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Opinions July 22, 2010

Indiana Court of Appeals
Daniel
A. Donald v. State of Indiana
23A04-0912-CR-685
Criminal. Reverses and remands trial court’s denial of Donald’s request for a competency evaluation prior to
his probation revocation hearing. Donald contended he was entitled to a competency evaluation pursuant to Indiana statute
and the Due Process Clause of the United States Constitution. The Court of Appeals disagreed with Donald’s statutory
argument, but agreed the Due Process Clause may warrant a competency evaluation prior to a probation revocation hearing.

Plain English jury instructions now available

The Indiana Model Civil Jury Instructions, which were prepared by the Civil Instructions Committee of the Indiana Judges Association
and are written in plain English, are now available.

Opinions July 21, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Brandon
Vest v. State of Indiana
49A02-0912-CR-1276
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement. The state prosecuted Vest for only one indivisible
instance of resisting law enforcement, and jurors were not required to agree on which particular officer Vest fled.

T.J.
v. State of Indiana
49A04-1001-JV-8
Juvenile. Affirms adjudication for animal fighting, a Class D felony if committed by an adult. The testimony from the witnesses
support a reasonable inference T.J. and another boy were encouraging a larger dog to attack a smaller dog.

Indiana
Dept. of Insurance v. Robin Everhart
84A01-0912-CV-614
Civil. Reverses findings of fact, conclusions of law, and judgment of $1 million in favor of Everhart in her claim against
the Indiana Patient’s Compensation Fund. It is not consistent with Supreme Court precedent to hold the fund liable for
more than the increased risk of harm that the doctor caused. Remands for the trial court to recalculate its damages award
and award damages to Everhart in proportion to the increase in risk of harm that was caused by the malpractice and address
whether the fund is entitled to a set-off.  

Centerfield
Bar Inc. v. Michael Gee, et al.
05A02-0911-CV-1070
Civil. Affirms denial in part of Centerfield Bar’s motion for summary judgment in a complaint filed by the Gees that
the bar’s negligence in failing to remove or control another patron resulted in Michael’s injuries. Based on the
facts set forth as evidence, Greenfield hasn’t demonstrated that the assault on Michael was not foreseeable as a matter
of law.

Eric
Pilipow v. State of Indiana (NFP)
71A03-1001-CR-19
Criminal. Affirms conviction of Class C felony battery.

Raymond
E. Robinson v. State of Indiana (NFP)
18A04-0912-CR-692
Criminal. Affirms order revoking probation.

Joshua
Orman v. State of Indiana (NFP)
11A04-1003-CR-216
Criminal. Affirms sentence following guilty plea to Class B felonies burglary and aggravated battery.

Jonathan
Perkins v. State of Indiana (NFP)
44A05-1001-CR-11
Criminal. Affirms sentence following guilty plea to Class B felony robbery, Class D felony aiding in a theft, and Class B
misdemeanor visiting a common nuisance.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions July 21, 2010

Indiana Court of Appeals
Adoption
of A.M.; M.M. v. M.M. & A.C.
53A05-1002-AD-71
Adoption. Reverses denial of grandfather M.M.’s uncontested petition to adopt his biological granddaughter A.M. Based
upon the reasoning in K.S.P., the idea that the best interests of the child is the primary concern in an adoption
proceeding, the purposes of the adoption statutes as stated by the legislature, and the trial court’s initial determination
that adoption was in the best interests of A.M., preventing the adoption in this specific case on the basis of Ind. Code Section
31-19-15-1 and Ind. Code Section 31-19-15-2 would cause an absurd result not intended by the legislature. Remands for further
proceedings. Judge Najam dissents.

Judges disagree on whether grandfather can adopt

Judges on the Indiana Court of Appeals disagreed as to whether a grandfather could adopt his biological granddaughter but
allow the mother to retain her parental rights under Indiana law.

Medicaid applications review policy doesn’t violate federal law

An administrative law judge’s refusal to consider evidence of conditions that aren’t disclosed on a Medicaid disability
application doesn’t violate federal law and the Due Process Clause, a majority on the Indiana Court of Appeals ruled
today.

Mom sues over girls’ high school basketball schedule

A Franklin County mother is suing the Indiana High School Athletic Association and multiple school districts claiming discrimination
against the girl’s basketball team based on when the girls play their games.

Terre Haute attorney dies

A Terre Haute attorney and former member of the Indiana House of Representatives died Monday.

Opinions July 20, 2010 ILD

7th Circuit Court of Appeals

United
States of America v. John Doe a/k/a Adaberto Guzman a/k/a Juaquin Tapia, Andres Cuellar-Chavez, and Enedeo Rodriguez Jr.

U.S. District Court, Northern District of Indiana, Fort Wayne Division. Judge Theresa L. Springmann
09-1658, 09-1756, 09-2242
Criminal. Affirms convictions of and sentences for conspiracy to possess with intent to distribute more than 100 kilograms
of marijuana following a jury trial. Appellants were conspirators in a drug distribution ring whose scheme was infiltrated
by an undercover officer. During sentencing hearings, the district court overruled each defendant’s sentencing objections
and imposed a sentence on each defendant.

