Darryl Eugene Fisher v. State of Indiana (6/17/04 IndSCt) [Criminal Law & Procedure]
Rucker, Justice
The question we address is whether the failure to raise on appeal the trial court’s refusal to give a reckless homicide instruction as a lesser-included offense to murder amounts to ineffective assistance of appellate counsel. On the facts of this case, we conclude that it does. * * * We reverse the judgment of the post-conviction court. This cause is remanded for further proceedings not inconsistent with this opinion.Gary D. Gee v. State of Indiana (6/17/04 IndSCt) [Criminal Law & Procedure]
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
Gary D. Gee was convicted of several drug related offenses as a result of contraband found in a house he shared with a relative. Because the evidence was not sufficient to demonstrate that Gee knew of the nature of the contraband and its presence in the house, we reverse his conviction. * * * The judgment of the trial court is reversed.Wedgewood Community Association, Inc. v. Robert & Barbara Nash (6/17/04 IndSCt) [Dissent to Denial of Transfer]
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
The Wedgewood Community Association is a non-profit corporation that operates as a homeowners’ association. The Association is comprised of the homeowners in the Wedgewood subdivision, and its Board of Directors are all elected volunteers. Homeowners are bound by a restrictive covenant providing that no shack, barn, or other unattached outbuilding may be constructed on any lot without the prior approval of the Association’s Board of Directors or its Architectural Control Committee. * * *Michael P. Penrod v. State of Indiana (6/17/04 IndSCt) [Criminal Law & Procedure]The trial court recognized that the Association was seeking by injunction to enforce a covenant against one homeowner, while at the same time declining to enforce against two other homeowners a near-identical violation of the same covenant. One of the violators just happened to be a member of the Association’s Board of Directors. It may indeed be the case that the “[a]lleged selective enforcement of restrictive covenants is clearly not a violation of the restrictive cov enant forbidding outbuildings and may be remedied by the ballot box of the association officer election.” Wedgewood, 781 N.E.2d at 1179. The question however is whether the selective enforcement in this case was inequitable and improper, thus barring the Association’s claim for equitable relief. Declining to grant the Association’s complaint for injunction, the trial court answered yes. The denial of an injunction lies within the sound discretion of the trial court and will not be overturned unless it was arbitrary or amounted to an abuse of discretion. Stewart v. Jackson, 635 N.E.2d 186, 189 (Ind. Ct. App. 1994). Here the trial court’s judgment was not clearly erroneous and its decision was neither arbitrary nor an abuse of discretion. We should grant transfer and say so.
Dickson, J., concurs.
Appellant Michael Penrod was convicted of rape, kidnapping, and two counts of confinement all arising out of an attack on E.H. We conclude that the episode constituted one continuous confinement and vacate the two confinements. * * *Posted by Marcia Oddi at June 17, 2004 01:48 PMWe vacate the two confinement convictions and affirm the fifty years for rape followed by the fifty years for kidnapping.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.