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Monday, December 10, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

Rageing Warr v. State of Indiana - "Rageing Warr (“Warr”) was convicted in Marion Superior Court of Class D felony battery by body waste and Class B misdemeanor disorderly conduct. The trial court also found Warr to be in direct contempt of court. * * * In summary, Warr has not demonstrated that she was denied a fair trial because some jurors may have seen her in handcuffs in the courtroom hallway; Warr has not shown any error in the trial court’s exclusion of evidence; because she represented herself at trial, Warr may not now claim ineffective assistance of standby trial counsel; the evidence is sufficient to support Warr’s convictions and the trial court’s contempt findings; and the sentences imposed by the trial court are not inappropriate. Affirmed."

Charles Robertson v. State of Indiana - "Here, as in Bush, there was no finished methamphetamine product found. Robertson’s possession of precursors—pseudoephedrine hydrochloride and hydrogen peroxide—is necessarily included in his conviction for dealing in methamphetamine. Robertson could not have been in the process of manufacturing methamphetamine without possessing the precursors. In accordance with Indiana Code § 35-38-1-6, Robertson’s conviction for possession of precursors must be reversed. See Bush, 772 N.E.2d at 1024-25; see also Moore, 869 N.E.2d at 493. Therefore, we remand this case to the trial court with instructions to vacate Robertson’s conviction for possession of chemical reagents or precursors with intent to manufacture. Affirmed in part, reversed in part, and remanded."

In Washington County Health Department and Mike Haddon v. Jeff and Robin White , an 11-page opinion, Senior Judge Hoffman writes:

In July of 2006, Mike Haddon, a Washington County Health Officer and employee of WCHD, noticed that two mobile homes had been placed on property owned by the Whites that is located in an unincorporated portion of Washington County. Haddon could see that people were living in the mobile homes and that there was a discharge pipe extending from the bottom of one of the mobile homes to the ground. As an employee of WCHD, Haddon knew that a permit for a septic system had not been obtained for either of the mobile homes. Haddon went onto the property and spoke with the Whites’ son, Kelly White (“Kelly”). Haddon asked Kelly if he could look at the end of the discharge pipe, and Kelly told him no. Kelly then told Haddon to leave the property, which he did.

On July 26, 2006, Haddon sent the Whites a letter stating that the WCHD, pursuant to Indiana Code § 16-20-1-23 and 410 Indiana Administrative Code 6-8.1-33, wanted to inspect their property “for conditions that transmit, generate, or promote disease . . . .” In the letter, Haddon stated that he had observed a discharge pipe extending “from one trailer to the ground surface . . . .” I By a letter dated August 2, 2006, the Whites informed Haddon that they refused to allow WCHD to inspect their property.

Thereafter, on August 3, 2006, the Whites filed a petition for injunctive relief, in which they requested that WCHD not be allowed on their property without a valid search warrant. The Whites also argued that pursuant to Indiana Code § 36-7-8-3(d) and our decision in Robinson v. Monroe County, 658 N.E.2d 647 (Ind. Ct. App. 1995), trans. denied, they were not required to obtain any sort of permit for their mobile homes.

Haddon then sent a Notice and Order to Comply letter to the Whites on August 4, 2006. In the letter, Haddon stated that the Whites had committed three health code violations. * * *

WCHD argues that the trial court erred when it concluded that the Whites fell under the exception created by Indiana Code § 36-7-8-3(d) (“Subsection (d)”). * * *

In a way, the question whether the Subsection (d) exception applies is a sidetrack to the fundamental issue here, which is whether the Whites must comply with the requirements of Indiana’s Health Code (“Health Code”) contained in Title 16 of the Indiana Code. We have already determined that the Whites do not fall within the Subsection (d) exception, and because of this, we conclude that they are bound to comply with the Health Code regulations, specifically, 410 IAC 6-8.1-33, which required them to obtain a permit for a sewage disposal system prior to placing the mobile homes on their property. As such, the trial court abused its discretion by denying WCHD’s petition for injunctive relief.

However, even if we had determined that the Whites satisfied the Subsection (d) exception, they still would have been required to comply with the Health Code regulations. The trial court took a contrary position. It viewed the Subsection (d) exception as a global exception that exempts individuals not only from the requirements set out in Indiana Code § 36-7-8-3, but also the requirements of the Health Code. The trial court’s view of the scope of the Subsection (d) exception is too broad. * * *

The trial court erred in concluding that an individual who satisfies the Subsection (d) exception is exempt from the Health Code requirements. The Whites were required to obtain a permit for a sewage disposal system prior to placing the mobile homes on their property. See 410 IAC 6-8.1-33(a)(1). Therefore, the trial court abused its discretion when it denied WCHD’s petition for injunctive relief. We remand this case to the trial court for action consistent with this opinion. Reversed and remanded.

Matter of A.J., E.J., and J.J., Children in Need of Services; Marlos & Maya J. v. Marion County Department of Child Services - Termination of parental rights; affirmed.

NFP civil opinions today (1):

Neil Beck v. Annette Beck (NFP) - "Neil Beck (“Husband”) appeals a 2007 trial court order requiring him to pay his ex-wife, Annette Beck (“Wife”), a sum representing one-half the enhanced value of his pension as part of the trial court’s 2001 property disposition order. He also appeals the court’s imposition of a ten-percent interest rate on sums owed to Wife pursuant to the 2007 order and a 2002 property settlement judgment. We affirm in part, reverse in part, and remand."

NFP criminal opinions today (5):

Kelly Meissner v. State of Indiana (NFP)

M.C. v. State of Indiana (NFP)

Alvin Lakes v. State of Indiana (NFP)

Thomas M. Meredith v. State of Indiana (NFP)

Michael S. Schaefer v. State of Indiana (NFP)

Posted by Marcia Oddi on December 10, 2007 01:13 PM
Posted to Ind. App.Ct. Decisions