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Wednesday, December 17, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Robert Holland v. Lake County Treasurer John Patelas , an 8-page opinion with a pro se appellant, Judge Riley writes:

Issue. Whether Holland received insufficient notice of the tax sale proceedings in violation of his right to due process, thereby rendering Born’s tax deed void. * * *

Holland seeks reversal of the trial court’s Order granting the issuance of a tax deed to Born. Specifically, he claims that he is entitled to relief under Indiana Trial Rule 60(B)(1)-(4),(6), and (8) because he was deprived of his Property without due process. Notwithstanding the fact that Holland’s argument is entirely void of cogent reasoning and primarily relies on facts that are not in the record, we find that another procedural defect precludes our review of the merits of this case. See Ind. Appellate Rule 46(A)(8)(a). * * *

[W]e conclude that Holland’s appeal is improperly before our court because the trial court did not rule on his Motion to Set Aside pursuant to Trial Rule 60(B). Dismissed without prejudice and remanded for further proceedings.

Dennis Boyer and Richard Smith v. Ernest Smith, Suzanne Cassidy, and In-Plas, Inc. is a 14-page opinion by Sr. Judge Barteau.

In Joseph Dixson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:

Joseph Dixson was convicted of Class A misdemeanor battery after a tussle with a security officer. Dixson now appeals, arguing that the trial court erred in instructing the jury on self-defense at his trial. Because this case does not involve deadly force, we conclude that the trial court erred in instructing the jury that, among other things, Dixson had to show that he had a reasonable fear of death or great bodily harm in order to prevail on his self-defense claim. We find the error to be harmless, however, and we therefore affirm. * * *

Although we conclude that the trial court erred in instructing the jury, reversal is not necessary. Any error in instructing the jury is subject to a harmless-error analysis. Randolph v. State, 802 N.E.2d 1008, 1011 (Ind. Ct. App. 2004), trans. denied. Errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the instruction would not likely have affected the jury’s verdict. Id. at 1013. That is true here because the uncontradicted evidence shows that Dixson did not have a right to be in the Duvall cafeteria when the incident occurred: he disregarded the facility’s protocols for entering the cafeteria and he disregarded Hoosier’s commands to re-enter the cafeteria correctly. See McCullough, 985 N.E.2d at 1138 (a defendant claiming self-defense must show three things, including that he was in a place where he had a right to be and he acted without fault). The same evidence also shows that Dixson did not act without fault. Because the uncontradicted evidence negates Dixson’s self-defense claim, we cannot conclude that the error in instructing the jury affected the jury’s verdict.

In Gary Elvers v. State of Indiana, an 18-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the Synthetic Drug Law is not unconstitutionally technical; the State properly enhanced Elvers’ charges based on the weight of the synthetic drugs in their adulterated form; the Information sufficiently apprised Elvers of the crimes with which he was charged; the search warrant is not defective; and there is sufficient evidence to support a conviction for dealing in a synthetic drug. We further conclude that the State improperly charged Elvers with two Counts of dealing in the synthetic drug JWH-122 and remand with instructions for the trial court to vacate the conviction on Count V.
In Tyrone Winkleman v. State of Indiana, a 14-page opinion, Chief Judge Vaidik writes:
Tyrone Winkleman was convicted of Class A felony robbery resulting in serious bodily injury, Class A felony kidnapping, and Class B felony criminal confinement, and sentenced to seventy-six years for kidnapping a truck driver in Elkhart, Indiana. Winkleman now appeals, arguing that the trial court committed fundamental error in instructing the jury because it omitted an element from the kidnapping instruction, failed to advise him of his Boykin rights before he pled guilty to the habitual-offender allegation, and abused its discretion in identifying four of the aggravators when sentencing him. Concluding that the jury instruction does not constitute fundamental error, Winkleman has failed to establish on this record that he did not know he was waiving his Boykin rights, and the trial court did not abuse its discretion in identifying the aggravators, we affirm the trial court.
NFP civil opinions today (2):

James Roof v. David Asher (NFP)

In the Matter of: J.M., A Child in Need of Services, T.M. v. Indiana Department of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (7):

Carrie Douglas v. State of Indiana (NFP)

Utah Dockery, Jr. v. State of Indiana (NFP)

James David Finney v. State of Indiana (NFP)

Michael Whittaker v. State of Indiana (NFP)

Robert Warner v. State of Indiana (NFP)

Steven R. Santana v. State of Indiana (NFP)

Deborah Birge v. State of Indiana (NFP)

Posted by Marcia Oddi on December 17, 2014 12:30 PM
Posted to Ind. App.Ct. Decisions