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Tuesday, February 28, 2006

Ind. Decisions - Court of Appeals decides six today

Anthony L. Walker v. State of Indiana

In Mainsource Bank v. In the Matter of the Unsupervised Estate of Nicholas R. Hermann, Deceased and Eva Hermann, a 2-1, 12-page opinion (with dissent beginning on p. 9), Judge May writes:

MainSource Bank appeals the trial court’s decision to exclude real estate owned by Eva Hermann (“Eva”) and her husband, Nicholas Hermann (“Nicholas”), as tenants by the entireties, from Nicholas’ estate. Mainsource raises one issue, which we restate as whether the trial court erred in declining to apply the doctrine of equitable election. * * *

[T]he trial court did not err in finding Nicholas did not intend to dispose of the entireties property in his will and in concluding the doctrine of equitable election does not apply in this case. We affirm.

KIRSCH, C.J., concurs.
ROBB, J., dissents with separate opinion.

The majority agrees with the trial court that the doctrine of equitable election does not apply in this case. I respectfully disagree.

The doctrine of equitable election creates an obligation upon a beneficiary under a will to “elect” between two inconsistent rights or claims which have been created by the will or by law. * * *

Under the doctrine of equitable election, Eva was required to either take the residence as it passed to her on Nicholas’ death by operation of law and forego the other beneficial provisions of Nicholas’ will, or forego her interest in the residence and take pursuant to the terms of the will. Because Eva took pursuant to the terms of the will, the value of the house should have been included in the value of the estate and then set aside to Eva as part of her one-half of the residue. I would reverse the decision of the trial court.

In Robert Davis v. State of Indiana, Judge May concludes:
In light of the statutory language and our holding in May, we decline to hold a trial court has the authority to order a presently indigent defendant to pay restitution based on possible future earnings or other speculative prospective wealth. As a result, the trial court erred in prospectively ordering Davis to reimburse the public defender’s fund $16,350.00. Reversed and remanded.
Rita Ann Gabriel v. Windsor, Inc.

Danielle M. Vasquez v. Roshawn Phillips, et al.

In Darren L. Marcum v. State of Indiana, a 5-page opinion, Judge May concludes:

Officer Mucha testified he smelled a “strong odor” of raw marijuana. He stated he knew what raw marijuana smelled like through his training at the Indiana Law Enforcement Academy and at drug interdiction schools, and from his experience on the job. He described the odor as being “very distinct, sweet, [and] pungent smelling. . . . ” Officer Mucha could have had the dog sniff the car but he decided not to do so. Furthermore, Officer Alvey testified he smelled burnt marijuana when he was three to five feet away from the rear bumper of the car. We do not have just the smell of raw marijuana justifying a search. Officer Mucha’s testimony, in conjunction with Officer Alvey’s testimony that he smelled burnt marijuana, was sufficient to allow a search of Marcum’s vehicle. See Hawkins, 766 N.E.2d at 752. We decline Marcum’s invitation to hold the detection of the odor of marijuana by police officers cannot serve as probable cause for a search unless the odor is independently confirmed by a trained dog. We accordingly affirm the denial of Marcum’s motion to suppress.

Posted by Marcia Oddi on February 28, 2006 01:16 PM
Posted to Ind. App.Ct. Decisions