The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP) [Corrected]

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Wednesday, August 06, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP) [Corrected]

For publication opinions today (2):

In Denia Baniaga v. State of Indiana , a 9-page opinion, CJ Baker writes:

Appellant-defendant Denia Baniaga appeals her convictions for Possession of Cocaine, a class C felony, and Driving While Suspended, a class A misdemeanor. Specifically, Baniaga argues that (1) the search of her vehicle following her arrest violated Article I, section 11 of the Indiana Constitution; (2) the civil forfeiture of her vehicle and subsequent criminal prosecution for possession of cocaine violated the prohibition against double jeopardy; and (3) the evidence was insufficient to support her conviction for possession of cocaine. Finding, among other things, that the search of Baniaga’s vehicle was not reasonable pursuant to the Indiana Constitution, we affirm in part, reverse in part, and remand with instructions outlined herein. * * *

We conclude that Officer Ball’s search of Baniaga’s vehicle was not reasonable in light of the totality of the circumstances. Although Baniaga was under arrest for driving while suspended, the officer did not fear for his safety and there was no indication that Baniaga had engaged in drug activity. Moreover, Officer Ball admitted that he did not need to search the vehicle to preserve further evidence of Baniaga’s licensure offense. Thus, we conclude that the search of Baniaga’s vehicle violated the protections provided by Article I, section 11 of the Indiana Constitution. Consequently, the trial court abused its discretion by admitting evidence stemming from the vehicle search. Thus, we reverse Baniaga’s conviction for possession of cocaine and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.
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[1] Master Commissioner Patrick Murphy heard this case and signed the abstract of judgment. Indiana Code section 33-33-49-16(e) provides that a “master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned.” However, the statute also provides that a master commissioner has the powers and duties prescribed for a magistrate under Indiana Code section 33-23-5-5, including the power to enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. Given the manner in which these statutes have evolved in conjunction with the authority specifically granted by Indiana Code section 33-23-5-5, we believe that section 33-33-49-16(e) means that a master commissioner must keep the judge apprised regarding the matters before him, but not that the judge needs to approve by signature the master commissioner’s statutorily authorized actions.

In Gary L. Williams, Jr. v. State of Indiana , a 24-page opinion, Judge Najam writes:

Gary L. Williams, Jr. appeals his convictions and sentence on two counts of Dealing in Cocaine, as Class A felonies; one count of Possession of Cocaine, as a Class A felony; two counts of Possession of Cocaine, as Class C felonies; and one count of Possession of Marijuana, as a Class D felony. Williams raises eight issues for our review * * *

In sum, we hold that Williams’ request to have the bond premium remitted to him by ASC is not properly before us. We also revise Williams’ seventy-three year sentence to forty total years. We affirm the trial court on all other issues raised in this appeal. Affirmed.

NFP civil opinions today (3):

Shawanna Butler v. St. Joseph Co. Dept. of Child Svcs. (NFP) - "The trial court’s determination that continuation of the parent-child relationship poses a threat to the Children’s well-being is not clearly erroneous. The evidence sufficiently supports the trial court’s decision to terminate the parent-child relationship between Mother and the Children. Judgment affirmed."

Renaissance Remodeling Inc. v. J. & L. Cargo Express Inc. (NFP) - "Appellant-plaintiff Renaissance Remodeling, Inc., d/b/a DBR Plumbing, Inc. (DBR), appeals the trial court’s judgment in favor of appellee-defendant J&L Cargo, Inc. (J&L), claiming that a damage award was improper because the evidence established that J&L had violated a bailment agreement by failing to return a trailer to DBR. DBR raises a number of issues, which we have consolidated and restated as follows: (1) whether the trial court properly awarded damages to J&L, which represented the value of a trailer it had loaned to DBR that was subsequently stolen; (2) whether the trial court erred in offsetting the total judgment award as a result of DBR’s counterclaim against J&L for the loss of use of its trailer; and (3) whether the trial court abused its discretion in awarding mediation sanctions against DBR. Finding no error, we affirm the judgment of the trial court."

Re the Marriage of M.B. v. J.E. (NFP) - "Modifying custody of L.E. and J.E. despite no finding or evidence of a substantial change in circumstances sufficient to warrant a change of physical custody, as required by Indiana Code section 31-17-2-21, constitutes an abuse of discretion. However, given the evidence in the record, we find that a modification of Father’s visitation would serve the best interests of L.E. and J.E. See I.C. § 31-17-4-2 (“The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.”).

"As a result, we affirm in part and reverse in part the trial court’s order and remand to the trial court with instructions to enter an order, granting Father 1) weekly visitation from Tuesday afternoon to Tuesday evening at 6:30 p.m. and Thursday afternoon to Thursday evening at 6:30 p.m.; and 2) biweekly weekend visitation from Friday afternoon to Monday morning.

"Affirmed in part, reversed in part, and remanded with instructions."

NFP criminal opinions today (10):

Antonio Manuel v. State of Indiana (NFP)

Cameron Williams v. State of Indiana (NFP)

Vernon D. Brady v. State of Indiana (NFP)

Ron Banet v. State of Indiana (NFP)

Justin Kinnett v. State of Indiana (NFP)

Maritza Ramos v. State of Indiana (NFP)

Helen C. Young v. State of Indiana (NFP)

Nickolas Trobaugh v. State of Indiana (NFP)

Julie D. Hayden v. State of Indiana (NFP)

Jason Gaboian v. State of Indiana (NFP)