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Thursday, February 18, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (2):

In Demetrius Holloway v. State of Indiana , a 9-page, 2-1 opinion, Judge Crone writes:

A police officer arrested Demetrius Holloway for operating a motor vehicle while intoxicated (“OWI”) and took him to jail, where Holloway threatened to “f[*]ck [the officer] up.” Tr. at 23. Holloway pled guilty to class A misdemeanor OWI, and the trial court found him guilty of level 6 felony intimidation. On appeal, he challenges the sufficiency of the evidence supporting his intimidation conviction. We affirm. * * *

The gist of Hollway’s argument appears to be that his profane statement to Officer Stitsworth did not constitute a threat because it was brief and he was handcuffed and in jail when he uttered it. Holloway attempts to contrast his statement with that of the defendant in Townsend v. State, 753 N.E.2d 88 (Ind. Ct. App. 2001), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). After Townsend was arrested, handcuffed, and placed in a patrol car, he told the arresting officer, “I'm going to get you and I’m going to get your family. You’re not safe from me anywhere. No matter how long it takes me, I will get you.” Id. at 90. He was convicted of intimidation and argued on appeal that “there was no proof” that his statements could be viewed as a threat. Id. at 91. We disagreed and held that “the jury could reasonably conclude that Townsend communicated a threat to” the officer. Id.

We find no basis for distinguishing Townsend’s threat from Holloway’s. * * * Affirmed.

Vaidik, C.J., concurs.
Bailey, J., dissents with opinion. [that begins at p. 6, and concludes] Being a police officer is often fraught with danger and unpleasantness. But to affirm under these circumstances seems to me perilously close to rendering illusory the right to appeal a conviction such as this. See Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014) (observing that “[a]n impossible standard of review under which appellate courts merely ‘rubber stamp’ the fact finder’s determinations, no matter how unreasonable, would raise serious constitutional concerns because it would make the right to an appeal illusory.”) I therefore respectfully dissent.

In David W. Gerth v. State of Indiana , a 14-page opinion, Judge Barnes concludes:
Gerth argues that the two hearsay tips in the probable cause affidavit lacked sufficient indicia of reliability to support the issuance of a search warrant. When deciding whether to issue a search warrant, the issuing magistrate must “‘make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). * * *

The issuance of the search warrant was also based on the later, completely anonymous tip that Gerth was selling marijuana. There is absolutely no indication of this informant’s credibility, even less than for the previously-mentioned CI. The State contends nonetheless that the two informants reciprocally corroborated each other’s information, thereby lending credibility to both of them. We disagree. * * *

The probable cause affidavit failed to include sufficient evidence of probable cause to support issuance of the search warrant, particularly when the omitted material information regarding the CI’s credibility is considered. And in light of that recklessly omitted information, we conclude that application of the exclusionary rule is warranted and the good faith exception to that rule is not.

NFP civil decisions today (7):

In Jesse Clements v. The Honorable Robert R. Altice (mem. dec.), a 7-page opinion, Judge Mathias writes:

Jesse Clements (“Clements”) appeals pro se the Marion Superior Court’s entry of summary judgment in favor of the Honorable Robert Altice (“Judge Altice”) concerning his claim that Judge Altice violated Indiana’s Access to Public Records Act.

Concluding that the trial court erred when it entered summary judgment without holding a hearing as required by Trial Rule 56, we reverse and remand for proceedings consistent with this opinion. * * *

On September 27, 2013, Clements filed a written records request with Judge Altice and requested that the requested audio recordings be made available to him “in a format that is well established and can be used across both Mac and PC formats like Windows Media Player.” Clements also alleged that Judge Altice violated the Indiana Access to Public Records Act by charging him $50 for the recording of the September 23 hearing. Clements argued that the court could only charge him $25 for the recording. * * *

Clements raises four issues in this appeal, but the following claim is dispositive: whether the trial court erred when it granted Judge Altice’s motion for summary judgment without holding a hearing. Clements filed a timely response to Judge Altice’s motion and simultaneously requested a hearing on the motion. * * * We therefore reverse the trial court’s entry of summary judgment and remand for a hearing.

Gierly Perrigo Ingco v. William D. Anderson, Jr. (mem. dec.)

Angela K. Scanlon v. Stephen L. Scanlon (mem. dec.)

Max McClain, II v. Brittney Kinsey (mem. dec.)

Tammy J. Russell f/k/a Tammy J. Betancourt v. John A. Betancourt (mem. dec.)

Delmas Sexton, II v. Keith A. Barand, Brian T. Taylor, and Ryan A. Masoner (mem. dec.)

Serenity Salon and Day Spa, Inc. v. Amanda Pennington (mem. dec.)

NFP criminal decisions today (7):

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

Demarkco Ray Arthur v. State of Indiana (mem. dec.)

Myron Stephen Davisson v. State of Indiana (mem. dec.)

Larry Randolph v. State of Indiana (mem. dec.)

Lewis R. Ross, III v. State of Indiana (mem. dec.)

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

Akheem J. Purnell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 18, 2016 12:02 PM
Posted to Ind. App.Ct. Decisions