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Friday, January 25, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Term. of the Parent-Child Rel. of: D.T., (Minor Child), and T.S. (Father) v. The Indiana Dept. of Child Services, a 12-page opinion, Chief Judge Robb writes:

T.S. (“Father”) appeals the termination of his parental rights as to D.T. and raises one issue on appeal: whether his due process rights were violated when the lower court did not appoint a Guardian ad Litem (“GAL”) for Father. Concluding that his due process rights were not violated, we affirm.
In David Delagrange v. State of Indiana , a 14-page opinion with a dissent beginning on p. 10, Judge May writes:
David Delagrange appeals his conviction of four counts of Class C felony attempted child exploitation. Delagrange presents two issues, one of which we find dispositive: Whether the trial court erred when it denied Delagrange’s motion for directed verdict. We reverse and remand.

On February 27, 2010, Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. Delagrange’s conduct triggered concern, and a store manager contacted an off-duty police officer. The officer approached Delagrange, who attempted to flee. Delagrange was immobilized with a taser and arrested. The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and Class A misdemeanor resisting law enforcement. * * *

Due process prohibits Delagrange’s convictions under the statutes that existed at the time of his actions, though it appears similar acts in the future could be punished as public voyeurism. As the statutes in force when Delagrange committed his acts required conduct by the child, we are compelled to reverse his convictions and remand, as there was no evidence any of the minors were involved in the type of conduct required by the child exploitation statute. * * *

As the opinion on interlocutory appeal did not address the portion of the statute at issue here, the issue herein is not res judicata.

KIRSCH, J., concurs.
NAJAM, J., dissents with separate opinion. * * * I would hold that the law of the case doctrine precludes such a reconsideration of the relevant statutory language. But, second, the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires. Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children. * * *

In sum, the law of the case doctrine precludes our consideration of the issues raised in this appeal. And, to the extent that the majority reads the child exploitation statute to require a child victim to actively participate in the sexual conduct element of the crime, I disagree. While the statute may not be well-drafted, the legislature cannot have intended that interpretation.

For more on the "shoe camera" case, start with this post from June 27, 2010.

In Robertson Fowler v. State of Indiana, a 3-page opinion, Judge May writes:

Robertson Fowler petitions for rehearing of our decision dated August 31, 2012, affirming the denial of his petition for post-conviction relief. In that opinion, we held Fowler’s guilty plea precluded him from later challenging his sentence. We grant his petition for rehearing in order to acknowledge and address a subsequent decision by another panel of this court that reached a different result in resolving a similar allegation of error, and we reaffirm our original opinion.
NFP civil opinions today (1):

Term. of the Parent-Child Rel. of D.C., Minor Child; A.R., Mother, and S.C., Father v. Indiana Dept. of Child Services, Lake County CASA (NFP)

NFP criminal opinions today (7):

David McCombs v. State of Indiana (NFP)

Dale D. Engle v. State of Indiana (NFP)

Charles Kingery v. State of Indiana (NFP)

Ricky J. Thurston v. State of Indiana (NFP)

D.J. v. State of Indiana (NFP)

Paul Hoffert, Jr. v. State of Indiana (NFP)

Kip Hurt v. State of Indiana (NFP)

Posted by Marcia Oddi on January 25, 2013 10:46 AM
Posted to Ind. App.Ct. Decisions