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Wednesday, November 04, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

For publication opinions today (2):

In Robin Lovitt v. State of Indiana , a 10-page opinion, Judge Mathias writes:

Concluding that the trial court acted within its discretion when it excluded the testimony of Lovitt’s witness, but that his Class D felony maintaining a common nuisance conviction is not supported by the evidence, we affirm in part, reverse in part and remand. * * *

However, the broader question is the intent of the statute as a whole. Zanders v. State, 800 N.E.2d 942, 944 (Ind. Ct. App. 2003). We believe that the statute is intended to apply to an offender who uses his or her vehicle to facilitate manufacture, sale, delivery or to finance the delivery of a controlled substance, not to an offender who has personal use quantities of controlled substance(s) on his or her person or even loose in the vehicle. To hold otherwise would make every drug arrest after a traffic stop subject to an additional charge of maintaining a common nuisance. We do not believe this to be the intent of our General Assembly.

In Michael Jackson v. State of Indiana (NFP), a 6-page opinion, issue #1 is: "Whether the trial court erred and violated Jackson’s right to a fair trial when it ordered that Jackson was not permitted to take copies of the jurors’ questionnaires with him to jail." Judge Najam concludes:
In sum, Jackson does not explain what use he would have made of the jurors’ questionnaires had he had access to them prior to trial. He has not demonstrated that the trial court’s order is in conflict with Jury Rule 10 or the discovery rules. And Jackson has not shown that he suffered any prejudice or was denied a fair trial as a result of the trial court’s order. * * *

KIRSCH, J., concurs in result in Part I, without separate opinion, and concurs in Parts II and III.
BARNES, J., concurs.

[ILB note] Of related interest here are two ILB entries that appear to be right on point, from March 25th and March 26th, 2009.

NFP civil opinions today (2):

Annette Baker v. Heartland Food Corporation (NFP) - "Whether the herniation was caused by her work-related activity or was due to an underlying condition, as Heartland alleged, has not been resolved by the evidence. Without any such evidence, we cannot say that the Board erred when it determined that her injury was not sustained by accident arising out of and in the course of her employment. Affirmed."

In Clayton C. Miller v. City of Indianapolis, et al. (NFP), a 16-page opinion involving a zoning variance in an Indianapolis historic neighborhood, Judge Friedlander writes:

This case involves the grant of a zoning use variance in favor of Larry Jones and Teagen Investments II, LLC (collectively, Jones) by the Indianapolis Historic Preservation Commission (the Commission) for property located at 901 North East Street (the Real Estate) in the historic residential neighborhood of Chatham-Arch near downtown Indianapolis. Clayton C. Miller, one of the remonstrators below and a homeowner whose property adjoins the Real Estate, appeals the grant of the use variance, which was affirmed by the trial court. We affirm.

Although the Real Estate is zoned D-10 for residential use, it has not been put to such a use since at least 1971. Rather, a forty-bed nursing home was built on the Real Estate by a former owner in 1971, pursuant to a zoning use variance issued that same year. * * *

The Chatham-Arch neighborhood, however, is not exclusively residential and has a number of non-contributing structures, several of which are on East Street along the western boundary of the neighborhood. While the CAMA Plan offers a site-specific recommendation for redevelopment on the Real Estate, as well as recommendations for other non-contributing structures, the plan specifically provides that such recommendations “are meant to guide, not mandate, and are to be used as tools in developing actions and strategies for future decisions.” * * *

It is clear from the record before us that the Commission carefully considered the proposed variance. The Commission‟s decision to grant the variance was neither arbitrary, capricious, nor an abuse of discretion.

NFP criminal opinions today (2):

Quaterris Franklin v. State of Indiana (NFP)

Michael C. Trimble v. State of Indiana (NFP)

Posted by Marcia Oddi on November 4, 2009 11:45 AM
Posted to Ind. App.Ct. Decisions