Indiana Court Decisions: July 28-Aug. 10, 2022

7th Circuit Court of Appeals

July 28

Lynn Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc. and Roncalli High School, Inc.

21-2524

In affirming dismissal of Roncalli discrimination lawsuit, Easterbrook advises starting with statute

The 7th Circuit Court of Appeals has again sided with the Archdiocese of Indianapolis in an employment discrimination lawsuit filed by Lynn Starkey, a Roncalli High School guidance counselor who was fired for being in a same-sex marriage.

In a 23-page opinion, the appellate court affirmed the Southern Indiana District Court’s finding that the Archdiocese was protected from the discrimination claim by the ministerial exception. Judge Frank Easterbrook concurred but chastised his colleagues for starting their review with U.S. Supreme Court precedent rather than by looking at the federal statute.

Starkey filed her lawsuit against the Archdiocese in July 2019 after the Catholic Church terminated her contract because she was married to a woman. She alleged the Archdiocese violated Title VII of the Civil Rights Act of 1964.

The Archdiocese countered it was exempt from such claims under Title VII’s religious exemption, the Religious Freedom and Restoration Act of 1993, 42 U.S.C. § 2000bb, et seq. Roncalli identified Starkey as a “minister of the faith” in her job description and employed her under a “Ministry Contract” beginning in the 2017-18 school year.

Starkey countered by arguing she should not be considered a minister because she never engaged in religious matters or held a formal religious title. She did not speak on religious topics during meetings of the Administrative Council, the main leadership body at the high school, and she did not pray or discuss religion with students during individual counseling sessions. She asserted she did not act in a ministerial capacity even if she were entrusted to do so.

The 7th Circuit was not convinced in Lynn Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., and Roncalli High School, Inc., 21-2524.

The panel found the Archdiocese had the right under the Constitution’s freedom of religion provision to hire and fire whomever it wanted.

“(Starkey’s) argument misunderstands the ministerial exception. What an employee does involves what an employee is entrusted to do, not simply what acts an employee chooses to perform,” Judge Michael Brennan wrote, citing Our Lady of Guadalupe, 140 S. Ct. at 2055. “Under Starkey’s theory, an individual placed in a ministerial role could immunize themself from the ministerial exception by failing to perform certain job duties and responsibilities. Religious institutions would then have less autonomy to remove an underperforming minister than a high-performing one.”

In its opinion, the 7th Circuit cited to Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), which held the ministerial exception was “not limited to the head of a religious congregation.”

Easterbrook concurred with the majority conclusion while adding, “It is a stretch to call a high school guidance counsellor a minister.”

However, he did express concern for what he sees as the norm in cases invoking the ministerial exception: Courts are starting with the constitutional question under Hosanna-Tabor rather than following the proper sequence by beginning with the statute.

Easterbrook asserted the principal statutory question in the Starkey case is whether the Archdiocese is entitled to the benefit of the exemption in §702(a) of the Civil Rights Act. That subchapter excuses religious organizations from having to comply with Title VII.

He noted some ambiguity around the subchapter in rulings from other circuits. Namely, some appellate courts have said the exemption permits religious discrimination “but no other kind.”

“Maybe what these decisions are getting at is that §702(a) does not exempt all employment decisions by religious organizations,” Easterbrook wrote. “The decision must itself be religious, as that word is defined in Title VII. This means, for example, that sex discrimination unrelated to religious doctrine falls outside the scope of §702(a).

“But when the decision is founded on religious beliefs, then all of Title VII drops out,” he continued. “I cannot imagine any plausible reading of ‘this subchapter’ that boils down to ‘churches can discriminate against persons of other faiths but cannot discriminate on account of sex.’”

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Aug. 2

Joseph Hero v. Lake County Election Board

21-2793

Would-be GOP candidate can’t run on Republican ballot after party ban, 7th Circuit affirms

A longtime Indiana Republican who found himself at odds with the state’s Republican Party and was eventually banned from the GOP for at least a decade will have to stay off the Republican ballot, the 7th Circuit Court of Appeals has affirmed.

Joseph Hero of St. John has been a member of the Republican Party since the mid-1980s.

His allegiance was questioned, however, following a polarizing local debate in 2015 about pursuing eminent domain over lower-income households for commercial development in his community. Hero, who disapproved of the measure, backed independent candidates to replace two incumbent Republican St. John Town Council members.

