Opinions Sept. 19, 2022

Court of Appeals of Indiana

Performance Services, Inc. v. Randolph Eastern School Corporation  
22A-CP-361
Civil plenary. Reverses the Randolph Circuit Court’s entry of summary judgment for the Randolph Eastern School Corporation against Performance Services Inc. Holds that the trial court erred when it granted the School Corporation’s motion for summary judgment and denied Performance’s motion for summary judgment. Remands with instructions to enter summary judgment for Performance and to hold a hearing on Performance’s damages. Judge Elaine Brown dissents with a separate opinion.

State of Indiana v. $2,435 in United States Currency and Alucious Kizer
22A-CR-578
Criminal. Reverses the Allen Circuit Court’s order setting the state’s in rem forfeiture complaint against $2,435 in cash seized from Alucious Kizer during an arrest for a jury trial. Finds the trial court erred when it concluded that Article 1, Section 20 of the Indiana Constitution requires a jury trial on the State’s in rem forfeiture complaint. Remands for further proceedings.

Lee Evans Dunigan v. State of Indiana (mem. dec.)
22A-CT-947
Civil tort. Affirms the dismissal of inmate Lee Evans Dunigan’s civil complaint against Indiana Department of Correction medical doctors under Indiana Trial Rule (12)(B)(6). Finds Dunigan doesn’t allege a serious medical need. Concludes the trial court properly dismissed the complaint.

Robert Smelko v. Olivia Ortega, Stephanie Perez, and Alberto Ortega (mem. dec.)
22A-CT-515
Civil tort. Reverses the summary judgment granted to Olivia Ortega, Stephanie Perez and Alberto Ortega. Finds Olivia Ortega failed to make a prima facie showing that no genuine issue of material fact exists regarding the applicability of the common enemy doctrine, thus the burden never shifted to Robert Smelko to establish that a genuine issue of material fact does exist. Concludes the Lake Superior Court erred and remands for further proceedings.

Skyler Jacob Barnes v. State of Indiana (mem. dec.)
22A-CR-129
Criminal. Affirms Skyler Jacob Barnes’ aggregate 13-year sentence for conviction of Level 3 felony dealing in methamphetamine and Level 6 felony auto theft. Finds Barnes’ sentence is well within the terms of his plea agreement, and thus his claim challenging the appropriateness of his sentence was waived under the terms of that agreement.

Ryan Eric Brown v. State of Indiana (mem. dec.)
22A-CR-1158
Criminal. Affirms the imposition of Ryan Eric Brown’s previously suspended sentence. Finds Brown repeatedly violated the conditions of his probation. Finds Jefferson Superior Court didn’t abuse its discretion when it ordered Brown to serve his previously suspended sentence in the Department of Correction.

Jimmy Nave Jr. v. State of Indiana (mem. dec.)
22A-MI-1264
Miscellaneous. Affirms the Sullivan Superior Court’s denial of Jimmy Nave Jr.’s petition for writ of habeas corpus. Finds the trial court properly dismissed Nave’s second petition under the doctrine of res judicata.

Jorge Garza v. State of Indiana (mem. dec.)
22A-CR-769
Criminal. Affirms the revocation of Jorge Garza’s probation. Finds sufficient evidence supports the Madison Circuit Court’s finding Garza violated his probation.

Emily Heath v. State of Indiana (mem. dec.)
22A-CR-499
Criminal. Affirms Emily Heath’s 17-year sentence for Level 3 felony possession of methamphetamine and being a habitual offender. Finds Heath has made efforts to overcome her drug and alcohol addiction, but because her drug offenses have escalated in severity and previous alternatives have not helped, her sentence is not inappropriate.

James M. Wainman v. State of Indiana (mem. dec.)
22A-CR-1074
Criminal. Affirms the denial of James Wainman’s motion to correct error, which challenged his conviction for operating a vehicle while intoxicated, endangering a person, as a Class A misdemeanor. Finds Wainman failed to overcome the presumption that the trial court applied the correct burden of proof. Concludes sufficient evidence supports Wainman’s conviction.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of E.W. and K.W. (Minor Children) and E.W., Sr. (Father) v. Indiana Department of Child Services (mem. dec.)
22A-JT-726
Juvenile termination of parental rights. Affirms the termination of parental rights of E.W. Sr. to his two children. Finds DCS made reasonable efforts to preserve or reunify the family. Finds E.W. undermined DCS’s efforts by failing to consistently participate and continuing to engage in criminal activity throughout the pendency of the CHINS case. Declines to reweigh the evidence and reassess witness credibility.

Edward A. Fox v. State of Indiana (mem. dec.)
21A-CR-2696
Criminal. Affirms Edward Fox’s convictions of murder and burglary. Finds that sufficient evidence supports Fox’s convictions and that his sentence is not inappropriate. Finds the trial court did not abuse its discretion in admitting testimony from the protective order hearing or evidence of cash-related apps, games, and solicitations from Fox’s cellphone.