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Monday, September 13, 2004

Indiana Decisions - Court of Appeals issued five last Friday

Joshua Rogers v. State of Indiana (9/10/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Joshua Rogers appeals his convictions after a bench trial of criminal recklessness as a Class D felony See footnote and battery, as a Class A misdemeanor.See footnote He raises four issues for appeal, which we consolidate and restate as: 1. Whether the trial court properly admitted hearsay testimony based on the excited utterance exception to the hearsay rule; 2. Whether the State presented sufficient evidence to convict Rogers of criminal recklessness; and 3. Whether the trial court erred when it sentenced Rogers.
We affirm in part and reverse in part. * * *

Double jeopardy violation. Rogers also contends the trial court erred in sentencing him for both criminal recklessness and battery because each stemmed from the act of hitting Faith, and he was therefore subjected to double jeopardy. We agree. * * *

Having found a double jeopardy violation, the only remaining determination is the appropriate remedy. “When convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation.” Richardson, 717 N.E.2d at 54. If reducing an offense will not cure the violation, then the conviction “with the less severe penal consequences” must be vacated. Id. at 54-55. Therefore, we vacate the Class A misdemeanor battery conviction and sentence and leave standing the Class D felony criminal recklessness conviction and sentence. The judgment is affirmed in part and reversed in part.
SULLIVAN, J., and VAIDIK, J., concur.

CWE Concrete Construction Inc. v. First National Bank (9/10/04 IndCtApp) [UCC; Banking]
Vaidik, Judge
CWE Concrete Construction, Inc. d/b/a Elbrecht Concrete and Christopher Elbrecht (collectively, “Elbrecht”) appeal the trial court’s grant of summary judgment in favor of First National Bank (“FNB”), raising several issues, one of which we find dispositive: whether Elbrecht’s revolving line of credit had a borrowing base. Because we find that the revolving line of credit did not have a borrowing base, we conclude that Elbrecht was not in default at the time that FNB froze its bank account, accelerated its other loans, and filed its complaint. Consequently, we find that the trial court erred by granting summary judgment in favor of FNB and reverse and remand for further proceedings. * * *

Because we find that the October 2001 Note did not specify or incorporate a borrowing base, we find that the trial court erred in finding that Elbrecht defaulted on the Note by exceeding the borrowing base and entering summary judgment in favor of FNB. Moreover, because a question of fact remains as to whether Elbrecht would have been able to satisfy his obligation under the October 2001 Note when it became due had FNB not frozen the $1 million Elbrecht deposited with FNB and accelerated the other loans, we remand for further proceedings. Reversed and remanded.
SULLIVAN, J., and MAY, J., concur.

Morris L. Percifield v. State of Indiana (9/10/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
In this interlocutory appeal, Morris Percifield appeals the trial court’s denial of his motion to suppress. Percifield raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Percifield’s motion to suppress. We affirm. * * *

In summary, we hold that: (1) after excluding evidence of Percifield’s tainted admission, there was a substantial basis to conclude that probable cause existed to search Percifield’s residence, and the trial court did not err by denying Percifield’s motion to suppress the evidence seized as a result of the search warrant; and (2) I.C. § 33-14-1-3 (now I.C. § 33-39-1-4) does not prohibit circuit courts from issuing subpoenas duces tecum, and the trial court did not err by denying Percifield’s motion to suppress his cellular phone records.
For the foregoing reasons, we affirm the judgment of the trial court denying Percifield’s motion to suppress. Affirmed.
DARDEN, J. and ROBB, J. concur

Jennifer Wilkerson v. Sarah Willis Harvey f/k/a Sarah Willis (9/10/04 IndCtApp) [Torts]
May. Judge
The trial court granted Sarah Harvey’s request for summary judgment in a negligence suit brought against her by Jennifer Wilkerson for damages Wilkerson suffered in an auto collision with Harvey. Wilkerson raises numerous issues on appeal, which we consolidate and restate as: [1] Whether Harvey’s alleged failure to drive at an appropriately reduced speed as she approached an intersection raises a genuine issue of material fact about whether Harvey breached a duty to Wilkerson; [2] Whether Harvey’s alleged failure to operate her motor vehicle at an appropriately reduced speed as she approached a special hazard raises a genuine issue of material fact as to whether she breached a duty to Wilkerson; and [3] Whether Harvey’s alleged breach of general duties with respect to the operation of her motor vehicle raises a genuine issue of material fact about whether she breached a duty to Wilkerson. We reverse.

[Following fact-based analysis] Reversed.
VAIDIK, J., concurs.
SULLIVAN, J., dissents. [without opinion]

Dennis M. Robinson v. State of Indiana (9/10/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Dennis M. Robinson appeals his conviction for battery on a law enforcement officer as a class A misdemeanor. See footnote Robinson raises two issues, which we restate as: [1] Whether the evidence is sufficient to support his conviction; and [2] Whether the jury’s verdicts are inconsistent. We affirm. * * *

The facts that are the subject of the resisting charge are distinct from the facts that are the subject of the battery charge, and the jury could have properly concluded that Robinson was guilty of battery on a law enforcement officer but not guilty of resisting law enforcement. Furthermore, where a defendant is acquitted of some charges and convicted of others, as here, the results will survive a claim of inconsistency where the evidence is sufficient to support the convictions. Here, as we have already held, the evidence is sufficient to sustain Robinson’s conviction for battery. Thus, the verdicts on the two offenses are not inconsistent. See, e.g., Jackson v. State, 576 N.E.2d 607, 611 (Ind. Ct. App. 1991) (holding that the defendant’s conviction for resisting law enforcement was not inconsistent with his acquittal for battery on a police officer).

For the foregoing reasons, we affirm Robinson’s conviction for battery on a law enforcement officer as a class A misdemeanor. Affirmed.
BAILEY, J. and MAY, J. concur

Posted by Marcia Oddi on September 13, 2004 11:09 AM
Posted to Indiana Decisions