Opinions

Court of Appeals of Indiana
Jennifer R. Holmgren v. State of Indiana
21A-CR-2756
Criminal. Affirms and reverses in part Jennifer Holmgren’s sentence to an aggregate of 47 years in the Department of Correction, with five years suspended to probation, for her convictions of child molesting as a Level 1 felony, child molesting as a Level 4 felony and inappropriate communication with a child as a Class A misdemeanor. Finds the Tippecanoe Superior Court did not err by classifying Holmgren as a credit restricted felon. Also finds the trial court erred by sentencing Holmgren for Count II under Indiana Code § 35-50-2-4(c), violating her Sixth Amendment rights. Remands for resentencing on Count II.

Court of Appeals of Indiana
Jerry C. Coleman v. State of Indiana
21A-CR-2877
Criminal. Affirms Jerry C. Coleman’s convictions of resisting law enforcement and unlawful possession or use of a legend drug as level 6 felonies. Finds Sgt. Chad Dick’s order to stop wasn’t unlawful or that Coleman’s Fourth Amendment rights were violated. Concludes that evidence of probative value was presented from which a reasonable jury could find Coleman was guilty beyond a reasonable doubt of resisting law enforcement as a level 6 felony. 

Court of Appeals of Indiana
Residential Warranty Services, Inc. and P. Nathan Thornberry v. L.M. Henderson and Company, LLP
22A-PL-408
Civil plenary. Affirms the grant of judgment on the pleadings to L.M. Henderson and Company LLP in a dispute with Residential Warranty Services and Nathan Thornberry. Finds it was unnecessary to convert the motion for judgment on the pleadings to a motion for summary judgment. Also finds the Hamilton Superior Court applied the correct statute of limitations.

Court of Appeals of Indiana
Jason Morehouse and Sarah Morehouse v. Dux North LLC
22A-PL-664
Civil plenary. Reverses summary judgment granted to Dux North on an easement of prior use over real property owned by Jason Morehouse and Sarah Morehouse. Also reverses the denial of the Morehouses’ motion for partial summary judgment on the alleged easement of necessity. Finds Dux North was required to designate evidence to show that an access road is absolutely necessary to access Parcel 3, which it did not do. Finds the designated evidence also does not show whether the access road either was or was not in use at the time that Parcel 3 was severed from the Morehouse property in April 1991. Remands for further proceedings.

Court of Appeals of Indiana
Indianapolis Power & Light Company (d/b/a AES Indiana) v. The Home Insurance Co., et al.
22A-PL-1211
Civil plenary. Affirms the order granting The Home Insurance Co.’s motion to dismiss AES Indiana’s request for a declaratory judgment seeking a declaration of its rights and its insurance carrier’s coverage obligation under an excess liability insurance policy. Finds the trial court properly dismissed AES Indiana’s complaint, according full faith and credit to an out-of-state liquidation order pursuant to Indiana Code §§ 27-9-4-3(c) and 27-9-3-12(b).

Court of Appeals of Indiana
Jay T. Cast v. State of Indiana (mem. dec.)
22A-CR-278
Criminal. Affirms Jay Cast’s 16-year sentence for conviction of Level 4 felony operating a vehicle while intoxicated and Level 5 felony causing serious bodily injury while operating a vehicle while intoxicated. Finds the Hamilton Superior Court did not abuse its discretion in the finding of mitigating and aggravating factors. Finds Cast’s sentence is not inappropriate in light of the nature of the offenses and his character.

Court of Appeals of Indiana
In Re: Petition to Docket Trust of Mary Ruth Moeder Susan Moeder v. Robert W. York, Temporary Successor Trustee of the Irrevocable Trust of Mary Ruth Moeder
21A-TR-2522
Trust. Affirms the Marion Superior Court’s imposition of attorney fees on Susan Moeder and a finding that her latest request for trust information violated an agreement between the parties that she refrain from such conduct. Finds the trial court did not erroneously limit Susan’s access to trust information. Also finds Susan’s arguments attacking the judgment are frivolous and reflect her continuing bad faith. Finally, finds Susan has offered no non-frivolous grounds for setting aside the attorney fees award. Remands for a determination of the trust’s appellate attorney fees to be paid by Susan. 

