Court opinions

Indiana Court of Appeals
Facundo Ramos-Osario v. State of Indiana
24A-CR-1761
Criminal. Reverses the Marion Superior Court’s conviction of Facundo Ramos-Osario for operating a vehicle with an A.C.E. of .08 or more, a Class C misdemeanor. Finds that the totality of the circumstances does not establish that there was a reasonable, particularized suspicion to stop Ramos-Osario’s truck. Also finds the trial court abused its discretion in admitting evidence of the stop and anything that flowed from it. Attorney for appellant: Alexander Budzenski. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean.

Indiana Court of Appeals
Emily F. Tidd v. The Estate of Gary Tidd, Sr., Deceased
24A-ES-1395
Estate. Reverses Hancock Superior Court Judge Donald Davis’ denial Emily Tidd’s claim for a statutory spousal allowance following the death of her husband, Gary Tidd. Finds the probate court applied the wrong burden of proof and the wrong analysis in determining that the Disinheritance Statute barred Emily’s claim for a spousal allowance. Also finds the probate court’s analysis deviated from established precedent defining “abandonment” for purposes of the Disinheritance Statute as requiring a physical separation without mutual consent. Finally, finds Emily’s alleged disparaging remarks about Gary and what the trial court viewed as the couple’s non-traditional marital roles are irrelevant under existing law to determine whether she abandoned Gary for purposes of the Disinheritance Statute. Attorney for appellant: Ann Coriden. Attorney for appellee: Briane House.

Indiana Court of Appeals
Kerry Silvers v. State of Indiana
24A-PC-277
Post-conviction relief.  Affirms the Indiana Court of Appeals’ original opinion in which the court denied Kerry Silvers’ petition for post-conviction relief. Finds that the appellate court misstated Strickland’s prejudice standard. Also finds that the misstatement does not change the court’s conclusions regarding Silvers’s ineffective assistance of counsel claims. Finally, finds Silvers has not shown a reasonable probability existed that but for his trial counsel’s alleged errors, the result of his trial would have been different. Attorney for appellant: Victoria Bailey Casanova. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Daylon Welliver.

7^th Circuit Court of Appeals
Skyler Tackett v. Kristen Dauss
23-2246
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James Sweeney II. Affirms the district court’s summary judgment order in favor of Kristen Dauss against a deliberate indifference claim filed by Skyler Tackett, the personal representative of Raymond Tackett’s estate. Finds that Skyler Tackett presented insufficient evidence for a reasonable jury to find Dauss liable for Raymond Tackett’s death from hepatitis C in Dauss’ individual capacity as the Indiana Department of Correction’s chief medical officer. Attorney for appellant: Mark Sniderman. Attorneys for appellee: Abigail Recker, Ryan Shouse.

Indiana Court of Appeals
Jasmine Warstler v. State of Indiana
24A-CR-1083
Criminal. Affirms Noble Superior Court Judge Steven Hagen’s order that sanctioned Jasmine Warstler’s attorneys, Helen and Jarvis Newman, for disclosing two rebuttal witnesses on the evening before her jury trial in violation of Indiana Criminal Procedure Rule 2.5. Finds the $883.44 sanction is directly tied to the actual costs incurred and represents a measured response to the discovery violation. Also finds that this sanction is a fair and equitable remedy in this case and thus, the trial court did not abuse its discretion when it sanctioned Warstler’s attorneys. Attorney for appellant: Jessica Merino. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Jennifer Anwarzai.

Indiana Court of Appeals
Brent D. Mullis v. State of Indiana
24A-PC-1025
Post-conviction relief. Affirms Bartholomew Circuit Court Judge Kelly Benjamin’s sentence of Brent Mullis to 12 years in prison for felony burglary, theft and criminal mischief, and his adjudication as an habitual offender. Finds Mullis failed to show that trial counsel rendered ineffective assistance of counsel. Also finds Mullis has failed to show fundamental error, there is sufficient evidence to support Mullis’ conviction and Mullis’ aggregate sentence is not inappropriate. Attorney for appellant: R. Patrick Magrath. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Kathy Bradley.

Indiana Court of Appeals
Lei Gamble v. State of Indiana
24A-CR-1115
Criminal. Affirms Lei Gamble’s convictions in Marion Superior Court for murder and carrying a handgun without a license. Finds the trial court did not abuse its discretion by admitting Gamble’s statement to law enforcement and, even if the trial court abused its discretion, any error was harmless. Also finds that regarding the jury instructions, Gamble invited the error and, invited error notwithstanding, Gamble has failed to demonstrate fundamental error. Attorneys for appellant: Talisha Griffin, Jan Berg. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Courtney Staton.

