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Thursday, February 11, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Richard Gatewood v. State of Indiana , an 11-page opinion, Judge Vaidik writes:

Richard Gatewood appeals his conviction for Class D felony operating while intoxicated and his status as a habitual substance offender. Specifically, he contends that the evidence is insufficient to prove that he was intoxicated at the time he drove. Although the State presented evidence that Gatewood was intoxicated at 9:00 p.m., when he was found sleeping by his moped, we conclude that it failed to present evidence that he had an impaired condition of thought and action and the loss of normal control of a person’s faculties at the time he drove his moped one hour earlier. We therefore reverse. * * *

Even if we assume that Gatewood drank some alcohol before arriving at the hospital, the State simply presented no evidence that when Gatewood operated his moped around 8:00 p.m., he had an impaired condition of thought and action and the loss of normal control of a person’s faculties. That is, this is not a case where Gatewood was involved in an accident, his driving exhibited signs of impairment, or he committed any traffic infractions. In short, the State failed to prove that Gatewood was intoxicated at the crucial time. Though Gatewood, who recently underwent back surgery and had several medical conditions that affected his walking, stumbled after getting off the moped, his driving did not alarm either Crehan or Branum, who were both outside the hospital when Gatewood pulled up and are trained to deal with intoxicated people, to the point that they took action. As Branum plainly said, “There wasn’t any need to stop him for any reason.” And Officer Kapcynski did not observe Gatewood drive. Moreover, intoxication at the time Gatewood drove cannot reasonably be inferred because Gatewood was unobserved for nearly an hour. In this case, we are not presented with conflicting evidence on the issue of Gatewood’s intoxication at the time he drove; rather, we are presented with no evidence. We therefore reverse Gatewood’s conviction for OWI and his enhancement for being a habitual substance offender. As such, we do not address the State’s cross-appeal.

NFP civil opinions today (2):

Lorie Sheldon v. William Sheldon (NFP) - "We find no error in the trial court's order that denied Mother's motion for modification of the April 6, 2009 order."

KJM v. Connie Townsend (NFP) - "The Trust and Merritt have failed to cite any authority to support the not quite one-page argument section in their appellate brief. A party that fails to comply with Appellate Rule 46(A)(8)(a) waives the issues in question. Flowers v. Flowers, 799 N.E.2d 1183, 1187 (Ind. Ct. App. 2003).

"Waiver notwithstanding, we find no error."

NFP criminal opinions today (3):

Robert Holt v. State of Indiana (NFP)

Delbert Lewis v. State of Indiana (NFP)

Jay Becker v. State of Indiana (NFP)

Posted by Marcia Oddi on February 11, 2010 11:56 AM
Posted to Ind. App.Ct. Decisions