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Thursday, April 30, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 11 NFP memorandum decisions)

For publication opinions today (5):

In William Arnold Henry and Mary Ann Henry v. Margo Liebner, a 35-page opinion, Judge Pyle concludes:

In summary, we conclude that the trial court correctly determined that the Henrys did not have title to the triangular parcel. However, the trial court erred by concluding that the non-party Niblocks had obtained title via adverse possession where there was no evidence presented regarding their payment of taxes or compliance with the adverse possession tax statute during the relevant ten-year period. Nevertheless, because we may affirm a general judgment based on any theory supported by the evidence and because there is evidence regarding Liebner’s and her predecessor’s payment of taxes or compliance with the adverse possession tax statute during the relevant ten-year period, we remand to the trial court to enter judgment for Liebner on her claim of adverse possession.
In Bruce Angelo Evans v. State of Indiana, a 13-page opinion, Chief Judge Vaidik writes:
A confidential informant performed a controlled buy of heroin from the defendant, Bruce Angelo Evans. At the jury trial, several witnesses who had been present in the house where the controlled buy occurred or who were otherwise associated with Evans and the confidential informant testified that Evans had also sold them heroin on the day of the controlled buy. On appeal, Evans argues first that in light of the evidence of multiple acts of dealing, the trial court erred in failing to issue an instruction on jury unanimity, in order to ensure that all of the jurors relied on the same act of dealing to support Evans’s conviction. We find that Evans waived this alleged error by failing to object to the jury instructions or offer one of his own. Moreover, we find that any error does not rise to the level of fundamental error because given that the overwhelming majority of evidence at trial was about the controlled buy, it is clear that this was the act of dealing that supported the jury’s guilty verdict. Second, Evans argues that the trial court abused its discretion in admitting evidence of a large amount of cash – in addition to the buy money – found on Evans when he was searched by law enforcement officers after the controlled buy. But Evans failed to object when the evidence of this additional money was first offered into evidence, and thus has waived this claim on appeal. Waiver notwithstanding, we find that any error in the admission of this evidence was harmless insofar as there was substantial evidence supporting Evans’s conviction regardless of the evidence of additional money. Accordingly, we affirm.
In Donnell D. Wilson v. State of Indiana , a 13-page opinion, Judge Bradford writes:
Wilson raises three issues on appeal: (1) whether the trial court properly admitted the Twitter messages into evidence; (2) whether Wilson’s conviction for conspiracy to commit criminal gang activity should be vacated as being in conflict with his criminal gang activity enhancements; and (3) whether the trial court properly excluded Wilson from a portion of trial. We affirm in part, reverse in part, and remand to the trial court with instructions.

[(1) Authentication of Twitter Account, begins on p. 6 and continues to p. 9, concluding]

Consequently, we think that taken together, the witness testimony identifying the Twitter account as belonging to Wilson and the content posted on the account, including pictures and gang references, are more than sufficient to authenticate the Twitter posts as being authored by Wilson.

In Mitchell Swallows v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Mitchell Swallows appeals the trial court’s denial of his petition to modify his sentence, contending that the trial court erred in finding that the revised modification statute, which became effective July 1, 2014, did not apply to his sentence. * * *

Essentially, Swallows is asking this court to reverse the denial of his petition for modification because the trial court erroneously determined it did not have authority under the current version of Indiana Code section 35-38-1-17. * * *

Noting the plain meaning of the savings clause, and following the intent of the Legislature and our court’s reasoning in Hobbs, we conclude that the current version of Indiana Code section 35-38-1-17, which became effective July 1, 2014, does not apply to Swallows’s petition to modify a sentence that he began serving in 1989. The trial court did not err in denying Swallows’s petition to modify his sentence.

In Casie S. Rudisel v. State of Indiana, a 14-page opinion, Judge Brown writes:
Casie S. Rudisel appeals the trial court’s order revoking her probation and placement and ordering that she serve the balance of her original sentence. Rudisel raises one issue which we revise and restate as whether the trial court abused its discretion in sentencing her following revocation of her probation. We reverse and remand. * * *

For the foregoing reasons, we reverse and remand with instructions to sentence Rudisel to a term that considers the applicable credit time and does not exceed the maximum sentence.

NFP civil decisions today (2):

T.M. v. D.W. (mem. dec.)

Christopher K. Kesling, Emily Kesling, and Adam Kesling v. Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001, Peter Kesling, et al. (mem. dec.)

NFP criminal decisions today (9):

Charles J. Davis, Jr. v. State of Indiana (mem. dec.)

Jody A. Bailey v. State of Indiana (mem. dec.)

Robert Tibbs v. State of Indiana (mem. dec.)

Tim A. Tyler v. State of Indiana (mem. dec.)

Stephen E. Abernathy v. State of Indiana (mem. dec.)

Servan Allen v. State of Indiana (mem. dec.)

James Currin v. State of Indiana (mem. dec.)

S.H. v. State of Indiana (mem. dec.)

Anthony D. Moore v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 30, 2015 11:17 AM
Posted to Ind. App.Ct. Decisions