Indiana Court decisions – Feb. 15-28, 2018

Indiana Supreme Court

Feb. 15

Criminal — Life Without Parole

Mathew W. McCallister v. State of Indiana

87S00-1609-LW-497

A southern Indiana man convicted of murder in the shooting death of a man at a power plant will spend the rest of his life in prison after the Indiana Supreme Court upheld his sentence of life without parole.

The court handed down its decision in Mathew W. McCallister v. State of Indiana, 87S00-1600-LW-497. The case began in 2014, when Mathew McCallister lived with his girlfriend, Kelli Wyrick, in hotels in Evansville with friend Shawn Grigsby and his girlfriend.

One night when the couples, McCallister’s sister, Jade Stigall, David Lackey and Joseph Nelson were gathered in adjoining rooms at a local Fairfield Inn to smoke methamphetamine, Nelson made an unwanted sexual advance toward Stigall while the two were alone. When McCallister learned of the situation, he asked his friends to take Nelson to a nearby convenience store.

McCallister and Wyrick met Nelson at the convenience store and began driving with Stigall and Nelson toward a rural area in Warrick County. During the drive, McCallister told Nelson to “start making amends” with God and asked Grigsby if he had the magazine of his handgun.

McCallister directed his sister to park near a remote coal mine in Warrick County, and Grigsby gave his gun to McCallister. Stigall then saw Nelson on his knees, heard a pop and saw a flash come from the gun as McCallister shot him in the back of the head.

After McCallister dropped the gun down a sewer drain, the group returned to the hotel and later burned the clothes they had been wearing. Nelson’s body was found later that morning in a coal-conveyor chute at the local Alcoa plant, having been sent to the plant on a train car from the mine.

When hotel surveillance footage implicated Grigsby, Stigall and Lackey in the murder, Stigall confessed and took police to the drain and burn pile, while Lackey took officers to the murder site. Grigsby and Stigall then testified against McCallister at his July 2016 murder trial, where he was convicted of murder and conspiracy to commit murder and sentenced to life without parole on the murder charge.

In his direct appeal to the Indiana Supreme Court, McCallister first argued his convictions were not supported by sufficient evidence. But the unanimous court disagreed, with Justice Geoffrey Slaughter writing that while there was conflicting evidence as to whether McCallister pulled the trigger, other evidence — including video surveillance and his sister’s testimony — supported the jury’s verdict.

Further, corroborating testimony from Grigsby and “a wealth of circumstantial evidence” defeated McCallister’s argument that Stigall’s testimony was incredibly dubious, Slaughter said. And looking to the conspiracy charge, the court found “ample evidence to allow the jury to infer all three elements of a conspiracy: intent to commit a felony, agreement with another person to commit the felony, and an overt act in furtherance of the agreement.”

Slaughter then wrote the trial court did not reversibly err in the admission of evidence, including hotel surveillance footage, a jailhouse recording between McCallister and his girlfriend and communications from the participants’ cellphones. The admission of the footage did not prejudice McCallister’s substantive rights, the justice wrote, while McCallister was notified his jailhouse conversations would be monitored and there was a sufficient foundation for the admission of the mobile phone conversations.

Finally, the high court affirmed McCallister’s LWOP sentence, finding the jury was entitled to give weight to the aggravator that he was on parole at the time of the murder when deciding his sentence. Further, the pre-meditated, execution-style murder of Nelson — as well as his criminal history — meant the sentence was not inappropriate.
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Feb. 16

Criminal — Voluntary Manslaughter

Billy Brantley v. State of Indiana

18S-CR-98

In an unusual case involving a voluntary manslaughter charge being brought without a related murder charge, the Indiana Supreme Court has ruled that voluntary manslaughter can be brought as a standalone charge, and a Marion County man’s conviction on that charge was proper.

