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Tuesday, July 08, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In In re the Paternity of M.M.; Bryan F. v. Liana M. , a 6-page opinion, Judge Bailey writes:

Bryan F. (“Bryan”) appeals the denial of his motion to rescind a paternity affidavit and request for paternity testing. We reverse and remand for court-ordered genetic testing. * * *

Here, Bryan testified without contradiction that Liana advised him he was the only potential father of M.M. Two genetic tests showed otherwise. Thus, Bryan provided unrefuted testimony of circumstances amounting to either fraud or a material mistake of fact.1 He was the victim of either Liana’s intentional deception or misapprehension of the critical fact of paternity. This, however, can only satisfy the first prong of Indiana Code Section 16-37-2-2.1(i). A paternity affidavit may not be rescinded unless the court, at the request of the legal father, has ordered a genetic test, and the court-ordered test indicates that the man is excluded as the father of the child. See Ind. Code § 16-37-2-2.1(i)(2). Bryan’s request for genetic testing was summarily denied, apparently due to the trial court’s perception that disestablishment of paternity contravenes public policy. As previously discussed, however, some extraordinary circumstances will permit a challenge to paternity despite the strong public policy in favor of the establishment of paternity.

We reverse and remand with instructions to the trial court to order a genetic test in accordance with Indiana Code section 16-37-2-2.1(i)(2).

In George Jackson v. State of Indiana , a 13page 2-1 opinion, Judge Riley writes:
Appellant-Defendant, George Jackson (Jackson), appeals his conviction for unlawful possession of a firearm by a serious violent felon, a Class B felony, Ind. Code § 35-47-4-5. We reverse. * * *

Based on the foregoing, we conclude that the search warrant was invalid under Indiana Code § 35-33-5-2 and that the evidence seized during the search was not otherwise admissible under the good faith exception to the warrant requirement. Therefore, the trial court abused its discretion by admitting the evidence during trial. Because the State does not contend that the error was harmless, we reverse Jackson’s conviction for unlawful possession of a firearm by a serious violent felon. Reversed.

ROBB, J., concurs.
BAKER, C.J., dissents with separate opinion. [that begins] I respectfully dissent from the result reached by the majority because I believe that the trial court’s search warrant was supported by probable cause. While I agree that Detective Blackwell’s sworn testimony was based on hearsay, I believe that his testimony was sufficient to support issuing the search warrant. Moreover, even assuming for the sake of the argument that probable cause did not exist, I believe that the good faith exception applies.

In Tanicka Smith v. State of Indiana , a 2-1 opinion, Judge Robb writes:
Following a bench trial, Tanicka Smith appeals her conviction of possession of cocaine, a Class D felony. On appeal, Smith raises one issue, which we restate as whether the trial court properly admitted into evidence cocaine that was found following a search of the motel room in which Smith was an occupant. Concluding that the search was unreasonable and that the trial court therefore improperly admitted the cocaine into evidence, we reverse and remand. * * *

Chimel instructs that a search incident to a lawful arrest is reasonable only to the extent it can be characterized as promoting officer safety or preventing the destruction of evidence. * * * Accordingly, we conclude that the search of the toilet tank violated the Fourth Amendment and that the trial court necessarily abused its discretion when it admitted the cocaine recovered from that search into evidence.

Conclusion. The trial court improperly admitted the cocaine into evidence because it was the product of an unreasonable search. Reversed and remanded.
RILEY, J., concurs.
BAKER, C.J., dissents with opinion. [that concludes] I believe that as an objective matter, a reasonable officer could have inferred from this sound that one of the occupants of the hotel room was attempting to destroy evidence—specifically, drugs—by dumping it into the toilet tank. Because the circumstances, viewed objectively, justify the officers’ actions pursuant to Chimel, their subjective intentions and concerns do not invalidate the search. Thus, I believe that the search did not violate the Fourth Amendment and would affirm the trial court’s admission of the evidence.

Victor T. Sobolewski v. State of Indiana - "Victor Sobolewski appeals his conviction and sentence for child exploitation as a class C felony enhanced by his status as an habitual offender. Sobolewski raises four issues, which we revise and restate as: I. Whether the trial court abused its discretion by denying his requests for a continuance; II. Whether the prosecutor committed prosecutorial misconduct; III. Whether he was denied a fair trial as a result of certain remarks made by the prosecutor; and IV. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm."

Richard Pendergrass v. State of Indiana - "Based on the foregoing, we conclude that the trial court properly admitted State’s Exhibits 1, 2, and 3 and related testimony concerning DNA analysis and the subsequent test result without the testimony of the laboratory technician who performed the actual testing; and Pendergrass’ confrontational rights pursuant to the Sixth Amendment of the United States Constitution were not implicated when he was denied the opportunity to confront and cross-examine the laboratory technician who performed the DNA analysis. Affirmed."

NFP civil opinions today (2):

Higland Town School Corp. a/k/a School Town of Highland v. Review Board of the Indiana Dept. of Work Force Dvlpmt. (NFP) - "Appellant-respondent Highland Town School Corporation a/k/a School Town of Highland (Highland) appeals the order of the Department of Workforce Development Review Board (the Board) granting appellee-claimant Dan J. Candiano, Jr.’s, petition for unemployment compensation benefits. Highland contends that the Board erroneously concluded that the Administrative Law Judge (ALJ) impermissibly relied on hearsay evidence in denying Candiano’s petition. Finding that Candiano failed to make proper objections to the alleged hearsay evidence, we reverse and remand with instructions that the Board enter judgment in favor of Highland."

Municipal Tax Liens, Inc. v. Michael Alexander (NFP) - "Municipal Tax Liens, Inc. (“MTL”) appeals the trial court’s grant of summary judgment to Michael Alexander regarding MTL’s attorney malpractice complaint against Alexander. MTL raises one issue, which we revise and restate as whether the trial court erred by granting summary judgment to Alexander. We reverse and remand."

NFP criminal opinions today (8):

Robert Kalauokaaea v. State of Indiana (NFP)

Kristofer Keith Fuelling a/k/a Kristopher Keith Fuelling v. State of Indiana (NFP)

Ricky Lee Williford v. State of Indiana (NFP)

Floyd L. Cockrell, Jr. v. State of Indiana (NFP)

Frank Hunter v. State of Indiana (NFP)

Ronnie Allen Wright v. State of Indiana (NFP)

Mijell Redding v. State of Indiana (NFP)

Samuel K. Nance, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on July 8, 2008 11:19 AM
Posted to Ind. App.Ct. Decisions