Indiana Court Decisions: July 13-26, 2023

7th Circuit Court of Appeals

July 18

Ralph Lisby, as the Personal Representative of the Estate of Ashlynn Lisby, deceased v. Jonathan Henderson, individually and in his official capacity as a police officer, and City of Indianapolis, Indiana

22-2867

Family of pregnant woman killed by speeding officer loses 7th Circuit appeal

A district court correctly dismissed a complaint alleging an Indianapolis police officer violated a woman’s 14th Amendment rights when he struck and killed her while driving to work, the 7th Circuit Court of Appeals affirmed.

On May 6, 2020, Ashlynn Lisby and Marcus Lewis Jr. were walking along the shoulder of State Road 37 in Indianapolis. Lisby was eight months pregnant at the time with Lewis’ child, and the two were walking back to their motel.

According to court records, Officer Jonathan Henderson of the Indianapolis Metropolitan Police Department was driving to work in his police vehicle on the same road. Henderson was driving 78 miles per hour — which was 33 mph over the posted speed limit — when he illegally changed lanes and partially crossed the fog lane onto the shoulder.

Henderson struck Lisby without seeing her while still traveling at 55 mph.

Lisby was transported to a hospital, where she was pronounced dead. The baby was delivered but died shortly thereafter.

Ralph Lisby, Lisby’s father and the representative of her estate, sued Henderson under 42 U.S.C. § 1983, alleging he had violated Lisby’s 14th Amendment substantive due process rights. He also brought state-law negligence claims against Henderson and the city of Indianapolis.

The defendants removed the suit to federal court and filed a motion for partial judgment on the pleadings.

The United States District Court for the Southern District of Indiana granted that motion, disposing of all federal claims and relinquishing its supplemental jurisdiction over the remaining state-law claims. The district court concluded Lisby’s complaint failed to plead sufficient facts plausibly suggesting that Henderson had acted with the criminal recklessness necessary to establish a due process violation.

The 7th Circuit agreed and affirmed.

The sole issue on appeal was whether the district court properly granted the motion with respect to Lisby’s Section 1983 claim against Henderson.

Judge Thomas Kirsch wrote the opinion for the appellate court.

Lisby argued the district court should have converted the motion for judgment on the pleadings to a motion for summary judgment and allowed the parties to conduct discovery.

Kirsch wrote that the district court ordinarily has discretion to convert a motion for judgment on the pleadings to a motion for summary judgment, but only when the district court considers materials beyond the pleadings is it required to convert a Rule 12(c) motion to one for summary judgment.

“Because the district court did not stray beyond the pleadings, and Lisby has not identified any evidence that would have any bearing on the motion, the district court did not err in dismissing the complaint on the pleadings,” Kirsch wrote, citing United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015).

According to Kirsch, the appellate court’s analysis of whether allegations of a police officer’s dangerous driving during a nonemergency rise to the level of a substantive due process violation is guided by the court’s decisions in Hill v. Shobe, 93 F.3d 418 (7th Cir. 1996), and Flores v. City of South Bend, 997 F.3d 725 (7th Cir. 2021). Those cases hold that a plaintiff seeking relief under Section 1983 for such a claim must plead sufficient facts to establish that the officer acted with “criminal recklessness—which is the same as deliberate indifference.”

Lisby argued that Henderson reasonably understood that his driving was dangerous and that he was willing to let a fatal collision occur. But Kirsch wrote that the mere knowledge that driving at a high speed at night could have fatal consequences is not enough to allege a constitutional violation.

“We agree with the district court that Officer Henderson’s actions, as alleged in the complaint, are grounded in negligence rather than criminal recklessness. As such, Lisby failed to allege a constitutional violation,” Kirsch concluded.

Judges Michael Scudder and John Lee concurred.

The case is Ralph Lisby, as the Personal Representative of the Estate of Ashlynn Lisby, deceased v. Jonathan Henderson, individually and in his official capacity as a police officer, and City of Indianapolis, Indiana, 22-2867.

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July 20

United States of America v. Roberto Cruz-Rivera

22-1325

7th Circuit affirms release condition for convicted sex offender who failed to register

The 7th Circuit Court of Appeals affirmed a district court’s ruling to impose a supervised release condition on a convicted rapist who failed to register as a sex offender in Indiana and rejected the man’s contention that the condition violated his Fourth Amendment rights.

Roberto Cruz-Rivera was convicted of first-degree rape and first-degree assault in New York in 2001 after he violently attacked two women who suffered from a mild mental disability.

He had stabbed both women and raped one woman.

Cruz-Rivera was released from prison for those offenses in October 2015.

According to court records, because of the rape conviction, Cruz-Rivera was required to register as a sex offender under the Sex Offender Registration and Notification Act.

Between September 2017 and March 2020, Cruz-Rivera lived and worked in Indiana.