In Billy Brantley v. State of Indiana, 18S-CR-98, Billy Brantley lived with his sister and her husband, Bruce Gunn in Indianapolis. Gunn suffered from physical and mental health issues, leading to frequent and often violent arguments in the home.

On the morning of July 14, 2014, Brantley drove to a job interview in a high-crime area, taking a gun along for protection. When he returned home later that morning, the couple was once again fighting, with Gunn screaming and acting belligerent.  

Gunn then told Brantley he was “getting ready to get rid of all (his) problems right now” and lunged from his chair, clenching something shiny in his fist. Fearing the object was a knife — Gunn was known for keeping sharp objects — and fearing for his life, Brantley drew his gun and fired.

The shot killed Gunn, who was later discovered to have been clutching his glasses. The state charged Brantley with voluntary manslaughter, but both he and his sister testified that he was acting in self-defense. The jury was instructed on voluntary manslaughter and on the definition of sudden heat, with the instructions noting the state had conceded sudden heat in choosing to charge Brantley with voluntary manslaughter instead of murder.  

A jury convicted Brantley, but a majority of the Indiana Court of Appeals reversed nearly one year ago. Judge Edward Najam wrote for the majority the state was barred from retrial because it failed to present sufficient evidence that Brantley acted with sudden heat.

But in a Feb. 16 opinion, the Indiana Supreme Court granted transfer and unanimously affirmed Brantley’s conviction.

Justice Mark Massa initially noted that voluntary manslaughter is defined separately from murder in Indiana code, so it may be brought as a standalone charge. But in a footnote, Massa agreed with the Court of Appeals that the legality of bringing the standalone charge “does not mean the State selected a wise course.”

“Murder and voluntary manslaughter both require a knowing killing; whether culpability is mitigated by sudden heat is best left to a factfinder to determine, and avoids the thicket we must cut through today,” he wrote.

The court then determined sudden heat is a mitigating factor to a freestanding charge of voluntary manslaughter, but found that under Watts v. State, 885 N.E.2d 1228 (Ind. 2008), there must be actual evidence of its existence, not just a concession. Here, that evidence existed in the form of Brantley’s testimony regarding the chaos at the time of the shooting, Gunn’s history of mental illness and his penchant for keeping sharp objects in his chair.

Finally, the court found the instruction on sudden heat did not nullify Brantley’s claim of self-defense, as he argued on appeal.

“As with most cases, the jury here was faced with two stories: one where Brantley acted irrationally out of sudden heat, the other where Brantley acted rationally in self-defense,” Massa wrote. “These explanations for Brantley’s actions are not conflicting since the nature of each defense is different, and it was within the province of the jury to weigh the evidence and assess witness credibility in arriving at its verdict.”

Indiana Court of Appeals

Feb. 19

Juvenile — Child in Need of Services

In the Matter of E.Y., Child in Need of Services, and U.F. (Mother) v. Indiana Department of Child Services

49A02-1707-JC-1634

The Indiana Court of Appeals has reversed a finding that a Marion County child was a child in need of services, with the majority of the appellate panel finding insufficient evidence to support the determination. The dissenting judge, however, urged caution in the face of a potentially dangerous situation.

After receiving a tip that U.F. might be in crisis, Indianapolis Metropolitan Police Department Office Joshua Morgan to visit the hotel where U.F. was staying with her adoptive son, E.Y. U.F. claimed to be hearing voices through the television, so Morgan contacted E.Y.’s maternal grandmother to pick him up from school while U.F. was taken to the hospital.

E.Y. was also sent to the hospital for treatment for his asthma, which was untreated at that time. The Department of Child Services then placed E.Y. in foster care and filed a petition alleging he was a child in need of services due to U.F.’s mental problems and lack of stable housing.

The department also referred U.F. to home-based services, but she did not participate. The Marion Superior Court ultimately granted the CHINS petition, but a divided Indiana Court of Appeals reversed that decision in In the Matter of E.Y., Child in Need of Services, and U.F. (Mother) v. Indiana Department of Child Services, 49A02-1707-JC-1634.