Indiana Court of Appeals
Autovest LLC v. John Bach
24A-CC-2070
Civil collections. Reverses Lake Superior Court Magistrate Judge Shaun Olsen’s dismissal of Autovest LLC’s complaint against John Bach on the basis that Autovest failed to follow proper procedure for renewing a prior judgment. Finds the trial court thus erred as a matter of law by dismissing the renewal complaint. Remands with instructions to reinstate Autovest’s renewal complaint. Attorney for appellant: Brad Council. No attorney listed for appellee.

Indiana Court of Appeals 

Robin Marsh v. Nathan Marsh

24A-PL-1216

Civil plenary. Dismisses Robin Marsh’s appeal in a farmland dispute without prejudice. Finds the appellate court lacks subject matter jurisdiction. Attorneys for appellant: Lynne Lawyer and Edward Wolenty. Attorney for appellee: Brianna Schroeder.

Indiana Court of Appeals 

Caryl Rosen v. Community Healthcare System d/b/a Community Hospital 

24A-CT-1463

Civil tort. Affirms Lake Superior Court Judge Rehana Adat-Lopez’s judgment on precluding Caryl Rosen from eliciting testimony about the adequacy of the hospital’s investigation. Finds the trial court did not abuse its discretion when it excluded evidence of the adequacy of the hospital’s post-fall investigation. Reverses the trial court’s judgment on finding the hospital did not engage in spoliation of evidence and refused a spoliation jury instruction. Finds the trial court erred when it ruled that the hospital did not engage in spoliation of evidence based on its failure to preserve all of its video recordings of the main entrance and the hospital’s lobby at the time of Rosen’s fall. Also finds the trial court erred by refusing to give the proffered jury instruction regarding spoliation. Remands for a new trial at which evidence regarding spoliation will be permitted, the jury instruction regarding spoliation will be given and the trial court will determine what additional sanctions, if any, are appropriate due to the hospital’s spoliation of evidence. Attorneys for appellant: Angela Jones and Steve Sersic. Attorneys for appellee: Gregory Crisman and Zachary Peifer.

Indiana Court of Appeals
Dele Omije v. Bethany Whilby-Omije
24A-DR-2217
Domestic relations without children. Affirms Hendricks Superior Court Judge Ryan Tanselle’s order finding Dele Omije in contempt and ordering him to sell a marital asset—a home in California—and equally divide the proceeds from the sale of the home with Bethany Whilby-Omije. Finds that because Omije presented no evidence of the post-dissolution expenses he incurred on the California home, the trial court did not abuse its discretion by failing to credit him for any such expenses. Also finds the trial court did not assign any value to the California home and simply ordered Omije to sell the home and split the proceeds evenly with Whilby-Omije. Attorney for appellant: Julie Camden. No attorney listed for appellee.

Indiana Court of Appeals
Gary D. Bolcerek v. State of Indiana
24A-CR-2232
Criminal. Affirms Gary Bolcerek’s convictions  in Porter Superior Court for Level 2 felony burglary, Level 5 felony criminal recklessness, Level 5 felony battery, Level 5 felony intimidation, Level 6 felony strangulation, and Level 6 felony pointing of a firearm, and also affirm his aggregate 26-year sentence. Reverses Bolcerek’s conviction for Level 6 felony battery. Finds Bolcerek does not present any compelling evidence that portrays the nature of the offenses or his character in a positive light, and the appellate court agrees with the trial court’s assessment of the nature of the offenses and Bolcerek’s character. Also finds that his convictions for Count 3 (Level 5 felony battery) and Count 5 (Level 6 felony battery) violate substantive double jeopardy. Attorney for appellant: James Harper. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Robert Yoke.

Indiana Court of Appeals
Edgar R. Martinez-Orta v. State of Indiana
24A-CR-1456
Criminal. Affirms Edgar Martinez-Orta’s conviction after a Tippecanoe Superior Court bench trial of operating a vehicle with an alcohol concentration equivalent of .15 or more as a Class A misdemeanor and failure to dim headlights as a Class C infraction. Finds the trial court did not abuse its discretion in admitting the blood test results. Also finds the actions of Indiana State Trooper Mitchell McKinney during the traffic stop of Martinez-Orta did not violate the Fourth Amendment, and the state laid a proper foundation for admission of the blood test results. Attorneys for appellant: Bruce Graham, Shay Hughes, Michael Dean, Laura Blaydes. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorneys General Kathy Bradley, Steven Hosler.

