Monday, December 08, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/8/14):
Monday, Dec. 8
- 9:00 AM - Natosha L. Stillions v. State of Indiana (53A01-1311-CR-508) After stealing items from her employer, Stillions was convicted of theft, a Class A misdemeanor. As one condition of probation, Stillions was ordered by the Monroe Circuit Court not to consume alcohol. Stillions argued this was not a proper term of probation because there was no evidence that her offense involved alcohol or that alcohol was an issue in her life. The Court of Appeals affirmed in Stillions v. State, No. 53A01-1311-CR-508 (Ind. Ct. App. Jul. 20, 2014) (NFP mem. dec.), transfer pending.
ILB: This was a July 30, 2014 NFP opinion, concluding:
The propensity of alcohol to impair judgment and reduce inhibition is known. Carswell, 721 N.E.2d at 1265. Besides these general effects of alcohol, Stillions’ medications create additional health concerns for her should she consume alcohol. Therefore, the general need to protect the public as well as the specific need to assist Stillions in staying healthy and finding employment makes this condition of probation a reasonable one in this case.
- 9:45 AM - Gary Sistrunk v. State of Indiana (49S05-1410-CR-654) The appellant pointed a gun at a store clerk and told her to give him the money in the cash drawer, which she did. The clerk told the appellant she could not access the safe, but that there were two “safe drops,” which he also took. The appellant then told the clerk to sit on the floor, which she did, and after about a minute, the appellant left the store. Following a bench trial in the Marion Superior Court, the appellant was convicted of robbery and criminal confinement as Class B felonies because the offenses were committed while armed with a deadly weapon. Citing Miller v. State, 790 N.E.2d 437 (Ind. 2003), the Court of Appeals reduced the criminal confinement conviction to a Class D felony, but rejected the appellant’s other arguments in Sistrunk v. State, 11 N.E.3d 925 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, May 19, 2014 COA opinion originally issued as NFP, but appellant's motion to publish was granted on June 18th.
- 10:30 AM - White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh (08A04-1401-MI-17) A camp located in Carroll County sued, challenging the White County Board of Commissioners’ decision to allow a confined animal feeding operation on White County land near the camp. The Carroll Circuit Court denied the Board’s request to transfer the case to White County, but the Court of Appeals reversed and held that preferred venue exists in White County and not Carroll County. White County. Bd. of Comm’rs v. Y.M.C.A. Camp Tecumseh, Inc., 12 N.E.3d 904 (Ind. Ct. App. 2014), transfer pending. The camp has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: In this June 25, 2014 opinion, the COA panel wrote:
Y.M.C.A. Camp Tecumseh, Inc. d/b/a Camp Tecumseh (the Camp) is located in Carroll County but on the county line, adjacent to the seventy-five-acre parcel that contains the seven acres of rezoned property in White County. On July 31, 2013, the Camp filed a petition for judicial review and stay of zoning decision against the White County Board. The Camp filed the action in the Carroll Circuit Court. * * *
A case may be commenced in any Indiana county, but if the complaint is not filed in a preferred venue, the trial court is required to transfer the case to a preferred venue upon a proper request from a party. * * *
Though the Camp is clearly concerned about the anticipated future injury to its land in Carroll County as a result of the rezoning, this does not change the nature of the suit. The Camp’s cause of action is for judicial review of a White County ordinance rezoning White County land and will involve review of documents filed, proceedings held, and findings and decisions made only in White County. The Camp’s judicial review action does not relate to land in Carroll County for purposes of T.R.75(A)(2).
Because Carroll County is not a county of preferred venue, the trial court erred by denying the motion for transfer of venue to White County. On remand, the Carroll Circuit Court is directed to grant the White County Board’s motion to transfer. Judgment reversed and remanded.
 The Camp contends that the anticipated odor from the proposed confined feeding operation “threatens Camp Tecumseh’s existence in Carroll County.” Appellee’s Brief at 4.
Next week's oral arguments before the Supreme Court (week of 12/15/14):
Thursday, Dec. 18
- 9:00 AM - Board of Commissioners of Jefferson County v. Teton Corp., et al. (72S04-1410-CT-642) After a fire occurred during renovation work and damaged the courthouse, Jefferson County filed a complaint against the general contractor and subcontractors. The Scott Circuit Court entered summary judgment for the contractors. A majority of the Court of Appeals affirmed, disagreeing with Midwestern Indemnity Co. v. Systems Builders, Inc., 801 N.E.2d 661 (Ind. Ct. App. 2004), and holding that, under the construction contract, Jefferson County agreed to waive subrogation for all claims covered by its insurance policy, not merely claims for losses to "Work" property. Bd. of Comm'rs of the County of Jefferson v. Teton Corp., 3 N.E.3d 556 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer and assumed jurisdiction over the appeal.
ILB: This was a This was a 2-1 Feb. 4, 2014 COA opinion about whether Jefferson County's property insurance policy covered the some of the courts of rebuilding the courthouse after a fires.
- 9:45 AM - Robert L. Dixon v. State of Indiana (84S01-1410-CR-683) A Terre Haute police officer observed Dixon’s car make a turn without signaling, and the officer made a traffic stop. By the time the officer had exited the police car, Dixon had exited his own. The officer ordered Dixon to return to his car, and after examining Dixon’s driver license, recognized Dixon as the person who, the officer had been previously told, had been selling narcotics in the area. A subsequent pat-down search revealed Dixon possessed cocaine. The Vigo Superior Court denied Dixon’s motion to suppress the cocaine. A divided Court of Appeals reversed in Dixon v. State, 14 N.E.3d 59 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1 COA opinion from July 22, 2014, where the issue was: Whether Dixon’s patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution.