During this time, he was employed by a staffing agency and worked throughout Indianapolis, including at the Convention Center, Lucas Oil Stadium, the JW Marriott Hotel, Butler University and an elementary school.

He also was convicted of two felonies — resisting law enforcement and auto theft — in Indianapolis during that time.

Cruz-Rivera never registered as a sex offender in Indiana.

A grand jury indicted Cruz-Rivera on one count of failing to register as a sex offender between Sept. 15, 2017, and March 14, 2020.

Cruz-Rivera chose to proceed pro se in the district court.

The United States District Court for the Southern District of Indiana conducted a bench trial and found him guilty.

Cruz-Rivera was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a).

The district court sentenced him to three years and five months in prison and five years of supervised release.

Before Cruz-Rivera’s sentencing hearing, the probation office prepared a presentence investigation report in which it recommended the following condition of supervised release:

“You shall submit to the search by the probation officer of your person, vehicle, office/business, residence, and property, including any computer systems and hardware or software systems, electronic devices, telephones, and Internet-enabled devices, including the data contained in any such items, whenever the probation officer has a reasonable suspicion that a violation of a condition of supervision or other unlawful conduct may have occurred or be underway involving you and that the area(s) to be searched may contain evidence of such violation or conduct. Other law enforcement may assist as necessary. You shall submit to the seizure of contraband found by the probation officer. You shall warn other occupants these locations may be subject to searches.”

Cruz-Rivera objected to this proposed condition of supervised release.

He contended that the condition, which allows search and seizure “without a search warrant supported by probable cause,” violated his Fourth Amendment right to be free from unreasonable search and seizure.

At the sentencing hearing, the district court overruled Cruz-Rivera’s objection to the search condition.

The district court entered a final judgment that listed the conditions of supervised release with which Cruz-Rivera was required to comply.

The judgment contained the search condition — as it appeared in the PSR and was read into the record at the sentencing hearing — as Condition 13.

Cruz-Rivera appealed and challenged one aspect of his sentence. He submitted that the district court erred in imposing a discretionary condition of supervised release that allows a probation officer, with the assistance of law enforcement, to search his person and property upon reasonable suspicion that he has violated a condition of supervised release or has committed other unlawful conduct.

The 7th Circuit affirmed the district court’s judgment and found the court did not err in imposing the supervised release condition.

Senior Judge Kenneth Ripple wrote the opinion for the appellate court.

Ripple wrote that the 7th Circuit found that the district court did not abuse its discretion in imposing Condition 13 on Cruz-Rivera and made adequate findings supporting a conclusion that the condition is consistent with the statutory factors for conditions of supervised release.

“Based on Mr. Cruz-Rivera’s criminal history, the district court articulated that Condition 13 was necessary to deter him from future unlawful conduct and to protect the public. Allowing probation officers, with the assistance of law enforcement, to search Mr. Cruz-Rivera and his property, including his electronic devices and data, on the basis of reasonable suspicion will help ensure that he complies with his legal obligations in the future,” Ripple wrote.

Ripple noted that, because he did not register, Cruz-Rivera was hired to work throughout Indianapolis in positions he should not have been permitted to hold.

The appellate judge called it particularly concerning, as the district court noted, that Cruz-Rivera had been permitted to work at an elementary school.

Ripple rejected Cruz-Rivera’s contention that Condition 13 fails the third criterion of 18 U.S.C. § 3583(d) because it is inconsistent with statements issued by the United States Sentencing Commission regarding sentencing guidelines.

“The Guidelines do not expressly recommend the search condition for failing to register under SORNA, but the statute provides that a court may impose the search condition for such offenders. The district court therefore was not required to address this difference between 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(d)(7) when it imposed Condition 13 on Mr. Cruz-Rivera,” Ripple wrote.

Judges Michael Scudder and John Lee concurred.

The case is United States of America v. Roberto Cruz-Rivera, 22-1325.

Indiana Supreme Court

July 19

Hoosier Contractors, LLC v. Sean Gardner

22S-CT-381

Justices find consumer lacked standing to pursue counterclaim, but concurrence expresses concern about federal standing doctrine

The Indiana Supreme Court has ordered a trial court to dismiss a consumer’s counterclaim to a breach-of-contract suit brought by a contractor, finding the consumer did not prove he was actually injured by the contractor’s allegedly deceptive acts.

But the court’s analysis in Hoosier Contractors, LLC v. Sean Gardner, 22S-CT-381, led one justice to pen a separate discussion about the possible harm of the state looking to federal standing doctrine.

The case began in December 2015, when Sean Gardner contacted Hoosier Contractors LLC for a roof inspection and estimate for repairs.

Before agreeing to the inspection, Hoosier Contractors required Gardner to sign a contract agreeing, among other things, to hire the company for any needed repairs and to pay 20% of the contract price if the contract was breached. Gardner agreed and signed.

