Indiana Court Decisions: May 4-17, 2023

7th Circuit Court of Appeals

May 4

Leroy N. Ingram v. T.J. Watson, et al.

21-3400

Prisoner at Terre Haute federal prison wins reversal for grievance

The 7th Circuit Court of Appeals affirmed a district court’s ruling to dismiss two grievances from a prisoner who claimed he was beaten by guards at Terre Haute’s federal prison.

But the appellate court reversed and remanded a third grievance back to the district court for a Pavey hearing to take testimony and see if information was withheld from the inmate by the prison’s warden that would have helped him with his appeal.

Leroy Ingram filed a lawsuit claiming he was set upon and beaten by guards, and medical staff denied him access to necessary care while confined in the U.S. Penitentiary at Terre Haute, according to court records.

Ingram sought damages from the prison’s warden and several members of the staff.

A district judge granted summary judgment to all defendants, finding Ingram failed to exhaust his administrative remedies.

The 7th Circuit affirmed the district court’s ruling on two of Ingram’s grievances. But the appellate court reversed on the grievance directed to the asserted physical attack and remanded for further proceedings.

Ingram had filed three substantive grievances.

One grievance, which asserted members of the staff failed to protect him from harm, was ultimately rejected for lacking required attachments.

His second grievance claiming the staff retaliated against him by withholding necessary medical care was also rejected due to Ingram not completing the first step of the process, which is informal resolution.

He also complained about the attack itself by filing a grievance with the warden, who rejected it. Ingram then appealed to a regional director.

After waiting several weeks, he asked an officer what was going on and was told that the prison had received the director’s decision, but it would not be given to him.

In response, Ingram filed a grievance about the process and a lawsuit.

The director gave his response three days after the lawsuit was filed.

By the time Ingram received it, it was too late to appeal to the general counsel and the lawsuit was already pending.

All administrative remedies must be exhausted before filing a lawsuit, according to the appellate court.

The district court found that Ingram should have treated the prison’s failure to hand over the director’s decision as a non-response and appealed to the general counsel.

However, Ingram insisted the director did act. In order to appeal to the next level, the decision needed to be attached. Ingram couldn’t appeal to the general counsel without being given the director’s decision.

“The district court should have held a Pavey hearing and taken testimony on subjects such as whether the Warden refused to provide the Regional Director’s statement to Ingram or whether, instead, there was just bureaucratic delay in handing it over,” Judge Frank Easterbrook wrote. “After receiving evidence, which might include finding out exactly what (Officer) Gore said to Ingram, the district court should decide whether (28 C.F.R.) §542.15(b)(1) excused Ingram from appealing to the General Counsel.”

The case is Leroy N. Ingram v. T.J. Watson, et. al., 21-3400.

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May 10

United States of America v. Jalen Howard

21-2660

Argument of racial bias in jury selection rejected by 7th Circuit

The 7th Circuit Court of Appeals rejected a man’s claims of racial bias in jury selection for his felon in possession of a weapon case and affirmed a lower court’s ruling.

Defendant-appellant Jalen Howard was indicted in August 2019 in the United States District Court for the Southern District of Indiana for possession of a firearm by a convicted felon.

Howard had been arrested in Indianapolis in after police responded to a call about a person armed with a weapon at 16th Street and Tacoma Avenue. Police searched him and found a loaded Glock .40 caliber handgun.

According to court records, Howard had previous felony convictions in Marion Superior Court for theft and battery in 2012 and 2018.

A jury found Howard guilty in May 2021.

He appealed to the 7th Circuit.

On appeal, Howard argued that his jury trial was tainted by errors that occurred during jury selection — specifically, when the district court injected the prosecutor’s race into a Batson inquiry and improperly evaluated a peremptory strike against a Black juror.

The 7th Circuit found no error in the district court’s ruling on the prosecutor’s jury selection rationale and affirmed the lower court’s decision.

Writing for the appellate court, Judge Ilana Rovner noted that Batson v. Kentucky, 476 U.S. 79, 87 (1986), was used by the U.S. Supreme Court as a system for challenging peremptory challenges to balance the need to allow prosecutors to strike jurors for any reason with the prohibition against striking jurors based on race.