Judge Edward Najam, writing for the majority joined by Judge Paul Mathias, said DCS failed to prove E.Y. was in danger, or that his needs were unmet. Najam further noted that DCS did not provide evidence of an official mental illness diagnosis for U.F., nor did it present evidence of what impact, if any, U.F.’s purported mental illness had on E.Y.

“Indeed, the evidence does not support a reasonable inference that, at the time of the fact-finding hearing, Mother’s mental health endangered child at all, let alone that her mental health seriously endangered him,” the judge wrote. “To the contrary, (a home-based therapist) expressly acknowledge that Mother was meeting Child’s needs.”

Further, though U.F. was moving out of the hotel when Morgan her, DCS presented no other evidence that she and E.Y. were homeless or moved around frequently, Najam said. Thus, there was insufficient evidence to support the finding that she lacked stable housing, so the majority reversed the CHINS determination.

Judge Michael Barnes, however, dissented, writing separately that E.Y.’s untreated asthma was a possible medical risk that could endanger his life. Barnes further noted that the limited evidence supporting the determination at the fact-finding hearing was largely due to U.F.’s refusal to cooperate or communicate with DCS.

Similarly, looking to U.F.’s mental health, Barnes said the lack of an official diagnosis should not prevent the court from considering the observations of the professionals who worked on the case.

“I believe the majority places DCS in the impossible situation of having good reason to suspect Mother has a mental illness but lacking the means to prove that she has one because there is no CHINS finding and it cannot force Mother to undergo a psychological evaluation and therefore, it cannot prove E.Y. is a CHINS,” he wrote. “I believe it is prudent to err on the side of caution and not allow a potentially dangerous situation to fester.”
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Feb. 20

Civil Plenary — Special Legislation

City of Hammond v. Herman & Kittle Properties, Inc.

49A04-1612-PL-2784

A fee collection statute the city of Hammond alleged was enacted for the benefit of only two Indiana cities must be struck from Indiana law after the Indiana Court of Appeals determined Monday the statute violated special legislation restrictions in the Indiana Constitution.

In City of Hammond v. Herman & Kittle Properties, Inc., 49A04-1612-PL-2784, the city of Hammond enacted an ordinance in 1961 establishing an inspection program for local hotel and rooming houses, which were required to pay an annual inspection fee of $5. The annual fee rose over the years to $80 in 2010, while operators of the rental units were also required to register their properties annually.

Then in 2014, the Indiana General Assembly amended Indiana Code section 36-1-20-5 to allow for annual registration fees of no more than $5, unless a city had created a rental registration and inspection program prior to July 1, 1984. The statute was amended again in 2015 to change the definition of a “rental registration or inspection program” in such a way that excluded Hammond from the fee exemption. Only Bloomington and West Lafayette were covered by the fee exemption under the 2015 legislation.

Meanwhile in 2014, Hammond sought to collect $85,840 from Kerman & Kittle Properties, Inc. — a local rental property management company — for unpaid registration fees. The property management disputed that amount, telling the city it assumed the $80 fees would be pro-rated after June 30, 2014, when the $5 fee restriction was set to go in place.

Hammond responded with a declaratory judgment action, alleging that because its rental registration or inspection program was created before July 1, 1984, it was covered by the fee exemption. When the amended statute went into effect in 2015, the city added two new counts alleging I.C.36-1-20-5 violated Article 4, Sections 22 and 23 of the Indiana Constitution.

In a summary judgment motion, Hammond alleged the exemption was intended to benefit only Bloomington and West Lafayette, an unconstitutional position that led to the 2015 amendment. The Marion Superior Court granted the city’s summary judgment motion as it related to its first complaint, finding Hammond was entitled to collect fees from HKP in 2014.

