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Appeals panel rejects man’s challenge of child molestation conviction

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 Dave Stafford for www.thiendianalawyer.com

A man convicted of Level 1 felony child molesting and sentenced to 48 years in prison failed to convince the Indiana Court of Appeals that his victim’s medical report was improperly admitted or that her testimony was incredibly dubious.

The appellate panel affirmed the Elkhart Superior Court’s conviction in Ryan Baxter v. State of Indiana, 18A-CR-2050.

Baxter was arrested after his 4-year-old stepdaughter, A.W., told her grandmother that he had molested her during a noncustodial visit with her mother and Baxter, her stepfather. The grandmother told A.W.’s biological and custodial father, after which “A.W. underwent a sexual assault examination,” Judge Melissa May wrote for the panel. “The nurse, Nancy Grant, determined A.W. had an injury consistent with prior penile penetration that was healing.”

After being charged with three counts of Level 1 child molesting, an Elkhart County jury convicted Baxter of one count, prompting his appeal. Baxter argued the medical report was inadmissible hearsay because it contained A.W.’s identification of Baxter as the culprit.

“The identification of Baxter as the perpetrator was relevant and necessary in order for Grant to know if she could discharge A.W. into Father’s custody without A.W. being subjected to more abuse after she was released,” May wrote. “Because the identification of Baxter as the perpetrator was necessary to ensure A.W.’s safety, the court did not abuse its discretion by admitting the medical report.”

Likewise, the COA rejected Baxter’s argument that A.W.’s testimony should have been stricken under the incredible dubiosity rule, and therefore the evidence was insufficient to support his conviction.

“Incredible dubiosity is not available to invalidate A.W.’s testimony because her testimony is not inherently contradictory and it is corroborated by other witness testimony. At trial, Grant, a sexual assault nurse examiner, testified A.W. sustained injury to her hymen that was consistent with penile penetration. Grant’s testimony provides circumstantial evidence in support of A.W.’s testimony and invalidates Baxter’s incredible dubiosity argument,” May wrote, citing to Moore v. State, 27 N.E.3d 749, 760 (Ind. 2015), which rejected that rule when testimony is supported by circumstantial evidence.

JUST IN: Sheriff’s Office Arrests Woman for the Murder of her Husband

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Sheriff’s Office Arrests Woman for the Murder of her Husband

An Evansville woman is in custody on charges of murder after deputies responded to a report of suspicious circumstances at west side home yesterday evening.

On Saturday, July 20, 2019 at approximately 6:03 PM the Vanderburgh County Sheriff’s Office responded to 2601 Glenview Drive in order to investigate reported suspicious circumstances. A female 911 caller claimed that she had stabbed her husband with a knife and needed an ambulance and the police. Sheriff’s deputies arrived and made contact with the 911 caller, Mrs. Wendy Payne, who was found in the back yard of the residence.

Sheriff’s deputies observed that Mrs. Payne was covered in blood and heard her state that she had stabbed her husband. Deputies detained Mrs. Payne and made entry into the residence to check the welfare of any possible victims. A deputy observed a male victim lying on the floor of the kitchen. He appeared to have sustained an injury to his upper left chest consistent with that of a stab wound. The deputy also observed a large kitchen knife on a table next to the male. The victim was identified as Mr. Edward Lee Payne, the husband of Mrs. Wendy Payne.

The deputy checked the victim, but could detect no signs of life. German Township Fire Department and AMR personnel responded, but no life-saving measures could be attempted. Mrs. Payne was transported to the Vanderburgh County Sheriff’s Office Operations Center to be interviewed by detectives. While being transported, Mrs. Payne stated numerous times, “I’m going to jail for murder”. A witness on scene indicated the defendant said, “I killed him”.

Detectives interviewed Mrs. Payne, who invoked her right to remain silent and not speak without an attorney present. Mrs. Payne was booked into the Vanderburgh County Jail on a single count of murder.

An autopsy took place today at 11:00 AM at the Vanderburgh County Coroner’s Office. The Coroner will release an official determination of the cause and manner of death. Mrs. Payne will make an initial court appearance later this week.

ARRESTED:

Wendy Owen Payne (pictured above), 51, of Evansville. Murder (Indiana Code 35-42-1-1(1))

PREVIOUSLY: 2019-NR-033

FOOTNOTE: Presumption of Innocence Notice: The fact that a person has been arrested or charged with a crime is merely an accusation. The defendant is presumed innocent until and unless proven guilty in a court of law.

