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Monday, April 08, 2013

Ind. Decisions - Court of Appeals issues 7 today (and 12 NFP)

For publication opinions today (7):

In Detona Sargent and One 1996 Buick, VIN 1G4AG55M3T6449095 v. State of Indiana, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Police Department , an 11-page opinion, Judge Najam writes:

Detona Sargent appeals the trial court’s grant of summary judgment for the State of Indiana, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Police Department (collectively referred to as “the State”), on the State’s request that Sargent’s vehicle be forfeited pursuant to Indiana Code Section 34-24-1-1(a)(1)(B). Sargent raises two issues for our review, which we restate as follows: 1. Whether there was a sufficient nexus between the underlying crime and the seized property; and 2. Whether either Indiana’s statutory bankruptcy exemptions or Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s vehicle from forfeiture. We affirm. * * *

The undisputed evidence shows that Sargent intended to leave her workplace in her car following the theft. She drove her car to work, and she allowed a co-worker to borrow her car on the express condition that the co-worker return in time for Sargent to leave. As such, there is a clear nexus between Sargent’s theft of the four iPhones and her car, which she intended for use to transport the stolen goods. That Sargent’s attempted theft was not successful is irrelevant to the State’s lawful seizure of the vehicle. * * *

In sum, we hold that the State demonstrated a sufficient nexus between the underlying crime and the seized property. We also hold that neither Indiana’s statutory bankruptcy exemptions nor Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s vehicle from forfeiture. Accordingly, we affirm the court’s forfeiture order.

In Kevin Perry v. Unemployment Insurance Review Board of the Indiana Dept. of Workforce Development and Indiana Dept. of Workforce Development UI Claims Adjudication Center, a 10-page opinion, Judge Najam writes:
Kevin Perry1 appeals the order of the Review Board (“Review Board”) of the Indiana Department of Workforce Development, affirming the findings and conclusions of the Administrative Law Judge (“ALJ”) and terminating Perry from the Trade Adjustment Assistance (“TAA”) training program. Perry presents three issues for review, which we consolidate into a single issue, namely, whether the Review Board’s decision affirming the termination of Perry’s participation in the TAA training program is erroneous.
We affirm.
In Gary Hammerstone, Susan Hammerstone, Palmor Products, Inc., Northhampton Farm Bureau Cooperative Association, and Canns-Bilco Distributors, Inc. v. Indiana Insurance Company, a 12-page opinion, Judge Kirsch writes:
[Appellants] appeal the trial court’s order granting summary judgment in favor of Indiana Insurance Company (“Indiana Insurance”) and denying summary judgment in the favor of the Appellants. The Appellants raise the following dispositive issue for our review: whether the trial court erred in granting summary judgment in favor of Indiana Insurance because the umbrella policy was ambiguous due to the fact that the declarations page stated that there was product liability coverage and the policy denied coverage through a structural ambiguity in the language of the policy.
We reverse and remand. * * *

Finding an ambiguity in the Umbrella Policy, we must construe the Umbrella Policy strictly against the insurer. Lake States Ins., 743 N.E.2d at 318. Construing the Umbrella Policy against Indiana Insurance, we conclude that there is coverage for Palmor as to products-completed operations claims as a matter of law. Therefore, the trial court erred in granting summary judgment in favor of Indiana Insurance and in denying the Appellants’ motion for summary judgment. We reverse the trial court’s order and remand for proceedings consistent with this opinion, including findings by the trial court as to whether Northhampton and CBD qualify as indemnitees of Palmor under the Umbrella Policy and whether Northhampton, CBD, and the Hammerstones have assignee rights as part of the Hammerstone Claim.

In Lorenzo Reid and Larry Blake, a/k/a Larry Reid v. State of Indiana, a 19-page opinion, Judge Bradford writes:
Appellants-Petitioners Lorenzo Reid and Larry Blake seek post-conviction relief from their convictions and respective fifty-four and forty-four year sentences for murder and Class C felony attempted robbery. On September 21, 1990, Reid, Blake, and an unidentified third man were involved in an attempted robbery of a liquor store that resulted in the death of the owner of the liquor store. Following separate jury trials, both Reid and Blake were convicted of murder and Class C felony attempted robbery, and their convictions were affirmed on direct appeal. Reid and Blake subsequently requested post-conviction relief, and the instant appeal stems from the denial of these requests. Concluding that neither Reid nor Blake are entitled to post-conviction relief, we affirm the judgment of the post-conviction court. * * *

In sum, Appellants’ due process rights were not violated by the post-conviction loss or destruction of certain evidence, Appellants were not entitled to a new trial because the State failed to disclose before trial that one of its witnesses had a possible prior criminal conviction, and Appellants did not receive ineffective assistance of trial counsel. Accordingly, we affirm the post-conviction court’s denial of Appellants’ petitions for relief.

