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Tuesday, May 31, 2011

Ind. Decisions - Court of Appeals issues 6 today (and 29 NFP) [Corrected]

[Correction: The Barocas opinion, which the ILB originally had mistakenly listed as a NFP, has been added to the top of the FP opinions, and summarized.]

For publication opinions today (6):

In Trinda Barocas v. State of Indiana , an 8-page opinion, Judge May writes:

Trinda Barocas, while employed as a special education teacher, “flicked” a student's tongue with her finger. At trial, she asserted she was not guilty because teachers have qualified immunity for reasonably necessary disciplinary acts. The trial court convicted her of Class B misdemeanor battery. As the State did not disprove her defense, we reverse. * * *

A person is generally “justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” Ind. Code § 35-41-3-1. This statute has been interpreted to provide legal authority for a parent to engage in reasonable discipline of her child, even if such conduct would otherwise be battery. State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008), reh’g denied. The same justification has been extended to teachers, as long as the teacher acts within the limits of her “jurisdiction and responsibility as a teacher.” Id. * * *

[T]to sustain a conviction of battery where a claim of parental privilege has been asserted, the State must prove either: (1) the force the parent used was unreasonable, or (2) the parent's belief that such force was necessary to control her child and prevent misconduct was unreasonable. Id. As the State has not met its burden, we reverse Barocas' conviction. * * *

We have found no Indiana decisions in which a parent or teacher's conviction of battery was upheld based on the use of force as minimal as that used by Barocas. * * *

Nor did the State prove the second element of the test adopted in Willis -- that Barocas was unreasonable to believe a physical prompt was necessary to control A.R.'s behavior of sticking out her tongue.

The State's argument on this issue, like its reasonableness argument, is devoid of legal authority. * * *

As the State has not negated Barocas' defense based on her claim of parental privilege, we must reverse.

In Dennis Block v. Mark Magura, a 14-page opinion, Chief Judge Robb writes:
Dennis Block and Mark Magura executed a letter of intent that Magura would purchase Block's interest in a partnership. Magura did not complete the purchase, Block filed suit, and the trial court granted summary judgment to Magura and denied summary judgment to Block on the issue of whether the parties' letter of intent creates an enforceable contract. Block appeals and raises a single issue which we restate as two: whether the trial court erred when it 1) granted Magura summary judgment and 2) denied Block summary judgment. Concluding the letter of intent is an enforceable contract because it contains the essential terms of the parties' agreement and expresses their intent to be bound, we reverse and remand.
In Abram Coleman, Rhonda Coleman, and Jerry Wayne Coleman v. Cynthia Ann Coleman, an 18-page opinion, Judge Barnes concludes:
There is insufficient evidence to support the jury's verdict in favor of Cynthia on her claim of unjust enrichment against the Colemans. Additionally, the award of attorney fees was not permitted by the Crime Victim's Relief Act because Cynthia failed to prove that she suffered any pecuniary loss as a result of purported theft by the Colemans. We reverse the trial court's entry of judgment on those verdicts, and remand for entry of judgment in favor of the Colemans on those counts and for further proceedings consistent with this opinion.
In Mark A. Kolish v. State of Indiana, an 8-page opinion, Judge Najam writes:
Kolish contends that the blood test results were inadmissible [because] the health care provider was not authorized to perform the blood draw under Indiana Code Section 9-30-6-6(j). * * *

However, our Legislature recently amended this statute by adding the following sentence: “This subsection does not apply to a bodily substance sample taken at a licensed hospital (as defined in IC 16-18-2-179(a) and IC 16-18-2-179(b)).” Id. (West 2010). Here, there is no dispute that Kolish’s blood sample was taken at a licensed hospital. And this court has recently held that the 2010 amendment to the statute applies retroactively without violating Indiana’s prohibition against ex post facto laws. See Boston v. State, ___ N.E.2d ___, Cause No. 32A01-1008-CR-421 at *12 (Ind. Ct. App. April 13, 2011). We agree with the panel decision in Boston. Accordingly, we are not persuaded by Kolish’s contention that Joseph was not authorized by statute to perform the blood draw. The trial court did not abuse its discretion when it admitted the blood test results into evidence.

