Tuesday, December 21, 2010
Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)
For publication opinions today (3):
In Sherene M. Poling v. State of Indiana, a 10-page opinion, Judge Vaidik writes:
Sherene M. Poling appeals her conviction for Class D felony theft arising from her act of stealing cigarettes from a store. Poling contends that the trial court abused its discretion by denying her request to instruct the jury on criminal conversion as a lesser included offense of theft and that the State committed prosecutorial misconduct during closing arguments by reading Indiana Code section 35-43-4-4(c), which indicates that concealing property offered for sale and removing it from the business premises constitutes prima facie evidence of theft. We conclude that the trial court did not abuse its discretion by refusing to instruct the jury on criminal conversion because there was no serious evidentiary dispute regarding Poling’s intent to deprive the store of the cigarettes’ value or use. Further, Poling has waived her claim of prosecutorial misconduct and thus must show fundamental error. Concluding that there is no error, much less fundamental error, in the State’s reading of Section 35-43-4-4(c), we affirm.In Paternity of D.L.; C.L. v. Y.B., a 14-page opinion in an interlocutory appeal, Judge Crone writes:
Y.B. (“Mother”) gave birth to D.L. out of wedlock. In 1996, Mother brought a paternity action against C.L., who admitted to paternity and was ordered to pay child support. For over ten years, C.L. shared the financial costs of raising D.L. with Mother and exercised regular visitation with D.L. Eventually, C.L. and Mother agreed to genetic testing, which excluded C.L. as D.L.’s biological father. Genetic testing established another man as D.L.’s biological father, and paternity was formally established in that man. At that time, C.L. was behind on his child support payments. He asked the trial court to be relieved from paying the child support arrearage because the paternity test showed that he is not D.L.’s biological father. The trial court denied his request, and C.L. appeals. We conclude that because C.L.’s paternity was vacated due to mistake of fact, his child support, including any arrearage, must be terminated. Therefore, we reverse and remand. * * *ILB: See also this ILB entry from March 18, 2007, headed "Does Avowal of Fatherhood Impose an 'Equitable Paternity'."
[F]or all intents and purposes C.L.’s paternity of D.L. has been disestablished. Indeed, the State argues that a motion to disestablish paternity is not necessary because paternity was established in K.G. in September 2009. If paternity has been established in K.G., it follows that it must be disestablished in C.L. In addition, the trial court entered the paternity tests showing that C.L. is not D.L.’s biological father and also found that C.L. should not be responsible for any further child support for D.L. In effect, the State no longer deems C.L. to be D.L.’s legal father, and C.L. has lost the rights and obligations contingent to that status. As such, we will address C.L.’s argument as to his child support arrearage. * * *
Indiana Code Section 31-14-11-23 provides, “If a court vacates or has vacated a man’s paternity of a child based on fraud or mistake of fact, the man’s child support obligation, including any arrearage, terminates.” (Emphasis added.) To date, no Indiana appellate court has applied Indiana Code Section 31-14-11-23. * * *
As previously mentioned, the application of Indiana Code Section 31-14-11-23 is a matter of first impression. This case permits us to make two observations regarding its application. First, because Section 31-14-11-23 terminates child support, including arrearage, where fraud or mistake of fact occurred in establishing paternity, the trial court’s determination that C.L. is still responsible for his child support arrearage even if he was deceived is inconsistent with the statute. See Tr. Vol. 2 at 13 (trial court explaining to C.L. that he was D.L.’s father “even though you may have, even if what you say is true, that you’ve been deceived by it.”).
Second, the trial court rejected C.L.’s request to terminate his child support arrearage based in part on its observation that C.L. did not “stumble” upon the results of the genetic testing. Id. We note that Section 31-14-11-23 does not require that genetic testing proving nonpaternity be obtained inadvertently. The trial court’s focus on whether C.L. inadvertently discovered his nonpaternity appears to be based on a line of cases beginning with Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990), in which our supreme court concluded that the mother’s former husband was entitled to termination of the child support required by the dissolution decree because the genetic testing that established that he was not the child’s biological father was conducted in the course of ordinary medical care because the child had sickle cell anemia. * * * We observe that Fairrow was decided before the original version of Section 31-14-11-23 was added to the Indiana Code in 1994. Further, Section 31-14-11-23 governs the remedy to be implemented once a man’s paternity has been vacated, not the propriety of vacating paternity. Thus, to the extent that these cases involve a challenge to paternity, they confront an issue different from that addressed in Section 31-14-11-23. Reversed and remanded.
In James McGraw v. State of Indiana , a 5-page opinion, Judge Bailey writes:
McGraw contends that his guilty plea was involuntary because he was under the influence of medications given to him by other jail inmates. He further asserts that he was unduly pressured when the trial judge abandoned her role of neutrality and actively entered into plea agreement negotiations on behalf of the State. * * *NFP civil opinions today (1):
McGraw has not established that the withdrawal of his plea is necessary to correct a manifest injustice. The trial court acted within its discretion by denying McGraw’s motion to withdraw his guilty plea.
NFP criminal opinions today (10):
Posted by Marcia Oddi on December 21, 2010 10:44 AM
Posted to Ind. App.Ct. Decisions