When the state Republican Party caught wind of Hero’s efforts to oust Republican incumbents, party officials determined he could not retain his position as St. John precinct committeeman and delegate to the Republican State Convention. The party sent him a letter declaring he was barred from seeking elected office in Indiana as a Republican for 10 years.

Regardless, Hero declared his candidacy for an at‐large seat on the St. John Town Council in 2019. The Lake County Republican Party chairman and a member of the Lake County Council challenged Hero’s candidacy.

When the Lake County Election Board ultimately removed him from the ballot, Hero sued the election board in the Northern Indiana District Court. But the federal court dismissed the appeal for lack of standing, finding that the 2019 election “has been held and decided,” and there were no “continuing, present adverse effects” of the past illegal conduct.

The 7th Circuit Court affirmed in Joseph Hero v. Lake County Election Board, 21‐2793, but on a different reasoning than the district court.

At the outset, the 7th Circuit found Hero had standing to bring his declaratory judgment claim because it easily meets the “actual” injury requirement of standing and falls within the “capable of repetition, yet evading review” exception.

It described Hero’s case as being distinguishable from Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517 (7th Cir. 2001), noting that Hero never pursued a state remedy or committed “procedural missteps,” but he did show a “reasonable expectation” to run for office again and alleged that the state denied him complete ballot access, a different argument than that alleged in Tobin.

It also determined that federal-question jurisdiction could be granted under 42 U.S.C. § 1983, noting Hero’s “well‐pleaded complaint” raised a federal question by alleging a deprivation of his First and 14th Amendment rights.

On the merits of the case, however, it concluded the election board did not violate Hero’s First and 14th Amendment rights.

“The decision to strike Hero’s name from the ballot imposed only a minor restriction on his ballot access. Indiana law provides alternative means to access the general‐election ballot,” Judge Amy St. Eve wrote. “Although Hero cannot run in the Republican primary — undoubtedly his first choice — he can either run as an independent by obtaining two percent of the total vote cast in the last election or as a write‐in candidate. … As an independent, he can tout his Republican virtues, tell voters he supports Republicans, put up yard signs to that effect, and run on a platform identical to any political party. The only limitation is that he cannot appear on the Republican Party’s primary ballot.”

It also found the restriction to be “reasonable” and “nondiscriminatory,” adding that the state has an interest in protecting a party’s right to determine its own membership and limit its candidates to those party members. It rejected Hero’s attempts to wield the First Amendment “as a sword.”

“‘[P]olitical parties may accordingly protect themselves ‘from intrusion by those with adverse political principles,’’ … so too can a state protect the First Amendment rights of a political party, as the Election Board did here by allowing the Republican Party to determine its own membership and restrict its standard bearers to members in good standing,” St. Eve wrote.

The court cited Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996), and Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992), as support for its decision to affirm the district court’s dismissal.

“Both times, the interests of the party prevailed over that of a single candidate attempting to dictate an organization’s speech,” it concluded. “While Hero is by no means advocating similar beliefs as Duke, he also cannot define the Republican Party’s message.”

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Aug. 3

Duro, Inc., et al., v. E. Spencer Walton, Jr., et al.

21-3025

7th Circuit affirms summary judgment on ‘merchandized’ malpractice claim

The 7th Circuit Court of Appeals has affirmed judgment in favor of a northern Indiana law firm on a corporate legal malpractice claim, finding the claim was a “bargaining chip” in settlement proceedings.

Before 2017, Duro Inc. had three shareholders. The majority shareholder, Terry Rodino, also served as president of Duro.

Amit Shah and the other minority shareholder often did not agree with Rodino’s management decisions. Those disagreements resulted in numerous lawsuits in state and federal courts spanning over a decade.

In February 2013, Shah and the other minority shareholder filed a lawsuit against Rodino and Duro. The complaint included allegations of money laundering and racketeering in violation of federal and state statutes.

After motions practice aimed at the pleadings, plaintiffs in June 2015 added a shareholder derivative claim of legal malpractice, nominally on behalf of Duro, against the May Oberfell Lorber law firm and attorneys E. Spencer Walton Jr. and Georgianne M. Walker.

Oberfell had represented both Rodino and Duro in the case. Eventually, however, Oberfell withdrew from representing them.