Indiana Supreme Court had posted no opinions before IL deadline.

Indiana Court of Appeals
Steven
M. Rosenbaum v. State of Indiana
29A02-0911-CV-1097
Civil. Affirms trial court’s ruling Rosenbaum committed a Class A infraction even though he claimed he did not know
the insurance had lapsed on the borrowed vehicle he was driving. According to Indiana Code section 9-25-4-4, a person who
knowingly operates a motor vehicle on a public highway, et al., commits a Class A infraction unless financial responsibility
is in effect with respect to the motor vehicle.

Michael
J. Shepherd v. State of Indiana (NFP)
70A01-0911-CR-529
Criminal. Affirms trial court’s order resentencing Shepherd after he successfully pursued post-conviction relief.

 
Kayla
Johnson v. Timothy J. Reinhardt (NFP)
92A03-0912-CV-586
Civil. Affirms trial court order for Johnson to pay a portion of Reinhardt’s attorney fees.
 
Daniel
Brewington v. Melissa Brewington (NFP)
69A05-0909-CV-542
Civil. Affirms trial court’s judgment and final order on marriage dissolution decree, division of the marital estate,
and award of sole custody of the parties’ two minor children to mother.
 
S.T.P.
v. State of Indiana (NFP)
71A04-0912-JV-729
Juvenile. Affirms juvenile court’s reinstatement of jurisdiction over S.T.P. for the purpose of establishing restitution
after adjudicating him as a delinquent child and entering a dispositional order awarding him to the Department of Correction.

Andrew
Hirsty v. Kathy Hirsty (NFP)
02A03-1002-DR-55
Civil. Affirms trial court’s determination of the child support to be paid by Andrew Hirsty’s ex-wife Kathy Hirsty.

 
Termination
of Parent-Child Relationship of K.S; B.S. v. Indiana Dept. of Child Services (NFP)
82A01-1002-JT-76
Juvenile. Affirms termination of parental rights.

Zachary
McCloud v. State of Indiana (NFP)
82A05-0911-CR-656
Criminal. Affirms convictions of and eight-year sentence for battery, a Class C felony, and resisting law enforcement, a
Class A misdemeanor.
 
Kevin
Early v. State of Indiana (NFP)
49A04-0912-CR-701
Criminal. Affirms conviction of resisting law enforcement, a Class A misdemeanor.
 
Christopher
W. Turner v. State of Indiana (NFP)
29A02-0905-CR-479
Criminal. Affirms sentence of eight years for five counts of operating a vehicle while intoxicated following a guilty plea.

 
William
Michael Lacy v. State of Indiana (NFP)
32A01-1002-CR-48
Criminal. Affirms conviction of strangulation; remands with instructions to vacate convictions of criminal confinement and
battery.
 
Termination
of Parent-Child Relationship of D.W. and T.W.; N.W. v. Indiana Dept. of Child Services, et al. (NFP)
49A02-0912-JV-1280
Juvenile. Affirms termination of parental rights.
 
Termination
of Parent-Child Relationship of J.C.; M.C. v. Marion County Dept. of Child Services, et al. (NFP)
49A04-0912-JV-728
Juvenile. Reverses the involuntary termination of M.C.’s parental rights to her child, J.C., and remands with instructions.

Indiana Tax Court

Dekalb
Co. Eastern Community School District v. Dept. of Local Government Finance
49T10-0906-TA-31
Tax. Reverses final determination of the Department of Local Government Finance. Given the actual language used in Indiana
Code Section 6-1.1-18-12, the phrase “actual percentage increase” means increase only. If there is no increase,
however, a zero value should be used in steps 2 and 4 of Indiana Code Section 6-1.1-18-12(e). Remands for further proceedings.

Opinions July 20, 2010

7th Circuit Court of Appeals
Brenda
Chaney v. Plainfield Healthcare Center
09-3661
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Reverses the District Court’s order of summary judgment in favor of Plainfield Healthcare Center. Finds that
Plainfield’s racial preference policy for patients violates Title VII of the 1964 Civil Rights Act. That policy, along
with other incidents that occurred before Plainfield fired Chaney, contributed to a hostile work environment, and should be
considered in determining whether Chaney was fired because of her race.

State, federal double-jeopardy challenge fails

A man’s claims of federal and state double-jeopardy violations were rejected today by the Indiana Court of Appeals,
which affirmed the trial court in a case involving multiple child pornography videos.

Attorneys to debate constitutionality of health-care reform

The Indiana Continuing Legal Education Forum will hold a CLE on health-care reform which will include a debate between Indiana
Solicitor General Thomas M. Fisher and Indiana University School of Law –Indianapolis professor David Orentlicher.

IBA Frontlines

IBA Frontlines for July 21- Aug.3, 2010