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Wednesday, March 11, 2015

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (6):

In FLM, LLC v. The Cincinnati Insurance Company, et al., a 5-page opinion on a petition for rehearing, Judge Crone writes:

In FLM, LLC v. Cincinnati Ins. Co., 24 N.E.3d 444 (Ind. Ct. App. 2014) (“FLM II”), we held, among other things, that the commercial general liability (“CGL”) policy issued by The Cincinnati Insurance Company (“Cincinnati”) provided property damage coverage to the insured, International Recycling Inc. (“IRI”), which went out of business and abandoned 100,000 tons of Chrysler foundry sand on property owned by FLM, LLC (“FLM”), after Chrysler stopped paying IRI for its sand disposal services. Consequently, we reversed the trial court’s contrary ruling and remanded with instructions to enter summary judgment in FLM’s favor on that issue. Cincinnati now petitions for rehearing, asserting that we also should have addressed whether the property damage was expected or intended by IRI and therefore subject to a coverage exclusion under the policy. We grant Cincinnati’s petition to address this issue and affirm our original opinion in all respects. * * *

We find FLM’s argument persuasive and therefore conclude as a matter of law that the property damage was not expected or intended by IRI and thus the exclusion does not apply. Subject to this clarification, we affirm our original opinion in all respects.

In In re the Supervised Estate of Gary Roberts, Deceased; Martha Blevins, Appellant and In re the Supervised Estate of Elizabeth A. Roberts, Deceased; Martha Blevins, Appellant, a 9-page opinion, Judge Robb writes:
Gary Roberts died intestate on September 27, 2013, and his widow, Elizabeth Roberts, died testate on November 2, 2013. Martha Blevins filed a claim against Gary’s Estate. Following a hearing, the trial court issued an order that concluded, among other things, that a gun collection located in the Robertses’ home was “household goods” to which Elizabeth held a right of survivorship under Indiana Code section 32-17-11-29. Blevins appeals that order, raising two issues for review: (1) whether the trial court correctly determined that the gun collection met the requirements in Indiana Code section 32-17-11-29(c)(1) to create a right of survivorship; and (2) whether the trial court abused its discretion by admitting into evidence, over Blevins’s hearsay objection, three exhibits related to the purchase and origin of the gun collection. Concluding that the gun collection does not fit within the term “household goods,” we reverse and remand.
In Matthew Marcus, II v. State of Indiana , a 5-page opinion, Judge Bailey concludes (in an opinion you may wish to read in full):
Apparently oblivious to the direction of this Court and a decade of legal progression, Counsel yet again advocates for a review of his client’s sentence under the manifestly unreasonable standard. He wholly fails to present a cogent argument with citation to relevant authority. It is within our authority to strike the brief, order the return of attorney’s fees, order Counsel to show cause why he should not be held in contempt of court, or refer the matter to the Supreme Court Disciplinary Commission. See Keeney v. State, 873 N.E.2d 187, 190 (Ind. Ct. App. 2007). We strike the brief and remand the matter to the trial court for appointment of competent counsel [ILB emphasis}.
In D.Y. v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Defendant/Appellant, D.Y., appeals his adjudication as a delinquent child, which was based on the juvenile court’s true finding that he had committed dangerous possession of a firearm and carrying a handgun without a license. * * * D.Y. filed a motion to suppress the evidence of the firearm, arguing that it was the result of an illegal search. The juvenile court denied the motion and adjudicated D.Y. a delinquent child.

On appeal, D.Y. now argues that the juvenile court abused its discretion in admitting the firearm because it was the result of an unlawful search. He asserts that the search was unlawful because: (1) it was incident to an unlawful arrest; (2) it was incident to an unlawful investigatory stop; and (3) the officer did not have reasonable concerns for safety to justify the search. We conclude that the juvenile court abused its discretion in admitting the firearm because it was obtained through a search incident to an unlawful arrest. Because the evidence of the firearm was an essential element of D.Y.’s charges, we reverse and remand to the juvenile court with instructions to vacate its true findings and D.Y.’s adjudication as a delinquent child.

