Opinions Aug. 31, 2023

Court of Appeals of Indiana

On the Level Fence & Deck Inc. v. Indiana Bell Telephone Company d/b/a AT&T Indiana
22A-CT-3073
Civil tort. Reverses the denial of the motion for default judgment and remands the matter to the Lake Superior Court for further proceedings. Finds that On the Level Fence & Deck’s failure to answer the complaint was the result of excusable neglect. Judge Peter Foley dissents with a separate opinion.

Glenn S. Vician, Individually and on behalf of Bowman, Heintz, Boscia & Vician P.C. v. Bingham Greenebaum & Doll LLP n/k/a Dentons Bingham Greenbaum LLP and Jeremy Hill (mem. dec.)
22A-PL-1935
Civil plenary. Affirms the summary judgment granted in favor of defendants. Finds the defendant attorneys were entitled to summary judgment on Glenn Vician’s derivative legal claim and that his breach of fiduciary duty claim fails. Also finds the defendant attorneys were entitled to judgment as a matter of law on the tortious interference claims and that the argument on his denial of motion to compel was waived. Finds Vician has not established that the Marion Superior Court abused its discretion when it denied his motion to compel and granted a protective order to defendant attorneys.

Lewis J. Roberts v. Catherine S. Roberts (mem. dec.)
22A-DC-2978
Domestic relations with children. Affirms the Allen Superior Court’s denial of Lewis Roberts’s motion for genetic testing. Finds the trial court did not abuse its discretion in ordering Lewis to pay a portion of Catherine Roberts’s attorney fees. Also finds the trial court did not abuse its discretion in valuing the marital assets and that it properly awarded Catherine Roberts 100% of the marital estate and that the child support order was appropriate and not an abuse of discretion to award sole legal custody of the two minor children to Catherine Roberts. Lastly, finds the trial court did not abuse its discretion in ordering Lewis Roberts to pay a portion of A.R.’s college expenses and permitting Catherine Roberts to claim the children as exemptions for tax purposes.

Jeffrey N. Crow v. State of Indiana (mem. dec.)
22A-CR-2295
Criminal. Affirms Jeffrey N. Crow’s conviction in Clinton Circuit Court for Level 4 felony burglary. Finds the state presented sufficient evidence and the jury instruction was an erroneous harmless error.

Harve Hensley v. State of Indiana (mem. dec.)
22A-CR-2056
Criminal. Affirms Harve Hensley’s conviction in Jefferson Superior Court for Level 6 felony theft and his two-year sentence. Finds Hensley has not shown reversible error and has not established grounds for sentence revision.

Jawan Kendrell Cobbs v. State of Indiana (mem. dec.)
23A-CR-141
Criminal. Affirms Jawan Kendrell Cobbs’s conviction in Lake Superior Court for Level 3 felony aggravated battery. Finds sufficient evidence to support his conviction.

Tony Lionel Love v. State of Indiana (mem. dec.)
23A-CR-425
Criminal. Affirms the Lake Superior Court’s denial of Tony Love’s motion to correct erroneous sentence. Finds the trial court did not abuse its discretion when it denied his motion.

Jamal M. McFadden v. State of Indiana (mem. dec.)
23A-CR-254
Criminal. Affirms Jamal McFadden’s conviction in Monroe Circuit Court and sentence for murder. Finds the state presented sufficient evidence to support McFadden’s murder conviction. Reverses McFadden’s robbery conviction and sentence due to violating the principle of double jeopardy. Vacates McFadden’s conviction for robbery resulting in serious bodily injury. Remands the trial court to issue a corrected sentencing order.

Nicolas C. Alvarez v. State of Indiana (mem. dec.)
23A-CR-23
Criminal. Affirms Nicholas Alvarez’s conviction in Posey Circuit Court and sentence for Level 3 felony dealing in a narcotic drug. Finds Alvarez has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character and that the state presented evidence of a probative nature from which the jury could find beyond a reasonable doubt that Alvarez committed the charged offense. Also finds Alvarez did not demonstrate prejudice as a result of the trial court’s ruling and that it cannot say that expert testimony was necessary to ensure Alvarez received an adequate defense or that the court abused its discretion in denying his request for defense experts. Further finds reversal is not warranted based on certain evidence the court admitted, allowing the state to amend its information and refusing to give his lesser included instruction.

Kuldeep Singh v. State of Indiana (mem. dec.)
22A-CR-2654
Criminal. Affirms Kuldeep Singh’s conviction of Level 5 felony battery resulting in serious bodily injury. Finds an inconsistency that exists between the sentencing order and the abstract of judgment, making it unclear whether the Whitley Circuit Court properly vacated the judgment of conviction for Singh’s conviction for disorderly conduct. Remands with instructions to correct the inconsistency.

Robert T. Drake v. State of Indiana (mem. dec.)
23A-CR-189
Criminal. Affirms Robert Drake’s conviction for murder. Finds the Whitley Circuit Court did not abuse its discretion in denying Drake’s request for a mistrial or continuance and that the evidence was sufficient to sustain his conviction.

Mary Kortea v. Jamar Properties (mem. dec.)
22A-EV-2031
Eviction. Affirms the Monroe Circuit Court’s judgment in the amount of $233 and $450 in attorney fees in favor of Jamar Property Management LLC following its eviction claim. Finds Mary Kortea has waived the issue she raised because her brief was not in compliance with Indiana Appellate Rule 46(A).

M.W. v. State of Indiana (mem. dec.)
22A-JV-2952
Juvenile. Affirms M.W.’s delinquency adjudication for Level 3 felony rape if committed by an adult. Finds the state presented sufficient evidence.

S.F. v. State of Indiana (mem. dec.)
22A-JV-3067
Juvenile. Affirms S.F.’s dealing and possession true findings that he constructively possessed the pills containing fentanyl and methamphetamine that were found in the vehicle he was driving. Finds the state presented sufficient evidence to support the true findings. Also finds that it was reasonable for the fact finder to infer that S.F. knew of the presence of the pills in the console and intended to possess them.

In the Termination of the Parent-Child Relationship of: D.D. (Minor Child) and D.L. (Father) v. Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the Madison Circuit Court’s termination of D.L.’s parental rights to his minor child D.D. Finds Indiana Department of Child Services presented clear and convincing evidence to support the trial court’s termination of parental rights.