Opinions Nov. 30, 2016

Indiana Court of Appeals
Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz
58A04-1602-CT-502
Civil tort. Affirms the Ohio Circuit Court’s grant of summary judgment in favor of Property-Owners Insurance Co. and Joe’s Construction. Finds that Mark Vinup failed to establish that a genuine issue of material fact exists on the issue of whether his status was that of an employee at the time he was injured. Also finds that under the plain language of the policy, Vinup was not a temporary worker, and the trial court did not err when it granted Property-Owners’ motion for summary judgment.

Sauntio Carter v. State of Indiana
49A04-1511-CR-1823
Criminal. Affirms Sauntio Carter’s conviction for battery resulting in bodily injury as a Class A misdemeanor. Finds that the state presented sufficient evidence to support Carter’s conviction. Judge Terry Crone concurs with separate opinion.

Judi Simek, and Scott Everett v. Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III
10A01-1603-CT-412
Civil tort. Reverses the Clark Circuit Court’s denial of Judi Simek’s motion to reconsider its previous denial of her motion to dismiss the claims filed by Christopher Nolan d/b/a Lakeside Farm LLC, and William P. McCall III. Finds that the dismissal is warranted pursuant to Indiana Rule of Trial Procedure 12(B)(2) because the trial court lacks personal jurisdiction over her as a New York resident. Remands with instructions to the trial court to dismiss Nolan and McCall’s claims against Simek.

Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet v. American Consulting, Inc., et al.
49A05-1601-PL-33
Civil plenary. Affirms preliminary injunction enforcing non-competition and non-solicitation agreements signed by Marlin A. Knowles, Jonathan A. Day and David Lancet. Affirms dissolution of injunction against Knowles.

Matthew C. Elzey, Jr. v. State of Indiana (mem. dec.)
35A02-1604-CR-783
Criminal. Affirms Matthew Elzey Jr.’s conviction of theft as a Level 6 felony and sentence to 2 ½ years in prison. Finds that the evidence is sufficient to support Elzey’s conviction, the Huntington Superior Court did not abuse its discretion in sentencing him and his sentence is not inappropriate in light of the nature of the offense and his character.

Ronnie Bradfield v. State of Indiana (mem. dec.)
34A02-1604-CR-730
Criminal. Reverses and vacates Ronnie Bradfield’s sentences to an aggregate term of 2 ½ years with two years executed and the remainder on supervised probation, and to one year to be served consecutive to his other sentence. Finds that given Bradfield’s request in his letter to court, the fact that the court did not ask him whether he waived his right to counsel at the sentencing hearing, and the importance of the right to counsel at every critical stage including sentencing, Bradfield did not knowingly and voluntarily waive his right to be represented by counsel at his sentencing hearing. Remands for a hearing to determine his eligibility for a public defender and for a resentencing where Bradfield is afforded the opportunity to be represented by counsel.

Jeremy Shrum v. State of Indiana (mem. dec.)
49A05-1604-CR-829
Criminal. Affirms Jeremy Shrum’s conviction of one count of child molesting as a Level 1 felony and sentence of 35 years in prison with five years suspended to probation. Finds that considering the totality of the evidence, a jury could reasonably infer that Shrum’s penis at least slightly penetrated his daughter’s external genitalia. Also finds that there is no basis for Shrum’s abuse of discretion argument.

Darrell A. Williams v. State of Indiana (mem. dec.)
79A02-1604-CR-782
Criminal. Affirms Darrell A. Williams’ conviction for Class C felony operating a motor vehicle after driving privileges were forfeited for life. Finds there was no violation of the state or federal constitution and the Tippecanoe Superior Court did not abuse its discretion by admitting evidence obtained as a result of the traffic stop of his vehicle.

In the Termination of the Parent-Child Relationship of J.P.: J.S. (Father) v. The Indiana Department of Child Services (mem. dec.)
49A02-1605-JT-1029
Juvenile termination of parental rights. Affirms the termination of J.S.’s parental rights to his son. Finds that the juvenile court did not abuse its discretion in denying J.S.’s motion to continue the termination hearing and that there is sufficient evidence to support the termination of his parental rights.

