Opinions June 28, 2023

Court of Appeals of Indiana
In the Matter of: R.G. (Minor Child) v. The State of Indiana
23A-JV-00011
Juvenile. Affirms the Lake Superior Court’s award of guardianship of R.G. to the Indiana Department of Correction following his violation of the probation he was serving after his adjudication as a delinquent. Finds the trial court did not abuse its discretion when it placed R.G. in DOC when he failed to abide by probation requirements, engaged in physical altercations in detention, and the only residential placement facility that accepted him didn’t have an opening for six to eight weeks.

Jason Gibbs v. State of Indiana
22A-CR-1041
Criminal. Affirms Jason Gibbs’ convictions for two counts of Class A felony child molesting, two counts of Class B felony incest, one count of Level 4 felony incest, two counts of Class C felony sexual misconduct with a minor, and two counts of Level 5 felony sexual misconduct with a minor, and his 155-year aggregate sentence. Finds the Porter Superior Court did not abuse its discretion when it denied Gibbs’ motion for a mistrial. Also finds that Gibbs’ aggregate sentence is appropriate.

Jonathon D. Simpson v. City of Madison, Indiana
22A-MI-246
Miscellaneous. Affirms the Jefferson Superior Court’s judgment upholding the City of Madison’s Police Merit Board Commission’s decision to terminate Jonathon Simpson’s employment with the Madison Police Department. Finds the trial court did not err.

Darwish Bowlds v. State of Indiana (mem. dec.)
22A-CR-2703
Criminal. Affirms the Grant Superior Court’s denial of Darwish Bowlds’ motion to dismiss charges filed against him in December 2021 for the alleged murder of Jessie Pete Flowers in December 2001. Finds the state’s delay in filing charges did not unduly prejudice Bowlds’ due process right to a fair trial.

Ishmael Kedar Elijah Hunter v. State of Indiana (mem. dec.)
22A-CR-2212
Criminal. Affirms Ishmael Kedar Elijah Hunter’s conviction of resisting law enforcement as a Class A misdemeanor. Finds the Lake Superior Court did not abuse its discretion when it excluded from evidence the proffered local law enforcement use of force policy, as that policy was not relevant to this case. Also finds that even if the exclusion of the policy had been erroneous, the error was harmless.

Lester Lee Riggins, Jr. v. State of Indiana (mem. dec.)
22A-CR-329
Criminal. Reverses the Marion Superior Court’s revocation of Lester Lee Riggins’ community corrections placement probation and remands with instructions to reinstate Riggins’ one day of probation. Finds that compliance with community corrections was not a condition of Riggins’ probation.

Phil J. Reeves v. State of Indiana (mem. dec.)
22A-CR-2485
Criminal. Reverses and remands for the Marion Superior Court to vacate its order for Phil Reeves to pay a $200 alcohol and drug countermeasures fee. Affirms the order for Reeves to complete a batterer’s intervention program. Finds the trial court erred by imposing the fee. Also finds the trial court would have ordered Reeves to attend a batterer’s intervention program as part of his sentence regardless of any statutory obligation to do so, so Reeves identified only harmless error.

In the Matter of: M.E. (Minor Child), and A.H. (Mother) and S.E. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JC-2373
Juvenile CHINS. Affirms the Vigo Circuit Court’s adjudication of mother A.H. and father S.E.’s minor child, M.E., as a child in need of services. Finds ample undisputed evidence to establish by a preponderance of the evidence that domestic violence was a concern. Also finds the trial court did not clearly err by adjudicating M.E. as a CHINS.

Kirby R. McPhearson v. State of Indiana (mem. dec.)
22A-CR-2994
Criminal. Affirms Kirby McPhearson’s convictions for two counts of child molesting as Level 1 felonies and his aggregate 35-year sentence. Finds sufficient evidence supports McPhearson’s convictions. Also finds the Madison Circuit Court did not abuse its sentencing discretion.

In re: the Termination of the Parent-Child Relationship of: Ja.W. (Minor Child) and J.W. (Father) and H.W. (Mother) v. Indiana Department of Child Services (mem. dec.)
23A-JT-35
Juvenile termination of parental rights. Affirms the involuntary termination of father J.W. and mother H.W.’s parental rights to Ja.W. Finds father waived his argument regarding the Department of Child Service’s failure to provide services to him as part of the child in need of services proceedings, and waiver notwithstanding, the termination of his parental rights cannot be reversed because DCS did not offer services. Also finds the Martin Circuit Court did not impermissibly shift the burden of proof to mother when it asked questions regarding her plan to participate in services if the trial court denied DCS’s petition to terminate her parental rights, and if there had been error, it would have been harmless. Finally, finds the trial court’s findings supported its conclusion that the conditions under which child was removed from mother and father’s care would not be remedied; the trial court’s termination of mother’s parental rights to child was in child’s best interests; and the trial court’s plan for adoption by great-grandparents was a satisfactory plan for child’s care and treatment following the termination of parents’ parental rights.

Clifford Wetter v. Angel Wetter, et al. (mem. dec.)
23A-DR-250Domestic relations. Affirms the Marion Superior Court’s denial of Clifford Wetter’s motion to modify physical and legal child custody. Finds the trial court did not abuse its discretion when it found the evidence did not establish a substantial change in circumstances that would support a modification of physical or legal custody or that modification was in children’s best interests.