Monday, February 27, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Augustus Mendenhall v. State of Indiana, a 32-page opinion, Sr. Judge Sharpnack writes:
Mendenhall contends that: (1) the trial court abused its discretion by denying his motion for mistrial following an alleged Doyle violation; (2) the trial court erred by allowing the State to present witnesses in rebuttal of his case-in-chief after the testimony of the court-appointed medical witnesses; (3) Mendenhall was unfairly prejudiced when the trial court permitted the State to present DeLaney’s rebuttal testimony; (4) the evidence is insufficient to sustain Mendenhall’s convictions for Class A felony attempted murder, Class A felony robbery resulting in serious bodily injury, and Class B felony aggravated battery; and (5) Mendenhall’s convictions for Class A felony attempted murder and Class B felony criminal confinement and his convictions for Class A felony robbery resulting in serious bodily injury and Class B felony aggravated battery violate Indiana’s prohibition against double jeopardy. * * *In Arc Construction Management, LLC, and Alan Muncy v. John Zelenak and Cecilia Zelenak , a 10-page opinion, Sr. Judge Barteau concludes:
[p. 31] Mendenhall argues that the injury to DeLaney’s right eye was used to support the robbery enhancement and aggravated battery. The State concedes that these convictions may violate our prohibition against double jeopardy. That is, there is a reasonable possibility that the jury used evidence of DeLaney’s protracted loss or impairment of the function of his right eye to establish the robbery enhancement and aggravated battery. See Smith v. State, 881 N.E.2d 1040, 1048 (Ind. Ct. App. 2008) (“It is improper for the State to rely on evidence of the same injury to sustain a conviction for both class A felony robbery and class B felony aggravated battery.”). We conclude that the two convictions violate Indiana’s double jeopardy clause. When two convictions violate double jeopardy principles, we may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. Richardson, 717 N.E.2d at 54. Reducing the robbery conviction to a Class B felony would still result in a double jeopardy violation in light of Mendenhall’s Class B felony criminal confinement conviction. Compare Ind. Code § 35-42-5-1 (enhancing robbery to a Class B felony if it “is committed while armed with a deadly weapon”), with Ind. Code § 35-42-3-3(b)(2)(A) (enhancing criminal confinement to a Class B felony if it “is committed while armed with a deadly weapon”), and Appellant’s App. p. 246 (charging information for Class B felony criminal confinement based on Mendenhall being armed with a deadly weapon). We therefore remand with instructions to reduce Mendenhall’s robbery conviction to a Class C felony.
For the reasons stated above, we remand with instructions to reduce Mendenhall’s robbery conviction to a Class C felony. The trial court is affirmed in all other respects.
For the reasons stated above, we affirm the trial court’s order denying summary judgment on the Zelenaks’ claim for breach of the implied warranty of habitability and remand for proceedings consistent with this opinion.NFP civil opinions today (0):
NFP criminal opinions today (5):
Posted by Marcia Oddi on February 27, 2012 11:03 AM
Posted to Ind. App.Ct. Decisions