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Monday, August 06, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Ricky Scott v. State of Indiana, a 10-page opinion, Judge Robb writes:

Following a bench trial, Ricky Scott appeals his conviction of theft, a Class D felony. Scott raises the sole issue of whether sufficient evidence supports his conviction. Concluding that sufficient evidence exists, we affirm. * * *

It is well-established that “the uncorroborated testimony of one witness may be sufficient by itself to sustain a conviction on appeal.” Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999). We recognize that Stewart’s testimony was equivocal, as she stated that she was only about eighty percent sure that Scott was the man whom she saw. * * *

This evidence does not overwhelm us, and clearly no single fact by itself could constitute sufficient evidence. However, we recognize that “[t]he trial judge heard all of the evidence and observed the witnesses [and] was more able than we are to determine their credibility and determine the probative value of all the evidence before him.” Jordan, 432 N.E.2d at 12. We cannot reverse the trial court unless we conclude that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Drane, 867 N.E.2d at 146 (emphasis in original). Based on the current state of the law relating to eye-witness testimony8 and our standard of review involving challenges to the sufficiency of the evidence, we cannot say that no reasonable fact-finder could have found beyond a reasonable doubt that Scott committed this crime.

In Edward Kessel & Margaret Kessel v. State Automobile Mutual Insurance Company , an 11-page opinion, Judge Barnes writes:
The Kessels argue that the trial court improperly granted summary judgment in favor of State Auto based on the business exclusion of the homeowner’s policy because the policy is ambiguous. * * *

State Auto responds that summary judgment was proper because, by leasing the barn to Lapham for $1500.00 per month and allowing her to operate the stables from there, the Kessels were engaged in business conduct, and that the dog bite occurred in connection with that business. We agree with State Auto. The contract is not ambiguous because it is not susceptible to more than one reasonable interpretation. * * *

The insurance contract is unambiguous. Because Howell’s injuries occurred in connection with the business conducted from an insured location, State Auto is not required to defend and indemnify the Kessels under the terms of the policy.

NFP civil opinions today (2):

Jack DeMoss v. Patricia Quintana (NFP) - "DeMoss has not established that the trial court improperly issued a civil order for protection. We affirm."

In Robert P. Spruitt, et al. v. Marshall County, Indiana Plan Commission, et al. (NFP) Judge Barnes writes:

We grant the Neighbors’ petition for rehearing; however, we affirm our opinion in all regards. In their petition for rehearing, the Neighbors contend, “the Marshall County Plan Commission is not an ‘agency,’ and the procedural provisions of the AOPA therefore do not apply. This Court erred in applying the procedural requirements of AOPA, in particular, I.C. 4-21.5-5-10, to this case.”

Even if we were to assume that the Neighbors’ argument is correct, any error was invited. See In re Guardianship of Knepper, 856 N.E.2d 150, 156 (Ind. Ct. App. 2006) (“This court has determined that a party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct.”). In their reply brief, the Neighbors asserted, “There is no dispute that this Court should review the issue employing the standards set forth in the Administrative Orders and Procedures Act, specifically Ind. Code 4-21.5-5-14.” Based on this assertion, the Neighbors may not now claim we erred in applying AOPA in our review of their claims.

NFP criminal opinions today (3):

Darrell Taylor v. State of Indiana (NFP)

Alexander Michael Peebles v. State of Indiana (NFP)

Timothy Ray Creech v. State of Indiana (NFP)

Posted by Marcia Oddi on August 6, 2007 11:26 AM
Posted to Ind. App.Ct. Decisions