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Monday, November 16, 2009

Ind. Decisions - Court of Appeals issues 7 today (and 4 NFP)

For publication opinions today (7):

In Lawrence E. Nunley v. State of Indiana, an 18-page opinion, Judge May writes:

Lawrence E. Nunley appeals his convictions of four counts of Class A felony child molesting and one count of Class D felony dissemination of matter harmful to minors. We conclude an interview conducted a year after the molestation lacks sufficient indicia of reliability; therefore, the videotape of the interview and the witness testimony that repeated the contents of the interview should not have been admitted. Because this was the only evidence supporting Counts 3 and 4, we reverse those convictions. However, we find no reversible error as to the remaining convictions. Therefore, we reverse in part and affirm in part.
In Bonita G. Hilliard, et al. v. Timothy E. Jacobs , a 14-page, 2-1 opinion, Judge Mathias writes:
The Greene Circuit Court ordered Bonita G. Hilliard (“Bonita”), in her capacity as the Trustee of the H. David and Bonita G. Hilliard Living Trust, to pay post-judgment interest to Timothy E. Jacobs (“Jacobs”). Bonita appeals and argues that the trial court erred in ordering her to pay post-judgment interest because the court had not entered a money judgment subject to the post-judgment interest statute, Indiana Code section 24-4.6-1-101 (2006). We reverse and remand. * * *

In conclusion, the trial court's order returning to Jacobs the insurance policies was not a “judgment for money” subject to post-judgment interest under Section 101. It was instead an order granting ownership of the policies to Jacobs. The trial court therefore erred in awarding Jacobs 8% in post-judgment interest pursuant to Section 101. Reversed and remanded.

ROBB, J., concur.
DARDEN, J., dissents with opinion. [that concludes] In other words, the facts of this case have long dictated certainty in the amount of the judgment, to wit: the face values of the insurance policies. Accordingly, I would find the order of that date to be a money judgment.

In Frederick D. Fox v. State of Indiana , a 6-page opinion, Judge May writes:
Frederick D. Fox appeals his sentence for Class D felony possession of a controlled substance. Fox asserts the trial court abused its discretion by denying his request for alternative misdemeanor sentencing. He also argues we should use our authority under Ind. Appellate Rule 7 to modify this conviction to a Class A misdemeanor. We affirm.
Jerell Owens v. State of Indiana - "The trial court did not deny Owens his right to due process when the court re-sentenced Owens on his murder conviction to a sentence that is five years greater in length, but did not exceed the aggregate sentence originally imposed on both convictions at issue. In addition, the trial court did not abuse its discretion when it imposed consecutive sentences because it identified sufficient aggravating circumstances to support the imposition of such sentencing. Finally, Owens's seventy-three year sentence is not inappropriate in light of the nature of the offense and the character of the offender."

In Kenya Lee v. State of Indiana , a 4-page opinion, Sr. Judge Garrard writes:

On appeal, Lee contends the court abused its discretion by admitting hearsay evidence regarding the identity of the woman he was prohibited from contacting. * * * [Citing Evid. R. 901(b)(5)] Thus, it was proper for Detective Carter to testify on the basis of his familiarity with Washington’s voice, that she was the person whom Lee called and was speaking to from the jail on September 21st and 22nd. The trial court did not err in admitting evidence. Affirmed.
In Jerold Jackson and Virginia Jackson v. The Board of Commissioners of the County of Monroe, Vova Johnson, et al, a 15-page opinion, Judge May writes:
Jerold and Virginia Jackson appeal the trial court’s determination that a road running through their property is a public road. We reverse. * * *

However, because Segment AB is not a public road, the remainder of the road is inaccessible to the public. Segments BC and CD are located entirely on one property and are not open on either end. No purpose can be served by finding Adams dedicated one or both of them to the public. Such a holding would serve only to upset the expectations of the Jacksons, who are the record title holders of this property and had no indication from other public records that the road may be a public road. Therefore, we conclude the entire disputed portion of Baxter Branch is a private road.

In Thomas L. Vandenburgh v. Candace A. Vandenburgh, a 14-page opinion, Judge May concludes:
We decline to address Father’s allegations of error that are not supported with cogent argument, references to the record, or support from legal authorities and we accordingly affirm the trial court. However, we find sua sponte that the modification order must be clarified to the extent it did not explain in detail how the court arrived at the amounts it awarded. We therefore remand for clarification of that matter and for resolution of the apparent inconsistency as to the $4,210.00 credit the trial court gave Mother. Affirmed and remanded.

NFP civil opinions today (1):The Invol. Term. of the Parent-Child Rel. of K.A., J.L. v. Marion Co. Dept. of Child Svcs., et al. (NFP)

NFP criminal opinions today (3):

Jennifer Leonard v. State of Indiana (NFP)

Christopher Macy v. State of Indiana (NFP)

Johnie B. Moody, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on November 16, 2009 01:14 PM
Posted to Ind. App.Ct. Decisions