The estimated cost of the repairs initially came out to more than $50,000, then increased to nearly $60,000 after an adjustment that Gardner requested. Gardner questioned whether all the repairs were necessary and ultimately hired another company, Calber Construction, to complete $18,000 in repairs.

Hoosier Contractors filed a breach-of-contract claim against Gardner, who responded with a class-action counterclaim alleging the contract with Hoosier Contractors violated the Home Improvement Contractors Act.

After its initial motion for summary judgment was denied, Hoosier Contractors filed a second motion for summary judgment on the counterclaim, alleging Gardner and some of the class members lacked standing because they did not suffer actual injury. Gardner also filed a motion for partial summary judgment, alleging the contract was null and void and the 20% damages provision was unenforceable.

The Hamilton Superior Court denied both summary judgment motions, and the Court of Appeals of Indiana affirmed.

In its opinion, the Supreme Court affirmed the denial of partial summary judgment for Gardner but reversed the denial of Hoosier Contractors’ motion.

“We hold that Gardner, on behalf of himself and as a class representative, lacked standing to bring his counterclaim against Hoosier — a disposition that moots the class-action issues — and we summarily affirm sections 3 and 4 of the court of appeals’ opinion … which affirmed the denial of Gardner’s motion for partial summary judgment as to Hoosier’s breach-of-contract claim,” Justice Geoffrey Slaughter wrote.

“… At oral argument, Gardner underscored that his claimed injury — the ‘detriment’ he allegedly suffered — was indistinct from Hoosier’s procedural violations of the Act: ‘the detriment, I think, is the deceptive act itself,’” Slaughter wrote. “But as we have emphasized, any such violations are insufficient by themselves to confer standing.

“On this record, Hoosier’s deceptive acts did not hoodwink Gardner. He paid Hoosier nothing and hired a different company to repair his roof for less than Hoosier would have charged him. A deceptive act that deceives no one injures no one.”

Thus, the justices concluded Hoosier Contractors “proved the absence of a genuine factual dispute on a determinative issue — that Gardner suffered no injury,” and Gardner failed to create an issue of fact.

But Slaughter concluded by adding, “Our disposition today does not mean that Hoosier necessarily escapes legal liability for its business practices generally or even its practices as to Gardner specifically. The attorney general retains enforcement authority to seek any number of statutory remedies against those that violate the Act, including obtaining injunctions and securing civil penalties.”

The case was remanded with instructions to dismiss Gardner’s counterclaim.

In a separate opinion, Justice Christopher Goff — joined by Chief Justice Loretta Rush — concurred in the judgment but wrote to “express (his) concern that the majority’s reliance on recent developments in federal standing doctrine could do injury to Indiana law.”

Goff pointed to Indiana Code § 24-5-0.5-4, the statute underlying the Home Improvement Contractors Act, which holds that “(a) person relying upon an uncured or incurable deceptive act may bring an action for the damages actually suffered … .” It also provides that a person can pursue a class action “on behalf of any class of persons of which that person is a member and which has been damaged by such deceptive act.”

“… I conclude that an action may be brought on behalf of a class who suffered damages in reliance on a defendant’s act,” Goff wrote. “The deceptive act itself is not, therefore, a compensable loss in these circumstances. Here, Gardner designated no evidence of loss, harm, or damage beyond the alleged deceptive acts, and therefore Hoosier is entitled to summary judgment.”

In the majority opinion, Slaughter addressed, among other cases, Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), where a consumer tried to sue a consumer-reporting agency under the Fair Credit Reporting Act of 1970 for allegedly making an inaccurate credit report about him.

In the Spokeo decision, the U.S. Supreme Court held that a consumer “cannot allege a ‘bare procedural violation’ sufficient to confer standing … without also alleging the violation caused him injury.”

While Goff noted Slaughter’s opinion didn’t expressly adopt federal standing law, he said he was “concerned … that continued reliance on the United States Supreme Court’s standing doctrine could do harm to Indiana law, especially considering where the Court has gone since Spokeo.”

“… Further reliance on cases like Spokeo could lead this Court down the road of reviewing whether rights the General Assembly has decided to protect are sufficiently ‘concrete’ to confer standing,” Goff concluded. “This would be an interference with the power of the legislature to define Hoosiers’ rights and to provide remedies, including nominal or statutory damages, when those rights are violated. For this reason, I concur only in today’s judgment.”

Court of Appeals of Indiana

July 13

Heidi Marie Littlefield v. State of Indiana

22A-CR-2895

Woman who killed ex by poisoning, strangulation loses appeal of murder conviction, 115-year sentence

A woman found guilty of killing her ex-boyfriend by poisoning his oatmeal and strangling him failed to convince the Court of Appeals of Indiana that her murder conviction should be tossed or that her 100-plus-year sentence is inappropriate.

Heidi Littlefield was convicted of murder, Level 1 felony conspiracy to commit murder and Level 2 felony conspiracy to commit murder for the killing of her ex-boyfriend, Francis Kelley.

