Opinions June 30, 2022

Court of Appeals of Indiana
Brian Young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor, and Scott Hanley v. South Bend Common Council v. South Bend City Administration
21A-MI-1049
Miscellaneous. Affirms and reverses in part the dismissal of Brian Young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor and Scott Hanley’s claims for declaratory and injunctive relief alleging violations of the Federal Wiretap Act and the Indiana Wiretap Act. Finds the trial court erred in dismissing the original intervenors’ declaratory judgment complaint for lack of subject matter jurisdiction, but the original intervenors’ argument regarding their dismissal as interpleader defendants is essentially moot. Finds the trial court erred in limiting the new intervenors’ litigation to the cassette tapes. Finally, finds remand is appropriate for development of a factual record and a final determination of the legality of all the interpled recordings.

Keith Smith v. State of Indiana
21A-CR-1834
Criminal. Affirms Keith Smith’s conviction of murder. Finds the Marion Superior Court did not abuse its discretion when it admitted Arnel Davis’ dying declaration as evidence. Also finds the admission of cellphone data, testimony regarding that data and testimony identifying Smith’s cellphone number at the time of the crime was harmless and thus could not rise to the level of fundamental error.

 Dylan Noel Theobald v. State of Indiana
21A-CR-2746
Criminal. Reverses the Marion Superior Court’s denial of Dylan Theobald’s motion to suppress a statement about where he was driving because he was subject to custodial interrogation without being given Miranda warnings. Affirms the denial of Theobald’s motion to suppress a statement about offering Detective Mercer $100. Adopts the federal new-crime exception to the Miranda exclusionary rule and finds that, under the exception, a statement made by a person who is subject to a custodial interrogation but not given Miranda warnings is still admissible if the statement itself is evidence of a new crime. Also finds that Theobald’s offer of money to the officer is admissible. Finally, finds Theobald’s statement about where he was driving was not admissible. Remands.

State of Indiana v. Justin David Pearson
22A-PC-95
Post-conviction. Affirms the grant of post-conviction relief to Justin David Pearson. Finds Pearson did not intelligently enter the plea agreement.

Robert E. Hamilton, Jr. v. State of Indiana (mem. dec.)
21A-CR-1186
Criminal. Affirms Robert E. Hamilton Jr.s’ convictions of Level 1 felony child molesting, Level 4 felony child molesting and Level 5 felony battery. Finds the Allen Superior Court did not abuse its discretion by allowing the state to present limited Rule 404 Evidence.

Amanda Katherine Gore v. Jesse Ray Gore (mem. dec.)
21A-DC-1759
Domestic relations with children. Affirms and reverses in part the final decree dissolving the marriage of Amanda and Jesse Gore. Finds the Vanderburgh Superior Court’s determination that Jesse qualifies as de facto custodian of S.L. and L.B. had no immediate consequences. Also finds that if Amanda moves out of southwest Indiana, the de facto custodian finding would be implicated, so reverses the contingent provision of the decree. Finally, finds the trial court did not abuse its discretion when it found that joint legal custody was not in G.G.’s best interests and awarded Jesse sole legal custody of G.G.

Devin G. Frisque v. State of Indiana (mem. dec.)
21A-CR-1963
Criminal. Affirms Deven Frisque’s conviction of Level 1 felony neglect of a dependent resulting in death and his 40-year sentence. Finds the admission of Dr. Thomas Sozio’s opinion was not reversible error. Also finds the Jefferson Circuit Court did not abuse its discretion in sentencing Frisque. Finally, finds Frisque’s sentence is not inappropriate.

B.T. v. S.B. (mem. dec.)
21A-PO-2269
Protective order. Affirms and reverses in part the issuance of a protective order against B.T. in favor of S.B., K.T. and J.C. Finds there is sufficient evidence to support the issuance of the protective order in favor of S.B. but insufficient evidence to support the issuance of the protective order in favor of K.T. and J.C.

David E. Molnar v. State of Indiana (mem. dec.)
21A-CR-2321
Criminal. Affirms David Molnar’s conviction of Level 3 felony rape. Finds the Allen Superior Court did not abuse its discretion when it restricted the scope of defense counsel’s closing argument and, even if it had erred, any such error would have been harmless. Also finds that even assuming Molnar was in police custody and unambiguously requested legal counsel, any error the trial court made when it admitted into evidence the statements Molnar made to the police following his request for counsel was harmless error.

Stephanie I. Pentland v. Tony Pentland (mem. dec.)
21A-DC-2682
Domestic relations with children. Affirms the order awarding father Tony Pentland sole legal and primary physical custody of his children with mother Stephanie I. Pentland and ordering Stephanie to pay child support. Finds Stephanie has failed to establish that the Cass Circuit Court abused its discretion in modifying custody in Tony’s favor. Also finds Stephanie has failed to establish that the trial court committed reversible error in calculating her child support obligation.