Court of Appeals of Indiana
S.D. v. G.D.
22A-PO-521
Protective order. Reverses the Starke Circuit Court’s order of protection against S.D. in favor of G.D. Finds insufficient evidence to establish that S.D. represents a present, credible threat to G.D.’s safety or the safety of their child, H.D. Also finds the trial court erred in not balancing any need for protection against the burden imposed by the protective order. Judge Robert Altice dissents with separate opinion.

Court of Appeals of Indiana
Karl W. Morgan v. State of Indiana (mem. dec.)
21A-CR-2864
Criminal. Affirms Karl W. Morgan’s two counts of Level 4 felony child molesting and his aggregate 20-year sentence. Finds the Adams Circuit Court neither erred in finding Morgan to be a sexually violent predator nor abused its discretion in denying his motion to correct erroneous sentence.

Court of Appeals of Indiana
Tracey Wheeler v. Wendy Knight and Jay Hall (mem. dec.)
21A-SC-2211
Small claims. Affirms the small claims judgment in favor of Wendy Knight and Jay Hall in a dispute with Tracey Wheeler. Finds Wheeler is not entitled to a new trial based on his argument that he was informed of the trial date one day before trial, because he was offered a continuance and declined, he did not object to appearing by telephone or show that his appearance by telephone prevented him from testifying as to any matter, and the record demonstrates that the Madison Circuit Court provided adequate opportunity for him to present his testimony and argument and to respond to the defendants’ arguments. Also finds the evidence and small claims court do not reach opposite conclusions.

Court of Appeals of Indiana
Travis Armes, Eric Settles, and Debra Pennington v. State of Indiana
21A-CR-2384
Criminal. Affirms opinion in Armes v. State, 191 N.E.3d 942 (Ind. Ct. App. 2022) which reversed the Marion Superior Court denial of the motions to dismiss the charging information against Travis Armes, Eric Settles and Debra Pennington. Finds LSA Document N. 20-516(E) which is the emergency rule that designated MDMB-4en-PINACA as a Schedule I controlled substance did not provide the chemical composition so a person of ordinary intelligence would not be able to determine through appropriate testing whether a material contained it.

Court of Appeals of Indiana
Damon Daniels v. Jeffrey Drake and Lisa Drake
22A-CT-68
Civil tort. Reverses and remands the Franklin Circuit Court’s grant of summary judgment to Jeffrey and Lisa Drake after FedEx driver Damon Daniels sued them for damages after the Drakes’ dog bit him on the job. Finds a genuine issue of material fact as to the dangerous tendencies of Great Danes, which, if true, the Drakes are likely to be aware of. As a result, finds that would generate a genuine issue as to whether the Drakes took reasonable precautions under the circumstances to prevent their dog from causing injury to Daniels, an invitee on their land. Remands for further proceedings.

Court of Appeals of Indiana
In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins
22A-JP-57
Juvenile paternity. Reverses the Warrick Circuit Court’s award of joint legal custody of child E.P. to Stephanie Tonevich and Kasey Perkins. Finds the evidence supports the trial court’s findings, but its findings do not support the award of joint legal custody to the parents. Remands with instructions for the trial court to enter an award of sole legal custody to either Tonevich or Perkins. Judge Elizabeth Tavitas concurs with separate opinion.

Court of Appeals of Indiana
Khalil Payne v. State of Indiana (mem. dec.)
21A-CR-2813
Criminal. Affirms Khalil Payne’s conviction of unlawful possession of a firearm by a serious violent felon as a Level 4 felony. Finds the Tippecanoe Superior Court did not abuse its discretion when it provided the jury with a supplemental instruction on possession during deliberations.