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Tuesday, December 11, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Paul Henry Gingerich v. State of Indiana, a 36-page opinion in a nationally reported case, Judge Brown writes:

Paul Henry Gingerich appeals his conviction for conspiracy to commit murder as a class A felony. Gingerich raises five issues, one of which we find dispositive and which we revise and restate as whether the juvenile court abused its discretion when it denied Gingerich’s request for a continuance of the waiver hearing. We reverse and remand. * * *

Before turning to the merits of Gingerich’s claim, however, we first address the State’s argument raised on cross-appeal that Gingerich’s appeal should be dismissed because he waived his right to appeal in his plea agreement and by pleading guilty. * * *

Having determined that Gingerich has not waived his ability to challenge the denial by the juvenile court of his request for a continuance, we turn to the arguments of the parties, as well as the arguments of Amicus MCPDA and Amicus CLC, which aided in our analysis. * * *

As noted above, the crux of the arguments of Gingerich and the amici are essentially that the juvenile court’s denial of the continuance prohibited Gingerich from receiving a full and fair opportunity to present his claims, i.e., a denial of due process. * * *

[W]e find that the juvenile court abused its discretion when it denied Gingerich’s request for a continuance. * * *

For the foregoing reasons, we reverse Gingerich’s conviction for conspiracy to commit murder as a class A felony, and we remand for proceedings consistent with this opinion.

In James O. Young v. State of Indiana , a 16-page opinion, Judge Mathias writes:
Following a jury trial in Elkhart Superior Court, James Young (“Young”) was found guilty of Class D felony domestic battery in the presence of a child and Class D felony strangulation. Young appeals and argues that (1) the hearsay testimony of two firefighters regarding the victim’s statements to them violated his rights under the Confrontation Clause of the Sixth Amendment of the Constitution of the United States; (2) the hearsay testimony of a police officer regarding the victim’s later statements to her was inadmissible hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment; and (3) there was insufficient evidence to support the convictions and to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense from a Class A misdemeanor to a Class D felony.

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. * * *

The trial court did not abuse its discretion when it admitted the firefighters’ hearsay testimony of Medrano’s version of the incident. However, admission of Officer Stuff’s hearsay testimony was error and could not be harmless error. We therefore reverse Young’s conviction for Class D felony strangulation, subject however to possible retrial. Further, the evidence was insufficient to support Young’s conviction for domestic battery as a Class D felony but sufficient to support the lesser-included charge of Class A misdemeanor domestic battery; therefore, we remand with instructions that judgment of conviction for domestic battery as a Class A misdemeanor be entered against Young and that he be resentenced accordingly.

NFP civil opinions today (3):

Douglas A. Schwan v. Linda D. Schwan (NFP)

Richard A. Walls v. Janet Walls (NFP)

Garland Aschenbrenner, Winifred Aschenbrenner, and South Bend Carpetland USA, Inc., d/b/a Abbey Carpets and Floors v. Melvin H. Sandock Inter Vivos Revocable Trust, et al. (NFP)

NFP criminal opinions today (5):

Johnny Mosby v. State of Indiana (NFP)

Phyllis Allen v. State of Indiana (NFP)

Chad E. Aslinger v. State of Indiana (NFP)

Steven T. Lakes v. State of Indiana (NFP)

Bradley S. Sater v. State of Indiana (NFP)

Posted by Marcia Oddi on December 11, 2012 10:20 AM
Posted to Ind. App.Ct. Decisions