« Ind. Decisions - Supreme Court accepts Daniel E. Serban's resignation from the Indiana bar | Main | Ind. Decisions - Legislative committee to study Barnes decision »

Tuesday, June 07, 2011

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Uniontown Retail #35, LLC, d/b/a The Lion's Den #36 v. Board of Commissioners of Jackson County, a 20-page opinion, Judge Darden writes:

Uniontown Retail 36, LLC, d/b/a The Lion's Den #36, (“Lion's Den”) appeals the trial court order granting the motion for summary judgment filed by the Board of Commissioners of Jackson County (“the Board”) and permanently enjoining Lion's Den from operating a sexually oriented business at its current location in Jackson County. We affirm.

ISSUES
1. Whether the trial court erred when it concluded that two ordinances were not improperly adopted zoning laws.
2. Whether the trial court erred in concluding that operation of a sexually oriented business by Lion's Den was not grandfathered as a nonconforming use.
3. Whether the trial court's summary judgment order must be reversed because there is a genuine issue of material fact as to whether the ordinances were narrowly tailored to further a substantial governmental interest.
4. Whether the trial court erred in its determination that the ordinances are not constitutionally overbroad.
5. Whether the trial court erred when it concluded that the counterclaim by Lion's Den must fail.

In Michael J. Gaby v. State of Indiana , a 22-page opinion, Judge Mathias writes:
Michael Joseph Gaby (“Gaby”) was convicted in Tippecanoe Superior Court of Class A felony child molesting. Gaby appeals and presents three issues for our review, which we renumber and restate as:
I. Whether the trial court erred in allowing the State to amend the charging information;
II. Whether the trial court abused its discretion in permitting the State to refresh the recollection of the victim when the victim did not evidence a lack of recollection;
III. Whether the State’s arguments constituted prosecutorial misconduct; and
IV. Whether the trial court erred in ordering Gaby to serve his sentence as a credit restricted felon. * * *

Conclusion. The trial court did not err in permitting the State to amend the charging information, and the amended charging information is not overly broad. The trial court did, however, abuse its discretion in permitting the State to refresh the recollection of a witness who gave no indication that she did not recall the answers to the questions imposed. Further, the prosecutor improperly vouched for M.C.’s credibility. Under the facts and circumstances of this case, we are unable to say that the combined effect of these errors was harmless. Because there was sufficient evidence to support Gaby’s conviction, retrial is not barred by double jeopardy, but if Gaby is convicted after retrial, he may not be sentenced as a credit restricted felon. Accordingly, we reverse Gaby’s conviction and remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of R.L.; C.L. v. I.D.C.S. (NFP)

Owen Cobbum, et al. v. Town of Cromwell (NFP)

NFP criminal opinions today (6):

Patrick Jackson v. State of Indiana (NFP)

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

Edward L. Weaver v. State of Indiana (NFP)

Joshua Garrard v. State of Indiana (NFP)

Jason Q. Daugherty v. State of Indiana (NFP)

Phillip Spratt v. State of Indiana (NFP)

Posted by Marcia Oddi on June 7, 2011 12:06 PM
Posted to Ind. App.Ct. Decisions