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Friday, May 22, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Jeffrey Mosley v. Julie Mosley , a 5-page opinion, Judge Kirsch writes:

Husband argues that the trial court abused its discretion when it issued its provisional order and assigned certain of the marital debt obligations to him. * * *

As previously stated, a trial court has broad discretion in issuing provisional orders. I.C. § 31-15-4-8; Wendorff, 366 N.E.2d at 704. Although we may review such interlocutory orders, we will only disturb the trial court’s order where there has been a clear abuse of discretion. * * * A provisional order is merely an interim order in place during the pendency of the dissolution proceedings, which terminates when the final dissolution decree is entered. I.C. § 31-15-4-14. Any disparity or inequity in a provisional order can -- and should -- be adjusted in the trial court’s final order.

In the present case, we conclude that the trial court was within its discretion when it issued its provisional order. It ordered Husband to be responsible for the vehicle of which he was given possession, the Best Buy account, his own rent, and half of the mortgage obligations on the marital residence. He was only obligated to pay the mortgage on the rental property if the tenant failed to pay the monthly rent. The trial court did not abuse its discretion.

In State of Indiana v. Robert Richardson, a 15-page opinion, Judge Mathias writes:
Robert Richardson (“Richardson”) filed a motion to suppress evidence seized after he was initially stopped for a seatbelt violation. The Marion Superior Court granted Richardson's motion. The State of Indiana appeals and argues that the trial court erred in granting Richardson's motion. We reverse. * * *

Traffic stops based upon a seatbelt violation are limited by the very statute that authorizes them. Pursuant the Seatbelt Enforcement Act, “a vehicle may be stopped to determine compliance with [the seat belt] chapter.” I.C. § 9-19-10-3.1. The next sentence of this section limits police authority in such situations: “However, a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle, may not be inspected, searched, or detained solely because of a violation of this chapter.” * * *

In the present case, we have an admittedly valid initial stop for a violation of the Seatbelt Enforcement Act. Officer Eastwood did not exceed the permitted statutory limits of a seatbelt stop by asking Richardson for his license or registration. * * *

Here, after the initial seatbelt stop, Officer Eastwood noticed a very large, unusual object in Richardson's pocket. We do not think it unreasonable for her to have merely asked Richardson what this object was. We therefore conclude that Officer Eastwood's inquiry regarding the large, unusual object in Richardson's pocket did not exceed the scope of police behavior permitted under the Seatbelt Enforcement Act, Article 1, Section 11, or the Fourth Amendment. * * *

We acknowledge that the information Officer Eastwood received from headquarters was, in fact, incorrect. At the hearing on the motion to suppress, the State admitted that Richardson did not, in fact, have a prior felony conviction. Thus, Officer Eastwood's arrest of Richardson was ultimately improper. The question then becomes, should the evidence found as a result of this arrest, which was later determined to be improper, be suppressed under the exclusionary rule?

A similar question was before the United States Supreme Court in the recent case of Herring v. United States, 129 S.Ct. 695 (2009). * * *

Here, as in Herring, a police officer was given information which led to the arrest of the defendant. In both cases, this information was later discovered to have been incorrect, and the arrest of the defendant was therefore improper. But, as in Herring, this is not enough, by itself, to justify suppression of evidence discovered as a result of the arrest. The mistake here, like in Herring, appears to have been a “police mistake” which was “the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements[.]” 129 S.Ct. at 704. Without any indication that the police were reckless in maintaining their records or knowingly made false entries in order to justify false arrests, exclusion is not justified. See id. We therefore reverse the trial court's conclusion that the evidence seized as a result of Richardson's arrest was subject to suppression.

Stephan M. Gallaher v. State of Indiana - "Gallagher argues that the State failed to rebut his statutory defense under Indiana Code section 35-48-4-16(b). He claims that the State failed to rebut his defense under subsection (b) that no children were present at the school at the time of the drug transaction and that he was only within 1,000 feet of the school for a brief period of time. Both parties seem to agree that the record established that no children were present at or within 1,000 feet of St. John's school at the time of the transaction as it transpired at approximately 3:00 a.m., and St. John's is a day school.

"The term “briefly” is not defined by Indiana Code section 35-48-4-16. Undefined words in a statute are usually given their plain, ordinary, and usual meaning. Weideman v. State, 890 N.E.2d 28, 32 (Ind. Ct. App. 2008) (citing Ind. Code § 1-1-4-1(c)). “Courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term.” Id. (citing Stratton v. State, 791 N.E.2d 220, 224 (Ind. Ct. App. 2003), trans. denied). The word “brief” is relevantly defined as “short in duration, extent, or length,” while “briefly” is relevantly defined as “short in time.” MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 143 (10th ed. 1994).

"Indiana Code § 35-48-4-1(b)(3)(B) elevates dealing in cocaine or narcotics to a class A felony if the transaction occurs within 1,000 feet of, among other things, school property. The purpose of this statute is to protect children. Similarly, the General Assembly sought fit to provide a defense that the defendant was only briefly within 1,000 feet of school property and no children were present when the transaction took place, thereby lowering the offense to a class B felony, because the reason for the harsher penalty – presence of children or a significant risk thereof – did not exist.

Here, it is uncontroverted that the transaction lasted, at most, for twenty minutes, took place at 3:00 a.m., and took place in a location where no children were present. Convicting Gallagher of a class A felony does not comport with the purpose of the statute. Here, as a matter of law, the transaction was brief and, consequently, the State failed to rebut Gallaher's defense. While under a different set of circumstances, a twenty-minute transaction could fall under the category of a class A felony because of the proximity of children or the potential for contact with youth, that is not the case here. Therefore, we reverse and remand with instructions to enter a conviction for dealing in a schedule II controlled substance as a class B felony and resentence Gallagher accordingly."

NFP civil opinions today (1):

Alissa McDivitt v. Matthew McDivitt (NFP)

NFP criminal opinions today (6):

Michelle Bolden v. State of Indiana (NFP)

Ronald Barger v. State of Indiana (NFP)

Cynthia K. Long v. State of Indiana (NFP)

Larry Horne v. State of Indiana (NFP)

Dajuan Nelson v. State of Indiana (NFP)

Juan Allen v. State of Indiana (NFP)

Posted by Marcia Oddi on May 22, 2009 11:51 AM
Posted to Ind. App.Ct. Decisions