
90A02-1602-CR-355
Criminal. Affirms Cissy Chantel Mae Russell’s conviction for burglary as a Level 4 felony. Finds that the Wells Circuit Court did not abuse its discretion in admitting State’s Exhibit 24 as evidence and detective testimony related to that exhibit. Finds that the state presented sufficient evidence to support Russell’s burglary conviction.

Albert B. Lucero, III v. State of Indiana (mem. dec.)
45A03-1603-CR-639
Criminal. Affirms Albert B. Lucero III’s convictions for child molesting as a Level 4 felony and performing sexual conduct in the presence of a minor as a Level 6 felony and his habitual offender enhancement. Finds that the Lake Superior Court was within its discretion when it excluded Lucero from the remainder of his sentencing hearing after he repeatedly interrupted both the court and the lawyers. Also finds that because Lucero’s admission to the habitual offender enhancement was a guilty plea, he cannot challenge his plea or the enhancement on direct appeal. Finally, finds that Lucero’s sentence is not inappropriate given the nature of the offenses and his character.

Andrew Lamont Swanson v. State of Indiana (mem. dec.)
73A01-1604-CR-967
Criminal. Affirms Andrew Lamont Swanson’s sentence to an aggregate term of two year executed in the Department of Correction following his convictions for identity deception as a Level 6 felony and driving while license suspended as a Class A misdemeanor, pursuant to a guilty plea. Holds that because Swanson agreed to a two-year executed sentence in the DOC as part of his plea agreement, he may not challenge the appropriateness of his sentence or his placement in this direct appeal.

In the Matter of Jo.K. and L.K. (Minor Children in Need of Services), Ja.K. (Mother) and L.K. (Father) v. Indiana Department of Child Services (mem. dec.)
53A04-1603-JC-711
Juvenile. Affirms a juvenile court’s order finding Ja.K. and L.K.’s children, Jo.K and L.K., to be children in need of services. Finds that the evidence is sufficient to support the juvenile court’s adjudication.

In the Termination of the Parent-Child Relationship of: B.R. (Minor Child) and M.R. (Father) v. The Indiana Department of Child Services (mem. dec.)
29A04-1602-JT-353
Juvenile termination of parental rights. Affirms the termination of M.R.’s parental rights upon the petition of the Indiana Department of Child Services. Finds that clear and convincing evidence supports the judgment terminating his parental rights.

Vincent Morford v. TLC Express, LLC, d/b/a Indy Expediting (mem. dec.)
49A02-1603-PL-642
Civil plenary. Affirms the Marion Superior Court’s decision to grant summary judgment to Indy Expediting on Vincent Morford’s claim of intentional interference with an economic relationship and blacklisting. Finds that Indy Expediting was justified in its disclosures to Morford’s subsequent employer and that the truthfulness of the content of such disclosures was supported by the record.

Craig Bright v. State of Indiana (mem. dec.)
27A05-1604-CR-887
Criminal. Affirms the Grant Superior Court’s revocation of Craig Bright’s probation and the imposition of his previously suspended sentence of eight years with six years executed and two years suspended to supervised probation. Finds that the trial court did not abuse its discretion in revoking Bright’s probation and ordering him to serve the remainder of his sentence.

In re the Marriage of: Reed Stoeckley v. Christina Stoeckley (mem. dec.)
34A05-1604-DR-994
Domestic relations. Affirms the Howard Superior Court order granting Christina Stoeckley’s motion to modify Reed Stoeckley’s parenting time with their children. Finds that the trial court’s order is not clearly erroneous and is supported by sufficient evidence.

Charles J. Bise v. State of Indiana (mem. dec.)
33A04-1604-CR-885
Criminal. Affirms the revocation of Charles J. Bise’s probation. Finds that the Henry Circuit Court properly found by a preponderance of the evidence that Bise violated probation by abusing alcohol, and that it did not abuse its discretion by ordering him to serve the rest of his sentence in prison.

Freddie L. Alcantar, Jr. v. State of Indiana (mem. dec.)
02A03-1512-CR-2284
Criminal. Affirms Freddie Alcantar’s murder conviction. Finds that because Alcantar’s counsel did not request a continuance after a discovery violation and declined the continuance offered by the Allen Superior Court, he waived appellate review of the issue. Also finds that the trial court did not abuse its discretion in admitting expert testimony, based on Rule Ind. R. of Evid. 702, on the use of the “2p” formula to calculate minor-profile DNA.

Jacqueline K. Durham v. Brandon D. Scott, Adam J. Scott, Raymond E. Decker, and Dianne J. Decker (mem. dec.)
88A05-1604-PL-902
Civil plenary. Affirms the Washington Circuit Court’s denial of Jacqueline K. Durham’s motion for judgment on the pleadings in her action for ejectment, eviction, quiet title and replevin against Brandon D. Scott, Adam J. Scott, Raymond E. Decker and Dianne J. Decker. Finds that the trial court clearly did not consider the extraneous matters and ruled on Durham’s motion as a motion for judgment on the pleadings rather than as one for summary judgment. Also finds that based on pleadings alone, and taking all of the well-pleaded assertions as true, the Court of Appeals cannot say that Durham’s joint tenancy automatically entitles her to an order or ejectment, eviction, quiet title and replevin. Remands for further proceedings.

Shawn Towell v. State of Indiana (mem. dec.)
01A02-1603-CR-449
Criminal. Affirms eight of Shawn Towell’s 10 criminal convictions and his aggregate 40-year sentence. Remands to the Adams Circuit Court with instructions to vacate Towell’s one of his convictions for dealing in methamphetamine and his conviction of possession of meth. Finds that Towell was subjected to double jeopardy when he was convicted of two counts of dealing in meth and one count of possession of meth. Also finds that based upon the instant record, Towell was not denied a fair trial, he has not demonstrated that the trial court abused its sentencing discretion, the trial court did not impose an inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant appellate revision.