Opinions May 14, 2021

7^th Circuit Court of Appeals

USA v. Ethel Shelton
19-3388
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Senior Judge Joseph S. Van Bokkelen.

Criminal. Reverses and remands Ethel Shelton’s conviction for conspiracy to commit wire fraud and conspiracy to commit honest services wire fraud. Finds that the district court erred when it found that Shelton lacked any reasonable expectation of privacy in her office. Finds Stafford Garbutt’s document collection violated Shelton’s Fourth Amendment rights. Finds the warrant would not have been issued in the absence of the information gathered as a result of the unlawful searches. Thus, the district court should have suppressed the evidence obtained from the search authorized by that warrant, and granted Shelton’s motion for a mistrial.

Indiana Court Appeals

Shane Wierks v. Heather Corey, et al.
20A-DR-01944
Domestic relation. Affirms in part, reverses in part. Finds that while modification of Shane Wierks’ weekly child support obligation of $94 was clearly warranted, concludes that the Grant Superior Court erred in several respects when calculating the new support amount as $672.08. Remands for the trial court to recalculate the support obligation to include a deduction for one-half of the FICA tax payments from Weirks’ gross income and to make appropriate adjustments due to the income tax rates he pays relative to the assumed rate and due to his higher cost of living. Finds that Father is not foreclosed from seeking to obtain a stay from the trial court pursuant to I.C. § 31-16-15-0.5(c).

Harold Arrendale v. American Imaging & MRI, LLC a/k/a Marion Open MRI, et al. 
20A-CT-02184
Civil Tort. Reverses Allen Superior Court’s grant of summary judgment to Marion Open MRI. Finds Sword v. NKC Hospitals, Inc., 714, N.E.2d 142 (Ind. 1999), which found that hospitals can be held vicariously liable for the negligence of an independent-contractor physician, also applies to non-hospital medical facilities. Holds its ruling can be applied to the Arrendale case. Remands for the trial court to resolve the dispute as to whether the contract radiologist was an apparent or ostensible agent for Marion Open MIR.

Dept. of Business & Neighborhood Services v. Scott Beasley (mem. dec.)
20A-SC-1928
Small claims. Reverses the Marion County Center Township Small Claims Court’s August 25, 2020 order denying the the Department of Business and Neighborhood Services’ motion for a jury trial and its September 21, 2020 Order. Finds Scott Beasley did not follow the process prescribed by Ind. Code § 36-7-9-8 as he did not file an appeal with the Circuit or Superior Court of Marion County. Also finds his appeal of the Hearing Authority’s order was to the improper court and untimely.

Johanna McGhehey v. State of Indiana (mem. dec.)
20A-CR-01988
Criminal. Affirms Johanna McGhehey’s conviction for Class B misdemeanor harassment. Finds sufficient evidence that McGhehey made a telephone call to Eric Elmore with the intent to harass, annoy, or alarm him and with no intent of legitimate communication. Finds that because the conviction concerned proscribable speech, it did not run afoul of the federal or state rights to free speech.

Pedro Toribio Marcelino v. State of Indiana (mem.dec.)
20A-CR-02050
Criminal. Affirms the denial of Pedro Marcelino’s pro-se motion for modification of sentence for his conviction of voluntary manslaughter. Finds the trial court had no authority in this case to grant the motion for sentence modification given the lack of consent from the prosecutor. Finds the trial court did not err by summarily denying the motion without a hearing.

CHINS: A M v. Indiana Department of Child Services
20A-JC-02194
Juvenile CHINS. Affirms the adjudication of A.M.’s children as children in need of services. Finds that because there was sufficient evidence that the children were seriously endangered by Mother’s actions and inactions at the time of removal, the children’s needs for safety were unmet, and Mother was unlikely to meet children’s needs for safety without court intervention. Thus, the CHINS adjudication was not clearly erroneous.