The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)

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Tuesday, June 30, 2009

Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)

For publication opinions today (8):

Francis W. Splittorff v. Jerry Aigner, Pam Aigner and Beverly Childs - "Splittorff cannot prevail on his statutory claims for relief. Neither statute upon which Splittorff relies was written in contemplation of a former owner who holds over after title has passed under a tax sale deed. And Splittorff’s other contentions on appeal amount to a request that we reweigh the evidence, which we will not do. There is evidence in the record to support the trial court’s damages award. Accordingly, we affirm the trial court."

Helene C. Uhlman v. Rodrigo R. Panares, M.D., et al - "We conclude as a matter of law that Uhlman was an at-will employee when she served as Administrator of the health department. She has pointed to no evidence in the record to show that she was employed for a definite term or that she provided adequate consideration to convert the presumptively at-will employment to one in which she could only be terminated for good cause. We further conclude as a matter of law that Dr. Panares, as Health Officer, had authority to terminate Uhlman as Administrator. The legislative scheme in existence when Uhlman was terminated gave the Health Officer executive authority to make employment decisions. Thus, the legislature accorded broad discretion regarding employment decisions to the Health Officer, as executive officer of the Department. We conclude that the Health Officer‟s authority to make employment decisions includes the authority to terminate employees without the approval of the Board. And, as an at-will employee, Uhlman could be terminated from her employment for any cause or for no cause at all. See Trinity Baptist Church v. Howard, 869 N.E.2d 1225, 1228 (Ind. Ct. App. 2007), trans. denied. The trial court did not err in granting partial summary judgment to Defendants."

Andrew King v. State of Indiana is a 27-page opinion by Judge Crone dealing with online child solicitation. The issues are set out as:

I. Did the trial court abuse its discretion in admitting certain evidence? [ILB - The opinion discusses admission of internet evidence in depth here]

II. Is impossibility a defense to the crime of attempted dissemination of matter harmful to minors?

III. Did the State establish the corpus delicti of the crimes?

Re "impossibility", the Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana is referenced 21 times in the opinion; Aplin v. State is cited 34 times. The Court notes in footnote 13 - "Our supreme court denied transfer in Gibbs on May 14, 2009. Justice Dickson voted to grant transfer." Footnote 14 reads: "Justices Dickson and Sullivan voted to grant transfer in Aplin." [See this Jan. 4, 2009 ILB entry headed "Rulings target Internet sex stings: Appeals court says there must be an actual victim."] The Court concludes Part II:

We agree with Judge May [who dissented in Gibbs] that impossibility is not a defense to the crime of attempted dissemination of matter harmful to minors and believe that the legislature could not have intended to foreclose prosecution under Indiana Code Section 35-49-3-3 when the defendant erroneously believes the victim is a minor. Both Indiana Code Section 35-41-5-1(b) and our supreme court's interpretation of the statute in Zickefoose support this conclusion. Here, King intended to send a photo of an exposed penis to a fifteen-year-old via the internet and did all he believed was necessary to complete the offense of dissemination of matter harmful to minors. He failed to complete the offense only because it was impossible under the circumstances, i.e., because Detective Odier was not a minor. Consequently, we affirm his conviction for attempting that crime.

Jonathan Parahams Jr. v. State of Indiana - "Parahams does not argue that the variance between the charging information and the proof at trial misled him in the preparation of his defense. Moreover, on the record before us, we cannot conclude that the variance prejudiced Parahams. Parahams's one charged act of resisting was fleeing from a police officer after he was told to stop. The probable cause affidavit attached to the charging information listed the five officers that were present at the scene. The State proved that one of those officers, Officer Chicowicz, ordered Parahams to stop when he began to flee. For all of these reasons, we cannot conclude that the variance was fatal to the State‟s case. The State therefore presented sufficient evidence to prove that Parahams resisted law enforcement and we affirm his Class A misdemeanor resisting law enforcement conviction."

K.M.K. v. A.K. and Jeffry G. Price - "Although we can discern no basis in the record for an award of attorney fees, in light of the statutory language allowing for attorney‟s fees in any civil case where the trial court deems such an award to be necessary or proper, we conclude that Price is not barred from requesting attorney‟s fees in the instant matter."

Tanette Kinnon v. State of Indiana - "On July 7, 2005, the Indiana Office of Inspector General received a complaint from the Office of Management and Budget regarding mileage reimbursements for State employees during the fiscal year of July 1, 2004 to June 30, 2005. After conducting an audit, the Office of Management and Budget referred to the Office of Inspector General the names of the ten State employees who submitted the highest reimbursement claims. Kinnon was number one on the list. For the time period the Office of Inspector General initially examined, July 1, 2004 until June 30, 2005, Kinnon reported 95,869 miles, which translated into $32,595.69 in reimbursements. Although four homemakers in Kinnon‟s district were all in the top ten for mileage statewide, Kinnon‟s amount was about three times that of the next-highest claim."

Regunal Dowell v. State of Indiana - "The State cross-appeals, arguing that Dowell‟s appeal must be dismissed because he failed to timely file his underlying motion to correct error, thereby depriving this Court of jurisdiction to entertain his appeal. Concluding that the prison mailbox rule applies, we determine that Dowell timely filed his motion to correct error. We also conclude that the post-conviction court did not err by denying Dowell‟s petition for post-conviction relief without an evidentiary hearing. We affirm."

N.S., Alleged to be CHINS; T.S. & S.B. v. IDCS - "Having concluded that Indiana Code section 31-40-3-2 clearly states that the fiscal body of the county shall appropriate money for use by the courts in providing GAL or CASA services, and that Indiana Code section 33-24-6-4 supports the proposition that the burden of financially supporting GAL and CASA programs lies with the county, we conclude that the trial court erred in ordering DCS to pay the fees associated with the services provided by the GALs in the instant matters. In addition, we recognize the distinct roles of each of our three branches of government and thus leave to the legislative branch the question of whether, in light of the trend toward State funding of child welfare costs, the costs associated with GALs and CASAs should be shifted to the State. Under our current statutory scheme, however, it is clear that the burden of paying for services rendered by GALs or CASAs should be attributed to and paid for by the county. The judgment of the trial court is reversed, and this matter is remanded for further proceedings."

NFP civil opinions today (6):

Term. of Parent-Child Rel. of D.G., et al; S.K. & C.G., et al v. IDCS (NFP)

The Invol. Term. of the Parent-Child Rel. of D.H.; B.M. v. Marion Co. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of J.D.; B.D. v. IDCS (NFP)

A.P. v. Indiana Dept. of Child Svcs. (NFP)

Scott County Area Plan Commission v. Townes Half-Way House, Inc. (NFP)

Jeff Canen v. Fisher Vorhis Draper Chapel (NFP)

NFP criminal opinions today (18):

Jarrode E. Phillips v. State of Indiana (NFP)

Troy A. Wright v. State of Indiana (NFP)

Loyce Williams v. State of Indiana (NFP)

Lawaine Smith v. State of Indiana (NFP)