[Note: Some of the nine cases below are from a week ago, Oct. 7th. Others are from earlier this week. Generally the Court of Appeals has posted its opinions on the day of issuance.]
Abel A. Alves v. State of Indiana (10/12/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
This case addresses the effect of a “No Trespassing” sign on private property. Abel A. Alves appeals his conviction after a jury trial of trespass, a Class A misdemeanor. See footnote He raises one issue: whether the evidence was sufficient to sustain his conviction. We affirm.[Note: I wrote about this quite remarkable decision earlier today here, in an entry quoting from a story today in the Muncie Star-Press headlined "Hog-farm trespass conviction upheld." At the time I assumed it was a Not for Publication decision; but the opinion, dated Oct. 12, has just today been posted on the Court's website.]On October 12, 2002, Robert Adams saw a green Honda parked off the road beside property located on County Road 650 South in Delaware County, Indiana. Adams knew the owners of the property, William and Kay Whitehead, and did not recognize the Honda. Adams pulled his vehicle off the road facing the Honda. He saw Carol Blakney at the wheel of the Honda, and Alves standing on a gate about 30 to 40 feet from the edge of the road. The gate had a black and yellow “No Trespassing” sign attached to it.
Adams asked Alves and Blakney their names and wrote down their license number. Neither Alves nor Blakney had permission from the Whiteheads to enter their property. * * *
Alves argues the evidence is insufficient to show he knowingly entered the Whiteheads’ property and that he had been denied entry by the posting of a notice at the main entrance of the property.
The Whiteheads’ property at 650 South included a barn or other type of building and a silo set back from the road. A gate and fence separated those structures from the road. The gate was about 30 to 40 feet from the road and had a “No Trespassing” sign attached to it. Adams testified Alves was standing on the gate.
There appears to be no Indiana case law addressing the point on a person’s property at which a “No Trespassing” sign takes effect. Ind. Code § 35-43-2-2 provides a person may be “denied entry” for trespass purposes by means of “posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public.”
While there was no evidence Alves had opened or climbed over the gate and walked past the “No Trespassing” sign, the jury could have reasonably inferred that at least part of his body entered the airspace above the Whiteheads’ property. As a result, there was sufficient evidence to sustain his conviction of trespass. Affirmed.
BAILEY, J., and SHARPNACK, J., concur.
State of Indiana v. Dow Wilson (10/12/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
Dow Wilson was charged with two counts of welfare fraud as Class C felonies, one count of welfare fraud as a Class D felony, and one count of theft as a Class D felony. The State brings this interlocutory appeal from the trial court’s decision to exclude the testimony of Wilson’s spouse, Heidi Davie-Wilson (“Heidi”). The trial court certified one question for appeal. However, we are unable to address that question because the State waived appellate review of the exclusion of Heidi’s testimony.Jeff Combs v. Rodney & Greg Tolle (10/12/04 IndCtApp) [Real estate]
We affirm and remand. * * *The State did not provide an adequate offer of proof at trial and thereby waived its argument regarding the trial court’s exclusion of Heidi’s testimony.
Affirmed and remanded.
SULLIVAN, J., and VAIDIK, J., concur.
Jeff Combs appeals the trial court’s grant of a petition for a tax deed to Rodney Tolle and Greg Tolle (collectively, the “Tolles”). Combs raises two issues, which we consolidate and restate as whether the trial court’s order granting the Tolles’ petition for a tax deed after finding that Combs received the proper statutory notices is clearly erroneous. We affirm.Henry L. Kellems v. State of Indiana (10/7/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Henry Luke Kellems, Jr. appeals his conviction for Operating a Vehicle as an Habitual Traffic Offender, as a Class D felony, and the trial court’s order finding him in violation of his probation. Kellems raises a single dispositive issue, namely, whether a caller’s tip established reasonable suspicion to effectuate a traffic stop under the Fourth Amendment to the United States Constitution. We reverse. * * *William H. Aiken v. Robyn S. Stanley (10/7/04 IndCtApp) [Protection Order]Given these circumstances, we conclude that the tip did not contain the requisite indicia of reliability. As a result, Kellems’ motion to suppress should have been granted and all evidence discovered following the stop, including evidence of his status as a habitual traffic violator, should have been suppressed at his criminal trial. As such, the evidence is insufficient to support his conviction, and we reverse the trial court’s judgment. Further, because the State did not plead or prove any other probation violation, we reverse the trial court’s order revoking Kellems’ probation. Reversed.