However, the court granted HKP’s summary judgment motions on the constitutional claims, finding the “fees” referenced in the Indiana constitution were not the same as the fees in question here, and that “Bloomington and West Lafayette are unique in ways that justified their exemption from the Fee Restriction” considering their extensive rental housing markets. Hammond appealed, and the Indiana Court of Appeals reversed the grant of summary judgment to Herman Kittle Properties in a 56-page opinion.

Judge Margret Robb, writing for the unanimous panel, initially noted Hammond had standing to bring its constitutional challenge because it had a direct stake in the outcome of the litigation and would sustain an injury if the statute is upheld. She then agreed with the city that I.C. 36-1-20-5 violates of Article 4 Section 22, writing that caselaw related to Section 22 has found that fees set by the state should apply uniformly.

“Section 36-1-20-5 relates to fees for rental registration programs and allows Bloomington and West Lafayette and only Bloomington and West Lafayette to charge a fee different than all other political subdivisions in the state,” she wrote. “Section 36-1-20-5 therefore runs afoul of Article 4, Section 22, which prohibits special laws relating to fees or salaries.”

Similarly, the court determined the statute violates Article 4, Section 23, with Robb writing the legislative amendments were intentionally passed to subject every city except Bloomington and West Lafayette to the fee restriction.

“Here, the alleged ‘unique characteristics’ offered to justify the fee exemption being applicable to only Bloomington and West Lafayette are their positions as home to the largest college campuses in the state with the highest percent of both rental housing generally and rental housing occupied by ‘unsophisticated, first-time renters’ in particular, and ‘by far the longest history of regulating all landlords in their housing markets via rental registration and inspection programs,’” Robb wrote.

“While it may be true those are circumstances unique to Bloomington and West Lafayette, there is no obvious connection between those characteristics and the statute allowing those cities and those cities alone to charge any rental registration fee they want, while restricting all others to a very minimal fee,” she continued.

Finally, the court determined the legislative history of I.C. 36-1-20-5 would not have passed without the exemption, so the entire statute, not just the exemption, must be stricken. The judges remanded the case for further proceedings.
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Feb. 22

Juvenile Delinquency — Statement to School Official

D.Z. v. State of Indiana

32A05-1708-JV-1907

A divided Indiana Court of Appeals panel has reversed a delinquency finding against a high school student who vandalized school bathrooms, with each judge writing separately to share their views on how the increased presence of police officers in schools can impact the nature of school disciplinary proceedings.

In D.Z. v. State of Indiana, 32A05-1708-JV-1907, 17-year-old D.Z. was identified as a suspect in a rash of vandalism in the boys’ restrooms at Brownsburg High School. Assistant principal Demetrius Dowler — who worked with school resource officer Nathan Flynn to identify D.Z. as the suspect — questioned the student about about the vandalism in his office without notifying D.Z.’s parents of the “discussion” or telling D.Z. he had a right not to answer questions.

When D.Z. confessed to the vandalism to Dowler, Flynn entered Dowler’s office and spoke to the student, also without informing him of his rights, contacting an adult or recording the interview. Dowler informed D.Z. he would be suspended for five days, while Flynn told him he would be charged with a crime.

When the state filed a delinquency petition alleging the 17-year-old had committed what would be criminal mischief and harassment if committed by an adult, Flynn’s testimony regarding D.Z.’s incriminating statements were suppressed at a subsequent fact-finding hearing because the student had not been Mirandized. The juvenile court then entered a true finding only on the criminal mischief allegation, a Class B misdemeanor if committed by an adult.

A divided panel of the Indiana Court of Appeals reversed D.Z.’s adjudication Feb. 22, with each of the three judges writing separate opinions explaining their positions. Judge Patricia Riley authored the majority opinion, focusing the opinion on how the trend toward juvenile justice interventions in American schools “can serve to change the nature of questioning a student for purposes of school discipline into a criminal investigation.” Here, the nature of the questioning of D.Z. was one of a custodial interrogation requiring advisement of his Miranda rights, Riley wrote.

