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Monday, March 31, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 27 NFP)

For publication opinions today (5):

In Debbie Mitchell v. Review Board of the Indiana Department of Workforce Development, and Midwest Mobile Care, Inc., an 8-page opinion, Judge Robb writes:

Debbie Mitchell appeals the decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”) that she was not entitled to additional unemployment insurance benefits. Mitchell raises one issue for our review: whether the Review Board erred in affirming the findings of the Administrative Law Judge (“ALJ”) that she was not partially unemployed. Concluding the Review Board did not err in applying the unambiguous statute defining partial unemployment, we affirm.
In Victor W. Goodman and Jacquelyn C. Burke v. Steven L. Serine, Suzanne M. Serine, United States of America Department of the Treasury Internal Revenue Service, Robert J. DeGrazia, et al. , a 6-page opinion, Judge May writes:
Victor Goodman and Jacquelyn Burke (collectively, “Goodman”) appeal a summary judgment in favor of the Internal Revenue Service (IRS). The court granted summary judgment after finding tax liens remained on property Goodman bought even though a bankruptcy court had ordered the property could be sold free and clear of all liens. As the trial court was not the proper forum for the resolution of that matter, we vacate its judgment and direct it to dismiss Goodman’s complaint to quiet title. * * *

As the issues in the case before remain subject to bankruptcy court jurisdiction, we vacate the trial court’s judgment and direct it to dismiss the quiet title action.

In Dustin Lee Jarrell v. Billie Jo Jarrell , a 15-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not err in declining to consider the Relocation Factors because Father acquiesced to Mother’s relocation. Furthermore, the trial court did not err in modifying the custody order because there is evidence to support the findings that there was a substantial change in circumstance and that modification is in G.J.’s best interests.
In Jeffrey Metzger v. State of Indiana , a 6-page opinion, Judge Riley writes:
Metzger raises one issue on appeal, which we restate as: Whether the trial court abused its discretion when it concluded that Metzger’s actions amounted to a contempt of court. * * *

Specifically, Metzger maintains that because Chief Deputy McAlexander decided to call off the blood draw prior to the nurse’s arrival, he did not willfully resist, hinder, or delay the execution of the trial court’s warrant. * * *

Because of Metzger’s refusal to take the certified breath test, Chief Deputy McAlexander obtained a search warrant to have Metzger’s blood drawn. Chief Deputy McAlexander gave Metzger a copy of the warrant to read and explained to him the consequences of his refusal, including the possibility of being held in contempt of court. After Metzger was put on notice that a court order had been issued for him to submit to a blood draw and prior to the nurse’s arrival, Metzger became very anxious and started to threaten Chief Deputy McAlexander. Metzger began moving towards Chief Deputy McAlexander while holding a chair. Despite the officer’s order to stay seated, Metzger continued to advance and refused to comply. The officer subdued Metzger and handcuffed him. Based on Metzger’s uncooperative actions, it can be reasonably inferred that Metzger had no intent to comply with the trial court’s order to submit to a blood draw. * * * As Metzger’s act was clearly directed against the authority of the court and hindered the execution of the trial court’s warrant, the trial court properly held Metzger in contempt.

In Dontae M. Clark v. State of Indiana, a 17-page, 3-opinion case, Judge Bradford writes:
Appellant-Respondent Dontae Clark appeals from his conviction for Class D felony marijuana possession. Police officers working in an area known as a hotbed of illegal drug activity observed a known drug dealer walk up to a stopped vehicle and speak with someone in the passenger’s seat. When police followed the vehicle to a convenience store, they observed Clark exit the vehicle from the passenger side and enter the store. One of the officers followed Clark inside and observed him purchase a package of K-2 spice. Clark returned to the vehicle, and the vehicle returned to where it had been previously. The officers followed, but, before a traffic stop could occur, they saw Clark running up the middle of the street in their direction. The officers told Clark to stop and one of them frisked him for weapons. During the pat-down, the other officer noticed a bag of marijuana in an inside pocket of Clark’s coat. At that point, Clark fled but was quickly apprehended. Clark argues that the admission of the marijuana at his trial constituted fundamental error and that the trial court abused its discretion in admitting certain opinion testimony given by the police officers. Finding no merit in Clark’s arguments, we affirm.

[Mathias, J., at p. 13] I concur with the majority that the admission of the marijuana found on Clark during the pat-down search did not constitute fundamental error. I also concur with the majority that Clark failed to preserve for appeal his argument that the trial court erred in admitting into evidence the testimony of the police that the substance found was marijuana. But I write separately because I believe that it is unnecessary to address Clark’s evidentiary argument on the merits.

[Pyle, J., at p. 16] I concur with the result in my colleagues’ decision. However, I believe it is necessary to add an additional thought to footnote 2. In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity. * * *

There is likely a rational reason behind the laboratory’s policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory’s policy decision be reconsidered by our colleagues in the executive branch.

NFP civil opinions today (5):

Lila Marquez v. Rene Kobler (NFP)

Jewel L. and John E. Johnson v. Brooks Striping, Inc., Inland Western Greensburg Commons LLC, and Inland US Management LLC (NFP)

In re the Marriage of: Tasha Bates v. Damon Bates (NFP)

Michael J. Bermes v. G.K. Cambray & Company, Inc., Gregory K. Cambray d/b/a Cambray & Associates, Inc., and Lauri Massoth (NFP)

In the Matter of the Termination of the Parent-Child Relationship of M.F., C.F. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (22):

Derrick R. Woods v. State of Indiana (NFP)

Michael Kimes v. State of Indiana (NFP)

Davonta K. Johnson v. State of Indiana (NFP)

Trenton Bolden v. State of Indiana (NFP)

Charles Gooch v. State of Indiana (NFP)

Jerry D. White v. State of Indiana (NFP)

Aadil Ashfaque v. State of Indiana (NFP)

Samuel Lewis v. State of Indiana (NFP)

Tony Dale Wilson v. State of Indiana (NFP)

Terelle Young v. State of Indiana (NFP)

Dezmont Hogan v. State of Indiana (NFP)

Ronnie Ervin Major v. State of Indiana (NFP)

Zack Hitchings v. State of Indiana (NFP)

James Edwin Gardner, III v. State of Indiana (NFP)

Robert Whipple v. State of Indiana (NFP)

Tyrone Ice v. State of Indiana (NFP)

Louis P. Fromer v. State of Indiana (NFP)

Kevin J. Mamon v. State of Indiana (NFP)

Andrew Lee Barnett v. State of Indiana (NFP)

Kenneth E. Eltzroth v. State of Indiana (NFP)

Regina Choice v. State of Indiana (NFP)

James Lohman III v. State of Indiana (NFP)

Posted by Marcia Oddi on March 31, 2014 01:19 PM
Posted to Ind. App.Ct. Decisions