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Friday, January 30, 2015

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP) [1 opinion and 6 memorandum decisions]

For publication opinions today (1):

In Adam Anthony Howe v. State of Indiana , a 17-page opinion involving a pro se appellant, Judge Brown writes:

Adam Anthony Howe appeals the trial court’s order denying his petition to modify a condition of his probation. Howe raises two issues which we revise and restate as whether the court abused its discretion in denying his petition. We affirm. * * *

Howe committed the offenses in the presence of M., and the court imposed as a condition of probation that he have no direct or indirect contact with the victims. The statement of M.’s mother indicates that M. struggles with being afraid of the dark and that her mother and school deal with M.’s behaviors every day. Having knowledge of the nature of the physical altercation between Howe and her mother, the fact that M.’s grandmother was shot, and that M. was present in the residence while Howe committed the crimes, the trial court found that M. is an individual to be protected and not just the person physically injured during the January 2005 altercation. Thus, we conclude that there is a nexus between the no contact order and Howe’s crimes. We also note that Howe is mistaken in his belief that M. is not an individual to be protected as a result of his crimes because he did not attempt to find her and “was focused on just the adults.” Appellant’s Brief at 9. While M. may not have been physically injured or directly physically attacked during the altercation in February 2005, there is little doubt that a child is a protected individual when her parents engage in a physical altercation involving a firearm, her grandmother is shot, and her father is incarcerated as a result of his crimes. M. is a person eligible for protection within the meaning of Ind. Code § 35-38-2-2.3. * * *

Bailey, J., concurs.
Robb, J., concurs in result with separate opinion. [that begins, at p. 11] I respectfully concur in the majority’s determination that the trial court did not abuse its discretion in denying Howe’s petition to modify the conditions of his probation, but I do so for reasons entirely different than the majority. * * *

I believe Howe is not subject to the terms of the no-contact order until he is released from DOC. * * *

It is because Howe is not yet serving probation, however, that I agree with the majority that the trial court did not abuse its discretion in denying Howe’s motion to modify its terms. As of now, there is nothing to modify.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: M.B. (Minor Child) and S.B. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal opinions today (6):

Thomas W. Burton v. State of Indiana (mem. dec.)

Gary Allen Gibson v. State of Indiana (mem. dec.)

Joseph Pohl v. State of Indiana (mem. dec.)

Jon Colin Blauvelt v. State of Indiana (mem. dec.)

Matthew R. Eden v. State of Indiana (mem. dec.)

Tony Frary v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 30, 2015 11:20 AM
Posted to Ind. App.Ct. Decisions