Littlefield’s relationship with Kelley soured after the birth of their child, B.K. Littlefield didn’t want Kelley to have a relationship with B.K. or her adult children.

After filing a petition to establish custody, parenting time and child support in March 2020, Littlefield approached two of her adult daughters about purchasing drugs to poison Kelley. They refused, so Littlefield asked another daughter, Logan Runyon, to help get fentanyl.

In exchange, Littlefield promised to give Runyon some of the life insurance proceeds from Kelley.

In October 2020, Littlefield brought Kelley soup that she and Runyon had laced with the fentanyl. Although it made Kelley sick, he didn’t die.

Littlefield then spoke with Runyon’s boyfriend, Robert Walker, about hiring a hitman to kill Kelley. Walker said he “knew someone,” and Littlefield gave him a $2,500 down payment. However, Walker and Runyon spent the money on hotels and drugs.

Littlefield and Runyon got more fentanyl in January 2021 and laced refrigerated oatmeal.

Kelley ate it the next day and texted Littlefield that he felt “funny” and “light-headed.” Shortly after, Littlefield and Runyon went to Kelley’s house, where he was lying on the floor but still breathing.

Littlefield got one of his ties and strangled Kelley while slamming his head to the floor.

She was found guilty as charged by a jury in the Hamilton Superior Court and sentenced to an aggregate term of 115 years.

On appeal, Littlefield argued the murder conviction should be reversed because the state didn’t establish that she killed Kelley, only that she attempted to kill him.

Littlefield cited the autopsy report that found the primary cause of death was asphyxia due to strangulation rather than acute fentanyl intoxication. Even though Runyon testified at trial that Littlefield strangled Kelley, Littlefield argued he was still alive when they left his house.

The Court of Appeals wasn’t persuaded, citing Littlefield’s role in planning the killing and the evidence pointing to her as the last known person to see Kelley alive.

Littlefield also argued the dual convictions for murder and Level 1 conspiracy to commit murder can’t stand because of the double jeopardy prohibition in the Indiana Constitution.

When applying the double jeopardy test announced in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), Littlefield argued her murder conviction should be set aside. Specifically, she argued that neither the murder statute nor the conspiracy to commit murder statute include language that expressly states or implies multiple punishments are permitted.

Indiana treats the offense of conspiracy to commit an offense as a separate crime from the underlying offense, the Court of Appeals said, citing Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011). Thus, there was no double jeopardy violation in Littlefield’s case under the Wadle test, the Court of Appeals ruled, allowing both convictions to stand.

Littlefield also argued the 115-year aggregate sentence was inappropriate considering the nature of the offenses and her character. She received 60 years for murder, 35 years for the Level 1 felony and 20 years for the Level 2 felony — all of which were more than the advisory sentence but five years less than the maximum.

Littlefield argued the sentence should be revised because of her habitual drinking and difficult childhood.

The Court of Appeals disagreed.

“The horrendous circumstances of the crimes, along with Littlefield’s persistent pattern of trying to kill Kelley that ultimately deprived B.K. of a father, her continued manipulation of Runyon to participate in the murder plot, and the fact that she left her minor daughter in the car during the murder, do not warrant a revision of the sentence when examining the nature of the offenses,” the opinion says.

Turning to her character, the Court of Appeals ruled Littlefield’s anger toward Kelley and desire to exclude him from B.K.’s life — along with threats made against her daughter to keep her involved in the murder plot — “speaks volumes” about her “poor character.”

Chief Judge Robert Altice wrote the opinion. Judge Dana Kenworthy and Senior Judge Margret Robb concurred.

The case is Heidi Marie Littlefield v. State of Indiana, 22A-CR-2895.

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July 17

Billy Gene Luke v. State of Indiana

23A-CR-50

Man whose witness list included President Biden forfeited right to self-representation, COA affirms

A trial court did not err when it found that a man charged with stalking and invasion of privacy forfeited his right to self-representation, the Court of Appeals of Indiana affirmed in an interlocutory appeal.

Billy Luke, who was charged in May 2022, filed a motion with the Dearborn Circuit Court to proceed pro se. Luke accused the trial court judge of “uncivilized and unruly behavior” against him in a prior cause and of being “belligerently angry in an unhinged manner,” among other things.

He also accused county judges, prosecutors and law enforcement officers of operating “in criminal concert with each other over the years to violate Billy Luke’s most basic rights.”

Luke also filed a witness list with 135 people, including President Joe Biden and Indiana Gov. Eric Holcomb.

At his initial hearing, Luke reiterated his desire to proceed pro se, and the court informed Luke that if he did that, he would have to comply with the court’s rulings. Luke stated he would do so.

The court then took judicial notice of the prior cause Luke referenced, where the same judge found he had forfeited his right to self-representation after filing multiple motions that had “no legitimate purpose.”

