« Ind. Decisions - Supreme Court issues one today, on a rehearing petition | Main | Ind. Gov't. - "Trustee removed from office for first time in Indiana history, officials say" »

Thursday, October 31, 2013

Ind. Decisions - Court of Appeals issues 7 today (and 18 NFP)

For publication opinions today (7):

In Richard Prancik, b/n/f, Renee Prancik v. Oak Hill United School Corporation, an 11-page opinion, Judge Barnes writes:

The issue before us is whether Oak Hill was entitled to summary judgment on Prancik’s claim that Oak Hill breached a duty to him when a fellow student assaulted him. * * *

Here, Nolan was acting in accordance with reasonable protocol for supervising students at the time of the incident, neither she nor the school were on any kind of notice that K.M. could be violent, either generally or towards Prancik specifically, and he and Prancik were left unsupervised at most for a mere matter of minutes. These undisputed facts lead us to the conclusion that as a matter of law, Oak Hill did not breach its duty to reasonably supervise the students in its care.

A.C. v. N.J. - [ILB: see extended post on this opinion here]

In Gary Tibbs v. State of Indiana, a 6-page opinion, Judge May writes:

Gary Tibbs appeals his convictions of two counts of Class A felony child molesting, three counts of Class B felony child molesting,2 one count of Class D felony intimidation, and one count of Class D felony child solicitation. He claims the State committed prosecutorial misconduct when it commented during closing argument on the truthfulness of his testimony. * * *

Tibbs argues the State committed prosecutorial misconduct when “the deputy prosecutor created the false impression that Tibbs was lying when he testified truthfully that he had been incarcerated during part of the time he was alleged to have molested D.J.” * * *

We cannot say that the prosecutor’s actions amounted to fundamental error. The comment was merely a comment upon the evidence, which is permitted during closing argument.

In Michael R. Houston v. State of Indiana, a 7-page opinion, Judge Kirsch writes:
Michael R. Houston (“Houston”) was convicted after a jury trial of possession of cocaine1 as a Class D felony. He appeals raising the following restated issue: whether the State presented sufficient evidence to support his conviction. We reverse. * * *

Because Houston did not have direct physical control over the cocaine found in the car, the State had to prove that he had constructive possession of it.

In order to prove constructive possession of drugs, the State must show that the defendant has both: (1) the intent to maintain dominion and control over the drugs; and (2) the capability to maintain dominion and control over the drugs. * * *

The only evidence of constructive possession that the State points to is the statement by Houston regarding the vial of yellow-tinted liquid found in the center console area. The State contends that this statement was evidence that Houston was aware of items in and around the console area. Such evidence fails because there was no showing that the vial was connected to the cocaine in any way. Indeed, the evidence established that the vial was in plain view in the console of the vehicle, not in the crevice where the cocaine was found. In addition, the evidence failed to show that Houston even knew what was in the vial because he incorrectly identified the contents of the vial as urine, and Green testified that the vial actually contained anointing oil used in his church. Id. at 145. We conclude that the evidence presented at trial was not sufficient to prove the intent prong of constructive possession. We, therefore, reverse Houston’s conviction for possession of cocaine.

In Tin Thang v. State of Indiana, a 7-age opinion, Judge Crone writes:
Tin Thang was arrested at an Indianapolis gas station and charged with class B misdemeanor public intoxication. The trial court subsequently convicted him as charged. Thang now appeals, challenging the sufficiency of evidence to support his conviction. Finding that the evidence is insufficient to establish that the intoxicated Thang alarmed another person within the mean of the statute or endangered either his life or another person’s life, we reverse.
In Courtney Glenn v. State of Indiana, an 8-page opinion, Judge May writes:
Courtney Glenn appeals her convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. She presents the following issues for our review: 1. Whether there was sufficient evidence to sustain Glenn’s convictions; and 2. Whether Glenn’s convictions subjected her to double jeopardy. We affirm. * * *

The State presented sufficient evidence to convict Glenn of resisting law enforcement and disorderly conduct, and Glenn has not demonstrated her convictions rested on identical facts in violation of Indiana’s double jeopardy provision.

In David Wise v. State of Indiana, a 5-paage opinion, Judge Mathias writes:
David C. Wise (“Wise”) brings this interlocutory appeal from the order of the Marion Superior Court denying his pre-trial motion in limine which sought to exclude evidence regarding video recordings of video files found on Wise’s mobile phone. Concluding sua sponte that Wise’s motion to certify the trial court’s order for interlocutory appeal was deemed denied by operation of Indiana Appellate Rule 14(B)(1)(e), we dismiss. * * *

Here, our review of the record reveals that Wise’s motion to certify the trial court’s order for interlocutory appeal was deemed denied. Without proper certification, we have no jurisdiction to entertain an interlocutory appeal. Wesley v. State, 696 N.E.2d 882, 883 (Ind. Ct. App. 1998). Thus, our earlier decision to accept jurisdiction was improper, and we accordingly dismiss this appeal. Dismissed.

NFP civil opinions today (5):

In Re The Marriage of Brian C. Dickerson v. Shannon Dickerson (NFP)

Sharon Jasinski v. Mirian Brown (NFP)

Lyle B. Steele v. Asbury Glen Homes (NFP)

In the Matter of A.G.(Minor Child), A Child Alleged to be a Child in Need of Services J.G.(Mother) v. Indiana Department of Child Services (NFP)

In the Matter of Custody of: L.T. and A.B., minor children, R.L. and P.L. v. A.B. and R.B. (NFP)

NFP criminal opinions today (13):

In Re the Contempt of Dorothy Davis v. State of Indiana (NFP)

George Small v. State of Indiana (NFP)

James Tinzley v. State of Indiana (NFP)

Gerald M. Joyce v. State of Indiana (NFP)

Andre C. Greene v. State of Indiana (NFP)

Bryce Leighton v. State of Indiana (NFP)

Charles L. Hubbell v. State of Indiana (NFP)

Kevin James Porter v. State of Indiana (NFP)

James Averitte v. State of Indiana (NFP)

Steven Wilson v. State of Indiana (NFP)

Steven L. O'Bryant v. State of Indiana (NFP)

Jeffrey E. Howell v. State of Indiana (NFP)

George Abel v. State of Indiana (NFP)

Posted by Marcia Oddi on October 31, 2013 11:16 AM
Posted to Ind. App.Ct. Decisions