The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 7 today (and 26 NFP)

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Monday, June 30, 2008

Ind. Decisions - Court of Appeals issues 7 today (and 26 NFP)

Today is the end of the term.

For publication opinions today (7):

In Indiana Department of Natrual Resources and State of Indiana v. Lake George Cottagers Association , a 7-page opinion, Judge May writes:

The Lake George Cottagers Association (hereinafter “the Association”) sought a declaratory judgment the State owns the real estate underneath a dam built in the 1930s and is therefore responsible for repairing it. The Association and the State both moved for summary judgment, and the trial court granted the Association’s motion. We find the legislature could not have intended the Lake Preservation Act to confer on the State “a right, a title, or an interest in or to the property” where a dam is located. Ind. Code § 14-27-7.5-4. We accordingly reverse and direct the entry of summary judgment for the State. * * *

In 1928, a ten acre plot including the Mill Pond was conveyed to the Association. Sometime in the 1930s, the Dam was built on the Association’s property at the south end of the Mill Pond to control the Lake’s water level and prevent flooding of a nearby road.

The Association still has title to the real estate conveyed in 1928. In 1947 the legislature enacted the Lake Preservation Act, which gave the State “full power and control of all of the public freshwater lakes in Indiana” and provided the State “holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” I.C. § 14-26-2-5(d).

The Association sought a declaratory judgment the State owned the Dam and the real estate underneath it. Both the State and the Association moved for summary judgment, and the trial court granted summary judgment for the Association. * * *

[Hled] The State did not become an “owner” of the land under the Mill Pond Dam by conveyance, by virtue of the Lake Preservation Act, or otherwise. Summary judgment for the Association was therefore error, and we direct the entry of summary judgment for the State. Reversed.

In In the Matter of A.T.; Lake County Dept. of Child Services v. A.T. and Lake County CASA , a 7-page opinion, Judge Crone writes:

May a juvenile court discharge an eighteen-year-old CHINS and reinstate jurisdiction over that child before she reaches age twenty-one? According to Indiana Code Section 31-30-2-1(a), it may not: * * *

Here, the juvenile court relinquished its jurisdiction over eighteen-year-old A.T. when it discharged her in August 2006. The methods by which a juvenile court may properly reinstate its jurisdiction are found in Indiana Code Sections 31-30-2-3 (sua sponte reinstatement within thirty days upon notification from the Department of Correction regarding the child’s release) and 31-30-2-4 (on petition of the Department of Correction). Neither section is applicable in this case.

Therefore, in August 2007, the juvenile court lacked jurisdiction to reinstate nineteen-year-old A.T. as a ward of DCS. Accordingly, we reverse.

In Clyde Pryor v. State of Indiana , a 9-page opinion, Judge Crone writes:

Clyde Pryor appeals his conviction for class D felony auto theft, arguing the evidence is insufficient to support his conviction. * * *

While it may have been a relatively simple matter for the State to have introduced the evidence necessary to establish Ambrosia Martin’s ownership of the stolen vehicle, the fact of the matter is that it did not, and that deficiency is fatal to the prosecution. Reversed.

In State of Indiana v. William R. Whitney , a 9-page opinion, Judge May writes:

The State of Indiana appeals the grant of William R. Whitney’s motion to suppress evidence of Whitney’s intoxication. We reverse and remand. * * *

Deputy Blacker had reasonable suspicion. He stopped Whitney at 12:30 in the morning because Whitney was traveling fifteen miles per hour over the speed limit. When Whitney spoke, Deputy Blacker “thought [he] could smell an odor of an alcoholic beverage coming from him.” Although Deputy Blacker was not positive the smell was alcohol, rather than leather or the motorcycle engine, his belief the smell might have been alcohol was sufficient to justify a brief detention to determine whether Whitney had consumed alcohol. Although Deputy Blacker testified he typically offered field sobriety tests prior to a PBT [portable breath test], we see nothing unreasonable or illegal about his reversing the order of those tests under these facts.

Because Deputy Blacker had the reasonable suspicion to support a PBT, we reverse the grant of Whitney’s motion to suppress and remand for further proceedings. Reversed and remanded.

James Ridner v. State of Indiana - "James Ridner appeals the trial court’s order that he register as a sex offender. We affirm. * * *

"The Morgan County Probation Department directed Ridner to register pursuant to the terms of the amended statute. On July 12, 2007, Ridner asked the trial court to classify his conviction as a “Non-Registration Required Offense.” The trial court ruled Ridner is required to register, but stayed its ruling pending appeal. * * *

"The registry requirement is not an ex post facto law as applied to Ridner."

In Randall R. Davis v. M. Brian Davis & Trust of Maybelle V. Reichert, Judge Kirsch writes:

Randall R. Davis (“Randall”), a beneficiary of a trust established by his mother, Maybelle V. Reichert (“Reichert”), filed a petition to have his brother, M. Brian Davis (“Brian” or the “Trustee”), removed as the trustee of the trust. The trial court denied Randall’s petition. Randall appeals raising the following restated issues for our review: I. Whether the trial court abused its discretion in finding that Brian’s actions did not warrant his removal as the trustee of the Trust. II. Whether the trial court erred in setting the interest rate at 4.5% for the Trustee’s repayment of loans despite expert testimony that the applicable rate during that time period was 8%. III. Whether the trial court erred in reducing Randall’s attorney fee award from his requested $29,628.69 to $4,000.00. We reverse and remand.

In Steven McCullough v. State of Indiana, a 22-page opinion including a separate opinion concurring in result, Judge Crone writes:

Steven McCullough appeals his convictions for class C felony criminal confinement, class D felony criminal confinement, and class A misdemeanor battery, as well as a habitual offender finding, on sufficiency and double jeopardy grounds. In a matter of first impression, the State brings a cross-appeal asserting that the trial court abused its discretion in balancing aggravating and mitigating factors in imposing McCullough’s sentence and that the sentences for the class C felony and habitual offender counts are inappropriately lenient in light of the nature of the offense and McCullough’s character. We hold that McCullough’s convictions are supported by sufficient evidence but vacate the class D felony confinement conviction on double jeopardy grounds. We further hold that the State may challenge a defendant’s sentence on cross-appeal for an abuse of discretion or inappropriateness, but only if the defendant appeals his sentence in his appellant’s brief. Because McCullough did not appeal his sentence, we do not reach the merits of the State’s cross-appeal.

NFP civil opinions today (8):

Heather (Parmeter) Scott v. Shonn Parmeter (NFP)

Hoosier Motor Co. Inc. v. The LaPorte Savings Bank (NFP)

Term. of Parent-Child Rel. of I.S.D.; Jeffrey D. and Elizabeth B. v. Tippecanoe Co. Dept. of Child Services (NFP)

Daniel Jordan, Michael D. Jordan, and Troutwine Estates Development Co., LLC v. Steve Manich (NFP)

Term. of Parent-Child Rel. of M.L.H., A.M.H., and S.L.H.; and Scott H. and Charlene H. v. Allen Co. Dept. of Child Services (NFP)

The Term. of Parent-Child Rel. of J.R., K.M., and S.M.; and Cecilia M. v. Allen Co. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of F.P. and T.S. (Mother) v. Bartholomew Co. Dept. of Child Services (NFP)

Adoption of A.J.; Brenda Johnson v. Velma Johnson (NFP)

NFP criminal opinions today (18):

Rodney B. Armour, Sr. v. State of Indiana (NFP)

Steven Loyd Brinkley v. State of Indiana (NFP)