In Edward Godby v. State of Indiana , an 11-page opinion, Judge May writes:
Edward Godby was convicted of a number of methamphetamine-related offenses based in part on items police found in a locked box in his garage. Godby’s wife consented to a search of the garage after the police gave her false information about why they wanted to search. Godby asserts her consent was therefore invalid and, even if his wife could consent to a search of the garage, she could not consent to a search of his locked box. We reverse and remand. * * *

We agree with Godby that the degree of intrusion was great; police removed the hinges on a locked box to gain access to it because Lois did not have a key. That Lois had no key “should have been a clear indicator that the box was not her personal belonging and she could not consent to its search.”

Apparently addressing the “the extent of law enforcement needs” factor, the State notes police saw in the garage items that could be used in the manufacture of methamphetamine, including pop bottles with layered liquid, an electric hot plate, a bottle of hydrogen peroxide, a hydrochloric acid generator, and a glass baking dish with white residue. While this might have provided the police with additional motivation to search the box, the record does not reflect any “law enforcement need” to immediately dismantle and search the locked box rather than request a search warrant. The State did not show the warrantless search of Godby’s locked box was reasonable under Article I, Section 11 of the Indiana Constitution.

As the warrantless search of the locked box was impermissible under the Indiana and United States constitutions, and as it is not possible to determine which of Godby’s convictions, if any, could be supported without the evidence so obtained, we must reverse Godby’s convictions and remand for a new trial.

Jeffrey L. Hunter v. State of Indiana - "Appellant-Defendant Jeffrey Hunter appeals his conviction for Class A misdemeanor Battery. Specifically, Hunter contends that the evidence is insufficient to rebut his proffered defense that the alleged battery qualified as privileged parental discipline. We affirm." As in Barocas [see first case, above], defendant cited Willis. However, the opinion here concludes: "Despite Hunter's argument to the contrary, the arguably degrading and long-lasting physical effects of B.H.'s injuries differentiate the instant matter from Willis, and lead us to conclude that the force employed by Hunter was unreasonable. Because Hunter used unreasonable force in punishing B.H., we further conclude that the evidence presented by the State was sufficient to rebut the alleged parental discipline privilege."

NFP civil opinions today (10):

David Wayne Bray v. Linda Sue Oberholtzer (NFP)

Joan Mazurkiewicz, et al. v. George Hodakowski, M.D., et al. (NFP)

Gary E. Masak v. Sherry E. Masak (NFP)

Balboa Capital Corporation v. Brad Apple (NFP)

Term. of Parent-Child Rel. of T.P.; A.P. & T.P. v. I.D.C.S. (NFP)

Eugene C. Ziobron v. Streetlinks National Appraisal Services (NFP)

K.S. v. Review Board (NFP)

M.T., et al.: Alleged to be C.H.I.N.S.; T.J. v. I.D.C.S. (NFP)

Joe Spiker Excavating Inc. v. Monica M. Rahill and Jo A. Morton (NFP)

David Landau v. City of Indianapolis (NFP)

NFP criminal opinions today (19):

State of Indiana v. Aaron R. Limburg (NFP)

Marlon D. McKnight v. State of Indiana (NFP)

Lawrence Archuleta v. State of Indiana (NFP)

Keenan A. Davis v. State of Indiana (NFP)

Lloyd Conn v. State of Indiana (NFP)

Scott Groce v. State of Indiana (NFP)

John Mocasque v. State of Indiana (NFP)

Ronald Lee Phares v. State of Indiana (NFP)

Kyle Brinkley v. State of Indiana (NFP)

Rossando L. McLellan v. State of Indiana (NFP)

James L. Teague, Jr. v. State of Indiana (NFP)

Kristian D. Davis v. State of Indiana (NFP)

Daniel R. Wallace v. State of Indiana (NFP)

Carlos L. Cordova v. State of Indiana (NFP)

Maria Cabrera v. State of Indiana (NFP)

Kevin Curry v. State of Indiana (NFP)

Floyd E. Marsh v. State of Indiana (NFP)

Richard Keck v. State of Indiana (NFP)

Otha Hamilton v. State of Indiana (NFP)

Posted by Marcia Oddi on May 31, 2011 12:37 PM
Posted to Ind. App.Ct. Decisions