Howard’s Batson challenge centered around the peremptory strike of Juror 24, a Black female juror.

During venire, the government struck the only three Black jurors on the 39-person venire panel.

On appeal, Howard didn’t challenge the strike of the first two Black jurors, but their removal left Juror 24 as the only remaining Black juror.

Howard challenged the strike as discriminatory, and the district court went through a three-step Batson analysis to evaluate the legitimacy of peremptory strikes challenged based on racial discrimination.

The 7th Circuit opinion states that the prosecutor asked jurors about their internet usage, including how many did not use the internet.

Two of the three jurors on the panel who said they did not use the internet were Black, including Juror 24. The prosecutor struck all three jurors that responded yes, because, he explained, “I do not believe people when they say they don’t use the internet.”

After the third step of the Batson inquiry, the district court summarized Howard’s counsel’s argument as follows: “Your sole justification and your persuasiveness is that the government attorney, who does happen to be African-American, has struck every single African-American on the panel.”

Howard pointed to that comment in his appeal and argued that the district court injected the prosecutor’s race into the Batson inquiry and erred in improperly evaluating the peremptory strike of Juror 24.

Rovner acknowledged that it is legal error for a judge to assume that a prosecutor of the same race as a juror would not engage in discrimination against that juror because of their shared race.

But Rovner also wrote that the district court did a thorough evaluation in its Batson analysis.

“No part of the court’s reasoning relied on the race of the prosecutor. Although it would have been better had the judge not mentioned the prosecutor’s race, there is no evidence that this harmless error infected the court’s reasoning in evaluating the Batson challenge,” Rovner wrote.

Further, Rovner rejected Howard’s assertion that the court failed to independently assess Juror 24’s demeanor, writing that the juror’s demeanor wasn’t the issue, “only the credibility and reasonableness of the prosecutor’s objective internet usage rule.”

As to the prosecutor’s use of internet usage as a proxy for truthfulness, Rovner wrote that it was not so implausible that no reasonable jurist could have found it credible.

“We see no exceptional circumstances that would cause us to depart from our usual deference to the district court’s factual findings and lead us to conclude that the court clearly erred,” she concluded.

Senior Judge David Hamilton and Judge Michael Brennan concurred.

The case is United States of America v. Jalen Howard, 21-2660.

Court of Appeals of Indiana

May 4

Kristyn R. Plummer and Angela M. Stillabower v. Amy L. Beard, Commissioner of the Indiana Department of Insurance

22A-CT-2559

COA affirms summary judgment in unauthorized medical records access case

Unauthorized access to a pair of women’s medical records does not mean they can pursue medical malpractice claims that are compensable from the state, the Court of Appeals of Indiana affirmed in upholding a trial court’s grant of summary judgment.

Columbus Regional Hospital notified Kristyn Plummer and Angela Stillabower in October 2016 that an employee at the hospital had gained unauthorized access to their medical records.

According to court records, Lindsay Johnson-Heck had allegedly used her CRH-granted clinical privileges to access medical records of 23 individuals who were not her patients, including Plummer and Stillabower.

In April 2017, Plummer and Stillabower filed a complaint with the Indiana Department of Insurance against CRH and Johnson-Heck alleging that they “breached their statutory and common law duties of confidentiality and privacy,” and that Plummer and Stillabower had suffered damages as a result.

The matter was submitted to a medical review panel, which ruled that the evidence did not support Plummer and Stillabower’s complaint for damages.

Plummer and Stillabower filed an amended complaint against CRH and Johnson-Heck. The parties entered into mediation agreement and settlement agreement in April 2021.

In the mediation agreement, Plummer and Stillabower acknowledged the potential that they might not recover any payment from the Indiana Patient Compensation Fund.

Through the settlement agreement, CRH agreed to pay $107,001 to counsel, $71,499.50 to Stillabower and $71,499.50 to Plummer, for a total payout of $250,000.

The women filed a petition for payment of damages from the Patient Compensation Fund in April 2021, then filed a motion for summary judgment in April 2022 that argued the facts of their case fell within the Medical Malpractice Act.

