Indiana Court Decisions – July 2–17, 2019

7th Circuit Court of Appeals

July 2

Civil Plenary — Insurance/Denial of Coverage

Emmis Communications Corp. v. Illinois National Insurance Co.

18-3392

A federal appeals court reversed a breach-of-contract ruling for media company Emmis Communications Corp. arising from a shareholder dispute. The 7th Circuit Court of Appeals ruled the district court should have found in favor of Emmis’ insurer instead.

Indianapolis-based Emmis sued Illinois National Insurance Co. when the latter refused to pay up on a directors and officers liability insurance policy purchased by Emmis to cover a period from Oct. 1, 2011 to Oct. 1, 2012. Emmis sought more than $4 million in legal fees that its insurer refused to cover.

That policy had an exclusion for any losses in connection with events that included “[a]ll notices of claim of circumstances as reported under policy 8181-0068 issued to Emmis Corporation by Chubb Insurance Companies,” Emmis’ prior directors and officers liability insurance provider.

When three shareholders sued to stop Emmis from gaining control of its shares to go private, and Illinois National subsequently refused coverage, Emmis sought damages for breach of contract and breach of the duty of good faith and fair dealing.

Both parties sought summary judgment from the Southern District Court in Indianapolis. Emmis argued that coverage was appropriate, and Illinois National argued that the policy’s complex exclusion provisions prevented coverage. Illinois National further contended that the “as reported” provision excluded all notices that were reported to Chubb at any time, including the suit giving rise to this litigation.

However, Emmis claimed that it excluded only those notices that had been reported at the time that the policy went into effect two years prior to reported notice. The Southern District Court ultimately granted judgment in Emmis’ favor, concluding that while both interpretations of the term were reasonable, Emmis’ was better.

“The court thought that the past tense of ‘as reported’ must ‘refer[] to events that had already occurred at the time of drafting.’ It bolstered its holding by invoking the rule favoring coverage when multiple reasonable readings of an insurance policy might apply,” the 7th Circuit said.

But the appellate court found the entire case could be resolved on the single issue of the meaning of “as reported.” It disagreed with the district court, finding Illinois National’s proposed interpretation to be correct.

“The phrase has no discernable temporal limitations. Once Emmis or one of its agents reports a claim to Chubb, at any time, then that claim is ‘reported’ — and so is excluded. The timing of the report is irrelevant,” Circuit Judge Amy Coney Barrett wrote for the panel.

“Emmis acknowledged in its brief that it did in fact report its claim to Chubb. That resolves our inquiry,” the panel continued. “The exclusion applies, so summary judgment should have been entered in favor of Illinois National.”

The 7th Circuit thus reversed and remanded Emmis Communications Corporation v. Illinois National Insurance Co., 18-3392, for proceedings.

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July 12

Civil Plenary — Termination of Employment/Reversal

Oliver Collins v. University of Notre Dame Du Lac

18-2559, 18-2579

A fired Notre Dame professor convicted of a felony for theft of grant money and found to have possessed pornographic images on university computers lost on appeal a judgment in his favor of more than $500,000 in a breach of contract lawsuit against the university.

While employed as an electrical engineering professor at Notre Dame University, Oliver Collins received $266,516 from the National Science Foundation to purchase five pieces of “high speed, mixed signal test equipment” and a computer as part of a grant award. Notre Dame contributed matching funds, and NSF further awarded Collins $240,000 to support another project, which the university also matched.

However, NSF suspended its grants to Collins years later upon discovery that he had used the funds to purchase different equipment for a different purpose than what the grant monies were intended.

Collins received a letter of sanctions and dismissal from the school listing numerous charges, including that he had “used equipment purchased with NSF funds for extensive personal purposes, with negligible if any scientific use of the equipment” and “took and stored sexually explicit and pornographic images using university computing resources.” Several computers that were in Collins’ care and under his responsibility also contained sexually explicit and pornographic images.

A hearing committee selected to review the case consisted of three elected, tenured members of the academic council, including Father John Coughlin, who also participated in informal mediation efforts. The committee ultimately concluded unanimously that Collins should be dismissed for “serious cause” that had been shown by clear and convincing evidence.

Collins was dismissed from the university, and he later pleaded guilty to a federal felony charge arising from his conduct of misusing government grant money. Before his guilty plea, Collins filed a breach of contract suit against Notre Dame, alleging it had breached his contract because the hearing committee’s findings did not meet the definition of “serious cause.”