“No reasonable student would have believed that he was at liberty to leave the office – it is undeniable that juveniles are susceptible to the influence of authority figures and the constraining effect of being in a controlled setting of a school, where ‘disobedience (can be) cause for disciplinary action,’” she wrote. “…Police officers cannot avoid their duty under Miranda by attempting to have someone act as their agent in order to bypass the Miranda requirements.”

Thus, the majority found the juvenile court abused its discretion by admitting D.Z.’s incriminating statements to Dowler and reversed the delinquency finding. Judge John Baker joined Riley in the majority ruling, but wrote separately that the state put forth a compelling argument when it alleged D.Z.’s discussion with Dowler was “merely a school disciplinary hearing.”

“Unfortunately, I believe it ignores the reality of today’s school hallways,” Baker wrote. “The frequent – in some places, constant – presence of officers in our schools has, in my view, changed the nature of the school disciplinary process.”

Judge Elaine Brown, however, dissented, writing in her opinion that Dowler’s investigation and discussion with D.Z. was an attempt to restore order after the vandalism — which was sexual in nature and targeted specific female students — was posted on social media.

“To the extent that the majority asserts that school and law enforcement investigations became ‘inextricably intertwined’ or that Dowler’s questioning amounted to an ‘interrogation, geared toward a criminal proceeding,’ the record does not indicate that Dowler acted as Officer Flynn’s agent in an attempt to bypass any Miranda requirements,” Brown wrote. “Rather, the situation here is similar to State v. C.D., where an investigation, first initiated by a school official, is subsequently assisted by a law enforcement officer, who is not independently investigating the matter.”

Similar to the holding in C.D., Brown said she would find here that there was no Miranda violation in the context of the statements D.Z. made to Dowler before Flynn was present.
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Feb. 27

Civil Plenary — Homeowner’s Association

Craig D. Severance and Catherine Severance v. The Pleasant View Homeowners Association, Inc.

29A02-1708-PL-1695

A Hamilton County dispute between a local couple and their homeowners association will return to the trial court after the Indiana Court of Appeals determined the trial court’s final order was based on erroneous findings.

When Craig and Catherine Severance began operating a commercial limousine business out of their Hamilton County home in the Pleasant View subdivision, the Pleasant View Homeowners Association filed a complaint alleging the couple was parking their commercial vehicles on their lot and in the street in violation of neighborhood covenants. The Hamilton Superior Court granted a preliminary injunction that prohibited the couple from parking their business vehicles outdoors within the subdivision.

The Severances filed objections to the preliminary injunction, alleging irregularities in the election and/or appointment of HOA board members meant the board was without authority to sue them on behalf of the HOA. Meanwhile, the HOA sought a permanent injunction, but the trial court declined to enter one in November 2016 because the HOA was “clearly a dysfunctional entity” operating without authority. The court also dissolved the temporary restraining order.

The court reserved the issue of damages for a later date, and the Severances sought the damages, specifically attorney fees, in February 2017. The HOA, however, pointed the court to recently passed legislation in Indiana Code section 32-25.5-3-11, which it claimed nullified the couple’s argument regarding the association’s ability to enforce the neighborhood covenants.

The trial court ultimately denied damages to the Severances and upheld the denial of a permanent injunction in June 2017, leading to the instant cross-appeals. The Indiana Court of Appeals overturned that decision in a Tuesday opinion, with Judge Terry Crone writing the November 2016 order was not a final order, as the trial judge believed, because it left open the issue of damages.

Thus, the findings in the June 2017 order were based on the erroneous assumption that the November 2016 order was final, “thus limiting the issues available for the trial court’s consideration,” Crone said. The appellate panel remanded the case for an evidentiary hearing on the merits of issuing a permanent injunction. In a footnote, Crone said the trial court should consider I.C. 32-25.5-3-11 when hearing the case on remand.

The case is Craig D. Severance and Catherine Severance v. The Pleasant View Homeowners Association, Inc., 29A02-1708-PL-1695.

