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Wednesday, October 12, 2011

Ind. Decisions - Court of Appeals issues 7 today (and 9 NFP)

For publication opinions today (7):

In Todd A. Anderson v. Shauna Anderson, a 1-page opinion, Judge Friedlander writes:

Todd A. Anderson (Father) appeals the trial court’s denial of his request to credit against his child support obligation Social Security benefits Shauna Anderson (Mother) received on behalf of their child, D.A., prior to Father’s petition to modify child support. Father presents that ruling as the sole issue on appeal. We reverse. * * *

[W]e conclude there is no principled reason to treat periodic SSD benefit payments to a child differently than lump-sum SSD benefit payments, i.e., it “shall be applied as a credit to an existing child support arrearage” without the need to file a petition for modification.

In Jonathon D. Douglas v. State of Indiana and Indiana Family & Social Services Admin., as Assignee of the Support Rights of Mechelle (Allen) McCrory, a 15-page opinion, Judge Mathias writes:
Jonathon D. Douglas (“Douglas”) appeals from the trial court's denial of his petition to modify his child support obligation and raises one issue, which we restate as whether the trial court erred in concluding that Douglas was not entitled to a reduction of his child support obligation because the reduction in his income upon which he based his petition for modification resulted from his incarceration for Class C felony nonsupport of a dependent. We reverse and remand for proceedings consistent with this opinion. * * *

Finally, when all is said and done, it is the province of our supreme court to consider exceptions to its general, administrative rules governing child support. We therefore decline to create an exception to the rules set forth in Lambert and Clark and hold that the trial court erred when it concluded that incarceration for nonsupport of a dependent child cannot amount to a change in circumstances so substantial and continuing as to make the terms of an existing child support order unreasonable.

In In the Matter of the Involuntary Commitment of A.M., an 8-page opinion by Judge Baily, the panel upholds the involuntary commitment:
She raises one issue for our review: whether sufficient evidence supports the involuntary commitment order. Finding sufficient evidence in the record, we affirm.
However, a long footnote which consumes much of p. 4 makes this point:
Even though Vanderburgh County Local Rule 82-AR00-1.02 (“Case Allocation Plan”) assigns mental health cases to Division VI (“Criminal, Small Claims and Misdemeanor/Traffic”), this assignment in and of itself does not afford magistrates the power to sign final orders of involuntary commitment. Therefore, we must conclude that the order of regular commitment is defective because it lacks a judge's signature.

This defect notwithstanding, A.M. has waived any claim to reversible error because she did not raise it at the hearing or on appeal.

In Paul Fonner v. State of Indiana , an 11-page opinion, Judge Bailey writes:
Paul Fonner (“Fonner”) appeals his convictions for Theft, as a Class D felony, and Criminal Trespass, as a Class A misdemeanor, raising for our review whether the trial court failed to advise him of his right to testify on his own behalf and thereby denied him fundamental due process as a pro se criminal defendant, and whether there was sufficient evidence to support his conviction. We affirm. * * *

While failure to issue an advisement of a defendant’s right to testify on his own behalf is of a fundamental nature, our supreme court’s development of our standard for review of fundamental errors does not require reversal in each case. Thus, Fonner has failed to adequately demonstrate how he was prejudiced by the absence of an advisement regarding his right to testify on his own behalf.

In Abby Allen and Walter Moore v. Clarian Health Partners, Inc., a 24-page opinion, Judge Najam concludes:
In sum, the trial court erred when it granted Clarian's Rule 12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Allen and Moore stated a claim for breach of contract under the Indiana Declaratory Judgments Act. More than a century of legal precedent, including recent Indiana Supreme Court authority, provides the proper legal framework for our conclusion that Allen and Moore have stated a claim for breach of contract upon which relief can be granted. The trial court's decision is reversed and this cause is remanded for further proceedings.
In Robert Glispie v. State of Indiana , a 7-page trespass case, Najam writes:
Robert Glispie appeals his conviction for criminal trespass, as a Class A misdemeanor, following a bench trial. Glispie presents a single issue for review, namely, whether the evidence is sufficient to support his conviction. We reverse. * * *

“[A] police officer who is neither an owner of a property nor an agent of an owner of a property cannot create a trespass violation by asking a patron to leave and then arrest the patron when [he] refuses to do so.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 763 (7th Cir. 2006) (opining on the meaning of Indiana law), corrected by, 2006 U.S. App. LEXIS 13604 (7th Cir. 2006). Similarly, here, an officer, if neither an owner nor an agent of the owner, cannot create a trespass violation by denying a person entry to private property and later discovering that person again on the property. Where a criminal trespass charge is based on communication by the property owner’s agent, the State must prove all of the elements necessary to show an agency relationship. Absent such evidence, the State fails to prove an essential element of the offense. * * *

The statute defining criminal trespass requires that entry on property be denied by either the owner or its agent. Ind. Code § 35-43-2-2(a)(1). Our legislature is deemed to know the meaning of the word “agent.” We must apply a criminal statute strictly according to its terms. See Lovitt v. State, 915 N.E.2d 1040, 1044 (Ind. Ct. App. 2009).

The evidence shows that Officer McPherson had given oral and written warnings to Glispie not to enter Modern’s property before he found Glispie again on the property on October 13. But even giving full credit to Officer McPherson’s testimony that he was acting as Modern’s agent, without any corroboration his testimony is insufficient to establish an agency relationship. The State failed to show the elements necessary for an agency relationship. As such, the State failed to prove an essential element of criminal trespass, namely, that the owner or its agent had denied Glispie entry onto the owner’s property. Therefore, the evidence is insufficient as a matter of law to support Glispie’s conviction. Reversed.

In Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley, a 6-page opinion, Judge Mathias writes:
The State appeals from the trial court's order modifying the child support obligation of Jeremy A. Nunley (“Nunley”) and raises one issue, which we restate as whether the trial court abused its discretion in concluding that Nunley was entitled to a reduction of his child support obligation due to the decrease in his income resulting from his incarceration for Class D felony nonsupport of a dependent. For the reasons set forth in Douglas v. State, No. 40A01-1009-DR-4668, ___ N.E.2d ___ (Ind. Ct. App. Oct. 12, 2011), another case handed down today, we affirm. [ILB: Douglas is the 2nd opinion in this entry.]
NFP civil opinions today (4):

In the Paternity of P.B.; D.B. v. M.B. (NFP)

Charles Ford v. Indiana Dept. of Correction, et al. (NFP)

In the Paternity of A.G.L.; N.H. v. M.M. (NFP)

In the Matter of the Commitment of P.S.; P.S. v. Richard L. Roudebush Veterans Affairs Medical Center (NFP)

NFP criminal opinions today (5):

Darik Morell, Sr. v. State of Indiana (NFP)

Steven Howey v. State of Indiana (NFP)

Jerramy Martin v. State of Indiana (NFP)

Luis Gonzales v. State of Indiana (NFP)

Julius A. Solis v. State of Indiana (NFP)

Posted by Marcia Oddi on October 12, 2011 02:17 PM
Posted to Ind. App.Ct. Decisions