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Opinions October 4, 2022 – The Indiana Advocate

Indiana Court of Appeals
Carla Tinsley-Williamson, as Ethan M. Tinsley’s tutor against AR Mays Construction, Inc., American Multi-Cinema, Inc., and Largo Theater Construction, Inc.
21A-CT-2230
Civil tort. Affirms Hendricks Superior Court’s entry of partial summary judgment for AR Mays Construction Inc. on Ethan Tinsley’s claim of negligence. Finds that AR Mays’ designated evidence affirmatively negates an element of Tinsley’s negligence claim, namely whether AR Mays owed a duty of care to Tinsley.

Thomas E. Sparks c. Indiana State (dec. brief)
21A-PC-2216
Post-conviction. Upholds the dismissal of Thomas E. Sparks’ subsequent motion for post-conviction relief. Finds that Wayne Superior Court did not err when it dismissed Sparks’ subsequent motion for post-conviction relief because all of his claims failed in law or were barred by doctrine of res judicata .

Jaelynn Billups v. Indiana State (dec. brief)
21A-CR-2890
Criminal. Upholds Jaelynn Billups’ convictions for murder, felony murder, felony robbery 6, and misdemeanor Class A carrying a handgun without a license and his sentence of 56 years. Find enough evidence to disprove his claim of self-defense. Also finds that the sentence is not inappropriate given the nature of the offenses and his character.

Daniel Carroll Stovall v. State of Indiana (dec. memorial)
22A-CR-224
Criminal. Affirms in part and reverses in part the convictions of Daniel Stovall on two counts of level 1 child sexual assault, two counts of level 4 child sexual assault and two counts of level criminal incest 4. Find Stovall’s argument under Blockburger c. State failed. Also finds no violation of double jeopardy in his incest convictions. Finally, finds that Stovall’s Level 4 child molestation convictions were a single continuing crime with his Level 1 child molestation convictions. Stovall for felony 4 for child molestation. Judge Elizabeth Tavitas partly agrees and partly disagrees with the separate opinion.

Michael M. Fagin v. Indiana State (Dec. Mem.)
22A-CR-242
Criminal. Confirms the conviction of Michael Fagin for burglary level 5. Finds sufficient evidence to support the conviction.

Toby Wayne Lowry v. Indiana State (dec. brief)
22A-CR-346
Criminal. Affirms and reverses in part the revocation of Toby Lowry’s probation and community corrections placement and an order directing him to serve the remainder of his sentence in the Department of Correction. Finds the Vermillion Circuit Court correctly admitted both the evidence found in the search and Lowry’s statements. Also finds that sufficient evidence has been presented to support the revocation of Lowry’s probation. Finally, finds that the trial court did not abuse its discretion when ordering Lowry to serve his full suspended sentence, but did not correctly calculate his credit time and included an erroneous sentence on the judgment summary and the CCS. Remands for a hearing to correct the credit time allocation and sentencing for Lowry’s Level 2 felony conviction. Judge Elaine Brown agrees with the separate opinion.

Tristan V. Santos v. Indiana State (dec. brief)
22A-CR-616
Criminal. Upholds Tristan Santos’ total sentence of 22 years for Level 4 Burglary, Level 5 Escape, Level 6 Law Enforcement-Resistant Felony, Level 6 Auto Theft, Level 6 Household Battery and Injury level 6 privacy. Finds that the Bartholomew Circuit Court would impose the same sentence regardless of the invalid aggravator. Also finds that consecutive sentences for Santos’ convictions for car theft and escape are not implicated by the statutory cap.

Larry P. Prouse III vs. Miranda Prouse (dec. mem.)
22A-DR-697
Domestic relations. Overturns Vigo Superior Court’s granting of mother Miranda Prouse’s request to move out of state with her child and its denial of Larry Prouse III’s motion to reconsider. Finds the trial court’s denial of Larry’s motion to reconsider amounts to a denial of his right to due process. Remands to schedule a new hearing on Miranda’s request to relocate and orders the trial court to schedule the new hearing at least 30 days from the date of the new order.

Angela Fay Ross vs. Jason Noel Ross (Memory Dec.)
22A-DC-761
Family relationships with children. Upholds Hendricks Superior Court’s decree dissolving Angela Ross’s marriage to Jason Noel Ross. Finds the Indiana code is unambiguous that the retirement benefits that Jason only acquired after filing his petition for dissolution are not marital property.

In the SA and MP-M. (Children) MH c. Indiana Department of Children’s Services (Dec. Mem.)
22A-JM-771
Miscellaneous juvenile. Denies Guardian MH’s appeal of Marion’s Superior Court decision to grant the Department of Children’s Services motion to compel MH to allow DCS to interview the MP-M children. and SA and inspect MH’s home following DCS’s receipt of a report that MH was neglecting the children. Decides that the appeal is moot because the appellate court cannot provide MH with sufficient relief when the interviews and investigation at issue have already taken place and the report of negligence has not been substantiated. Also finds that MH has not demonstrated that the issues it presents are likely to recur, involve a matter of high public interest, or could produce adverse collateral damage if not addressed.

Indiana Department of Children’s Services v.MM (dec. mem.)
22A-MI-1117
Various. Reverses the Hendricks Superior Court’s denial of the Indiana Department of Children’s Services motion to dismiss MM’s application for judicial review for failure to timely file an agency filing and l reversal of the agency’s final authority’s decision upholding the justification of negligence against Mr. M. Trouve DCS demonstrated its right to have Mr. M.’s application for judicial review dismissed. Remands with direction to grant motion to dismiss.

Tamika La Shawn Ross v. Indiana State (dec. brief)
22A-CR-1173
Criminal. Upholds convictions of Tamika La Shawn Ross for a Class A misdemeanor driving a vehicle while intoxicated and a Class B misdemeanor for possession of marijuana. Finds that the State presented sufficient evidence.