In September 2017, Shah and the other minority shareholder settled their claims. As part of the settlement, Duro redeemed both Rodino and the other minority shareholder’s shares, making Shah the sole owner of Duro.

The settlement also preserved any claims Duro might have had against Oberfell. In addition, as part of the settlement, Rodino signed a document waiving the attorney-client and work-product privileges regarding all communications, disclosures, advice and documents between him and Oberfell.

Shah then took over effective control of Duro and transferred nearly all Duro’s assets, which were worth millions, to his own pallet company. As a result, Duro no longer has any hard assets, income, employees, revenue or customers.

Shah left one asset, however, in the corporate shell of Duro: the legal malpractice claim against Oberfell.

After these actions, Shah — now acting through Duro — filed a third amended complaint in the Indiana Northern District Court in June 2018.

Duro and Shah asserted individual claims against Oberfell for legal malpractice and what they called “conflict of interest.” In particular, the plaintiffs alleged that, with Oberfell’s consent and assistance, Rodino had breached his fiduciary duties as the sole director and officer of Duro.

Plaintiffs also alleged Oberfell failed to take adequate steps to protect Duro and to prevent Rodino from engaging in unlawful conduct. The district court dismissed Shah’s individual claim for legal malpractice and the “conflict of interest” claim.

Following discovery, Oberfell moved for summary judgment on Duro’s legal malpractice claim. The district court granted the motion, reasoning that the legal malpractice claim had undergone a “de facto” assignment and was therefore barred as a matter of Indiana law.

The district court then entered final judgment in favor of the defendants and Duro appealed.

At the 7th Circuit Court of Appeals, judges weighed whether Duro could bring the legal malpractice claim at all.

Relying on Picadilly, Inc. v. Raikos, 582 N.E.2d 338 (Ind. 1991), judges affirmed summary judgment for the defendants.

“We agree with the district court that permitting the de facto assignment to Shah here would run contrary to Picadilly’s aims and the public policies that are the foundation for the rule,” Judge David Hamilton wrote. “The legal malpractice claim was a bargaining chip in the settlement negotiations between Shah and Rodino. And as part of the bargain, Rodino had to waive all attorney-client and work-product privileges between Duro, himself, and May Oberfell. Duro also had to expressly preserve its legal malpractice claims.

“These actions effectively pitted Duro and Rodino against the lawyers who had represented them, but for the benefit of Shah,” Hamilton continued. “As Picadilly predicted, the parties to this suit were readily willing to ‘merchandize’ the legal malpractice claim and privileges when it was convenient for them to help secure a settlement, thereby weakening the lawyers’ duty of loyalty in the process.

“… The one recognized exception to Picadilly comes from Summit Account & Computer Service, Inc. v. RJH of Florida, Inc., 690 N.E.2d 723 (Ind. App. 1998),” the judge wrote. “In that case, the Indiana Court of Appeals held that Picadilly does not bar assignments to a corporation’s successor in interest. But Summit Account supports May Oberfell in this case, not Shah and Duro. The court relied on several factors to conclude that the assignee was the first corporation’s successor in interest. None of those factors are present here.”

The case is Duro, Inc., et al., v. E. Spencer Walton, Jr., et al., 21-3025.

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Aug. 5

T.S., by and through his parents and guardians, T.M.S. and M.S., individually and derivatively on behalf of the Heart of CarDon, LLC Employee Benefit Plan v. Heart of CarDon, LLC & Heart of CarDon, LLC Employee Benefit Plan

21-2495

Autistic child can sue parents’ employer for denied therapy coverage, 7th Circuit affirms

A Hoosier child diagnosed with an autism disorder who was denied coverage for related therapy through his parents’ health plan may proceed with his suit against the parents’ employer.

T.S., a minor child diagnosed with Autism Spectrum Disorder, was enrolled as a beneficiary of his parents’ self-funded group health plan that they received through their employer, Heart of CarDon LLC.

The health plan’s third-party administrator had initially authorized six months of applied behavioral analysis therapy for T.S.’s autism to help maintain and advance his motor, speech and communication skills. That changed when a new plan administrator took over.

T.S.’s treatment was denied just a few months later, with the administrator citing the plan’s “Behavioral Health” section, which specifically excludes “Charges for services, supplies, or treatment for Autism, Asperger’s and Pervasive Development Disorders” and “Charges for [ABA therapy].”