About a week after the initial hearing, Luke filed more than 400 pages of documents with the court, the relevance and purpose of which weren’t clear.

The documents did, however, include disparaging comments about the judge and apparent threats.

The court then found Luke had forfeited his right to self-representation and appointed him counsel, concluding that Luke’s filings included “threatening” language and that it was “clear that his purpose in self-representation is to attack the Court System and all those involved who he can bring into his proposed conspiracy theory,” among other findings.

Luke appealed, but the Court of Appeals ruled the trial court’s conclusion was supported by the record.

The relevance of the 400-plus pages of documents “is not clear,” the opinion says.

“What is clear, however, is that Luke’s submissions reflect dilatory tactics and an intent to distort the State’s Level 4 felony stalking and Level 6 felony invasion of privacy charges against him,” the opinion says.

Luke argued that the trial court erred because none of his submissions were in violation of a court order and that the trial court’s judgment was based on what the court “fears” he might do because of prior cases.

The Court of Appeals disagreed.

“Luke’s abuse of his pro se status, whether it was in violation of a standing order or not, is a sufficient basis upon which a court may terminate the right to self-representation,” the opinion says.

Judge Paul Mathias wrote the opinion. Judges Nancy Vaidik and Rudolph Pyle concurred.

The opinion is Billy Gene Luke v. State of Indiana, 23A-CR-50.

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July 19

Joe A. Viverett v. State of Indiana

22A-CR-2076

COA affirms court doesn’t need to revisit suppression issue for man who lodged ‘standing objection’ to ‘literally anything’

A man who lodged a “standing objection” to “literally anything” stemming from a warrantless search of his home didn’t argue the evidence presented at trial was in direct conflict with evidence presented at a suppression hearing, so the trial court didn’t need to revisit the issue, the Court of Appeals of Indiana has affirmed.

Joe Viverett was convicted by a jury in July 2022 of two counts of Level 4 felony unlawful possession of a firearm by a serious violent felon. He was also found to be a habitual offender.

The previous January, Indiana Department of Correction officers had gone to a home in Marion County where they believed a parolee was staying. The home belonged to Viverett.

The parolee had signed a contract allowing officers to conduct compliance checks at residences where he was staying as a condition of his parole. The parolee initially denied living at the address, but officers confirmed he sent text messages giving the address as his own.

The address wasn’t approved by the parole office, so officers went there to do a compliance check. Nobody answered the door, so officers used keys previously confiscated from the parolee to enter.

Officers found Viverett sleeping in a bedroom upstairs and believed he had a gun in plain view on the floor. Officers also saw other guns around the house, a box of what appeared to be synthetic marijuana, a digital scale and a pipe containing white residue.

The officers requested assistance from Indianapolis police, who obtained a search warrant. Officers found a shotgun and located a video security system that showed footage of Viverett holding a shotgun and handgun.

Viverett was charged with two counts of Level 4 felony unlawful possession of a handgun by a serious violent offender, Level 4 felony unlawful possession of a shotgun by a serious violent offender and Class C misdemeanor possession of paraphernalia.

Viverett moved to suppress, but the Marion Superior Court declined, finding it was reasonable for the officers to conclude the address was the parolee’s residence or a place where his personal property could be.

The state dismissed the misdemeanor charge but added a habitual offender allegation.

At trial, Viverett lodged a continuing objection to the admission of any evidence found following the parole officers’ warrantless entry into his home. A magistrate judge ruled the judge’s denial of Viverett’s motion to suppress would stand but approved the continuing objection.

A jury found Viverett guilty of both firearm possession charges. Viverett waived his right to a jury trial for the habitual offender allegation, and the magistrate judge found him to be a habitual offender.

He was sentenced to concurrent eight-year sentences for the firearm possession convictions, and his sentence for possession of a handgun was enhanced by six years.

On appeal, Viverett challenged the trial court’s “admission of the evidence — the firearms — discovered as a result of the parole officers’ warrantless entry into his home.”

He acknowledged that although his pretrial motion to suppress was denied, because the appeal follows a completed trial and conviction, the suppression issue is no longer viable and the issue is characterized as a request to review the trial court’s decision to admit any challenged evidence.

But the Court of Appeals affirmed Viverett’s convictions, ruling he “does not argue that the evidence presented at trial was in direct conflict with evidence presented at the suppression hearing, and he does not direct this Court to any such evidence in the record.”

Without more, the Court of Appeals ruled, “neither the trial court nor this Court must fully revisit the suppression issue.”

The opinion says Viverett was correct that if a defendant makes a contemporaneous objection during trial to the state’s foundational evidence and the evidence isn’t the same as at the suppression hearing stage, then the trial court must determine whether certain evidence is admissible based on the testimony and evidence presented at trial.

“Here, however, the trial court was deprived of such an opportunity because that is not the objection that Viverett made,” the opinion says.

