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Tuesday, April 15, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

Margarita Overholtzer v. Mark S. Overholtzer - "Margarita raises one issue on appeal, which we restate as: Whether the trial court properly decided that Margarita is not entitled to her share of the cost of living increases on Mark’s retirement benefits from the date the trial court granted the dissolution of marriage to the date of Mark’s actual retirement. Affirmed."

In State of Indiana v. Paula J. Fettig, a 13-page, 2-1 opinion, Judge Riley writes:

The State argues that the trial court abused its discretion when it granted Fettig’s motion to dismiss. Specifically, the State argues that although teachers are permitted to use reasonable corporal punishment when disciplining children, whether Fettig’s actions were a form of reasonable corporal punishment is a question of fact that must be determined by a trier of fact. * * *

The State argues that since the justification for teachers to corporally punish is limited by notions of reasonableness, the issue must be presented to a jury. However this is the very issue which our appellate courts have removed from the discretion of the jury by reversing verdicts finding battery by teachers who have hit students to inflict punishment. * * *

Having reviewed the longstanding precedents of Vanvactor, Danenhoffer, and Marlsbary, we note that they demonstrate the ability of the judiciary to determine whether a teacher has acted within the bounds of her authority to discipline when striking a student. Considering the facts here—no weapons, no closed fist, no repeated blows, no verbal abuse, and the only alleged injury being a stinging sensation—in context with the right of teachers to be free from criminal prosecution for physical punishment that is neither cruel nor excessive, we conclude that the trial court did not abuse its discretion by dismissing the information charging Fettig with battery.

CONCLUSION. Based on the foregoing, we conclude that the trial court did not abuse its discretion when it dismissed the Information charging Fettig with battery. Affirmed.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] We do not know whether Ms. Fettig’s slapping of one of the students under her care was an appropriate exercise of discipline or a battery punishable under our criminal laws. It could have been either. That’s why we have trials.

We do not know whether the Beech Grove school system has a policy regarding corporal punishment, and we do not know whether Ms. Fettig followed it. That’s why we have trials.

We do not know whether Ms. Fettig was lashing out in anger when she struck the student or whether she was exercising the restraint we should expect from those to whom we entrust our children. That’s why we have trials.

My colleagues cite three cases as authority for upholding the trial court’s action. All three date from the 19th century. The world has changed greatly since that time, and standards of student discipline have also changed greatly.

Ronald Glenn v.State of Indiana - "Based on the foregoing, we conclude that the trial court did not err in refusing to dismiss the prosecution against Glenn based on the delay in bringing charges, the evidence is sufficient to support Glenn’s conviction for felony murder, and the trial court did not commit fundamental error in instructing the jury. However, we find that Glenn’s convictions and sentences for both felony murder and robbery resulting in bodily injury violate the prohibition against double jeopardy. We therefore remand this cause to the trial court with instructions to vacate Glenn’s conviction and sentence for robbery resulting in bodily injury. Affirmed in part and remanded in part with instructions."

Demario L. Banks v. State of Indiana - "[W]e conclude that the post-conviction court did not err when it found that Banks had not received ineffective assistance of trial or appellate counsel, and denied Banks’ Petition for Post-Conviction Relief."

In Brian Mehring v. State of Indiana , a 21-page, 2-1 opinion on an interlocutory appeal, Judge Friedlander writes:

Mehring contends that the ten-month, nineteen-day delay between when the FBI agent downloaded the child pornography images from Mehring’s IP address (May 4, 2005) to when IPD Detective Spivey applied for the search warrant (March 23, 2006) rendered the information stale for the search warrant. * * *

With this caselaw to guide us, we conclude the information in this case was not stale. While a ten-month lapse between the initial discovery of child pornography on Mehring’s IP address and the application for the search warrant is, on its face, cause for concern, this is just one factor in our determination of staleness. Considering the nature of the crime (possession of child pornography, which is a crime commonly committed in secret and the evidence of which is likely to be kept in a safe and private place like a home) and the nature and type of evidence sought (digital or computer images saved to a computer hard drive or to other types of digital media that can be shared yet still retained), in conjunction with the information provided by Detective Spivey—based on his training and experience as a vice detective—regarding the retention habits of people having child pornography, we agree with the trial court that the ten-month time period did not render the information stale. * * *

Ruling affirmed.
ROBB, J., concurs.
MATHIAS, J., dissents with separate opinion. [which begins] I am very sensitive to the tragedy of child pornography, but eleven months is a very long time, especially when one of the most important criteria for the issuance of a search warrant is the accuracy of the facts alleged. Such accuracy usually has an inverse relationship to the age of the facts alleged. This is precisely why stale information cannot and should not support the finding of probable cause. Instead, such stale information gives rise only to a mere suspicion, “especially when the items to be obtained in the search are easily concealed and moved.” Id. It is hard to imagine something that can be more easily concealed, moved, or even destroyed than a digital image. Indeed, such images are a mouse-click away from being moved or deleted. If deleted with today’s computer utility software, such files may well not be recoverable, even with the best forensic software and techniques.

I would also note that in the Indiana cases cited by the majority, the staleness of the information did not even approach eleven months.

NFP civil opinions today (1):

Versto, Inc. d/b/a/ BVD Trucking v. James Smith (NFP) - "Versto, Inc., d/b/a BVD Trucking (“BVD”), appeals the decision of the Indiana Worker’s Compensation Board (“the Board”)1 finding that James Smith is permanently and totally disabled and awarding him worker’s compensation benefits. We affirm."

NFP criminal opinions today (7):

John Wayne Miller v. State of Indiana (NFP)

Alaska Reeves v. State of Indiana (NFP)

Robert W. Anderson v. State of Indiana (NFP)

John Willis Williams, III v. State of Indiana (NFP)

Jessica Iles v. State of Indiana (NFP)

Lawrence H. Lein, III v. State of Indiana (NFP)

Starla Holder v. State of Indiana (NFP)

Posted by Marcia Oddi on April 15, 2008 12:32 PM
Posted to Ind. App.Ct. Decisions