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Tuesday, April 29, 2014

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In State of Indiana v. David Lott Hardy , an 11-page opinion, Judge Pyle writes:

The State of Indiana appeals the trial court’s dismissal of its charges against David Lott Hardy (“Hardy”) for four counts of Class D felony official misconduct. We affirm. * * *

On appeal, the State argues that the trial court erred in retroactively applying the amended version of the official misconduct statute to Hardy because the legislature’s amendment was not remedial in nature and because there was no compelling reason to give it retroactive effect. In response, Hardy argues that the amendment was remedial and, regardless, should still have retroactive effect. Alternatively, Hardy contends that we should affirm the trial court on any basis supported by the record. * * *

Throughout these proceedings, neither party has disputed that the previous version of the statute was in effect when Hardy allegedly committed the violations underlying his charges, and neither party has disputed the fact that none of Hardy’s charges are based on criminal offenses. * * *

We conclude that the trial court properly granted Hardy’s motion to dismiss, although our rationale differs from the trial court’s. * * * Our conclusion is based on the Indiana Supreme Court’s decision in State v. Dugan, 793 N.E.2d 1034 (Ind. 2003), which Hardy cited in all of his motions to dismiss. * * *

[T]he Supreme Court interpreted the “forbidden by law” language of the official misconduct statute as requiring an underlying violation to be criminal in nature.

The State dismisses that interpretation here, arguing that it was merely dicta. Obiter dictum — dicta — refers to statements that a court makes that are not necessary in the determination of the issues presented. * * *

[T]he State was not able to advise us of any cases since Dugan where the State has charged a defendant with official misconduct based on civil, ethical, or administrative violations, rather than criminal offenses. In light of this history, it is clear that Dugan unequivocally established that a charge of official conduct must be based on a criminal offense. See Dugan, 793 N.E.2d at 1039.

The Supreme Court’s holding in Dugan was controlling law eight years prior to the legislature’s 2011 amendment, as well as during the time period when each of the violations underlying Hardy’s charges occurred. Because our Supreme Court has interpreted the official misconduct statute to require a charge of official misconduct to rest upon criminal behavior that is related to the performance of official duties, we conclude that the trial court did not abuse its discretion when it dismissed the State’s charges against Hardy.

In Jeremiah D. Wilkes v. State of Indiana , a 7-page opinion, Judge May writes:
Jeremiah D. Wilkes appeals his two convictions of Class B felony sexual misconduct with a minor. He alleges the court’s admission of hearsay and vouching testimony denied him his right to a fair trial. We affirm. * * *

No fundamental error occurred from the admission of hearsay testimony that was merely cumulative of the victim’s own testimony, and the vouching testimony was harmless in light of the weight of the evidence in the record. Even when considering all that evidence cumulatively, we hold no fundamental error occurred. Accordingly, we affirm Wilkes’ convictions.

In D.D. v. D.P., a 10-page opinion, Judge Baker writes:
In this case, the parties are before this Court for the third time concerning essentially the same stepparent adoption proceedings. Appellant-petitioner D.D. (Stepfather) married K.D. (Mother) in 2007 and wanted to adopt her two children from a previous marriage. However, the children’s father, appellee-respondent D.P. (Father), resides in Washington D.C., and Mother could not convince him to consent to the adoption. Nevertheless, Stepfather’s petition for adoption was granted in 2010 but was vacated for lack of notice to Father.

Another hearing on the adoption petition was scheduled and Stepfather alleged that Father’s consent was unnecessary because he had failed to significantly communicate with the children for a period of at least one year when able to do so. The trial court found that Stepfather had not met his burden, but a panel of this Court remanded after clarifying the correct burden of proof. After reviewing the evidence again and applying the correct burden of proof, the trial court entered findings of fact and conclusions of law in its order denying Stepfather’s petition to adopt the children. Perhaps the trial court’s most compelling finding was that Mother had thwarted Father’s attempts at communicating with the children.

Stepfather now appeals, arguing that the trial court’s finding that Mother thwarted Father’s attempts at communication are clearly erroneous, insofar as Father never tried to directly communicate with the children. Concluding that the trial court did not err by denying Stepfather’s petition to adopt the children, we affirm the judgment of the trial court.

