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Friday, March 06, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Bledsoe's, Inc., et al. v. Steuben Lakes Regional Waste District, a 17-page, 2-1 opinion, Judge Riley writes:

Appellants-Defendants, Bledsoe's, Inc. (Bledsoe's) and John Cress d/b/a West Otter Lake Estates (Cress), appeal the trial court's grant of summary judgment to Appellee-Plaintiff, Steuben Lakes Regional Waste District (the District). * * *
Cress raises two issues, the first of which Bledsoe's joins, which we restate as: (1) Whether Ordinance No. 2002-03 is unconstitutionally vague for failing to define the terms “mobile home park” and “trailer park”; and (2) Whether Cress should be required to pay sewage fees for the period prior to which his property was connected to the sewage system.

Based on the foregoing, we conclude that the ordinances are not unconstitutionally vague. Further, we conclude that the trial court erred by granting summary judgment to the District on its claim that it had properly billed Cress prior to his property's connection to the sewage system.

Affirmed in part, reversed in part, and remanded for further proceedings.

DARDEN, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion. [which begins,on p. 15] I concur that Ordinance No. 2002-03 is not unconstitutionally vague for failing to define the terms “mobile home park” and “trailer park.” I also agree that Cress may be assessed his share of the “debt service costs” of building the sewage system despite the fact that he was not connected to it. I respectfully part ways with my colleagues on the lone issue of whether Cress is liable for paying his sewage usage fees during the time he refused to connect to the system. In my view, he is liable for these user fees.

In Artillius Washington v. State of Indiana , a 19-page opinion, Judge Bradford concludes:
In sum, we conclude that the trial court neither abused its discretion nor violated Washington's Sixth Amendment right to the counsel of his choice in denying Washington's request for a continuance on the morning of trial for the purpose of hiring private counsel, that the evidence presented at trial was sufficient to prove Washington's convictions, and that the deputy prosecuting attorney's comments during closing argument did not amount to fundamental error. Additionally, we conclude that Washington's sentence was appropriate and that the trial court neither abused its discretion nor erred in sentencing Washington, except to the extent that the trial court's sentencing statement should be modified to clarify that Washington was convicted of and sentenced for only Class B felony dealing in cocaine.

The judgment of the trial court is affirmed in part and remanded to the trial court with instructions.

In Jamison C. Hudson v. State of Indiana , a 17-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the State presented insufficient evidence to sustain Hudson’s conviction for child molesting as a Class A felony, and we reverse that conviction. However, the charging Information factually included the crime of child molesting as a Class B felony, and the jury necessarily found Hudson guilty of those facts when it returned a verdict of guilty of child molesting as a Class A felony. Therefore, we remand and instruct the trial court to enter a judgment of conviction for child molesting as a Class B felony, and to resentence Hudson accordingly. Additionally, we conclude that the trial court abused its discretion when it admitted evidence of Hudson’s uncharged acts of child molesting; however, the probable impact of this evidence upon the jury, in light of the powerful evidence regarding his acts for which he was charged, was so minor that this error was harmless. Affirmed in part, reversed in part, and remanded with instructions.

VAIDIK, J., concurs.
DARDEN, J., concurs in part and dissents in part with separate opinion. [which begins, on p. 14] I fully concur in the conclusion that the admission of H.K.’s testimony about the "flower stick' game was harmless error. As to the issue on which the majority reverses, I must acknowledge that the State could have easily avoided the situation that confronts this Court by simply inquiring of the defendant’s age during the testimony of several witnesses, including Hudson or his former wife, L.H., who is H.K.’s mother, hereinafter (Mother). Further, I don’t believe that Hudson’s age was a disputed issue of material fact in this case.4 As a result, I must respectfully dissent from the majority’s conclusion that Hudson’s conviction for child molesting as a class A felony must be vacated and judgment of conviction entered as a class B felony, because of the State’s failure to provide conclusive evidence that Hudson was at least twenty-one years of age at the time he committed the charged offense.

Travis Johnson v. State of Indiana - "Travis Johnson appeals his conviction for Carrying a Handgun Without a License, as a Class C felony, following a jury trial. He presents two issues for our review: 1. Whether the Prosecutor committed prosecutorial misconduct when, during trial, she repeatedly referred to Johnson’s post-arrest request for an attorney. 2. Whether Johnson was denied the effective assistance of trial counsel. We affirm."

NFP civil opinions today (2):

Michael Connor, et al v. Carol McDaniel, et al (NFP)

R.C. and C.C. and Madison County Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Sandra Neukam v. State of Indiana (NFP)

Antonio Rose v. State of Indiana (NFP)

Gregory Payne v. State of Indiana (NFP)

Donald Glynn Staker v. State of Indiana (NFP)

Jason Sexton v. State of Indiana (NFP)

Monique Nelson v. State of Indiana (NFP)

Posted by Marcia Oddi on March 6, 2009 01:09 PM
Posted to Ind. Adm. Bd. Decisions