In Ignacio Perez v. State of Indiana , an 18-page opinion, Judge Najam writes:
Ignacio Perez appeals his convictions, following a bench trial, for dealing in cocaine, as a Class A felony, and resisting law enforcement, as a Class A misdemeanor. Perez presents two issues for our review, both of which we addressed in detail in a prior interlocutory appeal brought by Perez. See Perez v. State, 981 N.E.2d 1242 (Ind. Ct. App. 2013), trans. denied. Thus, were it not for an opinion issued by the United States Supreme Court subsequent to that appeal, see Florida v. Jardines, 133 S. Ct. 1409 (2012), we would apply the law of the case doctrine and affirm in all respects. However, Jardines requires us to revisit Perez’s second claim of error * * *.

We first hold that the law of the case doctrine precludes our review of Perez’s first claim of error, namely, that the police unconstitutionally seized his person. However, in light of Jardines, we also hold that the canine sniff of Perez’s front door violated the Fourth Amendment. Nevertheless, the probable cause affidavit contained sufficient facts, independent of those discovered by the unconstitutional canine sniff, to provide probable cause for the warrant to search Perez’s home. Thus, we hold that the trial court did not abuse its discretion when it admitted evidence discovered during the execution of the warrant, and we affirm Perez’s convictions.

In David Cupello v. State of Indiana , a 25-page opinion, Judge Najam writes:
In Barnes v. State, 953 N.E.2d 473, 474-75 (Ind. 2011), our supreme court held on rehearing that “the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.” In so holding, the Barnes court noted that “[t]he General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands.”

In its legislative response to Barnes, the General Assembly found and declared that “it is the policy of this state to recognize the unique character of a citizen’s home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant.” Ind. Code § 35-41-3-2(a) (emphasis supplied)

In this case of first impression, David Cupello appeals his conviction, following a bench trial, for battery on a law enforcement officer, as a Class A misdemeanor. * * *

We first hold that the State presented sufficient evidence that the off-duty constable, Robert Webb, was engaged in the performance of his official duties. However, we also hold that, under the statute enacted by our legislature in response to Barnes, the Castle Doctrine is an affirmative defense to the crime of battery on a law enforcement officer when that officer has unlawfully entered the person’s dwelling. And we hold that, on the facts of this case, Cupello exercised reasonable force under Indiana Code Section 35-41-3-2(i)(2) to prevent or terminate an unlawful entry by a public servant into his home. Thus, we reverse Cupello’s conviction. * * *

Bradford, J., concurs.
Mathias, J., concurs with separate opinion. [which begins, at p. 21] I fully concur in the majority’s holding that Cupello exercised reasonable force under Indiana Code section 35-41-3-2(i)(2) to prevent or terminate Constable Webb’s unlawful entry into Cupello’s home.

I find it especially disturbing that Constable Webb freely admitted that it was his “standard practice” to place his foot just inside the threshold of the door when talking to someone, to “to keep them from slamming the door in [his] face.” Tr. p. 15. As the majority notes, without a warrant, this is an unconstitutional entry into the home, see Middleton, 714 N.E.2d at 1101, and arguably criminal residential entry, see Williams, 873 N.E.2d at 148, I.C. § 35-43-2-1.5. However rude it might be to do so, a private citizen has a right to close his or her door on any unwelcome visitor, including a police officer, unless the officer has a warrant. * * *

However, despite my concurrence with this conclusion, I would note that confrontations such as the one that occurred in this case—where a citizen encounters an off-duty law enforcement officer working in the private sector but acting in his official capacity—are fraught with ambiguity and room for misunderstanding.

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: D.R., L.R., & S.R. (Minor Children), A.R. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

Roland O. Ward v. State of Indiana (mem. dec.)

Aaron M. Taylor v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 11, 2015 10:38 AM
Posted to Ind. App.Ct. Decisions