Indiana Court Decisions: Jan. 11-24, 2024

Court of Appeals of Indiana

Jan. 11

In Re: The Paternity of V.D.; Brittney Kozenko (Mother) v. Isaac Diaz (Father)

23A-JP-688

COA rebukes trial judge in reversing custody order

While a mother cannot relocate to Utah with her child, the trial court erred in awarding primary physical custody of the child to the father, the Court of Appeals of Indiana ruled, penning a rebuke of the trial judge’s commentary.

Brittney Kozenko and Isaac Diaz had a child in 2021, and they co-parented until March 2022.

After their relationship ended, Kozenko obtained a protective order against Diaz.

In April 2022, Kozenko filed a verified petition to establish paternity, custody, child support and visitation. The Carroll Circuit Court appointed a guardian ad litem to the case.

The next month, Kozenko and Diaz entered into an agreed order that established Diaz’s parenting time schedule with the child for the month of June.

Also at that time, Kozenko accepted a position with Utah-based DFS Gourmet Specialties Inc. that allowed her to work remotely from her home in Indiana. DFS indicated it would hold an in-house position for her at their offices in Salt Lake City through the end of 2022.

Thus, Kozenko filed her notice of intent to relocate with the child to Lehi, Utah. Diaz objected, but the GAL recommended that Kozenko be allowed to relocate with the child, along with being awarded primary physical custody.

During the final hearing, “the trial court periodically interrupted Parents’ respective counsel and questioned both Mother and Father as they testified,” the Court of Appeals noted.

The trial court ultimately issued a nine-page order finding, in part, that Kozenko’s request to relocate was in good faith and for a legitimate reason. However, the court denied the relocation request based on a best-interests determination.

The parties were awarded joint legal custody, while Diaz was given primary physical custody.

Kozenko filed a motion to correct error challenging the trial court’s grant of primary physical custody to Diaz that appeared to be based upon the court’s finding that she no longer lived in Indiana. Diaz filed a motion to dismiss Kozenko’s motion.

Kozenko then filed a motion to stay the trial court’s final order, and Diaz filed a motion in opposition.

The trial court never ruled on the pleadings.

Kozenko appealed, first arguing there was insufficient evidence to support the trial court’s determination that relocation was not in the child’s best interests.

“The trial court’s order reveals that in reaching its determination, the trial court carefully and properly applied the facts of this case to the relevant statutory factors listed in INDIANA CODE § 31-17-2.2-1(c), and also — contrary to Mother’s argument — to the other factors listed in INDIANA CODE § 31-17-2-8,” Judge Rudolph Pyle wrote in rejecting Kozenko’s argument.

However, the COA also determined the trial court erred in awarding primary physical custody to Diaz.

“Rather than considering all the required relevant factors, the trial court appears to have considered only some of the factors and then based its custody determination almost entirely on a finding that Mother was no longer living in Indiana — specifically, ‘[a]s Mother is no longer present in the state where the child resides, Father is vested with primary physical custody of [Child],’” Pyle wrote. “However, no evidence was presented to show that Mother had personally relocated to Utah. Therefore, this finding is clearly erroneous.

“… The trial court should have considered all of the relevant factors listed in INDIANA CODE § 31-14-13-2 — plus any other relevant considerations — from the time of Child’s birth in making an award of physical custody,” he continued. “… By relying on only some of the factors and basing its custody determination largely on a finding that was unsupported by the evidence, we find that the trial court abused its discretion.”

The COA thus reversed the trial court’s award of primary physical custody to Diaz and remanded with instructions to enter a physical custody order that reflects consideration of all factors concerning the child’s best interests and provides proper findings supported by the evidence, as well as additional findings that better articulate its physical custody determination.

“Furthermore, we do not condone the trial court’s manner of inquiry, remarks, and on-the-record musings regarding Mother’s decision to remain in Indiana with Child and file her paternity action in, and seek a protective order from, the Indiana courts,” Pyle added. “The trial court’s prolonged thinking-out-loud comments along those lines were inappropriate.”

Judges Nancy Vaidik and Paul Mathias concurred in In Re: The Paternity of V.D.; Brittney Kozenko (Mother) v. Isaac Diaz (Father), 23A-JP-688.

