The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

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Tuesday, February 09, 2010

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In Roger L. Morris v. State of Indiana , a 9-page opinion, Judge Crone writes:

Roger L. Morris appeals his conviction for class D felony theft and habitual offender finding. We find the dispositive issue to be whether the trial court erred by failing to instruct the jury on conversion as a lesser-included offense of theft. We reverse and remand for retrial. * * *

In our view, Morris’s case is one which illustrates the elusive difference between the crimes of theft and conversion as laid out by our legislature. Here, Morris entered the J.C. Penney store and stuffed clothes into a black plastic garbage bag, thus exerting control over the merchandise. Department and clothing stores generally allow customers to carry merchandise which has not yet been purchased throughout the store as they shop. In fact, customers are expected to move about the store while selecting items to try on in a fitting room or while simply making a decision about whether to make a purchase. Moreover, a customer might place the unpurchased items in a cart or shopping bag provided by the store. These are all examples of exerting authorized control over store property. On the other hand, if someone moves or hides unpurchased items within the confines of a store with no intent or ability to purchase them, then the person exerts unauthorized control over that property. In this case, Morris had no cash, checks, or credit cards on his person and thus no way to purchase any of the clothing in the garbage bag. Clearly, he exerted unauthorized control over those items and does not dispute that fact. * * *

Also, we think that if the criminal conversion and theft statutes are indeed one and the same, then they violate the Proportionality Clause, which is contained in Article 1, Section 16 of the Indiana Constitution. * * *

In sum, if criminal conversion as a class A misdemeanor and theft as a class D felony are indeed two different crimes as outlined by our legislature, then the trial court abused its discretion by failing to instruct the jury as to the lesser-included offense of conversion. If the elements of conversion and theft have no practical difference, then the rule of lenity and/or the proportionality clause of the U.S. Constitution would entitle Morris to have the jury instructed on both crimes. Reversed and remanded for retrial.

RILEY, J., concurs.
VAIDIK, J., concurs in result.

In Cathy A. Crawley v. State of Indiana, a 13-page, 2-1 opinion, Judge Vaidik writes:

Cathy Crawley appeals her conviction for Class C felony operating a motor vehicle after driving privileges are forfeited for life. Although nobody witnessed Crawley operate the motor vehicle, we conclude that the State presented sufficient circumstantial evidence from which the trier of fact could conclude beyond a reasonable doubt that Crawley operated the motor vehicle. We therefore affirm her conviction. * * *

When taken as a whole, the substantial circumstantial evidence supports the trial court’s inference that Crawley operated the car, ultimately driving it into Jones’ pool. Shortly after the accident, Crawley was found alone and seriously impaired at the scene. Multiple times she referred to the motor vehicle as “my car.” She initially lied about who she was with but eventually admitted to being alone, and she attempted to evade contact with the police. We therefore affirm Crawley’s conviction for operating a motor vehicle after driving privileges are forfeited for life. Affirmed.

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 12] I respectfully dissent. The majority makes light of the fact that no eye witness ever placed Crawley in the driver’s seat of the car. Appellate cases dealing with the sufficiency of the evidence to prove operation of a vehicle usually include fact patterns where a witness has found the defendant in the driver’s seat of the vehicle alleged to have been operated. * * *

I believe that the evidence, taken together, creates a probability that Crawley operated the vehicle, but this probability is less than beyond a reasonable doubt. Although we often state that it is not our function to reweigh the evidence, when we compare the evidence presented by the State here to the evidence in Parks, Clark, and Hiegel it is a break from our precedent to affirm Crawley’s conviction.

NFP civil opinions today (6):

Michael J. Brown v. Debra Wyandt (NFP) - "Debra Wyandt, individually and in her capacity as trustee of the Debra Wyandt Revocable Trust (collectively “Wyandt”), brought suit in Hamilton Superior Court against Michael J. Brown, individually and in his capacity as trustee of the Michael J. Brown Revocable Trust (collectively “Brown”). The parties eventually entered into an agreed order (the “Agreed Order”) pending final resolution of the litigation between them. The trial court subsequently granted Wyandt’s request for partial distribution pursuant to the Agreed Order. Brown appeals and argues that the trial court erred in granting Wyandt’s request. We affirm."

