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Wednesday, March 23, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (2):

In Cheryl L. Underwood v. Thomas Bunger, in his capacity as the Personal Representative of The Estate of Kenneth K. Kinney; Judith M. Fulford; and Sheree Demming, an 8-page opinion, Sr. Judge Barteau writes:

Cheryl L. Underwood appeals the trial court’s grant of the Estate of Kenneth K. Kinney’s motion to dismiss. We affirm.

Underwood raises two issues, which we consolidate and restate as: Whether the trial court erred in interpreting the parties’ warranty deed. * * *

The trial court correctly determined that Kinney and Fulford took their interest in the Eighth Street property under the deed as tenants by the entireties. The deed identified Kinney and Fulford’s relationship as spouses. See Citizens Nat’l Bank of Whitley Cnty. v. Stasell, 408 N.E.2d 587, 592-93 (Ind. Ct. App. 1980) (a deed that granted an interest to a couple as husband and wife created a tenancy by the entireties).

Underwood points to the phrase “all as Tenants-in-Common” as support for her claim that the deed granted the three grantees a tenancy in common. * * * If the grantor had intended to create a tenancy in common among Underwood, Kinney, and Fulford, then the deed could have omitted the reference to Kinney and Fulford as husband and wife.

Based on this analysis, Kinney’s interest in the Eighth Street Property passed directly to Fulford, and not his Estate, upon his death. See Ind. Code § 32-17-3-1. As a result, the Estate had no interest in the property and was not a proper defendant in Underwood’s claim for partition. The trial court did not err by granting the Estate’s motion to dismiss pursuant to Indiana Trial Rule 12(B)(6).

In Morgan Mannix v. State of Indiana , a 23-page, 2-1 opinion, Chief Judge Vaidik writes:
Morgan Mannix struck and killed Alex Trabbert, who was walking along the road, when she was driving home around 2:30 a.m. Mannix stopped her car and briefly looked around but then left when she did not see anything. Mannix later consented to a blood draw, which occurred approximately seven and a half hours after the accident. The results showed that Mannix’s blood-alcohol concentration was 0.10.

After a jury trial, Mannix was convicted of Class C felony failure to stop after an accident resulting in death and Class C felony operating while intoxicated causing death. Despite noting that he had never seen more compelling
mitigators than in this case, the trial judge sentenced Mannix to an above- advisory term of six years for each conviction, to be served concurrently. The
judge suspended two years and ordered one year of probation.

Reading together Indiana Code sections 9-30-6-15 and 9-30-7-3, we conclude that the fact that a chemical test was administered more than three hours after an accident does not render it inadmissible; rather, it deprives the State of the rebuttable presumption that the driver’s blood-alcohol concentration at the time of the test was the same at the time of the accident. In addition, we agree that the trial court erred in sentencing Mannix to an above-advisory term for each conviction. This is because the judge appeared to rely on the elements of one offense to support an above-advisory sentence for the other offense, and vice versa, but did not identify anything unique about the circumstances that would justify deviating from the advisory sentence, especially in light of the numerous mitigators in this case. We therefore use our review-and-revise authority to sentence Mannix to the advisory term of four years with one year suspended for each conviction, to be served concurrently, and one year of probation. * * *

Bailey, J., concurs.
Crone, J., concurs in part and dissents in part. [in an opinion that starts at p. 20 and concludes] ... I would also find that Mannix has waived her inappropriateness argument as to the nature of her offenses.

Waiver notwithstanding, I find such argument unpersuasive. Mannix drank at least six beers and got behind the wheel of her car in the middle of the night. She drove off the road for over 100 feet and struck Alex Trabert with enough force to knock him out of his shoes and into her windshield, which shattered. She made only a cursory effort to find whatever she hit, did not attempt to summon help, drove home, and went to bed. Later that morning, Trabert’s dead body was found on the side of the road, and Mannix’s blood tested positive for both alcohol and marijuana. The nature of Mannix’s offenses supports a sentence above the advisory term and reflects unfavorably on her character. Although she has no criminal history and has achieved some educational and vocational success, she exhibited extremely poor judgment that resulted in the death of an innocent young man. She has used alcohol and marijuana since she was a teenager, and she continued to consume alcohol until the week of trial.(presentence investigation report). Mannix has failed to persuade me that the trial court’s sentence is inappropriate, and therefore I would affirm it.

NFP civil decisions today (4):

Dwayne E. Gray and Jeffrey E. Minor v. Indiana Farm Bureau Insurance Company (mem. dec.)

In Re the Adoption of H.A.F., A.J.F. v. A.D.F. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of R.S., Jr. (Child) and R.S., Sr. (Father); R.S., Sr. (Father) v. The Indiana Department of Child Services (mem. dec.)

Steven Robbins v. Indiana Department of Correction, et al. (mem. dec.)

NFP criminal decisions today (2):

Khalil Reeves v. State of Indiana (mem. dec.)

Richard D. Croslin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 23, 2016 11:09 AM
Posted to Ind. App.Ct. Decisions