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Monday, July 18, 2011

Ind. Decisions - Court of Appeals issues 4 today, including shoe camera case, (and 3 NFP)

For publication opinions today (4):

In BP Products North America, et al. v. Indiana Office of Utility Consumer Counselor, et al., a 9-page opinion on a motion for rehearing, Judge Sharpnack writes:

We grant rehearing to consider Appellee/Cross-Appellant Northern Indiana Public Service Company’s (“NIPSCO”) cross appeal, which raises the issue of whether the Indiana Utility Regulatory Commission (“IURC”) erred when it determined that Appellant/Cross-Appellee BP Products North America, Inc. (“BP”), was not a public utility with respect to the furnishing by it of natural gas it purchased from NIPSCO to Marsulex.

In our Opinion of April 25, 2011 (“Opinion”), we declared the cross appeal issue to be moot as a result of our resolution of the other issues on appeal. BP Prods. N. Am., Inc. v. Ind. Office of Util. Consumer Counselor, 947 N.E.2d 471, 473 n.1 (Ind. Ct. App. 2011). That was an incorrect conclusion. We should have considered the issue then, and we do so now. On this issue we reverse the IURC and remand. On all other issues we reaffirm our decision as set forth in the Opinion.

In David Delagrange v. State of Indiana, a 9-page, 2-1 opinion, Judge Sharpnack writes:
The parties stipulated to the following facts. On February 27, 2010, Delagrange went to a mall in Indianapolis. He had attached a camera to one of his shoes. The camera was connected to a digital recording device that stored the camera’s images. In addition, Delagrange had attached a fishing line to the inside of his front pants pocket and the cuff of one leg of his pants. Delagrange used the fishing line to pull up his pants leg and expose the camera to take pictures.

At the mall, Delagrange approached several young women who were working or shopping in various stores. Three of the young women were seventeen years of age, and one was fifteen. All four of them were wearing skirts or dresses. Delagrange attempted to surreptitiously place his foot between their legs to take pictures under their skirts or dresses. After several of these encounters, Delagrange was arrested at the mall for resisting law enforcement. A review of his camera recordings revealed photographs of areas under some of the young women’s skirts and dresses.

The State charged Delagrange with four counts of attempted child exploitation, all Class C felonies, Indiana Code sections 35-41-5-1 (1977) and 35-42-4-4(b) (2007); ten counts of voyeurism, all Class D felonies, Indiana Code section 35-45-4-5 (2005); and resisting law enforcement, a Class A misdemeanor, Indiana Code section 35-44-3-3 (2006). Delagrange filed a motion to dismiss the voyeurism and attempted child exploitation charges. The trial court held a hearing on the motion, and the parties submitted a joint stipulation of facts. The trial court dismissed the voyeurism charges but declined to dismiss the four counts of attempted child exploitation. Subsequently, Delagrange sought and obtained permission from the trial court and this Court to pursue this interlocutory appeal of the the trial court’s decision. * * *

The State has alleged that Delagrange knowingly or intentionally attempted to create an image of sexual conduct, which is a sufficient statement of Delagrange’s mental state to survive a motion to dismiss. At trial, the State will bear the burden of proving that Delagrange possessed the culpable mental state, but the State does not need to meet that burden of proof at this stage. See Isaacs, 794 N.E.2d at 1123 (concluding that the defendant “was not entitled to dismissal of the charging information on the basis that he purportedly had a valid factual defense to the charges”).

CONCLUSION For the reasons stated above, we affirm the judgment of the trial court and remand for further proceedings. Affirmed and remanded.

CRONE, J., concurs.
BAKER, J., dissents with opinion.

I respectfully dissent and part ways with the majority’s decision to affirm the denial of Delagrange’s motion to dismiss the charges of attempted child exploitation. As the majority acknowledges, Indiana Code section 35-34-1-4(a) provides that the trial court may dismiss the charging information if “[t]he facts stated do not constitute an offense.”

In my view, Delagrange’s activity at the mall does not satisfy the definition of “sexual conduct” as set forth in Indiana Code section 35-42-4-4. Indeed, nothing that Delagrange did that day could be reasonably considered to have involved the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desire of any person,” as the statute requires.

The State alleged that Delagrange walked around the mall and tried to take photographs or videos underneath the dresses or skirts of adults and teenagers. Such “up-skirt” photographs may, indeed, be morally unacceptable and alarming to many. Moreover, Delagrange’s conduct, as noted by defense counsel, may be labeled “weird, odd, or uncommon,” at the very least. However, I do not believe that Delagrange’s actions amounted to the criminal offense of attempted child exploitation under the current version of Indiana Code sections 35-41-5-1 and -42-4-4(b). See Herron v. State, 729 N.E.2d 1008, 1011 (Ind. Ct. App. 2010) (observing that conduct, however, reprehensible, is not a crime unless the General Assembly has exercised its authority to define it as such). As a result, I vote to reverse the trial court’s denial of Delagrange’s motion to dismiss the charges of attempted child exploitation.

ILB: For more on this shoe camera case, start with this ILB entry from June 27, 2010.

In Donald Troutner v. State of Indiana, an 18-page opinion, Judge Najam writes:

Troutner raises two issues for our review, namely: 1. Whether the same evidence that the State used to support Troutner's conviction for robbery was also used to support his conviction for battery. 2. Whether the trial court abused its discretion when it limited the testimony of Troutner's niece.

We hold that the State presented the same evidence to support both of Troutner's convictions and, therefore, we vacate the lesser conviction for battery. We also hold that the trial court erred when it limited the testimony of Troutner's niece. Nonetheless, because that error was harmless, we affirm Troutner's conviction for robbery.

In Nathan D. Hawkins v. State of Indiana , a 12-page, 2-1 opinion (including a 5-page dissent), Judge Crone writes:
Nathan Hawkins was originally sentenced to sixteen years for two counts of child molesting. After a successful appeal, Hawkins’s sentence was reduced to ten years. Thereafter, Hawkins sought a sentence modification, which the prosecutor opposed and the trial court denied. The parties dispute whether the 365-day period during which the trial court has sole discretion to grant a modification began when Hawkins was originally sentenced or when he was resentenced. We conclude that the resentencing did not restart the 365-day period. Because Hawkins’s motion was filed outside the 365-day period and the prosecutor did not consent to a modification, the trial court properly denied the modification. Affirmed. * * *

NAJAM, J., concurs.
ROBB, C.J., dissents with separate opinion. [which begins, at p. 8] I respectfully dissent from my colleagues’ conclusion that Hawkins’s petition for sentence modification was untimely. The legislature has not spoken clearly on this issue, namely, whether the 365-day period within which the trial court has sole discretion to grant a modification restarts after a defendant is resentenced. The statute needs legislative clarification on this point. While the majority conceives one approach, I write to explain my view that under the statute as currently written, the 365-day clock did, in fact, restart when Hawkins was resentenced pursuant to our Appellate Rule 7(B) revision. I also dissent because the majority’s approach to the respective timing of sentence modifications by trial courts on the one hand, and appellate review of sentences on the other, raises substantial problems of unworkability. Statutes must be read in harmony and produce a workable solution.

NFP civil opinions today (1):

Donald Glorioso v. Carla Glorioso (NFP)

NFP criminal opinions today (2):

Gregory D. Harris v. State of Indiana (NFP)

Vincent B. Hunter, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on July 18, 2011 10:26 AM
Posted to Ind. App.Ct. Decisions