The Marion Superior Court cited Community Hospital v. McKenzie, 185 N.E.3d 368 (Ind. 2022), in ruling that unauthorized access to confidential medical records by a person not directly related to medical care and treatment of the complainant is not covered by the MMA.

It also ruled that Johnson-Heck committed separate acts of malpractice for which an individual recovery of $250,000 must be made prior to money from the state’s fund becoming available.

The trial court denied Plummer and Stillabower’s motion for summary judgment.

The appellate court affirmed, with Judge Melissa May rejecting Plummer and Stillabower’s attempts to avoid the application of McKenzie to the facts of their case. May said their claim sounded in ordinary negligence rather than medical malpractice.

“Johnson-Heck’s use of her CRH privileges to access medical records of Appellants, who were not her patients, ‘was unrelated to any professional service executed on their behalf as [CRH] patients,’” May wrote.

The appellate court ruled McKenzie applies retroactively to Plummer and Stillabower’s claim.

Further, May said 30 years of precedent demonstrates that Indiana Code § 34-18-15-3(5) permits the state’s fund to challenge whether Plummer and Stillabower’s claimed injuries are noncompensable under the MMA.

“Because Appellants have not demonstrated any genuine issue of material fact about the application of McKenzie and the Fund is entitled to judgment as a matter of law, we affirm the trial court’s grant of summary judgment to the Fund,” May concluded.

Judges Terry Crone and Leanna Weissmann concurred.

The case is Kristyn R. Plummer and Angela M. Stillabower v. Amy L. Beard, Commissioner of the Indiana Department of Insurance, 22A-CT-2559.

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May 8

Devun York v. State of Indiana

22A-CR-2214

Indiana machine gun law not unconstitutionally vague, COA affirms

Indiana’s machine gun statute is not unconstitutionally vague, the Court of Appeals of Indiana ruled in affirming a lower court’s decision in a case involving a man who modified his semi-automatic pistol with a “switch” device to make it function as a fully automatic weapon.

In January 2022, Indianapolis police executed an arrest warrant for Anthony York on felony and misdemeanor charges in another case at the apartment where they believed he was located. When they told the occupants to exit, Devun York and two other men came outside.

Officers heard water running from a shower and entered to determine if Anthony or anyone else was in the apartment. Officers saw evidence of drug use on a kitchen counter and left the apartment to apply for a search warrant for drugs.

They saw firearms while executing the search for drugs, so they applied for another search warrant for firearms.

During that search, officers found a 9 mm caliber Glock 19 pistol with a loaded magazine holding 22 rounds of live ammunition under a mattress. One of the detectives was a Bureau of Alcohol, Tobacco, Firearms and Explosives liaison officer and noticed the gun had a switch installed, which converts the semi-automatic pistol to fire in a fully automatic mode.

York was charged with one count of Level 5 felony possession of a machine gun and one count of Class B misdemeanor possession of marijuana.

He filed a motion to dismiss, arguing at a hearing that the pistol would only fire semi-automatically with the switch removed and would not be a machine gun under Indiana law.

The Marion Superior Court denied the motion to dismiss, and York moved to certify the court’s order for interlocutory appeal.

On appeal, York argued the facts alleged don’t constitute the offense of possession of a machine gun, and that the state’s machine gun statute is unconstitutionally vague.

The Court of Appeals disagreed with both arguments.

Indiana law defines a machine gun as a weapon that “(1) shoots; or (2) can be readily restored to shoot; automatically more than one (1) shot, without manual reloading, by a single function of the trigger.”

York argued his pistol is a handgun under Indiana law and the switch is classified as a firearms accessory.

He also argued that because the statutory definition of “machine gun” doesn’t contain terms such as “adapt” or “convert,” but instead includes language that it can be “readily restored,” the Legislature didn’t intend for the definition to include “devices that have been adapted or converted by accessories.”

In agreeing with the trial court’s conclusion that the charge states a crime, the Court of Appeals said it believes the straightforward language of the machine gun statute “focuses on what the gun can do.” The opinion cites the statute, noting the gun can shoot “automatically more than one (1) shot, without manual reloading, by a single function of the trigger.”

