Opinions April 30, 2018

Indiana Court of Appeals

Northern Indiana Public Service Company v. Aqua Environmental Container Corp. and Joki Leasing, LLC
91A04-1707-PL-1653
Civil plenary. Affirms on interlocutory appeal the trial court’s denial of NIPSCO’s motion for default judgment for spoliation of evidence. Affirms the trial court’s determination that there was no intentional spoliation of evidence by Aqua. Remands with instructions for the trial court to determine the appropriate remedy, if any, for Aqua’s negligent spoliation of evidence.

Pamela Webb v. City of Carmel, Carmel Clay Parks Building Corporation, and Carmel/Clay Board of Parks & Recreation
29A05-1710-CT-2420
Civil tort. Affirms the trial court’s grant of summary judgment in favor of the Carmel parties in Pamela Webb’s personal injury suit stemming from a fall at the Monon Community Center. Webb did not name the proper parties to her action within the 120-day deadline from notice under Indiana Trial Rule 15(C). Further, the trial court did not err in granting the Carmel parties’ motion to strike statements in Webb’s response to the city defendants’ motion for summary judgment.

In re The Paternity of: K.B.: Kyle Burkholder v. Amanda Jensma (mem. dec.)
18A02-1704-JP-721
Juvenile paternity. Affirms Delaware Circuit Court’s ruling granting mother sole legal custody and ordering father to pay mother’s attorney fees. Finds the court did not abuse its discretion in modifying the joint legal custody arrangement given the substantial change in the parents’ ability to communicate and cooperate for their child’s welfare. Also, the trial court did not abuse its discretion in ordering father to pay mother’s attorney fees. 

Terry E. Belden v. State of Indiana (mem. dec.)
73A04-1709-CR-2242
Criminal. Affirms Terry Belden’s four-year sentence for conviction of Level 5 felony operating a motor vehicle with a lifetime license forfeiture. Finds the sentence is not inappropriate in light of Belden’s criminal history and repeated violations of the terms of his probation, home detention and community corrections.

Andrew Kitt v. State of Indiana (mem. dec.)
49A02-1710-CR-2494
Criminal. Affirms the imposition of random drug testing as a condition of Andrew Kitt’s probation after being convicted of carrying a handgun without a license. Finds the requirement that Kitt submit to random drug testing to determine whether he is abstaining from illegal drug use is reasonable and a valid condition of probation.

S.W. v. State of Indiana (mem. dec.)
79A05-1712-JV-2915
Juvenile. Affirms Tippecanoe Superior Court’s modification of a dispositional order in which the court terminated S.W.’s probation and sent the defendant to the Indiana Department of Correction. Finds the trial court did not abuse its discretion because the record supports that less restrictive alternatives have not caused S.W. to change his behavior.

A.C., Jr. v. State of Indiana (mem. dec.)
92A04-1711-JV-2812
Juvenile. Affirms the Whitley Circuit Court’s dispositional order, placing A.C. in the custody of a juvenile facility in the Indiana Department of Correction. Rules the trial court did not abuse its discretion as the evidence supports the determination that less restrictive alternatives failed to deter A.C. from misconduct.  

In Re: The Matter of the Involuntary Termination of the Parent-Child Relationship of J.B. and A.H. Minor Children, C.B. (Father), et al. v. Indiana Department of Child Services, et al. (mem. dec.)
49A05-1711-JT-2602
Juvenile. Affirms the termination of H.B.’s and C.B.’s parental rights to their children. Finds there is sufficient evidence to support the termination of parental rights.

Tammi Lacy v. State of Indiana (mem. dec.)
49A02-1708-CR-1951
Criminal. Affirms conviction of Level 6 felony theft. Finds the Marion Superior Court did not abuse its discretion in allowing a retailer’s detective to testify about his investigation into cash shortages at the gas station where Tammi Lacy worked and in allowing him to testify as to what he observed on the surveillance video footage.

In Re: The Matter of the Termination of the Parent-Child Relationship of M.A., N.A., W.A., W.A., (Minor Children), and, R.F. (Mother) v. Indiana Department of Child Services, et al. (mem. dec.)
49A05-1710-JT-2492
Juvenile. Affirms the termination of R.F.’s parental rights. Finds the evidence is sufficient to support the termination of mother’s parent rights to her children.

Jasper E. Williams, Jr. v. State of Indiana (mem. dec.)
49A04-1710-CR-2275
Criminal. Reverses sentence to be served in the Indiana Department of Correction for Level 6 felony harmful performance before a minor and Level 6 felony public indecency. Finds the trial court erred by ordering Williams to serve his sentence in the DOC since the sentence was prohibited by Indiana Code section 35-38-3-3(d). Remands for the Marion Superior Court to sentence him in compliance with the statute. 

Robert A. Peterson, Jr. v. State of Indiana (mem. dec.)
16A01-1706-CR-1334
Criminal. Affirms Robert Peterson’s convictions of possession of a firearm by a serious violent felon as a Level 4 felony and criminal recklessness as a Level 6 felony. Remands to vacate the enhancement of his criminal recklessness sentence and for clarification of the use of the term “merger.”

Donald Jackson v. State of Indiana (mem. dec.)
49A04-1711-CR-2549
Criminal. Affirms Donald Jackson’s conviction of Level 6 felony intimidation. Rules the evidence is sufficient to conclude Jackson’s words to a police officer represented a true threat. Reverses his sentence of 365 days for Class B misdemeanor battery. Finds the maximum sentence allowed by Indiana Code section 35-50-3-3 is 180 days. Remands to the Marion Superior Court with instructions to correct the length of his sentence to 180 days.

Charlene Lewis v. State of Indiana (mem. dec.)
49A04-1712-CR-2776
Criminal. Affirms the amount of restitution the trial court ordered Charlene Lewis to pay after her plea of guilty to Level 6 felony maintaining a common nuisance. Finds the Marion Superior Court did not err by ordering Lewis to pay $677.46 in restitution for injury Lewis’ dog inflicted on a police officer.

Joe E. Jackson, Jr. v. State of Indiana (mem. dec.)
02A03-1709-CR-2179
Criminal. Affirms conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds the Allen Superior Court did not abuse its discretion by admitting, over Joe Jackson Jr.’s objection, recorded phone calls that Jackson made from jail. Rules Jackson’s conviction was supported by independent evidence of guilt so there is no substantial likelihood that the questioned evidence contributed to his conviction.

Deandre Barnum v. State of Indiana (mem. dec.)
48A02-1707-CR-1641
Criminal. Affirms Deandre Barnum’s aggregate sentence of 24 years — 14 years for conviction of Level 3 felony aggravated battery and 10 years for conviction of Level 4 felony unlawful possession of a firearm by a violent felon. Finds Barnum did not meet his burden of showing his sentence is inappropriate in light of his character and the nature of the offense.

Brandan Lee Eakright v. State of Indiana (mem. dec.)
85A02-1710-CR-2577
Criminal. Affirms Brandan Eakright’s three-year sentence for conviction of Level 5 felony sexual misconduct with a minor. Finds the evidence is sufficient to support the conviction and the sentence is not inappropriate.