-END-

 

Vail sets franchise record in Otters’ win

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Tyler Vail made Evansville Otters history in an 8-2 win against the Florence Freedom Saturday, setting the franchise’s all-time mark for strikeouts when he struck out Florence’s Andre Mercurio in the bottom of the first inning.

eading into Saturday’s start, Vail needed two strikeouts to pass former Otter Andre Simpson’s mark of 303. Vail accomplished the feat in the first inning.

 

Vail, in his fourth season with the Otters, picked up the win Saturday as he finished with five strikeouts. He went six shutout innings, allowing only three hits.

 

With his total strikeout number in an Otters’ uniform at 307, the Easton, Pa. native will see that record number continue to grow as the regular season rolls on.

 

Vail now has five quality starts on the season, going at least six innings and allowing only three earned runs in each start. He improves to 4-5.

 

He also received plenty of run support in Saturday’s start as Evansville’s offense was able to force Florence to use five pitchers.

 

Making a spot start for the Freedom, Zak Spivy took the hill against the Otters. Florence’s original probable starter, Tyler Gibson, was signed by the Cincinnati Reds organization mid-afternoon on Saturday.

 

After two scoreless innings between both teams to begin the game, the Otters’ offense came alive in the top of the third.

 

After David Cronin and Ryan Long were able to reach base, Mike Rizzitello singled to score Cronin from third and the game’s first run in favor of the Otters.

 

Carlos Castro hit a ground ball to Freedom shortstop Austin Wobrock who threw to second base for what appeared to be a force out. Instead, Rizzitello was called safe at second and second baseman Caleb Lopes overthrew Connor Crane at first, allowing Castro to advance to second, Rizzitello to third, and Long to touch home extending the Otters’ lead to two.

 

A sac fly to right field by Dakota Phillips scored Rizzitello as the Otters extended their lead to 3-0.

 

The Freedom had an opportunity to respond in the bottom of the fourth with the bases loaded and two outs, but Vail was able to work out of the jam.

 

The Otters tacked on another run in the top of the fifth on a hit from Castro to score Keith Grieshaber, putting the Otters in control at 4-0.

 

Spivy, the right-hander for Florence, threw five innings, allowing four runs – two earned – on four hits while tossing five strikeouts. He was given the loss, dropping his record to 0-3.

 

In the top of the seventh inning, Castro crushed a two-run home run for his 10th of the year, and Jack Meggs added a two-RBI single give the Otters an 8-0 lead.

 

Otters reliever Cam Opp pitched two scoreless innings in the seventh and eighth innings.

 

The Freedom scored two runs in the bottom of the ninth on RBI knocks by Crane and Isaac Benard off Michael Gizzi to make the final score 8-2.

 

The Otters will conclude their visit to Florence Sunday at 4:35 p.m., seeking a divisional series win. Tyler Beardsley will be on the mound for the Otters, going up against left-hander Mike Castellani.

 

EPD REPORT

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EPD REPORT

News Conference Scheduled Regarding Death Investigation

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The Vanderburgh County Sheriff’s Office is investigating the death of an Evansville man at a private residence in southeastern German Township.

On July 20, 2019 at approximately 6:03 PM the Sheriff’s Office responded to a residence in the 2000 block of Glenview Drive in order to investigate reported suspicious circumstances. Upon arrival, sheriff’s deputies encountered a distraught female outside the rear of the residence. The sheriff’s deputies entered the home and located a deceased male. The deputies observed indications of a violent struggle having occurred.

The female was detained and transported to the Sheriff’s Operations Center while a search warrant was obtained for the residence. The Sheriff’s Office considers the death suspicious. An active investigation is underway, with crime scene investigators still processing the scene. The Vanderburgh County Coroner’s Office is also investigating, with an autopsy scheduled for Sunday, July 21.

The Vanderburgh County Sheriff’s Office will hold a news conference on Sunday, July 21, 2019 at 1:00 PM at Sheriff’s Office Headquarters. Additional information will be revealed at that time. The Vanderburgh County Coroner’s Office will release the name of the deceased.

