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Monday, October 24, 2011

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

In Gerald Broude v. State of Indiana, a 13-page opinion, Judge Baker writes:

Appellant-defendant Gerald Broude appeals his convictions for Child Molesting, three counts as class A felonies and one count as a class C felony. Specifically, Broude argues that the trial court erred when it admitted the victim’s testimony using a two-way closed circuit television, insofar as the State had not provided Broude with notice of its intent to have the victim testify outside the courtroom as required by statute. Additionally, Broude contends that there was insufficient evidence to sustain his conviction on one count of class A felony child molesting and that there was a material variance between the charging information and the proof presented at trial on a second count of class A felony child molesting.

Under these specific facts and circumstances, we conclude that the trial court did not err by permitting the victim to testify outside the courtroom. Specifically, Broude has failed to show prejudice, inasmuch as he was given additional time to negotiate a plea agreement with the State. And the fourteen-day continuance provided Broude with more time than he was afforded under the statute. Furthermore, given the victim’s deteriorated mental condition, as confirmed by her psychologist, it was more likely than not that she would have suffered emotional or mental harm if forced to testify in Broude’s presence.

In Christopher Allen Buchanan v. State of Indiana , an 11-page opinion, Judge Brown writes:
Christopher Allen Buchanan appeals his sentence for child molesting as a class B felony. Buchanan raises three issues, which we revise and restate as:

I. Whether the trial court erred in calculating the amount of credit time Buchanan was entitled to when it entered its judgment of conviction;
II. Whether the court erred in finding the age of the child victim as an aggravator;
III. Whether the court abused its discretion in sentencing him; and
IV. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

Additionally, the State raises the issue of whether Buchanan waived his arguments by the terms of his plea agreement. We affirm.

In State of Indiana v. Skylor Gearlds , a 10-page opinion, Judge Vaidik writes:
Skylor Gearlds was charged with Class A misdemeanor operating a motor vehicle while suspended based on a previous violation within the past ten years pursuant to Indiana Code section 9-24-19-2. The trial court dismissed the misdemeanor charge because the statute contains a mistaken cross-reference allowing for a driving while suspended infraction to be enhanced when (1) the driver has a previous driving while suspended conviction and (2) the previous conviction is within ten years of the commission of the previous offense. We conclude that although there is a mistake in the statute, it is clear that the legislature did not intend to elevate all driving while suspended offenses with prior convictions but rather only intended to elevate those offenses where the offender had a prior conviction within ten years of the new offense. Put differently, the statute was intended to proscribe less conduct than the literal words of the statute do. Because we find the statute enforceable in its current form and Gearlds' conduct is proscribed under either reading, we reverse the trial court and remand for further proceedings. * * *

But nevertheless, the legislature should amend Section 9-24-19-2 to remove the erroneous “subdivision (1)” language contained in subdivision (2) to avoid any future litigation over this issue.

In Ken Gunn v. State of Indiana , an 8-page opinion, Sr. Judge Sullivan writes:
Appellant Ken Gunn was charged with Class A misdemeanor carrying a handgun without a license. Ind. Code §§ 35-47-2-1 (2007), -23(c) (1997). He brings this interlocutory appeal from the trial court's denial of his motion to suppress evidence. Concluding that the evidence was obtained as the result of an unlawful traffic stop, we reverse. * * *

In making the left turn and entering southbound High School Road, the vehicle did not go into the lane closest to the center line but swung out into the outer lane. Believing that turning left into a lane other than the lane in the right half of the roadway closest to the center line was a traffic infraction, Officer Wendling initiated a traffic stop. * * *

Here, Officer Wendling initiated the traffic stop after observing Gunn's left turn because he believed Gunn had committed a traffic infraction by turning left into the outer lane instead of into the inner lane closest to the center line. Gunn asserts that the traffic stop was invalid because his left turn complied with the relevant statute. Whether Gunn's left turn constituted a traffic infraction presents an issue of statutory interpretation. * * *

The statute requires a driver making a left turn at an intersection to leave the first road “in that part of the right half of the roadway nearest the center line” and to enter the second road “to the right of the center line.” The statute does not specify which lane the driver must enter if there is more than one lane for traffic in that direction; rather, the only requirement is that the driver must enter a lane to the right of the center line. * * *

The State recognizes Indiana decisions determining that an officer's mistake of law can never be reasonable but nevertheless asks us to hold that there are certain situations when an officer's good faith belief, later found incorrect, may be objectively reasonable at the time of the officer's assessment and sufficient to justify an investigatory stop. We decline this invitation. * * * Reversed.
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[2} 2 The State cites the Indiana driver's manual, which states, “To turn left, be in the far left lane for your direction of travel.” Driver's Manual, Chapter 5, 54 (2011), http://www.in.gov/bmv/files/Drivers_Manual_Chapter_5.pdf (last visited Oct. 5, 2011). Though such advice may constitute wise policy, it is not a law of this state.

NFP civil opinions today (4):

Isaiah Wheeler v. State of Indiana (NFP)

In Re: The Matter of A.G. and A.M.; A.M. v. Allen County Dept. of Child Services (NFP)

John Shelton v. Daniel Keith Hoffman, Guardian of the Estate of Molly Dattilo (NFP)

Term. of Parent-Child Rel. of A.W.; T.H. and D.W. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (11):

Mark Williams v. State of Indiana (NFP)

Melvin Hall v. State of Indiana (NFP)

Cecil Dowell Freeman v. State of Indiana (NFP)

Ryan Grosswiler v. State of Indiana (NFP)

Jason Hough v. State of Indiana (NFP)

Sajjad Quayim Rasheed v. State of Indiana (NFP)

Zane Padgett v. State of Indiana (NFP)

Cynthia L. Ragsdale v. State of Indiana (NFP)

Jack M. Estes II v. State of Indiana (NFP)

Shammy Wingo v. State of Indiana (NFP)

Steven Nowling v. State of Indiana

Posted by Marcia Oddi on October 24, 2011 03:01 PM
Posted to Ind. App.Ct. Decisions