York cited another case, Brown v. State, 868 N.E.2d 464 (Ind. 2007), in arguing the language of the machine gun statute is vague because “there must be something in a criminal statute to indicate where the line is to be drawn. … It cannot be left to juries, judges, and prosecutors to draw such lines.”

York also suggested the statute allows the possibility that it authorizes “arbitrary or discriminatory enforcement.”

The court’s opinion notes the first Indiana case to address the possession of a Glock with a switch was A.W. v. State, 192 N.E.3d 227 (Ind. Ct. App. 2022). In that case, a juvenile didn’t dispute his possession of a weapon, but he disputed his knowledge that it was a machine gun.

The court held in that case that knowledge and intent are mental states and, absent an admission, are established by reasonable inferences drawn from the evidence.

The court’s opinion in the case at hand notes forensic testing of York’s gun established that the switch converts the semi-automatic pistol to fire in a fully automatic mode.

“The gun either fires more than one shot automatically without reloading, or it does not,” the opinion states. “Thus, the statute sufficiently provided notice to York that the gun was a machine gun and forensic determinations are not discretionary determinations nor are they arbitrarily applied.”

The court also addressed York’s argument that the statue is unconstitutionally vague because it doesn’t tell him using accessories to make a gun a machine gun is prohibited.

“However, the focus of the machine gun statute is on what the gun can do, not on how or when it is made,” the opinion states.

Senior Judge Randall Shepard wrote the opinion. Judges Rudolph Pyle and Elizabeth Tavitas concurred.

The case is Devun York v. State of Indiana, 22A-CR-2214.

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May 10

Christopher G. Wellman v. State of Indiana

22A-CR-1673

COA orders discharge in OVI case after 13-month delay in blood test results

The state’s 13-month delay in providing blood test results violated a man’s right to a speedy trial, the Court of Appeals of Indiana ruled in a reversal.

The appellate court remanded the case to Marion Superior Court to discharge Christopher Wellman under Indiana Criminal Rule 4(C).

According to court records, police arrested Wellman for operating a vehicle while intoxicated on March 4, 2021, and he submitted to a blood draw.

The next day, the state charged Wellman with three alcohol-related driving offenses, including operating a vehicle with an alcohol concentration equivalent of 0.15 grams or more.

The state sent Wellman’s blood samples to a state laboratory for testing.

Over the next 13 months, the state and Wellman engaged in numerous pretrial conferences while awaiting Wellman’s blood test results, with Wellman consistently requesting continuances on that basis.

Neither party ever requested a trial date.

By the December 2021 pretrial conference, the state had tendered a plea offer, but Wellman’s blood test results were still not available.

Finally, on April 5, 2022, Wellman moved for discharge 396 days after he was charged. He moved for discharge under Criminal Rule 4(C), asserting that the state failed to bring him to trial within one year.

The trial court denied Wellman discharge, attributing the 13-month delay to his “trial strategy” of waiting for the test results rather than forcing the state to proceed to trial without them.

The court concluded the state’s one-year countdown under Criminal Rule 4(C) was paused on the date of Wellman’s initial hearing. Wellman appealed.

The appellate court disagreed with the trial court’s ruling and reversed, remanding the case with instructions for the court to grant Wellman’s motion for discharge.

Writing for the court, Judge Leanna Weissmann said Criminal Rule 4(C) puts a duty on the state to bring a defendant to trial within a year of being charged or arrested, but it does allow for extensions. Weissmann acknowledged that Wellman’s request for continuances pushed his case past the rule’s one-year deadline.

But Wellman claimed the state’s failure to produce blood test results, not his actions, caused the delay.

Weismann wrote that the Indiana Supreme Court recognizes a “discovery exception,” where the continuance is caused by the state’s delay in providing discovery.

The discovery exception derives from Biggs v. State, 546 N.E.2d 1271 (Ind. Ct. App. 1989), Weissmann wrote, in which two defendants requested a continuance due to the state’s failure to procure its out-of-state confidential informant for scheduled depositions. The appellate court has since applied Biggs and the discovery exception in a several cases in which a defendant requested a continuance due to the state’s failure to provide test results from a state laboratory.

In the instant case, Weismann noted the state seemingly insisted that the discovery exception only applies when the state is negligent in its failure to comply with discovery.