Vanderburgh County Recent Booking Records

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https://www.vanderburghsheriff.com/jail-recent-booking-records.aspx

Commentary: I Love Americans And The People Where I Came From

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Commentary: I Love Americans And The People Where I Came From

July 19, 2019 

By Michael Leppert
MichaelLeppert.com

Sometimes timing is everything.

I took my first trip to Europe last year, and it was a big deal to me. My wife and I used the study abroad program our youngest son was experiencing as an excuse to see Spain. It was not high on my list of must-sees, but the excuse was golden. So, off we went.

It was like taking the lid off of the jar of infinity. Now, there is no place on Earth I don’t want to see–even places defined by suffering and awfulness are on the list. My wife’s list is different than mine. Combined, our collective list is comprehensive.

Being in the presence of the world’s most wonderful treasures is something I never expected to actually experience. It wasn’t even a goal. Putting my eyes on the Sagrada Familia in Barcelona last year may have changed that. Or maybe it was just happening upon some other stunning work of Antoni Gaudi while out on a walk. It was a building with a name I don’t remember, on a street I don’t remember either.

I do remember thinking about the famous architect, though. And I remember seeing other visitors standing and staring at the building in awe. It could be meaningless to the people who pass it every day on their way to and from work or school, but it was beautiful to us. I envied and pitied the locals in the same thought.

Those people are Spain to me.

I publish this column on Friday morning from Belfast, Northern Ireland. Timing is the reason for our trip.

I am mostly of Irish descent. I recently discovered through research and technology that other than a great grandpa who passed down my distinctively German last name, the rest of my heritage comes from here. Few Americans hate me for it as far as I know.

Ireland was high on my visit list anyway, but The Open Championship (golf) is being played outside of England/Scotland this week for the first time since 1951. That year, like this year, it was played at Royal Portrush on the north coast of the island.

This land was never just a place to me, and now that I am here, it is even less of one. It is my cultural root—the community from which I came.

It is a mere fraction of Earth’s ingredients that are part of me. Almost all of the rest of the ingredients are from America.

Spain added a little bit to me and my wife last year. Ireland already had and is adding plenty more this week.

I don’t mean the places; I mean the people of the places.

We will take a bus an hour and half north to the coast to one of the most beautiful places I will ever see today. I had never heard of Royal Portrush before a few months ago. I never looked at pictures of it until a few days ago. Pictures won’t do it justice or help me experience the people anyway, so why bother?

It frustrates me to know how many Americans think of people from other places as “them.” By that logic, the family living across the street is just as much.

My friend from my home neighborhood YMCA, is a young man named Makdad. He is from Iraq, and he might be the most pleasant person I know. Of course, so might Jenna, my Starbuck’s barista, who was likely born and raised right in my home town of Indianapolis. I haven’t asked her where she is from just yet.

They have dissimilar roots, yet both are perfectly American.

Not everyone gets to see the world, or more importantly, the world’s people. I wish more could. The more I get out and about, the better my appreciation is of others. I’m not special in that regard.

I am thankful I get to go be an outsider in unfamiliar places, even places which serve as a version of home. This week, I technically got to “go back” from where I came.

Ireland is a great place to surround myself with the Irish. And there are Spaniards, Germans, Iraqis, and yes, other Americans in Portrush this week.

I wish I could tell them all how much I enjoy seeing and learning from them all. These people are not “them” to me–they are “us.”

I love America. I don’t have to hate anyone or any place to love it well. Those struggling as racists would do well to try it.

FOOTNOTE: Michael Leppert is a public and governmental affairs consultant in Indianapolis and writes his thoughts about politics, government and anything else that strikes him at MichaelLeppert.com.

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City Council Meeting July 22,2019

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City Council Meeting
July 22,2019
1 NW MARTIN LUTHER KING, JR. BLVD. ROOM 301
5:30 P.M.
AGENDA

 

I. INTRODUCTION

 

Agenda Attachment:
II. APPROVAL OF MEETING MEMORANDUM

 

Memo Attachment:
III. REPORTS AND COMMUNICATIONS

 

IV. SPECIAL ORDERS OF THE DAY

 

V. CONSENT AGENDA:  FIRST READING OF ORDINANCES AND RESOLUTIONS

 

