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Thursday, April 14, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

Diane Werner v. Gregory Werner is a 23-page, 2-1 must-read opinion for those practicing family law. A sample from p. 20 of Judge Crone's majority opinion:

The dissent insists that we should not recognize Mother's waiver of her right to challenge the best interests standard agreed to by the parties and applied by the trial court because, in doing so, we are ignoring the importance a stable home plays in the lives of children. To the contrary, the purpose of the trial court's decision here was to allow enough time to gather sufficient information before entering a final custody determination on less than complete information that could not be altered absent a substantial change in circumstances. The court could have delayed ruling or bifurcated these proceedings. Instead, with the parties consent, the trial court entered an order which allowed these children a period of adjustment rather than making a snap decision as to their best interests. The trial court exercised extreme thoughtfulness and restraint in this regard and, we believe that the trial court's deviation from the general modification standard served the purpose of promoting true long term stability for these children. This is the cornerstone of our statutory law.
Judge Kirsch's dissent:
Were this a case involving the property rights of Diane Werner and Gregory Werner, I would join my colleagues in affirming the trial court's decision on the basis that Diane waived her right to appeal the trial court's ruling by failing to make a timely objection to the trial court's decision to use an improper decisional standard.

It is not such a case.

Rather, the case involves not only the parental rights of the parties, but also the fundamental rights of their children to a stable home. The importance of such stability is the policy that underlies Indiana Code Section 31-17-2-21. To give effect to this policy, our General Assembly directed that Indiana's courts modify their custody decisions only upon a showing of a substantial change in one of the enumerated factors. Because the affected interests of such decisions extend beyond the interests of the parents, parents cannot waive this standard.

The trial court committed clear error in ignoring the express statutory directive. I would reverse its decision and remand for further proceedings.

In Larry T. Bass v. State of Indiana , a 13-page opinion, Judge Vaidik writes:
Larry T. Bass appeals his convictions and aggregate sentence of seven years with two years suspended for Class C felony child molesting and Class C felony attempted child molesting. Bass contends that: (1) the trial court erred by denying his motion for a directed verdict, (2) the State committed prosecutorial misconduct during closing arguments by referring to him as a pervert and explaining why and how child molesters target thirteen-year-old children, and (3) his sentence is inappropriate. We conclude that touching a child’s breasts or genitals is not required to sustain a child molesting conviction under Indiana Code section 35-42-4-3(b). The trial court did not err by denying Bass’s motion for a directed verdict. Further, because Bass has waived his claim of prosecutorial misconduct, he must show fundamental error. There is no fundamental error. Finally, Bass has failed to persuade us that his sentence is inappropriate. We therefore affirm.
In Gloria Benefield v. State of Indiana , a 23-page opinion, Judge Crone writes:
Gloria Benefield presented a document at a job interview showing that she was certified as a Qualified Medication Aide (“QMA”). It was later discovered that she was not QMA certified. Benefield was charged with and convicted of class C felony forgery and with being an habitual offender. She appealed, arguing, inter alia, that jury instruction 6 improperly defined “defraud” and created fundamental error. Another panel of this court concluded that although jury instruction 6 improperly defined “defraud,” it did not rise to the level of fundamental error.
Benefield petitioned for post-conviction relief, which the post-conviction court denied. She appeals, arguing that the post-conviction court erred in finding that her trial counsel did not provide ineffective assistance by not objecting to testimony regarding her knowledge as to whether she was QMA certified or to jury instruction 6. We conclude that trial counsel‟s decision not to object to the testimony was part of an objectively reasonable trial strategy and therefore does not constitute ineffective assistance. In addition, we conclude that the decision on direct appeal that jury instruction 6 did not result in fundamental error does not preclude our consideration as to whether the failure to object to jury instruction 6 created prejudice sufficient to that required for a finding of ineffective assistance of trial counsel. However, we conclude that Benefield fails to carry her burden to establish prejudice. According, we affirm the denial of her petition for post-conviction relief.
NFP civil opinions today (3):

Judith Silverman and Morris Silverman v. Arden Johnson, et al. (NFP)

Leonard J. Laraway v. Cathy A. (Laraway) Fisher (NFP)

Paternity of T.B.; C.B. v. C.K. (NFP)

NFP criminal opinions today (3):

Warren Parks v. State of Indiana (NFP)

Dennis Meadows v. State of Indiana (NFP)

Otis Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on April 14, 2011 10:43 AM
Posted to Ind. App.Ct. Decisions