The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)

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Thursday, October 25, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)

For publication opinions today (2):

Michael Loos v. State of Indiana - "Loos appears to assert that the trial court’s omission of the word “aggravating” in its sentencing statement is an abuse of discretion. We disagree. The trial court adequately described the factors that supported the eight-year sentence: Loos’s history of criminal behavior and his violent acts against a pregnant woman. The omission of the word “aggravating” does not make the court’s reasoning any less apparent, and we decline any invitation to require such a “magic word.” Creekmore v. State, 853 N.E.2d 523, 529 (Ind. Ct. App. 2006), trans. denied. The record supports the trial court’s findings, and “[t]he relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Anglemyer, 868 N.E.2d at 491. We therefore affirm."

In Lawrence Golladay v. State of Indiana , an 11-page opinion, Judge Friedlander writes:

Lawrence Golladay appeals his conviction of Home Improvement Fraud,1 a class A misdemeanor. The following restated issue is dispositive of the appeal: Did conviction under I.C. 35-43-6-12(a)(4) violate due process when the defendant was charged under I.C. 35-43-6-12(a)(3)? We reverse.* * *

Golladay challenges the conviction on several bases, two of which warrant reversal. Although we reverse the conviction on due process grounds, we will briefly discuss the other basis for reversal because we find no other cases explaining the elements of Subsection (a)(4), and wish to provide clarification on that subject. In presenting this issue, Golladay frames the question in terms of sufficiency of the evidence. The real issue, however, in view of the trial court’s comments when announcing its decision, concerns the nature of the elements of the offense set out in Subsection (a)(4). * * *

According to the trial court’s interpretation, it is enough that a false promise was made in the contract and the homeowner was induced to sign the contract in part because of that false promise, even if the homeowner knew the promise was false. Golladay contends the homeowner must have been deceived by the false promise. We agree. * * *

Subsections (a)(3) and (a)(4) clearly define similar conduct. Both require the existence of a home improvement contract, and both require some sort of deception on the part of the defendant with respect to that contract. The only difference between the two is that Subsection (a)(4) requires that the defendant use such deception to induce the consumer to enter into the contract. As such, Subsection (a)(4) contains an element that is not contained in Subsection (a)(3). Thus, it is not an inherently included offense of Subsection (a)(3). * * *

Examining this language, it is apparent that the allegations concerning the means used to commit the crime charged (i.e., Subsection (a)(3)) do not include all of the elements of Subsection (a)(4); the element of fraudulent inducement to enter into the contract is missing. An offense is not factually included within the charging instrument if critical elements of the crime convicted are excluded from the charging instrument. Chinda v. State, 754 N.E.2d 981 (Ind. Ct. App. 2001), trans. denied. Thus, Golladay could not be convicted under Subsection (a)(4) because it included an element that was neither a part of Subsection (a)(3) (the crime charged) nor factually included in the charging instrument. * * * Therefore, the conviction under Subsection (a)(4) violated due process and must be reversed. We therefore remand with instructions to enter a judgment of acquittal as to that conviction. Judgment reversed.

NFP civil opinions today (4):

In the Matter of J.V., C.V., D.V. and A.V.; Jose Vega, Sr. and Patty Alonzo v. Allen County Department of Child Services (NFP) - "Sufficient evidence was presented to support the trial court’s determination that the children were CHINS."

Charles Robert Greer v. William R. Fuchs (NFP) - "Based on our review of the record, we cannot say that the trial court abused its discretion in ruling on Greer’s motion for relief from judgment without hearing additional testimony and permitting additional discovery." Affirmed.

Connie (Query) Reed v. Robert Query (NFP) - "In summary, we affirm the trial court’s modification of Father’s obligation to provide for N.Q.’s post-secondary education except to the extent such modification was made retroactive so as to terminate Father’s obligation with respect to such expenses incurred by N.Q. prior to Father’s filing of his petition for modification. We therefore remand with instructions for the trial court to correct the support modification order consistent with this opinion"

Randall Walden v. Val Majors Castrodale (NFP) - "Randall Walden appeals the denial of his “Petition to Rescind All Orders and Rulings” filed in relation to the 1996 dissolution of his marriage to Val Majors Castrodale. We affirm and remand."

NFP criminal opinions today (16):

William Taboada v. State of Indiana (NFP)

James C. Caldwell v. State of Indiana (NFP)

Raymond Freeman v. State of Indiana (NFP)

Joseph Aaron Burnett v. State of Indiana (NFP)

Shawn Alexander v. State of Indiana (NFP)

Eric McGee v. State of Indiana (NFP)

Michael Lewis v. State of Indiana (NFP)

Hugh Allen Hedden v. State of Indiana (NFP)

Diontae Green v. State of Indiana (NFP)

Marlon Bell v. State of Indiana (NFP)

Lonnie Piercefield v. State of Indiana (NFP)