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Jessica Pilkington v. Caleb Pilkington

23A-DC-575

COA affirms denial of mother’s request to relocate to Utah

A mother who appealed the denial of her requests to relocate to Utah with her child has failed to convince the Court of Appeals of Indiana that the trial court erred in its custody determinations.

Jessica Littrell and Caleb Pilkington welcomed their daughter in April 2020.

In 2021, they bought a house with help from Pilkington’s grandparents. They separated a few months later but continued living together.

But by the end of October 2021, Littrell asked Pilkington to move out while she and the child stayed living in the marital residence.

Pilkington moved into his grandmother’s house, where he had his own room plus a connected room for the child. He asked to keep the child overnight, but Littrell said no.

That December, Littrell petitioned for dissolution.

At a provisional hearing, she testified that she was the child’s primary caretaker and that Pilkington only became interested in spending time with the child after the petition was filed. She said they agreed on a schedule for him to see the child throughout the week and on weekends.

Also, Littrell said she had no intention of relocating to Utah, which was her home state.

While the petition was pending, Littrell and the child visited Utah several times. Then, a few months after the initial provisional hearing, she filed a notice of intent to relocate with the child to Utah.

Pilkington objected, but Littrell said her support system in Indiana — Pilkington’s family — no longer existed. The Hamilton Superior Court denied her request.

The parties then continued with the provisional hearing, where the court ordered Pilkington to have a midweek overnight with the child in addition to the parenting time he had been exercising. Again, Littrell was the only person able to testify in the allotted time.

Before the next hearing, Littrell filed a second notice of intent to relocate with the child to Utah, where she had accepted a job.

Pilkington again objected and was able to testify for the first time in the proceedings. He told the court that the relocation would hurt his relationship with his daughter, and he asked for joint legal custody and a split parenting time schedule.

Shortly after the hearing, the trial court dissolved the parties’ marriage, leaving all property and child issues to be decided later.

A few months later, the trial court denied Littrell’s request to relocate and ordered the parties to share joint legal custody with equal parenting time.

Littrell appealed, first questioning whether a magistrate judge had authority to sign the final order. The appellate court determined the magistrate did have that authority.

“The current law regarding the authority of magistrates is found in Section 33- 23-5-8.5,” Judge Dana Kenworthy wrote. “Pursuant to that Section — with one limited exception not applicable here — the magistrate had ‘the same powers as a judge’ on February 16, 2023, when the final order was issued.”

Also, in a footnote, the COA added that when Pilkington asked for the case to be set on the regular judge’s calendar, Littrell objected.

Next, the appellate court addressed the issue of whether the trial court erred in denying Littrell’s motion to relocate with her child.

The COA initially determined the trial court erred in concluding Littrell’s proposed relocation was not made in good faith and for a legitimate reason.

However, “Mother’s actions and testimony show at best a reluctance to acknowledge Father is also Child’s parent and equally able and entitled to make decisions for her, even if they are not the decisions Mother would make,” Kenworthy wrote.” And as the trial court pointed out, Mother testified four times that she believed Child’s relationship with maternal grandparents was more important than Child’s relationship with Father.

“… Affording the trial court the considerable deference due in family law matters, we cannot say the trial court clearly erred in denying Mother’s request to relocate with child,” she continued. “The trial court’s best interest determination was well supported by the court’s findings and the evidence presented below.”

The last issue on appeal was whether the trial court erred in awarding the parties joint legal custody of their child.

Finding no error, Kenworthy wrote, “The trial court’s order shows it analyzed each factor relevant to a joint custody determination and determined joint legal custody was appropriate and in Child’s best interests. Evidence in the record supports the court’s findings.”

Chief Judge Robert Altice and Judge Leanna Weissmann concurred in Jessica Pilkington v. Caleb Pilkington, 23A-DC-575.

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Jan. 19

AMW Investments, Inc. et al. v. The Town of Clarksville, et al.

23A-PL-508

Contempt ruling involving adult theater in Clarksville overturned

A trial court must consider the discovery objections lodged by a company that leases space to an adult theater in Clarksville after the Court of Appeals of Indiana overturned a contempt ruling against the company.