The Northern District Court granted summary judgment to Collins based on his argument that the university violated the contract’s procedural requirements, finding that Coughlin should have recused himself from his service on the hearing committee. It did not however, determine if there was a serious cause for dismissal, but did find Collins had been wrongfully terminated as a result of the procedural breach.

Northern District Judge Joseph S. Van Bokkelen rejected Notre Dame’s argument that the procedural breach found was not material, awarding Collins $501,367 in damages for lost compensation from the date of his dismissal from Notre Dame until the date of his felony conviction. However, a second hearing committee again unanimously found “serious cause” to dismiss Collins given his guilty plea and the conduct that was the subject of the first adjudication.

The 7th Circuit Court of Appeals reversed the lower court’s grant of judgment and award of damages to Collins in Oliver Collins v. University of Notre Dame Du Lac, 18-2559, 18-2579.

In addressing the issue of Coughlin’s participation on the hearing committee, the 7th Circuit found that although participation in the informal resolution process may give rise to bias or interest, it does not necessarily do so.

“There is no evidence in the record of any actual bias or interest on the part of Father Coughlin arising from his role in the informal mediation or anything else. As best we can tell, Dr. Collins did not try to prove actual bias on the part of Father Coughlin, whether arising from the brief attempt at mediation or otherwise,” Circuit Judge David F. Hamilton wrote for the panel.

“Accordingly, we conclude that the undisputed facts show that Notre Dame complied with the contractual procedures in Dr. Collins’s adjudication. There was no procedural breach of the contract in the 2010 dismissal,” Hamilton continued. “We must therefore reverse the judgment of the district court, which was based on an erroneous finding of such a procedural breach.”

The 7th Circuit further found serious cause existed for his dismissal in the facts of the case as determined by the hearing committee’s findings, which fall squarely within the Academic Articles’ definition of “serious cause.”

“Given that a felony conviction is listed as an event that constitutes serious cause, we see no room for debate about whether his firing was substantively justified,” the panel added. It thus reversed the district court’s award of judgment and damages to Collins and remanded with instructions to enter judgment in Notre Dame’s favor.

Indiana Supreme Court

July 16

Criminal — Domestic Battery/Invalid Waiver of Right to Jury Trial

Mohamed M. Dadouch v. State of Indiana

19S-CR-404

A Knox County man had his misdemeanor conviction overturned after the Indiana Supreme Court found he did not validly waive his right to a jury trial.

Mohamed Dadouch was found guilty at a bench trial of a Class A misdemeanor domestic battery. He had signed two separate advisement of rights forms, but when he filed motions to continue the trial date and set the case for a jury trial, the Knox Superior Court denied the request for a jury trial as untimely.

Dadouch’s counsel argued he had asked his prior counsel to request a jury trial but no demand was filed. The attorney speculated there may have been a “linguistic barrier.”

Again, the court denied the request for a jury trial and set a date for a bench trial. At the start of that hearing, Dadouch renewed his demand for a jury to hear his case, but the court proceeded with the bench trial and found him guilty.

The Indiana Court of Appeals affirmed the conviction in a memorandum decision filed March 14, 2019.

However, the Indiana Supreme Court took a closer look at the two advisement forms and found neither completely explained the rights defendants charged with misdemeanors have to demand a jury trial.

In particular, neither form advised Dadouch he had to file for a jury trial no later than 10 days before the scheduled trial date, and that failure to file would automatically waive his right. Also, by the time he signed the second advisement form, the deadline to request a jury trial had passed.

The Supreme Court granted transfer and in a per curiam decision reversed Dadouch’s conviction in Mohamed M. Dadouch v. State of Indiana, 19S-CR-404. Noting they agreed with the Court of Appeals that the evidence was sufficient to support the conviction, the justices pointed out the state is free to retry the defendant.

Also, the justices offered some advice to trial courts handling misdemeanor cases.

“While it is not required that trial judges use a written advisement of rights form in misdemeanor cases, it is the best practice and we urge all trial judges to incorporate an accurate one into their practices,” the Supreme Court wrote. “The very best practice in these cases is to use both a written advisement of rights form together with the dialogue to insure that a reversal does not occur.”

Indiana Court of Appeals

July 11

Juvenile Paternity — Child Custody/Consideration of Active Duty Military Status

Matthew Purnell v. Kayla Purnell

19A-JP-162

An Indiana trial court improperly considered a father’s active duty status when awarding custody of his child to his estranged wife, but that error does not change the custody determination, the Indiana Court of Appeals has ruled.

