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Thursday, April 28, 2016

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (6):

In Susan Stewart, Personal Representative of the Estate of Joanne Hatton, deceased v. Arthur Alunday, M.D., a 19-page case, Chief Judge Vaidik writes [ILB emphasis]:

In this medical-malpractice case, the plaintiff filed a motion for judgment on the evidence claiming that Dr. Arthur Alunday, M.D., made a judicial admission during his testimony that he breached the standard of care, thereby leaving only the issues of causation and damages for the jury. Although the trial court found that Dr. Alunday judicially admitted that he breached the standard of care, the court concluded that the judicial admission was not conclusive and binding but rather should be considered and weighed as other evidence. We clarify that, contrary to a line of authority that has developed in this Court, judicial admissions—as opposed to evidentiary admissions, which can be accepted or rejected by the trier of fact—are conclusive and binding on the trier of fact. Nevertheless, considering Dr. Alunday’s trial testimony as a whole, we find that he did not unequivocally admit that he breached the standard of care. We affirm the jury’s verdict in his favor. * * *

Because of an error made in 1990 in Waugh [Waugh v. Kelly, 555 N.E.2d 857 (Ind. Ct. App.] that commingled the standards for judicial and evidentiary admissions, which has since been repeated in other cases including Weinberger [Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied], we now clarify that unlike evidentiary admissions, which the trier of fact may accept or reject, judicial admissions are conclusive and binding on the trier of fact.

In Alfonso M. Aguayo and William O'Connor v. City of Hammond Inspection Department , a 10-page opinion, Judge Mathias writes:
The Inspection Department of the City of Hammond filed a small claims action against Alfonso M. Aguayo in Lake Superior Court seeking to recover rental registration fees. Aguayo initially failed to respond, and the trial court entered a default judgment in favor of the City. Aguayo then hired attorney William O’Connor to represent him and seek to have the default judgment set aside. Because O’Connor had previously acted as counsel for the City, the City filed a motion to disqualify O’Connor as Aguayo’s counsel, which the trial court granted. O’Connor appeals and argues that the trial court erred in disqualifying him from serving as counsel in this and other similar cases. We reverse. * * *

The trial court’s order disqualifying O’Connor was a valid exercise of the trial court’s authority, but only to the extent it disqualified O’Connor from the case immediately before the trial court. Once the case was dismissed on motion of the City, that dismissal mooted much of the trial court’s disqualification order as pertained to that case. However, the trial court exceeded its authority to the extent that it purported to disqualify O’Connor from representing clients with interests adverse to the City in future cases. We therefore reverse that portion of the trial court’s disqualification order.

In Gerald W. Stephenson v. State of Indiana , a 10-page opinion, Judge Najam concludes:
The State has provided sufficient evidence to support Stephenson’s conviction; the trial court did not abuse its discretion in sentencing him to the maximum sentence; and Stephenson has failed to persuade us that his sentence is inappropriate in light of the nature of his crime and his character. Affirmed.
In Corey T. Weaver v. State of Indiana, an 11-page, 2-1 opinion, Judge Mathis writes:
Corey Weaver (“Weaver”) was convicted in the Hendricks Superior Court for refusing to identify himself to a law enforcement official, as required pursuant to Indiana Code section 34-28-5-3.5. Weaver appeals and argues that his conviction is not supported by sufficient evidence. We reverse and remand for proceedings consistent with this opinion. * * *

[U]nder the specific and limited facts and circumstances before us, we do not consider Weaver’s question in response to being asked for his address to constitute refusal. Indeed, his legitimate question as to whether he was being arrested approaches constitutional magnitude under the statute. Because Weaver did not refuse to provide his address, the State did not meet its burden of proving that Weaver refused to provide his name, address, and date of birth. See I.C. § 34-28-5-3.5(1). We therefore reverse Weaver’s conviction for Class C misdemeanor failure to identify.

Kirsch, J., concurs.
Altice, J., dissents with opinion. [that begins, on p. 10] Our standard of review requires us to affirm Weaver’s conviction “unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Jackson v. State, No. 48S02-1509-CR-554, slip op. at 4 (Ind.
March 2, 2016). In my opinion, the trial court reasonably determined that the
evidence in this case sufficiently established each element of the offense.
Therefore, I must dissent.

In Tyreese Taylor-Bey v. State of Indiana, a 5-page opinion with a pro se defendant, Chief Judge Vaidik writes:
Tyreese Taylor-Bey was convicted of murder. He now appeals, arguing that the trial court lacked jurisdiction based on his status as a “Moorish American National Sovereign” and “Secured Party Creditor.” Because the trial court had jurisdiction, we affirm.
In Joshua Howell v. State of Indiana, an 11-page opinion, Chief Judge Vaidik writes:
At the time of the crime in this case, burglary was generally a Class C felony bu was a Class B felony if the building or structure was a “dwelling.” The State charged Joshua Howell with Class B felony burglary for breaking into a house just hours after the sole occupant was found dead inside. We find that it is reasonable to construe “dwelling” to include buildings and structures that have been occupied in the immediate past by a recently deceased resident. This is because even after the sole occupant of a house dies, it is common and expected for people still to be at the house. To find otherwise would reduce the criminality of burglars who target houses where the sole occupant has recently died. Further, the fact that the house was ordered vacated by the county health department just hours before Howell broke in does not impact whether it was a dwelling for purposes of our burglary statute. We therefore affirm.
NFP civil decisions today (2):

W.W. and A.V. v. Indiana Department of Child Services (mem. dec.)

Danny Huynh v. Nga Pham (mem. dec.)

NFP criminal decisions today (12):

M.D. v. State of Indiana (mem. dec.)

Obed Bailey v. State of Indiana (mem. dec.)

Tanno Sheard v. State of Indiana (mem. dec.)

Lorenzo Adams v. State of Indiana (mem. dec.)

Brandon Foster v. State of Indiana (mem. dec.)

Alan E. Dewitt v. State of Indiana (mem. dec.)

Shandell T. Willingham v. State of Indiana (mem. dec.)

Jerry Strawser v. State of Indiana (mem. dec.)

Earl D. Napier v. State of Indiana (mem. dec.)

Darren Morgan v. State of Indiana (mem. dec.)

Gregory Reasons v. Joanne Reasons (mem. dec.)

Julius Anderson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 28, 2016 01:48 PM
Posted to Ind. App.Ct. Decisions