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Friday, January 23, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

David R. Gaskell v. Jane M. Gaskell is an 18-page, 2-1 opinion authored by Judge Crone, affirming the trial court. The issues:

David R. Gaskell (“Husband”) appeals the trial court‟s division of property upon the dissolution of his marriage to Jane M. Gaskell (“Wife”). Wife cross-appeals. We affirm.

Husband raises five issues, which we consolidate and restate as follows: I. Did the trial court err by enforcing the terms of a post-nuptial document signed by Husband? II. Did the trial court err by awarding the LaGrange Street property to Wife? III. Did the trial court err by failing to include in the marital estate the sum of $85,000 retained by Wife from the sale proceeds of Husband and Wife‟s prior residence? IV. Did the trial court err by ordering an unequal division of the marital estate?

In her cross-appeal, Wife raises one issue, which we restate as whether the trial court erred by including social security payments received by Wife as an offset against Husband‟s delinquent maintenance obligation. * * *

[Judge Brown's dissent begins on p. 14.]

In Otho L. Lafayette v. State of Indiana , a 23-page decision with 3 separate opinions, Judge Crone writes:
Otho L. Lafayette appeals his convictions for class A felony rape, class B felony criminal confinement, and class C felony intimidation, as well as his repeat sexual offender status. Lafayette contends that the trial court committed reversible error in admitting the testimony of a woman he attempted to rape in 1997. We agree and therefore reverse Lafayette‟s convictions and remand for a new trial. * * *

KIRSCH, J., concurs in result with separate opinion. [which reads] I concur in the decision to reverse Lafayette‟s convictions, but I reach that conclusion by a different route than that set forth in Judge Crone‟s lead opinion. I disagree with the conclusion that a criminal defendant does not put his intent at issue by asserting that an alleged rape victim consented to the sexual intercourse, but I do not believe that Lafayette made any such assertion at trial and, accordingly, did not put his intent in issue. In challenging the credibility of the prosecuting witness on her claim that the sexual intercourse was forced, Lafayette made no affirmative claim that the sexual intercourse was consensual. Had he done so, I believe it would have opened the door to the challenged testimony of the prior bad acts.

VAIDIK, J., dissents with separate opinion. [which begins, on p. 16] I respectfully dissent. First, I disagree with the lead and concurring in result opinions because I believe that the trial court correctly concluded that Otho Lafayette put his intent at issue during trial. Second, I believe that the evidence of Lafayette‟s previous attempted rape was relevant. Therefore, I would hold that the trial court properly admitted testimony regarding Lafayette‟s prior bad act, address Lafayette‟s remaining claim of error, and affirm Lafayette‟s convictions.

In Robert Buchanan v. State of Indiana , a 19-page, 2-1 opinion, Judge Crone writes:
Following a bench trial, Robert Buchanan appeals his convictions for class B felony robbery, three counts of class B felony criminal confinement, three counts of class C felony intimidation, two counts of class D felony false reporting, and class D felony theft. Buchanan also challenges the appropriateness of his twenty-year sentence. We affirm his robbery conviction and sentence and vacate the remaining convictions on double jeopardy grounds. * * *

Next, Buchanan claims that his numerous convictions violate double jeopardy principles. He first contends, and the State properly concedes in its appellee‟s brief, that his theft conviction must be vacated because theft is a lesser included offense of robbery. * * * Buchanan also contends, and the State conceded at the sentencing hearing, that his false reporting and intimidation convictions must be vacated. * * * Finally, Buchanan contends that his criminal confinement convictions must be vacated on double jeopardy grounds. * * * [W]e vacate Buchanan‟s criminal confinement convictions. Consequently, only Buchanan‟s robbery conviction remains. * * *

Affirmed in part and vacated in part.

ROBB, J., concurred.
BROWN, J., concurred in part, dissented in part with opinion. [which begins] I concur with most of the majority's analysis but respectfully dissent as to the majority‟s conclusions that Buchanan was not in custody prior to his confession to the robbery during the second interview with the police, and that Buchanan‟s false reporting convictions should be vacated.

NFP civil opinions today (2):

Dueco, Inc. v. Terex-Telelect, Inc. (NFP) - "As a matter of Wisconsin law, the Agreement did not provide Dueco with indemnity for its own negligence. The trial court’s grant of summary judgment in favor of Terex on the issue is correct. We affirm. "

Cheri Okuly v. Michael Abbott (NFP) - "Michael’s past overtime would not accurately reflect his future overtime earnings. The trial court did not err by not including Michael’s overtime in the calculation of the child support obligation. "

NFP criminal opinions today (7):

Warren Parks v. State of Indiana (NFP)

Gary Becker v. State of Indiana (NFP)

Neil McAdams v. State of Indiana (NFP)

Elijah Henry Armes, II v. State of Indiana (NFP)

Keith W. Winchester v. State of Indiana (NFP)

John Patrick v. State of Indiana (NFP)

Adham A. El-Khatib v. State of Indiana (NFP)

Posted by Marcia Oddi on January 23, 2009 12:11 PM
Posted to Ind. App.Ct. Decisions