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Thursday, June 04, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (3):

In Tom Bonnell v. Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson, a 17-page opinion, Judge Najam writes:

Tom Bonnell appeals the trial court’s entry of judgment, following a bench trial, in favor of Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson (collectively, “the Cotners”). Bonnell raises one issue on appeal, and the Cotners raise one issue on cross-appeal. The Cotners’ issue on cross-appeal is both dispositive and an issue of first impression: whether adverse holders of real property can be divested of their title by a subsequent tax sale of the property when the adverse holders’ title is premised on a reasonable and good faith—albeit mistaken—belief that they are paying the proper taxes on the property. On these facts, we hold that the subsequent tax sales did not divest the adverse holders of their title to the real property. As such, we reverse the trial court’s judgment for Bonnell and remand with instructions for the court to enter judgment for the Cotners. * * *

Under the trial court’s interpretation of Indiana law, vested adverse holders may become divested of their property for failing to pay taxes despite reasonably believing in good faith that they are paying the appropriate taxes due. This conclusion is contrary to the adverse possession tax statute’s specific and explicit exception that adverse possession may occur in these circumstances. Accordingly, the trial court erred as a matter of law when it concluded that the Cotners’ vested title was “severed” by the 1993 and 2011 tax sales. See Appellant’s App. at 19. As the Cotners’ title, which, again, had vested in 1978, was never severed, neither the Board nor Bonnell took title to the disputed area from those tax sales. Hence, we reverse the trial court’s judgment and remand with instructions for the court to enter judgment for the Cotners on their claim for adverse possession over the disputed area.

In Ashonta Kenya Jackson v. State of Indiana, a 24-page, 2-1 opinion, Judge Najam writes:
Ashonta Kenya Jackson appeals his convictions for three counts of robbery, as Class B felonies; his conviction for corrupt business influence, a Class C felony; and his adjudication as a habitual offender following a jury trial. Jackson presents the following issues for our review:

1. Whether the trial court erred when it denied his motion for change of judge.
2. Whether the State presented sufficient evidence to support his corrupt business influence conviction and his adjudication as a habitual offender.
3. Whether the trial court abused its discretion when it sentenced him.

We affirm in part, reverse in part, and remand with instructions. * * *

[p. 8] Jackson contends that the State was also required to prove that his criminal acts posed a threat of continued criminal activity, but that the State presented no such evidence. While Indiana’s statute for corrupt business influence does not expressly include an element of continuing the criminal conduct into the future, the statute is patterned after the federal RICO statute, and we look to relevant federal case law for guidance in interpreting the Indiana version of the statute. * * *

[p. 15] [W]hile the plain text of the Indiana statute differs from that of the federal statute, both require proof of a relationship between the predicate offenses regarding the intent, methods, participants, and like circumstances. And it would appear that our legislature patterned the statutory definition of pattern of racketeering activity after both 18 U.S.C. Section 1961(5) and the federal Organized Crime Control Act of 1970. * * *

Friedlander, J., concurs.
Baker, J., concurs in part and dissents in part with separate opinion [that begins, at p. 22] I respectfully dissent from the majority regarding the sufficiency of the evidence supporting Jackson’s conviction for corrupt business influence. * * *

It is axiomatic that when engaging in statutory interpretation, “Courts may not ‘engraft new words’ onto a statute or add restrictions where none exist.” Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013) (quoting State ex rel. Monchecourt v. Vigo Cir. Ct., 240 Ind. 168, 162 N.E.2d 614, 615 (1959)). I believe that to reverse a conviction for failure to prove an element that is nowhere to be found in the statute defining the crime requires us to engraft new words onto a statute. I do not believe it is our place to do so. As a result, I would affirm Jackson’s conviction for corrupt business influence. In all other respects, I concur with the majority.

In Justin Brewer v. State of Indiana, a 6-page opinion, Judge Najam writes:
Justin Brewer appeals his convictions for auto theft, as a Class D felony, and resisting law enforcement, as a Class D felony, following a jury trial. Brewer raises a single issue for our review, namely, whether his convictions violate Indiana’s statutory prohibition against double jeopardy when Brewer had been convicted in the Commonwealth of Kentucky for the same or similar conduct. We affirm in part, reverse in part, and remand with instructions.
NFP civil decisions today (5):

In the Matter of the Term. of the Parent-Child Relationship of, M.W., (Minor Child) and, J.W., (Mother) v. The Ind. Dept. of Child Services

Jeffrey T. Gorham v. Dana E. Downing f/k/a Dana E. Gorham (mem. dec.)

Brandon George, Dustin George and 2911 Investments, LLC v. Pekin Life Insurance Company (mem. dec.)

Control Building Services, Inc. v. Simon Services, Inc., d/b/a Simon business Network (mem. dec.)

In Re: The Adoption of: M.W.M and K.R.M. (Minor Children) M.M. v. W.S. (mem. dec.)

NFP criminal decisions today (3):

Kraig Martin v. State of Indiana (mem. dec.)

Renald Williams, Sr. v. State of Indiana (mem. dec.)

Ricardo B. Fuller v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on June 4, 2015 11:11 AM
Posted to Ind. App.Ct. Decisions