SULLIVAN, J., and BARNES, J., concur.
In February 2004, Robyn Stanley petitioned for and received an Ex Parte Order of Protection against William Aiken. Following a hearing in March 2004, the trial court issued a permanent Order of Protection against Aiken which provided, among other things, that Aiken have no contact with Stanley for one year. Aiken appeals that judgment and presents a single issue for review: whether Stanley presented sufficient evidence to support the trial court’s order of protection under the Indiana Civil Protection Order Act (“CPOA”), Indiana Code Section 34-26-5-1 through –19. We affirm. * * *Rogers Group, Inc. v. Diamond Builders, LLC (10/07/04 IndCtApp) [Contracts]In sum, Aiken has not established prima facie error, and we conclude that the evidence supports the trial court’s decision to issue an order of protection against him. Affirmed.
SULLIVAN, J., and BARNES, J., concur.
* * * For the foregoing reasons, the evidence does not support the trial court’s finding that “the only remedy is to redo the parking lot,” and thus, its conclusion that Diamond should recover damages for repaving the entire parking lot is clearly erroneous. Further, the trial court erred by failing to award Rogers its attorney fees and interest. We remand to the trial court to conduct further proceedings consistent with this opinion. Reversed and remanded.Brandon Holman v. State of Indiana (10/14/04 IndCtApp) [Criminal Law & Procedure]
SHARPNACK, J., and MAY, J., concur.
Brandon Holman appeals his conviction for residential entry. Based on the totality of the circumstances, we conclude that the seventeen-year-old minor in this case did not have the authority to give consent to her boyfriend to enter the house in which she lived with her parents. Furthermore, Holman’s belief that the minor had the authority to give consent was not reasonable. We affirm his conviction. * * *Ronald D. Sander v. State of Indiana (10/14/04 IndCtApp) [Criminal Law & Procedure]Holman knew that he was not welcome at the Marcadl residence. For the vast majority of his visits to the Marcadl residence, Holman came in the middle of the night and sat outside Erica’s bedroom window. And on the two occasions that Holman actually entered the Marcadl residence, the only time he used the front door was when the Marcadls were not home. Under these circumstances, we conclude that Holman’s belief that Erica had the authority to give him consent was not reasonable. Accordingly, we affirm Holman’s conviction for residential entry. Affirmed.
RILEY, J., concurs.
CRONE, J., dissents with separate opinion.
In this case, the person conferring the consent to enter was a resident of the home. The consent was limited to that person’s area of anticipated control and privacy. The consent was for entry for a legitimate purpose, that is, retrieval of Holmes’s property. Eric Marcadl testified, “I met [Holmes] once and this was the second time that I seen him coming out of the window.” Id. at 11. Marcadl never told Holmes, or Erica, that he could not enter the Marcadl residence. Marcadl’s major objection to Holmes was that he was dating his daughter. I believe it is reasonable to assume that a seventeen-year-old has authority to consent to entry, for an otherwise legitimate purpose, to an area of her residence over which she maintains privacy and control.In sum, I believe that Holmes properly raised consent as a defense to the residential entry charge and that the State failed to disprove that defense beyond a reasonable doubt. Consequently, I would reverse his conviction.
Ronald D. Sander, pro se, appeals a ruling regarding credit time in conjunction with the sentence he received following his conviction of Operating a Vehicle After a Lifetime Suspension, a class C felony. Sander presents the following restated issue for review: Did the trial court err in denying Sander’s motion for education credit time, pursuant to [IC] 35-50-6-3.3? We affirm. * * *Tabor & Autoxchange.com, Inc. v. Dreyer & Reinbold, Inc. (9/15/04 IndCtApp) [Agency; Torts]In the instant case, while he was serving the sentence imposed for his conviction for operating a vehicle while his license was suspended for life, Sander allegedly received a high school diploma or its equivalent. Thus, his application for credit time pursuant to [IC] 35-50-6-3.3 should have been directed to the DOC. The trial court, not possessing all of the facts necessary to rule on Sander’s petition, did not err in denying the motion for educational credit time. Judgment affirmed.
BAKER, J., and DARDEN, J., concur.