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Monday, January 27, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In In Re The Paternity of C.J.A.: G.C. (Mother) v. T.A. (Father), a 23-page, 2-1 opinion, Judge Mathias writes:

T.A.’s (“Father”) paternity to C.A. was established in the Tippecanoe Circuit Court. Father and G.C. (“Mother”) agreed to custody and parenting time, and the trial court adopted their agreement in an order titled “Amended Second Provisional Order.” However, approximately two years after the entry of that order, Father challenged Mother’s custody of their child, C.A. while she continued to reside in South Carolina.

After a hearing, the trial court issued an order awarding Mother primary physical custody of C.A., but only if she returned to Indiana. In the event she failed to establish her residence in Indiana, Father would automatically have primary physical custody of C.A. Mother appeals and raises several issues, which we consolidate and restate as:

I. Whether the trial court has authority to issue provisional orders in paternity proceedings;
II. Whether the “Amended Second Provisional Order” was a provisional or final custody order; and,
III. Whether the trial court erred when it prospectively ordered an automatic change of custody in the event Mother failed to establish her residence in Indiana.

We reverse and remand for proceedings consistent with this opinion. * * *

NAJAM, J., concurs.
BROWN, J., dissents with separate opinion [which begins, at p.19] I respectfully dissent from the majority’s conclusion that the order is a final
judgment. “The authority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is generally limited to appeals from final judgments.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (quoting Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006), reh’g denied). We have the duty to determine whether we have jurisdiction over an appeal before proceeding to determine the rights of the parties on the merits.

In Ruben Rosales v. State of Indiana , a 13-page, 2-1 opinion, Judge Najam writes:
Ruben Rosales appeals his conviction for attempted murder, a Class A felony, following a jury trial. Rosales raises a single issue for our review, namely, whether the trial court committed fundamental error when it instructed the jury. We affirm. * * *

Rosales raises a single issue for our review, namely, whether the trial court committed fundamental error when it instructed the jury on accomplice liability. * * *

In sum, Rosales’ argument on appeal must fail. There is more than sufficient evidence in the record that Rosales was the principal in the attack on Torres and, as such, the evidence supports the jury’s verdict that Rosales committed attempted murder. Considering all relevant information given to the jury, including closing argument and other instructions, Boesch, 778 N.E.2d at 1279, we cannot say that the instruction error claimed by Rosales denied him “fundamental due process” or “ma[d]e a fair trial impossible” or constituted “clearly blatant violations of basic and elementary principles
of due process,” Brown, 929 N.E.2d at 207. As we have already noted, not every Spradlin claim amounts to fundamental error. The fundamental error exception is available only in “egregious circumstances.” Id. The record shows that Rosales was fairly tried and convicted. Affirmed.

BAKER, J., concurs.
CRONE, J., dissents with separate opinion. [which begins, at p. 12]
It is undisputed that the trial court erred in instructing the jury on accomplice liability, and it is also undisputed that the record is silent regarding whether the jury found Rosales guilty of attempted murder as an accomplice or as a principal. Relying on Thomas, the majority concludes that the error was not fundamental. I respectfully disagree.

In Quanardel Wells v. State of Indiana, a 13-page opinion, Judge May concludes:
The law of the case doctrine precludes our review of the denial of Wells’ motion to sever offenses. In addition, his sentence is not inappropriate based on the nature of the offenses or his character. Accordingly, we affirm.
In Thomas D. Dillman v. State of Indiana, a 5-page opinion, Judge May writes:
Thomas D. Dillman, pro se, appeals the denial of his Motion for Release of Cash Bond. He raises one issue, which we restate as whether he is entitled to recover the entirety of his $250.00 cash bond. We reverse and remand. * * *

The State has not provided an appellee’s brief. In such a case, we do not assume the burden of controverting Dillman’s arguments. * * *

Because Dillman’s $250 bond was a cash bond posted under Ind. Code § 35-33-8-3.2(a)(1), the court was not authorized to retain the bond “for any purpose.” See Goffinet, 775 N.E.2d at 1233. We must accordingly reverse the denial of Dillman’s Motion for Release of Cash Bond and remand for further proceedings consistent with this decision.

In Frank Jacobs v. State of Indiana , an 11-page opinion, Judge May concludes:
Any errors that may have occurred when the trial court excluded S.L.’s testimony regarding G.L.’s truthfulness or the exclusion of Justin as a witness were harmless because there existed independent evidence of Jacobs’ guilt. Therefore, we will not reverse Jacobs’ convictions based on the trial court’s decisions regarding the admissibility of S.L. or Justin’s testimony. However, Jacobs’ convictions of Class B criminal deviate conduct and Class C criminal confinement subjected him to double jeopardy, and we remand for the trial court to vacate his conviction of Class C felony criminal confinement.
NFP civil opinions today (3):

In Re: The Marriage of Terri L. Potter and Brent D. Potter: Terri L. Potter v. Brent D. Potter (NFP)

Melba Deloris Polk-King v. Lawrence Delorosa King (NFP)

Nancy Kriel v. Richard Kriel (NFP)

NFP criminal opinions today (11):

David D. Darr v. State of Indiana (NFP)

Laurence F. Myers, Jr. v. State of Indiana (NFP)

Daniel Lee Pierce v. State of Indiana (NFP)

Ventriss R. Hulitt v. State of Indiana (NFP)

Adam Sullender v. State of Indiana (NFP)

Lauren Hurse v. State of Indiana (NFP)

Nita Trott-Fluty v. State of Indiana (NFP)

Larry Bobbitt v. State of Indiana (NFP)

Clayton Morgan v. State of Indiana (NFP)

Jeffery Deaton v. State of Indiana (NFP)

Brandon McManomy v. State of Indiana (NFP)

Posted by Marcia Oddi on January 27, 2014 12:42 PM
Posted to Ind. App.Ct. Decisions