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Tuesday, January 25, 2005

Ind. Decisions - Court of Appeals posts four today

Argy Charnas, et al. v. The Estate of Georgia Loizos, et al. (1/25/05 IndCtApp) [Civil Procedure; Constitutional Law]
Riley, Judge

Appellant-Defendant, Argy Charnas (Charnas), appeals the trial court’s denial to set aside and vacate its Amended Default Order divesting Charnas of her interest in the stock accounts held in joint tenancy with Appellee-Plaintiff, Georgia Loizos, now the Estate of Georgia Loizos (Loizos). We affirm.

ISSUES. Charnas raises two issues on appeal, which we restate as follows:
Whether Charnas’ procedural due process rights under the Fourteenth Amendment are violated by the trial court’s denial to set aside and vacate its Amended Default Order divesting Charnas of her interest in the joint tenancy stock accounts when she was not notified of or granted an opportunity to join in the lawsuit instituted by Loizos against Equiserve Limited Partnership (Equiserve) and Melon Investor Services (Melon); and Whether the trial court’s Amended Default Order is void pursuant to Ind. Trial Rule 60(B)(6) because the trial court failed to establish personal jurisdiction over Charnas. * * *

CONCLUSION. Based on the foregoing, we find that the trial court did not violate Charnas’ due process rights under the Fourteenth Amendment. Furthermore, we hold that Charnas was not an indispensable party under T.R. 19. Affirmed.
CRONE, J., and VAIDIK, J., concur.

Lisa Harwell v. State of Indiana (10/7/04 IndCtApp) [Criminal Law & Procedure]
[Originally issued as NFP]
Riley, Judge
* * * Harwell raises one issue on appeal, which we restate as follows: whether the State presented sufficient evidence to sustain her conviction for prostitution. * * *

Based on the evidence before us, we conclude that the agreement was implicit in the parties’ words and actions when considered in the context in which they occurred. By indicating that the sexual service would not be more expensive than $20.00, Harwell emitted an inference that there was a cost involved and that she would accept money.

Moreover, Harwell’s argument that a specific price has to be determined between the parties prior to there being a meeting of the minds is not supported by the statutory language of I.C. § 35-45-4-2. Indiana Code section 35-45-4-2 only requires evidence of a performance, offer, or agreement to commit sexual services in exchange for money. The statute is silent as to the requirement of a pre-set price. Surely, it cannot be said that to constitute a violation of the statute, the agreement must be expressed and in precise statutory language. See Williams, 256 N.E.2d at 914. Therefore, we agree with the trial court that a meeting of the minds existed between Officer Miller and Harwell that she would perform fellatio for money, with a more specific price to be determined somewhere between 1 penny and $20.00, but definitely not more than $20.00. See Bain, 550 N.E.2d at 110. Accordingly, we find that there is substantial evidence of probative value to support the judgment of the trial court. See Williams, 714 N.E.2d at 672. Consequently, we hold that the State presented sufficient evidence to support Harwell’s conviction for prostitution.

CONCLUSION. Based on the foregoing, we find that the State presented sufficient evidence to sustain Harwell’s conviction for prostitution. Affirmed.
CRONE, J., and VAIDIK, J., concur.

Commitment of B.S. (10/20/04 IndCtApp) [Involuntary Commitment]
[Originally issued as NFP]
Baker, Judge
Appellant-respondent Benjamin Steinberg appeals his involuntary commitment to a mental health facility. Specifically, he contends that the evidence was insufficient to support the trial court’s findings that he was mentally ill, dangerous, or gravely disabled. Finding that the State did not carry its burden of proof with respect to the elements of dangerousness and grave disability, we reverse and remand with instructions to vacate the order of involuntary commitment.

While the evidence was sufficient to support the finding that Steinberg suffered from a mental illness, the probate court erred in finding that Steinberg was dangerous or gravely disabled. Inasmuch as the statute requires the respondent to be either dangerous or gravely disabled, the involuntary commitment order cannot stand. The judgment of the probate court is reversed and remanded with instructions to vacate the order of involuntary commitment.
ROBB, J., concurs.
KIRSCH, C.J., dissents. [without opinion]

[More] Kemplog has more in-depth coverage of this decision, here.


Larry Mitchell v. State of Indiana (10/22/04 IndCtApp) [Criminal Law & Procedure]
[Originally issued as NFP]
Baker, Judge

Appellant-defendant Larry D. Mitchell appeals his convictions for three counts of Murder, a felony, one count of Attempted Murder, a class A felony, one count of Robbery, a class B felony, and one count of carrying a Handgun Without a License, a class C felony. Specifically, Mitchell claims that the trial court committed fundamental error in instructing the jury that it could convict him as an accessory to attempted murder by finding that he knowingly aided, induced or caused another person to shoot Ashmore, one of the victims, as attempted murder requires specific intent to kill. Mitchell also claims that erroneous identification evidence offered by a victim was admitted at trial, and that the evidence was insufficient to support the convictions. Finally, Mitchell contends that the ninety-three-year enhanced sentence violated his Sixth Amendment right to a jury trial under the United States Constitution because the aggravating circumstances used to support the sentence were neither admitted by him nor found by a jury, thus contravening the rule announced in Blakely v. Washington, 124 S.Ct. 2531 (2004). Concluding that no reversible error occurred, we affirm the trial court’s judgment. * * *

In light of the above, Mitchell contends that his sentence must be set aside because the factual determinations that were deemed aggravating factors by the trial court, includig: (1) his juvenile history; (2) the heinousness of the offense; (3) the observation that Mitchell was a major participant in the crimes; and (4) the fact that Mitchell and his codefendants had planned to commit the robbery were never specifically submitted to a jury.

In addressing Mitchell’s claims, we note that at no time before the trial court did Mitchell raise any objection—either specifically under Apprendi or generally under the Sixth Amendment right to trial by jury—to the court’s finding of aggravating circumstances or imposition of an enhanced sentence. Thus, his contention is waived. See Carson, 813 N.E.2d at 1189; see also Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000) (holding that when a defendant does not properly bring an objection to the trial court’s attention so that the trial court may rule upon it at the appropriate time, he is deemed to have waived that possible error). The United States Supreme Court issued its opinion in Apprendi, upon which the defendant in Blakely objected to his “exceptional” sentence, well before Mitchell’s sentencing hearing in 2004. That the Apprendi rule was extended in Blakely is of no moment, inasmuch as Mitchell should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did. As a result, we decline to disturb Mitchell’s sentence. The judgment of the trial court is affirmed.
KIRSCH, C.J., and ROBB, J., concur.

Posted by Marcia Oddi on January 25, 2005 02:10 PM
Posted to Ind. App.Ct. Decisions