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Tuesday, January 17, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (3):

In In Re: the Grandparent Visitation of G.S., J.S. v. M.S. , a 6-page opinion, Judge Baker writes:

J.S. (Mother) appeals the portion of the trial court’s order mandating that G.S. (Child) be permitted to have contact with other paternal relatives when participating in grandparent visitation with M.S. (Grandmother). Mother argues that there is no statutory authority for a trial court to order a child to have visitation with anyone other than a grandparent in the face of a parent’s objections. We agree, and reverse in part. * * *

In reaching this result, we intend to express no opinion about the character of Child’s paternal relatives, or even whether being permitted to maintain contact with them would be in her best interests. Indeed, we encourage Mother to reconsider her position; considering all that Child has lost in her short life, it seems wise to permit her to maintain contact with anyone and everyone who loves and supports her. But while we encourage her to do so, we—and the trial court—are without authority to order her to do so. As such, we reverse the portions of the trial court’s order relating to all individuals other than Grandmother.

In Edward Taylor v. State of Indiana, a 9-page opinion, Judge Robb writes:
Police encountered Edward Taylor passed out behind the wheel of his running car. Suspecting he was intoxicated, they sought a search warrant for a blood draw. Because of statutory time constraints on conducting a chemical test, a photograph of the signed search warrant was sent by email to an officer’s cell phone. Taylor objected to the blood draw because the officer was unable to show him a physical copy of the search warrant and struggled with the officer before finally complying. After Taylor was charged with battery, resisting law enforcement, driving while suspended, and operating a vehicle while intoxicated, he filed a motion to suppress the blood draw evidence. The trial court denied the motion but certified its order for this interlocutory appeal in which Taylor raises the sole issue of whether the trial court erred in denying his motion to suppress. Concluding the trial court did not err in denying the motion to suppress because the blood draw was conducted pursuant to a valid search warrant, we affirm. * * *

Taylor’s only objection is that Sergeant Brahaum did not have a physical piece of paper to show him when he asked to see it; he does not claim that the affidavit and search warrant were not properly retained. A photograph or PDF of a search warrant transmitted via email is as valid and effective as a paper copy. See Smith v. State, 311 P.3d 132, 140 (Wyo. 2013) (noting that while state constitutional requirements for a written affidavit showing probable cause for issuance of a warrant remain the same, “[w]hat has changed over time, because of technological advances, is the meaning of the word ‘written.’ Recorded sworn testimony, which if preserved, and from which a transcript may be produced, is as much a ‘writing’ in today’s world as was a quill-penned line on a piece of parchment two centuries ago. To conclude otherwise would ignore today’s technological realities, and would place form over substance.”). That Sergeant Brahaum had only an electronic copy of the search warrant at the time of the blood draw did not violate Taylor’s rights because the search warrant was otherwise valid.

The trial court did not err in denying Taylor’s motion to suppress evidence because the evidence was obtained via a valid search warrant despite the fact the officer had in hand only an electronic copy at the time of the search. The trial court’s order is therefore affirmed.

In S.S. v. State of Indiana , a 6-page opinion, Judge May writes:
S.S. appeals the trial court’s order requiring him to pay restitution. S.S. presents two issues for our review, one of which we find dispositive - whether the juvenile court abused its discretion when it ordered him to pay restitution after it determined he did not have the ability to pay restitution. We reverse. * * *

Here, S.S. made a record regarding his ability to pay wherein he testified he was fifteen years old, did not have a job, did not have a bank account or savings, and lived with his mother. The juvenile court stated in its dispositional order, “[S.S.’s counsel] requests that the youth be found indigent as he does not have [t]he ability to pay restitution. Court notes same. Court authorizes the release of youth’s documents to the victim for civil litigation.” (App. at 15.) As the juvenile court noted S.S. was not able to pay restitution, and S.S. presented evidence of his indigency, the juvenile court abused its discretion in ordering him to pay restitution. See Bell v. State, 59 N.E.3d 959, 966 (Ind. 2016) (vacating trial court’s restitution order because Bell presented “sufficient and unrebutted testimony” of her inability to pay).[3] * * *
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[3]As an aside, we note the juvenile court’s comment during the dispositional hearing regarding mother’s responsibility for the payment of S.S.’s restitution. * * * (parents are not liable for payment of child’s restitution obligation).

NFP civil decisions today (3):

Beverly Twilley v. Pangea Real Estate, PP Indy 6, LLC and All Unknown Persons (mem. dec.)

In the Termination of the Parent-Child Relationship of: E.L., S.L., L.L., & I.L., (Minor Children) and J.K. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Wyckford SK Realty, LLC v. JPMCC 2006-CIBC14-7777 Wyckford Ct LLC (mem. dec.)

NFP criminal decisions today (3):

Fabian Roman Rubio v. State of Indiana (mem. dec.)

George King v. State of Indiana (mem. dec.)

Kenyatta Robinson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 17, 2017 01:05 PM
Posted to Ind. App.Ct. Decisions