Civil Collection — Full Faith and Credit Clause

EBF Partners, LLC v. Evolving Solutions Inc. d/b/a, et al.

49A05-1710-CC-2384

The Indiana Court of Appeals has reversed a decision to set aside judgment in favor of a New York company serving as a creditor to an Indiana business, finding Indiana law regarding cognovit notes cannot supersede the Full Faith and Credit Clause in a dispute over a New York judgment.  

In July 2016, Evolving Solutions, Inc. agreed to sell $69,000 of its future proceeds to EBF Partners, LLC – a Delaware company doing business in New York – for a $50,000 purchase price. Evolving president Frank Terranova executed a cognovit note and personal guaranty requiring his company to make regular payments to EBF until the full $69,000 had been paid out.

Less than one month after the agreement began, EBF stopped receiving payments and, thus, obtained a confessed judgment from a court in New York, which Evolving had previously agreed would have jurisdiction. EBF then moved to domesticate the judgment in the Marion Superior Court, but Evolving challenged that motion. The trial court entered judgment against Evolving in March 2017. Evolving then filed an Indiana Trial Rule 60(B) motion to set aside judgment, alleging its counsel had not received notice of the entry of judgment and was not aware of the final judgment until June or July 2017. The trial court agreed to set the judgment aside, but the Indiana Court of Appeals reversed that decision in EBF Partners, LLC v. Evolving Solutions, Inc. d/b/a, et al., 49A05-1710-CC-2384.

Judge Mark Bailey wrote in a Feb. 27 opinion that neither the Trial Rule 60(B) motion nor the appealed order specified a particular ground for relief for judgment. Further, assuming Evolving had established at least one ground for relief, the company failed to allege a meritorious defense.

“In seeking relief, Evolving made no allegation that the New York court lacked adjudicatory authority or that EBF had not actually obtained a final judgment that was valid under New York law; in fact, Evolving conceded that New York ‘allows for’ confessed judgments,” the judge wrote. “Moreover, Evolving did not allege EBF’s petition to domesticate the judgment was somehow deficient. Rather, Evolving’s Trial Rule 60(B) motion relied on principles of Indiana law that cannot surmount the mandates of the Full Faith and Credit Clause.”

In a separate concurring opinion, Judge Rudolph Pyle agreed the Full Faith and Credit Clause required reversal in this case, but also noted that cognovit notes are prohibited in Indiana.

“This fact would likely make the confession of judgment unenforceable,” Pyle wrote. “But, that is a matter for the trial court in the State of New York.”

Civil Collection — Summary Judgment

Alexander Holmes v. National Collegiate Student Loan Trust

87A05-1711-CC-2517

A Warrick County man won his appeal in a student loan dispute after the Indiana Court of Appeals determined the alleged holder of his son’s student loan failed to prove it was entitled to an $18,000 summary judgment ruling.

In Alexander Holmes v. National Collegiate Student Loan Trust, 87A05-1711-CC-2517, Alexander Holmes co-signed a loan with Charter One Bank on behalf of his son, Nicholas, who planned to attend the University of Southern Indiana from August 2006 through May 2007. Then in March 2007, Charter One sold a pool of student loans — allegedly including Holmes’ — to National Collegiate Funding LLC, which sold the loans to the National Collegiate Student Loan Trust.

More than 10 years later, the trust filed a complaint alleging Holmes owed $16,578.60 plus interest. Holmes argued NCSLT lacked standing to bring its claim against him, then, in response to a summary judgment motion, alleged the trust failed to prove it owned his account and had presented inadmissible evidence.

The Warrick Superior Court granted the trust’s summary judgment motion and ordered Holmes to pay $18,183.26, plus interest. After the court denied his motion to correct error, Holmes appealed, and the Indiana Court of Appeals reversed Feb. 27.