- 10:30 AM - Craig Sampson v. State of Indiana (87A01-1312-CR-534) At Sampson’s trial on a charge of child molesting, the Warrick Superior Court allowed testimony about whether the victim showed evidence of coaching and about the Child Sexual Abuse Accommodation Syndrome. The Court of Appeals affirmed in Sampson v. State, No. 87A01-1312-CR-534 (Ind. Ct. App. Aug. 19, 2014) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Aug. 18th NFP opinion, involving a child witness and the potential of witness coaching.
This week's oral arguments before the Court of Appeals (week of 12/8/14):
Tuesday, December 9
1:002:00 PM - Charles White v. State (29A05-1312-PC-641) Charles P. "Charlie" White and his wife, Nicole, lived in Fishers and had one child. White, an attorney for the State, was a member of the Fishers Town Council, which paid approximately $1,000 per month. After White and Nicole divorced in 2006, Nicole remained in the marital residence, and White moved into an apartment in Fishers, which - like the marital residence - was within his town-council district. White began campaigning for the position of Indiana Secretary of State in early 2009. White moved out of his apartment in the spring of 2009 and in November 2009 he entered into a lease for a townhome in Fishers that was outside his town-council district. He then purchased the townhome in February 2010. White voted in the May 2010 primary using his ex-wife's address. He also listed his ex-wife's address when submitting an application to marry his fiancee that same month. In September 2010, while running for Secretary of State, White stepped down from his position on the Fishers Town Council since he no longer resided in the town-council district from which he had been elected. White won the November 2010 general election, defeating his Democratic Party opponent, Vop Osili. Three special prosecutors were appointed, and a Hamilton County grand jury indicted White on seven felony counts for, among other things, voting in a district in which he did not reside; taking pay as a council member when he did not reside in the district from which he had been elected; and claiming his ex-wife's address as his address on various documents when in fact he resided at the townhome. A jury convicted him of six of the seven counts. The trial court sentenced him to one year of electronic home monitoring but stayed his sentence. White initiated a direct appeal but asked this Court to dismiss his appeal without prejudice so that he could pursue post-conviction relief in the trial court, including a claim that his trial counsel, Carl Brizzi, was ineffective. The post-conviction court denied relief. White is now before this Court raising both direct-appeal and post-conviction issues. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May. [Where: Supreme Court Courtroom (WEBCAST)]
- 1:00 PM - State v. Moore (69A01-1405-CR-186) Early in the morning of Dec. 30, 2012, Nancy Hershman was shot and killed in her home in Milan, IN. Over the course of the next week or so, authorities identified Appellee-Defendant Allison Moore as a suspect in Hershman's death and arrested her. Indiana State Police Detectives Tom Baxter and Vance Patton read Moore her Miranda rights, and Moore indicated that she did not want to talk to them. After the detectives left, State Police Sgt. Anthony Scott entered the interrogation room to ask Moore about the four children she had been babysitting when arrested. At the end of his conversation, Moore indicated that she wanted to talk to Detective Baxter again. Moore spoke with Detective Baxter initially about the children but eventually made incriminating statements. Moore filed a motion to suppress her statements to Detective Baxter, which motion the trial court granted. In this interlocutory appeal, Appellant-Plaintiff the State of Indiana argues that (1) Moore was Mirandized and invoked her right to silence; (2) the officers ceased their interrogation and asked only questions unrelated to her potential involvement in Hershman's death; and (3) Moore re-initiated the interrogation and impliedly waived her right to silence. The Scheduled Panel Members are: Judges Riley, Robb and Bradford. [Where: Ben Davis High School, 1200 N. Girls School Road, Indianapolis]
Next week's oral arguments before the Court of Appeals (week of 12/15/14):
Monday, December 15
- 1:30 PM - J.P., et al v. Mid-American Sound, et al (49A04-1405-CT-207) Jordyn Polet sued the State for damages after she was injured in a stage collapse at the Indiana State Fair. The State argued it was immune from liability because the Indiana Tort Claims Act limits the State's liability to $5 million and that amount had already been paid to others. Polet, in a motion for summary judgment, challenged that immunity and the constitutionality of the liability cap. Her motion was denied and she appeals. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May. [Where: Supreme Court Courtroom (WEBCAST)]
Tuesday, December 16
- 11:00 AM - Hunckler v. Air Sorce-1 Inc. (69A01-1405-CR-186) In this case, Nick Hunckler appeals the grant of summary judgment in favor of Timothy Miller and Air Sorce-1. Miller, as an employee of Air-Sorce 1, installed a new furnace in the home of Hunckler's acquaintance. Hunckler helped Miller slide the furnace down the basement stairs and sustained serious injuries to his hands in the process. Hunckler brought a personal injury action that the trial court dismissed on summary judgment. The trial court found that the defendants were entitled to judgment as a matter of law because Hunckler was a volunteer and the defendants did not breach the duty of care owed to a volunteer. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where: Court of Appeals Courtroom (WEBCAST)]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on December 8, 2014 07:55 AM
Posted to Upcoming Oral Arguments