Tuesday, April 23, 2013
Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)
For publication opinions today (3):
In Kenyatta Erkins and Ugbe Ojile v. State of Indiana , a 32-page opinion, Judge Crone writes:
Appellants appeal their convictions arguing that (1) the trial court erred in permitting the State to amend the charging information on the second day of trial; (2) the evidence was insufficient to support their convictions for class A felony conspiracy because no actual injury to S.M. occurred, and even if actual injury is not required to sustain their convictions, there was insufficient evidence that they intended and agreed to cause S.M. serious bodily injury; (3) the trial court abused its discretion in admitting the evidence gathered after they left the casino; (4) the trial court abused its discretion in admitting testimony that interpreted the slang used in their phone conversations; and (5) the prosecutor committed misconduct resulting in fundamental error during closing argument by referring to the possible murder of S.M. because it was unsupported by the evidence. Ojile also argues that his counsel provided ineffective assistance by failing to argue the defense of abandonment.In Paul Sparks v. State of Indiana, a 2-page opinion, Chief Judge Robb writes:
We conclude that (1) the amendment to the charging information was one of form, not substance, and therefore the trial court did not err in permitting the amendment; (2) the evidence was sufficient to show that Appellants intended and agreed to commit a robbery of S.M. that would result in serious bodily injury, which is all that is required to obtain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury; (3) the trial court did not abuse its discretion in admitting evidence gathered after Appellants left the casino; (4) most of the testimony interpreting Appellants’ conversation was helpful to the jury and therefore admissible, and any error in admitting inadmissible interpretations was harmless; and (5) the prosecutor did not present argument that was unsupported by the evidence and therefore did not commit misconduct let alone cause fundamental error. We also conclude that Ojile’s trial counsel did not render ineffective assistance. Accordingly, we affirm Appellants’ convictions.
The State has petitioned for rehearing of this court’s decision in Sparks v. State, 983 N.E.2d 221 (Ind. Ct. App. 2013), in which we held that the trial court did not handle Sparks’s probation revocation hearing in a way that comports with his due process rights, and we reversed and remanded for a new probation revocation hearing. We grant the petition for rehearing for the sole purpose of clarifying what is required on remand, but affirm our opinion in all respects.In Joanna S. Robinson v. State of Indiana , a 13-page opinion, Judge Crone writes:
A sheriff’s deputy observed Joanna S. Robinson briefly drive onto the fog line twice. The deputy decided to stop Robinson for “unsafe lane movement.” Tr. at 24. Based on evidence obtained from this stop, Robinson was convicted of operating while intoxicated and possession of marijuana. On appeal, Robinson challenges the admission of the evidence obtained from the stop, which she had sought unsuccessfully to exclude from trial on the basis that the traffic stop was not supported by reasonable suspicion. The State argues that the deputy had reasonable suspicion that she was impaired. We conclude that Robinson’s brief contact with the fog line – at night on a road with some curves – was not sufficient to establish reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained from the stop should not have been admitted, and Robinson’s convictions must be reversed. * * *
Robinson filed a motion to suppress the evidence obtained from the traffic stop. The motion asserted that the video from Deputy Claeys’s vehicle showed that she stayed within her lane and that he therefore lacked reasonable suspicion to conduct a traffic stop. * * *
In this case, Robinson was driving late at night on a road with some curves. On two occasions, she briefly touched the fog line and then immediately returned to her lane. There is no indication that she swerved sharply or overcorrected. The trial court, which viewed the video several times, acknowledged that Robinson’s driving was not inconsistent with a driver who was momentarily distracted. While we give weight to the trial court’s findings of fact, the ultimate conclusion regarding reasonable suspicion is reviewed de novo. Lindsey, 916 N.E.2d at 238. Given the fact that it was dark, that the road had some curves, and that Robinson made only brief contact with the fog line, we conclude that the State failed to establish that the traffic stop was supported by reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained from the stop should not have been admitted. We reverse her convictions, which were dependent on the improperly admitted evidence.
NFP civil opinions today (3):
NFP criminal opinions today (3):
Posted by Marcia Oddi on April 23, 2013 10:32 AM
Posted to Ind. App.Ct. Decisions