Unable to pay out of pocket for the therapy, T.S., by and through his parents, sued. They alleged that CarDon intentionally discriminated against T.S. on the basis of his disability by designing and, through its administrator, enforcing the plan, which categorically excludes coverage for autism and the ABA therapy used to treat it.

CarDon moved for judgment on the pleadings, but the U.S. District Court for the Southern District of Indiana rejected the argument that T.S. wasn’t in a class of plaintiffs authorized to sue under Section 1557 of the Patient Protection and Affordable Care Act. The district court concluded that his claim fell within the zone of interests protected by the ACA provision and therefore declined to reconsider its ruling.

The 7th Circuit Court of Appeals affirmed in the interlocutory appeal of T.S., by and through his parents and guardians, T.M.S. and M.S., individually and derivatively on behalf of the Heart of CarDon, LLC Employee Benefit Plan v. Heart of CarDon, LLC & Heart of CarDon, LLC Employee Benefit Plan, 21-2495.

The appellate panel noted that section 1557 extends a cause of action to individuals who have been subjected, based on their disabilities, to discrimination by health care entities.

“T.S.’s allegations bring him well within that class of plaintiffs,” Circuit Judge Daniel Manion wrote. “He asserts that CarDon, a healthcare entity, designed and controlled the Plan so as to exclude him from certain coverage because of his autism. This type of claim falls within the zone of interests that section 1557 protects.”

The appellate court then rejected CarDon’s argument that only intended beneficiaries of the federal funds it receives — namely, its patients — are permissible plaintiffs under section 1557.

“Since T.S. is not a patient of CarDon, he isn’t a permissible plaintiff, or so the reasoning goes,” Manion wrote. “But this argument is not supported by section 1557’s text.”

The court also found that T.S.’s interests and section 1557’s goals squarely align and that, contrary to CarDon’s reading, the phrase “program or activity” in section 1557 is not limited to the discrete portion of its operations that receives Medicare and Medicaid reimbursements.

“Because section 1557’s prohibition on discrimination is not, by its own terms, limited to the discrete portion of a covered entity that receives federal financial assistance, the right to sue under section 1557 is not limited to plaintiffs who are intended to benefit from that assistance,” Manion wrote. “T.S.’s claim that he was the victim of intentional disability discrimination in one part of CarDon’s operations falls within the zone of interests protected by section 1557. The provision’s purpose and text foreclose a different conclusion.”

Finally, the 7th Circuit rejected CarDon’s argument that T.S.’s claim falls outside section 1557’s zone of interests because of Simpson v. Reynolds Metals Co., 629 F.2d 1226 (7th Cir. 1980). The 7th Circuit pointed to decisions made by Congress that effectively abrogated Simpson through legislation that rejected the decision’s relevant reasoning.

“We do not decide whether T.S.’s allegations against CarDon constitute prohibited discrimination under section 1557 of the ACA on the ground of disability,” the court concluded. “The merits of that claim will be addressed by the district court in due course, and we express no opinion on the question.”

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Aug. 8

John Doe v. University of Southern Indiana

22-1864

USI student loses Title IX appeal following sexual assault suspension

A male student at the University of Southern Indiana was unable to halt his suspension for sexual assault after the 7th Circuit Court of Appeals found he did not show he was discriminated against because of his sex.

John Doe, a pseudonym for the plaintiff-appellant, was alleged to have sexually assaulted a female student given the pseudonym Jane Doe. The university delegated the investigation and hearing process to outside consultants, a committee of two lawyers and an educator from an independent firm that specialized in Title IX services.

At the hearing, the advisers representing John and Jane could not object during questioning, but they did cross-examine the witnesses. A few weeks after the hearing, the committee found by a preponderance of evidence that John was “responsible” for committing sexual assault and imposed a three-semester suspension.

John appealed within the university’s grievance system, but the committee’s decision was upheld.

Eventually, the U.S. District Court for the Southern District of Indiana received John’s complaint alleging the university discriminated against him on the basis of his sex in violation of Title IX. After briefing and oral argument, the district court denied his motion for a preliminary injunction.

The 7th Circuit affirmed in John Doe v. University of Southern Indiana, 22-1864.

“We emphasize, though, that the district and appellate courts do not provide third and fourth forums — after the university committee’s hearing and the administrative appeal — to decide what actually happened between Jane and John on the night of November 13-14, 2020,” Judge David Hamilton wrote for the court. “In reviewing the denial of a preliminary injunction under Title IX, the question before us is whether John is likely to be able to show the university discriminated against him on the basis of his sex in suspending him on the basis of Jane’s complaint and all available evidence.”