A. ORDINANCE R-2019-16 An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as 2809 Broadway Avenue Petitioner: Robby Pennell Owner: Robby Pennell Requested Change: C2 to C4 w/UDC Ward: 6 Brinkmeyer Representative: Steve Bohleber, Bohleber Law
R-2019-16 Attachment:
B. ORDINANCE R-2019-17 An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as 1700 E. Morgan Avenue, Evansville, IN Petitioner: Robert Scott Stodgill and Julia A. Stodgill Owner: Julia A. Stodgill & Robert Scott Stodgill Requested Change: C4 to R2 Ward: 3 Melcher Representative: Steve Bohleber, Bohleber Law
R-2019-17 Attachment:
C. ORDINANCE R-2019-18 An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as 1603 S. Tekoppel Avenue, Evansville, IN Petitioner: David Properties, LLC Owner: David Properties, LLC Requested Change: C4 w/UDC to C4 w/UDC Ward: 6 Brinkmeyer Representative: Krista B. Lockyear, Lockyear Law
R-2019-18 Attachment:
VI. COMMITTEE REPORTS

 

VII. REGULAR AGENDA:  SECOND READING OF ORDINANCES AND RESOLUTIONS

 

A. ORDINANCE G-2019-05 An Ordinance Adding Chapter 9.40 (Unsolicited Materials) of the Evansville Municipal Code Sponsor(s): McGinn, Mosby, Weaver Discussion Led By: ASD Chair Mosby Discussion Date: 5/13/2019
G-2019-05 Attachment:
B. ORDINANCE F-2019-12 An Ordinance of the Common Council of the City of Evansville Authorizing Transfers of Appropriations, Additional Appropriations and Repeal and Re-Appropriation of Funds for Various City Funds Sponsor(s): Weaver Discussion Led By: Finance Chair Weaver Discussion Date: 7/22/2019
F-2019-12 Attachment:
C. ORDINANCE F-2019-13 An Ordinance of the Common Council of the City of Evansville Authorizing Repeals, Re-Appropriations within the Department of Metropolitan Development Sponsor(s): Weaver Discussion Led By: Finance Chair Weaver Discussion Date: 7/22/2019
F-2019-13 Attachment:
D. ORDINANCE R-2019-11 An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as 5.01 Acres Directly West of 1603 S. Tekoppel Petitioner: Evansville Vanderburgh Levee Authority District Owner: Evansville Vanderburgh Levee Authority District Requested Change:
R-1 to C-4 w/UDC Ward: 6 Brinkmeyer Representative: Krista B. Lockyear, Lockyear Law
R-2019-11 Attachment:
E. ORDINANCE R-2019-12 An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as Part of 2800 Colonial Garden Road Petitioner: ANB Investments, LLC Owner: ANB Investments, LLC Requested Change:
R-1 to M-1 w/UDC Ward: 1 McGinn Representative: Krista B. Lockyear, Lockyear Law
R-2019-12 Attachment:
F. ORDINANCE R-2019-13 An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as 706 Wessel Lane, Evansville, IN  47712 Petitioner: Chad Sander Owner: Grimm Property Holdings LLC Requested Change: R1 to R2 Ward: 6 Brinkmeyer Representative: Chad Sander, Real Property Management Results
R-2019-13 Attachment:
G. ORDINANCE R-2019-15 Amended An Ordinance to Rezone Certain Real Estate in the City of Evansville, State of Indiana, More Commonly Known as 313 S New York Ave Petitioner: Harvey Baker & Shirley Baker Owner: Harvey Baker & Shirley Baker Requested Change: R4 to C4 Ward: 4 Robinson Representative: Tanisha Carothers, Carothers Law
R-2019-15 Amended Attachment:
VIII. RESOLUTION DOCKET

 

A. RESOLUTION C-2019-09 A Preliminary Resolution of the Common Council of the City of Evansville Declaring an Economic Revitalization Area for Property Tax Phase-In for Redevelopment located at 606 and 607 East Iowa Street, Evansville, Indiana Carpenter Court, L.P. (c/o Pioneer Development Services, Inc.) Sponsor(s): McGinn Discussion Led By: Finance Chair Weaver Discussion Date: 7/22/2019
C-2019-09 Attachment:
B. RESOLUTION C-2019-10 A Resolution of the Common Council of the City of Evansville, Indiana, Authorizing Affordable Housing Funds for Habitat for Humanity of Evansville, Inc. New Construction Single-Family Projects in the City of Evansville, Indiana in an Amount Not to Exceed One-Hundred Thousand Dollars ($100,000) Sponsor(s): Weaver Discussion Led By: Finance Chair Weaver Discussion Date: 7/22/2019
C-2019-10 Attachment:
C. RESOLUTION C-2019-11 A Resolution of the Common Council Approving Extension of Interlocal Agreement with Knight Township Sponsor(s): McGinn Discussion Led By: Brinkmeyer Discussion Date: 7/22/2019
C-2019-11 Attachment:
IX. MISCELLANEOUS BUSINESS

