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Wednesday, April 16, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

Arthur Harris v. State of Indiana - "Attempted voluntary manslaughter with a deadly weapon is a Class A felony and carries the same penalty as attempted murder. See IC 35-41-5-1; IC 35-42-1-3. Because prosecutions for attempted voluntary manslaughter have both the higher sentencing range and the ambiguities involved in the proof of attempted murder prosecutions, we conclude that attempted voluntary manslaughter is not a lesser offense of attempted murder, and therefore the Spradlin rule applied. Therefore, the trial court erred in failing to instruct the jury that the State was required to prove that Harris acted with the specific intent to kill. We reverse his conviction for attempted voluntary manslaughter and remand for a retrial."

Yolanda Poole v. Tom Naquin Chevrolet Nissan, Inc., and Jet Leasing, Inc. - "Poole contends that the damages award is inadequate because she proved actual damages pursuant to the Odometer Act and is entitled to trebling of that amount. * * *

"Naquin and Jet Leasing complain that Poole presented no expert testimony. However, the Odometer Act provisions do not require expert testimony to prove actual damages. See Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp. 2d 535 (E.D. Va. 2001) (observing that expert testimony is not necessary to prove a claim under the Odometer Act). Poole and her husband testified without objection that Johnston, an employee of a dealership selling over 1,000 vehicles per year, opined shortly after the sale that the Cadillac purchased for $11,746.05 was worth only $3,000. We conclude that the evidence of record establishes that Poole sustained actual damages of $8,746.05.3 She is entitled to have this amount trebled, yielding a judgment of $26,238.15. She is also entitled to the attorney’s fees of $7,060."

In Lawrence E. Newbill v. State of Indiana , a 26-page opinion, Judge Darden writes:

Lawrence E. Newbill appeals his conviction, after a jury trial, on one count of rape, as a class B felony. We affirm.

Issues. 1. Whether insufficient evidence of force supports the jury’s conclusion that Newbill committed rape. 2. Whether the trial court committed reversible error in its instruction of the jury. 3. Whether the prosecutor committed misconduct. 4. Whether the trial court committed reversible error in the admission of evidence. 5. Whether the trial court’s admission of some testimony by a sexual forensic nurse examiner constituted fundamental error. 6. Whether cumulative trial error combined to deny Newbill a fair trial.

NFP civil opinions today (4):

In the Matter of T.A., A.B., Mother v. Elkhart County Department of Child Services (NFP) - "A.B. (“Mother”) appeals the trial court’s order terminating her parental rights to her son, T.A. (“T.”). We affirm."

Term. of Parent-Child Rel. of A.C., Child, and S.F. and A.K., Parents v. Porter Co. Dept. of Child Services, and CASA Program of Porter County (NFP) - "S.F. (“Mother”) appeals the termination of her parental rights as to her daughter, A.C. We affirm."

In Meldon Wayne Smith v. JPMorgan Chase Bank, N.A. (NFP), a 13-page opinion, the issue was "Whether the trial court properly found that no genuine issues of material fact existed as to Smith’s mental capacity or his subsequent ratification of the contract at issue." Judge Darden concludes:

The designated evidence contains facts and circumstances from which Smith’s knowledge of all material facts may be inferred. The relevant 2002 loan documents appear to bear Smith’s signature. Moreover, Chase designated the transcript of a deposition conducted on September 26, 2006, wherein Smith acknowledged the signatures as his own. It is well settled under Indiana law that a person is presumed to understand the documents that he signs. Robert’s Hair Designers, Inc. v. Pearson, 780 N.E.2d 858, 869 (Ind. Ct. App. 2002).

The foregoing facts and circumstances constitute an adequate basis from which to infer Smith’s knowledge of material facts such that he ratified the 2002 loan. Because the designated evidence supports this conclusion, we find no error in the trial court’s conclusion that no genuine issue of material fact exists as to whether Smith subsequently ratified the 2002 loan. Affirmed.

In James V. Lemmon, et al v. James A. Herman, et al (NFP), a 9-page opinion, Senior Judge Barteau writes:
In April 2005, an Allen County Prosecutor’s Office employee incorrectly keyed in data during the issuance of an arrest warrant. The warrant should have been for James E. Lemmon, but the name keyed in was James V. Lemmon. As a result of the error, police arrested James V. Lemmon at his home in front of his wife, Jill, and daughter, Madison. Lemmon was incarcerated for several hours before the error was discovered.

The following year, Lemmon, his wife, and his daughter filed a nine-count complaint against the Allen County Sheriff, the Sheriff’s Department, unnamed employees of the Sheriff’s Department, the Allen County Prosecutor, the Prosecutor’s Office, and unnamed employees of the Prosecutor’s Office, (collectively, the Defendants). The complaint included the following counts: 1) false arrest; 2) false imprisonment; 3) battery; 4) false light invasion of privacy; 5) negligence in preparation of a warrant; 6) negligence in service of a warrant; 7) negligent infliction of emotional distress; 8) intentional infliction of emotional distress; and 9) invasion of privacy. The Lemmons also sought punitive damages.

The Defendants filed motions to dismiss pursuant to Trial Rule 12(B)(6) wherein they alleged that the Lemmons had failed to state claims for relief. The trial court granted the motions, and the Lemmons appeal. * * *

The Lemmons first argue that the trial court erred in granting the motion to dismiss filed by the Allen County Prosecutor, the Prosecutor’s Office, and unnamed employees of the Prosecutor’s Office, in their official capacities. The defendants from the Prosecutor’s Office argue that they have immunity under the Indiana Torts Claims Act because the Lemmons’ losses resulted from the initiation of a judicial proceeding. The Lemmons respond that pursuant to Ind. Code § 34-13-3-3(8), the immunity does not extend to their claims of false imprisonment and false arrest. * * * We find no. error. * * *

Our review of the complaint reveals that the defendants from the Sheriff’s Office, like the defendants in Long, were immune because they were executing a facially valid warrant. The deputies were also immune from liability on an individual basis because the Lemmons’ factual allegations as to the deputies’ conduct does not reflect any conduct that could reasonably be found to be malicious or willful and wanton. Rather, as in Long, the deputies were simply executing a facially valid warrant.

We therefore affirm the trial court’s dismissal of the Lemmons’ claims against the Sheriff, his department, and his unnamed deputies. However, as we did in Long, we strongly admonish the personnel involved in drawing up arrest warrants that the ultimate consequence of their errors should not be forgotten.

NFP criminal opinions today (9):

Christopher France v. State of Indiana (NFP)

Rayna R. Bushrod v. State of Indiana (NFP)

Donald Edward Baker v. State of Indiana (NFP)

Jacob Lewandowski v. State of Indiana (NFP)

Robert J. Bassett, Jr. v. State of Indiana (NFP)

Douglas Wright v. State of Indiana (NFP)

Daniel Harvey v. State of Indiana (NFP)

Dion Lane v. State of Indiana (NFP)

Sammie L. Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on April 16, 2008 12:59 PM
Posted to Ind. App.Ct. Decisions