GRANTING DEFENDANT’S MOTION TO PART
Transcript of GRANTING DEFENDANT’S MOTION TO PART
STATE OF INDIANA ) IN THE TIPPECANOE SUPERIOR COURT 2
COUNTY OF TIPPECANOE g CASE NO: 79Do2-1912-F3-000042
STATE OF INDIANA
V.
MICHAEL BARNE'I'I‘
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS IN PART
The State of Indiana has charged the Defendant, Michael Barnett, (“M.
Barnett”) with six counts of Neglect of a Dependent. The alleged victim is Natalia
Barnett, the daughter of M. Barnett and his former wife, Kristine Barnett (“K.
Barnett”). On August 17, 2020. M. Barnett filed his Motion to Dismiss the Counts
asking this Court to apply its prior ruling dismissing the Counts, in part, in the
case of the co—defendant K. Barnett. (See Order in 79D02-1912-F3—000041 issued
on August 14, 2020). M. Barnett also incorporated in the Motion to Dismiss his
Brief in Support of a Motion in Limine filed on August 7, 2020. The Court
incorporates in this order the Appendix of Exhibits filed in support of the Motion
in Limine. The Court also incorporates herein the Order 0f Dismissal, in part,
issued in the K. Barnett case mentioned above, together with briefs and evidence
presented in that matter.
I. Res Judicata. The Court finds that the doctrine of resjudicata
precludes the State 0f Indiana from charging M. Barnett with Neglect of a
Dependent to the extent that the State is relying upon Natalia’s age to allege she
is a dependent. This is so because Indiana defines a dependent as a person under
the age of 18. See I.C. 35—46-1-1(1). But in 2012, the Marion County Superior
Court (“Marion Court”) declared Natalia’s birth date to be Sept. 4, 1989, making
her 22 years old at that time. (See Order ofJune 22, 2012, Cause No. 49D08-
1206-AD—24309). That Order was affirmed on March 7, 2017. Thus, as a matter
of law Natalia was over 18 years of age during the times alleged in all Counts
against M. Barnett. Resjudicata bars the re-litigation of this issue.
The State argues it is not bound by prior judicial orders that addressed
Natalia’s age because it was not a party to those actions and the courts did not
address the merits of the age issue. However, this Court has found this argument
to be unpersuasive. Particularly, the State was a party to a 2013 Hamilton
County CPS action in which the State alleged the Barnetts neglected Natalia by
improperly re-aging her and by not providing her proper care thereafter. The
Hamilton Court dismissed that action for lack ofjurisdiction, citing the 2012
Marion County Order that declared Natalia to be an adult. The State never
appealed that decision.
Subsequently, on March 7, 2017 there was another hearing in the Marion
Court on a Motion to Vacate the Order on Age Determination issued in 2012. The
Motion cited the same grounds asserted in the Hamilton County CPS action and
here—the Order was issued without proper notice to Natalia and was based upon
inaccurate medical testimony. The Marion Court held a full hearing on the matter
and re-affirmed its 2012 order. At the hearing medical evidence was presented
and persons present included Natalia, A Guardian Ad Litem representing
Natalia’s interests, a retired Tippecanoe Count Sheriff’s Deputy, and M. Barnett.
This Court has found the above 2017 Marion Court decision was binding
upon the State because it had an opportunity to participate in the proceeding but
did not. During oral argument on M. Barnett’s Motion to Dismiss, additional
evidence regarding the State’s involvement in the Marion Court case was
presented. The Chronological Case Summary (“CCS”) shows that on April 1, 2015
Cynthia Oetjen, Deputy Marion County Deputy Prosecutor, APS Unit, filed her
Appearance in the case along with a Petition to Appoint Guardian Ad Litem
(“GAL”). (See CCS and Defendant’s Appendix In Support ofMotion in Limine, p.
64). That Appearance was never withdrawn after the denial of the GAL petition.
Therefore, the Prosecuting Attorney’s office was still listed as an interested party
in the case and was receiving all later notices issued by the court. On January 11,
2017 an automated e-notice was sent to the Deputy Prosecutor’s office notifying
of the March 7, 2017 hearing on the Motion to Vacate Order. (See CCS) The
Deputy Prosecutor did not appear or participate in the hearing where there was a
full presentation of evidence regarding the age issue, nor did anyone else from
the Prosecuting Attorney’s Office. The record also reveals that the Deputy
Prosecutor was expressly listed on the distribution list for other pleadings leading
up to that hearing. (See Defendant’s Appendix in Support ofMotion in Limine
pp. 29-30, 32-38). Further, the Tippecanoe County Deputy Prosecuting Attorney
admitted at the hearing held 0n M. Barnett’s Motion to Dismiss that her office
was also aware of the March 7, 2017 hearing and did not participate in the
hearing.
This additional information reinforces this Court’s prior finding that the
doctrines of resjudicata and collateral estoppel bars the State from asserting
Natalia was under the age of 18 because prior court proceedings, where the State
was a party and had a full and fair opportunity to litigate the issue, have found
otherwise. (Compare Chemco Transport, Inc. v. Conn. 527 N.E.2d 179 (Ind.
1988) where the party against whom estoppel was asserted had no opportunity to
participate in the prior action so it would have been unfair to have bound that
party to the prior proceeding.)
The State also argues the doctrine of resjudicata does not apply because
the Marion Court Order (a) is void, (b) lacked jurisdiction, (c) is a collateral
attack on the original Adoption Decree issued by Hamilton County, and (d) is
merely prima facie evidence of age that can be rebutted. But the Motion to
Vacate the Order on Age Determination heard by the Marion Court in 2017 made
those very same claims the State now asserts. (See Defendant’s Appendix in
Support ofMotion in Limine, Motion to Vacate Order on Age Determination, pp.
41-43.) Since the State failed to participate in the 2017 hearing after receiving
notice thereof, it has waived the right to bring forth those claims in this
proceeding.
The State also furthers its argument that a jury can disregard a prior court
order on the issue of Natalia’s age by relying on Ind. Code 16-37-2-8. This statute
provides that the probative value of a Delayed Certificate of Birth, like the one
issued here, shall be determined by the judicial or administrative body or official
before whom the certificate is offered as evidence. I. C. 16—37-2-8. In essence,
the State argues this statute allows a jury to give whatever probative value it sees
fit to the 2012 birth certificate. However, this court’s ruling is not based upon the
birth certificate. It is based upon the Marion Court Orders that determined
Natalia’s date of birth and the Hamilton Court Order that validated the finding
that Natalia was an adult. The State’s reliance upon the statute is misplaced
because it ignores the long-standing doctrines of resjudicata and collateral
estoppel that bars the State from re-litigating Natalia’s age.
Accordingly, Defendant M. Barnett’s Motion to Dismiss Counts I through
VI is GRANTED, in part, to the extent the charges rely upon alleging Natalia was
a dependent because of her age. However, the State may proceed, if it so chooses,
on its allegation that Natalia was a dependent because of a physical disability.
See Ind. Code 35—46-1—1(2).
II. Statute of Limitations. The Court also GRANTS Defendant’s
Motion to Dismiss Counts I, III, and V for the reason the State fails to allege facts
sufficient to constitute an exception to the statute of limitation as previously held
in the K. Barnett Order of Dismissal incorporated herein.
So OrderedWWWCopies:
J. Starbuck, Deputy Prosecuting AttorneyM. McConnell, Deputy Prosecuting AttorneyT. Kinnard, Attorney