Caselaw Update

Bess v. State

Trial court sentence of three years’ incarceration for one count of child solicitation was not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision.

Cline v. State

Although a trial court has discretion in granting or denying an expungement petition, it does not extend to a disregard of remedial measures enacted by our lawmakers. Such statutes should be liberally construed to advance the remedy for which they were enacted.

Johnson v. State

Driver of car constructively possessed heroin when the driver made furtive gestures when pulled over, the heroin was in close proximity to the driver, and the nature of the space demonstrated that he knew of the nature and presence of the heroin.

Meridian Health Services v. Bell

Health care provider was required to release a child’s mental health care records to the child’s father; trial court properly held the health care provider in contempt for not providing the records to father.


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Case Update

Carpenter v. State

Police’s warrantless home entry through open back door to retrieve an aggressive and bloody dog violated the Indiana Constitution’s protection against unreasonable search.

Gallien v. State

Two burglaries committed one after the other, four miles apart, were a single episode of criminal conduct subject to the cap on consecutive sentencing, and appellate counsel’s assistance was ineffective for failure to raise the issue as a sentencing error.

Harris v. State

Exigent circumstances justified officers’ warrantless seizure of a handgun they saw defendant place inside an apartment front door as they approached, so that the seizure did not violate the Fourth Amendment or Indiana Constitution.

Oswalt v. State

Parties satisfy “the exhaustion rule” required for “appellate review of for-cause challenges to prospective jurors” “the moment they use their final peremptory challenge” – regardless of whether the final peremptory is used to strike “a candidate they consider undesirable” or instead is used to cure the trial court’s refusal to strike an allegedy incompetent one for cause.” And parties who comply with the exhaustion rule and also show they were unable to remove any objectionable juror because they had no peremptories left may have appellate review of any denial of a motion to strike for cause, even if no challenged juror actually served on the jury.

Dawson v. Thornton, Inc.

The trial court properly did not instruct the jury regarding spoliation of evidence when Plaintiff inspected and took pictures of the evidence and the evidence was available for over a year after the incident.

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Criminal Law Update

Plea Agreements

Berry v. State

When a trial court accepts a plea agreement with an executed time cap, its discretion to impose further punitive conditions of probation doe snot extend beyond what the plea agreement specifies.

Public Intoxication vs. OWI Endangerment

Tin Thang v. State

Distinguishes OWI and Public Intoxication in that, for the OWI offense, endangerment (a Class A Misdemeanor) cannot be inferred from intoxication alone; in other words, the defendant must be operating a vehicle in a manner that endangered himself or others.  The Court affirms public intoxication conviction, on the basis of the defendant’s presence while intoxicated with a car at a gas station supporting an inference that the defendant operated the vehicle while intoxicated and thus committed the public intoxication element of endangering himself or others.

Fourth Amendment

Gaddie v. State

To avoid conflict with the Fourth Amendment…the statute defining Resisting Law Enforcement by fleeing after being ordered to stop must be construed to require that a law enforcement officer’s order to stop be based on reasonable suspicion or probable cause.

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Case Law Update

Search and Seizure

Riley v. California (US Sup. Ct.)

SCOTUS holds that the police must obtain  warrant in order to search a cell phone incident to arrest.


Wall v. State (Ind.Ct.App.)

Probation revocation will preclude expungement as said revocation constitutes an unsuccessful completion of a suspended sentence.

Landlord Tenant

Washmuth v. Wiles (Ind.Ct.App.)

The date a tenant provides a forwarding address to the landlord triggers the 45-day period the landlord has to deliver the itemized damages to the tenant.


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Dealing with Government Investigators, a few tips

1. Government investigators have the right to contact you and to request an interview of you. However, you have no obligation to talk to investigators. Indeed, you have the absolute right to refuse to be interviewed. The decision to speak with an investigator is entirely up to you.

2. If you agree to an interview, you may terminate the interview at any time and you may refuse to answer any question posed to you.

3. You have the right to consult with an attorney before every conversation with government investigators. You are also entitled to have an attorney with you during any conversations you may have with an investigator.

4. If you agree to an interview, you must provide complete and truthful information in response to any questions you choose to answer. Lying to investigators is a crime.

5. If you do not want to be interviewed, you should politely, but firmly decline the investigator’s request.

6. Do not attempt to hide evidence by altering, destroying, tampering, deleting or discarding any documents or records, including electronic information.

7. Do not attempt to interfere with the government’s investigation.

8. Regardless of your decision, if an investigator contacts you it is helpful if you immediately contact your supervisor or legal counsel. This will help your employer ensure that it complies with any obligation it may have to preserve relevant evidence. You have every right to tell your employer about the government contact. The investigator may request or suggest that you keep the contact confidential but there is no law that would prevent you from disclosing the interview to your employer.