The appellate court rejected that argument.

“A defendant should not be forced to either waive the right to a speedy trial or proceed to trial unprepared,” she wrote.

The COA further found that the state also failed to use Criminal Rule 4(D), which allows the state to file a continuance if a reasonable effort is made to procure evidence within 90 days.

“Had the State used this tool, the trial court could have determined whether the State engaged in ‘reasonable efforts’ to obtain Wellman’s blood test results,” Weissmann wrote. “Although the record does not reveal the reason behind the 13-month delay in obtaining the blood test results, Wellman’s request for discharge finally spurred action from the State.”

Judges L. Mark Bailey and Elaine Brown concurred.

The case is Christopher G. Wellman v. State of Indiana, 22A-CR-1673.

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Terrence Brodnik v. Cottage Rents LLC

22A-SC-1103

Inability to travel during pandemic gave man right to rescind Florida rental contract, split COA rules in reversal

An Indiana man prohibited by state order from traveling to a Florida vacation home during the COVID-19 pandemic had a right to rescind his rental contract, a split Court of Appeals of Indiana ruled in reversing a small claims court’s decision.

The appellate court majority remanded the case to determine what, if any, restitution is due to the man under the circumstances.

In 2019, Terrence Brodnik planned a Florida vacation for late March 2020.

After reserving the “Salt Air Cottage” from Cottage Rents LLC, Brodnik prepaid more than $6,000, according to court records.

A few weeks ahead of the planned vacation, the COVID-19 pandemic hit.

Five days before Brodnik’s planned arrival date in Florida, Gov. Eric Holcomb issued an executive order prohibiting all but essential travel. The order prevented Brodnik from traveling to his Florida vacation home.

Brodnik contacted the owner of Cottage Rents, Robert Toler Jr., about “what would happen” if he was “unable to travel due to the pandemic.”

Toler offered Brodnik “a replacement week … within the next twelve (12) months.” He also offered to discount a “certain week” by $2,500.

Brodnik declined, explaining that because of his family’s incompatible schedules, there “wasn’t really an option in getting there within the next” year.

In August 2020, Brodnik sued Cottage Rents in small claims court, seeking a refund. Brodnik argued, among other things, that the rental contract was unenforceable because of the Florida doctrine of impossibility.

The small claims court entered judgment for Cottage Rents. In its written judgment, the court implicitly found the contract was enforceable.

But the appellate court, applying Florida law and concluding the doctrine of impossibility applies, reversed and remanded with instructions for the trial court to balance the equities and determine restitution.

Writing for the court, Judge Dana Kenworthy noted Cottage Rents’ argument that Brodnik cannot claim impossibility because he prepaid for the vacation.

The appellate court disagreed.

“The impossibility doctrine addresses ‘the tension between the changes a party bargains to avoid and the changes, unbargained for and radical, that make enforcement of the bargain unwise,’” Kenworthy wrote, citing Cook v. Deltona Corp., 753 F.2d 1552 (11th Cir. 1985).

Kenworthy wrote that the state’s executive order amounted to an unforeseeable supervening event that “radically altered the world in which the parties were expected to fulfill their promises.”

The appellate court concluded the doctrine of impossibility applies under those circumstances.

And because the doctrine of impossibility applies, Brodnik could avoid the contract, including all provisions concerning cancellation, Kenworthy wrote.

“We therefore conclude the small claims court erred in entering judgment for Rental Company on the basis that Vacationer ‘failed to comply with the terms of the contract,’” Kenworthy wrote.

Judge Cale Bradford concurred.

Judge Paul Mathias dissented in a separate opinion.

In his dissent, Mathias wrote that he disagreed that Brodnik’s performance under the contract was rendered impossible, as a matter of law, due to the governor’s stay-at-home order.

“It is undisputed that Brodnik did not give written notice to Cottage Rents that he was terminating the agreement,” Mathias wrote.

Mathias also wrote that Cottage Rents presented evidence that, despite the governor’s order, Brodnik had the ability to comply with the cancellation policy but failed to do so.

The dissenting judge said the small claims court did not err as a matter of law when it declined to apply the impossibility doctrine.

