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Friday, July 20, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Devon D. Dokes, Jr. v. State of Indiana , a 5-page opinion, Judge May writes:

Devon Dokes appeals the revocation of his probation for being a felon in possession of a handgun. Finding the evidence sufficient to support the court’s decision, we affirm. * * *

Dokes argues two insufficiencies in the State’s evidence. He first alleges the State did not meet its evidentiary burden to prove he was on probation. Second, because the trial judge found Dokes not guilty of the criminal offense of being in possession of a weapon, Dokes alleges the testimony he possessed the gun was incredibly dubious and thus insufficient to support probation revocation. * * *

Dokes also asserts the testimony that he possessed the weapon is incredibly dubious under the rule re-announced in Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). The rule of incredibly dubious testimony states:

If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).

That rule does not apply in the present case. While only one witness testified that Dokes possessed the gun on or near April 21, 2011, there was nothing inherently improbable in that testimony. The standard in Love requires that no reasonable person could believe the sole witness’s testimony.

In James Lee Paul v. State of Indiana , an 11-page opinion, Judge Darden writes:
[Issue] Whether the trial court abused its discretion in denying Paul’s objection to the admission of evidence obtained pursuant to a search warrant after his warrantless arrest inside his apartment. * * *

We cannot say that the trial court abused its discretion as the danger to the officers and tenants, coupled with the tampering of evidence, was an exigent circumstance that made it impracticable for the officers to obtain an arrest warrant before making the arrest. Furthermore, we cannot say that the officers contrived the urgent situation that necessitated Paul’s warrantless arrest. We affirm the trial court’s denial of Paul’s objection to the admission of items later found in the apartment pursuant to a search warrant.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of D.P. and P.S. (Minor Children); A.P. (Father) v. Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of B.B. and L.H. (Minor Children); Lo.H. (Mother) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Bradley D. Haub v. State of Indiana (NFP)

Anthony Lee Leturgez v. State of Indiana (NFP)

Jamey Wayne Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on July 20, 2012 11:41 AM
Posted to Ind. App.Ct. Decisions