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Friday, October 25, 2013

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

For publication opinions today (4):

In Carrie A. Krampen v. James J. Krampen, a 16-page, 2-1 opinion, Judge Pyle writes:

Carrie Krampen, a/k/a Carrie Carpenter appeals the trial court’s grant of a petition to modify child support and provide an accounting of future child support payments filed by James J. Krampen), Carrie’s ex-husband. We reverse and remand.

Issues: 1. Whether the trial court’s findings of fact and conclusions of law supported the order of an accounting of future child support expenditures under Ind. Code § 31-16-9-6. 2. Whether the trial court’s findings of fact and conclusions of law supported the finding of a substantial and continuing change in circumstances justifying a reduction of child support. * * *

Typically, changes in parents’ income, emancipation, increase in educational expenses, and changes in custody of a child qualify as substantial and continuing circumstances that justify modifying a support order. See Borum v. Owens, 852 N.E.2d 966 (Ind. Ct. App. 2006); Borth v. Borth, 806 N.E.2d 866 (Ind. Ct. App. 2004); Rice v. Rice, 460 N.E.2d 1228, (Ind. Ct. App. 1984). However, the question of whether misuse of funds by the custodial parent creates a substantial and continuing change is an issue of first impression not addressed by our court. Yet, we need not address it. Having just found that there was insufficient evidence to support a finding that child support had been misappropriated, the trial court’s modification of child support on that basis was also inappropriate.

We reverse and remand with instructions for the trial court to enter a new child support order consistent with this opinion and the Child Support Guidelines.

VAIDIK, J., concur.
KIRSCH, J., dissent. [with no opinion]

In Jason Lee Sowers v. State of Indiana, a 3-page opinion on rehearing, Judge Brown writes:
Jason Lee Sowers petitions for rehearing following our published opinion in Sowers v. State, 988 N.E.2d 360 (Ind. Ct. App. 2013), in which we held that the communication between the bailiff and the foreperson resulted in fundamental error and reversed Sowers’s convictions for criminal recklessness as a class D felony, resisting law enforcement as a class D felony, and his adjudication as an habitual offender, and remanded for proceedings. On rehearing, Sowers raises one issue, which we revise and restate as whether this court should address an insufficient evidence claim. For the following reasons, we grant Sowers’s petition for rehearing.

Sowers argues on rehearing that he raised a claim of insufficient evidence of sanity on appeal, the State responded, and the claim was addressed in Sowers’s reply brief, but this court did not address the insufficient evidence of sanity claim. Sowers contends that this court should address his “insufficient of evidence of sanity claim to ensure that the double jeopardy clause of the federal constitution will not be violated by retrial.” * * *

In his dissent, Judge Bradford addressed the sufficiency of evidence, stated that it was for the jury to weigh the evidence including the reports submitted by Drs. Little and Rogers as well as Detective Blackwell’s testimony, and concluded that the evidence was sufficient to support the jury’s determination regarding Sowers’s mental state. 988 N.E.2d at 372-373. We adopt Judge Bradford’s analysis on this issue and conclude that the evidence is sufficient to permit retrial.

For the foregoing reasons, we grant Sowers’s petition for rehearing and remand for proceedings consistent with this opinion.
BRADFORD, J., concurs.
RILEY, J., would deny petition for rehearing.

In Michael A. Lane v. State of Indiana, a 17-page opinion, Judge Friedlander writes:
Michael A. Lane appeals his convictions for Murder, class B felony Conspiracy to Commit Dealing in a Schedule II Controlled Substance, and two counts of class C felony Criminal Recklessness. He presents the following restated issues for review: 1. Did the trial court abuse its discretion by rejecting Lane’s tendered jury instruction on reckless homicide as a lesser included offense of murder? 2. Did the trial court abuse its discretion by admitting certain hearsay evidence after concluding that Lane had opened the door to this previously excluded evidence? We affirm. * * *

In light of this overwhelming evidence placing Lane at the scene to complete a drug buy, the admission of additional evidence that, before the shooting, Derrington made calls to a phone number associated with Lane did not affect the verdict. The error was harmless beyond a reasonable doubt.

In Nathaniel Baker v. State of Indiana, a 9-page opinion, Judge Bradford writes:
During the early morning hours of December 5, 2011, Appellant-Defendant Nathaniel Baker, J.L.,1 and Rodney Zellers stole approximately forty-five gallons of gasoline belonging to David Stephan. On December 15, 2011, the State charged Baker with one count of Class D felony theft. During trial, the State introduced evidence of prior bad acts committed by Baker. The trial court admitted this evidence over Baker’s objection. Baker presented an alibi defense, claiming that he was with his fiancée the entire night in question. At the conclusion of trial, the jury found Baker guilty as charged. The trial court subsequently imposed a sentence of one and one-half years, with one year suspended. On appeal, Baker contends that the trial court abused its discretion in admitting the evidence of his prior bad acts. Concluding that it was error to admit the evidence of Baker’s prior bad acts but that the admission of the challenged evidence was harmless, we affirm.
NFP civil opinions today (1):

In the Adoption of B.R.; F.R. v. J.B. and E.B. (NFP)

NFP criminal opinions today (3):

Tyrez Boyd v. State of Indiana (NFP)

Daniel E. Wilkins v. State of Indiana (NFP)

Michael Grey v. State of Indiana (NFP)

Posted by Marcia Oddi on October 25, 2013 07:42 PM
Posted to Ind. App.Ct. Decisions