Opinions

Court of Appeals of Indiana
Richard Dolsen Jr. v. VeoRide Inc.
23A-CT-945
Civil tort. Reverses the Allen Superior Court’s entry of summary judgment in VeoRide’s favor. Finds that genuine issues of material fact exist regarding whether VeoRide’s failure to warn Richard Dolsen of the condition and the risk involved was a breach of duty and a failure to exercise reasonable care under the circumstances pursuant to Restatement Section 342(b). Remands for further proceedings.

Court of Appeals of Indiana
Kimberly J. Brook v. State of Indiana
22A-CR-2110
Criminal. Affirms Kimberly J. Brook’s convictions of Class A misdemeanor resisting law enforcement, Class A misdemeanor driving while suspended, Level 6 felony unlawful possession or use of a legend drug and Level 6 felony obstruction of justice, and her two-year sentence, with one year executed and one year served on community corrections. Finds Brook was not entitled to bifurcation, so the Cass Superior Court did not abuse its discretion in denying her request. Also finds the trial court did not erroneously invade the province of the jury by giving instructions that created a mandatory presumption indicating that Lorazepam was classified as a legend drug, and there was sufficient evidence to prove that Brook possessed Lorazepam. Finally, finds the trial court did not abuse its discretion in the admission of testimony, and Brook’s sentence is not inappropriate. Judges Nancy Vaidik and Elizabeth Tavitas concur and dissent in part with separate opinions.

Court of Appeals of Indiana
Shannon Leeann Zimmerman v. State of Indiana (mem. dec.)
23A-CR-685
Criminal. Affirms the Montgomery Superior Court’s order revoking Shannon Leeann Zimmerman’s probation. Finds the trial court didn’t abuse its discretion when it ordered Zimmerman to serve the entirety of her previously suspended sentence.

Court of Appeals of Indiana
James Huspon v. State of Indiana (mem. dec.)
22A-PC-2853
Post-conviction relief. Affirms the Marion Superior Court’s denial of post-conviction relief to James Huspon. Finds Huspon’s 100-year sentence does not violate the Eighth Amendment. Also finds Huspon has failed to establish that his proffered evidence relating to juvenile brain development would result in a shorter sentence. Declines to address Huspon’s argument that his sentence violates Article 1, Section 16 of the Indiana Constitution because he did not raise an argument based on the nature of his offenses.

Court of Appeals of Indiana
Russell G. Finnegan v. State of Indiana
23A-MI-442
Miscellaneous. Reverses the Pulaski Circuit Court’s finding that Russell Finnegan was in indirect criminal contempt of court. Finds the trial court abused its discretion in failing to act on Finnegan’s notice of intent to file an insanity defense and appoint medical personnel to evaluate his mental health and testify at his criminal contempt hearing. Remands for further proceedings.

Court of Appeals of Indiana
Luse Thermal Technologies, LLC v. Graycor Industrial Constructors, Inc. and BP Products North America, Inc.
23A-PL-633
Civil plenary. Affirms the Lake Superior Court’s grant of partial summary judgment in favor of Graycor Industrial Constructors Inc. on Luse Thermal Technologies Inc.’s request for damages and unjust enrichment claim; the grant of summary judgment in favor of BP Products North America Inc. on Luse’s claims based on the personal liability notice statute and unjust enrichment; the grant of BP’s motion to strike certain evidentiary materials; and the denial of Luse’s partial motion for summary judgment with respect to Graycor’s counterclaim relating to the recovery of certain contractual costs. Finds the trial court did not abuse its discretion in granting BP and Graycor’s motions to strike, nor did it err in granting Graycor and BP’s motions for summary judgment. Also finds genuine issues of material facts remain as to Luse’s motion for partial summary judgment. Finally, finds Graycor’s request for appellate attorney fees is not ripe for review.

Court of Appeals of Indiana
Sammy Tinnin v. State of Indiana (mem. dec.)
23A-CR-628
Criminal. Affirms Sammy Tinnin’s conviction in the Marion Superior Court of felony murder. Finds the trial court did not abuse its discretion in denying Tinnin a continuance. Also finds no fundamental error occurred as a result of Exhibits 66 and 67 not being formally admitted into evidence. Finally, finds the state proved beyond a reasonable doubt that Tinnin murdered John Shockley.

Court of Appeals of Indiana
Indiana Law Enforcement Training Board v. Marion County Sheriff’s Office (mem. dec.)
23A-PL-655
Civil plenary. Affirms the Marion Superior Court’s entry of summary judgment for the Marion County Sheriff’s Office. Finds the Indiana Law Enforcement Training Board’s argument that sheriff’s deputies aren’t eligible for training from the board isn’t properly before the court. Also finds the trial court did not enter injunctive relief. Vacates the trial court’s supplemental order, finding it was unnecessary dicta and potentially confusing to the underlying judgment.

