The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

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Tuesday, July 29, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In Daniel J. Milliner v. State of Indiana , a 9-page, 2-1 opinion, Judge Bailey writes:

In this consolidated appeal, Daniel J. Milliner challenges his conviction for failure to register as a sex offender, as a Class D felony, and the order revoking his probation and reinstating his previously suspended sentence. We affirm. * * *

Milliner concedes that he moved from the home he shared with his wife in late July, and he admits he did not re-register as a sex offender within seven days. But he points to his testimony that he lived with various relatives during the relevant period and claims he did not “change” his home address, as required by the statute but, rather, he “lost” it. Indeed, Milliner repeatedly describes himself as “homeless” during the relevant period.

Here, the evidence shows that Milliner made his home with others, not that he was homeless. Consistent with his argument at trial, Milliner now emphasizes that he did not live in one place for seven days or more. But we do not read the statute as having triggered the duty to re-register only after an offender lived seven consecutive days in a new location. * * *

Milliner also claims that the trial court abused its discretion when it ordered him to serve his previously suspended sentence. He asks that we revise his sentence based on the nature of the probation violations and upon his character. * * *

First, we note that the court had discretion to order execution of the entire sentence suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(g)(3). Additionally, Milliner committed multiple offenses in a reasonably short period of time, and he violated multiple terms of his probation. His actions show a lack of respect for the law and for the opportunities afforded him. The trial court’s decision is not clearly against the logic and effect of the facts and circumstances. The court acted within its broad discretion when it ordered Milliner to serve the one-year previously suspended sentence. Affirmed.

FRIEDLANDER, J., concurs.
KIRSCH, J., dissents with opinion. [which begins] When does a cardboard box under a bridge qualify as a “home address?” A park bench? What about a pile of rags next to a trash bin? Or a homeless shelter where one had a bowl of soup for lunch, but cannot return that night because there is no room?

Homelessness is not a crime, but my colleagues make it so for anyone who is required to register under Ind. Code § 5-2-12-9 (repealed, see now Ind. Code § 11-8-8-17). While they resolve the evidentiary sufficiency issue in this case, they raise the specter of due process concerns in countless others.

In Liberty Mutual Insurance Co. v. Michigan Mutual Insurance Co. . a 12-page opinion, Judge Friedlander writes:

Liberty Mutual Insurance Company (Liberty Mutual), as subrogee of Duke Realty Corporation d/b/a Duke-Weeks Realty Services (Duke), appeals the grant of summary judgment in favor of Michigan Mutual Insurance Company (Michigan Mutual) in a declaratory judgment action regarding Michigan Mutual’s duty to defend and indemnify Duke under a commercial general liability policy issued by Michigan Mutual to Trilithic, Inc. (Trilithic), a tenant of Duke. Liberty Mutual contends that summary judgment should have been granted in its favor because the liability in question arose out of Trilithic’s use of the leased premises and Duke was, therefore, covered under the policy as an additional insured. * * *

There is no allegation that the ice and snow on which Swann slipped originated on the leased premises, was caused by the leased premises, was connected to work done on the leased premises, or had any other significant connection with the leased premises. Rather, the accident in question clearly arose out of Duke’s own failure to maintain the pathway from the parking lot to the employee entrance. The only way Swann’s fall was even remotely related to the leased premises was due to the fact Swann was on her way to work. We deem this “isolated connection” insufficient to bring the accident within the coverage of the policy under the additional insured endorsement. Therefore, Michigan Mutual had no duty to defend or indemnify Duke, and the trial court properly granted summary judgment in favor of Michigan Mutual. Judgment affirmed.

In Conway Jefferson v. State of Indiana , a 16-page opinion, Judge Brown writes:

Conway Jefferson appeals his conviction for dealing cocaine as a class A felony.1 Jefferson raises three issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting the evidence obtained during the search; and II. Whether the trial court failed to permit Jefferson to present a defense. We affirm.

