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Monday, August 31, 2015

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

For publication opinions today (3):

In Jason Stanke v. Nicole Swickard, a 10-page opinion, Judge Brown writes:

The issue is whether the trial court erred in finding Stanke in contempt. Stanke argues in part that he was not afforded the due process required to find him in contempt of court because the court’s rule to show cause order did not meet the statutory requirements for such an order and did not properly notify him of the allegations against him. * * *

We conclude that Stanke has presented a case of prima facie error. For the foregoing reasons, we reverse with instruction to vacate the findings of contempt entered against Stanke, and we remand for a determination of appropriate attorney fees.

In Gordon A. Etzler v. Indiana Department of Revenue, a 14-page opinion, Judge Robb writes:
In December of 2000, the Indiana Department of Revenue (the “Department”) filed tax warrants against Dale Dodson in Marshall County and obtained a judgment creating a lien against Dodson’s real property and personal property in that county. In 2011, in an attempt to collect unpaid taxes owed by Dodson, the Department levied on money located in Marion County without obtaining a judgment in Marion County or otherwise establishing an interest in property located outside of Marshall County. We disapproved of the Department’s levy in this court’s decision in Etzler v. Ind. Dep’t of Revenue, 27 N.E.3d 1085 (Ind. Ct. App. 2015). In that opinion, we held that Indiana Code chapter 6-8.1-8 provides that a tax warrant entered as a judgment creates a lien on property in the county in which the judgment was entered, and the Department is not authorized to unilaterally levy on property on which a lien has not been established. Id. at 1088-89. The Department petitions this court for rehearing of that decision.

On rehearing, the Department argues that our reading of Indiana Code chapter 6-8.1-8 is incorrect and claims that public policy considerations entitle the Department to a victory in this case. The Department also, for the first time on rehearing, raises a number of new arguments under Indiana’s Uniform Commercial Code (Indiana Code chapter 26-1-9.1), asserting that several sections of that chapter grant the Department priority over Etzler and entitle the Department to the property at issue in this case. Finally, the Department asks that we clarify whether Etzler is entitled to prejudgment interest, an issue not previously before this court. We grant rehearing in order to address the Department’s supplementary arguments, but we affirm our original holding in Etzler, supra. * * *

We conclude that Indiana Code section 6-8.1-8-8 does not grant the Department statewide levying authority. We further conclude that sections of Indiana’s Uniform Commercial Code cited by the Department do not entitle it to priority in the breeder’s award proceeds that it levied upon. We reaffirm our original opinion that the trial court erred in granting summary judgment to the Department.

In Anthony Lamar Caldwell v. State of Indiana, a 20-page opinion, Chief Judge Vaidik writes:
Indiana Evidence Rule 404(b) provides that evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. However, the evidence may be admissible for another purpose, such as proving identity. The identity exception was crafted primarily for “signature” crimes with a common modus operandi. The exception’s rationale is that the crimes, or the means used to commit them, are so similar and unique that it is highly probable that the same person committed all of them. Crimes that are only “generally similar” do not qualify under this exception; rather, the crimes must be “strikingly similar.”

Anthony Lamar Caldwell was charged with Class A felony burglary and Class A felony attempted rape for breaking into a woman’s house, badly beating her, and attempting to rape her. At trial, the State introduced evidence that Caldwell looked in the window at another woman’s house—which was in the same neighborhood—fifty-seven days later. The trial court admitted this evidence under the identity exception in Evidence Rule 404(b) because it found that the second crime was “sufficiently similar” to the first crime and the crimes demonstrated Caldwell’s “signature.” The jury found Caldwell guilty as charged, and the trial court sentenced him to an aggregate term of 100 years.

Although there are general similarities between the crimes, we find that the similarities are not striking, primarily because the second incident did not involve an entry into the woman’s house or a sexual assault. Because they are not signature crimes, we conclude that the trial court abused its discretion in admitting evidence of the second crime. Nevertheless, we find that the error is harmless in light of the fact that Caldwell’s DNA was found at the scene of the first crime and the jury was admonished to consider the second crime for identification purposes only. In addition, because the enhancements to Caldwell’s burglary and attempted-rape convictions violate the common-law prohibition against double jeopardy, we reduce Caldwell’s burglary conviction from a Class A felony to a Class B felony, thereby resulting in a new aggregate sentence of seventy years.

NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of, L.P. (Minor Child), and, B.A. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

Jeremy Virant v. State of Indiana (mem. dec.)

Kevin Hiten v. State of Indiana (mem. dec.)

Shamar D. Shelton v. State of Indiana (mem. dec.)

Charles Robinson v. State of Indiana (mem. dec.)

Karl A. Wikstrom, Jr. v. State of Indiana (mem. dec.)

Samuel Bellamy v. State of Indiana (mem. dec.)

Steven A. Curry, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 31, 2015 11:45 AM
Posted to Ind. App.Ct. Decisions