The case is Terrence Brodnik v. Cottage Rents LLC, 22A-SC-1103.

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May 12

State of Indiana, ex rel. James Holden v. Ice Miller, LLC, et al.

22A-PL-2760

COA affirms dismissal of whistleblower suit against former state treasurer, Ice Miller, others

A trial court was correct to dismiss a whistleblower complaint brought against former Indiana Treasurer Kelly Mitchell and the law firm Ice Miller, among others, the Court of Appeals of Indiana has ruled. The COA clarified, however, under which Indiana Trial Rule it should have been dismissed.

James Holden filed the whistleblower lawsuit in July 2020. He alleged the treasurer’s office had violated state law by approving numerous contracts worth more than $6 million without obtaining the consent of the State Budget Agency, Indiana Department of Administration and Indiana Attorney General’s Office.

Holden also alleged the contracts were mostly with Mitchell’s campaign donors and supporters.

Aside from Mitchell, defendants included Ice Miller, multiple banks including Fifth Third Bank, JP Morgan Chase and Wells Fargo, among others, and individuals identified as deputy treasurers.

Holden worked as chief deputy treasurer and general counsel for the Office of the Indiana State Treasurer from 2007 to 2011 and 2012 to 2013. Mitchell became treasurer in November 2014 and terminated Holden’s employment.

Holden filed a complaint against the office and Mitchell as a result of his termination and, during discovery, obtained a copy of an agreement between the office and Ice Miller.

He said during a deposition the agreement wasn’t signed by the State Budget Agency, Indiana Department of Administration and Indiana Attorney General’s Office pursuant to Indiana Code § 4-13-2-14.1(a) of the Financial Reorganization Act.

That litigation was settled in August 2017.

In 2019, Holden checked the office’s Indiana Transparency Portal website to review contracts the office had submitted for approval but found no such contracts.

He filed a records request to obtain copies of all contracts executed during Mitchell’s term as treasurer. Holden alleged the documents he received showed that during Mitchell’s time in office, the office approved contracts worth millions of dollars that went mostly to her campaign donors and supporters without obtaining the proper approval.

Holden filed a complaint under seal, alleging individual defendants conspired with the business defendants to award state contracts in violation of the FRA. The case was unsealed in late 2021.

He later amended his complaint to add allegations that the individual defendants acted outside the scope of their employment and engaged in criminal conduct.

The individual and business defendants filed motions to dismiss pursuant to Indiana Trial Rules 12(B)(1) and 12(B)(6).

In October 2022, the Marion Superior Court granted the motions to dismiss.

In dismissing under Trial Rule 12(B)(1), the court concluded the information learned in a deposition and the government’s responses to a records request fall under the public disclosure bar provisions of I.C. 5-11-5.5-7(f). The court also concluded it lacked subject matter jurisdiction.

In dismissing under Trial Rule 12(B)(6), the trial court concluded the claims failed because the office is not subject to the FRA “when conducting the State’s banking business.”

The Court of Appeals addressed one issue on appeal: whether the trial court properly dismissed the action pursuant to the public disclosure bar provisions.

According to the court’s opinion, Holden made no argument regarding the information learned in the deposition and thus waived any argument that the information did not fall under I.C. 5-11-5.5-7(f). He did, however, argue the information learned through the public records request doesn’t qualify as a “legislative, an administrative, or another public report, hearing, audit, or investigation.”

The opinion notes Indiana courts haven’t interpreted that language, so the COA turned to the federal courts for guidance. The court considered the federal False Claims Act because Holden brought his claims under the similar Indiana False Claims and Whistleblower Protection Act.

The corresponding provision of the federal FCA was interpreted under similar circumstances in Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 131 S. Ct. 1885 (2011), the opinion says.

There, the district court granted a motion to dismiss, agreeing with the plaintiff’s former employer that an agency’s response to a records request was barred by the public disclosure provisions of the FCA.

The U.S. Court of Appeals for the 2nd Circuit vacated and remanded, and the U.S. Supreme Court determined the employer’s records request responses were within the meaning of the public disclosure bar.