A & M Farm Center, Inc. v. AGCO Finance, LLC f/k/a Agricredit Acceptance Co. (NFP) - "We acknowledge that our supreme court has held: “if one of two innocent parties must suffer due to a betrayal of trust – either the principal or the third party – the loss should fall on the party who is most at fault. Because the principal puts the agent in a position of trust, the principal should bear the loss.” [cites omitted] A jury may very well determine that A&M is the most at fault and should suffer the loss here. However, a jury may alternatively determine that, despite the fact that Leek was, no doubt, processing AGCO agreements in his capacity as vice-president and manager of A&M, several key differences exist in the personal transactions he conducted with AGCO, which we highlighted and discussed. Because genuine issues of material fact exist regarding whether Leek had actual, apparent, or inherent authority to enter into the Cable Tech agreements with their full recourse provisions on behalf of A&M, we conclude that the trial court erred by granting summary judgment to AGCO. We reverse and remand."

Elvera D. Nicholson (formerly Defelice) v. Carlee, Inc. d/b/a Leroy's Hot Stuff (NFP) - "While we are sensitive to an employer “playing fast and loose with wage obligations,” St. Vincent Hospital., 766 N.E.2d at 706 (Boehm, J., concurring), that is not what occurred here. Carlee paid Nicholson her final wages as soon as her whereabouts became known. Nicholson has failed to meet her burden to demonstrate that Carlee violated the Wage Payment Statute. Thus, she is not entitled to the penalties outlined by Indiana Code Section 22-2-5-2.4"

Richard and Susan Reger v. City of Auburn Board of Zoning Appeals (NFP) - "Richard and Susan Reger (“the Regers”) sought a writ of certiorari in the DeKalb Superior Court challenging the City of Auburn's decision to issue permits to an adjoining landowner to make improvements to the duplex on the property. The trial court denied and dismissed the writ after concluding, in part, that the Regers had not established that they were an aggrieved party, and therefore, that they lacked standing to appeal the issuance of the permits. We address only the following dispositive issue: whether the Regers lacked standing to challenge the issuance of the permits. We affirm. * * *

"In this case, the Regers failed to present any evidence that would establish that the issuance of the permits to Weinbrenner infringed upon a legal right of the Regers, which resulted in a pecuniary injury. For this reason, we conclude that the trial court properly concluded that the Regers were not aggrieved parties, and therefore, that they lacked standing to challenge the BZA's decision."

Three Little Birds, LLC v. Stone Manor Investment Corp., Linda Beacham and Daniel Hanley (NFP) - "In sum, we conclude that summary judgment is precluded on the claims relating to the scope of the express easement, the existence of an implied easement of necessity, and civil and criminal trespass prior to a determination regarding ownership of the strip of land in question and that the trial court properly granted summary judgment in favor of Stone Manor on Three Little Birds's claim of tortious interference with contract. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings."

Linda K. Cecil v. Rex W. Cecil (NFP) - "Linda K. Cecil (“Linda”) appeals the trial court's order denying her petition to hold her ex-husband, Rex W. Cecil (“Rex”), in contempt and raises the following issue: whether the trial court erred when it concluded that Rex was not in contempt for failing to timely refinance certain real estate in accordance with the court-ordered deadline. We affirm."

NFP criminal opinions today (11):

Toby E. Vautaw v. State of Indiana (NFP)

D.G. v. State of Indiana (NFP)

Don Chavis v. State of Indiana (NFP)

William H. Carnahan v. State of Indiana (NFP)

Danny Stewart v. State of Indiana (NFP)

Jeremy Jamison v. State of Indiana (NFP)

Larry R. Bradley v. State of Indiana (NFP)

Walter Hawkins v. State of Indiana (NFP)

Jonathan R. Crane v. State of Indiana (NFP)

Brandon Serna v. State of Indiana (NFP)

Timothy Taylor v. State of Indiana (NFP)