Indiana Court of Appeals

Anthony Xavier Carr v. State of Indiana
24A-CR-1599
Criminal. Affirms a Lake County Superior Court’s jury finding Anthony Carr guilty of Brittany Smith’s murder and Judge Salvador Vasquez imposing an aggregate sentence of 68 years in prison. Finds that the trial court did not err in admitting into evidence the detective’s testimony that Carr was the only suspect and the text messages relating to a recent unrelated altercation between Smith and Carr. Also finds here is adequate evidence that Carr murdered Smith. Attorney for appellant: R. Brian Woodward. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Catherine Brizzi.

Indiana Court of Appeals
Norvell Dunem v. State of Indiana
24A-CR-1423
Criminal. Affirms LaPorte Superior Court Judge Jaime Oss’ denial of Norvell Dunem’s motion to suppress all evidence. Finds the police did not violate Dunem’s Fourth Amendment or Article 1, Section 11 rights. Also finds the trial court was right to deny his motion to suppress. Attorney for appellant: Scott King. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorneys General Justin Roebel and Andrew Sweet.

Indiana Court of Appeals
Daniel E. Baker v. State of Indiana
24A-CR-1311
Criminal. Reverses Daniel Baker’s conviction by a Marion Superior Court jury of criminal mischief. Finds the conviction must be vacated as it violates the state’s prohibition on substantive double jeopardy. Also finds that on remand, the trial court should prepare an abstract of judgment and amend the sentencing order and Chronological Case Summary as needed to clearly and correctly reflect the judgment. Attorney for appellant: Peter Laramore. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Daylon Welliver.

Indiana Court of Appeals
Andy Sandoval and The Paradise Properties Land Trust v. Willow Lake Estates Home Owners Association, Inc.
24A-MF-309
Mortgage foreclosure.  Affirms LaPorte Superior Court Judge Jeffrey Thorne’s grant of summary judgment to the Willow Lake Estates Home Owners Association, Inc. and the trial court’s denial of Andy  Sandoval’s motion to correct error. Finds the HOA demonstrated that it was entitled to judgment as a matter of law and that no genuine issues of material fact exist. Also finds the trial court properly granted summary judgment to the HOA and did not abuse its discretion by denying Sandoval’s motion to correct error. Attorney for appellant: Connor Nolan. Attorney for appellee: Bradley Adamsky.

Indiana Court of Appeals
Richard Shaling v. Biomet, Inc., et al.
24A-CT-516
Civil tort. Affirms St. Joseph Circuit Court Judge John Broden’s granting of summary judgment in favor of Biomet, Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, and Biomet Manufacturing LLC. Finds that because Richard Shaling did not file his products liability complaint until June 10, 2019—nearly 18 years after the M2 system was implanted in his hip—his action is time-barred. Also finds that the trial court did not abuse its discretion in concluding that Shaling failed to give reasonable notice of his request for application of Alabama law. Attorneys for appellant: Crystal Rowe, Jacob Zigenfus. Attorneys for appellees: Brian Paul, Eldin Hasic, Blake Lehr.

Indiana Court of Appeals
Howard Larky v. Camp Livingston, Inc.
24A-CT-1529
Civil tort. Reverses Switzerland Circuit Court Judge’s W. Gregory Coy’s order allowing Camp Livingston, Inc.  to amend its answer to include a new affirmative defense of release and the granting of summary judgment to the camp. Finds the trial court abused its discretion by granting the camp’s motion to amend its answer to assert the affirmative defense of release more than five years into the litigation. Also finds that even if the late amendment was proper, the trial court erred in granting summary judgment in favor of the camp. Remands for further proceedings. Attorneys for appellant: Carol Joven, Kenneth Doane, Jr., Jeffrey Flores. Attorneys for appellee: Kevin Schiferl, Maggie Smith.

Indiana Court of Appeals
The Charter Oak Fire Insurance Company v. William Dougherty
24A-CT-1064
Civil tort. Affirms Henry Circuit Court Judge Bob Witham’s denial of Charter Oak Fire Insurance Company’s motion for summary judgment and the court’s grant of William Dougherty’s motion for summary judgment on his claim he was entitled to coverage under a commercial vehicle insurance policy his employer had purchased from Charter Oak. Finds Dougherty is entitled to coverage under the plain language of the policy. Attorneys for appellant: Dennis Dolan, Phillip Litchfield. Attorney for appellee: Robert Ebbs, Theresa Ebbs.