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Wednesday, July 31, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Michael E. Lyons, Ind; Denita L. Lyons, Ind.; Michael E. Lyons and Denita L. Lyons, as Co-personal Rep. of the Estate of Megan Renee Lyons, Deceased v. Richmond Community School Corp.Et Al. , a 2-page opinion, Judge Bradford writes:

Appellees/Defendants Richmond Community School Corporation and certain school administrators (“RCSC”) petition this court for rehearing. We grant RCSC’s petition, in part, for the limited purpose of concluding that, “[a]lthough there may be factual issues to be determined, whether there has been compliance with the [Indiana Tort Claims] Act’s notice requirement is a question of law for the court.” Gregor v. Szarmach, 706 N.E.2d 240, 241 (Ind. Ct. App. 1999); accord City of Indpls. v. Satz, 377 N.E.2d 623, 625 (1978). In our original opinion, we stated that the issue should be presented to the jury.

On remand, the trial court that should determine whether, in the exercise of ordinary diligence, Appellants/Plaintiffs Michael and Denita Lyons could have learned of RCSC’s alleged “tortious acts” prior to July 15, 2009. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992). July 15, 2009, was 180 days before the Lyonses filed notice of their claims on January 11, 2010. In all other respects, we reaffirm our original disposition.

In Don H. Dumont, M.D., v Penny Davis and Nicole Anderson, as Co-Administratrixes of the Estate of Charmitta Jordan, Deceased, a 28-page opinion, Judge Baker concludes:
In sum, we do not believe that either Dr. Fahey’s allegedly undisclosed opinion about atelectasis or Dr. Ehrie’s testimony in his capacity as a pathologist supported the trial court’s finding that Dr. Dumont’s counsel committed misconduct warranting a new trial. Moreover, we find that the Plaintiffs waived their objection to Dr. Fahey’s undisclosed opinions by failing to object to his testimony at trial. Finally, we conclude that because the Plaintiffs accepted a jury admonishment with regard to Dr. Ehrie’s testimony without also moving for a mistrial, and the Plaintiffs did not establish actual surprise resulting from his testimony, the trial court erred by granting the Plaintiffs a new trial. The judgment of the trial court is reversed.
In Bruce Ryan v. State of Indiana, a 23-page opinion, Judge Crone writes:
Bruce Ryan appeals his two convictions for class C felony sexual misconduct with a minor. He argues that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly urged the jury to convict him for reasons other than his guilt, and improperly commented on the truthfulness of the victim. Having failed to preserve his claims of error, he argues that the cumulative effect of the prosecutor’s misconduct resulted in fundamental error requiring reversal of his convictions and remand for a new trial. We conclude that the prosecutor committed misconduct by suggesting to the jury that Ryan was having a jury trial to try to get away with his crime, by telling the jury that defense counsel made an argument that allows guilty people to go free and was a trick, by urging the jury to convict him “to send the message that we’re not going to allow people to do this” and by telling the jury that the victim told the truth about what happened. We further conclude that the error resulting from this misconduct is fundamental, and therefore we reverse Ryan’s convictions and remand for a new trial. * * *

Reversed and remanded.
ROBB, C.J., and FRIEDLANDER, J., concur.
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[6] Another panel of this Court recently issued a memorandum decision in which the defendant claimed that prosecutorial misconduct resulted in reversible error. Spiegel v. State, No. 49A02-1208-CR-687 (Ind. Ct. App. Apr. 18, 2013). The Spiegel court concluded that the prosecutor improperly expressed her personal opinion as to the credibility of a witness, improperly inflamed the passions or prejudices of the jury, improperly commented on the possible penal consequences of conviction, and improperly highlighted the disparate roles of the prosecution and defense. Nevertheless, the Spiegel court concluded that reversal was not warranted because as to the first instance of misconduct the evidence of guilt was abundant and therefore Spiegel was not subjected to grave peril, and as to the other three instances Spiegel waived his fundamental error claims. In his concurring opinion, Judge Friedlander observed that despite admonishment from this Court, “instances of condemnable prosecutorial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis.” Id., slip op at * 7. This case demonstrates the unfortunate result of the failure to heed our admonishments; namely, prosecutorial misconduct that requires reversal.
[ILB: Note, however, that Spiegel was NFP.]

In Seth A. Miller v. State of Indiana, a 6-page opinion, Sr. Judge Garrard concludes, in a case including a conviction for Corrupt Business Influence:
The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity.

The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated. In all other respects the judgment is affirmed.

NFP civil opinions today (3):

In the Matter of the Paternity of C.B., A.B. v. R.B. (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of M.N., Minor Child and his Father, M.D.N. v. Indiana Department of Chiild Services (NFP)

Abdul G. Buridi v. RL BB Financial, LLC (NFP)

NFP criminal opinions today (3):

Daniel R. Clemans v. State of Indiana (NFP)

James W. Baker, Jr. v. State of Indiana (NFP)

Joshua A. Yenna v. State of Indiana (NFP)

Posted by Marcia Oddi on July 31, 2013 11:29 AM
Posted to Ind. App.Ct. Decisions