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Wednesday, August 14, 2013
Ind. Decisions - Court of Appeals issues 3 today (and 25 NFP)
For publication opinions today (3):
In Richard Dillon v. State of Indiana , a 9-page, 2-1 opinion, Judge Vaidik writes:
The State charged Richard Dillon with operating while intoxicated as a Class D felony based on a prior conviction within five years. Dillon moved to dismiss the felony enhancement because when he allegedly committed the instant OWI, he did not have a prior OWI within five years because the State had inadvertently dismissed it. The trial court denied Dillon’s motion to dismiss, reasoning that the trial court had reinstated Dillon’s prior OWI conviction with a nunc pro tunc entry. We find that because the trial court made the nunc pro tunc entry reinstating Dillon’s prior OWI conviction after he allegedly committed the OWI in this case, he in fact did not have a prior OWI within five years when he allegedly committed the OWI in this case. The trial court should have granted Dillon’s motion to dismiss the felony enhancement. We therefore reverse. * * *In Christopher Naas v. State of Indiana, a 6-page opinion, Judge Vaidik writes:
FRIEDLANDER, J., concurs.
BAKER, J., dissents with separate opinion.
Christopher Naas appeals his conviction for Class B misdemeanor public intoxication under Indiana’s recently amended statute. He contends that the evidence is insufficient to show that he was intoxicated and that he breached the peace and/or annoyed or alarmed another person. The evidence of Naas’s red, watery eyes, slurred speech, unsteady balance, odor of alcohol about his person, and Naas alarming others by walking toward them in an aggressive manner while yelling at them which caused them to back away from him is sufficient to prove public intoxication. We therefore affirm his conviction.In Nick McIlquham v. State of Indiana, a 14-page opinion, Judge Baker writes:
The appellant-defendant Nick McIlquham is appealing his convictions for the Unlawful Possession of a Firearm by a Serious Violent felon,1 a class B felony, Neglect of a Dependent,2 a class D felony, Possession of Marijuana,3 a class A misdemeanor, and Possession of Paraphernalia,4 a class A misdemeanor. McIlquham challenges the police officers’ search of the apartment where he occasionally resided and the discovery of a handgun, marijuana, and a scale in the residence. As a result, McIlquham argues that these items should not have been admitted into evidence at trial. Finally, McIlquham maintains that his conviction for possession of paraphernalia cannot stand because the State failed to present sufficient evidence with regard to that offense.NFP civil opinions today (10):
The State counters that the seizure of these items and their admission into evidence did not violate McIlquham’s Fourth Amendment rights under the United States Constitution because the search of the apartment was consensual and contends that the community caretaking exception to the warrant requirement justified the warrantless search.
We conclude that McIlquham’s Fourth Amendment rights were not violated and the evidence was properly admitted into evidence. Similarly, we find that the evidence was sufficient to support McIlquham’s conviction for possession of paraphernalia. Thus, we affirm McIlquham’s convictions.
NFP criminal opinions today (15):
Posted by Marcia Oddi on August 14, 2013 10:28 AM
Posted to Ind. App.Ct. Decisions