Coltyn M. Toosely v. State of Indiana (mem. dec.)
21A-CR-2789
Criminal. Affirms Coltyn M. Toosley’s convictions for neglect of a dependent as a Level 3 felony and domestic battery as a Level 5 felony. Finds a reasonable factfinder could have concluded that I.G. suffered extreme pain as a result of Toosley’s actions. Also finds there was no double jeopardy violation.

William Payne v. State of Indiana (mem. dec.)
22A-CR-43
Criminal. Affirms William Payne’s convictions of possession of methamphetamine as a Level 6 felony, theft as a Level 6 felony and possession of paraphernalia as a Class C misdemeanor, and his adjudication as a habitual offender. Finds Payne’s rights under the Fourth Amendment were not violated by the warrantless search of his vehicle. Also finds the Clinton Circuit Court acted within its discretion in admitting into evidence the methamphetamine and paraphernalia found during the search.

In the Matter of the Termination of the Parent-Child Relationship of Br.S., Be.S., and P.S. (Minor Children), and C.S.W. (Mother) and J.S. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JT-48
Juvenile termination of parental rights. Affirms the involuntary termination of mother C.S.W. and father J.W.’s parental rights to Br.S., Be.S. and P.S. Finds the Tippecanoe Superior Court did not clearly err in finding a reasonable probability exists that the conditions that resulted in the children’s removal and the reasons for continued placement outside the parents’ care will not be remedied. Also finds the trial court’s determination that termination is in the children’s best interests is supported by clear and convincing evidence.

M.W. V. Review Board of the Indiana Department of Workforce Development (mem. dec.)
22A-EX-83
Agency action. Affirms the decision of the Review Board of the Indiana Department of Workforce Development affirming the decision of an administrative law judge that M.W. had received deductible income in the form of severance pay such that he was ineligible for unemployment benefits. Finds the board’s ultimate finding that the plant discontinuance benefit was severance is reasonable under the plain terms of the agreement. Also finds the board did not err when it allocated that payment over 12 months. Finally, finds the board did not err when it concluded that M.W. was not entitled to benefits from the week of May 22, 2021, through the week of May 14, 2022.

Xavier Heckstall v. State of Indiana (mem. dec.)
22A-PC-119
Post-conviction. Affirms the denial of Xavier Heckstall’s conviction for post-conviction relief filed after he was convicted of two counts of Level 1 felony rape, Level 3 felony kidnapping, Level 6 felony intimidating, Level 6 felony criminal recklessness, Level 6 felony pointing a firearm and Level 6 felony strangulation and sentence to 50 years. Finds the post-conviction court did not err in finding that trial counsel did not provide deficient performance with regarding to investigating and calling witnesses. Also finds the post-conviction court did not err in determining that Heckstall failed to prove that his trial counsel provided ineffective assistance in cross-examining the state’s witnesses.

Jack McCann v. State of Indiana (mem. dec.)
22A-CR-169
Criminal. Affirms Jack McCann’s conviction of Level 6 felony theft. Finds the evidence was sufficient to support the conviction.

Tracey Wheeler v. Kathy Alvey, et al. (mem. dec.)
22A-MI-283
Miscellaneous. Affirms and reverses in part the dismissal of Tracey Wheeler’s complaint against the state of Indiana, the Indiana Department of Correction, the Branchville Correctional Facility and certain state employees. Finds the Perry Circuit Court erred when it dismissed Wheeler’s state law tort claim for loss of property. Also finds Wheeler has waived all other claims by failing to raise and/or present them in compliance with the Indiana Appellate Rules. Remands.

Gwendolyn Smith v. City of Terre Haute, Indiana and Terre Haute Park and Recreation Board (mem. dec.)
22A-CT-397
Civil tort. Affirms the grant of summary judgment in favor of the city of Terre Haute and the Terre Haute Park and Recreation Board on Gwendolyn Smith’s complaint for negligence. Finds Smith did not provide the list of evidence designated to the court, so the Court of Appeals has no basis upon which to review the substantive issues she raised. Also finds Smith failed to meet her burden on appeal to demonstrate that the Vigo Superior Court erred.

Christopher M. Burdett v. State of Indiana (mem. dec.)
22A-CR-463
Criminal. Affirms Christopher M. Burdett’s sanction following the revocation of his probation, and his sentence for escape as a Level 6 felony, as enhanced by his status as a habitual offender. Finds the Ripley Superior Court did not abuse its discretion with regard to the sanction. Also finds Burdett has not sustained his burden of establishing that his sentence of 730 days enhanced by 1,460 days for his status as a habitual offender is inappropriate in light of the nature of the offenses and his character.

John L. Smith v. State of Indiana (mem. dec.)
22A-PC-593
Post-conviction. Affirms the denial of John L. Smith’s petition for post-conviction relief. Finds Smith has not established that the evidence as a whole unmistakably and unerringly leads to a conclusion contrary to that of the post-conviction court.