AMW Investments owns real estate in Clarksville, and it leases the property to Midwest Entertainment Ventures, or Theatre X, an adult entertainment venue.

In May 2019, the town of Clarksville revoked Theatre X’s adult business license due to zoning ordinance violations.

MEV appealed the revocation in Clark Circuit Court, while the town sought a preliminary injunction enjoining MEW and AMW from operating Theatre X.

In November 2019, the trial court granted the town’s motion for preliminary injunction. AMW and MEV appealed.

While the appeal was pending, AMW submitted its responses to discovery, replying to each discovery request, “AMW objects on the basis that discovery is premature and inappropriate during the pendency of appeal. … This discovery request was issued after the divesture of jurisdiction and during the period jurisdiction was divested by way of appeal.”

Then, after informal resolution of the discovery dispute failed, the town moved to compel discovery responses.

In October 2020, the appellate court affirmed the preliminary injunction in the town’s favor, and in March 2021, the Indiana Supreme Court denied transfer.

The town filed a reply brief arguing that the interlocutory appeal had not stayed discovery, and that AMW waived all other objections to the discovery requests by failing to raise them in its discovery responses.

A hearing on the motion to compel was scheduled for July 2021.

That June, AMW tendered its first supplemental responses, which raised multiple objections.

Then in August 2021, the trial court granted the town’s motion to compel discovery. The court ruled that the interlocutory appeal had not stayed discovery, and that AMW waived its objections that were not raised in the original responses.

AMW then tendered its second supplemental discovery responses, but the town moved to hold AMW in contempt.

The trial court granted that motion in February 2023, finding AMW’s first supplemental responses, tendered in June 2021, were belated. It also found that AMW continued to object and withhold documents based on relevance and privilege objections that had been waived.

The trial court imposed a $30,000 civil sanction, but noted the fine could be avoided by complying with the discovery order.

AMW appealed, and the Court of Appeals reversed.

“Here, AMW’s timely discovery responses in its July 15, 2020, initial response addressed only the alleged lack of jurisdiction while the interlocutory appeal was pending and did not raise other objections,” Judge L. Mark Bailey wrote. “When the parties received the new information that the appeal had ended, it became clear that the objections based on jurisdiction, even if they had been correct when made (which they were not), were moot. Therefore, AMW supplemented its discovery responses with its additional responses, including new objections.

“Trial Rule 26(E) allows such supplementation of discovery responses, and there was no deadline imposed in this case, either by the court or agreement of the parties, for supplementing discovery responses,” Bailey continued. “Therefore, AMW’s supplemental responses, filed before the hearing and the decision on Town’s motion to compel, were ‘seasonable’ and permissible.

“The trial court abused its discretion when it refused to consider AMW’s supplemental discovery responses,” Bailey concluded. “And AMW was prejudiced by that error; not only was it limited to objections that had become moot, but it was required to provide full responses to discovery without the court’s consideration of any of its supplemental objections.”

The appellate court thus reversed and remanded to the trial court with instructions to consider the objections contained in AMW’s first supplemental discovery requests.

Judge Melissa May concurred in AMW Investments, Inc. et al. v. The Town of Clarksville, et al., 23A-PL-508, while Judge Paul Felix concurred in result.

Felix wrote separately that he disagreed with the majority’s analysis for three reasons.

First, Felix wrote that AMW’s objections were late and untimely.

“However, and secondly, I believe that a late-raised objection does not necessarily result in a waiver of that objection,” he continued.

Lastly, Felix wrote that Marshall v. Woodruff, 631 N.E.2d 3(Ind. Ct. App. 1994), provided the outer boundaries for when a late objection can be deemed waived.

“In sum, Marshall tells us that an untimely objection is waived when it is asserted for the first time in a motion to correct error or later,” Felix wrote.

He said the courts should consider five factors in determining whether an untimely discovery objection is waived: the obstreperousness of the party; the complexity of the issues; the amount of time that has passed between a motion to compel and a hearing on that motion; the amount of time, effort and/or expense the requesting party put into resolving the issue; and good cause.

