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Thursday, July 17, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp., 6-page opinion on a motion for rehearing, Judge Barnes writes:

The Indiana Department of Environmental Management (“IDEM”) and the City of Indianapolis (“the City”) have filed a joint request for rehearing from our opinion in Moran Elec. Serv., Inc. v. Comm’r, Indiana Dep’t of Envtl. Mgmt., 8 N.E.3d 698 (Ind. Ct. App. 2014). We grant rehearing to acknowledge and address some of their rehearing arguments, but we reaffirm our original decision in all respects.
In Todd DeWayne Kelly v. State of Indiana , a 6-page opinion, Judge Bradford writes:
On appeal, Kelly contends that the State did not present sufficient evidence to sustain his conviction for Class A misdemeanor invasion of privacy. We affirm. * * *

In the instant matter, the State presented clear evidence that Kelly indirectly communicated with S.B. During trial, the trial court heard evidence that Kelly texted L.K. stating, “contacting court next week, if you see your mom tell her I said rattle, rattle, rattle.” Oct. 8, 2013 Tr. p. 44. Unlike the third party in Huber, L.K. did not tell Kelly that she would not give the message to S.B. Instead, L.K. immediately showed the text to S.B., with whom she lived. S.B. read the message and believed it was threatening and meant to intimidate her because Kelly had used the phrase “rattle, rattle, rattle” as a way of intimidating S.B. when she and Kelly were still married. Oct. 8, 2013 Tr. p. 30. Further, at some point before trial, Kelly again communicated “rattle, rattle, rattle” to S.B. via Facebook. Oct. 8, 2013 Tr. p. 29. The above-stated evidence is sufficient to sustain Kelly’s conviction. Kelly’s claim to the contrary effectively amounts to an invitation for this court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.

In Clyde Davis v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Clyde Davis appeals from his conviction for Class B misdemeanor public intoxication. On appeal, Davis contends that the State failed to provide sufficient evidence of endangerment. We reverse. * * *

The common thread in these cases is past or present conduct by the defendant did or did not place life in danger. While the statute does not require that actual harm or injury occur, some action by the defendant constituting endangerment of the life of the defendant or another person must be shown. This is true even where an officer testifies that the defendant was a danger to himself or others. See, e.g., Sesay, 5 N.E.3d at 479. Were it otherwise, citizens could be convicted for possible, future conduct. The policy behind the current public intoxication statute is to encourage intoxicated persons to avoid danger by walking or catching a ride rather than driving. Stephens, 992 N.E.2d at 938. Although we acknowledge that intoxicated persons may also create danger by walking in public places, that danger must have manifested itself in order for the State to obtain a conviction.

In the instant case there was no such past or present conduct by Davis that amounted to endangerment of his or another’s life. * * *

Although the State argues that Davis was in danger of being struck by a car if he left the apartment complex, the argument is merely speculative, not proof beyond a reasonable doubt. Appellee’s Br. 4, 9. The State may not convict Davis for what would or could have happened. Reversed.

In Carlin Graffenread v. State of Indiana, a 7-page opinion, Judge Barnes writes:
The sole issue before us is whether Indiana Code Section 35-48-4-12 allows for the deferral of a dealing in marijuana charge. * * *

We conclude that the language of Indiana Code Section 35-48-4-12 is clear and unambiguous on its face and does not run afoul of double jeopardy or collateral estoppel. We therefore must not expand or restrict what the statute clearly and plainly expresses. The statute’s conditional deferment and dismissal clearly applies only to first time offenders who are charged with possession of marijuana, hashish, salvia, or a synthetic drug. There is no language within the statute to indicate that the legislature intended to include within the statute greater offenses that might include possession as an element. The legislature chose to allow leniency for some drug possession charges, but not drug dealing charges.

NFP civil opinions today (1):

Phyllis Roy v. Jerry Gidrewicz (NFP)

NFP criminal opinions today (2):

Joseph M. Bell v. State of Indiana (NFP)

Kenneth Ferrell v. State of Indiana (NFP)

Posted by Marcia Oddi on July 17, 2014 12:54 PM
Posted to Ind. App.Ct. Decisions