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Friday, June 13, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 3 NFP)

For publication opinions today (5):

In Brian S. Moore v. Kristy L. Moore, a 4-page opinion, Judge Mathias concludes:

Brian has made a prima facie showing that the trial court erred by denying his request for counsel. We reverse and remand for the trial court to determine if Brian is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.
In In the Matter of the Adoption of M.S.; C.L.S., v. A.L.S., an 18-page opinion, Judge Pyle writes:
On appeal, Mother challenges the trial court’s judgment granting Stepmother’s petition to adopt M.S. without her consent. Generally, a trial court may only grant a petition to adopt a child born in wedlock who is less than eighteen years of age if “each living parent” consents to the adoption. However, INDIANA CODE § 31-19-9-8 provides that consent to an adoption is not required from:
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree. * * * Affirmed.
In Randolph Kelley v. State of Indiana and Paige A. Devlin , an 11-page opinion, Judge Friedlander writes:
Randolph Kelley appeals from the trial court’s order awarding Paige A. Devlin a $50,000 credit toward a restitution order entered in Kelley’s favor. Concluding that the decision to award such a credit was within the trial court’s discretion, we affirm.
In Robert L. Slone v. State of Indiana , a 7-page opinion, Judge Bradford writes:
On appeal, Slone contends that the trial court abused its discretion in sentencing him, claiming that the three thefts for which he was convicted arose from a single episode of criminal conduct. We affirm. * * *

We agree with the trial court’s determination that the burglaries did not arise from a single episode of criminal conduct as the burglaries were not of a simultaneous or contemporaneous nature.

Furthermore, we are unpersuaded by Slone’s assertion that the fact that the State sought to join Cause Nos. FC-13 and FB-15 for trial purposes indicates that Slone’s crimes arose from a single episode of criminal conduct. * * *

Keeping the distinction between Indiana Code section 35-50-1-2(c)(2) and Indiana Code section 35-34-1-9(a)(2) in mind, we conclude that the fact that the State sought to join the charges for trial does not prove that Slone’s criminal actions arose out of a single episode of criminal conduct.
In sum, we conclude that the trial court did not abuse its discretion in sentencing Slone.

In Jonathan Stephens v. State of Indiana , an 11-page opinion, Judge Pyle writes:
Stephens claims that: (1) his conviction for criminal confinement is not supported by sufficient evidence; (2) that his trial counsel rendered ineffective assistance; and (3) that the prosecuting attorney engaged in misconduct during closing argument, resulting in fundamental error. * * *

Stephens has failed to show any prejudice caused by trial counsel’s failure to object to the line of questioning regarding the no-contact order. * * * In light of Dickerhoff’s testimony about the nature of her confinement, corroborated by her 911 call, the jury likely would have reached the same verdict even if they had not known of the no-contact order. Therefore, Stephens’s claim of ineffective assistance of trial counsel fails.

Stephens claims that the prosecutor committed misconduct when he referred to Stephens as a “knucklehead,” “yahoo,” “bully,” and “not a noble heroic guy” during closing argument. In addition, Stephens claims that the prosecutor requested that the jury find him guilty for reasons other than his guilt. However, when the statements occurred, Stephens did not object. * * *

The totality of the circumstances shows that the improper comments had little persuasive effect on the jury. Stephens argues that the prosecutor’s comments placed him in grave peril because it encouraged the jury to infer that Stephens was a bad person who was more likely to commit the crimes charged. However, Stephens has not shown how the prosecutor’s comments placed him in grave peril. The jury’s verdict is supported by evidence, which is what had the more persuasive effect.

NFP civil opinions today (2):

Dena Alfayyad v. U.S. Bank National Association as Trustee for RASC 2007KS3 (NFP)

In the Matter of: A.H., Jb.H., and Je.H., Children in Need of Services, C.P. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Lakhvir Singh v. State of Indiana (NFP)

Posted by Marcia Oddi on June 13, 2014 10:53 AM
Posted to Ind. App.Ct. Decisions