In support of its summary judgment motion, NCSLT designate the affidavit of Jacqueline Jefferis, an employee of the trust’s “special servicer” who claimed to be the “designated custodian of records,” making her competent to testify about Holmes’ loan and business records attached to her affidavit. The loan contract between Holmes and Charter was among the attached documents, but the affidavit offered no testimony to support the admission of the contract under the business records exception to the hearsay rule, Judge Terry Crone wrote.

“There was no testimony to indicate that Jefferis was familiar with or had personal knowledge of the regular business practices or record keeping of Charter One Bank, the loan originator, or that of NCSLT regarding the transfer of pooled loans, such that she could testify as to the reliability and authenticity of those documents,” Crone wrote. “Indeed, Jefferis offered no evidence to indicate that those records were made at or near the time of the business activities in question by someone with knowledge, that the records were kept in the course of the regularly conducted activities of either Charter One of NCSLT, and that making the records was part of the regularly conducted business activities of those third-party businesses.”

Thus, summary judgment in favor of the trust was reversed, and the case was remanded for further proceedings.
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Feb. 28

Criminal — Child Molesting/Credit Restricted Felon Statute

Christopher D. McCoy v. State of Indiana

10A05-1703-CR-681

The Indiana Court of Appeals ruled that defendants who plead guilty to lower-level felony counts of child molesting are not subject to good-time credit restrictions, even if they do not dispute allegations of molestation that would subject them to loss of credit time.

“We must decide whether a person who pleads guilty to charges of molestation by ‘fondling or touching’ — but in doing so does not dispute evidence that his molestation included deviate/other sexual conduct (in this case, oral sex and vaginal penetration with an object) — has been ‘convicted’ of child molesting involving deviate/other sexual conduct for purposes of the credit-restricted-felon statute. We hold that he has not,” Chief Judge Nancy Vaidik wrote for the panel.

Christopher McCoy, 37, was accused in December 2014 of molesting an 11-year-old girl. He was charged with multiple counts, including two of the highest-level felony — a Class A felony and a Level 1 felony — for allegedly having sexual intercourse with the victim.

In January 2017, McCoy pleaded to two lesser counts — a Class C felony and a Level 4 felony — which alleged sexual fondling or touching. He was sentenced to serve 12 years as a credit restricted felon, so that he would earn one day of good-time credit for every six days served, rather than one day per every three days served, as most inmates are credited.

But Vaidik wrote that this restriction cannot apply to McCoy or others who plead guilty to charge less than a qualifying Level 1 or Level 2 child molesting offense.

“Because McCoy has not been convicted of an offense under subsection (a) of the child-molesting statute (Indiana Code section 35-42-4-3), Section 35-31.5-2-72(1) cannot apply to him, and the trial court erred by designating him a credit-restricted felon. Therefore, on remand, the trial court must remove that designation and notify the Department of Correction accordingly,” Vaidik wrote.

The case is Christopher D. McCoy v. State of Indiana,10A05-1703-CR-681.

Criminal — Possession of a Firearm By a Serious Violent Felon

Khalil Jalon Payne v. State of Indiana

79A02-1707-CR-1606

A man’s conviction of possession of a firearm as a serious violent felon was reversed by a divided Indiana Court of Appeals, which found his signature on an underlying robbery plea agreement had not been authenticated.

Khalil Jalon Payne’s conviction of that Level 4 felony was vacated due to evidence a majority of the COA panel found was insufficient to support the conviction. Payne was arrested after Lafayette police responding to a call found a duffle bag in the common area of an apartment building containing a gun and clothes belonging to Payne.

Payne was convicted of unlawful possession of a firearm by a serious violent felon as well as Level 6 felony possession of a synthetic drug and misdemeanor counts of carrying a handgun without a license and possession of a synthetic drug. He was sentenced to nine years on the SVF charge.