Instead, at the outset of trial, Viverett lodged a simple “standing objection” to “literally anything — physical items found in the house and statements made by any person as I believe the entry into the home was unconstitutional.”

“Viverett’s simple objection here clearly did not alert the trial court that any new factual or legal matters had arisen since the suppression hearing,” the opinion says.

In a footnote, the COA acknowledged different judicial officers presided over the suppression hearing and the trial but, citing Magley v. State, 263 Ind. N.E.2d (1975), “the trial court here was not required to fully revisit the suppression issue absent a showing of ‘new factual or legal matter[s],’ and thus the change of judicial officers here is of no moment.”

Judge Terry Crone wrote the opinion. Judge Dana Kenworthy and Senior Judge Margret Robb concurred in Joe A. Viverett v. State of Indiana, 22A-CR-2076.

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Emmett Lawrence v. State of Indiana

23A-CR-6

COA: 2022 permitless carry law not remedial, retroactive

A man who attempted to use Indiana’s 2022 permitless carry law to defeat his carrying-without-a-license conviction failed to find relief at the Court of Appeals of Indiana, which agreed with the trial court that the 2022 law is not remedial or retroactive.

In 2021, Emmett Lawrence was charged with Class A misdemeanor carrying a handgun without a license under Indiana Code § 35-47-2-1. About a year later, on July 1, 2022, the Indiana General Assembly amended the statute to allow for permitless carry.

Lawrence’s case was pending at the time, and he was later convicted by a Marion Superior Court judge. His counsel asked for the new statute to be taken into consideration at sentencing, and the trial court ultimately sentenced him to 180 days, with eights days executed and 172 days suspended to nonreporting probation.

On appeal, Lawrence argued that the 2022 amendment to the statute was remedial and therefore applies retroactively to him.

But the appellate court disagreed.

“The amendment was not intended to cure a defect in the statute,” Judge Nancy Vaidik wrote in Emmett Lawrence v. State of Indiana, 23A-CR-6.

The Court of Appeals compared Lawrence’s case to two Indiana Supreme Court decisions: N.G. v. State, 148 N.E.3d 971 (Ind. 2020), and Martin v. State, 774 N.E.2d 43 (Ind. 2002).

N.G. involved an expungement petition for a felony conviction that had been reduced to a misdemeanor. The relevant statute required N.G. to wait five years before seeking expungement, but it wasn’t clear when that five-year period began.

The trial court denied the expungement petition, and while the appeal was pending, the Legislature amended the statute “to alleviate the confusion and made the change effective immediately.”

“Under the updated version, N.G.’s expungement petition would have been granted,” Vaidik wrote. “Our Supreme Court held that the amendment was remedial because ‘it cured a mischief that existed in the prior statute, namely, confusion on when the waiting period begins for certain ex-offenders seeking expungement.’”

Martin involved the question of whether the defendant could receive credit for time served on home detention as a condition of his probation. The relevant statutes did not address that question, and there was a conflict of authority.

As in N.G., Martin’s appeal was still pending when the Legislature revised the statutes to “explicitly provide probationers with home-detention credit.”

Contrasting Lawrence’s case with those decisions, the COA held, “The (permitless carry) amendment did not clear up any confusion in a statute, like in N.G., or address silence in a statute, like in Martin. And Lawrence doesn’t cite a single case to support his argument that the 2022 amendment is remedial.”

Judges Paul Mathias and Rudolph Pyle concurred.

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July 20

Bryan Priest v. State of Indiana

22A-MI-2845

Database readout wasn’t hearsay, administrative violation, COA affirms

A database readout that was admitted in lieu of a missing breath-test ticket was not hearsay, nor was it a violation of the Indiana Administrative Code, the Court of Appeals of Indiana has ruled in a decision that drew a word of “caution” from the panel.

In August 2019, Indiana State Police Trooper Nathaniel Hampton saw a dump truck pull onto State Road 267 in Hendricks County. He performed a “random inspection” of the vehicle, during which he smelled alcohol on the breath of the driver, Bryan Priest.

Priest passed several field sobriety tests and was taken to the Plainfield Police Department for a certified breath test. He informed the police that he’d had six Coors Light beers the previous night and had stopped drinking around 1 a.m. Hampton stopped him just before 8 a.m.

Priest’s alcohol concentration equivalent was .042, so police issued him a traffic infraction ticket for operating a commercial vehicle with alcohol concentration equivalent to 0.04 but less than 0.08 pursuant to Indiana Code § 9-24-6.1-6.

The case was initially litigated in the Plainfield Town Court, which entered judgment against Priest.

At a subsequent proceeding, Hampton testified that he provided copies of the breath-test report to both parties, but it was never admitted into evidence.

Priest then appealed to the Hendricks Superior Court, where both parties disputed the admissibility of the breath-test results as recorded by the traffic infraction ticket. The breath-test ticket wasn’t admitted again, and the state sought to prove Priest’s ACE using only the traffic infraction ticket.

