« Ind. Law - "House Bill 1118 has sympathy for motorcycles, scooters stuck at lights" | Main | Ind. Decisions - COA posts another opinion, an order on rehearing »

Friday, January 18, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Jermaine Hines v. State of Indiana , a 9-page opinion where the issue was "Whether the trial court erroneously admitted the firearm into evidence.," Judge Pyle concludes:

In this case, law enforcement officers lawfully attempted to detain Hines based upon their reasonable suspicion that he had been engaged in criminal activity. While fleeing from law enforcement officers, Hines threw the firearm away. Hines was in such a rush to get away from law enforcement officers that he crashed his moped, got up, and continued to flee on foot. Additionally, Hines was in such a rush to get rid of the firearm that it struck the side of the house at 2309 Hendricks Street when he threw it away. The objective facts in this case show Hines’ clear intention to relinquish any possessory interest in the firearm. See Campbell v. State, 841 N.E.2d 624 (Ind. Ct. App. 2006) (defendant who threw firearm under a car after police shined flashlight on him was found to have abandoned firearm). Therefore, we affirm the trial court’s admission of the firearm into evidence.
John F. Harris, III v. State of Indiana , an 11-page opinion, Judge Crone writes:
John F. Harris, III, was convicted of possession of cocaine, which was enhanced to a class B felony because the offense occurred within 1000 feet of a family housing complex. Harris was also found to be a habitual offender based on prior convictions of escape and possession of cocaine with intent to deliver.

On appeal, Harris argues that a statutory defense to the class B felony enhancement applies because he was present in the proscribed zone for only a brief period of time and no children were present. Although no children were seen at the time of the offense, there was proof that children were residing in the immediate vicinity. We conclude that, pursuant to supreme court precedent, this evidence was sufficient to prove that children were present and therefore the defense was rebutted.

As to the habitual offender enhancement, Harris argues that he falls within a provision that precludes application of the enhancement to certain offenders who do not have more than one dealing offense. We agree that the State has failed to prove that Harris has more than one dealing offense, and we therefore reverse the habitual offender enhancement. * * *

The State relies on a document titled “Bail Review Pretrial Release Report” which indicates that Harris has a 1997 conviction of “Manufacture/Delivery of a Controlled Substance” from Illinois. The record is silent as to which drug Harris manufactured; therefore, we cannot determine which offense in Indiana is analogous to the Illinois conviction. Not all of Indiana’s manufacturing offenses fall within the sections identified in Indiana Code Section 35-50-2-8(b)(3)(C). The State has failed to prove that Harris has more than one conviction falling under Indiana Code Section 35-50-2-8(b)(3)(C). All the conditions of subparagraph (b)(3) are met; therefore, Harris is not a habitual offender, and we reverse the enhancement.

NFP civil opinions today (1):

Kelly Bertholet Stokes v. Estate of Kenneth Stokes (NFP)

NFP criminal opinions today (3):

Danielle Kelly v. State of Indiana (NFP)

Matthew A. Parks v. State of Indiana (NFP)

Jonathan Books v. State of Indiana (NFP)

Posted by Marcia Oddi on January 18, 2013 11:23 AM
Posted to Ind. App.Ct. Decisions