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Wednesday, August 19, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 1 NFP memorandum decisions)

For publication opinions today (2):

In John Counceller v. City of Columbus Plan Commission, an 11-page opinion, Judge Bradford writes:

In 1999, Appellant-Petitioner John Counceller submitted the first of four applications to subdivide his lot in the Indian Hills Estates (“the Lot”) in Columbus. The first two were withdrawn prior to action by Appellee-Respondent City of Columbus Plan Commission (“the Commission”). In 2013, Counceller again requested to subdivide the Lot, and the Columbus Plat Committee (“the Plat Committee”) granted primary approval to the application. Although no objection was filed to this approval, Counceller never acted on it, and it expired. The first three applications were to subdivide the Lot into two lots.

In 2014, Counceller again submitted an application that he be allowed to subdivide the Lot, this time into three lots, and the Plat Committee again granted primary approval to the request. When notified of the Plat Committee’s approval, all or almost all of the other property owners in Indian Hills Estates objected. Citing a Columbus ordinance that requires 75% of property owners in a subdivision to approve a further subdivision of one of the lots, the Commission ultimately rejected Counceller’s application. Counceller argues that the Commission should be estopped from relying on the 75% requirement and that it improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. We affirm.

In Tracy D. Guffey v. State of Indiana, a 24-page opinion, Judge Pyle writes:
While incarcerated in the county jail, Tracy D. Guffey (“Guffey”) made phone calls to his girlfriend. During these phone calls, which were recorded by the jail, Guffey encouraged his girlfriend to have sex with her twelve-year-old son so that she could make sure that he was not gay and told her to give her son alcohol prior to having sex so that he would be more comfortable. When the State moved to admit sixteen of these recorded jail telephone calls into evidence at trial, Guffey objected to fifteen of the calls.

On appeal, Guffey challenges the trial court’s admission of these fifteen recordings, argues that his convictions and sentences violate the actual evidence test of the Indiana Double Jeopardy Clause, and contends that there is insufficient evidence to support his convictions.

Because the record before us reveals that the trial court entered judgment of convictions on Counts II and IV before merging those convictions and that it also entered a separate sentence on Guffey’s habitual offender determination instead of enhancing one of his sentences, we remand to the trial court with instructions to correct these irregularities. We also conclude that the trial court did not abuse its discretion by admitting the fifteen recorded jail phone calls because they were relevant to show Guffey’s plan and preparation as they related to his conspiracy to commit child molesting charge. Additionally, as the State concedes, the evidence shows a reasonable possibility that Guffey’s remaining convictions on Counts I, III, and V were based on the same actual evidence, we remand to the trial court to vacate Counts III and V and instruct that trial court that it may resentence Guffey on Count I. Lastly, we conclude that there was sufficient evidence to support Guffey’s Class A felony conspiracy to commit child molesting as charged in Count I.

NFP civil decisions today (1):

In the Matter of the Termination of T.P. & D.P. (Minor children) E.N. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on August 19, 2015 10:44 AM
Posted to Ind. App.Ct. Decisions