Eric M. Serrano v. State of Indiana (5/20/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Eric Serrano appeals his conviction for Sexual Misconduct with a Minor, a class C felony. Specifically, Serrano argues that his conviction must be reversed on the grounds of insufficient evidence because the trial court erred in admitting the police officer’s arrest report as the only evidence of his age. Finding that the arrest report was inadmissible hearsay evidence, we reverse the judgment of the trial court. * * *Robert O. Ballard v. State of Indiana (5/20/04 IndCtApp) [Criminal Law & Procedure]This conclusion leads us to the question of whether Serrano may be retried upon remand. * * * When evidence is admitted that is prejudicial but without which the State’s case would not otherwise fail, the State may retry the defendant. See id. However, when the only evidence of a material element is inadmissible, the State has failed to satisfy its burden of proof, and it may not have a second chance. The rule cannot be otherwise or the State could endlessly retry defendants and appeal until they can finally obtain a conviction. In sum, the evidence admitted at trial—admissible and inadmissible alike—is insufficient as a matter of law to sustain Serrano’s conviction, and the charges against him are hereby dismissed with prejudice. See footnote
The judgment of the trial court is reversed.
FRIEDLANDER, J., concurs.BAILEY, J., concurs and dissents, with opinion:
I concur in the majority’s reversal of Serrano’s conviction for sexual misconduct with a minor, a Class C felony, on the basis that the trial court’s admission of the arrest warrant constituted reversible error. However, I respectfully dissent from the majority’s conclusion that Serrano may not be retried upon remand. * * *
"We further hold that the trial court erred in sentencing Ballard to an aggravated sentence of forty years, based on Ballard’s criminal history which is comprised entirely of offenses unrelated to the present offense. "
Charley A. Pond v. State of Indiana (5/20/04 IndCtApp) [Criminal Law & Procedure]
Medical Assurance of Indiana (MAI), et al. v. Sally McCarty, et al. (5/20/04 IndCtApp) [Medical Malpractice]
BARNES, Judge
MAI suggests throughout its brief that requiring it to pay $100,000 for each act of malpractice Dr. Patel committed, which led to distinct injuries, will frustrate the overarching intent of the Act to limit malpractice liability, lower malpractice insurance rates, and thereby ensure access to healthcare by more Hoosiers. It reminds this court of the spiraling costs in Indiana of malpractice insurance and, therefore, health care generally that prompted the Act’s passage * * *. We do not accept that our decision today will lead to the “horribles” that preceded the passage of the Act or, given the evident uniqueness of the facts of this case, that it will have a significant impact “on the cost and availability of medical malpractice insurance in the State of Indiana . . . .” The Act has been in existence now for almost thirty years. Today presents the first case addressing whether a doctor and his or her insurer are required to pay twice for two separate acts of malpractice occurring during one medical procedure that has resulted in two distinct injuries. Either such payments have been made in the past without complaint, or this type of event would appear to be exceedingly rare. We also decline to accept that limiting malpractice exposure for health care providers and their insurers is the only relevant consideration when interpreting a provision of the Act. That is a factor, of course, when considering questions arising under the Act, but it must be balanced in this case against the need to fairly apportion the cost of malpractice when and if it occurs and to ensure recovery by injured patients.Milan Stulajter v. Harrah's Indiana Corporation, et al. (5/20/04 IndCtApp) [Statutory construction]Conclusion. The trial court correctly concluded that Dr. Patel and MAI are required to make two maximum health care provider payments totaling $200,000 to discharge their liability to Barker pursuant to IC 34-18-14-3(b). We affirm the grant of summary judgment in the Fund’s favor. Affirmed.
CRONE, J., and MATHIAS, J., concur.
Milan Stulajter appeals the trial court’s dismissal of his complaint against Harrah’s Indiana Corporation (“Harrah’s”). In his complaint, Stulajter claimed that Harrah’s breached its statutory duty by sending him marketing materials and admitting him to its casino after he placed himself on the casino’s voluntary self-exclusion list. Because we conclude that a violation of Indiana gaming regulation does not give rise to a private cause of action, we affirm the trial court’s decision. * * *Posted by Marcia Oddi at May 20, 2004 02:19 PMIf the legislature intended to create a right to a private cause of action under the Commission rules for riverboat gambling, it could have included such a provision. Because it did not do so, we conclude that Stulajter does not have the right to bring a private cause of action based on a violation of the self-exclusion program rules. If Harrah’s is in violation of any of the stated statutory provisions, it must answer to the Commission, not a private citizen claiming harm from the alleged violation. * * * We conclude that Indiana’s gaming statutes and regulations do not create a private cause of action to protect compulsive gamblers from themselves. Our conclusion today comports with the court’s opinion in Merrill v. Trump Indiana, Inc., 320 F.3d 729, 732 (7th Cir. 2003), in which a federal court applying Indiana law determined that a casino operator does not owe a duty to protect compulsive gamblers from themselves. The court noted that Indiana law does not recognize the existence of a duty between a tavern proprietor and its patrons and stated, “Indiana law does not protect a drunk driver from the effects of his own conduct, and we assume that the Indiana Supreme Court would take a similar approach with compulsive gamblers.” Id. Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.