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Wednesday, April 23, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Charla P. Richard v. State of Indiana , a 6-page opinion, Sr. Judge Shepard writes:

When a police dog alerts to the presence of narcotics in a vehicle, does an officer have probable cause to arrest and thus search the vehicle’s passenger? On the facts of this case, we answer yes and therefore affirm. [ILB earlier had this erroneously listed as a NFP]
In Co-Alliance, LLP v. Monticello Farm Service, Inc. , an 11-page opinion, Sr. Judge Shepard writes:
We conclude that Indiana should follow the majority rule on agreements to modify the priority of liens securing interests in a borrower’s assets.

Here, the lender in first position agreed to subordinate part of its lien in favor of a third-position lender, in effect a partial assignment that reduced the extent of its first position. Such a contract should neither harm nor help the second-position lender, who was not a party to the agreement.

We think recognizing such agreements is consistent with the Uniform Commercial Code and Indiana common law. * * *

The trial court properly found that the subordination agreement gave Monticello first priority in the remaining $181,000 in 2010 crop proceeds. It therefore correctly granted Monticello’s motion for partial summary judgment and denied Co-Alliance’s.

In In re the Marriage of: Jose de Jesus Carrillo Perez and Maria Guadalupe Carrillo Perez, Maria Guadalupe Vidrios Zepeda f/k/a Maria Guadalupe Carrillo Perez v. Jose de Jesus Carrillo Perez, a 6-page opinion, Judge May writes:
Maria Guadalupe Vidrios Zepeda appeals the division of the marital estate in her dissolution proceeding. She alleges the trial court abused its discretion when it awarded her only 2.5% of her ex-husband’s lottery winnings. We affirm. * * *

Because the language of the admission did not preclude the trial court from awarding Maria only two point five percent of her husband’s lottery proceeds and Maria fails to overcome the strong presumption that the trial court considered and complied with the applicable statute, the trial court did not abuse its discretion.

In Matthew P. Wilhoite v. State of Indiana, an 8-page opinion, Judge May writes:
Matthew P. Wilhoite appeals his conviction of Class B felony “Conspiracy to Commit Attempted Armed Robbery.” He asserts his conviction should be overturned because he was convicted of a crime that does not exist and because his right to an impartial jury was violated. Because he has not demonstrated fundamental error, we affirm. * * *

[W]e agree that the State referenced a non-existent crime when it listed “Conspiracy to Commit Attempted Robbery” on the charging information as the crime committed.

Nevertheless, Wilhoite has not demonstrated fundamental error. The purpose of a charging information is to provide a defendant with notice of the crime so that he can prepare a defense. Gilliland v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App. 2012). “An information that enables an accused, the court, and the jury to determine the crime for which conviction is sought satisfies due process. Errors in the information are fatal only if they mislead the defendant or fail to give him notice of the charge filed against him.” * * *

Despite the erroneous title given to his crime, the information indicated elements for conspiracy to commit armed robbery and the jury instructions informed the jurors of the elements they needed to find Wilhoite guilty of conspiracy to commit armed robbery, including “the intent to commit the crime.” (Id.) Thus, the fact that the erroneous name of the crime listed at the top of the charging information did not amount to fundamental error.

Wilhoite also asserts he was denied his constitutional right to a jury of his peers because he is “non-white [and] was convicted by what he believes was an all-white jury . . . .” We are unable to consider Wilhoite’s assertion because he has not provided us with an adequate record to permit a meaningful review. * * * Although we acknowledge the difficulty Wilhoite presumably would have in assembling a record that would permit us to review this issue, we decline to infer fundamental error from a silent record.[4] * * *
[4] Wilhoite also urges us to overturn a court policy by which all information collected from prospective jurors is shredded. Wilhoite does not provide documentation of this policy, and the relief he requests –requiring the trial court to change its alleged policy of shredding documents related to jury selection and requiring the trial court to include a question about race on the jury questionnaire – appears to be a form of relief that we are not able to provide.

NFP civil opinions today (0):

NFP criminal opinions today (9):

Dustin E. McCowan v. State of Indiana (NFP)

Timothy Robertson v. State of Indiana (NFP)

Vincent Smith v. State of Indiana (NFP)

Nicole Snodgrass v. State of Indiana (NFP)

Dalvinder Singh v. State of Indiana (NFP)

Nestor Canenguez-Ramirez v. State of Indiana (NFP)

Charla P. Richard v. State of Indiana

Raymond Cantu v. State of Indiana (NFP)

Joseph Pennington v. State of Indiana (NFP)

Posted by Marcia Oddi on April 23, 2014 11:57 AM
Posted to Ind. App.Ct. Decisions