Kenneth Slate v. The Health and Hospital Corporation of Marion County, Indiana, Public Health Division (mem. dec.)
49A02-1603-OV-681
Local ordinance violation. Affirms the Marion Superior Court’s denial of Kenneth Slate’s Trial Rule 60(B) motion to set aside the court’s judgment against Litton Mortgage Servicing Center. Finds that the trial court did not err when it denied Slate’s motion to set aside the judgment as void for lack of personal jurisdiction and that Slate cannot show that the trial court’s judgment against him is void because of a due process violation.

Brian K. Wynne v. State of Indiana (mem. dec.)
41A04-1602-CR-307
Criminal. Affirms Brian Wynne’s conviction of burglary as a Level 4 felony and determination that he is a habitual offender. Finds that the Johnson Superior Court did not err in allowing the state to present certain evidence.

In the Term. of the Parent-Child Relationship of: A.F. (Minor Child), and D.F. (Father) v. The Ind. Dept. of Child Services (mem. dec.)
84A05-1604-JT-845
Juvenile termination of parental rights. Affirms the involuntary termination of D.F.’s parent-child relationship with his child, A.F. Finds that D.F.’s ineffective counsel claim fails because he has not shown that he was denied a fundamentally fair hearing whose facts demonstrated an accurate determination.

Zachary Clark v. State of Indiana (mem. dec.)
25A05-1606-CR-1454
Criminal. Affirms Zachary Clark’s convictions of Class B felony aggravated battery and Class C felony involuntary manslaughter. His double jeopardy challenge under the Indiana Constitution is waived and his sentence is not inappropriate.

Sammie L. Binion v. State of Indiana (mem. dec.)
20A04-1604-CR-918
Criminal. Affirms Sammie Binion’s sentence of 545 days executed in the Indiana Department of Correction for his conviction of theft as a Class D felony. Finds that Binion has not shown any error.

Corey Brown v. State of Indiana (mem. dec.)
49A02-1604-CR-738
Criminal. Affirms Corey Brown’s convictions of criminal trespass as a Class A misdemeanor and battery as a Class B misdemeanor. Finds that sufficient evidence supports Brown’s convictions.

Brent A. Clemons v. State of Indiana (mem. dec.)
66A05-1604-CR-770
Criminal. Reverses Brent Clemons’ conviction for Class A misdemeanor invasion of privacy. Affirms all of Clemons’ other convictions. Vacates the enhancement of Count 2 and reduces Clemons’ Level 5 felony stalking conviction to Level 6 felony stalking. Finds that if there were an error in the admission of State’s Exhibit J, it was harmless. Also finds that sufficient evidence was presented to support the existence of a protective order to enhance the stalking of C.C. to a Level 5 felony, but that the state presented insufficient evidence to prove the Clemons was given actual notice of the order as it related to V.W. or that he knowingly and intentionally violated that order Finally, finds that there was sufficient evidence to prove the Clemons stalked both C.C. and V.W. Remands with instructions to enter judgment consistent with this decision.

Muhamed Dugonjic v. State of Indiana (mem. dec.)
29A02-1512-CR-2281
Criminal. Affirms Muhamed Dugonjic’s convictions for Class B felony criminal deviate conduct and Class D felony sexual battery and sentence to 12 years for the Class B felony and a concurrent 1 ½-year sentence for the Class B felony. Finds that the Hamilton Superior Court acted within its discretion in instructing the jury and in its treatment of aggravators during sentencing. Also finds that the trial court did not commit reversible error in admitting evidence concerning defense counsel’s conduct or in excluding certain evidence concerning A.D.’s sexual history.

Robert Payton v. State of Indiana (mem. dec.)
20A03-1602-PC-433
Post conviction. Affirms the post-conviction court’s denial of Robert Payton’s petition for post-conviction relief. Finds that Payton cannot demonstrate that he received ineffective assistance of trial counsel. Also finds that the Indiana Supreme Court has recognized that there is no right to counsel in post-conviction proceedings. Finally, finds that the post-conviction court did not abuse its discretion when it denied Payton the opportunity to impeach his own admission.