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Monday, August 22, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (3):

In David Heber v. Indianapolis Metropolitan Police Department, and City of Indianapolis Office of Corporation Counsel, a 6-page opinion, Judge Barnes writes:

David Heber appeals the trial court’s dismissal of his complaint against the Indianapolis Metropolitan Police Department (“IMPD”) and the Office of Corporation Counsel of the City of Indianapolis (“OCC”) (collectively “the Appellees”). We reverse and remand

The sole restated issue is whether the trial court properly concluded that the Appellees could not be sued under the Indiana Access to Public Records Act (“APRA”). * * *

On June 26, 2015, Heber filed a request with IMPD and the OCC for records related to the robbery aside from the initial Incident Report, pursuant to the APRA. The OCC’s public access counselor, Samantha DeWester, denied this request, stating that Heber had failed to specify which records he was seeking with reasonable particularity. On July 15, 2015, Heber filed a second, more detailed request for records related to the robbery. DeWester denied this second request, again on the basis that it lacked reasonable particularity.

On August 2, 2015, Heber filed a complaint with the Indiana Public Access Counselor, Luke Britt, with respect to the Appellees’ failure to provide him with the requested records. On September 15, 2015, Britt filed an advisory opinion stating his belief that the Appellees violated the APRA by not timely responding to the June 26, 2015 records request and that they were not justified in denying either request on the basis of an alleged lack of reasonable particularity. After issuance of this advisory opinion, the Appellees did not provide the requested records to Heber.

On December 26, 2015, Heber filed a complaint in the trial court against the Appellees, seeking release of the requested records, along with an award of reasonable costs, attorney fees, and civil penalties. On January 19, 2016, the Appellees filed a motion to dismiss Heber’s complaint. The motion alleged solely that the Appellees were not entities that could be sued under the APRA. The trial court granted the motion to dismiss. Heber now appeals. * * *

Whether Heber ultimately will be successful in proving the Appellees violated the APRA remains to be seen. However, the Appellees’ motion to dismiss, which failed to cite controlling contrary authority, and the erroneous granting of that motion have necessitated expense and significant delay in resolution of the case. Under Indiana Appellate Rule 67, this court may sua sponte award appellate attorney fees to a prevailing party if an appeal “is ‘permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.’” In re Walter Penner Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014) (quoting GEICO v. Rowell, 705 N.E.2d 476, 483 n.12 (Ind. Ct. App. 1999)), trans. denied. Although we commend the Appellees for now conceding that the motion to dismiss must be reversed, the fact remains that the motion was granted and Heber had to pursue this appeal because of a wholly meritless and possibly frivolous argument by the Appellees. As such, we conclude that an award of appellate attorney fees to Heber is appropriate. We remand for the trial court to calculate an appropriate amount for such an award.

In Douglas M. Curtis v. State of Indiana , a 7-page opinion, Judge Barnes writes:
Douglas Curtis appeals his conviction for Class A misdemeanor criminal trespass. We reverse. * * *

We conclude that a person in Curtis’s position, being told he or she had forty-eight hours to somehow remove his personal property from the premises, would reasonably believe he or she had permission to remain on or re-enter the premises at any time during the next forty-eight hours. Indeed, Curtis testified that when police arrived, he was in the process of loading his car with his personal property; there is no evidence to contradict this testimony. Furthermore, Neff did not tell Curtis that he had to immediately leave and/or that he had to arrange through his father to get his personal property, rather than removing the property himself. There also is no evidence that Curtis attempted to dispute Neff’s no trespass order or indicated that he would refuse to leave. In sum, there is insufficient evidence Curtis had the necessary mens rea to have committed criminal trespass.

In Larry R. Beedy, Jr. v. State of Indiana, a 12-page, 2-1 opinion, Judge Altice writes:
Following a jury trial, Larry R. Beedy, Jr. was convicted of sexual misconduct with a minor, a Level 5 felony, and subsequently sentenced to six years, with three years executed in the Department of Correction, one year in community corrections, and two years suspended to probation. Beedy presents two issues for our review, one of which we find dispositive: Was Beedy erroneously precluded from asserting the affirmative defense set forth in Ind. Code § 35-42- 4-9(e)? We reverse. * * *

Our reading of the statute leads us to conclude that the language “any other person” is unambiguous.9 We, however, do not interpret this language as the trial court did or as the State urges. The trial court’s interpretation that “any other person” means any person other than the defendant renders the phrase “any other person” absolutely meaningless. Indeed, it is illogical to interpret the language in that manner because the defendant cannot commit a sex crime against himself, thus there is no need for the additional language. To us, it is clear that when read in context, the plain language of I.C. § 35-42-4-9(e)(4) means that a prior sex offense against the same victim does not render the defense inapplicable. Through the language employed, the legislature has provided a defense for an individual who is in a dating or ongoing personal relationship with the victim, who is not more than four years older than the victim, who engages in consensual sexual conduct with the victim, and who does not have prior convictions/adjudications against a victim other than the victim in the instant case.

Having determined that the statutory language is unambiguous, we need not address the State’s various arguments construing the statute contrary to its plain meaning. Further, to the extent the State’s arguments are based on policy considerations, this is not the proper forum. We therefore conclude that Beedy established his entitlement to the defense found in I.C. § 35-42-4-9(e), and consequently, his conviction cannot stand. We reverse and remand this cause with instructions to vacate Beedy’s sexual misconduct with a minor conviction.

Judgment reversed and remanded with instructions.

Bailey, J., concurs.

Bradford, J., dissents with opinion. [which begins, at p. 10] I respectfully disagree with the majority’s conclusion that Beedy is entitled to raise a “Romeo and Juliet” defense in this case because the victim in his previous adjudications for child molesting and child exploitation happens to be the same child he was charged with victimizing in this case. Consequently, I respectfully dissent.

NFP civil decisions today (1):

In re the Marriage of: Jennifer Bell v. John K. Bell (mem. dec.)

NFP criminal decisions today (2):

Keith Jenkins v. State of Indiana (mem. dec.)

Marshawn Malik Weems v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 22, 2016 11:05 AM
Posted to Ind. App.Ct. Decisions