« Ind. Decisions - 7th Circuit posts three today | Main | Ind. Decisions - Supreme Court posts one today »

Wednesday, April 20, 2005

Ind. Decisions - Court of Appeals posts six today


Michael Weis v. State of Indiana (4/20/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

* * * Moreover, even if we found that the trial court improperly engaged in judicial fact-finding, an improper denial of a defendant’s Sixth Amendment right to have a jury determine all facts legally essential to his or her sentence is subject to a harmless-error analysis. See Booker, 125 S. Ct. at 769; see also Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), trans. denied. A denial of the defendant’s Sixth Amendment right constitutes harmless error where the evidence supporting the conviction or enhancement is so convincing that a jury could not have found otherwise. See Averitte v. State, No. 49A05-0405-CR-276, slip op. at 8 (April 8, 2005).

Based upon Weis’s own testimony, we believe that no jury could have found that Weis, as J.S.’s stepfather, was not in a position of trust. Accordingly, to the extent that the trial court erred in making this finding itself, any such error is harmless. * * *

Conclusion. Based upon the foregoing, we find that the trial court did not err in admitting certain evidence, and that Weis has not demonstrated fundamental error. Further, we find that the State did not commit prosecutorial misconduct, and the evidence is sufficient to support the convictions. Finally, the trial court did not err in enhancing Weis’s sentence. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.


James & Beulah Ross v. Larry Olson (4/20/05 IndCtApp) [Medical Malpractice]
Bailey, Judge
Appellants-Plaintiffs James E. Ross (“Ross”) and Beulah M. Ross (collectively, “the Rosses”) appeal a judgment in favor of Appellees-Defendants Larry D. Olson, M.D. (“Dr. Olson”) and John B. Chambers, M.D. (“Dr. Chambers”), upon the Rosses’ medical malpractice claim. We affirm.

Issues. The Rosses present three issues for review: [1] Whether the trial court should have instructed the jury on the doctrine of res ipsa loquitur; [2] Whether the trial court erroneously excluded testimony as to the definition of the term “iatrogenic injury;” and [3] Whether the trial court erroneously excluded Plaintiff’s Exhibit 13. * * *

Conclusion. The doctrine of res ipsa loquitur is inapplicable; thus, the trial court properly refused the Rosses’ res ipsa loquitur instruction. Moreover, the trial court’s evidentiary rulings were within its discretion. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.

Scott Rector v. State of Indiana (4/20/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Following a jury trial, Appellant, Scott D. Rector, was convicted of one count of Burglary as a Class C felony Sand was determined to be an habitual offender. Upon appeal, Rector challenges his adjudication as an habitual offender, presenting two issues for our review: (1) whether the trial court erred in removing a juror after deliberations had begun in the habitual offender phase of the trial, and (2) whether the trial court erred in refusing to give the jury an instruction requested by Rector. We affirm the judgment entered upon the habitual offender determination. * * *

The judgment of the trial court is affirmed.
BAILEY, J., and MATHIAS, J., concur


Ronnie Miller v. State of Indiana (4/20/05 IndCtApp) [Criminal Law & Procedure]
Crone, Judge
Issues. Miller presents one issue for our review, which we restate as whether the trial court abused its discretion by ruling that the State may conduct discovery regarding his mental capacity. On cross-appeal, the State presents one issue for our review, which we restate as whether the trial court’s proposed preliminary instruction on the issue of Miller’s mental retardation would, if presented to the jury, result in an abuse of discretion. * * *

In sum, we affirm the trial court’s order granting the State’s motion to interview and examine Miller, we reverse the trial court’s order proposing a preliminary instruction about its determination of Miller’s mental retardation, and we remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
RILEY, J., and ROBB, J., concur.


Adeline Margaret Hatten v. Emerson Richard Hatten (1/28/05 IndCtApp) [Family Law]
[Initially NFP]
Robb, Judge
The marriage of Adeline Margaret Hatten (“Wife”) and Emerson Richard Hatten (“Husband”) was dissolved by the trial court and the parties’ assets were divided. The trial court awarded to Husband the entirety of a Merrill Lynch account funded with money Husband inherited from his mother. Wife now appeals. We reverse and remand. * * *

Conclusion. The trial court abused its discretion in awarding the entire value of the Merrill Lynch account to Husband on the basis that the inherited property was “separate and distinct” from the marital property. We therefore reverse the trial court’s property division as to the Merrill Lynch account and remand for an equal division of this account between Husband and Wife. Reversed and remanded.
KIRSCH, C.J.,concurs.

BAKER, J., dissents with opinion. Because I believe that the trial court sufficiently set forth its reasoning for deviating from the presumption of an equal division of the marital property, I respectfully dissent.

The trial court is authorized by Indiana Code section 31-15-7-5 to deviate from the presumptive equal division if it states its reasons for the deviation. Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998). One of these reasons is “[t]he extent to which the property was acquired by each spouse . . . through inheritance or gift.” I.C. § 31-15-7-5. In its order, the trial court explained that Husband’s severance pay and portions of his inheritance had been used for the benefit of the family as a whole. However, Wife’s inheritance had been used for Wife’s children from a previous marriage only. Thus, Wife had already enjoyed the benefit of her own inheritance as well as Husband’s inheritance. Moreover, Husband had kept the account separate for many years. This is sufficient to rebut the presumption of an equal division. See Keller v. Keller, 639 N.E.2d 372 (Ind. Ct. App. 1994), trans. denied. I therefore vote to affirm the trial court in its finding that what remained of Husband’s inheritance was Husband’s alone.

Adeline Margaret Hatten v. Emerson Richard Hatten (4/20/05 IndCtApp) [Family Law]
[PETITION ON REHEARING - FOR PUBLICATION]
Robb, Judge
* * * Husband now petitions for rehearing, alleging a factual error in our opinion leading to a misunderstanding of the basis on which the trial court’s award was made. We grant the petition for rehearing for the sole purpose of addressing Husband’s contention, but reaffirm our opinion in all respects. * * *
KIRSCH, C.J., concurs.

BAKER, J., concurs in part and dissents in part with opinion. join my colleagues in voting to grant the petition for rehearing to correct any factual error. Moreover I continue to believe the trial court sufficiently set forth its reasoning from the presumption of an equal division of the marital property as I stated in my previous dissent.

Posted by Marcia Oddi on April 20, 2005 01:48 PM
Posted to Ind. App.Ct. Decisions