The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP)

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Tuesday, May 27, 2008

Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP)

For publication opinions today (7):

In Robert Thornberry v. City of Hobart, a 20-page opinion, Cheif Judge Baker writes:

Appellant-plaintiff Robert Thornberry appeals the trial court’s grant of summary judgment in favor of appellee-defendant City of Hobart (Hobart) regarding the termination of his employment with the Hobart Police Department (Police Department). Specifically, Thornberry argues that the grant of summary judgment was erroneous because the designated evidence established as a matter of law that Hobart violated certain provisions of the Open Door Law1 with regard to the termination proceedings and because there were genuine issues of material fact as to whether Thornberry was properly notified that his leave under the Family Medical Leave Act (FMLA) would run concurrently with his paid leave that Hobart provided. Moreover, Thornberry argues that the Hobart Public Works & Safety Board’s (Board) decision to terminate his employment was arbitrary, capricious, and not supported by sufficient evidence. Finding no error, we affirm the judgment of the trial court. * * *

[Open Door Law claim] It is undisputed that the Board complied with the Open Door Law in conducting the March 1 meeting, and it is apparent that the Board merely took action at that time to correct its previous error. Thus, voiding the final action would merely require the Board to reconsider the same evidence for a third time. And voiding the final action would only serve to impose a punishment at the public’s expense for a technical violation of the Open Door Law.

As a result, we conclude that the trial court did not abuse its discretion when it refused to void the Board’s final action that was taken at the January 10, 2006, public meeting. Hence, Thornberry does not prevail on this claim. * * *

[Summary judgment claim] Thus, the Board properly exercised its authority when it terminated Thornberry’s employment as of that date, pursuant to Indiana Code section 36-8-3-3 and the Police Department’s rules and regulations. Accordingly, we conclude that the trial court properly granted Hobart’s motion for summary judgment. The judgment of the trial court is affirmed.

Dennis W. Toomey, Jr. v. State of Indiana - "Dennis Toomey, Jr., appeals the revocation of his placement in community corrections. He claims the court was without authority to revoke his commitment to home detention based on a violation of his commitment to work release. We affirm. * * *

"Toomey admitted he failed to return to Community Corrections for four days; that violation was grounds for revocation of home detention, regardless whether he was told that commission of a crime would result in revocation of that privilege."

Pansy M. Ickes v. Gregory K. Waters, Esq. - "Pansy M. Ickes petitions for rehearing of our opinion in Ickes v. Waters, 879 N.E.2d 1105 (Ind. Ct. App. 2008). We grant her petition for the limited purpose of clarifying a factual misstatement in our previous opinion, and we reaffirm our original decision."

Jimmie A. Batalis v. State of Indiana - "Jimmie A. Batalis appeals his convictions of murder and attempted murder. Batalis argues the trial court erred by submitting special verdict forms to the jury and he cannot be convicted of both murder and attempted murder. The State concedes he cannot be convicted of both offenses, and we vacate his conviction of attempted murder. Finding no reversible error in the submission of the special verdict forms, we affirm his conviction of murder."

In Jeffrey Young v. State of Indiana , a 6-page opinion, Judge May writes:

Jeffrey Young appeals his conviction of possession of cocaine, a Class D felony.1 He argues the cocaine was seized in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We reverse.

On June 9, 2007, Officer Greg Milburn stopped a vehicle because he could not see its license plate. As Officer Milburn approached the vehicle, he saw a temporary license plate attached to the inside of the rear window. Officer Milburn approached the driver and asked for identification. The driver identified himself as Jeffrey Young. Officer Milburn discovered that Young’s license was suspended and he had a prior conviction of driving while suspended. Officer Milburn arrested Young. While searching Young’s vehicle in preparation for impoundment, Officer Milburn found cocaine.

At a bench trial, Young moved to suppress the evidence Officer Milburn obtained after he learned Young had a valid license plate. The trial court took the motion under advisement and allowed the State to introduce evidence pending the court’s ruling. After the close of evidence, the trial court denied Young’s motion to suppress and found him guilty of possession of cocaine. * * *

In the absence of language to the contrary, we cannot say the legislature intended to punish the common and sensible practice of displaying a temporary license plate in the rear window.