Holden argued the COA shouldn’t rely on Schindler Elevator, but that it should instead rely on the dissent in that case. The COA declined and concluded that under I.C. 5-11-5.5-7(f), the trial court did not have jurisdiction over the action.

“We find Schindler Elevator persuasive, and we conclude that the Treasurer’s responses to Relator’s Indiana Access to Public Records Act requests are ‘public reports,’” the opinion states. “Anyone could have filed those same requests and then filed the same suit. Relator did not have ‘direct and independent knowledge’ of the information.”

The COA did, however, find dismissal under Trial Rule 12(B)(1) for lack of subject matter jurisdiction was improper. The opinion notes the term “jurisdiction” in the statute at issue does not refer to subject matter jurisdiction.

Thus, the COA ruled the trial court should have dismissed only under Trial Rule 12(B)(6). The COA remanded with instructions to dismiss the action without prejudice.

Judge Elizabeth Tavitas wrote the opinion. Judges Leanna Weissmann and Peter Foley concurred.

The case is State of Indiana, ex rel. James Holden v. Ice Miller, LLC, et al., 22A-PL-2760.

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May 16

Kristopher M. Wainscott v. State of Indiana

22A-CR-1817

Search warrant ‘executed’ at phone’s seizure, not search, COA rules on interlocutory appeal

A search warrant for a defendant’s phone was executed when the phone was seized, the Court of Appeals of Indiana has ruled, meaning a detective did not have to inform the trial court that the allegations underpinning the warrant were recanted before the phone was searched.

The case of Kristopher M. Wainscott v. State of Indiana, 22A-CR-1817, began in December 2020, when Kristopher Wainscott’s 11-year-old niece told police that Wainscott had molested her at a birthday party.

Detective Dave Preston applied for a search warrant in January 2023, which a magistrate judge in the Madison Circuit Court approved. Law enforcement seized the phone two days later.

But in February, Wainscott’s attorney informed Preston that the girl had partially recanted her allegations. The recantation came after the girl’s mother “cornered” her and warned that the state might “put [Wainscott] in prison for 40 years.”

Preston did not believe the recantation, nor did the prosecutor, who recommended against alerting the magistrate judge. Thus, law enforcement proceeded with a search of Wainscott’s phone, which revealed “voyeuristic images of Victim and, in total, 171 images of child pornography.”

Wainscott was subsequently charged with child molestation, possession of child porn and voyeurism.

He moved to suppress the evidence obtained through the search warrant, arguing Preston had a duty to inform the magistrate judge of the partial recantation. Preston’s failure to do so, Wainscott argued, “destroyed the warrant’s basis for probable cause and rendered it invalid.”

The trial court denied the motion to suppress, and the Court of Appeals affirmed on interlocutory appeal.

The COA first examined the concept of a “reverse Franks claim,” referencing Franks v. Delaware, 438 U.S. 154 (1978). Franks “held that when the defendant makes a substantial preliminary showing that the supporting affidavit for a search warrant knowingly or intentionally contains a false statement, or reflects a ‘reckless disregard for the truth,’ the trial court must hold a hearing.”

Further, under Ware v. State, 859 N.E.2d 708 (Ind. Ct. App. 2007), “in the ‘situation where the police learned new information after receiving a warrant, but before executing the warrant,’ the issuing magistrate must be made aware of the information to ensure probable cause still supports the warrant.”

But here, the search warrant was fully executed when police seized Wainscott’s phone, Judge Leanna Weissmann wrote, citing Indiana Code § 35-33-5-7(f) and Brown v. Eaton, 164 N.E.3d 153 (Ind. Ct. App. 2021). Thus, “Victim’s partial recantation occurred nearly a month after the phone’s seizure and consequently cannot affect the search warrant’s validity.”

“While Wainscott admits that the affidavit described Victim as ‘worried that things weren’t true’ and ‘worried about getting in trouble,’ he still contends the affidavit misled the magistrate,” Weissmann added. “We disagree.

“The affidavit reflects a fair and accurate rendition of the events prompting Detective Preston’s request for a search warrant and supports a finding of probable cause,” she wrote. “Wainscott has not met his high bar of proving that the State ‘engaged in deliberate falsehood or reckless disregard for the truth.’”•