In Tyler J. Veerkamp v. State of Indiana , a 9-page opinion, Judge Pyle writes:
Tyler J. Veerkamp (“Veerkamp”) files an interlocutory appeal of the trial court’s denial of his motion to suppress evidence. We hold that a law enforcement officer has probable cause that Indiana Code § 9-19-8-5 has been violated when fumes or smoke emanating from the engine or power mechanism of a motor vehicle completely obscure a motorist’s view of a portion of the vehicle being followed. We affirm.
In Jamal Ahmad Gore v. State of Indiana , a 6-page opinion, Judge May writes:
Jamal Ahmad Gore appeals the jury’s finding that Gore was guilty of murder1 and Class C felony battery, but mentally ill at the time of the crime. Gore asserts the jury clearly erred in finding Gore guilty but mentally ill, instead of not guilty by reason of insanity. We affirm. * * *

An appellant who complains he or she ought to have been found not guilty by reason of insanity faces a heavy burden on appeal. Id. Because it is the trier of fact’s province to weigh evidence and assess witness credibility, a finding that a defendant was not insane at the time of the offense warrants substantial deference from reviewing courts. Id. Thus, we may not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact. Id. We may set aside set aside a conviction only “when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.” Id. at 710 (quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)). * * *

Gore has not shown that the evidence is without conflict and leads only to the conclusion that he was insane when the crime was committed. Accordingly, we affirm.

In J.K. v. State of Indiana, a 28-page, 2-1 opinion, Judge Robb writes:
J.K. appeals the juvenile court’s adjudication of J.K. as a delinquent based on acts of illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal consumption of alcohol. He raises one issue for our review: whether the trial court admitted evidence against J.K. in violation of his rights under the Fourth Amendment to the United States Constitution, where law enforcement officers entered J.K’s curtilage, conducted a knock and talk lasting approximately one hour, and entered the residence without a warrant. Concluding the officers’ entry onto J.K.’s curtilage, their lengthy knock and talk, and eventual residential entry were unreasonable searches under the Fourth Amendment, we reverse. * * *

We conclude the officers’ warrantless entry on J.K.’s curtilage, including both the sides of the house and back yard, violated the Fourth Amendment. Further, we hold the officers’ presence at the home and continually knocking for approximately one hour without an answer from an occupant exceeded their implied invitation to knock and talk and constituted an unreasonable search in contravention of the Fourth Amendment. Finally, we would also conclude the officers’ warrantless residential entry was unconstitutional. All evidence against J.K. was obtained consequent to these constitutional violations. Accordingly, his adjudications must be reversed.

CRONE, J., concurs.
SHEPARD, Sr.J., dissents with separate opinion. [which begins, at p. 26] J.K.’s lawyer places two assertions before us. He says one officer unconstitutionally entered his backyard, and he claims the officers stayed too long at his property and knocked on his door too many times.

My reaction to these two points is that the officer’s stay in the backyard produced no evidence supporting the juvenile finding that is being appealed, and that the continued knocking is not what led the juveniles inside ultimately to step outside, visibly impaired from drinking.

My take on the events that gave rise to this proceeding, viewed favorably to the trial court’s judgment as the standard for appellate review demands, is rather different than the way the majority sees the facts.

NFP civil opinions today (9):

Damon L. Wallace v. Audra C. Wallace (NFP)

In re the Adoption of E.M., a minor, R.G. v. R.M. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of C.W., minor child, and L.W., Mother, L.W. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: N.H., A.I-H and P.I-H., Minor Children, A.I-H., Father v. Indiana Department of Child Services (NFP)

Calumet Township Trustee v. Edward R. Hall (NFP)

In re the Marriage of Laura Hyatt v. Charles Hyatt (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: P.C., J.W., and K.W., Minor Children, S.C., Mother v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of L.W., J.W., M.T., L.P., C.L.Q., and C.Q. minor children, and L.W., Mother, L.W. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of Parent-Child Relationship of Mi.S. & M.W. (Minor Children), and M.S. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Ronald A. Manley v. State of Indiana (NFP)

Mark D. Webb v. State of Indiana (NFP)

William P. Montgomery v. State of Indiana (NFP)

Willie Johnson v. State of Indiana (NFP)

Derrick A. Hicks v. State of Indiana (NFP)

Landon Shaw v. State of Indiana (NFP)

Cary Lane Lawson v. State of Indiana (NFP)

Warren D. Bowen v. State of Indiana (NFP)

Posted by Marcia Oddi on April 29, 2014 12:35 PM
Posted to Ind. App.Ct. Decisions