In Halden Martin v. State of Indiana , a 20-page opinion, Judge Vaidik writes:
Halden Martin appeals his conviction for Class A misdemeanor dangerous operating a vehicle while intoxicated. He appeals arguing that the trial court erred in denying his Criminal Rule 4(C) motion for discharge because his trial occurred more than one year after he was charged and arrested. Because the days that count toward the Rule 4(C) period exceed 365, we conclude that the trial court should have granted Martin’s motion for discharge. We therefore reverse the trial court and remand for vacation of his conviction. * * *

What this boils down to is what party should bear the responsibility of a State’s witness not showing up to two scheduled depositions at which the witness was subpoenaed both times. Martin says the State Department of Toxicology told him that Anderson was “unavailable” both times, and the State does not offer a contrary explanation on appeal. Moreover, the State does not allege that Martin did not provide Anderson with reasonable notice of the depositions, which is required by Trial Rule 30(B)(1). We find that the balance tips in favor of Martin and therefore conclude that the trial court abused its discretion in charging the delay to him. Thus, the 182 days from September 27, 2011, to March 26, 2012, count toward the Rule 4(C) period, bringing the total to 476 days.9 Because the days that count toward the Rule 4(C) period exceed 365, the trial court should have granted Martin’s motion for discharge. We therefore reverse the trial court and remand for vacation of his conviction.

In Darryl Shepherd v. State of Indiana , a 3-page opinion on a petition for rehearing, Judge Najam writes that its ruling is not impacted by the Indiana Supreme Court in Dye v. State, where:
In its opinion on rehearing, the [supreme] court clarified that its earlier holding was not intended to break new ground but, rather, was simply an application of the law announced in Mills v. State, 868 N.E.2d 446 (Ind. 2007). * * *

Mills
is established law and was available to Shepherd at the time he filed his initial brief on direct appeal, but Shepherd did not argue that Mills or related law applied in his appeal. “[I]t is well established that ‘any question not argued on appeal cannot be raised for the first time in a petition for rehearing.’” [cites omitted] Shepherd’s argument in his petition on rehearing that Mills or related law should be applied to him is waived.
In Adolfo Lopez v. State of Indiana, a 7-page opinion, Judge Crone writes:
Adolfo Lopez appeals the trial court’s denial of his motion for bond reduction. Lopez and 108 other individuals were charged with numerous nonviolent crimes involving a chain of Acapulco Mexican restaurants co-owned by Lopez. Specifically, Lopez was charged with six class C felonies and four class D felonies. The trial court set Lopez’s bond at $3,000,000 surety plus $250,000 cash. On appeal, Lopez asserts the trial court abused its discretion in denying his motion for bond reduction. Finding the bond excessive, we conclude that the trial court abused its discretion when it denied the motion for reduction. Therefore, we reverse and remand.
NFP civil opinions today (3):

Term. of the Parent-Child Rel. of S.B.: U.D. and L.B. v. Indiana Dept. of Child Services (NFP)

In the Matter of C.C., Child in Need of Services; C.C. (Father) v. Indiana Dept. of Child Services (NFP)

Tariq Qureshi and Mehnaz Qureshi v. Richard E. Coulter, Cox/Hammond Realty Group, and Darrell Cox (NFP)

NFP criminal opinions today (9):

Chad Lindstrom v. State of Indiana (NFP)

Jason Neal v. State of Indiana (NFP)

Franklin Allen v. State of Indiana (NFP)

Terrell Van Causey v. State of Indiana (NFP)

Theodore Fuentes v. State of Indiana (NFP)

Evia Jane Lee v. State of Indiana (NFP)

Samantha Richey v. State of Indiana (NFP)

Patrick Wiese v. State of Indiana (NFP)

John C. Kincade, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on April 8, 2013 01:21 PM
Posted to Ind. App.Ct. Decisions