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Friday, December 07, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Terry L. Brown v. Tammy S. Brown, a 7-page opinion, Judge May writes:

Terry L. Brown (Terry) appeals a civil judgment in favor of his ex-wife, Tammy S. Brown (Tammy). Terry argues the trial court abused its discretion when it admitted evidence regarding criminal offenses he committed over twenty years ago. We reverse and remand. * * *

In light of the context in which Terry’s convictions were mentioned during trial, we conclude the evidence of his past convictions was not used for the narrow purpose permissible pursuant to Evid. R. 609(a) – to attack Terry’s credibility. The evidence could have reasonably led the jury to the forbidden inference that Terry’s past convictions, albeit over twenty years old, reflect his propensity to commit the acts for which Tammy alleged he should be held accountable herein. Further, as the evidence was not used for the limited purpose permitted by Evid. R. 609(a), the admission of that evidence was more prejudicial than probative, which violates the exception provided in Evid. R. 609(b). See Collins, 966 N.E.2d at 106 (evidence of thirty year old misdemeanor battery arrest and charge was highly prejudicial because the admission thereof unfairly tipped the scales of justice against Collins).

In Robert Geller and Judy Geller v. Kurt P. Kinney, Holly Kinney, and A.M. Rentals, Inc., a 21-page, 2-1 opinion, Judge Najam concludes:
In sum, we hold that the exculpatory clause of the Lease and Management Agreement exempts A.M. from liability for its failure to perform its duties to the Gellers under Indiana Code Section 25-34.1-10-10(a)(3)(C). We also hold that applying the exculpatory clause on these facts is not contrary to public policy. Finally, we hold that the trial court’s conclusion that the Gellers’ sale of their home mitigated the Kinneys’ damages to the Gellers is not clearly erroneous. As such, we affirm the court’s judgment.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins at p. 17, and which concludes] I would reverse the decision of the trial court and remand with instructions to enter judgment for Owner for all losses incurred as a result of Agent’s failure to perform its statutory duties to disclose to Owner the adverse material facts known to Agent and to exercise reasonable care and skill in this transaction.

In Verdyer Clark v. State of Indiana , a 13-page opinion, Judge May writes:
Verdyer Clark was convicted of battery as a Class D felony pursuant to a statute that required the State to prove the battery caused injury to a person less than fourteen years old and was committed by a person at least eighteen years old. Clark argues the State did not prove its case because the only evidence it offered to prove he was over eighteen at the time of the crime was inadmissible hearsay. We reverse and remand so that the State may decide whether to retry Clark. * * *

As the only evidence the State offered to prove an element of Clark’s offense was inadmissible hearsay, we must reverse Clark’s conviction. Of course, this reversal does not prevent the State from retrying Clark. While a reversal for insufficient evidence bars retrial under the Double Jeopardy Clause, analyzing the evidence for these purposes includes consideration of the evidence improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 41 (1988). As the whole of the evidence admitted at trial plainly sufficed to prove Clark’s guilt of the charged offense, a second trial may be conducted. See, e.g., Carr v. State, 934 N.E.2d 1096, 1108 (Ind. 2010).

In Phillip T. Billingsley v. State of Indiana , a 17-page, 2-1 opinion, Judge Najam writes:
Phillip T. Billingsley appeals his conviction for possession of marijuana, as a Class D felony, following a bench trial. Billingsley raises three issues for our review, which we consolidate and restate as the following two issues:
1. Whether the officer responding to a 9-1-1 call initiated an investigatory stop of Billingsley or, instead, placed Billingsley under arrest when the officer withdrew his firearm upon his arrival at the scene; and
2. Whether the responding officer had a reasonable and articulable suspicion to initiate an investigatory stop of Billingsley.
We hold, based on the totality of the facts and circumstances available to the responding officer at the time he detained Billingsley, that the responding officer initiated an investigatory stop of Billingsley based on a reasonable and articulable suspicion that he was engaged in criminal activity. Accordingly, the trial court did not abuse its discretion when it admitted into evidence marijuana seized following the officer’s detention of Billingsley, and we affirm his conviction. * * *

Billingsley contends that the trial court abused its discretion when it admitted the seized marijuana into evidence because the State’s seizure of the marijuana from the front passenger seat of the SUV violated his rights under the federal and Indiana constitutions. * * *

Officer Lichtsinn lawfully detained Billingsley during an investigatory stop. Accordingly, the State lawfully seized the discovered marijuana and the trial court did not abuse its discretion in admitting that evidence against Billingsley. Thus, we affirm Billingsley’s conviction. Affirmed.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [that begins at p. 15 and that concludes] Because there was no supporting information or any other indicia of reliability for the name provided, I do not believe that the mere providing of a name by a 9-1-1 caller removes this case from the category of an anonymous caller. I also do not believe that the information known to the investigating officer was sufficient to satisfy the standards established by our Supreme Court and the Supreme Court of the United States for investigatory stops. Accordingly, I would reverse Billingsley’s conviction.

NFP civil opinions today (1):

In Re the Marriage of Lisa L. Shisler and Ned L. Shisler; Ned L. Shisler v. Lisa L. Shisler (NFP)

NFP criminal opinions today (8):

Brenda Varo v. State of Indiana (NFP)

Vickie Jessie v. State of Indiana (NFP)

Michael R. Krohn v. State of Indiana (NFP)

Quinn Nelson v. State of Indiana (NFP)

Anthony White v. State of Indiana (NFP)

Deandre L. Mathews v. State of Indiana (NFP)

Andrea Averitte v. State of Indiana (NFP)

Michael McClellan v. State of Indiana (NFP)

Posted by Marcia Oddi on December 7, 2012 02:30 PM
Posted to Ind. App.Ct. Decisions