John presented three arguments to support his claim: public pressure on the university to respond aggressively to complaints of sexual assaults by male students, “procedural irregularities” in the university’s grievance process and the weight of evidence regarding Jane’s complaint.

The appellate court was not persuaded by the public pressure argument, pointing out that the case was handled by an outside firm and not by university faculty or administration.

Also, regarding the 12 errors that John argued occurred during the procedural process, the court was likewise unconvinced. It described some as nonerrors while others were either errors that John arguably invited or that applied equally to both parties.

Finally, as for the committee ultimately believing Jane’s account, the 7th Circuit noted John changed his story of the events, and witnesses contradicted his denials on certain details.

“Just as few trials are perfect, the hearing in this case was not perfect,” Hamilton wrote. “There is room to criticize the proceedings. But John has not shown that the imperfections or the final decision against him were likely the products of intentional bias against his sex.”

Court of Appeals of Indiana

July 29

A.W. v. State of Indiana

22A-JV-150

COA affirms machine gun adjudication for teen, reverses 2nd adjudication for double jeopardy

A teen arrested for possession of a modified pistol will not shake his machine gun adjudication but has convinced the Court of Appeals of Indiana that a juvenile court violated double jeopardy principles when it also tacked on a possession-of-a-dangerous-firearm offense.

In July 2021, two officers with the Speedway Police Department were on patrol when they saw a car driving 60 mph in a 35 mph zone.

After the car stopped, a 17-year-old identified as A.W. exited the car from a rear passenger seat. The teen ran from the vehicle and officers saw he had a gun in his hand.

A foot chase ensued before A.W. tripped and fell. As he started falling to the ground, he tossed the gun toward a house.

During a pat-down search, an officer found a phone and a “large sum of money” in A.W.’s pants pocket. A second officer recovered the gun, which was identified as a Glock fitted with a laser pointer and an extended magazine. The officer recognized the Glock as being “essentially” the same as his own firearm, except something was “different” about the suspect’s gun.

The state filed a delinquency petition alleging A.W. had committed conduct which, if committed by an adult, amounted to three Class A misdemeanors — namely, carrying a handgun without a license, resisting law enforcement and criminal mischief.

However, the state later discovered that the Glock had been converted from a semi-automatic weapon to an automatic weapon through the addition of an after-market device known as a “Glock switch,” which is a square black box about the size of a quarter that attaches to the rear slide of the gun.

Accordingly, the state amended the delinquency petition to add a count of possession of a machine gun, a Level 5 felony if committed by an adult. Following a factfinding hearing, the juvenile court entered a true finding that A.W. had committed each of the offenses as alleged in the amended petition.

The Marion Superior Court then placed A.W. on probation and released him to his father’s custody.

On appeal, A.W. questioned whether the state presented sufficient evidence to support his adjudication for possession of a machine gun, and whether his possession adjudications violated double jeopardy.

A.W. argued he didn’t know the gun had been modified, but the COA shot down that argument.

“Here, A.W. had exclusive possession of the machine gun while the officers were chasing him,” Judge Edward Najam wrote. “That evidence supports a reasonable inference that A.W. knew the gun was a machine gun. Further, the juvenile court found that A.W.’s conduct, namely, his flight from the traffic stop, supported an inference that he knew that the gun was a machine gun.”

The COA did, however, find that possession of a machine gun and dangerous possession of a firearm violated the Indiana Constitution’s prohibition against double jeopardy.

“The bottom line is that A.W. was found culpable twice for possession of the same weapon at the same time where possession of that weapon was the means used to commit both crimes,” Najam wrote. “Accordingly, we hold that these two true findings violate Indiana’s prohibition against double jeopardy, and the true finding that A.W. committed dangerous possession of a firearm cannot stand.”

In a separate opinion, Chief Judge Cale Bradford concurred in part and dissented in part.

Bradford differed from the majority on whether the offenses are factually included in one another.

“The charges overlap only in that they allege that A.W. possessed a firearm, but they do not amount to multiple punishments for one act, as one requires proof that he had the status of a minor who could not lawfully possess the firearm and the required proof that he possessed a machine gun, which no person may lawfully possess, minor or not,” Bradford wrote.