The Hendricks Superior Court ruled the traffic infraction ticket was admissible. Priest then filed a motion to certify the ruling for an interlocutory appeal, which was granted.

The Court of Appeals reversed the trial court’s ruling in 2022.

On remand, the trial court asked where the original ticket went, and the state admitted it didn’t know. Instead, the state looked to an unsigned database readout from the Department of Toxicology.

Priest argued that the database readout was inadmissible because it constituted hearsay and didn’t conform with the requirements of the Indiana Administrative Code. The trial court rejected the hearsay argument without explanation.

As for the administrative code argument, the trial court ruled, “So, the Court finds as follows: number one (1), the breath test, the original or a copy is not present, there is no signature, so step 10 has not been complied with of the [ ] Indiana Administrative Code 260. However, the tests were performed according [sic], except for the signature, were performed according to Indiana Administrative Code, we had a trooper testify to all the steps.”

The trial court then found Priest “guilty” and asked if he was going to appeal before it assessed any fines and costs.

Priest did appeal, arguing the trial court erroneously admitted the evidence. He once again claimed the database readout was hearsay.

Rejecting that argument, the COA pointed to the “mechanical hearsay rule.”

“(T)he Intox ECIR II, or any other machine for that matter, cannot perceive or remember. It cannot narrate or feign sincerity. And it cannot be cross-examined. Those realities all apply with equal force to the servers that host the Department of Toxicology database that stores ACE test results,” Judge Peter Foley wrote, citing Cranston v. State, 936 N.E.2d 342 (Ind. Ct. App. 2010). “We find that Cranston and the mechanical hearsay rule are controlling here, and, thus, the trial court did not err in admitting the database readout over Priest’s hearsay objection.”

The appellate court also determined that the administrative code doesn’t apply to the database readout in the case.

“We are, therefore, faced with a strange and potentially dangerous conclusion: state law conditions the admissibility of breath test results on the strict compliance with rigorous standards — designed and adopted by the Department of Toxicology — for all breath tests unless the test is administered to the driver of a commercial vehicle cited under I.C. 9-24-6.1-6,” Foley wrote. “We cannot, of course, know whether that result is the product of considered intent by the General Assembly, or the product of mere inadvertence.”

The appellate court thus declined Priest’s invitation to hold that the code applies to commercial driver’s licenses cases or that the requirement applies to documents other than the test ticket.

But Foley added a note of caution to the court’s ruling.

“A word of caution: our decision today should not be read to suggest that the State may end-run around the necessity for breath test standards merely by citing commercial drivers under Indiana Code Section 9-24-6.1-6,” he wrote. “Section 260 of the Code may not yet formally apply to citations under that statute, but we find it illuminating that the State laid the foundation to demonstrate that Trooper Hampton did, in fact, comply with the requirements of the Code. In other words, while demonstrating compliance with the Code may not be strictly necessary, it is certainly sufficient to demonstrate that the breath test administered was reliable.”

Judges Nancy Vaidik and Elizabeth Tavitas concurred.

The case is Bryan Priest v. State of Indiana, 22A-MI-2845.

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July 26

Mallory Stout v. Tanner Knotts

22A-PL-1216

Judge’s statements fell ‘woefully short’ of expected conduct, COA rules in ordering new judge

A Putman County judge’s comments that included profanity and negative connotations about women fell “woefully short” of the expected conduct for judicial officers, the Court of Appeals of Indiana has ruled in reversing a denial to correct error. The appellate court also determined the plaintiff is entitled to a new judge in the case involving an implied contract to cohabitate.

Mallory Stout and Tanner Knotts are unmarried but chose to cohabitate in Roachdale. Stout selected the home, which Knotts then purchased for $69,900 in his name.

While they lived together, Stout and Knotts had an agreement that they would use their own assets to make improvements and increase the value of the home. Stout paid for utilities and a “large portion” of the renovations.

In July 2021, Knotts forced Stout the leave the home. He later sold the home for $149,000.

The following November, Stout filed a complaint against Knotts, alleging the two had an implied contract to cohabitate where she would contribute to the rehabilitation and maintenance of the home. She alleged her removal from the house and Knotts’ sale of the home without her being compensated resulted in Knotts’ unjust enrichment.

Stout also filed a temporary restraining order to prevent Knotts from spending the money he received from the sale before the matter was resolved. The temporary restraining order was granted.

Knotts filed a request for an extension of time to respond and a motion for a change of judge.

The motion for a change of judge was granted, and Judge Charles Bridges was selected in the Putnam Circuit Court.

In December 2021, Stout filed a motion requesting that the trial court order the proceeds from the sale of the home to be held by the Putnam County clerk while the matter was pending.