“Applying such an analysis to this case, I believe that AMW’s supplemental responses (the late-raised objections) were late … but I would hold that those objections are not waived given: (1) the rare and unusual circumstances of this case, namely, the confusion created by the interlocutory appeal as to whether the trial court retained authority over the matter; (2) the lack of evidence that either party was being obstreperous; (3) the lack of any real effort by Town to resolve the issue, given that Town only sent a single letter to AMW pursuant to T.R. 26(F); (4) the fact that Town’s Motion to Compel was filed on August 28, 2020, and the hearing on that motion did not occur until July 9, 2021; and (5) the fact that the amended/supplemented objections were filed prior to the hearing on the motion to compel,” he concluded. “For these reasons, I concur and would also reverse the trial court’s decision.”

In a footnote, the majority opinion rejected Felix’s test: “The concurrence would hold that the rule regarding supplementation of discovery is not even applicable to AMW’s June 18, 2021, supplemental answers because there was no ‘new information’ that would allow or require supplementation. However, as we note above, the relevant new information in this case was the final denial of AMW’s interlocutory appeal. That new information made it clear that AMW’s initial discovery responses based on the alleged ‘divestment’ of jurisdiction pending the interlocutory appeal was no longer applicable and that supplemental responses were required. Thus, we analyze the timeliness of AMW’s June 18, 2021, supplemental responses under Trial Rule 26 rather (than) attempting to create a new balancing test for ‘untimely’ responses under Rules 33, 34, and 37, as the concurrence suggests.”

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Jan. 23

State of Indiana v. Trisha M. Woodworth

22A-CR-2557

COA reinstates, then reverses, neglect conviction

After reinstating a woman’s neglect conviction based on trial court error, the Court of Appeals of Indiana then reversed that conviction based on insufficient evidence.

Judge Rudolph Pyle wrote the opinion in State of Indiana v. Trisha M. Woodworth, 22A-CR-2557.

According to court records, M.M. was born in July 2015 to Ryan Moore and Megan Garner. Garner asked Trisha Woodworth if she could take care of M.M. four days a week while the parents worked.

On the evening of April 11, 2016, Garner was sitting on the floor playing with 8-month-old M.M. when the child fell over Garner’s leg and hit her head on the hardwood floor. M.M. had a “little red scuff” on her forehead above her eyebrow and cried for about 30 seconds.

The parents did not notice any changes in her behavior that evening and did not seek medical assistance. But over the next week, Garner noticed that M.M. was fussier and whinier than usual.

Then on April 15, Garner dropped M.M. off at Woodworth’s home. Later that day, Woodworth attempted to feed M.M, but the child’s eyes closed, she “kind of slumped over[,]” and she would not take the bottle.

The mother told Woodworth to call 911. There had been a nine-minute delay before Woodworth made the 911 call.

An ambulance transported M.M. to Methodist Hospital in Gary, and she was helicopter transferred to the University of Chicago Comer Children’s Hospital.

M.M. died two days later at the hospital.

Following an autopsy, the medical examiner concluded that M.M.’s cause of death was “blunt force head injuries with … cervical injuries as a contributing factor.” The medical examiner further concluded that the manner of M.M.’s death was homicide.

A Lake Superior Court jury eventually convicted Woodworth of Level 1 felony neglect of a dependent resulting in death but acquitted her of Level 1 felony aggravated battery and Level 2 felony battery resulting in death to a person less than 14 years of age.

In August 2022, Woodworth filed a motion to correct error, wherein she argued that there was insufficient evidence to support her conviction.

She asked the trial court to either direct a verdict in her favor or to grant her a new trial. Woodworth also asked the trial court to grant her a new trial based on a juror’s letter that had expressed doubt about her guilt.

The trial court ultimately granted its own motion to correct error, vacating Woodworth’s conviction and granting her a new trial.

The state appealed, arguing the trial court abused its discretion when it granted its own motion to correct error. On cross-appeal, Woodworth argued there was insufficient evidence to support her conviction.

The Court of Appeals reinstated the woman’s conviction, but also reversed it, finding there was insufficient evidence to support her conviction.

According to Pyle, the appellate court agreed with the state’s argument that the trial court abused its discretion when it granted its own motion to correct error and ordered a new trial.

The trial court had found that Woodworth’s counsel was ineffective, and that the jury’s verdict did not accord with the evidence because nine minutes was a reasonable amount of time for Woodworth to determine whether she should call 911.