“Moreover, the evidence adduced at trial clearly established two separate offenses. As discussed by the majority, the evidence supported a conclusion that A.W. knowingly and intentionally possessed a machine gun,” he continued. “As for the dangerous possession charge, it was proved by evidence that A.W. was a minor and did not satisfy any of the requirements of Indiana Code section 35-47-10-1, proof of which was not relevant to the machine-gun charge. Given that each charge requires proof of facts that the other does not, I cannot conclude that either is factually included in the other. “

The case is A.W. v. State of Indiana, 22A-JV-150.

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Aug. 10

Hipolito Ramirez Martinez v. State of Indiana

21A-CR-2797

COA denies appeals in stepdad’s child molesting case

A convicted child molester has failed to convince the Court of Appeals of Indiana that a mistrial should’ve been granted in his case due to an errant PowerPoint slide and the replaying of his victim’s testimony to the jury. However, the appellate court also denied a cross-appeal by the state challenging the denial of its request to classify the man as a credit-restricted felon.

Hipolito Martinez began molesting his 8-year-old stepdaughter K.R. in 2015. K.R. reported the molestation in 2020, and the state charged Martinez with two counts of Level 1 felony child molesting and three counts of Level 4 felony child molesting.

During closing arguments in a November 2021 jury trial, the state gave a PowerPoint presentation outlining the charges against Martinez that incorrectly included a slide showing a charge of invasion of privacy. Martinez moved for mistrial, but the Tippecanoe Superior Court denied his motion and admonished the jury to disregard the slide.

Also, during deliberations, the jury requested to either see a transcript of K.R.’s testimony or to hear it replayed. The trial court referred to Indiana Code § 34-36-1-6, which governs such requests, and initially declined the request.

In response, the jury indicated there was a disagreement regarding the date of one alleged incident of fondling and regarding the frequency of alleged molestations from 2016 to 2021. The trial court then allowed the jury to review the testimony over Martinez’s objection.

The jury found Martinez guilty of two counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting, and the trial court entered convictions on the Level 1 felony courts. The court sentenced Martinez to 35 years for each Level 1 felony conviction, to be served concurrently, and denied the state’s request to classify him as a credit restricted felon.

On appeal, Martinez argued the trial court abused its discretion by playing K.R.’s testimony back to the jury during deliberations and erred by denying his motion for a mistrial regarding the errant slide. On cross-appeal, the state argued the trial court erred in denying the credit-restricted felon request.

The Court of Appeals of Indiana denied both arguments, affirming the trial court’s ruling.

“Martinez argues that replaying K.R.’s testimony in its entirety was the equivalent of doubling its weight in the minds of the jurors,” Chief Judge Cale Bradford wrote. “Martinez, however, points to nothing in the record to support this assertion, much less anything in the law to justify treating it as an exception to the mandatory nature of Indiana Code section 34-36-1-6. The trial court did not err in granting the jury’s request to review K.R.’s testimony.”

Judges also didn’t find the PowerPoint argument convincing, calling it “pure speculation.”

On the credit-restriction issue, judges looked at I.C. 35-31.5-2-72 and 35-38-1-7.8.

“The State argues that molestations occurring after a victim’s twelfth birthday but before her thirteenth should qualify to make the perpetrator a credit restricted felon pursuant to Indiana Code section 35-31.5-2-72,” Bradford wrote. “While we acknowledge that it is customary to refer to persons as ‘twelve years old’ after their twelfth birthdays but before their thirteenth, those persons are, in fact, no longer ‘less than twelve (12) years of age.’ Such persons became twelve years old at some point on the twelfth anniversary of their dates of birth, and, after that, are twelve years of age, plus some fraction of a thirteenth.”

“The State correctly notes that there is ample evidence that could support such a determination, i.e., K.R.’s testimony that the molestation involving intercourse at least once a month had gone on for approximately five or six years beginning in 2015,” he concluded. “That said, the same evidence, along with K.R.’s testimony that Martinez molested her for the last time by having intercourse with her in November or December of 2020, could also support a determination that Martinez molested K.R. after November of 2019, when she turned twelve. The trial court, it would seem, made just such a determination, a determination supported by the evidence presented at trial.”

The case is Hipolito Ramirez Martinez v. State of Indiana, 21A-CR-2797.•