Opinions Aug. 28, 2023

Monday opinions
Court of Appeals of Indiana

James Andry v. Leo Thorbecke
22A-CT-2942
Civil tort. Reverses the trial court’s order granting Leo Thorbecke leave to file his untimely response and remands for further proceedings on the motion for summary judgment in which the trial court may not consider the late filings. Finds the trial court lacked authority to deviate from the bright-line rule requiring the timely filing of materials opposing summary judgment. Also finds Trial Rule 72(E) offers no relief to Thorbecke under the circumstances presented.

CA Student Living Bloomington Property Owner LLC f/k/a CA/Regency Dunnhill JV LLC v. P.I.P.E. Inc. and RG National LLC (mem. dec.)
22A-CT-2966
Civil tort. Affirms the Monroe Circuit Court’s grant of summary judgment in favor of defendants. Finds plaintiffs breached their contractual obligation and that the appellate court doesn’t need to address the subrogation waiver issues.

Jacob A. Sheckells v. State of Indiana (mem. dec.)
22A-CR-2010
Criminal. Affirms Jacob Sheckells’s convictions and sentence for Level 4 felony sexual misconduct with a minor and Level 5 felony sexual misconduct with a minor. Finds the Crawford Circuit Court’s admission of testimony was harmless in light of all the evidence before the jury. Also finds the imposition of consecutive sentences was not inappropriate in light of the nature of the offenses and Sheckells’s character.

Patrick L. Atkins v. State of Indiana (mem. dec.)
23A-CR-659
Criminal. Affirms Patrick Atkins’s sentence for Level 2 felony dealing in methamphetamine, Level 5 felony dealing in a narcotic drug, Level 6 felonies resisting law enforcement, obstruction of justice and unlawful possession of a syringe, Class A misdemeanor driving while suspended, Class B misdemeanor possession of marijuana and Class C misdemeanor reckless driving. Finds Atkins has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.

Derrick Lamont Marble v. State of Indiana (mem. dec.)
23A-CR-1010
Criminal. Affirms Derrick Lamon Marble’s conviction of Class A misdemeanor invasion of privacy. Finds there was sufficient evidence to sustain his conviction. Also finds that evidence of probative value was presented from which the trier of fact could have found beyond a reasonable doubt that Marble committed invasion of privacy as a class A misdemeanor.

Jonathan Ray Heffley v. State of Indiana (mem. dec.)
23A-CR-650
Criminal. Affirms Jonathan Ray Heffley’s convictions for Level 2 felony dealing in methamphetamine, Level 6 felony unlawful possession of a syringe, Level 6 felony possession of a narcotic, Level 6 felony dealing marijuana, his adjudication as a habitual offender and his 40-year sentence. Finds Heffley has not demonstrated fundamental error, nor has he persuaded the court his sentence is inappropriate.

Brandon Wilkerson v. State of Indiana (mem. dec.)
23A-CR-538
Criminal. Affirms Brandon Wilkerson’s conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds Wilkerson waived his claims. Also finds the Jay Circuit Court did not abuse its discretion when it admitted evidence of the weapon.

Wayne L. Weaver v. State of Indiana (mem. dec.)
23A-CR-319
Criminal. Affirms Wayne Weaver’s sentence for Level 3 felony dealing in methamphetamine and Level 5 possession of methamphetamine. Finds the Kosciusko Circuit Court did not abuse its discretion.

Muhammed Cross v. State of Indiana (mem. dec.)
22A-CR-2785
Criminal. Affirms Muhammed Cross’s convictions for Level 3 felonies of attempted rape and rape. Finds Cross was not entitled to attack the credibility of a witness by eliciting evidence of an offense other than those enumerated in Evidence Rule 609. Also finds sufficient evidence supports his conviction for attempted rape. Remands for correction of the abstract of judgment and judgment of conviction.

Heriberto De Jesus Hernandez-Zuluaga v. State of Indiana (mem. dec.)
22A-CR-2807
Criminal. Affirms Heriberto De Jesus Hernadez-Zuluaga’s conviction of Level 4 felony child molesting. Finds Hernandez-Zuluaga has not demonstrated that the instructional error in the case prejudiced him or that he was denied a fair trial.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: S.H. and T.H. (Minor Children) and J.R.H. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JT-2587
Juvenile termination of parental rights. Affirms the termination of J.R.H.’s parental rights to his children S.H. and T.H. Finds there was clear and convincing evidence to support the Ohio Circuit Court’s conclusion.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.B. (Minor Child) and K.B. (Mother) v. Indiana Department of Child Services (mem. dec.)
23A-JT-702
Juvenile termination of parental rights. Affirms the Allen Superior Court’s termination of K.B.’s parental rights of her child S.B. Finds her argument on appeal requests the court to reweigh evidence, which they cannot do.

Board of Trustees of the Flavius J. Witham Memorial Hospital d/b/a Especially Kidz Health and Rehab and Especially Kidz Health & Rehab v. Indiana Department of Health (mem. dec.)
23A-MI-1157
Miscellaneous. Affirms the Shelby Superior Court’s denial of Especially Kidz’s judicial review petition. Finds Especially Kidz was not erroneously denied a statutory right to review of the denial of its motion for summary judgment. Also finds because a final order was not entered in administrative proceedings, Especially Kidz lacks standing as statutorily defined to present its petition for judicial review.

Wilma Vansant f/k/a Wilma Hillery and Mary Ann Merryman v. James Richard Salts and Lois Woods f/k/a Lois Lusk (mem. dec.)
22A-MI-2825
Miscellaneous. Finds the trial court did not err in determining the will grants James Richard Salts an option to purchase Wilma Vansant and Mary Ann Merryman’s interest in the farm. Also finds Vansant and Merryman waived any claim Salts failed to timely exercise the option. Reverses the court’s judgment on issues concerning the valuation of the farm and the proper purchase price for Salts and remands for further proceedings.

Thomas Smith v. State of Indiana (mem. dec.)
22A-PC-2911
Post conviction relief. Affirms the Lake Superior Court’s denial of Thomas Smith’s petition for DNA testing of certain evidence. Finds the post-conviction court did not err by denying his petition.

M.M. v. J.S. (mem. dec.)
23A-PO-233
Protection order. Affirms the Marion Superior Court’s judgment barring M.M. from contacting J.S. Finds there was sufficient evidence to prove M.M. harassed J.S. and that she was a credible threat.