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Tuesday, March 18, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Behavioral Health and Human Services Licensing Board, Kimble L. Richardson, George Brenner, Andrew Harner, Geneva Osawe, Rex Stockton, Carla Gaff-Clark, and The State of Indiana v. Elaine Williams, an 18-page opinion, Sr. Judge Sharpnack writes:

The Behavioral Health and Human Services Licensing Board (“Board”) revoked a mental health counselor’s license when she developed a personal attachment to a patient, continued to see the patient after their professional relationship had ended, and ignored the patient’s requests to leave her alone. Upon judicial review, the trial court found substantial evidence supporting the Board’s findings and affirmed the revocation. On the licensee’s motion to correct error, however, the court changed course. This time, it faulted the manner in which the Board conducted its proceedings, disapproved of the lack of a standard for disciplining licensees, and thus reversed and remanded with instructions to either impose a lesser sanction or hold a new hearing.

We conclude the Board afforded the licensee fair proceedings and acted within its authority in imposing the sanction of revocation. Further concluding the trial court impermissibly reweighed the credibility of the witnesses and substituted its judgment for that of the Board, we affirm the revocation.

In In the Matter of A.G. and A.K. Children Alleged to be in Need of Services, M.K. v. Indiana Department of Child Services, an 11-page opinion, Judge Najam writes:
M.K. (“Mother”) appeals the trial court’s adjudication of her children A.G. and A.K. as children in need of services (“CHINS”). Mother presents a single issue for our review, namely, whether the trial court erred when it drew a negative inference from Mother’s invocation of her Fifth Amendment right against self-incrimination. We affirm. * * *

In sum, Mother contends that her right to raise her children has a constitutional dimension which distinguishes a CHINS proceeding from other civil proceedings. Thus, she maintains that the rule in Gash should not apply here. But Mother does not support that contention with cogent argument or citations to the record, and the issue is waived. Waiver notwithstanding, Mother does not challenge the remainder of the trial court’s findings and conclusions. Thus, even disregarding the trial court’s negative inference,
the court’s findings support the remaining conclusions and the conclusions support the judgment. The trial court’s judgment finding the children to be CHINS is not clearly erroneous.

In Donald Murdock v. State of Indiana, a 10-page, 2-1 opinion, Judge Bradford writes:
Appellant-Respondent Donald Murdock was found to have violated the terms of his probation when he committed Class A misdemeanor resisting law enforcement after running from a police officer who had told him to stop. Murdock contends that his probation revocation cannot stand because the State failed to establish that the officer had sufficient reason to detain Murdock. Because well-established Indiana precedent holds that a person may not flee from a police officer who has told him to stop, even if the order is unlawful, we affirm the judgment of the trial court. * * *

Murdock does not dispute that he fled from Officer Stewart after being told to stop but contends that the trial court erred in finding that he committed Class A misdemeanor resisting law enforcement because Officer Stewart allegedly lacked reasonable suspicion to detain him. We disagree. * * * Consequently, even if we assume, arguendo, that Officer Stewart had no legal right to detain Murdock, that fact does not affect the validity of the trial court’s finding that Murdock committed resisting law enforcement.[1]

The judgment of the trial court is affirmed.

PYLE, J., concurs.
MATHIAS, J., dissents with opinion. [that begins at p. 5 of 10; this from p. 9] If we do not require articulable facts and reasonable suspicion before a police officer’s order to stop must be obeyed, we are subjecting Hoosiers to exactly the sort of arbitrary selection Litchfield condemned.

The logic of Corbin and its progeny also has unintended consequences for law enforcement. If otherwise law-abiding citizens cannot legally refuse to engage with a law enforcement officer, then there is no such thing as a consensual encounter between law enforcement officers and citizens. Every such encounter would be a seizure under the law and would require the administration of a Miranda advisement. Is that that kind of society we want to live in? Does law enforcement want to lose the helpful tool of consensual encounters with citizens? I hope not. * * *

Because I believed that Murdock did not commit the crime of resisting law enforcement by fleeing, I also believe that his probation cannot be revoked based on his alleged commission of the crime. Accordingly, I would find that the State failed to prove that Murdock violated the terms of his probation, and I respectfully dissent from the majority’s holding to the contrary.
[1] Murdock relies on a recent decision from this court to support his argument that he had a right to flee from an illegal detention, Gaddie v. State, 991 N.E.2d 137, 141 (Ind. Ct. App. 2013), trans. granted, opinion vacated, 999 N.E.2d 417 (Ind. 2012). Gaddie, however, has been vacated by order of the Indiana Supreme Court. Unless and until the Indiana Supreme Court determines that one has the right to flee from an unlawful police request to stop, we shall follow the myriad Indiana cases holding that one has no such right.

[3] [from the dissent] I acknowledge, as the majority notes, that our opinion in Gaddie has been vacated by transfer of that case to our supreme court. Nevertheless, until our supreme court issues its opinion on transfer in Gaddie, I am persuaded by the reasoning of our opinion in that case.

[4] Again, although our opinion in Griffin has also been vacated by our supreme court’s grant of transfer, I remain persuaded by the rationale of our opinion in that case.

NFP civil opinions today (5):

In the Matter of the Termination of the Parent-Child Relationship of: Bry.B. and B.B. (minor children) and A.B. (Mother) and M.B. (Father) v. Indiana Department of Child Services (NFP)

Cecil Koger and Koger's, Inc. v. T&C, Inc., d/b/a I-70 Wrecker Service (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: C.O. (Minor Child) and T.E. (Mother) v. The Indiana Department of Child Services (NFP)

Renee Berry, as Personal Representative of the Estate of Jeffery Berry, Deceased v. Duke Energy Indiana, Inc., d/b/a Duke Energy (NFP)

Harold Weir v. Riverwalk Holdings, LTD (NFP)

NFP criminal opinions today (11):

Filiberto Rivera v. State of Indiana (NFP)

Edgardo Jose Guido v. State of Indiana (NFP)

Shawn McWhorter v. State of Indiana (NFP)

Ronnie D. Conley v. State of Indiana (NFP)

Dennis Hankins v. State of Indiana (NFP)

Gayle Clark, Jr. v. State of Indiana (NFP)

Eric Lewis v. State of Indiana (NFP)

Robert Fultz v. State of Indiana (NFP)

Henry Woods v. State of Indiana (NFP)

Tony M. Castoreno, Jr. v. State of Indiana (NFP)

Timothy R. Hartwell v. State of Indiana (NFP)

Posted by Marcia Oddi on March 18, 2014 12:15 PM
Posted to Ind. App.Ct. Decisions