The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP) [Updated with another opinion]

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Wednesday, September 09, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP) [Updated with another opinion]

For publication opinions today (5):

In A.J.L. v. D.A.L., J.K.C., and T.C. , a 16-page opinion, Judge Najam concludes:

The trial court did not err when it concluded that Aunt and Uncle are the de facto custodians of the Children. Clear and convincing evidence shows that Mother left the Children in Aunt and Uncle's care for significant periods of time starting in January 2006. The Children lived with Aunt and Uncle fifty percent of the time from January 2006 to February 2007 and sixty to seventy percent of the time from February 2007 to February 2008. During those periods, Aunt and Uncle provided for the care and needs of the Children without financial contribution from Mother. Mother's argument that Aunt and Uncle were merely babysitters is a request that we reweigh the evidence, which we will not do.

And the trial court did not abuse its discretion when it awarded custody of the Children to Aunt and Uncle as de facto custodians. Again, clear and convincing evidence shows that Mother voluntarily relinquished care and control of the Children to Aunt and Uncle for significant periods of time starting in January 2006. Mother's argument challenging the award again amounts to a request that we reweigh the evidence. We cannot. Clear and convincing evidence shows that Mother voluntarily relinquished the Children to Aunt and Uncle and that the affections between the Children and Aunt and Uncle were completely interwoven. Such evidence is sufficient to rebut the presumption that custody should be placed with Aunt and Uncle, as de facto custodians, over Mother, the natural parent.

Finally, Mother has not shown that the trial court applied an incorrect burden for Aunt and Uncle to rebut the presumption that Mother, as the natural parent, should have custody of the Children. While the Decree is silent as to the burden of proof on that issue, as stated above, Mother's abandonment of the Children to Aunt and Uncle was proved by clear and convincing evidence. And the probative evidence and reasonable inferences supporting the judgment show that a reasonable trier of fact could have concluded that the affections of the Children and Aunt and Uncle were completely interwoven. Thus, Aunt and Uncle rebutted the parental presumption by clear and convincing evidence. The trial court did not abuse its discretion when it awarded custody of the Children to Aunt and Uncle. Affirmed.

In Terry Rowe, Jr. v. State of Indiana , a 10 page, 2-1 opinion, Judge Crone writes:

Terry Rowe appeals the denial of his petition for post-conviction relief for ineffective assistance of counsel. We affirm. * * *

May, J. concurs.
BROWN, J., dissents with separate opinion. [which begins] I respectfully dissent because I conclude that Rowe received ineffective assistance because Rowe's trial counsel did not adequately investigate Rowe's case, told Rowe that he would win, and Rowe rejected the plea agreement based upon his trial counsel's statement that he would win.

In Morgan K. Govan v. State of Indiana , an 11-page opinion, Judge Vaidik writes:

Morgan K. Govan appeals his convictions for Class C felony battery and Class A misdemeanor battery for branding his long-term girlfriend with a hot knife and hitting her with a cord. Specifically, he contends that the evidence is insufficient to support his convictions because the charges arose out of sadomasochistic sexual practices to which his girlfriend consented. In Indiana, consent is not a defense to battery in most circumstances. Because the activities in this case involved a deadly weapon, consent is not available as a defense. Furthermore, because Govan admitted to beating his girlfriend with a belt-like object because she had been with another man and lied about it, and his girlfriend locked herself inside a closet, where she tried to kill herself; escaped to her place of employment, where she locked herself inside the building and called 911; told the 911 dispatcher that she wanted to press charges against Govan; told the police that Govan had branded her with a hot knife and struck her with an extension cord (but, notably, did not mention consent); and testified at trial that she did not want to be there and she still had feelings for Govan, the jury was free to conclude that the victim did not consent to battery. We therefore affirm Govan’s convictions for battery.

Joshua Bean v. State of Indiana - "Joshua Bean appeals his convictions for Murder, a felony, and Abuse of a Corpse, a Class D felony, following a jury trial. Bean presents the following issues for review: 1. Whether the trial court abused its discretion when it admitted Bean‟s custodial statement to police. 2. Whether the trial court abused its discretion when it admitted certain evidence under Indiana Evidence Rule 404(b). We affirm."

In Tabitha Lynn Slone v. State of Indiana , a 10-page opinion, Judge Riley writes:

Appellant-Defendant, Tabitha Lynn Slone (Slone), appeals her conviction for purchasing drugs containing more than three grams of ephedrine, pseudoephedrine, or both within one week, a Class C misdemeanor, Ind. Code § 35-48-4-14.7(d), (i), and the finding that she violated her probation. We reverse.

Slone raises three issues on appeal, which we restate as the following two:
(1) Whether Indiana Code section 35-48-4-14.7 is unconstitutional;
(2) Whether the State presented evidence sufficient to prove beyond a reasonable doubt that she knowingly or intentionally purchased more than three grams of ephedrine, pseudoephedrine, or both within one week. * * *

Slone argues that Indiana Code section 35-48-4-14.7 which prohibits, among other things, the purchase of drugs containing more than three grams of ephedrine, pseudoephedrine, or both within one week is unconstitutionally vague. Additionally, Slone contends that the statute authorizes or encourages arbitrary or discriminatory enforcement. The State responds by contending that Slone waived this issue by failing to file a motion to dismiss advancing the contentions of unconstitutionality, or by failing to raise the issues at all before the trial court.

Addressing the State’s contention of waiver we note that, generally the failure to file a proper motion to dismiss raising a constitutional challenge to a criminal statute waives the issue on appeal. Donaldson v. State, 904 N.E.2d 294, 298 (Ind. Ct. App. 2009). Nevertheless, Indiana appellate courts have considered the constitutionality of statutes even where the defendant failed to file a motion to dismiss. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). Indeed, our supreme court has even stated that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992).

However, Slone asks us to base our decision upon her qualified allegation that “[c]onfusion over compliance with I.C. 35-48-4-14.7(d) appears particularly likely because the record suggests the exact total amounts of ephedrine or pseudoephedrine may not be listed in grams on the box of cold medication.” (emphasis added). Further, Slone states in another section of her brief that “the record in this case is silent as to the nature of the labels on those medications.” So, short of violating our prohibition of considering items outside of the record, our decision would be based upon speculation as to what information is contained on packaging of drugs that contain ephedrine and pseudoephedrine. The waiver rule is founded on important policy considerations, including “the preservation of judicial resources, opportunity for full development of the record, utilization of trial court fact-finding expertise, and assurance of a claim being tested by the adversary process.” Hoose v. Doody, 886 N.E.2d 83, 93 (Ind. Ct. App. 2008), trans. denied. Therefore, we conclude that Slone has waived her constitutional challenge, and we are unable to consider her challenge notwithstanding that waiver. * * *

Based on the foregoing, we conclude that Slone waived her opportunity to challenge the constitutionality of Indiana Code section 35-48-4-14.7(d), and we cannot review her claim notwithstanding that waiver because the record was not properly developed before the trial court. Further, we conclude that Slone stipulated to the fact that she had purchased drugs containing more than three grams of pseudoephedrine within one week. However, the State failed to present evidence sufficient to prove beyond a reasonable doubt that she knowingly violated Indiana Code section 35-48-4-14.7(d). Reversed.