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Thursday, January 03, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP) [Updated Again]

Note: All five of these documents currently are corrupted and cannot be read. The ILB has informed the Clerk's office.

[Update: The Clerk's office was contacted at 1:02 pm. It is now 3:05 pm and no response has been received. The opinions remain inaccessible. If you can help, please contact the ILB.]

[Updated 1/4/08: Apparently all PDF viewers will not open the 5 new postings by the Clerk yesterday, even though they readily open all earlier cases posted by the Clerk.]

For publication opinions today (1):

In Donyea Fowler v. State of Indiana, a 13-page opinion, Judge Darden writes:

Donyea Fowler appeals his convictions, after a jury trial, of auto theft and battery, both as class D felonies. The State cross-appeals the trial court’s judgment on the evidence for the charge of resisting law enforcement, as a class D felony. We reverse and remand.

Issues: 1. Whether the trial court erred when it allowed the State to amend the charging information. 2. Whether the trial court erred in granting Fowler’s motion for judgment on the evidence. * * *

In this case, at the initial hearing on the resisting law enforcement charge, the judicial officer at the hearing should have set an omnibus date that would have occurred between 45 and 75 days thereof, i.e., between early July and mid-August of 2005. The State would have been allowed to add the auto theft and battery charges 30 days prior to the omnibus date. However, it was not until May 13, 2006, that the State sought to amend the original charging information by amendments that were matters of substance. The law barred such an untimely amendment. See I.C. § 35-34-1-5 (previous to amendment by Pub. L. 178-2007 § 1). Accordingly, we conclude that the trial court erred in permitting the amendments, and find that Fowler’s convictions for class D felony auto theft and battery, must be reversed. * * *

Given the evidence, we find that the trial court improperly found that insufficient evidence existed to convict Fowler of resisting law enforcement. In so doing, the trial court improperly imposed itself as the “thirteenth juror.” See Goodrich, Jr., 498 N.E.2d at 996. There was not a total absence of evidence on the issue of Fowler being ordered to stop; nor is the evidence susceptible only to an inference in favor of Fowler. Id. at 996- 97 . Therefore, the trial court erred in granting Fowler’s motion for judgment on the evidence.

We hereby reverse Fowler’s convictions for auto theft and battery, as class D felonies. We reinstate the jury’s verdict of conviction for the class D felony of resisting law enforcement.

NFP civil opinions today (2):

David Boilek v. Olin Barham and Indiana Insurance (NFP) - "Following a jury trial, Appellant-Plaintiff David Boilek appeals the jury’s verdict denying his claim of damages against Appellees-Defendants Olin Barham and Indiana Insurance Company for personal injuries arising out of a car accident. Upon appeal, Boilek claims the trial court erred in instructing the jury regarding his duty to mitigate. Concluding that Boilek has waived his claim of error, we affirm."

In the Matter of the Paternity of B.L.A.S.; Jerry L. Brodie v. Alicia Shotts (NFP) - "Jerry L. Brodie (“Father”) appeals the trial court’s order that denied his emergency petition to modify custody of his son, B.L.A.B. (“B.”). We affirm. "

NFP criminal opinions today (2):

Timothy L. Johnson v. State of Indiana (NFP)

Scott E. Stidham v. State of Indiana (NFP)

Posted by Marcia Oddi on January 3, 2008 12:53 PM
Posted to Ind. App.Ct. Decisions