 

A. THE NEXT MEETING of the Common Council will be Monday, August 12, 2019 at 5:30 p.m.
B. TAX PHASE-IN COMPLIANCE REPORTS:  Andrea Lendy, Growth Alliance
C. ADDITIONAL MISCELLANEOUS BUSINESS
X. COMMITTEE REPORTS

 

XI. ADJOURNMENT

Board Of School Trustees Of The Evansville Vanderburgh School Corporation Meeting

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The Board of School Trustees of the Evansville Vanderburgh School Corporation will meet in executive session at 3:30 p.m. on Monday, July 22, 2019, in the John H. Schroeder Conference Centre at the EVSC Administration Building, 951 Walnut, IN 47713, Evansville, IN.

The session will be conducted according to Senate Enrolled Act 313, Section 1, I.C. 5-14-1.5-6.1, as amended.

The purpose of the meeting is for discussion of one or more of the following: collective bargaining, (2)(A); initiation of litigation or litigation that is either pending or has been threatened specifically in writing, (2)(B); purchase or lease of property, (2)(D); for discussion of the assessment, design, and implementation of school safety and security measures, plans, and systems (3); and job performance evaluation of individual employees, (9); to train school board members with an outside consultant about the performance of the role of the members as public officials (11).

The regular meeting of the School Board will follow at 5:30 p.m. in the EVSC Board Room, same address.

Man’s ‘Barely Legible’ Suit Against Judge, Clerk, DOC Staff Rightly Tossed

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Dave Stafford for www.theindianalawyer.com

Despite recent changes to the Indiana Code of Judicial Conduct meant to aid pro se litigants’ ability to be heard in court, an appellate panel ruled Friday that an inmate’s suit against a judge, a clerk and others was so confusing and repetitive that it was rightly dismissed.

 

The Indiana Court of Appeals affirmed the Sullivan Circuit Court’s dismissal of Kevin Martin v. Hon. Hugh Hunt, et al., 18A-CT-2595, noting Kevin Martin’s handwritten complaint at some points was barely legible, and his arguments were even less decipherable.

After Martin had a disagreement over a copying request with Indiana Department of Correction librarian Brenda Hinton, he sued her, DOC employee Charles Dugan, Sullivan Circuit Judge Hugh Hunt and court clerk Peggy Goodman, demanding to be released from prison due to his pain and suffering. After the defendants moved to dismiss, Martin filed an amended complaint.

“On August 29, 2018, Defendants filed a motion to dismiss the amended complaint, arguing Judge Hunt had judicial immunity; the court lacked jurisdiction to release Martin from prison as requested; the same case was pending before the Indiana Court of Appeals; and the action was contrary to public policy,” Judge Melissa May wrote.

Special Judge Christopher Newton dismissed Martin’s case from Sullivan Circuit Court on those grounds while also finding “the same case was pending before the Indiana Supreme Court on a petition to transfer from the Indiana Court of Appeals; and ‘[b]ecause the plaintiff is engaging in serial litigation, suing those involved in orders in previous cases with which he does not agree, this action is contrary to public policy and must, for that reason, be dismissed,’” May wrote.

The COA affirmed the dismissal in a six-page order Friday, concluding, “Based on Martin’s multiple violations of the Indiana Rules of Appellate Procedure, we are unable to ascertain his argument in this matter, and thus any issues he has attempted to present are waived.”

The panel noted Martin failed to make a cogent argument, and in a footnote pointed to revisions to a May amendment to Indiana Code of Judicial Conduct Rule 2.2, which gives judges discretion to facilitate litigants, including those representing themselves, to be heard. “Unfortunately,” May wrote, “…the deficiencies in Martin’s brief are so numerous and egregious that we are unable to ascertain his argument.”

The panel also found Martin’s case was rightly dismissed under I.C. 34-58-1-2, governing dismissal of suits that are frivolous, present claims upon which relief may not be granted, name those immune from liability or other reasons.

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