Knotts filed a motion to dismiss pursuant to Trial Rule 12(B)(6), arguing Indiana did not recognize palimony and, because the parties were not married and the home was solely in Knotts’ name, Stout failed to state a claim upon which relief could be granted. He also objected to the temporary restraining order and the transfer of the proceeds to the county clerk.

Before Stout filed a response, Judge Bridges granted Knotts’ motion to dismiss.

Stout then filed a motion to correct error, arguing she adequately stated a claim recognized under Indiana law.

The next day, before a response was filed, Judge Bridges granted Stout’s motion, vacating the order dismissing her complaint.

In January 2022, Stout filed a second motion requesting an order directing that the funds from the sale of the home be held by the Putnam County clerk. That order was granted the same day.

Knotts then filed a motion to correct error, arguing the court shouldn’t have granted Stout’s motion to correct error before he had an opportunity to respond. He also argued Stout didn’t follow the proper procedures for challenging the grant of a motion to dismiss.

Knotts also filed a motion requesting that the trial court release the funds from the sale of the home to him.

Before Stout could file a response, the court granted Knotts’ motion to correct error.

Five days later, Stout filed a response to Knotts’ motion to correct error.

Before Knotts filed a response, Judge Bridges issued an order acknowledging he had already granted Knotts’ motion and giving Knotts 15 days from the date of his order to file a response. In addition, Judge Bridges denied Knotts’ request to release the funds from the sale of the house to him.

Judge Bridges held a telephonic pretrial conference on March 8, 2022. A trial date of Sept. 22, 2022, was scheduled.

After the pretrial conference, Stout filed a motion requesting Judge Bridges recuse himself.

According to the motion, Bridges had told the parties that “regardless of what everyone else’s position is in Indianapolis, that if [the parties] weren’t married and [Stout] lived there and had the benefit of living there and now wants to claim what everyone calls ‘sweat equity’ . . . bullsh*t. There is no sweat equity in this Court.”

Further, according to the motion, Bridges also said he had never upheld the status of the law in Indiana regarding the equitable theory of unjust enrichment or implied contract, adding, “It does not sit well with me.” He then “elaborated and stated that (he) sees women do this all the time and it’s horsesh*t.

Judge Bridges took no action and didn’t make a ruling on the motion for recusal.

In March 2022, Knotts filed a motion asking the trial court to vacate the trial date, arguing that when the court granted his motion to correct error, it effectively returned the procedural posture of the case to the point when Stout’s complaint had been dismissed.

Knotts also acknowledged that he had yet to file an answer or counterclaim. As a result, Knotts asserted that with Stout’s case being dismissed, a trial date was unnecessary.

Stout filed an objection to Knotts’ motion to vacate the trial setting.

In April 2022, the trial court granted Knotts’ motion and vacated the trial setting. The court also found Stout’s complaint should be dismissed without prejudice.

Knotts then filed a motion for release of funds, which the trial court granted.

In May 2022, Stout filed a motion to correct error, which the trial court denied.

Stout then appealed, arguing the trial court erred in denying her motion to correct error because her complaint adequately states a claim for relief under Indiana law.

The Court of Appeals agreed, ruling that in Indiana, “a party who cohabitates with another without subsequent marriage is entitled to relief upon a showing of an express contract or a viable equitable theory such as implied contract or unjust enrichment,” citing Bright v. Kuehl, 650 N.E.2d 311 (Ind. Ct. App. 1995).

Based upon Stout’s allegations, the Court of Appeals determined Stout stated a claim upon which relief can be granted.

“We make no comment on whether Stout will produce sufficient evidence to be successful,” the opinion says, “but the allegations in her complaint are sufficient to warrant remand of this case for further proceedings.”

Stout also argued the trial court erred by failing to rule on her motion for recusal. Recusal is required, she argued, because Judge Bridges demonstrated his inability to be impartial.

Knotts did not dispute the accuracy of the statements outlined in Stout’s motion, nor did he address the trial court’s failure to rule on the motion. Knotts argued instead that a trial court’s adverse ruling is not a basis for recusal.

The Court of Appeals agreed with Stout, citing the Indiana Supreme Court’s expected conduct for judicial officers in Hollinsworth v. State, 928 N.E.2d (Ind. 2010).

“Here, Judge Bridges’ statements, as outlined in Stout’s recusal motion, fall woefully short of this standard,” the opinion says. “His statements go beyond merely expressing skepticism about Stout’s claims in her complaint. Judge Bridges clearly expressed disdain, not only for the type of relief Stout was seeking, but for the gender he believed most often sought this type of relief.”

The Court of Appeals reversed the order denying Stout’s motion to correct error and remanded for further proceedings. The Court of Appeals also reversed the trial court’s order releasing the funds from the sale of the home and ruled that, on remand, Stout is entitled to a new judge.

Judge Rudolph Pyle wrote the opinion. Judges Cale Bradford and Dana Kenworthy concurred.

The case is Mallory Stout v. Tanner Knotts, 22A-PL-1216.•