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Case Law Update

4th Amendment

Navarette v. California, SCOTUS April 22, 2014

Under the totality of the circumstances, which began when an anonymous 911 caller reported that a vehicle had run her off the road, police officer had reasonable suspicion that the driver was intoxicated so that officer’s traffic stop complied with the Fourth Amendment.

Richard v. State, Ind. Ct. App. April 23, 2014

A police dog’s alert to the presence of narcotics in a vehicle is enough to give an officer probable cause to arrest and search the vehicle’s passenger.

Criminal Law 

Wilhoite v. State, Ind. Ct. App. April 23, 2014

There is no crime of conspiracy to commit an attempt to commit a crime.  (Read that 5 times fast.)


Taylor v. State, Ind. Ct. App. April 24, 2014

Trial court cannot deny an expungement based on a victim’s statement.

Custody Modification

Bailey v. Bailey, Ind. Ct. App. April 22, 2014

A trial court cannot modify custody when neither party requests a modification of custody.


In re B.C.H. Ind. Ct. App. April 22, 2014

Grandparents were found to not be lawful custodians as statutorily required for notice and consent of their grandchild’s adoption.



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Case Law Update

Venue and Jurisdiction

Goodman v. SeRine Ind.Ct.App. March 31, 2014

Although the sellers’ bankruptcy action had been dismissed, the bankruptcy court that heard the bankruptcy action was the proper venue for a quiet title action on property that was a part of the bankruptcy estate.

Commercial Speech

Miller v. Fed Ex Ind.Ct.App. April 4, 2014

Fed Ex was found immune from suit under the Federal Communications Decency Act as they are providers of an interactive computer service, as defined under Section 230(c).  To qualify for immunity, Fed Ex had to show that they were a provider of an interactive computer service, that the action treated them as the publisher of the information and that the information was provided by another content provider; they successfully did so.


Metzger v. State Ind.Ct.App. Mar. 31, 2014

When a blood draw warrant had been issued for a driver who had refused a breath test, the driver’s refusal to cooperate with the blood draw was properly found to be in indirect criminal contempt.


Wilson v. State Indiana Supreme Court April 1, 2014

A “hybrid” sentence for multiple convictions arising out of the same factual circumstance is not authorized by statute.  The trial court, in sentencing a criminal to a partially concurrent and partially consecutive term, acted outside of its authority.


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Case Law Update

Criminal Law — “Attempt”

Delagrange v. State, No. 49S04-1304-CR-249 (Indiana Supreme Court March 18, 2014)

Delagrange walked around a mall in Indianapolis filming up skirt shots of females within the mall.  Charged with attempted child exploitation (as some of the victims were under 18), Defendant attempted to convince the Court that, because none of the photographs contained uncovered genitals (an essential element to the crime of Child Exploitation), the State couldn’t prove an essential element of his charge.  The Court explained, however, that because he was charged with attempted child exploitation, one need only take a substantial step towards the commission of a crime.  The Court reasoned that hiding a video camera under your pant leg, developing a pulley system to raise said pant leg and positioning your leg between the legs of standing women constituted an attempt.  Your writer would have to agree that that is a substantial step towards the commission of this crime.

Evidence — Stipulating to credibility does not waive Hearsay

Corbally v. State No. 41A04-1304-CR-175 (Ind.Ct.App. March 19, 2014)

The Indiana Court of Appeals ruled this week that a stipulation to the credibility of a witness does not allow for the admission of prior consistent statements which would otherwise be hearsay.

Criminal Law — Felony Enhancements

Moss v. State No. 49A02-1307-CR-618 (Ind.Ct.App. March 20, 2014)

The Indiana Court of Appeals handed down an opinion yesterday that shows a cunning exercise of trial maneuvering by defense counsel.  In Moss v. State, Defendant was arrested for felony handgun possession, which was aggravated due to a prior felony possession.  Defendant then filed for PCR Alternative Misdemeanor Sentencing on his previous conviction to reduce the prior conviction to a misdemeanor.  After this was granted, Defendant argued that the Prosecution lacked a previous felony conviction to enhance the current charge and thus, the current charge must be dismissed.  The Court of Appeals agreed with this argument and overturned the trial court ruling, dismissing the felony handgun charge for want of predicate felony offense.

Quick Hits:

In re: G.P. 3/13/14

A trial court does not have discretion to appoint an attorney to a parent under Ind. Code § 31-34-4-6; Ind. Code § 31-32-4-3 does give the court discretion to appoint an attorney for a parent who fails to meet the statutory requirements for being indigent but for whom appointed counsel might still be appropriate.

Justice v. American Family Insurance 3/13/14

In an insurance policy, the phrase “limits of liability of this coverage” refers to the policy limit and not to the insured’s total damages.

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The Independent Contractor

All too often businesses wrongfully classify employees as Independent Contractors in an effort to save taxes.  The misclassification can be costly, as the IRS will seek 3 years of back taxes at 41.5% of the individual’s pay.  Thus, it is necessary to understand how the IRS distinguishes the two, with their simple (yeah, right) 11-part test (which used to be 20-part!).

