Monday, December 10, 2012
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
Edward Gilliland v. State of Indiana is a 29-page, 2-1 opinion in an interlocutory appeal. From Judge Crone's opinion:
A male high school girls volleyball coach gave foot rubs to and rubbed lotion on the backs of some of his players. The players’ parents reported these and other activities to the school corporation’s athletic director, Edward Gilliland, who documented them as “inappropriate behavior” in the coach’s personnel file. The coach continued to engage in such behavior and was forced to resign in October 2008. Local law enforcement authorities conducted an investigation and eventually charged the coach with committing unspecified “sex offenses” against one of his former players, who had joined the team in August 2007. When questioned by police on November 21, 2008, Gilliland denied knowing about any “alleged misconduct” between the coach and the player. * * *ILB: The ILB has had several earlier related entries, see the last 3 entries on this list.
Gilliland filed a motion to dismiss, asserting that the prosecution was barred by the statute of limitations, that he had not engaged in concealment, and that the State had failed to exercise due diligence. * * *
On appeal, Gilliland renews the arguments that he made below and suggests that he had no duty to report child abuse or neglect because he had no reason to believe that the coach and the player engaged in sexual activity. We conclude that Gilliland concealed his offenses from the very beginning, thereby tolling the statute of limitations, and that the State could not have discovered sufficient evidence by exercise of due diligence to charge him prior to October 2010. Thus, we agree with the trial court that the charges were timely filed, but we conclude that any offense committed prior to October 5, 2007, would not be outside the statute of limitations and therefore the State does not have to amend the charging information in that respect.
We also conclude that the charging information and the testimony from the probable cause hearing, when taken together and accepted as true, contain facts sufficient to constitute the charged offenses because child abuse or neglect need not involve sexual activity under Indiana law. We further conclude that those facts are sufficient to apprise Gilliland of the charges against him and allow him to prepare a defense. Therefore, we affirm in part and reverse in part and remand for further proceedings. * * *
RILEY, J., concurs.
BAILEY, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 25 of 29] I concur in part and dissent in part. In concluding that Gilliland was timely prosecuted, the majority describes Gilliland’s “positive act of concealment calculated to prevent discovery of the fact that a crime had been committed” as “remaining silent when he had a legal duty to speak.” I believe that, if Gilliland lied to officers on November 21, 2008, he committed a positive act, concealing Ashcraft’s crime and thus his own offense of failure to report.16 However, I disagree with the majority opinion to the extent that it suggests concealment might arise from remaining silent about one’s own crime, without more.
The majority reasoning effectively converts the legislatively-enacted two-year statute of limitations applicable to misdemeanor offenses into a non-existent provision where the misdemeanor offense is one of silence. It is not possible to discern the silence constituting the underlying offense from the silence covering the offense.
In David Vance v. Francisco Lozano, et al. , a 7-page opinion, Judge Vaidik writes:
David Vance hired Rock Solid Concrete Inc. and Francisco Lozano1 to do some concrete work at his Fort Wayne home. Over a year later, his driveway had some pitting. The parties disagreed over what caused the pitting and brought in a third party, who concluded that the pitting was caused by road salt—not bad concrete. Nevertheless, negotiations continued and Rock Solid agreed to replace the driveway at no cost to Vance. When Rock Solid did not timely follow through with its promise, Vance sued in small-claims court. The small-claims court found that Rock Solid made a good-will gesture that was not an enforceable contract, and Vance now appeals. Concluding that the settlement of a doubtful claim is sufficient consideration for a compromise if the claim is made fairly and in good faith, even if it is possibly meritless, we reverse.In Guardianship of L.R.T. and A.J.B.; R.L. and P.L. (Guardians) v. A.B. and R.B. (Parents), a 13-page, 2-1 opinion, Judge Bailey writes:
R.L. and P.L. (“Guardians”) appeal an order terminating their guardianship of L.T. and A.J.B. (“the Children”) upon the motion of A.B. (“Mother”). Guardians present the sole consolidated issue of whether the order is clearly erroneous. We affirm. * * *NFP civil opinions today (2):
The parties agree that the reason for the Children’s placement with Guardians was Mother’s and Father’s lack of stable housing and employment. After hearing evidence of current conditions, the trial court found that Father was employed in a factory making $16.63 per hour and Mother was employed at Subway, they had decided to buy a house that would provide suitable family accommodations, and Mother had made inquiries to address A.J.B.’s special educational needs. The trial court found that both Children could be expected to make the necessary adjustments. Guardians’ strenuous argument that Mother and Father have shown instability in the past and likely cannot adequately address A.J.B.’s special needs in the present is an invitation to reweigh the evidence. This Court is prohibited from reweighing the evidence. In re B.H., 770 N.E.2d at 288. Accordingly, we decline to do so. Affirmed.
CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 8 of 13]: I respectfully disagree with the majority’s decision to affirm the trial court’s Order, terminating the guardianship over the minor children and ordering an immediate return to their parents. In affirming the termination of the existing guardianship held by a third party, the majority relies on our supreme court’s legal framework instituted in K.I. ex rel J.I. v. J.H., 903 N.E.2d 453 (Ind. 2009). Discussing K.I., the majority reaches the overarching and simplistic conclusion that “in a custody dispute between a parent and a third party, even where the parent seeks to re-obtain custody, the burden of proof is always on the third party.” Slip op. p. 6 (emphasis added). I disagree with the majority’s reading of K.I. * * *
The long acquiescence of the children in their Guardians’ custody—to the point that the Guardians are the only parents A.J.B. remembers—has cultivated a strong bond, a deep mutual affection, and a safe and stable environment to mature. Uprooting the children without any notice and dropping them in the unstable and insecure lives of parents they barely know and an environment they are unfamiliar with, would seriously mar and endanger their future happiness and wellbeing. In fact, returning the minor children to Mother and Father’s care immediately after a long acquiescence in their grandparents custody, as decided by the trial court and affirmed by the majority, sentences them to a fate worse than a Child In Need of Services where a parent must initially adhere to a visitation schedule and a transition phase prior to full custody. Based on the evidence before me, I am convinced that the children’s best interest is substantially and significantly served by their current placement. The trial court’s decision to grant the petition to terminate guardianship was clearly erroneous and should be reversed.
NFP criminal opinions today (5):
Posted by Marcia Oddi on December 10, 2012 11:30 AM
Posted to Ind. App.Ct. Decisions