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Wednesday, September 06, 2006

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Timothy A. Jacks v. State of Indiana, a 5-page opinion, Judge Mathias writes:

Timothy Jacks (“Jacks”) was convicted in Wayne Superior Court of Class A misdemeanor operating a motor vehicle while intoxicated and sentenced to serve ninety days with eighty-six days suspended. Jacks appeals, raising the issue of whether his refusal to submit to a chemical test was improperly admitted into evidence at trial as the officer had not informed him that such a refusal could be used against him in a criminal prosecution. We affirm. * * *

The plain and unequivocal language of [IC] 9-30-6-7 (2004) states that a person only need be advised that refusing to submit to a chemical test will result in suspension of his or her driving privileges. Furthermore, the text of Indiana Code section 9-30-6-3(b) does not provide any requirement that a suspected driver be advised that his refusal can be admitted into evidence in a criminal prosecution. Suspects have no constitutional right to refuse a test designed to produce physical evidence in the form of a breath sample, as we noted in Davis v. State, 174 Ind. App. 433, 438, 367 N.E.2d 1163, 1167 (Ind. Ct. App. 1977) (citing People v. Sudduth, 421 P.2d 401, 439 (Cal. 1966)). For this reason, the content of statutory advisements regarding the consequences of such a refusal will not, in most instances, be dispositive or of constitutional magnitude.

Under these facts and circumstances, we conclude that Jacks was not entitled to receive an advisement warning him that evidence of his refusal could be admitted in a criminal prosecution against him.Therefore, the evidence of his refusal was properly admitted at trial.

NFP civil opinions today (2):

In Commercial Services of Perry, Inc. v. Estate of Ceasario Bonilla (NFP), an 11-page opinion (with a dissent beginning on p. 7), Judge Mathias writes:

Appellant Commercial Services of Perry, Inc. (“Perry”) appeals the Superior Court of Lake County’s order granting Alicia Bonilla’s (“Bonilla”) motion for judgment on the evidence as it relates to a foreclosure action against her and her deceased husband Ceasario Bonilla (“Ceasario”). We are presented with the following dispositive issue, which we restate as: whether the trial court committed reversible error by granting Bonilla’s motion for judgment on the evidence.

Concluding that the trial court committed reversible error when it granted Bonilla’s motion for judgment on the evidence, we reverse and remand for proceedings consistent with this opinion. * * *

Here, the trial court’s order granting Bonilla’s motion for judgment on the evidence included, in pertinent part: “The Court feels Plaintiff failed to meet its burden of proof at trial because Plaintiff failed to introduce the promissory notes, upon which its claim is based.” This was an error of law. Pursuant to [IC] 26-1-3.1-309 and our supreme court’s holding in Yanoff, Perry is not required to present the promissory notes underlying the debts in question in order to proceed with its case. Reversed and remanded for a new trial.

FRIEDLANDER, J., concurs.
BARNES, J., dissents with separate opinion. [which begins]

I respectfully dissent. The majority concludes the trial court erred in ruling that Perry was required to introduce the promissory notes underlying the mortgages in order to prove its case. Regardless of whether the majority is correct on that point, however, the trial court expressly stated that it was ruling in favor of Bonilla for two other, independent reasons. Those reasons, in my view, are sufficient to support the trial court’s judgment in Bonilla’s favor.

In Ugur Camli v. Progressive Medical Imaging, et al. (NFP), a 7-page opinion, Judge Mathias concludes:
The evidence supports the trial court’s conclusion that Camli pursued a frivolous claim, and we cannot conclude that the trial court abused its discretion when it awarded attorney’s fees to Defendants.

Conclusion. The trial court properly granted summary judgment and attorney’s fees in favor of Defendants. Affirmed.

NFP criminal opinions today (5) (link to cases):

Joseph Rushing v. State of Indiana (NFP)

Stephen B. Reeves v. State of Indiana (NFP) - "Photographic evidence that was used at an Elkhart man's murder trial was properly admitted and was not unfairly prejudicial, the Indiana Court of Appeals has ruled. ... Reeves' lawyers argued on appeal that the photographs themselves were proof of nothing and served only to prejudice the jury. But the Appeals Court said all the photographs but one had probative value, meaning they tended to prove some facts of the case." South Bend Tribune 9/8/06

John Bochner v. State of Indiana (NFP)

Tracy Lee Simmons v. State of Indiana (NFP)

Charles M. Cormack v. State of Indiana (NFP)

Posted by Marcia Oddi on September 6, 2006 12:16 PM
Posted to Ind. App.Ct. Decisions