Behavioral control

Facts that show whether the business has a right to direct and control how the worker does the task for which the worker is hired include the type and degree of:

    1. Instructions the business gives the worker. An employee is generally subject to the business’ instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work:
      1. When and where to do the work
      2. What tools or equipment to use
      3. What workers to hire or to assist with the work
      4. Where to purchase supplies and services
      5. What work must be performed by a specified individual
      6. What order or sequence to follow

The amount of instruction needed varies among different jobs. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. A business may lack the knowledge to instruct some highly specialized professionals; in other cases, the task may require little or no instruction. The key consideration is whether the business has retained the right to control the details of a worker’s performance or instead has given up that right.

2.  Training the business gives the worker. An employee may be trained to perform services in a particular        manner. Independent contractors ordinarily use their own methods.

Financial control

Facts that show whether the business has a right to control the business aspects of the worker’s job include:

  1. The extent to which the worker has unreimbursed business expenses. Independent contractors are more likely to have unreimbursed expenses than are employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially important. However, employees may also incur unreimbursed expenses in connection with the services they perform for their business.
  2. The extent of the worker’s investment. An employee usually has no investment in the work other than his or her own time. An independent contractor often has a significant investment in the facilities he or she uses in performing services for someone else. However, a significant investment is not necessary for independent contractor status.
  3. The extent to which the worker makes services available to the relevant market. An independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant market.
  4. How the business pays the worker. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is usually paid by a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors hourly.
  5. The extent to which the worker can realize a profit or loss. Since an employer usually provides employees a workplace, tools, materials, equipment, and supplies needed for the work, and generally pays the costs of doing business, employees do not have an opportunity to make a profit or loss. An independent contractor can make a profit or loss.

Type of relationship

Facts that show the parties’ type of relationship include:

  1. Written contracts describing the relationship the parties intended to create. This is probably the least important of the criteria, since what really matters is the nature of the underlying work relationship, not what the parties choose to call it. However, in close cases, the written contract can make a difference.
  2. Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay. The power to grant benefits carries with it the power to take them away, which is a power generally exercised by employers over employees. A true independent contractor will finance his or her own benefits out of the overall profits of the enterprise.
  3. The permanency of the relationship. If the company engages a worker with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee relationship.
  4. The extent to which services performed by the worker are a key aspect of the regular business of the company. If a worker provides services that are a key aspect of the company’s regular business activity, it is more likely that the company will have the right to direct and control his or her activities. For example, if a law firm hires an attorney, it is likely that it will present the attorney’s work as its own and would have the right to control or direct that work. This would indicate an employer-employee relationship.

If you ever question whether an individual is an employee or independent contractor, seek professional advice.  Generally, you can also take the safe route and W-2 that individual.  This is an area of the law that the IRS has been cracking down on lately due to executive directives and fair labor proponents.  The penalties for running awry of this law are great, so it is certainly advisable to follow the law (when is it not?)!


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Case Law Update

Welcome to the newest blogging expedition at the Urberg Law Office.  As often as possible, we will now be posting case updates from the most up-to-date opinions released by Indiana Courts.  This will be an attempt to keep our readers on the “up and up” regarding legal news.  Here are the latest cases for the week of 3/10/14:


In re T.L. Case No. 02S03-1308-AD-528 (Indiana Supreme Court, March 11, 2014)

Under Indiana Code 31-19-9-8, a parent may lose parental rights in an adoption proceeding for failure to take care of their child financially for a period of one year if the evidence clearly and convincingly shows that the parent could take care of the child.  If the parent fails to follow through with their required care and support as required by law or judicial decree, their consent may not be required for an adoption proceeding.  In this particular case, the Father was incarcerated but was found to have still been able to make some support payment while incarcerated.  Therefore, his consent was not necessary for the adoption of his child.


Hicks v. State Case No. 82A01-1306-CR-256 (Indiana Court of Appeals, March 11, 2014).

In this case, the defendant was asked a number of “pre-interview” questions.  The police did not receive a confession that the defendant committed the crime in question during this pre-interview. Defendant argued that the police purposefully withheld Miranda rights to secure a confession, subsequently read the Defendant his Miranda warning and proceeded to secure a second confession.  The police testified at trial that this was not the case.  As the Appellate court cannot reweigh testimony or credibility, the only evidence present was the police testimony.  Therefore, the confession was not suppressed and the defendant’s conviction upheld.


In re E.M. Case No. 45S03-1308-JT-557 (Indiana Supreme Court, March 7, 2014).

Father was incarcerated and made no attempt to foster a healthy relationship with his children.  Upon release from prison, father took steps to build a relationship with his children.  The Court found that his efforts were too late and that permanent termination of his parental rights was in the best interest of the children.

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