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Thursday, June 28, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Eldon E. Harmon v. State of Indiana , a 23-page opinion (including a 7-page concurring opinion), Judge Mathias writes:

Eldon E. Harmon (“Harmon”) was convicted in Elkhart Superior Court of Class A felony dealing in methamphetamine by manufacturing. Harmon appeals and raises two issues, one of which we find dispositive: whether the state presented sufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine. We reverse and remand with instructions. * * *

[W]e conclude that the State’s string of inferences is simply too tenuous to satisfy its burden of proof beyond a reasonable doubt with respect to the weight element of the Class A felony charge.

Notwithstanding the State’s failure to present sufficient evidence to prove Class A felony dealing in methamphetamine, we note that the jury was also instructed on the lesser-included offense of Class B felony dealing in methamphetamine. * * * The only difference between the Class A and the Class B felony offenses is that in order to prove the Class A felony, the State must prove that the weight of the drugs was at least three grams. Accordingly, in finding Harmon guilty of the Class A felony, the jury necessarily concluded that Harmon committed the Class B felony. The evidence presented at trial was clearly sufficient to support a Class B felony conviction, and Harmon concedes as much on appeal. We therefore reverse Harmon’s conviction for Class A felony dealing in methamphetamine and remand to the trial court with instructions to enter a conviction for Class B felony dealing in methamphetamine and to resentence Harmon accordingly.

[Judge Vaidik's 6-page concurring opinion concludes]
Therefore, while I agree with the majority that there is insufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine, I do not agree with the assumption that my colleagues make about the way in which the yield of methamphetamine can be measured. I would find that only the finished product, pure or adulterated, can be considered when determining the amount of the drug that is being manufactured or that a conversion ratio and an expert witness should be used when the manufacturing process is not complete and the yield is uncertain.

NFP civil opinions today (2):

In Constance L. Jones v. Jean L. Markey d/b/a Markey Bonding d/b/a Markey Bonds d/b/a A-AAA Bail Bonds, Inc. (NFP), a 6-page opinion with a pro se appellant, Judge Crone writes:

Constance L. Jones appeals the small claims judgment in favor of Jean L. Markey d/b/a Markey Bonding d/b/a Markey Bonds d/b/a A-AAA Bail Bonds, Inc. (hereinafter referred to as “Markey Bonding”). In 2004, Constance’s son was arrested and jailed on two sets of criminal charges. Constance paid Markey Bonding bail bond premiums to post bond for her son and to obtain his release from the Allen County Jail. Markey Bonding posted bond for those two sets of charges, and Constance’s son was released. However, immediately after he was released, he was arrested on different charges. In 2010, Constance filed a small claims action against Markey Bonding seeking a refund of the bond premiums she paid to Markey Bonding. The small claims court entered judgment in favor of Markey Bonding. Constance presents three issues for our review, which we consolidate and restate as one: whether the small claims court clearly erred when it entered judgment in favor of Markey Bonding. Finding no clear error, we affirm. * * *

Here, it is undisputed that Markey Bonding acted as a bail agent when it posted bond to obtain Donald’s release from confinement on the two sets of charges for which Constance paid the bond premiums. Donald was given his personal items and was escorted to the exit door of the Allen County Jail. He was allowed to leave, his freedom being no longer directly controlled and limited. Donald walked approximately fifty feet to a public sidewalk before he was arrested on different charges. The fact that Donald was quickly arrested on wholly separate charges is of no moment to Markey Bonding. Markey Bonding did exactly what it was paid to do: it posted bond and obtained Donald’s release on the two sets of charges for which Donald was incarcerated at that time. We agree with the small claims court that Constance failed to establish by a preponderance of the evidence that she is entitled a refund of the bond premiums. We cannot say that the evidence, along with all reasonable inferences, is without conflict and leads unerringly to a conclusion opposite that reached by the small claims court. Accordingly, we affirm.

Joseph A. Taylor v. Commissioner, Indiana Department of Correction, Indiana Parole Board, Keith Butts (NFP)

NFP criminal opinions today (4):

James Henry Tankard v. State of Indiana (NFP)

Anthony Hall v. State of Indiana (NFP)

Steven Kamp v. State of Indiana (NFP)

Timothy J. Canfield v. State of Indiana (NFP)

Posted by Marcia Oddi on June 28, 2012 12:56 PM
Posted to Ind. App.Ct. Decisions