Matthew and Kayla Purnell lived on a United States Air Force base in California until April 2016, when Kayla moved back to Indiana due to allegations of Matthew’s infidelity. Kayla was pregnant at the time of the move, and she gave birth about two weeks after coming back to the Hoosier state.

The following June, Matthew traveled to Indiana with the intent of taking the child back with him to California, but Kayla was able to thwart his plan. Instead, Matthew has exercised parenting time with the child in Indiana on eight or nine occasions.

Kayla has remained the child’s primary caregiver, maintaining full-time work as a security guard and taking college classes part-time. Though she has been diagnosed with mental health disorders, Kayla’s caregivers do not have concerns about her ability to care for the child.

Meanwhile, Matthew now lives on an Air Force base in North Dakota with his girlfriend and their child. He filed for divorce in August 2016 in California, and the custody matters of the case were transferred to the Johnson Circuit Court in Indiana.

The Indiana trial court eventually awarded sole legal and primary physical custody of Kayla and Matthew’s child to Kayla, raising concerns about Matthew’s foiled plan to abduct the child. The court also noted “the anticipated transient nature of Father’s future employment with the Air Force.”

On appeal in Matthew Purnell v. Kayla Purnell, 19A-JP-162, Matthew argued the trial court improperly considered his active duty status when awarding custody to Kayla. The appellate court agreed, with Judge Patricia Riley writing that Matthew’s situation falls under Indiana Code section 31-17-2-21.3(a). That statute holds that “(a) court may not consider a parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.”

“Although Mother proposes to limit the application of the statute to an ‘active duty combatant who has been deployed to another country for a limited period of time,’ no such language is included in section (a) of the statute, nor are we persuaded to constrain the statute’s interpretation as Mother suggests,” Riley said.

Even so, the appellate court did not reverse the custody determination. Instead, the panel said the error was harmless in light of the trial court’s findings regarding Kayla’s strides with her mental health diagnoses, as well as her Indiana support network and her bond with the child. Those strides were countered by the trial court’s concerns about Matthew’s thwarted abduction plan.

“Mindful of our deference to the trial court in custody cases and without acknowledging the trial court’s conclusions with respect to Father’s active duty status,” Riley wrote, “we find that, in light of the totality of the remaining trial court’s findings and conclusions, sufficient evidence exists to support the trial court’s grant of sole legal custody and primary physical custody of the Child to Mother.”

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July 12

Civil Tort — Negligence/Medical Malpractice Act

Linda Martinez, as the Personal Representative of the Estate of Roy Martinez v. Oaklawn Psychiatric Center

18A-CT-2883

A man’s estate could not convince an appellate panel that a psychiatric center where he was staying was liable for his death based on the theory of premises liability.

Roy Martinez was a former patient at Metcalf House, a voluntary group home operated by Oaklawn Psychiatric Center that offered supervised living for patients who don’t require inpatient services.

While staying at the home, Martinez was involved in a fight with Metcalf resident assistant Kennedy Kafatia after Martinez refused to go to bed. In the midst of their scuffle after both reaching for a lamp, Martinez suffered a leg injury when Kafatia kicked him in the shin. Kafatia called 911 but stayed away from Martinez while waiting for police to arrive, which was consistent with Oaklawn’s protocol for handling altercations with the psychiatric patients of Metcalf House. The large laceration on his leg ultimately killed Martinez, and his estate sued Oaklawn, alleging liability for Martinez’s injuries and resulting death under the Wrongful Death Act in Linda Martinez, as the Personal Representative of the Estate of Roy Martinez v. Oaklawn Psychiatric Center, Inc., 18A-CT-2883.

Oaklawn filed a motion to dismiss, asserting that because it was a qualified health care provider under Indiana’s Medical Malpractice Act, the estate was required to file its claim with a medical review panel. A trial court granted the motion, finding that Kafatia’s alleged conduct was “not ‘unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment.’”

In its affirmation of the dismissal, the Indiana Court of Appeals found Kafatia’s attempts to enforce Martinez’s curfew by telling him to go to bed, attempting to turn off the light and ultimately kicking him was a part of Oaklawn’s provision of health care to Martinez.

The appellate court cited Cox v. Evansville Police Department, et al., 107 N.E.3d 453 (Ind. 2018), noting that the current test under Trial Rule 12(B)(1) regarding whether the MMA applies to specific misconduct is to determine “whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship.”