In Chanelle Linet Alexander, et al. v. The Marion Co. Sheriff and The Commissioner of the Indiana Dept. of Admin., a 19-page opinion, Judge Friedlander writes:

1. Did the trial court err in determining that the Appellees had the authority to enter into contracts to provide telephone service to the Marion County jail and IDOC facilities that called for service providers to pay commissions in accordance with the respective contracts? 2. Did the trial court properly determine that the telephone rates charged by the phone companies to recipients of collect telephone calls from the Marion County jail and IDOC inmates are reasonable? We affirm.

In a nutshell, this case concerns the authority of the Sheriff and the IDOA to enter into contracts that provide for the Sheriff and the State to receive commissions from telephone service providers. * * *

Having reviewed the record, and even considering the affidavits stricken by the trial court, we conclude the Class failed to meet its burden of establishing that there is a genuine issue of fact with regard to the reasonableness of the rates charged. The Sheriff and the State, respectively, negotiated and entered into bi-lateral contracts with telephone service providers in which the service providers voluntarily agreed to pay commissions in accordance with contract terms. Based upon the undisputed, designated evidence, the challenged rates were reasonable. Judgment Affirmed.

In Gary Community School Corp. v. Neal Boyd III and Theresa Stanback, a 10-page opinion, Judge Kirsch writes:

Gary Community School Corporation (“GCSC”) appeals a jury verdict in favor of Neal Boyd III and Theresa Stanback (collectively “Parents”), as parents of Neal Boyd IV (“Neal”) on Parents’ claim of negligence against GCSC for the death of Neal, which occurred at Lew Wallace High School (“Lew Wallace”), a part of GCSC. GCSC raises several issues, of which we find the following dispositive: whether the trial court abused its discretion in admitting evidence of prior acts of violence that had occurred at or around Lew Wallace. In addition, because it will arise on remand, we address the following issue: whether the trial court erred in denying GCSC statutory immunity under the Indiana Tort Claims Act. We affirm in part, reverse in part, and remand for a new trial.

NFP civil opinions today (3):

Samuel L. Paiz v. Trans-Corr, Inc., et al (NFP) - "Samuel Paiz appeals, pro se, the decision of the Worker’s Compensation Board (“the Board”) that denied his application for additional medical treatment for the injury he suffered November 14, 2003, in an accident in the course of his employment. We affirm."

Edna Taylor v. Brian Miller (NFP) - "Plaintiff-Appellant Edna Taylor, by her guardian and power of attorney Roy Taylor, appeals the denial of her motion to correct error following the trial court’s entry of judgment in favor of Defendant-Appellee Brian Miller. We affirm."

Peter and Marie Torres v. Solid Platforms, Inc., et al. (NFP) - "Peter and Maria Torres sued Solid Platforms, Inc. (SPI), L&H Company, Meade Electric Company, Inc. (Meade), and the Estate of William Bales (Bales) for personal injuries Peter received while working for his employer, BP Amoco. The Torreses appeal a grant of summary judgment in favor of the SPI, Meade, and Bales. The Torreses present five overlapping and interrelated issues for review. We condense and restate those issues as follows: 1. Did the trial court err in determining that no material issue of fact existed with respect to the placement of the tent in question? 2. Did the trial court’s determination in that regard prejudice the Torreses’ subsequent case against SPI and Bales on a separate theory?"

NFP criminal opinions today (11):

Charles Christian v. State of Indiana (NFP)

Andre Leroi McGhee v. State of Indiana (NFP)

Angel Merida v. State of Indiana (NFP)

Ronnie Drane v. State of Indiana (NFP)

Jerry White v. State of Indiana (NFP)

William H. Duvall III v. State of Indiana (NFP)

Keith Smith v. State of Indiana (NFP)

Ronald C. Stryjewski v. State of Indiana (NFP)

Lawrence Gregory-Bey v. State of Indiana (NFP)

Heather D. Hillebrand v. State of Indiana (NFP)

Brend D. Mullis v. State of Indiana (NFP)