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Friday, February 22, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Clematine Hollingsworth v. State of Indiana , a 6-page opinion, Judge Friedlander writes:

Following a bench trial, Clematine Hollingsworth was convicted of Public Intoxication, a class B misdemeanor. Hollingsworth appeals and argues that the failure to retroactively apply a recent amendment to the public intoxication statute to her offense constituted fundamental error. We affirm. * * *

Hollingsworth also argues that “this would not be the first case where the issue of retroactive application of a remedial statute was raised for the first time on appeal.” In support of this assertion, Hollingsworth cites Martin v. State, 774 N.E.2d 43 (Ind. 2002) and Palmer v. State, 774 N.E.2d 46 (2002). In both of those cases, however, the relevant statutory amendments at issue took place while the defendant’s appeal was pending. In this case, the General Assembly approved the amendment to the public intoxication nearly two months before Hollingsworth committed the instant offense, and the amendment took effect the day before Hollingsworth’s trial. Unlike the defendants in Martin v. State and Palmer v. State, Hollingsworth had the opportunity to raise the issue of retroactivity before the trial court and failed to do so. The purpose of the contemporaneous objection rule is “to promote a fair trial by precluding a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him.” Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied. The rule serves this purpose by requiring parties to timely raise objections “so that harmful error may be avoided or corrected and a fair and proper verdict will be secured.” Id. We decline to abandon the contemporaneous objection rule here.

In Nathan Carl Gilbert v. State of Indiana , a 10-page opinion, Judge May concludes:
Gilbert’s return to Kentucky following his guilty plea hearing but before his sentencing hearing did not violate the IAD anti-shuffling provision because sentencing is not included in those parts of criminal proceedings protected as part of the IAD; we therefore affirm Gilbert’s convictions of four counts of Class B felony burglary. However, Gilbert’s due process rights were violated because he did not have enough time to examine his pre-sentence investigation report, call witnesses, or otherwise prepare for his sentencing hearing. We accordingly reverse his sentences and remand to the trial court for resentencing.
InJoshua King v. State of Indiana , an 8-page opinion, Judge May writes:
Joshua King appeals his convictions of Class C felony battery, Class A misdemeanor battery, and Class D felony strangulation. He submits four issues for our review, which we consolidate and restate as:
1. Whether the trial court violated King’s rights under the Confrontation Clause when it admitted testimony by Officer Philip Rossman;
2. Whether the trial court abused its discretion when it admitted recordings of calls King made to the victim from jail; and
3. Whether the trial court erroneously listed one of King’s convictions as a Class C felony instead of a Class A misdemeanor.
We affirm and remand. * * *

The trial court did not abuse its discretion when it admitted Officer Rossman’s testimony. Further, any error in admission of evidence from Carpenter and Nurse Anderson was harmless as cumulative of Officer Rossman’s testimony. Finally, the trial court did not abuse its discretion when it admitted the recordings of calls King made to C.M. from jail. However, the Abstract of Judgment incorrectly lists King’s second battery conviction as a Class C felony, and we remand for correction of the Abstract of Judgment.

NFP civil opinions today (2):

Shawn W. Nicosin v. William J. Mesaeh and Loretta D. Mesaeh (NFP)

Pablo C. Gallo v. Sandra Moira Hyland (NFP)

NFP criminal opinions today (3):

John Kennendy v. State of Indiana (NFP)

Kelvin Hampton v. State of Indiana (NFP)

Kevin Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on February 22, 2013 10:52 AM
Posted to Ind. App.Ct. Decisions