Court of Appeals of Indiana
Dylan T. Myers v. State of Indiana
22A-CR-3022
Criminal. Affirms Dylan T. Myers’ conviction of neglect of a dependent resulting in catastrophic injury as a Level 1 felony and his 30-year sentence. Finds the state presented sufficient evidence to support Myers’ conviction. Also finds the sentence imposed on Myers’ conviction under the neglect statute as a Level 1 felony does not offend the proportionality clause of the Indiana Constitution.

Court of Appeals of Indiana
Wiley R. Jones v. State of Indiana
23A-CR-739
Criminal. Reverses Wiley Jones’ sentences for six counts of possession of child pornography as Level 5 felonies. Finds Counts I through VI constitute a single episode of criminal conduct and are subject to the limitation in Ind. Code § 35-50-1-2(d). Remands to the Floyd Superior Court with instructions to resentence Jones consistent with this opinion.

Court of Appeals of Indiana
Loren Wayne Tidwell v. State of Indiana (mem. dec.)
23A-PC-55
Post-conviction relief. Affirms the denial of Loren Tidwell’s petition for post-conviction relief. Finds Tidwell’s right to due process was not infringed in the underlying post-conviction proceedings. Also finds Tidwell has not demonstrated that the post-conviction court’s conclusion that trial counsel rendered effective assistance was clearly erroneous. Finally, finds PCR counsel’s performance did not deprive Tidwell of a procedurally fair proceeding.

Court of Appeals of Indiana
Harry Gillespie Nicholson, IV v. State of Indiana
23A-CR-890
Criminal. Affirms Harry Gillespie Nicholson IV’s sentence to 12 years in the Department of Correction for Level 4 felony sexual misconduct with a minor. Finds Nicholson has failed to establish that the maximum sentenced imposed by the Lake Superior Court was inappropriate given the nature of the offense and his character. 

Court of Appeals of Indiana
In the Matter of J.P., A Child in Need of Services, A.P., v. Indiana Department of Child Services (mem. dec.)
23A-JC-476
Juvenile CHINS. Affirms the Hamilton Superior Court’s order adjudicating mother A.P.’s minor child, J.P, as a child in need of services. Finds any error in admitting Exhibit 2 was harmless. Also finds the trial court’s CHINS adjudication was supported by sufficient evidence and was not clearly erroneous.

Court of Appeals of Indiana
Leeland Paul Runkel v. State of Indiana (mem. dec.)
23A-CR-99
Criminal. Affirms Leeland Runkel’s convictions of Level 6 possession of methamphetamine, Class A possession of marijuana and Class B possession of paraphernalia. Finds the Blackford Superior Court did not err when it admitted into evidence items found in a pickup truck. Also finds sufficient evidence to support the convictions.

Court of Appeals of Indiana
Gustavo Salgado v. State of Indiana (mem. dec.)
22A-CR-2738
Criminal. Affirms Gustavo Salgado’s conviction in Elkhart Superior Court of Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of at least 0.08 grams of alcohol but less than 0.15 grams of alcohol per 210 liters of breath. Finds the trial court did not abuse its discretion when it found Dr. Dana Bors to be an expert on the issue of retrograde extrapolations or when it denied Salgado’s request to present cumulative evidence on surrebuttal. Also finds the state presented sufficient evidence to support Salgado’s conviction.

Court of Appeals of Indiana
Israel Hernandez v. State of Indiana
23A-CR-219
Criminal. Affirms the denial of Israel Hernandez’s motion to dismiss a charging information for invasion of privacy as facially defective. Finds the charging information is not facially defective.

Court of Appeals of Indiana
Elijah Colon Cruz v. State of Indiana
22A-CR-383
Criminal. Affirms Elijah Colon Cruz’s conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds the Marion Superior Court did not abuse its discretion in the admission of evidence. Also finds sufficient evidence supported the conviction.

Ricky L. Wilson v. State of Indiana
22A-CR-2837
Criminal. Affirms Ricky Wilson’s convictions of Level 5 felony criminal recklessness, Level 6 felony escape and Level 6 felony possession of cocaine, and his sentence to four years executed with one year suspended to probation. Finds sufficient evidence to support the convictions. Also finds Wilson’s sentence is not inappropriate.

Court of Appeals of Indiana
Maggie E. Winans v. State of Indiana
23A-CR-80
Criminal. Reverses Maggie Winans’ convictions of Class A misdemeanor domestic battery and Class A misdemeanor resisting law enforcement. Finds the Cass Superior Court committed reversible error when it failed to reset the matter for a jury trial after Winans’ pretrial diversion agreement was terminated. Remands for a jury trial.

Court of Appeals of Indiana
Robert J. Plato v. State of Indiana
23A-PC-452
Post-conviction relief. Affirms the Madison Circuit Court’s judgment that Robert Plato did not have ineffective assistance of appellate counsel. Finds the post-conviction court did not err and that Detective LeeAnn Dwiggins acted within the scope of the warrant when she seized Plato’s computer. Judge Rudolph Pyle dissents with a separate opinion.