“When the altercation occurred that injured Martinez, Kafatia was naturally responding to Martinez’s physically aggressive behavior by defending himself. Kafatia thereafter followed Oaklawn’s protocol by removing himself from Martinez’s immediate physical presence and waiting for law enforcement to assist with Martinez,” Judge Paul Mathias wrote for the panel.

“These facts and circumstances, together with the broadened scope of employment set forth in Cox, place the incident and injuries squarely within the scope of the Medical Malpractice Act,” the panel concluded.

An attorney for Martinez’s estate argued before the panel last month that Kafatia’s actions that led to Martinez’s death should take him outside the scope of protections under the Medical Malpractice Act, despite being an employee of a health care facility.

Separately, Kafatia was charged criminally with neglect of a dependent causing death in Martinez’s case, but a St. Joseph County jury found him not guilty in April, the South Bend Tribune reported.

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July 15

Civil Plenary — Billboard Zoning/Attorney Fees

River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., The Schlosser Family Limited Partnership, The Town of Utica, and the Utica Board of Zoning Appeals

18A-PL-2347

An acrimonious court fight over seven billboards outside Utica, Indiana will not conclude with a military reuse authority paying attorney fees to the entities it sued, as a trial court ordered.

The Indiana Court of Appeals reversed an order for the suing party to pay more than $237,000 in fees to opposing counsel in litigation over highway sign permits in Clark County.

The lawsuit River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., The Schlosser Family Limited Partnership, The Town of Utica, and the Utica Board of Zoning Appeals, 18A-PL-2347, dates to events beginning in 2015, when Outfront Media sought to construct seven billboards on property owned by No Moore and the Schlosser Family near land owned by River Ridge Development Authority. The military reuse authority is a governmental entity overseeing development of a business and manufacturing park near the Ohio River and State Road 265, near the Lewis and Clark Bridge, which spans the river into Kentucky and opened in late 2016.

After the town of Utica and the Indiana Department of Transportation signed off on the billboard permits by April 2017, River Ridge joined state and regional efforts to nominate State Road 265 as a scenic byway. In September of that year, River Ridge asked the Utica Board of Zoning Appeals to reconsider its approval of the permits, which it declined to do, and River Ridge also filed the instant lawsuit seeking to nullify the permits, among other things.

In April 2018, the Indiana Scenic Byway Committee designated the road a scenic byway, prohibiting the construction of future billboards, and on the same day, River Ridge dropped its lawsuit. Outfront then asked the court for attorney fees of $149,918; the Town of Utica asked for fees of $51,824.52; and No Moore/the Schlosser Family petitioned for $35,698.10, for a total of $237,440.63.

Clark Circuit Senior Judge Richard Striegel granted the fees, but the COA reversed, finding he had no grounds to do so, and explicitly taking exception to the court’s findings.

“We have significant concerns about some of the trial court’s findings. There was no weighing of the evidence demonstrated in the findings. Rather, many of the findings are merely unsupported accusations, argumentative, and inappropriate,” Judge Elizabeth Tavitas wrote for the panel. “Although the trial court has wide discretion in weighing evidence and entering findings, the completely one-sided nature of the findings of fact and conclusions of law in this case gives us pause.”

“… We find that the trial court’s findings of fact are clearly erroneous,” Tavitas wrote.

Opposing parties were not entitled to attorney fees as a prevailing party, for a frivolous action, litigating in bad faith, for “obdurate behavior” or under a trial court’s inherent authority to award attorney fees.

The COA, in a footnote, also noted the terse litigation atmosphere in this case.

“We recognize that the parties and attorneys involved here appear to have significant personal animosity. See, e.g., Tr. Vol. II p. 111 (arguing that a letter from River Ridge’s attorney was ‘an attempt to harass Utica. Probably an attempt to crush them . . . .’); Id. at 121 (arguing that the ‘bad faith ranking’ was ‘a 10’); Id. at 140 (‘Now we know from the time that we’ve spent here today that the Defendants are really irritated with River Ridge and they’re even emotional about having gone through this process . . . .’); Id. at 169 (‘We’re filing pleadings in what has to be the worst bad faith in the last ten years by an appointed group of people against elected officials.’); Id. at 173 (‘I’m gonna forgive Mr. [Michael] Maschmeyer and unhear him to the extent maybe he might have called me a liar in open court,’),” the panel noted.

