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Friday, August 09, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Eddie Spalding v. State of Indiana, a 12-page opinion, Judge Barnes writes:

Spalding argues that the trial court improperly denied his motion to dismiss and discharge because the time limit for trying him has passed. * * *

Spalding contends that, of the 470 days from the date he was charged until the date he filed his second motion to dismiss and discharge, only seventy-five days were attributable to him. According to Spalding, the State failed to timely bring him to trial in violation of Indiana Criminal Rule 4(C)

The State responds by arguing, “because Defendant was in a foreign jurisdiction for several months following his arrest and the filing of charges against him in Indiana, Criminal Rule 4(C) does not apply to those time periods when he was outside the jurisdiction.” Effectively, however, the State asks us to apply Criminal Rule 4(C) and attribute the time Spalding was incarcerated out of state to him. According to the State, when considering the time Spalding was in federal custody outside of Indiana, only 181 days are attributable to the Criminal Rule 4(C) time limit and, therefore, the motion to dismiss and discharge was properly denied. * * *

Because Criminal Rule 4(C) did not apply while Spalding was not in the exclusive control of Indiana, he has not shown that the trial court erroneously denied his motion to dismiss and discharge.

In Thomas W. Oster, II v. State of Indiana , a 17-page, 2-1 opinion, Judge Bradford concludes:
We conclude that the State produced sufficient evidence to sustain Oster’s Class C felony burglary conviction and the finding that he is a habitual offender. We also conclude that the trial court did not commit fundamental error in instructing the jury. We agree, however, that Oster’s conviction for Class A misdemeanor criminal mischief violates constitutional prohibitions against double jeopardy. We therefore remand with instructions to vacate Oster’s conviction and sentence for criminal mischief. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

BROWN, J., concurs.
RILEY, J., dissents with opinion. [which begins at p. 14 and which concludes] Although the evidence in this case might well support the conclusion that Oster “intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or illegal act[,] that is not the issue to be resolved.” Freshwater, 853 N.E.2d at 943 (quoting Gebhart v. State, 531 N.E.2d 211, 212 (Ind. 1988)). Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge. I would therefore reverse Oster’s burglary conviction.

NFP civil opinions today (2):

In the Matter of S.K., A Child in Need of Services; and A.R. v. The Indiana Dept. of Child Services (NFP)

Nephrology Specialists, P.C., Shahabul Arfeen, M.D., Sanjeev Rastogi, M.D., Maher Ajam, M.D. and Raied Abdullah, M.D. v. Asim Chughtai, M.D., Rafael Fletes, M.D., Kupusamy Umapathy, M.D., et al. (NFP)

NFP criminal opinions today (2):

Andrew Wright, Jr. v. State of Indiana (NFP)

Tranell Nash v. State of Indiana (NFP)

Posted by Marcia Oddi on August 9, 2013 11:19 AM
Posted to Ind. App.Ct. Decisions