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Tuesday, October 08, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (4):

In Indiana State Ethics Commission, Office of Inspector General, an agency of the State of Indiana, and David Thomas, in his official capacity as Inspector General v. Patricia Sanchez, an 11-page opinion, Judge Najam writes:

The Indiana State Ethics Commission (“the Ethics Commission”), the Office of Inspector General (“OIG”), and David Thomas, in his official capacity as Indiana’s Inspector General (collectively referred to as “the Appellants”), appeal the trial court’s reversal of the Ethics Commission’s Final Report against Patricia Sanchez. The Appellants raise four issues for our review, but we need address only the following two issues: 1. Whether the Ethics Commission was prohibited by the doctrine of res judicata from reconsidering the trial court’s prior decision that the State’s evidence against Sanchez had been seized without probable cause. 2. Whether the trial court erroneously determined that remanding to the Ethics Commission would be futile. We affirm. * * *

Remanding on these facts would be pointless. Pursuant to Indiana Code Section 4-2-6-4(b)(2), if the OIG’s ethics complaint is not supported by probable cause the Ethics Commission may either “dismiss the complaint,” I.C. § 4-2-6-4(b)(2)(A)(iii), or “refer the alleged violation for additional investigation by the inspector general,” I.C. § 4-2-6-4(b)(2)(C). But there is nothing left for the inspector general to investigate here. As explained above, the trial court in the earlier criminal action found the information underlying the OIG’s ethics complaint to be stale and the evidence seized based on that information to be without probable cause. Those conclusions are only more true with the ensuing passage of time. Thus, the only option left for the Ethics Commission would be for it to formally dismiss the complaint. But we need not remand for mere formality. We affirm the trial court’s judgment.

In In the Matter of the Termination of the Parent-Child Relationship of: N.Q., Je.Q., Ja.Q., L.Q., Minor Children, T.Q., Mother, and A.Q., Father v. Indiana Department of Child Services, an 18-page opinion, Judge Brown writes:
T.Q. (“Mother”) and A.Q. (“Father,” and collectively with Mother, “Parents”) appeal the involuntary termination of their parental rights to their children, N.Q., Je.Q., Ja.Q., and L.Q. (collectively, the “Children”). Parents raise one issue, which we revise and restate as whether the evidence is sufficient to support the trial court’s judgment terminating their parental rights. We reverse and remand. * * *

Recognizing that the involuntary termination of parental rights is the most extreme measure that a court can impose and is only designated as a last resort when all other reasonable efforts have failed, In re A.I., 825 N.E.2d at 805, and in light of the fact that DCS chose to rely primarily on the initial termination proceedings which occurred a year-and-a-half prior to the October 1, 2012 Second Termination Hearing, that the Parents’ presented evidence that their current situation had changed significantly, and especially that DCS did not investigate the Parents’ current situation leading up to the Second Termination Hearing but chose rather to rely upon circumstances, some of which were over two years old, we conclude that the court committed clear error in terminating Parents’ parental rights to the Children. We reverse and remand for a hearing which fully considers the Parents’ current circumstances as well as their habitual patterns of conduct to the extent that such patterns exist.

In David Holbert v. State of Indiana, a 10-page opinion, Judge Najam writes:
David Holbert appeals his convictions for possession of marijuana, as a Class A misdemeanor, and public intoxication, as a Class B misdemeanor, following a bench trial. Holbert raises the following two issues for our review: 1. Whether the State violated Holbert’s rights under the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Indiana Constitution when it stopped him and searched his person; and 2. Whether the State presented sufficient evidence to support his conviction for public intoxication. We affirm in part and reverse and remand in part. * * *

[1] Thus, the officers properly stopped, frisked, observed, and seized the marijuana from Holbert, and the trial court did not abuse its discretion under either the federal or state constitution in the admission of this evidence.

[2] Holbert also argues that the State failed to present sufficient evidence to support his conviction for public intoxication, as a Class B misdemeanor. * * *

Historically, to prove public intoxication, as a Class B misdemeanor, it was enough for the State to show that the defendant was intoxicated while in a public place. * * *

As a result of our supreme court’s decision in Moore, the General Assembly amended Indiana Code Section 7.1-5-1-3 * * * Thus, the amended statute reflects this court’s pre-Moore decisions that the “‘[t]he spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places.’” * * *

Holbert argues that the State failed to meet its burden under the amended statute because, while he was plainly intoxicated in a public place, there is no evidence that he met any of the four enumerated criteria while in a public place. The State responds that Holbert’s behavior alarmed Allen when he walked across her yard and that she continued to be alarmed when she observed Holbert walking on the sidewalk. Thus, the State contends that it does not matter whether Holbert’s behavior in Allen’s yard, the behavior that initially alarmed her, did not occur in a public place because she remained alarmed after Holbert had entered onto the sidewalk.

This is a question of first impression in our interpretation of the amended statute. * * *

There is no question that Holbert’s behavior alarmed Allen, but there is also no question that his alarming behavior did not occur in a public place. Accordingly, we agree with Holbert that the State failed to present any evidence that he committed any of the four criteria listed in the public intoxication statute while in a public place and, as such, we must reverse his conviction for public intoxication, as a Class B misdemeanor. We remand with instructions that the trial court vacate Holbert’s public intoxication conviction.

NFP civil opinions today (2):

Andrew Bridgford v. Julie K. Bridgford (NFP)

Bradley R. Benard v. Review Board of the Indiana Department of Workforce Development and Rolls-Royce Corporation (NFP)

NFP criminal opinions today (6):

Larry Warren v. State of Indiana (NFP)

Stephen G. Bentle v. State of Indiana (NFP)

David Lee O'Banion v. State of Indiana (NFP)

Jason Frye v. State of Indiana (NFP)

D.H. v. State of Indiana (NFP)

Phillip A. Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on October 8, 2013 12:19 PM
Posted to Ind. App.Ct. Decisions