Criminal — Community Corrections Revocation/Due Process

Charles Edward Luster v. State of Indiana

19A-CR-129

A convicted robber whose community corrections placement was revoked was denied due process because a court failed to consider his competency after evaluations had been ordered, the Indiana Court of Appeals ruled.

Charles Luster was convicted of the Level 5 felony offense and sentenced to six years — three years executed and three years suspended — plus a year of probation. After a security officer at Luster’s community corrections facility was told Luster was acting erratically and talking to himself, the officer viewed security video that showed Luster “engage in inappropriate sexual conduct in the laundry room,” after which the state moved to revoke his probation and send him to the Department of Correction to serve the remainder of his sentence.

The St. Joseph Superior Court appointed two medical experts to evaluate Luster’s ability to understand the proceedings and assist in preparing his defense. One expert diagnosed him with paranoid schizophrenia but said with proper medication, he could “manage the structure” of community corrections. The other expert concluded Luster’s symptoms were “consistent with bipolar affective disorder, substance abuse disorder, and post-traumatic stress disorder,” and that Luster “does not demonstrate the capacity to stand trial for the charges in this legal matter.”

Nevertheless, the trial court revoked Luster’s probation, which the COA reversed in its order in Charles Edward Luster v. State of Indiana, 19A-CR-129. The panel cited Madden v. State, 25 N.E.3d 791, 795 (Ind. Ct. App. 2015), which holds that the due process requirements for probation revocation and community correction revocation hearings are the same, and that a litigant has a right to be competent for those hearings.

“…(W)hile the court acknowledged at the beginning of the hearing that it had ordered a competency evaluation, the court nonetheless concluded that ‘the statute concerning competency [Indiana Code Section 35-36-3-1] contemplates [a] prejudgment [assessment] and of course this is post-judgment by a long shot,’” Judge Edward Najam wrote for the panel. “As such, the trial court did not consider the competency evaluations but proceeded with the hearing.”

“… (T)he court then declined to consider the experts’ reports, which substantiated the court’s original concern,” Najam wrote. “Because the trial court did not consider evidence of Luster’s competency prior to the hearing on the State’s petition to revoke his placement, the court violated his due process rights.

“We therefore reverse the trial court’s revocation of Luster’s placement in community corrections, and we remand with instructions for the trial court to consider the competency evaluations and to determine whether Luster is competent to understand and participate in the proceedings against him.”

Estate, Supervised — Denial of Purported Will/Declaration of Intestate Death

Christal Trowbridge v. The Estate of Everett Thomas Trowbridge, and Michael T. Trowbridge

19A-ES-265

The ex-wife of a man who died in June 2018 will be permitted to enter into probate court a document she contends is her ex-husband’s will, the Indiana Court of Appeals ruled, reversing a trial court order that determined the man had died without leaving a will.

Christal Trowbridge claimed her late ex-husband, Everett Trowbridge, left her a handwritten last will and testament form will that was signed, written and notarized, and which included designation of a combination to a safe. Christal claimed the will entitled her to a 25 percent share of a Chase Bank retirement plan, as well as remaining property — a residence, personal property, a vehicle and an Edward Jones retirement plan.

But Michael Trowbridge — Everett’s brother and personal representative for the estate — objected to the purported will, and after a hearing, Clark Circuit Judge Andrew Adams’ court issued an order denying probate of the will and declaring that Everett died intestate.

But the COA reversed in Christal Trowbridge v. The Estate of Everett Thomas Trowbridge, and Michael T. Trowbridge, 19A-ES-265, noting the trial court’s findings were contradictory, in conflict with testimony at the hearing, and misplaced the burden of proof, among other things.

Analyzing the trial court’s findings, the panel wrote, “The language of the first sentence of Paragraph 10, referencing a purported agreement that the Decedent had retained possession of his will, is facially inconsistent with the language of Paragraph 12, recognizing that (Christal) Trowbridge claimed at trial to have the original. And the parties in fact contested whether the Decedent had kept his will in his safe or instead tendered the original document to Trowbridge. It was central to their controversy.”

Further, “(t)he presumption of destruction with intent to revoke would be operable only if (1) the testator retained possession or control of a will and (2) the will was not found at his death,” Judge L. Mark Bailey wrote for the panel, citing Estate of Fowler v. Perry, 681 N.E.2d 739, 741 (Ind. Ct. App. 1997). “The probate court found the inscription of the safe combination on the proffered will to be ‘support’ for the Decedent having possession or control, but the court did not make a factual finding that he had done so.”