But writing for the majority in Khalil Jalon Payne v. State of Indiana, 79A02-1707-CR-1606, Judge Rudolph Pyle III found that evidence the state submitted did not support Payne’s prior robbery conviction, which formed the basis of the SVF conviction. Payne’s purported signature on a robbery plea agreement was the only evidence the state relied on, which Pyle and Judge Mark Bailey concluded was not enough.

“Here, the state did not introduce expert or non-expert testimony to authenticate the signature; nor did Payne admit that the signature was his,” the majority held. “… As this court has already held that a defendant’s name and birth date, alone, are not sufficient to prove identity, we conclude that there was not sufficient evidence to prove that Payne had previously committed the robbery and, therefore, qualified as and SVF.” The court cited Livingston v. State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989).

Evidence, however, was sufficient to support Payne’s lesser convictions, and there were no double-jeopardy concerns, the panel held.

Dissenting judge James Kirsch wrote that he would have affirmed the trial court in all respects. He cited Walker v. State, 988 N.E.2d 1181, 1187 (Ind. Ct. App. 2013) (quoting Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988), trans. denied, for the proposition that proof of a defendant’s identity “may be in the form of circumstantial evidence.” He said there was ample such evidence in this case.

Civil Tort — Default Judgment/Excusable Neglect

Genia Wamsley v. Tree City Village, New Generation Management, Inc., and Matthew Joseph

16A01-1706-CT-1355

The Decatur Superior Court must reinstate a default judgment against a local apartment complex and its property manager after the Indiana Court of Appeals found there was no excusable neglect that would justify setting aside the default.

In March 2016, Matthew Joseph was cleaning a handgun in his apartment in the Tree City Village apartment complex in Greensburg when the gun accidentally discharged, traveled through the wall and struck his neighbor, Genia Wamsley. She survived but sustained significant injuries.

Wamsley’s counsel, Thomas Vick, informed the property management company, New Generation Management, Inc., of her impending litigation and asked the company to place its insurer, The Cincinnati Insurance Companies, on notice. Vick communicated with an insurance specialist, who denied Wamsley’s claim, but did not request that Vick copy her with any complaint filed regarding the claim.

Wamsley then filed a complaint against Joseph, the apartment complex and the property manager, alleging negligence, nuisance and breach of duty of care. The landlords received service of the complaint, which incorrectly stated that New Generation owned Tree City Village. New Generation President Tamera L. Brandt sent Vick a letter regarding the error, then placed the complaint in storage.

Tree City and New Generation never responded to the complaint after that, so the Decatur Superior Court entered default against them. In response, Tree City claimed the default was due to excusable error – namely, that Brandt did all she thought was required of her. They also argued the insurance company never received a copy of the complaint.

The trial court granted the landlords’ motion to aside the default, but the Indiana Court of Appeals reversed in Genia Wamsley v. Tree City Village, New Generation Management, Inc., and Matthew Joseph, 16A01-1706-CT-1355.

Judge Paul Mathias wrote first in a Feb. 28 opinion that under Boles v. Weidner, 449 N.E.2d 288 (Ind. 1983), Vick’s failure to provide the insurance company with a copy of the complaint “would not, standing alone, justify the trial court in setting aside the default judgment.”

Further, because the landlords never sent a copy of the complaint to their insurer, placed the complaint in storage and have regularly been involved in small claims and civil collections case, Mathias said their argument that they believed they had taken all necessary action was unpersuasive.

“Landlords explain that they ‘never forwarded the Complaint to the insurer because they were unaware that the insurer was no longer being kept informed by Counsel for Wamsley,’” Mathias wrote.

“While this may very well be true, it demonstrates a striking lack of attention by Landlords.”

“Therefore, while we are aware of the high level of deference accorded to trial courts in these decisions and the preference in Indiana for resolving cases on the merits, the Landlords’ inattention to the complaint and summons and their failure to consult with or discuss the suit with the Insurer may constitute neglect, but it does not constitute excusable neglect under Indiana Trial Rule 60(B)(1),” he wrote.•