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Wednesday, October 19, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Alan Massey v. State of Indiana , a 19-page opinion, Judge Crone writes:

We conclude that even though the jury was improperly instructed regarding the elements of voluntary manslaughter, Massey was not entitled to the voluntary manslaughter instruction in the first place because his girlfriend's words ending their relationship do not constitute sufficient provocation to induce sudden heat. Accordingly, we conclude that Massey did not receive ineffective assistance of trial counsel. As for appellate counsel's
failure to raise the sentencing issue, we conclude that Massey has failed to carry his burden to show that the issue was significant and obvious on the face of the record and clearly stronger than the other issues raised. Thus, Massey did not receive ineffective assistance of appellate counsel. Finding no error, we affirm the post-conviction court's judgment.
Carolyn S. Baird v. State of Indiana , an 8-page opinion, Chief Judge Robb writes:
Carolyn Baird appeals her convictions for operating a motor vehicle without financial responsibility, failure to register, failure to have the proper license for operating a motorcycle, all infractions, and driving while suspended with a prior conviction, a Class A misdemeanor. She raises two issues for our review, which we consolidate and restate as whether the State presented sufficient evidence to support her convictions. As to Baird’s three traffic infraction convictions, we conclude the evidence was sufficient to support her convictions. As to Baird’s conviction for driving while suspended with a prior conviction, we conclude the evidence was insufficient for that conviction, but we remand to the trial court with instructions to enter a conviction of the lesser included offense of driving while suspended, a Class A infraction. * * *

On September 1, 2010, Officer Karmire observed a three-wheeled “moped-motorcycle” traveling approximately forty miles per hour with no license plate. * * *

Baird argues her three traffic infractions should be reversed because the State failed to prove she was driving a “motor vehicle” or a “motorcycle” rather than a “motorized bicycle.” The success of her argument hinges on her interpretation of Indiana statutes that the term “motorized bicycle” is specifically excluded from the term “motor vehicle,” and that the only reasonable conclusion based on the evidence is that she was driving a “motorized bicycle” rather than a “motorcycle.” Because we conclude the evidence was sufficient to establish the vehicle was a “motorcycle,” which is a type of “motor vehicle,” we need not address her argument that “motorized bicycles” are excluded from the term “motor vehicle” for the purposes of the infraction statutes here at issue that require a “motor vehicle.”

In Mark S. Weinberger, M.D., Mark S. Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC and Nose and Sinus Center, LLC v. William Boyer, a 31-page opinion, Judge Riley writes:
Appellants-Defendants, Mark S. Weinberger, M.D., (Weinberger), and Mark S. Weinberger, M.D., P.C. Merrillville Center for Advance Surgery, LLC, and Nose and Sinus Center, LLC. (collectively, the Weinberger Entities), appeal the jury's award of damages in the amount of $300,000 to Appellee-Plaintiff, William Boyer (Boyer), following Boyer's Complaint for medical malpractice.We affirm.
NFP civil opinions today (4):

Barker Industrial Park, Inc., Clara Barker and Charles E. Barker v. Ken Cut Lawn Service, Inc. (NFP)

Remy Inc. v. Ice Miller LLP and Kathy S. Kiefer (NFP)

Jeffrey J. Whitmer v. Nancy J. Whitmer (NFP)

Sergio Esqueda v. Alfredo and Maria Ponce (NFP)

NFP criminal opinions today (11):

Zachary Thomas v. State of Indiana (NFP)

Marquinn McGruder v. State of Indiana (NFP)

Danny L. Slaven v. State of Indiana (NFP)

Darren B. Stone v. State of Indiana (NFP)

K.B.S. v. State of Indiana (NFP)

Christopher Davies v. State of Indiana (NFP)

Kevin Legg v. State of Indiana (NFP)

James Lee v. State of Indiana (NFP)

Valentin Jaramillo v. State of Indiana (NFP)

Rumero Ziebell v. State of Indiana (NFP)

Ayron Saylors v. State of Indiana (NFP)

Posted by Marcia Oddi on October 19, 2011 02:08 PM
Posted to Ind. App.Ct. Decisions