Wednesday, June 27, 2012
Ind. Decisions - Court of Appeals issues 3 today (and 0 NFP)
For publication opinions today (3):
In Gunther Kranz and Carol Kranz v. Meyers Subdivision Property Owners Association, Inc., Christopher Bartoszek, and Indiana Dept. of Natural Resources, a 25-page opinion, Judge Crone writes:
Gunther and Carol Kranz own property on Bass Lake that is subject to an easement by other landowners in the Meyers Subdivision (“the Subdivision”). In prior, separate proceedings, the Natural Resources Commission (“the NRC”) determined that the easement holders had the right to place a pier at the end of the easement, but they would have to apply for a permit for a group pier (“the Group Pier”) from the Department of Natural Resources (“the DNR”). The DNR initially denied the permit because it believed that the Group Pier's proximity to neighboring piers created a safety hazard. The easement holders requested a hearing before an administrative law judge (“the ALJ”), who determined that the easement holders should be allowed to have a group pier and that the Kranzes should move their pier to accommodate the Group Pier. The Kranzes appealed to the NRC, which adopted the ALJ's decision.In Fili Moala v. State of Indiana, an 11-page opinion, Chief Judge Robb writes:
The Kranzes then sought judicial review in the Starke Circuit Court. The Kranzes advanced four reasons for reversing the NRC's decision: (1) that the NRC lacked jurisdiction to determine property rights; (2) that the decision was arbitrary and capricious because the NRC did not follow its own rule; (3) that the decision was not supported by substantial evidence; and (4) that the decision effected an unconstitutional taking. The trial court affirmed, and the Kranzes appealed to this court. We conclude that the NRC has jurisdiction to render a decision concerning property rights to the extent necessary to implement the permit process. We also conclude that the NRC properly interpreted and applied its own rule. Further, the evidence favorable to the decision is that the safety concerns were alleviated by moving the neighboring piers away from the Group Pier. Finally, we conclude that there was not an unconstitutional taking of the Kranzes' property. Because Bass Lake is a public freshwater lake, the only effect of the NRC's decision on the Kranzes' property rights was to relocate their pier, and there was no indication that the pier was any less usable in the location chosen by the NRC. The decision does not deprive the Kranzes' property of all or substantially all of its economic or productive use and therefore is not an unconstitutional taking. Therefore, we affirm.
Following a bench trial, Fili Moala was found guilty as charged of operating a vehicle with an alcohol concentration between .08 and .15, a Class C misdemeanor, and public intoxication, a Class B misdemeanor. He was also found guilty of operating a vehicle while intoxicated as a Class C misdemeanor rather than the Class A misdemeanor charged by the State. All charges stemmed from a single incident of Moala operating his vehicle on a public road. The trial court merged the two operating convictions, entered a judgment of conviction on operating while intoxicated as a Class C misdemeanor, and sentenced him to sixty days. The trial court also entered a judgment of conviction on the public intoxication conviction and sentenced him to 180 days, with the sentences to be concurrent.In Cory Heinzman v. State of Indiana, a 28-page opinion, Judge Mathias concludes:
Moala appeals, raising one issue for our review: whether the trial court violated double jeopardy in entering convictions for both operating a vehicle while intoxicated and public intoxication when the same evidentiary facts establish both offenses. Moala requests that the Class C misdemeanor operating a vehicle while intoxicated conviction be vacated. The State concedes that the two convictions violate double jeopardy; however, the State requests that the public intoxication conviction be vacated. Concluding the appropriate remedy for the double jeopardy violation is to vacate the operating while intoxicated conviction, we reverse and remand.
The trial court did not err in denying Heinzman’s motion for discharge because Heinzman waived his right to a speedy trial under Criminal Rule 4(C) by failing to object when the trial court set a trail date outside the one-year time limit. And because Heinzman himself was responsible for some delay in the trial, did not timely assert his right to a speedy trial, and has failed to demonstrate resulting prejudice, we cannot say that the delay in his trial violated his constitutional right to a speedy trial.NFP civil opinions today (0):
With regard to the admission of evidence, the trial court did not abuse its discretion in admitting evidence that the report of Heinzman’s abuse had been “substantiated,” inasmuch as this testimony did not run afoul of Evidence Rule 704(b). 28 Similarly, the letter written by the victim was admissible under an exception to the hearsay rule and was cumulative of the victim’s testimony.
Heinzman’s convictions on three counts of Class C felony child molesting do not constitute double jeopardy because there was evidence establishing that Heinzman molested the victim on at least four occasions. Thus, there was no reasonable possibility that the jury relied on the same evidentiary facts to convict Heinzman on all three counts.
Lastly, the trial court did not abuse its discretion in sentencing Heinzman to an aggregate term of twenty-four years. This sentence is not inappropriate given the nature of the offense and the character of the offender.
NFP criminal opinions today (0):
Posted by Marcia Oddi on June 27, 2012 12:55 PM
Posted to Ind. App.Ct. Decisions