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Wednesday, December 05, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Re the Name Change of John William Resnover and In Re the Name Change of John Arthur Herron - [ILB: If these names seem familar, it is because federal Judge Barker mentioned them in her Oct. 9th opinion.] Today, in this 18-page, 2-1 opinion, Judge Riley writes:

In this consolidated case, Appellant-Petitioner, William Resnover (Resnover) and Appellant-Petitioner, John Arthur Herron (Herron), appeal the trial court’s denial of their petitions to change their names. We reverse and remand for further proceedings.

ISSUE. Resnover and Herron raise two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to Ind. Code chapter 34-28-2.

FACTS AND PROCEDURAL HISTORY. Both appellants in this consolidated case cannot obtain a valid Indiana driver’s license due to discrepancies between the names commonly used in their everyday lives and the names listed on their birth certificates. * * *

In sum, today we hold that to effect a name change, a petitioner must submit with the petition for a name change the documents requested in I.C. § 34-28-2-2.5—including a driver’s license number or identification card number — if applicable. To be sure, although we have decided that the language of subsection 2.5 does not carry a mandate, but rather a directory intent, the trial court is still obliged to discern the absence of a fraudulent purpose prior to granting a petitioner’s name change. We remand this consolidated case to the trial court for further proceedings in accordance with this holding.4

CONCLUSION. Based on the foregoing, we hold that the trial court trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to Ind. Code chapter 34-28-2.

Reversed and remanded for further proceedings.

BAILEY, J. concurs
CRONE, J. concurs in part and dissents in part with separate opinion [that begins, at p. 16]I concur in the majority’s disposition of Resnover’s appeal. Indiana Code Section 34-28-2-2.5(a)(3) requires only a valid Indiana driver’s license number or Indiana identification card number, the former of which Resnover apparently has and thus may use to petition for a name change.

As for Herron, I respectfully disagree with the majority’s interpretation of “if applicable” in Indiana Code Section 34-28-2-2(a)(1) and therefore disagree with its conclusion that Herron is “relieved from the necessity to produce the documents” specified in Indiana Code Section 34-28-2-2.5. Slip op. at 13. Like the State, I believe that this interpretation “gut[s] the statute and improperly make[s] the requirements of subsection 2.5 merely discretionary.” Amicus Br. at 9.
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ILB: Don't miss footnote 3 on p. 14.]

In Adoption of K.S., A Minor Child: A.S. and D.S. v. C.Z. , a 9-page opinion, Judge Riley writes:
Appellants-Petitioners, D.S. (Father) and A.S. (Stepmother) (collectively, Appellants), appeal the trial court’s denial of their Verified Petition for Adoption of the minor child, K.S. We reverse and remand for further proceedings.

ISSUE. Appellants raise two issues on appeal, which we consolidate and restate as: Whether the trial court erred in concluding that the natural mother’s consent to the adoption of her minor child by Stepmother was required. * * *

During the instant proceedings, the parties and the trial court focused on the statutory requirements to waive Mother’s consent to the adoption of K.S. by Step-Mother. Specifically, the trial court noted on the record “the only issue today is consent. [] so, we’ll solve that today and then decide where we go from there.” (Transcript p. 4) The parties did not present any evidence with regard to the impact of the adoption on K.S.’s life and whether the severance of her ties with Mother would be in K.S.’s best interest. Therefore, we remand to the trial court to determine whether the adoption will be in K.S.’s best interest. See I.C. § 31-19-11-1(a).

CONCLUSION. Based on the foregoing, we conclude that Mother’s consent to the adoption of her minor child by Stepmother was not required. However, we remand for further proceedings to determine whether the adoption is in K.S.’s best interest.

In Trenton Teague v. State of Indiana , a 12-page opinion, Judge Mathias writes:
Trenton Teague (“Teague”) was convicted after a jury trial in Wayne Circuit Court of Class A felony burglary and Class C felony battery. Teague was sentenced to thirty-eight years for burglary and six years for battery with four years suspended. Teague appeals and argues that the trial court improperly admitted a 911 recording into evidence and that his executed sentence of forty years is inappropriate. We affirm.
In Bret Lee Sisson v. State of Indiana , a 27-page opinion, Judge Friedlander writes:
Sisson raises the following restated issues for our review:

1. Did fundamental error occur when the State refiled the previously dismissed SVF charge and habitual offender allegation after Sisson’s first trial ended in a mistrial due to jury deadlock?
2. Did the State’s failure to respond to Sisson’s notice of alibi by narrowing the time period during which the offense was alleged to have occurred constitute a violation of the alibi statute?
3. Did the trial court abuse its discretion by denying Sisson’s motion to exclude evidence due to alleged discovery violations by the State?
4. Did the trial court abuse its discretion by admitting evidence that Sisson had threatened a witness for the State?
5. Did the trial court abuse its discretion by excluding evidence of a witness’s prior criminal convictions?
6. Did the trial court err in denying Sisson’s motion for change of judge for sentencing purposes only?

We affirm.

In Mitchell Burton v. State of Indiana , an 11-page opinion, Judge Pyle writes:
Mitchell Burton (“Burton”) appeals his conviction of resisting law enforcement, a class D felony. We reverse and remand.

ISSUE. The following issue is dispositive: whether the trial court abused its discretion in refusing to give Burton’s tendered self-defense and resistance of unlawful force instructions. * * *

In the present case, the jury was not instructed that Burton was justified in protecting himself under circumstances where the DVD showed that the police officers may have used excess force to extract a recently awakened and dazed Burton from the car and to subdue him as he tried to protect himself from an officer who had threatened to kill him for no apparent reason. The jury would have been so apprised if the trial court had given the tendered instructions. Without the instructions, the jurors were permitted to find Burton guilty of resisting law enforcement even if they believed Burton’s claim that he lawfully used reasonable force to protect himself from the threat of great bodily harm. The trial court’s error was not harmless, and the conviction must therefore be vacated. See id.

We reverse and remand with instructions that the trial court vacate the conviction.
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ILB: Interesting footnote on p. 11.

NFP civil opinions today (4):

Kamari Hogue, A Minor, By and Through His Parent And Next Friend, Trent Hogue v. Robert Critz, Jr. (NFP)

First Chicago Insurance Company v. Philip Hempel, Farm Bureau Insurance Company of Michigan, and American Transportation on Time, Inc. (NFP)

Susan Edwards v. Deutsche Bank National, Trust Company (NFP)

Term. of the Parent-Child Rel. of: A.T., Minor Child, M.T., Father v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Tarique Henderson v. State of Indiana (NFP)

Agustin Martinez v. State of Indiana (NFP)

Robert D. Rogers, Jr. v. State of Indiana (NFP)

Mahamat Outman v. State of Indiana (NFP)

Kelvin Whitby v. State of Indiana (NFP)

Herman Gehl, II v. State of Indiana (NFP)

Posted by Marcia Oddi on December 5, 2012 11:16 AM
Posted to Ind. App.Ct. Decisions