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Tuesday, March 08, 2011

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In Mark Lesh v. Richard Chandler and Marilyn Chandler, a 20-page opinion, Judge May concludes:

There was evidence presented to support the findings contested by Lesh, and those findings supported a judgment in favor of the Chandlers. We accordingly affirm the trial court's conclusion that Lesh's actions amounted to a private nuisance. We reverse the trial court's decision to extend the protective order dated April 26, 2006, because the proceedings on which that order was based were dismissed with prejudice by stipulation of the parties on September 28, 2006. As the protective order was not in effect after September 28, 2006, the finding that Lesh violated its terms is reversed. We remand for redaction of the language in Judgment Items C and G regarding the protective order. Finally, we affirm the permanent injunction entered against Lesh, the contempt finding against Lesh, and the damages awarded in favor of the Chandlers.
In Anna Quimby v. Becovic Management Group, Inc. , a 6-page opinion, Judge May writes:
The trial court did not err in dismissing Quimby’s action for failure to state a claim on which relief could be granted, as she had assigned her claim and was no longer the real party in interest.
In Lisa Gray v. State of Indiana , a 10-page, 2-1 opinion, Judge Kirsch writes:
Lisa Gray appeals her conviction of possession of marijuana,1 as a Class A misdemeanor, contending that there is insufficient evidence that she constructively possessed the marijuana. We reverse. * * *

The record before us contains no evidence that Gray made any incriminating statements or attempted to flee. In fact, Gray came willingly to the door, appeared genuinely shocked when she learned of the reason for the visit, and signed a written consent to permit the officers to search her apartment. Additionally, the officers provided no testimony that the premises were being used to manufacture drugs. The officers testified that the marijuana was found in plain view, under a coffee table that was situated in front of the two juvenile males. However, there was no evidence that Gray was near the marijuana, could see the drugs, or was aware that marijuana was in her home. Finally, there was no testimony that any of Gray‟s possessions were found in close proximity to the marijuana. The officers only established that marijuana was found in a communal room of Gray‟s home, under a coffee table, next to which two male visitors were sitting, and that no one declared ownership of the drugs. From this evidence, the State failed to prove beyond a reasonable doubt that Gray constructively possessed the marijuana. * * *

CRONE, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins, at p. 7 of 10] I cannot agree that the State failed to produce sufficient evidence to establish that Gray constructively possessed the marijuana found in plain view in her apartment. Consequently, I respectfully dissent.

It is well-settled that "conviction for possessory offenses does not depend on the accused being 'caught red-handed' in the act by the police."

In Anderson Property Management v. H. Anthony Miller, Jr., a 10-page opinion, Judge Kirsch writes:
Anderson Property Management, LLC (“Anderson”) appeals the trial court’s judgment ordering enforcement of the parties’ mediated agreement in a declaratory judgment action brought by H. Anthony Miller, Jr., LLC (“Miller”) arising from a sale of commercial real estate in Warsaw, Indiana. We reverse in part, vacate in part, and remand with instructions.
NFP civil opinions today (3):

Town of Highland and Highland Sanitary District v. Lee Lieberman, et al. (NFP)

L.H. v. Review Board (NFP)

In the Matter of J.C., Alleged to be CHINS; K.M. v. IDCS and Child Advocates (NFP)

NFP criminal opinions today (9):

Robert D. Baxton, Jr. v. State of Indiana (NFP)

Joseph M. Ferry v. State of Indiana (NFP)

Glen LeRoy Rusher v. State of Indiana (NFP)

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

Anthony Scott v. State of Indiana (NFP)

Vincent Demus v. State of Indiana (NFP)

Mark Kennedy v. State of Indiana (NFP)

Devon Walton v. State of Indiana (NFP)

Willie J. Herman, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on March 8, 2011 01:16 PM
Posted to Ind. App.Ct. Decisions