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Thursday, May 12, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 4 NFP memorandum decision(s)) [Corrected]

For publication opinions today (4):

In In the Matter of F.S., T.W., M.F., and B.F. (Minor Children) v. Ind. Dept. of Child Services for Crawford County , a 32-page opinion, Judge Robb writes:

B.S. (“Mother”) appeals the trial court’s order, based on authority granted by Indiana Code section 31-33-8-7, compelling her to allow the Crawford County Department of Child Services (“DCS”) to interview two of her children. She contends the statute is unconstitutional as applied to her because it allowed the trial court to compel the interviews based solely on the uncorroborated accusations of an undisclosed informant, violating her substantive and procedural due process rights. Concluding the statute as applied in this case violated Mother’s right to raise her family free from undue interference by the State, we reverse. * * *

The statutes on which DCS based its request to control Mother’s conduct by compelling her to submit the Children to interviews by DCS require DCS to show some evidence suggesting abuse or neglect before the trial court may issue such an order. No such evidence was presented to the trial court in this case, and the order issued pursuant to Indiana Code section 31-33-8-7 is reversed.

In Philip D. Kyle v. State of Indiana , a 13-page opinion, Judge Pyle writes:
Philip D. Kyle (“Kyle”) appeals his two convictions for Class C felony child molesting. On appeal, he argues that the trial court abused its discretion when it: (1) admitted an audiotape of phone conversations he had with the victim’s mother from jail; and (2) allowed the victim’s mother to testify that she was convicted of assisting a criminal as a result of trying to convince the victim to change his story. He asserts that the phone conversations were inadmissible under Indiana Evidence Rule 404(b) and that the testimony was inadmissible under Evidence Rule 704(b). However, we conclude that the trial court did not abuse its discretion because the phone calls and the victim’s mother’s testimony concerned conduct inseparable from Kyle’s offense, and their highly probative nature outweighed the risk of unfair prejudice to Kyle.
In Mary Osborne v. State of Indiana, a 20-page, 2-1 opinion, Judge Riley writes:
Appellant-Defendant, Mary Osborne, appeals the trial court’s denial of her motion to suppress. We reverse and remand.

Osborne raises one issue on interlocutory appeal, which we restate as follows: Whether the warrantless seizure of Osborne violated the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. * * *

The trial court noted that “[o]ne exception [to the warrant requirement] is the noncriminal, noninvestigative community caretaking function, which is used with caution in order to ensure that it is not used as a pretext for a criminal investigation.” The trial court concluded that “Officer Arnold stopped [Osborne’s] vehicle as part of his ‘community caretaking’ function”; therefore, the warrantless seizure did not run afoul of either the federal Constitution or the Indiana Constitution. * * *

The community caretaking function “is a narrow exception to the privacy protections of the Fourth Amendment.” Killebrew, 976 N.E.2d at 782. In Indiana, it has been applied as an exception to the warrant requirement only in cases where the police must conduct an inventory search because they are impounding a vehicle. * * *

Like the “majority of state courts throughout the country” that have adopted the community caretaking exception, we recognize that law enforcement officers do have community safety and welfare duties beyond their criminal investigatory duties. Smathers, 753 S.E.2d at 384. Accordingly, we find that the community caretaking function exception may be used as a means of establishing the reasonableness of a traffic stop under the Fourth Amendment. We further find that the three-pronged test utilized by Wisconsin “provides a flexible framework within which officers can safely perform their duties in the public’s interest while still protecting individuals from unreasonable government intrusions.” Id. at 386. We now apply this test to the specific facts of Osborne’s case. * * *

Based on the foregoing, we conclude that the community caretaking function of police officers may apply to justify a traffic stop where the officer does not otherwise observe a traffic violation or have a reasonable suspicion that criminal activity is afoot. However, based on the facts of this case, we conclude that the exercise of Officer Arnold’s community caretaking function was not reasonable and, therefore, violated Osborne’s Fourth Amendment rights. Reversed and remanded.

Pyle, J. concurs
Kirsch, J. dissents without separate opinion

In Brandon T. Black v. State of Indiana, a 26-page opinion, Judge Brown writes:
Brandon T. Black appeals the denial of his petition for post-conviction relief. Black raises two issues which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.
NFP civil decisions today (3):

In Cheryll Lee v. Blue Chip Casino LLC (mem. dec.), an 8-page opinion, Judge Bradford writes:

Appellant-Plaintiff Cheryll Lee slipped and fell as she was entering Appellee-Defendant Blue Chip Casino’s establishment. Lee brought suit claiming that Blue Chip was negligent for maintaining an unreasonably dangerous premises and failing to warn her that the area in front of the entrance was slick and dangerous. The trial court awarded summary judgment in favor of Blue Chip finding that the area on which Lee slipped was not unreasonably dangerous because it was outdoors and wet due to rainwater, and that any potential hazard was open and obvious. We reverse. * * *

Determining whether Blue Chip’s entryway posed an unreasonable risk, and whether that risk was open and obvious, are factual questions left to the trier-of-fact. We again note that summary judgment is generally disfavored as an alternative to trial, particularly in fact-sensitive negligence cases. See Simon Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d 1235, 1240 (Ind. Ct. App. 2005); see also Harradon, 913 N.E.2d at 300. Because there is a genuine issue of material fact regarding whether Blue Chip breached its duty of care, we find that the trial court’s award of summary judgment was inappropriate.

Richard Hermida v. Cynthia Hermida (mem. dec.)

Luis Rivera v. American Fibertech (mem. dec.)

NFP criminal decisions today (1):

Thomas Dullen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 12, 2016 01:21 PM
Posted to Ind. App.Ct. Decisions