But even if the probate court treated the will Christal offered as a copy, Bailey noted, the burden to prove a will was revoked lies with the contesting party.

“The outcome here was driven by applying a presumption that a will in the testator’s possession later found missing was missing because the testator destroyed it with intent to revoke,” the panel held. “But there must be a predicate finding of possession for something to be missing from one’s possession. Notwithstanding deficiency in this regard, the probate court afforded the Estate the presumption that the original was destroyed with intent to revoke. Had the presumption been supported by the evidence, it would have shifted to (Christal) Trowbridge the burden of going forward with evidence to rebut the presumption.

“The probate court summarily concluded that (Christal) Trowbridge failed to rebut the presumption with admissible and relevant evidence. By statute, the Estate, as contestor of the proffered will, bore the ultimate burden of proof. Moreover, the Estate was not entitled to a presumption in its favor without predicate factual findings. Because the probate court misplaced the burden of proof, its decision is contrary to law.”

The matter was remanded.

Criminal — Carrying a Handgun Without a License/Gun Disposition

Darnell Cleveland v. State of Indiana

18A-CR-2298

Though the warrantless search that led to a man’s drug- and firearm-related convictions was lawful, a divided panel of the Indiana Court of Appeals was stumped on how to resolve the “conundrum” of when or if the man’s gun can be returned to him.

In Darnell Cleveland v. State of Indiana, 18A-CR-2298, Indianapolis Metropolitan Police Officers Eric Parrish and Nickolas Smith stopped a Ford Explorer after observing the vehicle speeding and learning the license plate number was registered to a Chevrolet. As the officers approached the vehicle, they smelled raw marijuana.

While searching the vehicle’s driver — who had an outstanding warrant — for weapons, Smith saw passenger Darnell Cleveland walking away with a gold bag. Cleveland complied with an order to drop the bag, which Smith later opened and found a handgun and two baggies of marijuana.

Cleveland admitted the gun was his and said he knew about the marijuana, but claimed he had “nothing to do with” the drugs. He was later charged with one count of carrying a handgun without a license and one count of possession of marijuana, both as Class A misdemeanors.

Cleveland objected to the admission of the marijuana and gun, arguing the evidence was obtained from an unconstitutional search. He argued later that the state lacked probable cause to arrest him, but the Marion Superior Court overruled both objections and found him guilty as charged.

Cleveland was sentenced to an aggregate of 365 days, all suspended, and was ordered to pay a $50 public defender fee. The trial judge also ordered that his gun be destroyed.

The Indiana Court of Appeals upheld Cleveland’s convictions, with Judge John Baker writing that the automobile exception to the Fourth Amendment’s prohibition against warrantless searches extended to the gold bag because the bag was inside the vehicle when officers initially believed the vehicle contained contraband.

The search was also lawful under the Indiana Constitution, Baker said, because the smell of marijuana emanating from the car and the discrepancy in the license plate’s registration created a “strong suspicion” of illegal activity. Further, Cleveland had already been detained as part of the initial stop, and the officers had authority to defuse the “precarious situation” when Cleveland began to walk away.

The appellate court likewise upheld the $50 public defender fee imposed against Cleveland without an indigency hearing. But in a footnote, the court said it’s best practice to make explicit indigency findings.

But Cleveland did secure a partial victory when the appellate court found error in the trial court’s order for Cleveland’s gun to be destroyed. Relying on Trice v. State, 114 N.E. 3d 496, 501 (Ind. Ct. App. 2018), Baker said the “misuse of firearms” that allows for guns to be withheld post-conviction, as contemplated in Indiana Code § 35-47-3-2(b), does not include “mere possession.”

Even so, the appellate panel stopped short of ordering the return of Cleveland’s gun, noting he is still not licensed to carry the weapon, “and the trial court does not have the authority to return the firearm directly to Cleveland.”

“As of now, given our lack of statutory guidance, we order that the IMPD must withhold Cleveland’s firearm until a proper solution becomes available,” Baker said. “This is a conundrum that only our General Assembly can resolve.” The case was remanded.

Judge Cale Bradford dissented in part from the majority opinion, in which Baker was joined by Judge Margret Robb. Bradford’s dissent focused on the issue of the handgun, with the dissenting judge writing that the reasoning of Trice is “unpersuasive.” He would affirm the trial court.•