“Neither reason supports the trial court’s grant of its own motion to correct error,” Pyle wrote.

First, Woodworth’s counsel did not ask for a new trial based on his own ineffective representation, Pyle pointed out.

“Rather, despite showering Woodworth’s counsel with glowing compliments regarding his excellent advocacy, the trial court sua sponte found that Woodworth’s counsel was ineffective. Johnson does not support the trial court’s action in this case,” Pyle wrote, citing State v. Johnson, 714 N.E.2d 1209 (Ind. Ct. App. 1999).

Further, the trial court did not state whether the jury’s verdict was against the weight of the evidence or clearly erroneous, Pyle added.

“Rather, the trial court made only general findings and not the special findings required by Trial Rule 59(J),” he wrote. “We, therefore, reinstate Woodworth’s conviction for Level 1 felony neglect of a dependent resulting in death.”

But turning to Woodworth’s cross-appeal, Pyle pointed out that there was no doubt that M.M.’s need for medical care was actual and apparent, and that Woodworth was actually and subjectively aware of that need.

The appellate court concluded that Woodworth’s actions were those of a reasonable caregiver who finds that a child in her care is having difficulty waking up from a nap and does not “look right.”

“Stated differently, we conclude that Woodworth’s nine-minute delay in calling 911 — while she contacted Mother and while her mother and sister simultaneously tended to M.M. by applying a cold rag to M.M.’s head and taking her outside to get some fresh air — was not a failure to provide immediate medical attention to M.M.,” Pyle concluded. “Woodworth did not knowingly place M.M. in a situation that endangered M.M.’s life.”

Judges Nancy Vaidik and Paul Mathias concurred.

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Michael Morales v. State of Indiana

23A-CR-522

Rape convictions upheld despite ‘surprise’ evidence, last-minute charging amendment

A man whose rape trial included “surprise” evidence and an amendment to the charging information after deliberations had begun failed to convince the Court of Appeals of Indiana that his three felony convictions should be overturned.

The man, Michael Morales, was married to K.M., who asked for a divorce in February 2021.

Morales moved out of their apartment and told K.M. he would grant her a divorce.

But one day later, Morales went to the apartment while K.M. was at work, broke a picture frame and tore a family photo into pieces. Also on that day, Morales went to K.M.’s workplace and accused her of having an affair.

A few days later, Todd Kenton, a friend of K.M.’s from work, came to the apartment with an AR-15 rifle to show her how to use it for protection. Morales knocked on the apartment door while Kenton was there, so K.M. tried to hide him.

But when she opened the door, Morales announced that he had heard Kenton. He found Kenton in the bedroom and ordered him to leave, which Kenton did — leaving the rifle behind.

Morales grabbed the weapon and began threatening suicide. He told K.M. he might want to live if she performed oral sex, and K.M. agreed to do so, believing he might otherwise harm himself.

Later, Morales ordered K.M. to undress, and she again complied, still afraid of what he might do. Then, while holding the gun, he ordered her to have sex with him.

After, K.M. was able to take control of the gun’s magazine, and she tried to flee the apartment. But Morales blocked the door and grabbed the magazine, then placed the gun to his head.

He pulled the trigger multiple times, but the rifle never fired.

Finally giving up, Morales ordered K.M. to wipe the fingerprints off the gun. He then began going in and out of the apartment as he packed his things, and K.M. was able to lock him out and call the police.

Police responded and arrested Morales, who was in the apartment’s parking lot with a flat tire. Police seized the rifle and verified that there was no ammunition in the chamber or barrel.

Morales was charged and convicted on several felony counts, and the Porter Superior Court entered judge on two counts of Level 1 felony rape and one count of Level 3 felony criminal confinement. He was sentenced to an aggregate of 30 years, with five years suspended.

On appeal, Morales first argued there was insufficient evidence to support his rape convictions. But the Court of Appeals disagreed in Michael Morales v. State of Indiana, 23A-CR-522.

“Contrary to Morales’ suggestion, the fact that he did not actually attempt to harm himself until after the rapes does not support an inference that his threat was not imminent,” Judge Terry Crone wrote. “If anything, that evidence supports K.M.’s perception that Morales’s threat of self-harm was not hollow. The state presented sufficient evidence to support the convictions.”