Young did not commit an infraction by displaying his temporary license plate in the rear window, and the purpose of the traffic stop was satisfied when Officer Milburn determined Young had a valid license plate. The evidence seized thereafter was obtained in violation of the Fourth Amendment. See Meredith, 878 N.E.2d at 456. Therefore, we reverse Young’s conviction.

In State of Indiana v. Grant Gibson, a 6-page opinion, Judge May writes:

The State of Indiana appeals the suppression of evidence collected from Grant Gibson’s car. Because the dog sniff herein did not violate the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution, we reverse and remand.

On April 13, 2007, North Vernon Police Officer Craig Kipper stopped Gibson’s car because the license plate was not properly illuminated.1 Officer Kipper obtained Gibson’s license and registration and returned to his patrol car to check the status of Gibson’s license and to write a warning ticket. While Officer Kipper was completing these tasks, Officer Taylor arrived on the scene with his police dog. Officer Taylor told Gibson he would be using the dog to conduct an open-air sniff around the car. Officer Taylor asked Gibson if there was anything in the car the officer should know about prior to the sniff, and Gibson handed him a bag of marijuana. As the dog walked around the car, it indicated the car contained additional drugs, and paraphernalia was recovered from the car’s ashtray.

The State charged Gibson with possession of marijuana and possession of paraphernalia. Gibson moved to suppress the evidence. The court granted the motion after finding “no reasonable suspicion to have the dog sniff the car.” * * *

The record does not suggest Officer Taylor had any suspicion or knowledge Gibson was in possession of drugs or paraphernalia. Nevertheless, because Gibson was being detained while Officer Kipper completed his traffic stop, Officer Taylor did not intrude into Gibson’s freedom of movement. As for the extent of law enforcement needs, we note the trafficking of illegal drugs frequently associated with violence and no simpler method exists for detection of hidden drugs than a dog sniff. Under the totality of the circumstances herein, Officer Taylor’s decision to walk his dog around Gibson’s car was not unreasonable under Article 1, Section 11 of the Indiana Constitution.

Because the dog sniff violated neither the United States Constitution nor the Indiana Constitution, we reverse and remand.

In Aaron Kemp v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:

Appellant-defendant Aaron Kemp appeals the sentence imposed by the trial court after Kemp pleaded guilty to four counts of Forgery, a class C felony, four counts of Theft, a class D felony, and one count of Corrupt Business Influence, a class C felony. Kemp argues that the aggregate thirty-two year sentence and the executed twenty-year sentence are inappropriate in light of the nature of the offenses and his character. Finding the sentence to be inappropriate, we reverse and remand with instructions.

Kemp was the administrator for Greenwood United Methodist Church (the Church) from January 2002 through June 2005. Kemp kept the Church’s books and controlled the Church’s bank accounts. * * * By June 2005, Kemp had stolen approximately $350,000 from the Church. * * *

The nature of Kemp’s offenses is undeniably despicable. He abused a position of trust with the Church, ruined the credit rating of a fellow Church employee, and caused potentially irreversible damage to the congregation and its pastor. He stole repeatedly and without cessation and went to great lengths to conceal his unauthorized activities. We must also consider Kemp’s character, however, and we place great weight on the complete absence of a prior criminal history. Similarly, it is significant that Kemp immediately admitted to his crimes and pleaded guilty as charged. Ultimately, we find the nature of the offenses and Kemp’s character to be in equipoise and conclude that the sentences imposed by the trial court were inappropriate.

In light of the nature of the offenses and Kemp’s character, we direct the trial court to amend the abstract of judgment to reflect the following sentences: (1) four years each for the four class C felony forgery convictions, to be served consecutively; (2) one and one-half years each for the four class D felony theft convictions, to be served concurrently with the forgery sentences; and (3) three years for the class C felony corrupt business influence conviction, to be served concurrently with the forgery sentences. Thus, Kemp faces an aggregate sentence of sixteen years. We remand to the trial court with instructions to decide how Kemp should serve those sixteen years, keeping the goal of monetary restitution to the Church in mind.

The judgment of the trial court is reversed and remanded with instructions set forth above.

