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Wednesday, November 05, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Jeremy W. Combs v. State of Indiana , a 13-page pinion, Judge Vaidik writes:

Following a jury trial, Jeremy W. Combs was convicted of Class D felony operating a vehicle while intoxicated. On appeal, he argues that the trial court abused its discretion in admitting the results of his blood alcohol test into evidence. Specifically, Combs contends that the search warrant used to obtain his blood was not based upon probable cause and that the State failed to lay a proper foundation for admitting the test results because it did not present evidence that the person who drew Combs’s blood acted under proper protocol. We conclude that the search warrant was based upon probable cause but that the State failed to lay a proper foundation for admitting the test results, namely, that Combs’s blood was drawn under the direction of or under a protocol prepared by a physician. Therefore, the trial court abused its discretion in admitting this evidence. However, this error is harmless because the evidence is otherwise sufficient to support Combs’s conviction. We therefore affirm.
In John Edward Skolak v. Linda Skolak, a 12-page opinion, Judge Darden writes:
John Edward Skolak appeals the trial court’s order finding that the State’s action to collect child support arrearage was not untimely. We reverse. * * *

Skolak argues that the applicable statutes of limitation bar the State’s action of August 20, 2007, to determine and collect an arrearage of his court-ordered child support payments. We agree. * * *

The State has conceded that unless Indiana Code sections 31-16-16-2 and 34-11-2-12 apply so as to allow pursuit of its action to collect Skolak’s child support arrearage after August 20, 1987, its action against Skolak is time-barred. Finding that the State’s argument in that regard cannot prevail, we reverse the trial court’s order.

Term. of Parent-Child Rel. of J.M. v. A.S. and A.M., Allen Co. Dept. of Child Services - "Given the evidence presented, including the GAL’s testimony that termination would be in J.M.’s best interests, we conclude that the trial court’s denial of the petition for termination of both Mother’s and Father’s parental rights is clearly erroneous. Accordingly, we reverse the trial court’s determination that Mother’s and Father’s parental rights as to J.M. should not be terminated, and we remand to the trial court with instructions to enter an order terminating the parental rights of Mother and Father. Reversed and remanded. "

Brian A. Staley v. State of Indiana - "In his appellate brief, Staley devotes fifteen pages to explain the differences between the Deputies’ testimonies and his own. However, his argument amounts to nothing more than a request to reweigh the evidence, which we will not do. See Perez, 872 N.E.2d at 212-13. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). In the case before us, we conclude that the jury was presented with sufficient evidence of probative value that Staley was driving intoxicated and endangering the public, the police, or himself.

"CONCLUSION. Based on the foregoing, we conclude that the trial court properly instructed the jury and the State presented sufficient evidence to support Staley’s conviction beyond a reasonable doubt. Affirmed."

In Joseph K. Alvies v. State of Indiana , a 7-page opinion, Judge Riley writes:

Appellant-Defendant, Joseph K. Alvies (Alvies), appeals his conviction for panhandling, a Class C misdemeanor, Ind. Code § 35-45-17-2. We affirm. * * *

Laws targeting street begging have been around for many years, but in the last twenty years, communities have tried to narrowly draw ordinances to target the most bothersome types of street solicitations and give police another tool in their effort to make public areas, particularly downtown areas, safe and inviting. * * *

Rather than ban all panhandling outright, the statute is restricted to only those circumstances when panhandling can be considered especially unwanted or bothersome—at night, around restaurants and sidewalk cafes, at financial institutions or commercial establishments, or by blocking an individual’s path. These represent situations in which people most likely would feel a heightened sense of fear or alarm, or might wish especially to be left alone. Moreover, the statute is limited to the bare request 5for cash or valuables. Under the statute, panhandlers may ply their craft lawfully by holding up a sign that says ‘give me money’ and sing ‘I’m cold and starving,’ so long as one does not voice the words to the effect of ‘give me money.’ * * *

Based on the facts before us, we conclude that Alvies panhandled. He solicited money from Officer Shaughnessy by stepping in front of him in the downtown business district at night and repeatedly requesting money. Therefore, we hold that the trial court properly convicted Alvies of panhandling, a Class C misdemeanor.

NFP civil opinions today (4):

The Health and Hospital Corp. of Marion Co. d/b/a Wishard Memorial Hospital v. Phyllis Long (NFP) - "Following a jury trial in this personal injury action, Appellant-Defendant The Health and Hospital Corporation of Marion County, Indiana, d/b/a Wishard Health Services (“Hospital”) appeals a $245,000 verdict and judgment in favor of Appellee-Plaintiff Phyllis Long. Upon appeal, the Hospital challenges the sufficiency of the evidence to support the verdict by claiming that there was no evidence at trial that the Hospital knew or reasonably should have known of the premises defect causing Long?s injuries. We affirm. "

Carmen R. Posey v. Elkhart County Sheriff's Department (NFP) - "Thus, we conclude that the trial court properly granted summary judgment in favor of the Sheriff’s Department and Drug Task Force, upon a finding that Posey’s tort claims are barred by the statute of limitations and for noncompliance with the notice requirement pursuant to the Indiana Tort Claims Act."

Aleksander Stojceski, et al. v. Northern Indiana Public Svc. Co. (NFP) - "Based on the foregoing, we reverse the trial court’s denial of NIPSCO’s Motion for Judgment on the Evidence with regard to Kiriakopoulos’ damages. With regard to the remaining claims of Stojceski and Prentoski, we find that the trial court properly denied Appellants’ Motion for Judgment on the Evidence concerning comparative fault. Also, we affirm the trial court with regard to its jury instructions on comparative fault and a motorist’s duties, but reverse the trial court with regard to the Res Ipsa Loquitur jury instruction. Affirmed in part, reversed in part, and remanded for further proceedings with regard to Stojceski’s and Prentoski’s claims for damages."

In Re the Paternity of C.W.R. (NFP)

NFP criminal opinions today (5):

Jorge Lopez v. State of Indiana (NFP)

Maurice A. Stantz v. State of Indiana (NFP)

Emily L. Castro v. State of Indiana (NFP)

Phil L. Honer, Jr. v. State of Indiana (NFP)

Maurice A. Stantz v. State of Indiana (NFP)

Posted by Marcia Oddi on November 5, 2008 11:54 AM
Posted to Ind. App.Ct. Decisions