Friday, December 20, 2013
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
[Note: except for the Melanie Davis opinion, which the ILB has uploaded to its own server, all of today's opinions are sporadically loading slowly, if at all. Other state sites also may be affected, continuing the problem from yesterday. I've seen no announcement from state administration that they are aware of the problem or working on it.]
For publication opinions today (5):
In Richard E. Simmons v. State of Indiana , an 18-page opinion, Judge May writes:
Richard Simmons was convicted of four counts of Class A felony attempted murder, two counts of Class D felony criminal recklessness while armed with a deadly weapon, and one count each of Class D felony unlawful use of body armor and Class A misdemeanor possession of marijuana after he shot at police officers who were trying to serve an arrest warrant on him. He argues he was entitled to a directed verdict on the attempted murder counts because there was no evidence he knew police officers were behind the wall at which he fired shots. Simmons also argues the jury was not properly instructed on the presumption of innocence and his sentence was inappropriate. We affirm. * * *In Stephen Brakie v. State of Indiana, a 17-page opinion, Judge Brown writes:
[1. Directed Verdicts] As there was ample evidence from which the jury could infer Simmons knew there were at least four officers behind the wall he shot at, there was sufficient evidence to convict Simmons of four counts of attempted murder. * * *
[2. Jury Instructions] Simmons’ trial court did not abuse its discretion by declining Simmons’ tendered instruction on the presumption of innocence. * * *
The court again instructed the jury in its final instructions about the presumption of innocence, but the final instructions did not include the specific language that the presumption of innocence continues throughout the trial.
It was not an abuse of discretion to so instruct the jury only in the preliminary instructions and not again in the final instructions, as other final instructions adequately conveyed to the jury the concept that the presumption of innocence continues throughout the trial. * * *
[3. Sentence] In light of Simmons’ multiple victims, the order that his sentences would be served consecutively did not render his total sentence inappropriate. * * *
PYLE, J., conurs.
SHEPARD, Sr. J., concurring with separate opinion. [that begins on p. 15 and concludes] This case largely fits the scenario envisioned in Lee. Final instructions covered the presumption and told the jury to “fit the evidence,” but did not tell them the presumption “prevails throughout.” This was error, of course, under Farley and Robey, but I would say not reversible, particularly in light of the fact that the full three-part instruction was given during preliminary instructions. I therefore join in affirming the convictions.
Stephen Brakie appeals his conviction for child molesting as a class A felony, raising three issues which we consolidate and restate as: I. Whether the trial court abused its discretion by rejecting Brakie’s proposed instruction regarding the presumption of innocence; and II. Whether the evidence is sufficient to sustain his conviction for child molesting as a class A felony. We affirm.In Ronald Gaines v. State of Indiana, a 10-page opinion, Judge Barnes writes:
A variance between the charging information and proof at trial does not necessarily require reversal. * * * There is no indication that Gaines was misled by the alleged variance here. In fact, the difference between an ex parte protective order and a protective order was never mentioned during the trial. * * *In Michael E. Zanussi v. State of Indiana, a 9-page opinion, Judge May concludes:
Gaines argues that State’s Exhibit 1, which was a certified copy of the ex parte protective order, should not have been admitted because it violated his rights under the Confrontation Clause of the Sixth Amendment. Specifically, Gaines takes issue with the admission of the last page of the exhibit, which was a Marion County Sheriff’s Department Return of Service that indicated Gaines was personally served with a copy of the order on May 17, 2012. Gaines complains that he was not able to cross-examine the Sheriff’s deputy regarding the service. * * *
The primary purpose of the return of service is administrative—ensuring that the defendant received notice of the protective order. See I.C. § 34-26-5-9(e) (“The sheriff of each county shall provide expedited service for an order for protection.”). Although the return of service may be used later in a criminal prosecution, the return of service was not created solely for use in a pending or future criminal prosecution. See Melendez–Diaz, 557 U.S. at 323-24, 129 S. Ct. at 2539–2540. As such, we conclude that the return of service was not testimonial, and its admission did not violate Gaines’s rights under the Confrontation Clause.
The trial court did not abuse its discretion when it denied Zanussi’s motion to continue because Zanussi did not demonstrate the denial prejudiced him. Admission of letters Zanussi wrote to Effinger was not fundamental error because Zanussi did not demonstrate their admission denied him a fair trial. Finally, the State presented sufficient evidence Zanussi committed Class A misdemeanor criminal recklessness. Accordingly, we affirm.NFP civil opinions today (4):
NFP criminal opinions today (5):
Posted by Marcia Oddi on December 20, 2013 09:56 AM
Posted to Ind. App.Ct. Decisions