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Thursday, March 24, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In In the Matter of the Paternity of G.H.; L.R. v. N.H., a 7-page opinion, CJ Robb writes:

L.R. (“Father”) appeals the trial court’s order finding him in contempt for failure to pay child support. For our review, Father raises a single issue which we restate as whether the evidence supports a finding that his failure to pay child support was willful. Concluding the evidence does not support a finding that Father willfully failed to pay, and therefore the trial court abused its discretion by finding him in contempt, we reverse. * * *

A child support order is enforceable by contempt only if the parent has the financial ability to pay the support due and his or her failure to pay is willful. Pettit v. Pettit, 626 N.E.2d 444, 447-48 (Ind. 1993). In challenging the trial court’s finding that he was in contempt, Father concedes that his child support payments were irregular and not current. He argues, however, that his failure to pay was not willful because he paid while employed, thereafter made diligent efforts to find employment, and began to pay again when he started receiving unemployment benefits. We agree.

In Jeffrey Wooten v. State of Indiana , a 13-page opinion, Judge Najam writes:
Jeffrey Wooten appeals the trial court’s revocation of his probation. Wooten asserts that he was not on probation at the time of the trial court’s order and, therefore, he is being wrongfully imprisoned. The State asserts that this court has no jurisdiction over Wooten’s appeal because Indiana Post-Conviction Rule 2 does not permit belated appeals from the revocation of probation. We agree with the State. Further, there is substantial evidence in the record that supports the trial court’s conclusion that Wooten was properly before it for a probation revocation proceeding. Thus, we also decline Wooten’s invitation to exercise jurisdiction under our inherent authority to hear appeals that present a matter of great public interest. Dismissed.
In Michael E. Cohee v. State of Indiana , an 8-page opinion, Judge Najam writes:
Michael E. Cohee brings this interlocutory appeal from the trial court's denial of his motion to suppress evidence. Cohee raises a single issue for our review, which we restate as follows: whether he was entitled to be read his Miranda rights or to exercise his right to counsel before he submitted to a chemical test pursuant to Indiana Code Section 9-30-6-2(a). We affirm. * * *

Cohee's argument on appeal is that, once Officer Miller told him that he was “under arrest,” Officer Miller was required to advise him of his rights under the Fifth Amendment to the U.S. Constitution and Article I, Section 13 of the Indiana Constitution before Officer Miller could ask him to consent to a blood test under Indiana Code Section 9-30-6-2(a). In other words, Cohee argues that he was entitled to be read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (Ind. 1975), in order to avoid the potential of self-incrimination. It is undisputed that Officer Miller did not read Cohee any of those rights after she informed him that he was under arrest.

Cohee's federal argument is premised on his assumption that the chemical test sample he provided was self-incriminating evidence protected under the Fifth Amendment. It has long been the law that that is not the case. In 1966, the Supreme Court of the United States considered an identical claim from a defendant in a driving-under-the-influence prosecution. The Court rejected his claim and expressly held that

the privilege [against self-incrimination] protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.
Schmerber v. California, 384 U.S. 757, 761 (1966). * * *

Remarkably, neither party on appeal discusses Schmerber or Davis. * * *

In sum, Cohee's assertions that he was entitled to his rights under either Miranda or Pirtle fail as a matter of law. Thus, the trial court properly denied his motion to suppress the evidence against him, and we affirm the court's judgment.Affirmed.

NFP civil opinions today (4):

Matthew Riddle v. Lee Rimer (NFP)

Anthony Guzman v. C.K. Gray, et al. (NFP)

Charles E. Justise, Sr. v. Jim Basinger, et al. (NFP)

S.R. v. Review Board (NFP)

NFP criminal opinions today (5):

Steven Green v. State of Indiana (NFP)

Flavio Gonzalez v. State of Indiana (NFP)

Ricardo Rico v. State of Indiana (NFP)

Matthew L. Skinner v. State of Indiana (NFP)

Francheska McGraw v. State of Indiana (NFP)

Posted by Marcia Oddi on March 24, 2011 11:59 AM
Posted to Ind. App.Ct. Decisions