The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

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Tuesday, September 11, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Robert Williams v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:

Appellant-defendant Robert Williams appeals his conviction for Residential Entry, a class D felony. Williams presents us with a novel issue, claiming that his conviction must be set aside because the State failed to establish that Williams “entered” the victim’s residence within the meaning of the statute because the evidence showed that he only partially leaned into the victim’s residence through a window that he had broken. The State cross-appeals, claiming that this appeal should be dismissed because Williams failed to show that the failure to file a timely notice of appeal was through no fault of his own and that he was diligent in pursing his right to appeal.

While we conclude that the trial court properly granted Williams’s motion to file a belated notice of appeal, we also find that the evidence is sufficient to support the conviction. Thus, we affirm the judgment of the trial court. * * *

Williams’s proposed rule of complete entry would lead to the absurd result that an individual could avoid prosecution for residential entry by simply ensuring that a foot or hand remained outside the threshold of the residence. Such a rule is untenable.

It is axiomatic that entering a home violates the occupant’s possessory interest in the building and presents the possibility of a situation that may be dangerous to personal safety. Just as the offense of burglary is designed to deter activity leading to such situations, so does the crime of residential entry. Put another way, a partial entry into a home creates the same situation that the crime of residential entry is designed to deter in the same manner as a complete entry. Therefore, partial entry falls within the scope of residential entry. Thus, we conclude that the State produced sufficient evidence to sustain Williams’s conviction.

In Ronald Mayes v. Second Injury Fund, an 11-page opinion, Chief Judge Baker writes:

Appellant-petitioner Ronald Mayes appeals the Indiana Worker’s Compensation Board’s (the Board) denial of his petition for payment from Indiana’s Second Injury Fund1 (the Second Injury Fund). Specifically, Mayes argues that the Board erred by denying him compensation from the Second Injury Fund because he met the requirements for compensation and that his settlement with a third-party tortfeasor does not bar his recovery as a matter of law. Concluding that Mayes has failed to prove that he is entitled to compensation from the Second Injury Fund, we affirm the Board’s decision. * * *

The effect of a third-party settlement on an employee’s petition for compensation from the Second Injury Fund is an issue of first impression. However, as previously noted, the burden is on Mayes to prove that he is entitled to compensation for the Second Injury Fund. * * * [E]ven if we assume for the sake of the argument that Mayes was entitled to compensation from the Second Injury Fund in spite of the third-party settlement, he still must prove that such compensation would not result in double recovery. * * *

Here, Mayes’s settlement with Federal Express remains “confidential” and is not included in the record. * * *

Based on the limited information in the record, we cannot discern the amount of compensation Mayes obtained from the third-party settlement. Because it is his burden to prove that he is entitled to compensation from the Second Injury Fund and we cannot conclude that he has not already been compensated, Mayes has failed to carry his burden. In sum, even if we assume for the sake of the argument that Mayes was entitled to compensation from the Second Injury Fund in spite of the third-party settlement, he has failed to prove that further compensation would not result in double recovery. Therefore, we cannot conclude that the Board erred by denying his petition.

In Eric M. Briggs v. State of Indiana , a 13-page 2-1 opinion with a dissent beginning on p. 8, Judge Crone writes:

Eric M. Briggs appeals his conviction for class A misdemeanor resisting law enforcement. We reverse.

The issue is whether the State proved beyond a reasonable doubt that the law enforcement officers who arrested Briggs were lawfully engaged in the execution of their duties. * * *

Here, the officers detained Briggs based solely on a hunch that he could have a weapon in his bedroom. This amounted to an unreasonable seizure in violation of the Fourth Amendment. See State v. Atkins, 834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005) (“Officer safety is always a legitimate concern, but standing alone officer safety cannot form the basis for a valid investigatory stop.”), trans. denied. Therefore, we conclude that the officers were not lawfully engaged in the execution of their duties and reverse Briggs’s resisting law enforcement conviction for insufficient evidence. Reversed.

BAKER, C. J., concurs. FRIEDLANDER, J., dissents with separate opinion. [which begins] I disagree that this was a consensual encounter, and therefore respectfully dissent from the majority’s reversal of the conviction on that basis.

NFP civil opinions today (2):

Jane Ann Hoium v. David Hoium (NFP) - "Appellant-petitioner Jane Ann Hoium appeals the trial court’s order refusing to require appellee-respondent David Michael Hoium to reimburse Jane for expenses that she incurred in paying for the parties’ children’s higher education retroactive to a date prior to the filing of the petition for educational expenses." Affirmed.

In Roger & Shannon Willett v. William & Joyce Long (NFP), a 10-page opinion, Chief Judge Baker writes:

Appellants-plaintiffs Roger J. Willett and Shannon Willett (collectively, the Willetts) appeal the trial court’s judgment in favor of William E. Long and Joyce Long (collectively, the Longs) with regard to a prescriptive easement on certain real property in Fountain County. Specifically, the Willetts argue that the Longs failed to satisfy the requirements for adverse possession to gain an easement for their septic system that encroached on the property. Moreover, the Willetts claim that only a license was created for the Longs’ permissive use of the property and that the license was revocable without any remuneration due to the Longs. Concluding that the trial court properly determined that the Longs satisfied the elements of adverse possession with regard to the establishment of a prescriptive easement, we affirm.

NFP criminal opinions today (13):

Terrie L. James v. State of Indiana (NFP)

Duane M. Redding v. State of Indiana (NFP)

Velvet Vausha v. State of Indiana (NFP)

Christian Maverick v. State of Indiana (NFP)

D.E. v. State of Indiana (NFP)

Donald Carter v. State of Indiana (NFP)

Anthony Craig v. State of Indiana (NFP)

Charles Hartsell, Jr. v. State of Indiana (NFP)

Antwan Powell v. State of Indiana (NFP)

Antonio Tony Diaz v. State of Indiana (NFP)

Kofi Mobido Ajabu v. State of Indiana (NFP)