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Tuesday, November 10, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In In the Matter of the Guardianship of B.W.; E.W. v. L.G., a 15-page opinion, Judge Robb concludes:

In a custody dispute between a natural parent and a third party, we recognize a strong presumption that a child’s best interests will be served by placement with his or her natural parent. In the present case, the trial court’s findings fail to support the judgment that Great Aunt has clearly and convincingly overcome the presumption in favor of Mother. We therefore reverse and remand, with instructions to vacate the order awarding Great Aunt custody of B.W.
In State of Indiana v. Justin Bazan, a 7-page opinion, Judge Barnes writes:
In this interlocutory appeal, the State of Indiana appeals the trial court’s grant of a motion to dismiss filed by Justin Bazan regarding the charges of Level 6 felony operating a vehicle while intoxicated endangering a person with a prior conviction within five years and Level 6 felony operating a vehicle while intoxicated with a prior conviction within five years. We affirm. * * *

We conclude that, unlike in Akins, the New York statute here is not substantially similar to the elements of a crime described in Indiana Code Sections 9-30-5-1 through 9-30-5-9. The New York statute under which Bazan was convicted requires only some extent of impairment due to the consumption of alcohol. On the other hand, Indiana Code Section 9-30-5-2(a), upon which the State relies, requires a showing of an impaired condition of thought and action and the loss of normal control of a person’s faculties. The Indiana statute requires a greater showing of impairment than the New York statute. The two statutes have markedly different thresholds for establishing a violation. Consequently, the two statutes are not substantially similar, and we conclude that the trial court properly dismissed the enhanced charges in this case.

NFP civil decisions today (0):

NFP criminal decisions today (13):

Anthony Davis v. State of Indiana (mem. dec.)

Scott D. Hartman v. State of Indiana (mem. dec.)

Payton Jarrard v. State of Indiana (mem. dec.)

Lennard Coleman, Sr. v. State of Indiana (mem. dec.)

Donald S. Adcock v. State of Indiana (mem. dec.)

Kevin L. Simons v. State of Indiana (mem. dec.)

Artie Pence v. State of Indiana (mem. dec.)

Stacey Yuron Hart v. State of Indiana (mem. dec.)

Garrick J. Troupe v. State of Indiana (mem. dec.)

Sean R. Schaffer v. State of Indiana (mem. dec.)

William McNeal v. State of Indiana (mem. dec.)

Matthew Mason v. State of Indiana (mem. dec.)

Nathan Scott Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 10, 2015 12:13 PM
Posted to Ind. App.Ct. Decisions