Wednesday, July 25, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)
For publication opinions today (2):
In North Gibson School Corporation v. Shea Truelock, Brian Douglas, Doyin Barrett, Tony Hensley, Lacee Richardson, Sue Ellen Beloat, Mike Beloat, Jamie Slinker, Kim Blaize, Lisa Burkett, et al., an 11-page opinion, Chief Judge Robb writes:
North Gibson School Corporation (the “School Corporation”) brings this interlocutory appeal of the trial court’s denial of its motion to dismiss a lawsuit filed by thirteen individual bus drivers (collectively, the “Drivers”). The School Corporation raises two issues, which we restate and reorder as: whether unsuccessful bidders for a transportation services contract with a school corporation have a private right of action for collusion against that school corporation, and whether the Indiana Antitrust Act allows for recovery of compensatory damages from a school corporation. We conclude that the Drivers, as unsuccessful bidders, do not have a private right of action against the School Corporation, even if alleging collusion. We also conclude the School Corporation cannot be held liable for compensatory damages under the Indiana Antitrust Act. Therefore, we reverse and remand. * * *In Erasmo Leyva, Jr. v. State of Indiana , a 16-page 2-1 opinion (including a 9-page dissent), Judge Brown writes:
The Drivers technically could bring a claim for collusion based on the facts alleged in their complaint, but cannot do so against the School Corporation because the School Corporation is an improper defendant and because the Drivers could not recover any damages from the School Corporation. Therefore, we reverse the trial court’s order denying the School Corporation’s motion to dismiss and remand with instructions to enter an order consistent with this opinion.
Erasmo Leyva, Jr., appeals his conviction for child molesting as a class A felony. Leyva raises one issue, which is whether the evidence is sufficient to sustain Leyva’s conviction for child molesting as a class A felony. We affirm. * * *NFP civil opinions today (6):
To the extent Leyva asserts that the incredible dubiosity rule requires reversal of his conviction, we note that the rule applies only in very narrow circumstances. * * *
KIRSCH, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 8 of 16] I respectfully dissent. I believe that A.L.’s testimony is incredibly dubious and that the evidence is, therefore, insufficient to support Leyva’s conviction for class A felony child molesting.
As noted by the majority, the doctrine of incredible dubiosity allows a reviewing court to reevaluate the credibility of a witness when “a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The “[a]pplication 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.” * * *
In sum, I think that all of these circumstances make A.L.’s testimony incredibly dubious. I believe that it would be wise for us, as an appellate court, to draw upon the words of our predecessors, reminding us that while we should respect the province of the jury, it remains our responsibility to determine whether there is sufficient evidence as a matter of law. Likewise, we should be vigilant when a conviction is obtained on the basis of one eyewitness, so that we do not execute an injustice.
Notwithstanding the incredible dubiosity rule, I believe that it is time to consider whether we should require corroborating evidence when these type of offenses are supported only by the testimony of a single witness. * * *
With the advent of modern technology, including DNA testing and analysis, it is not unreasonable to require some form of corroborating evidence before convicting a defendant when the sole witness is the victim. This is especially true when the defendant has been accused of child molesting and similar offenses, insofar as if convicted, he will not only be sentenced accordingly, but also subject to certain registry and residency restrictions. See Ind. Code § 35-42-4-11.
Lord Hale was correct when he recognized that sexual assaults are heinous. Indeed, they are particularly atrocious when they are perpetrated against our children, over whom our natural inclination is to protect. But we must be mindful that the disgust that such actions elicits cannot cloud our reason such that we permit guilty verdicts to stand even when they were not obtained by proof beyond a reasonable doubt. I believe that the State failed to prove beyond a reasonable doubt that Leyva committed class A felony child molesting in this case, and I would reverse.
NFP criminal opinions today (8):