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Friday, October 18, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Timothy S. Enders and Enders & Longway Builders, Inc., v. Debra Sue Enders as Personal Representative of the Estate of Randall Enders, a 3-page opinion on rehearing, Judge Baker concludes:

Having addressed Timothy’s argument on rehearing and finding it unpersuasive, we stand by our previous opinion.
In Floyd Weddle v. State of Indiana, a 5-page opinion on rehearing, Judge Baker writes:
We now grant Weddle’s petition for rehearing for the limited purpose of addressing an omitted issue regarding his convictions for both manufacturing methamphetamine and possession of methamphetamine. Weddle maintains that convicting him of both offenses violated the Indiana Constitution’s prohibition against double jeopardy. * * *

In light of our discussion above, the jury could have reasonably concluded that Weddle was in possession of methamphetamine and was in the process of manufacturing an additional amount of the drug. * * * As a result, we reject Weddle’s argument that convicting him of both manufacturing methamphetamine and possession of methamphetamine violated the prohibition against double jeopardy.

In conclusion, we grant Weddle’s petition for rehearing for the purpose of addressing his double jeopardy claim. In all other respects, we reaffirm our original opinion.

In David Rhodes v. State of Indiana, a 9-page opinion, Judge Pyle writes:
David Rhodes (“Rhodes”) appeals his conviction, following a bench trial, for two counts of Class D felony theft. We affirm.

ISSUE. Whether the trial court abused its discretion by admitting into evidence a cell phone and a credit card found in Rhode’s pocket during a patdown by police. * * *

The State contends that the evidence was admissible because it was properly seized pursuant either to a search incident to arrest or a proper Terry stop and search. * * *

Here, Rhodes contends that the cell phone and credit card were inadmissible, but he did not object when the State offered them into evidence. In fact, he affirmatively stated that he had “[n]o objection” to the admission of this evidence. Consequently, Rhodes has waived appellate review of his claim of error. * * *

Because Rhodes did not object to the admission of the evidence at issue and has failed to demonstrate any fundamental error in the admission of the evidence, we need not address the issue of whether the search of his person was lawful. * * *

Waiver notwithstanding, we conclude there is no error—fundamental or otherwise—because the specific facts before us support the conclusion that the evidence was properly seized pursuant to a search incident to arrest.

In Audie Wilson v. State of Indiana, an 11-page opinion, Judge Bailey writes:
Our Supreme Court has stated that the unnecessary, excessive, or unproved use of aliases could create a connotation of criminality sufficient to thwart the fairness of a trial. Edgecomb v. State, 673 N.E.2d 1185, 1194-95 (Ind. 1996). The use of a nickname is questionable where there is no apparent reason not to use a defendant’s proper name, and even more so where the nickname itself carries at least the implication of wrongdoing. See McAbee v. State, 770 N.E.2d 802, 805 (Ind. 2002).

Here, Wilson testified during direct examination as to his use of the nickname “Mike,” thus opening the door to questioning during cross-examination as to his use of other nicknames. Further, none of the nicknames explored by the State carry any implication of wrongdoing. Therefore, the use of nicknames here does not create a connotation of criminality sufficient to thwart the fairness of a trial. The trial court thus did not abuse its discretion when it admitted evidence on cross-examination as to Wilson’s use of nicknames.

Wilson contends that the trial court abused its discretion in giving to the jury Final Instruction 23. He argues that he is entitled to a new trial because the instruction improperly shifts to him the burden of proof as to whether he reasonably believed C.C. was at least sixteen years old. * * *

Here, however, Wilson failed to object at trial to Final Instruction 23, and thus he has waived appellate review of that instruction. See Ind. Crim. Rule 8(B); Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011). Wilson seeks to avoid waiver by claiming fundamental error. * * *

Therefore, we conclude the defense does not negate an element of the crime, but instead is an affirmative defense that must be raised by the defendant and for which the defendant must bear the initial burden of proof. * * *

The trial court did not abuse its discretion when it permitted the State to cross-examine Wilson regarding his use of other nicknames. Additionally, there was no fundamental error in giving Final Instruction 23.

NFP civil opinions today (1):

Jolene G. Burtrum v. Citizens Health Center (NFP)

NFP criminal opinions today (6):

Chad Musick v. State of Indiana (NFP)

J.M. v. State of Indiana (NFP)

Christopher T. Taylor v. State of Indiana (NFP)

Louis O'Neal v. State of Indiana (NFP)

Gregory Calvain v. State of Indiana (NFP)

Martin Cenfetelli v. State of Indiana (NFP)

Posted by Marcia Oddi on October 18, 2013 12:48 PM
Posted to Ind. App.Ct. Decisions