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Tuesday, April 21, 2015

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (4):

In Pamela Frazee v. Douglas J. Skees and Angela D. Skees, a 35-page opinion, Judge Najam writes:

Pamela Frazee filed a complaint against Douglas and Angela Skees (“the Skeeses”), which arose out of a dispute regarding a subsurface drain running through the parties’ properties in Tippecanoe County. In her complaint, Frazee alleged property damage, nuisance, and criminal trespass. The Skeeses filed a counterclaim alleging negligence, nuisance, criminal trespass, and invasion of privacy. All parties sought damages pursuant to the Crime Victim’s Relief Act, Indiana Code Section 34-24-3-1. Following a bench trial, the trial court found in favor of Frazee on her nuisance claim and in favor of the Skeeses on their trespass claim. The trial court awarded attorney’s fees to both parties, and it awarded treble damages to the Skeeses. Frazee now appeals, and the Skeeses cross-appeal. * * *

We affirm the trial court’s conclusions that the subsurface drain was a mutual drain and that the Skeeses did not abandon the drain. Thus, we also affirm its judgment that the Skeeses did not trespass when they connected their perimeter drain to the subsurface drain. Further, we affirm the court’s conclusion that Frazee was solely responsible for the costs of the repairs that she had made to the portion of the subsurface drain that ran through her property. However, we reverse the trial court’s judgment that Frazee committed a criminal trespass, and, therefore, we also reverse the award of treble damages and attorney’s fees to the Skeeses. Finally, we reverse the trial court’s award of attorney’s fees to Frazee.

In Andrew Meyer v. Beta Tau House Corporation, Beta Tau of Sigma Pi, Sigma Pi Fraternity International, Inc., and Quentin Calder , a 26-page opinion, Judge Baker writes:
Andrew Meyer filed a complaint against Beta Tau House Corporation (House Corporation), Beta Tau of Sigma Pi (Beta Tau), Sigma Pi Fraternity International, Inc. (Sigma Pi), and Quentin Calder. At issue in this appeal are Meyer’s claims for negligence against House Corporation, Beta Tau, and Sigma Pi; violation of the Dram Shop Act1 against Beta Tau; and defamation against Calder and the House Corporation. The trial court granted summary judgment in favor of the defendants on all of these claims. Meyer argues that the summary judgment order was erroneous because there are genuine issues of material fact related to each claim. Finding no error, we affirm.

[The opinion discusses: "two recent Indiana Supreme Court cases on the issue of duties assumed by a national fraternity," cited by both parties. Yost v. Wabash College and Smith v. Delta Tau Delta.]

In Brian L. Harrison v. State of Indiana, a 29-page opinion, Judge Mathias concludes:
In summary, we hold that the State presented sufficient evidence to convict Harrison of manufacturing methamphetamine. However, Harrison’s convictions for possession of anhydrous ammonia and possession of precursors are lesser included offenses of the greater offense of manufacturing methamphetamine and must be reversed. Harrison may not now assert a claim of improper search or seizure in his mobile phone, which he voluntarily abandoned. The trial court did not commit reversible error in admitting evidence regarding the telephone call between Hatfield and Pointer or between Harrison and Gee. Nor did the trial court err in permitting the prosecuting attorney to read from a published opinion of this court during the State’s closing argument. Lastly, the trial court did not abuse its discretion in permitting references to Harrison’s nickname of “Bam Bam.”

Accordingly, we affirm Harrison’s convictions for Class B felony manufacturing methamphetamine and Class A misdemeanor possession of paraphernalia but reverse his convictions for Class B felony possession of anhydrous ammonia and Class B felony possession of chemical precursors and remand with instructions that the trial court vacate the convictions and sentences thereon. Harrison’s habitual offender adjudication remains.

In Jeremy Ellis v. State of Indiana , an 18-page opinion, Judge Najam writes:
Jeremy Ellis appeals his convictions and sentence for theft and attempted theft, both as Class D felonies, following a jury trial. Ellis raises three issues for our review. First, he asserts that his two convictions violate Indiana’s prohibitions against double jeopardy either because the prosecutor told the jury that it should consider Ellis’ first offense as evidence of Ellis’ intent to commit the second offense or because the prosecutor expressly stated that the State was seeking only one conviction against Ellis. The first statement is not problematic under Indiana’s Double Jeopardy Clause. And while we do not approve of the entry of multiple convictions when the prosecutor does not request it, nonetheless Ellis was charged with multiple offenses and the evidence demonstrated multiple offenses. Thus, the error here, if any, is not an error under the actual evidence test of Indiana’s Double Jeopardy Clause.

Ellis also appeals his sentence. In particular, he asserts that his aggregate term of two and one-half years, with six months suspended to probation, for the theft of about $30 worth of goods for each offense is inappropriate. For support of this argument, Ellis cites the current version of Indiana’s criminal code, which was not in effect at the time he committed his offenses. We reject Ellis’ attempt to use Indiana Appellate Rule 7(B) to give retroactive effect to the new criminal code.

Finally, Ellis asserts that the trial court erred when it denied his motion for additional credit time. But Ellis has not supported this argument with citations to any part of the appendix or record on appeal that demonstrates his claims regarding time served and credit time. Thus, we are obliged to reject this argument.

We affirm Ellis’ convictions and sentence.

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: J.G. (Minor Child), and A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Timothy M. Roberts, Jr. v. State of Indiana (mem. dec.)

Mary Stephens v. State of Indiana (mem. dec.)

Javon Thomas v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 21, 2015 12:52 PM
Posted to Ind. App.Ct. Decisions