The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 on Dec. 31 (and 27 NFP)

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Tuesday, January 01, 2013

Ind. Decisions - Court of Appeals issues 4 on Dec. 31 (and 27 NFP)

For publication opinions today (4):

In Indiana Public Employee Retirement Fund v. Paul Bryson, a 3-page opinion on a petition for a rehearing, Chief Judge Robb writes:

We grant rehearing for the purpose of addressing an issue raised by PERF in its petition, but we affirm our original opinion.

In Lisa Svenstrup v. Thomas Svenstrup, a 14-page opinion, Judge Brown concludes:

For the foregoing reasons, we affirm the trial court’s order denying Mother’s petition for allocation of college expenses, which order may be modified upon the requisite showing of changed circumstances so substantial and continuing as to make the terms of the existing order unreasonable.

In Damon Ray Bowers v. State of Indiana , a 6-page opinion, Judge May writes:

Damon Ray Bowers brings an interlocutory appeal of the denial of his motion to suppress the evidence gathered from a traffic stop. He asserts the stop occurred without reasonable suspicion, in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We affirm and remand.

In Israel Cruz v. State of Indiana , a 9-page opinion, Judge Crone writes:

Israel Cruz has never held an Indiana driver’s license, and he has multiple convictions of operating a vehicle having never received a license. In 2011, the BMV determined that Cruz was a habitual traffic violator (“HTV”) and sent notice of an HTV suspension to 3518 Steer Street in Indianapolis. Cruz was subsequently pulled over for speeding while the HTV suspension was in effect. Cruz was charged with operating a vehicle while suspended as an HTV. At Cruz’s bench trial, a Bureau of Motor Vehicles (“BMV”) employee testified that when a person who has never been licensed commits a traffic offense, the BMV obtains the person’s address from court records. However, the 3518 Steer Street address does not appear in any of the court records that were submitted into evidence; on the contrary, the court records contained three different addresses for Cruz. The BMV employee was not able to testify as to how the BMV determined that Cruz’s address was 3518 Steer Street. Cruz testified that he does not live at 3518 Steer Street and did not know that he was suspended. At the conclusion of the trial, the court found Cruz guilty and entered judgment as a class A misdemeanor.

On appeal, Cruz raises several issues, but we find one of them dispositive: whether there was sufficient evidence that Cruz knew that he was suspended. Given the complete lack of evidence regarding how the BMV determined that notice should be mailed to 3518 Steer Street, we must conclude that the State failed to establish the statutory presumption that a person has knowledge of a suspension if notice is sent to the person’s “last address shown.” See Ind. Code § 9-30-10-16. Nor has the State argued that the record contains direct evidence that Cruz knew he was suspended. Therefore, we reverse Cruz’s conviction.

NFP civil opinions today (9):

In Re the Paternity of Z.H.; S.E. v. C.H. (NFP)

In the Matter of the Term. of the Parent-Child Rel. of A.D.; and M.D. v. Indiana Dept. of Child Services (NFP)

In Re the Paternity of K.H., S.E. v. C.H. (NFP)

Francis McDonnell, M.D. v. Stacy Wissel, as Trustee of the Bankruptcy Estate of Roy L. Harris and Anita K. Harris (NFP)

Kimberly A. Harrison and Christine G. Portell v. Yale Rice, III, as Trustee of the Yale Rice, Jr. Living Trust, et al. (NFP)

Paulette Petkovich, et al. v. Prime Contractors Co., Inc. (NFP)

Job Steel Corp, and Lisco, Inc. v. Board of Zoning Appeals of the Town of Burns Harbor and the Plan Commission of the Town of Burns Harbor (NFP)

Demaris Snyder Wehr, Timothy John Snyder, Terence Glen Snyder and Daniel Owen Snyder v. Thomas Price, II, individually and as the named executor of the estate of Nilah Snyder, et al. (NFP)

Townsend H. Porter, Jr., Townsend Porter Revocable Trust, and Brian H. Merritt v. 1st Source Bank (NFP)

NFP criminal opinions today (18):

Albert Jackson Counce v. State of Indiana (NFP)