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Opinions August 24, 2022 – The Indiana Advocate

The following opinion from the Indiana Supreme Court was released Tuesday after the IL deadline:
Frank E. Minges, III v. State of Indiana
22S-CR-285
Criminal. Overturns Dearborn Superior Court’s denial of Frank Minges’ motion to compel the Dearborn County District Attorney to turn over the police report relating to his misdemeanor charges. Canceled State ex. Rel. Keaton v. Cir. CT. of Rush County., 475 NE2d 1146 (Ind. 1985). Find Keaton conflicts with current Indiana discovery rules, including Trial Rule 26(B)(3), which provides courts with a framework for determining when the work product doctrine applies. Also finds the “excessive demand” quoted in Keaton has been eliminated by technology. Remands to trial court with instructions to reconsider whether police report is protected by work product privilege.

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Indiana Court of Appeals
Ernest Ray Snow, Jr. v Indiana State Bureau of Motor Vehicles
22A-IF-471
Offense. Upholds Superior Court’s granting of Marion relief from judgment for the Indiana Bureau of Motor Vehicles in a dispute with Ernest Ray Snow Jr. Finds Indiana Code § 34-28-5- 15(b) does not apply to the BMV because the agency is not a case management system. Also finds that the court of first instance did not err.

Paul Dean Newcomb, Jr. vs. Indiana State
22A-PC-318
Post-conviction. Overturns partial denial of Paul Dean Newcomb Jr.’s motion for post-conviction relief. Finds that Newcomb attempted at every stage of the trial and appeal process to conform to the relevant rules and to call attention to wrongful conviction without remedy, creating a rare circumstance of “fundamental error raised in context ineffective assistance of counsel but demonstrated as a matter of law Remands with instructions to quash Newcomb’s conviction for a class B felony related to methamphetamine trafficking, to convict of possession of precursors with intent to fabricate, to conduct further proceedings on the habitual offender allegation and to convict Newcomb accordingly Chief Justice Cale Bradford dissenting in part and concurring in part with the separate opinion.

Cody Albert v. State of Indiana
21A-CR-2617
Criminal. Upholds Cody Albert’s murder conviction. Finds that the Hendricks Circuit Court did not abuse its discretion in instructing the jury regarding intent and excluding certain evidence regarding Albert’s mental health history.

Vivian Moore v. State of Indiana (dec. memorial)
21A-CR-2256
Criminal. Upholds Vivian Moore’s 30-year sentence, including 28 years executed, for her Level 1 criminal conspiracy to commit murder conviction. Finds Moore’s sentence not inappropriate in light of his character or the nature of his offence.

Henry Lee Savage c. Indiana State (dec. brief)
21A-CR-2510
Criminal. Upholds Henry Lee Savage’s conviction for felony invasion of privacy Class A and his sentence of one year with time served, as well as the revocation of his probation and the order that he serve his sentence of 1,238 days suspended for two counts of Level 5 felony intimidation. Finds that Savage’s action demonstrated a familiarity with the court process which, when coupled with the trial court’s series of questions, was sufficient to establish a conscious, willful and intelligent waiver of his right to assistance of a lawyer. Also finds Savage’s one-year sentence not inappropriate given the nature of his offense or character. Finally, finds that the trial court did not abuse its discretion in finding that the state met its burden of proving that Savage violated the terms of his probation, nor did it abuse his discretion in ordering him to serve his previously suspended sentence.

Nathan F. Morrow v. State of Indiana (dec. memorial)
22A-CR-377
Criminal. Affirms Nathan Morrow’s 11-year sentence to the Department of Correction for his Level 4 felony conviction driving a vehicle while intoxicated causing death. Finds that Morrow’s sentence is not inappropriate given the nature of his offense and his character.

City of Hammond, Indiana, and Hammond Advisory Board of Zoning Appeals v. Phantom Fireworks Showrooms, LLC (dec. brief)
22A-PL-507
Civil Plenary. Rescinds the grant of Phantom Fireworks Showrooms LLC’s motion for judicial review of the Hammond Advisory Board of Zoning Appeals’ denial of Phantom’s application for an improvement location permit. The Finds Phantom property is subject to both the Hammond Zoning Ordinance and the Woodmar-Gateway Economic Development Plan and therefore had to comply with both. Also finds that the Hammond Redevelopment Commission had the authority to determine whether Phantom’s proposed venture was on plan, and the town of Hammond was free to rely on that decision. Finally, concludes that the BZA’s decision to affirm the city was not arbitrary, capricious, an abuse of power or otherwise not in accordance with the law. Remands directing the Lake Superior Court to restore the BZA’s decision.

Michael N. Jacobs v. Indiana State (dec. brief)
22A-CR-653
Criminal. Upholds convictions of Michael Jacobs on five counts of Level 1 child sexual assault, two counts of Level 4 child sexual assault, two counts of Level 6 felony engaged in sexual behavior in the presence of a minor and a level 6 felony count contributing to the delinquency of a minor and the finding that he was a habitual offender. Finds that the Whitley Circuit Court did not err in admitting the videotaped statements made by victim LH after finding that LH was a protected person under Indiana Code § 35-37-4- 6.

Ryan M. Shea v. Indiana State (dec. brief)
22A-CR-692
Criminal. Upholds the conviction of Ryan Shea for carrying a handgun without a license as a Class A misdemeanor. Finds the state presented sufficient evidence from which a reasonable investigator could infer that Shea knowingly carried a firearm without a license. permit.

Brian L. Meyer v. The Laverne R. and Nancy P. Meyer Revocable Living Trust Dated June 6, 2006, Thomas Meyer and Jan DeWees (Dec. Mem.)
22A-PL-893
Civil Plenary. Upholds the denial of Brian L. Meyer’s motion to correct an error, filed after the Jasper Superior Court granted judgment in favor of The Laverne R. and Nancy P. Meyer Revocable Living Trust Dated June 6, 2006, Thomas Meyer and Jan DeWees on Brian’s complaint challenging Laverne’s will and his request to register and determine the beneficiaries of the trust. Finds that the trial court did not err in rejecting Brian’s assertion that it should presume that Thomas improperly influenced their parents, nor in determining that Laverne and Nancy acted of their own volition in removing Brian as the beneficiary of the trust. Also finds that the trial court, in this context, did not set a higher standard of proof by using the word “clearly”.