NFP civil opinions today (5):

Term. of Parent-Child Rel. of A.R.C., and Marcus C. v. St. Joseph Co. Dept. of Child Services (NFP) - "Marcus C. (“Father”) appeals the termination of his parental rights. Because the evidence supports the court’s decision, we affirm."

Steven Evans v. Natalie Fabian Evans (NFP) - "The trial court did not abuse its discretion in admitting Page’s testimony, valuing the Chevy Blazer, or dividing the marital estate. We find that any issues regarding dissipation of marital assets have been waived. We remand this case to the trial court for a recalculation and redistribution of the marital debt incurred regarding the legal fees payable to Cohen & Thiros. We affirm in part and remand."

Sharon Doyle and John Doyle v. Rex and Linda Snyder (NFP) - "In this appeal from a small claims judgment, tenants Sharon Doyle and John Doyle Jr. (collectively, “the Doyles”) contend that the small claims court erroneously denied their request for the return of their $1000 security deposit and their claim of constructive eviction. The Doyles further contend that the small claims court erroneously awarded their landlords, Rex and Linda Snyder (collectively, “the Snyders”), $5426.27 in damages. The Snyders, in turn, request appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E). Concluding that the small claims court’s order was not erroneous, we affirm. Additionally, we decline the Snyders’ request for attorney’s fees."

Gladys Tobias v. Margaret and Thomas Mannella (NFP) - "Following a bench trial, Gladys Tobias appeals the trial court’s judgment awarding her $9,044.54 for overpaid rent on a piece of real estate the trial court found was owned by Margaret and Thomas Mannella. On appeal, Tobias argues that the trial court should have awarded her a portion of the profit made by the Mannellas when they sold the property, that the trial court improperly relied on the statute of frauds in rendering its judgment, and that the trial court improperly found that the parties’ status and rights regarding the property were governed by a written lease. The Mannellas also raise the issue of whether Tobias is barred from arguing that she was an owner of the property based on the trial court’s previous order evicting her from the property. Concluding Tobias is not barred from making her argument, but that the trial court’s judgment is not clearly erroneous, we affirm."

In Term. of Parent-Child Rel. of R.H., and Bethany Manfred and Sean Hansen v. Porter Co. Office of Family & Children, and CASA Program of Porter Co. (NFP), a 14-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-respondent Sean Hansen appeals the trial court’s order terminating his parental relationship with his minor son, R.H., arguing that there is insufficient evidence supporting the order. We find that the evidence relied upon by the trial court is insufficient to support the termination of Sean’s parental rights, though we observe that it may be relevant to issues of custody and/or guardianship of R.H. We reverse and remand for proceedings consistent with this opinion. * * *

In sum, we find that although evidence of Sean’s lackluster efforts to communicate and visit with R.H., Sean’s refusal to relocate to Indiana, and R.H.’s strong bond with his grandparents would be relevant to a determination of custody and/or guardianship, it is insufficient on its own to support the radical act of severing the parent-child relationship. We acknowledge that we are not permitted to reweigh the evidence or judge witness credibility, and we have not done so. Instead, we have accepted all of the trial court’s findings and conclusions—save the ultimate conclusion—as true, and have simply found that they do not support a decision to terminate Sean’s parental rights. We remand, therefore, and leave the trial court with the option of holding a hearing to determine issues of custody and guardianship.

The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.

ROBB, J., concurs.
RILEY, J., dissents with opinion. [which reads in full] I respectfully dissent. The trial court’s judgment is not clearly erroneous and it is firmly based on the evidence. The State has met the criteria necessary to terminate the parent-child relationship by clear and convincing evidence.

NFP criminal opinions today (11):

John Jordan, II v. State of Indiana (NFP)

Victor Vega Torres v. State of Indiana (NFP)

Matthew R. Reed v. State of Indiana (NFP)

Shavaughn Carlos Wilson-el v. State of Indiana (NFP)

Bernardo Garcia v. State of Indiana (NFP)

Carlos Y. Santiago v. State of Indiana (NFP)

Curtis Godfrey v. State of Indiana (NFP)

Steve M. Sprinkle v. State of Indiana (NFP)

Carlos Mendoza Robles v. State of Indiana (NFP)

William Allsup v. State of Indiana (NFP)

Shavaughn Carlos Wilson-el v. State of Indiana (NFP)