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Friday, February 15, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Andrew Reinhardt v. State of Indiana, a 7-page opinion, Sr. Judge Sullivan writes:

Andrew Reinhardt (Reinhardt) was charged with Dealing Cocaine as a Class A felony alleging that he “did knowingly deliver cocaine to a confidential informant in an amount greater than three (3) grams.” Appellant’s App. at 10. (Emphasis Supplied). The evidence reflected that Reinhardt delivered cocaine to John May who in turn, and not in Reinhardt’s presence, delivered the cocaine to a confidential informant.

It is Reinhardt’s appellate contention that there is a fatal variance between the charge and the evidence in that he did not deliver the cocaine to the confidential informant. As a corollary, he also argues that the variance constitutes fundamental error and therefore the issue was not waived by failure of counsel to object at trial. * * *

He was therefore aware that May would implicate the defendant in the matter of delivery and even at the eleventh hour prior to trial Reinhardt could have sought a continuance in order to revise his defense. He did not do so. We therefore conclude that the defendant was not harmed or prejudiced in the preparation and maintenance of his defense so as to dictate reversal. In point of fact, at trial May did testify, as indicated, to the effect that Reinhardt provided the cocaine which May in turn delivered to the confidential informant. * * *

We hold that it is of no moment that Reinhardt did not know the identity of the person to whom May intended to and did deliver the cocaine. It is enough that pursuant to agreement May met Reinhardt at a gas station in order to accept delivery from Reinhardt of a substantial quantity of cocaine to then be delivered to the confidential informant. May had either already paid the $400 buy-money from the confidential informant to Reinhardt or paid it to Reinhardt at the time of the transfer of the drugs.

The judgment of conviction for Dealing in Cocaine is affirmed.

NFP civil opinions today (1):

In Shirley Ann Minks v. Glenn Douglas Minks (NFP), a 9-page opinion, Judge Bradford writes:

Appellant-Respondent Shirley Ann Minks (“Wife”) appeals from the trial court’s order on remand, alleging the trial court abused its discretion by ordering an unequal division of the retirement benefits of her former husband, Glenn Douglas Minks (“Husband”). Because we conclude that the trial court’s order on remand ran counter to the instructions in this court’s first decision in this case, we reverse and remand with instructions. * * *

Our prior conclusions that an equal division was justified by the evidence and the trial court’s unequal division was insufficiently justified by its findings (along with our observation that an unequal division would penalize Wife) demonstrate that our intent in our prior decision was to remand for the entry of an equal division of the marital estate, including Husband’s retirement benefits. Quite simply, any other disposition would be inconsistent with the reasoning we employed. Because we see no reason to revisit that earlier decision, it is the law of the case, and we consequently reverse and remand with instructions to order a present equal division of Husband’s retirement benefits without regard to Wife’s employment status. In addition, the order issued will also provide that, when Wife does retire, she and Husband will each receive an equal share of the sum of their retirement benefits.

We reverse the judgment of the trial court and remand with instructions.

DARDEN, J., concurs.

BAKER, J., concurring with separate opinion. [which reads] I agree that we are compelled by the result of the prior appeal of this matter to reverse and remand. Unfortunately, it was incumbent upon the trial court to comply with that panel’s order to divide Husband’s pension equity between Husband and Wife. Were we permitted to review the merits of the decision reached following the first appeal of this matter, I note that I would likely reach a different conclusion than the one reached by that panel. Inasmuch as we may not engage in such a review, however, I am compelled to concur with the majority’s decision to reverse and remand.

NFP criminal opinions today (1):

James S. Furnifur v. State of Indiana (NFP)

Posted by Marcia Oddi on February 15, 2008 01:37 PM
Posted to Ind. App.Ct. Decisions