Olivia Covington for www.theindianalawyer.com

The Marion Superior Court did not abuse its discretion when it allowed the state to reopen its case against a defendant after closing arguments because the defendant had been forewarned that certain evidence could be admitted if he presented a contrary intent defense, the Indiana Court of Appeals held Wednesday.

In James Gilman v. State of Indiana, 49A02-1601-CR-95, Robin Kemp came to the house where James Gilman’s estranged wife, Melissa, lived while Gilman was visiting in April 2015. Kemp was the mother of Gilman’s children.

When Kemp arrived at the home, she remained in the car but was yelling and claiming that she was on the phone with police discussing a dispute between her and Gilman about who owned a Chevrolet Impala that was registered in her name. Gilman then got into the Impala and attempted to drive away, but Kemp drove her vehicle into the Impala, knocking it into the neighbor’s yard.

Both Gilman and Kemp then took off at high speeds and their cars bumped several times before colliding at roughly 87 miles per hour. The impact of the collision killed Kemp instantly, but Gilman’s vehicle came to a rest a short distance away from Kemp’s. Gilman could see Kemp injured inside her vehicle, but he fled the scene without helping her, calling for police or waiting for emergency services to arrive.

During an interview about the accident in May, Gilman admitted that at the time of the accident he knew of an outstanding warrant for his arrest in an unrelated case. He was then charted with Level 5 felony leaving the scene of an accident resulting in death.

During a pretrial hearing, the state informed the Marion Superior Court that it intended to introduce evidence of Gilman’s knowledge of the outstanding warrant if he argued that he had a defense for leaving the scene of the accident. The court issued an order saying the evidence could only be introduced “should Defendant place intent at issue by presenting a claim of particular contrary intent.”

The state rested without presenting the evidence of Gilman’s knowledge of the warrant, but during closing arguments, the defense argued that Gilman fled the scene “out of necessity” because he believed Kemp would hurt him. The state objected, and the court sustained the objection.

Then, the state requested permission to reopen its case and present its additional evidence of Gilman’s knowledge of the outstanding warrant because Gilman had made a necessity claim. The trial court granted the state’s request over Gilman’s objection and also allowed Gilman to supplement his argument if he wanted.

The jury found Gilman guilty as charged and he appealed, arguing that the trial court erred when it allowed the state to reopen its case because the evidence in question was more prejudicial than probative.

But Indiana Court of Appeals Senior Judge Carl Darden wrote Wednesday that Sgt. Doug Heustis, who testified to Gilman’s knowledge of the warrant and who interviewed Gilman after the accident, was not a surprise witness because he testified in the state’s case-in-chief. Similarly, Darden wrote that Gilman’s counsel was given a copy of Heustis’ interview with Gilman before the trial.

Further, Gilman’s counsel chose not to cross-examine Heustis and did not supplement its closing argument after the state re-rested, the appellate judge said.

“We conclude that under these circumstances, allowing the State to reopen its cases was not unreasonable,” Darden wrote. “Also, Gilman has failed to show how he was unduly prejudiced by the reopening.”

 Evansville Police Department

Police Pension Board

December 28, 2016

PUBLIC NOTICE

The Evansville Police Department Police Pension Board will hold an Executive Session on Wednesday, January 4, 2017 at 8:15 a.m.  The Meeting will be held in Room 307 of The Civic Center Complex located at 1 NW ML King Jr. Blvd., Evansville, Indiana.

The Executive Session will be closed as provided by:

I.C. 5-14-1.5-6.1(7) For discussion of records classified as confidential by state or federal statute.

Immediately following the Executive Session, a regular Open Session will be held.

Olivia Covington for www.theindianalawyer.com

A Kentucky-based houseboat company cannot be forced to refund a deposit to a Henry County couple after the Indiana Court of Appeals found Wednesday that an existing purchase agreement was a valid and binding contract that allowed the company to request arbitration.

In November 2013, Stardust Ventures LLC, a custom houseboat builder in Monticello, Kentucky, reached an oral agreement with Gary and Teresa Roberts on the construction of a customized houseboat. The parties agreed to a price of $775,000 and a delivery of the houseboat in midsummer 2014.

Stardust provided the Robertses with a quote that called for a nonrefundable $10,000 security deposit for a build slot in its facility and payment of 20 percent of the total purchase price before Stardust would begin construction of the houseboat.

The Robertses paid $75,000 to Stardust in November 2013, less than 20 percent of the total price. Stardust, having not yet received the necessary $155,000, decided in January 2014 to contract with Sunstar Houseboats Inc. to build the hull of another houseboat it was constructing in order to create room for the Robertses’ houseboat.

Then in late January, Stardust sent an unsigned purchase agreement to the Robertses without having begun construction of their boat. The couple signed the agreement, along with Jerry Harden, Stardust president.  The agreement included an arbitration clause stating that arbitration belonged solely to Stardust.

In March 2014, the Robertses asked to cancel their agreement with Stardust because construction on their houseboat had not yet begun. The couple then retained counsel to secure the return of their money from Stardust, so Harden sent a letter stating his company was “in the process of collecting the costs related to your construction. The costs of that work will be deducted prior (to) considering a refund.”

Stardust never returned any of the $75,000 and said its offer to return any portion of that cost was a mistake and was against policy because deposits were nonrefundable.  The couple filed a complaint seeking recovery of the full amount their paid, alleging that Stardust never returned a signed copy of the purchase agreement, so their offer to purchase a houseboat from Stardust was validly revoked.

Stardust moved to dismiss to proceed to arbitration, but the Henry Circuit Court dismissed that motion and instead granted the Robertses’ motion for summary judgment and entered a $75,000 judgment in their favor. The couple filed a motion to correct error for prejudgment interest. Stardust filed an opposition motion, but the trial court never held a hearing or issued a ruling.

Stardust appealed the denial of its motion to dismiss and the Robertses cross-appealed, arguing that there were entitle to prejudgment interest as a matter of law.

In the Wednesday opinion, the Indiana Court of Appeals first found that the purchase agreement was valid because Stardust produced a signed copy of the agreement and attached it to its motion to dismiss. Even if Stardust had not signed the agreement, Judge Margret Robb wrote that the company had drafted the agreement and outsourced with Sunstar to make room for the Roberts’ boat, both indications that it intended to abide by the terms of the agreement.

Further, Robb rejected the Robertses’ argument that Stardust had waived its right to arbitrate the dispute. First, Robb wrote, Stardust explicitly stated its decision to invoke its right to arbitration, and second, the company filed a motion to dismiss to arbitration as its first substantive pleading.

“Clearly, Stardust decided early on in litigation that it would rather have the dispute decided by arbitration and did not wait until an adverse final judgment to request arbitration,” Robb wrote.

Thus, the trial court’s grant of summary judgment in favor of the couple was reversed and the case was remanded with instructions to enter an order compelling arbitration.