Morales next argued that the trial court erred in refusing his proposed jury instruction defining the term “threat” based on a portion of the intimidation statute, Indiana Code § 35-45-2-1.

“The trial court refused the proposed instruction after determining that the definition of threat in the intimidation statute did not apply in the context of rape,” Crone wrote. “We agree.”

Nor did the trial court err in denying Morales’ motion for a mistrial, the COA continued. That issue focused on the rifle.

“The AR-15 rifle that Morales possessed during the sexual assaults was discussed and handled by two witnesses, Sergeant (Robert) Nichols and Kenton, during cross-examination by the defense. Sergeant Nichols handled the weapon and explained how he took possession of it at the scene and that a round of ammunition was not found in the chamber or barrel,” Crone wrote. “The second witness, Kenton, was asked by defense counsel to handle the weapon and verify that it was empty of ammunition, which was part of the defense theory that the weapon was not actually loaded during the assaults. When Kenton handled the weapon, a round fell out of the weapon onto the ground.”

The defense moved for a mistrial, but the state argued Morales had not shown that he was prejudiced by the ammunition falling out, so nothing more than an admonishment was needed.

The trial court denied a mistrial but did allow Nichols to be recalled. Morales never renewed his mistrial motion.

Affirming the denial, the COA held, “… K.M. repeatedly admitted that she was unsure whether the rifle was loaded during the sexual assaults, and based on both the State’s and the defense’s theories of the case, the actual status of the weapon when police recovered it is not germane to the issue of the presence or absence of ‘forceful compulsion’ at the time of the assaults. Moreover, Morales did not object to the curative measures permitted by the trial court to explain this surprise evidence.”

Finally, the appellate court rejected Morales’ argument that the trial court abused its discretion in allowing the state to amend the charging information during deliberations.

According to the appellate court, the state informed the trial court just prior to closing arguments that the term “sexual intercourse” was inadvertently removed from Count 1 and replaced with “other sexual conduct,” meaning both counts alleged rape based only on other sexual conduct.

The trial court initially denied the state’s request to amend the charging information, but after the jury sent a question about the difference in the two rape counts, the court reversed its prior ruling.

“As noted by the trial court, the evidence presented by both parties indicated that Morales engaged in two sexual acts with K.M., oral sex and sexual intercourse,” Crone wrote. “The issue before the jury was not whether those sexual acts occurred, but whether those acts constituted rape, that is, whether K.M. was compelled by force or the imminent threat of force.

“The amendment of the information to clarify for the jury which count of rape was intended to apply to the oral sex and which count was intended to apply to the sexual intercourse in no way impaired Morales’s defense and had no effect on his ability to present evidence on the existence vel non of force,” Crone continued. “Thus, the amendment to the charging information was one of form, not substance, did not prejudice Morales’s substantial rights, and was a reasonable response by the trial court to address the jury’s confusion.

“… As for the trial court’s revision of the final instructions to provide the amended charging language, and it decision to reread to the jury all final instructions, Morales consented to the procedure,” Crone concluded. “Accordingly, we need not review the trial court’s decision in this regard.”

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Jan. 24

Zachariah David Konkle v. State of Indiana

23A-CR-783

Split COA orders new trial in deadly county fair brawl after prosecutorial misconduct

A man convicted of manslaughter after a brawl at a county fair will get a new trial, although one appellate judge would uphold his conviction and sentence.

In July 2021, Michael Steele and Zachariah David Konkle were working at the Jackson County Fair in Brownstown.

A certain family attended the fair, and when one of the daughters, who has “multiple mental and behavioral issues,” threw a tantrum after losing the goldfish game, a worker made fun of her. The mother went to look for a supervisor to make a complaint about the worker, and Konkle told her he would take care of it.

Later that night, Konkle told some co-workers that someone had been messing with a mentally handicapped child and that if he found the person, he would hurt them. The workers told Konkle to let management handle it.

Konkle initially believed Robert Clark was the worker who made fun of the little girl, so he attacked him. But Clark was the wrong person.

Konkle then told Steele that the second person was going to get it “twice as worse.”

Steele “got tired of hearing it from” Konkle and said, “Let’s go.” He then threw a punch, and the men began to fight on the ground.

