The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

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Tuesday, May 12, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Patricia E. Buhring v. Phillip V. Tavoletti , a 15-page opinion, Judge Brown writes:

Patricia E. Buhring appeals a judgment in her action against Phillip V. Tavoletti. Buhring raises two issues, which we consolidate and restate as whether the trial court erred when it instructed the jury regarding mitigation and damages. We reverse and remand. * * *

[A] * * * [W]e conclude that Tavoletti failed to produce enough evidence of causation to support the giving of the mitigation of damages instruction.

[B] * * * We agree with Buhring that the damages instruction given is, at best, misleading and, at worst, an incorrect statement of the law.

[C] Given our conclusions that the evidence did not support giving the mitigation of damages instruction and that the damages instruction was at best, misleading and, at worst, an incorrect statement of the law, we conclude that reversal and a new trial are necessary. In Simmons v. Erie Ins. Exchange, 891 N.E.2d 1059, 1070-1073 (Ind. Ct. App. 2008), we noted that the Indiana Supreme Court has used two different standards in determining whether an erroneous instruction results in harmless error. * * *

As in Simmons, the matters discussed in the instructions at issue were emphasized to the jury, and the likelihood that the matters were discussed and impacted the jury's verdict is significant. Consequently, we conclude that the giving of the instructions at issue were not harmless error, and we must remand for a new trial on damages.

In Timothy D. Wolshire v. Sharon M. Wolshire , a 13-page opinion, Judge Riley writes:

Husband argues that the trial court erred in three ways: (1) adding the language regarding taxes, insurance, and repairs to the provision of the Separation Agreement governing the sale of the marital residence; (2) awarding Wife a portion of his military retirement benefits; and (3) awarding Wife a portion of the BAH payments. Essentially, Husband contends that all property issues were settled by the parties’ Separation Agreement, while Wife asserts that the Separation Agreement left the three issues above unresolved. * * *

Based on the foregoing, we conclude that the trial court erred by adding new language to the provision of the parties’ Separation Agreement governing the proceeds of the potential sale of the marital residence and by awarding Wife a portion of Husband’s military retirement benefits and a portion of the BAH payments. We remand this cause to the trial court with instructions to amend its decree of dissolution in accordance with this opinion.

In Brian McMurrar v. State of Indiana , a 7-page opinion, Judge Riley writes:

As part of his sufficiency argument, McMurrar contests the trial court’s admission of State’s Exhibit 2, a laboratory examination report concluding that the paraphernalia contained cocaine residue. * * *

McMurrar objected to the admission of the laboratory report on the basis that it did not meet the requirements of the business records exception to the hearsay rule and that the report constituted hearsay based on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 157 L. Ed. 2d 177 (2004). The trial court admitted the exhibit over McMurrar’s objections. On appeal, McMurrar now solely relies on his Crawford argument by claiming that his Sixth Amendment to right to confrontation was violated because the person who examined the paraphernalia was not present at trial to testify.

In support of his argument, McMurrar relies on Jackson v. State, 891 N.E.2d 657, 659 (Ind. Ct. App. 2008), trans. pending [but not yet granted], where we found that the admission of a certificate of analysis or laboratory report used to prove an element of a charged crime constitutes a testimonial statement under Crawford. In Jackson, the person who performed the laboratory testing and prepared the certificate for the purpose of establishing an element of the charge did not testify at trial; instead, her supervisor testified as to whether, in his opinion, the testing had been properly done. Because the State failed to prove that the individual who prepared the certificate or report was unavailable to testify at trial, we concluded that the admission of the certificate violated Jackson’s Sixth Amendment right to confrontation under Crawford.

Here, Patricia Bowen, a forensic scientist with the Indianapolis-Marion County Forensic Services Agency, performed the laboratory testing on some residue found on the paraphernalia for the purpose of showing that the substance was cocaine and to prove an element of the charge, i.e., that McMurrar intended to introduce the cocaine in his body. However, instead of Bowen, the State called Brenda Keller (Keller), the quality assurance manager with the Indianapolis-Marion County Forensic Services Agency. Keller’s testimony was limited to the contents of the report and the conclusions drawn therein; she was merely a sponsoring witness of the exhibit and did not perform the tests herself. The State did not allege, let alone prove, that Bowen was unavailable to testify. Pursuant to Jackson, we conclude that Keller’s testimony does not satisfy McMurrar’s right of confrontation under Crawford. As a result, the trial court abused its discretion by admitting State’s Exhibit 2. * * *

Based on the foregoing, we conclude that the trial court erroneously admitted a laboratory report into evidence. However, as the evidence, including the erroneously admitted laboratory report, was sufficient to support McMurrar’s conviction, we remand for retrial.

For more on Jackson v. State and related cases, see this ILB entry from Nov. 10, 2008.

NFP civil opinions today (3):

Jason Curtis, Brad Curtis and Rhonda Curtis v. The National Mutual Ins. Co. and Celina Ins. Group (NFP) - " We agree with National that the denial of the Curtises motion to amend their counterclaim is interlocutory and has not been properly certified for appeal under Appellate Rule 14(B). Dismissed. "

Term. of Parent-Child Rel. of A.B.; R.B. v. IDCS (NFP)

Term. of Parent-Child Rel. of C.S.; B.S. v. IDCS (NFP)

NFP criminal opinions today (10):

State of Indiana v. Errick G. Benson (NFP)

Jonathan Barr v. State of Indiana (NFP)

Philip R. Miller v. State of Indiana (NFP)

Leroy Burke, Jr. v. State of Indiana (NFP)

Rick Roberson v. State of Indiana (NFP)

Kenneth Macken v. State of Indiana (NFP)

Adrian C. Whitlow, Jr. v. State of Indiana (NFP)

J.S. v. State of Indiana (NFP)

Edward Brant v. State of Indiana (NFP)