Konkle was on top of Steele when he heard him making gurgling sounds. Another worker started CPR, and Konkle joined in.

Konkle told those who were there to tell law enforcement that Steele had fallen in the shower. Law enforcement arrived and took over CPR until EMS arrived.

Konkle was interviewed on the scene and again at the police department. He stated that he was mad at Steele for making fun of a special needs girl because he has a special needs child.

Steele was taken to Indiana University Methodist Hospital in Indianapolis, where he died.

Dr. Bruce Wainer, a forensic pathologist at the Marion County Coroner’s Office, concluded Steele’s cause of death was mechanical asphyxiation complicating compression of the carotid artery through a chokehold.

The state subsequently charged Konkle with murder. His jury trial was held in February 2023, and the main question was whether Konkle knowingly killed Steele.

Wainer was no longer employed at the Marion County Coroner’s Office, so Dr. Christopher Poulos testified instead. He stated that he largely agreed with Wainer, but that the asphyxia could have been from a chokehold or compression of Steele’s chest. He noted there were no injuries to Steele’s neck either externally or internally.

Poulos also stated that Steele was in poor health and his heart showed signs of previous heart attacks, with one being recent. He said it was possible Steele had a heart attack during the fight.

He concluded in his testimony that Steele did not die from natural causes but rather at the hands of another, and that if the struggle caused a heart attack, it would still be homicide.

But another forensic pathologist, Dr. George Nichols II, testified for the defense that Steele did die from natural causes due to his poor health and a heart attack. He stated that Steele had no injuries that would have prevented him from walking away had his heart not ceased activity.

The jury found Konkle guilty of Level 2 felony voluntary manslaughter, and Konkle admitted to being a habitual offender. The Jackson Circuit Court sentenced him to a total of 34 years.

At issue on appeal was the prosecutor’s statement in closing argument that the Indiana Supreme Court, under the eggshell-victim doctrine, has allowed people to be convicted even if they did not intend the harm the victim sustained. Konkle claimed that doctrine does not apply to murder and voluntary manslaughter cases and that, therefore, it was a misstatement of the law.

The appellate court agreed that the state committed prosecutorial misconduct, thus making a fair trial impossible and constituting fundamental error.

“During closing, the State acknowledged it had to prove that Konkle acted knowingly to obtain a guilty verdict for murder. But then things started to go off the rails,” Judge Nancy Vaidik wrote. “First, the State told the jury that because Konkle seriously injured Steele, he knowingly killed him. That, however, is not the law.

“… To make matters worse, the State then argued that the inapplicable eggshell-victim doctrine applied, telling the jury that because Steele had preexisting heart problems, Konkle was guilty of a knowing killing ‘even if he didn’t intend to bring bodily harm,’” Vaidik continued. “The State tried to bolster this argument by emphasizing that the Indiana Supreme Court had established this rule a decade earlier. But as already explained, that is simply not the case.

“… Given the conflicting evidence, it is entirely possible that the jury concluded that Steele wouldn’t have died but for his preexisting heart problems,” Vaidik concluded. “If that happened, the State’s misconduct was probably the deciding factor in the case.”

The case was remanded for a new trial.

Judge Elaine Brown concurred but Judge Cale Bradford dissented with a separate opinion. Bradford wrote that he would conclude Konkle failed to make a cogent argument regarding fundamental error.

“It is vaguely possible that the jury disbelieved all of the evidence that Konkle had knowingly killed Steele and, while also disregarding the trial court’s instructions, nonetheless convicted him on the basis of the eggshell-skull doctrine,” Bradford wrote. “Fundamental error, however, requires that a fair trial was rendered impossible, not that an unfair trial was a vague possibility. In my view, this case falls far short of the very high standard for fundamental error.”

Bradford also addressed the sufficiency of evidence in his dissent, finding there was sufficient evidence to support Konkle’s conviction of voluntary manslaughter and noting that Konkle attempted to flee when law enforcement arrived.

Lastly, Bradford looked at Konkle’s sentence and concluded that Konkle has not demonstrated that his sentence is inappropriate in light of the nature of his offense or his character.

The case is Zachariah David Konkle v. State of Indiana, 23A-CR-783.•