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Opinions Dec. 14, 2012

December 14, 2012
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Indiana Court of Appeals
Brenda Alexander v. Donald Alexander
32A05-1108-DR-417
Domestic relations. Affirms in a divided opinion the trial court denial of a motion to correct error of the court’s omission of an award for incapacity maintenance for Brenda Alexander. She claimed that testimony of her disabilities and court findings supported an award, but the majority held that the trial court did not abuse its discretion on ruling that such an award was not warranted.

A Plus Home Health Care Incorporated v. Kathleen Miecznikowski
93A02-1207-EX-558
Civil. Affirms Indiana Worker’s Compensation Board’s decision in favor of Miecznikowski on her claim for workers’ compensation. Agrees with the board’s conclusion that her fall was a neutral risk and therefore compensable.

Christine Banks v. Timothy R. Banks
45A03-1203-DR-96
Domestic Relation. Affirms trial court’s reduction in the amount of spousal maintenance Christine Banks receives from her ex-husband Timothy Banks. The COA rejected Christine Banks’ argument that Indiana law does not permit incapacity spousal maintenance to be modified, noting it was incorrect. The court stated when an obligor spouse suffers a deterioration in financial condition that is the result of factors beyond his or her control, he or she should not be forced to continuing paying maintenance based on a better financial condition.  

Melissa Patterson v. State of Indiana
34A02-1203-CR-235
Criminal. Reversed and remanded a trial court’s denial of Patterson’s motion to the charges of aiding, inducing or causing invasion of privacy as a class A misdemeanor. Patterson was charged because she twice visited her fiancé after she had obtained a no-contact order against him. The COA held the Indiana General Assembly did not criminalize the actions of a protected person to invite the subject of a protective order to violate the terms of the order.

Granite State Insurance Company v. Robert Lodholtz and Pulliam Enterprises, Inc.
71A04-1111-CT-635
Civil Tort. Affirms in a 2-1 opinion the trial court denial of Granite State to intervene in a suit in which its claims administrator failed to respond to Lodholtz’s claim in a workplace injury suit, resulting in a default judgment and subsequent $3.9 million damages award. The majority held that because Granite State reserved a right to deny coverage in its offer to represent Pulliam in an effort to vacate the judgment, it had an interest that was at best contingent and insufficient to support intervention. Judge John Baker dissented, holding that Granite State’s interest is not being protected.

Bert S. Watkins, II v. State of Indiana (NFP)
89A01-1203-CR-103
Criminal. Affirms three-year sentence for obstruction of justice, a Class D felony, with habitual offender enhancement.

Nicholas Corbin v. State of Indiana (NFP)
79A02-1202-CR-161
Criminal. Affirms convictions of burglary as a Class B felony, burglary as a Class C felony, attempted burglary as a Class C felony, theft as a Class D felony, auto theft as a Class D felony, resisting law enforcement as a Class D felony and a Class A misdemeanor, three counts of receiving stolen property as a Class D felony, and criminal mischief as a Class B misdemeanor.

Brian Taskey v. State of Indiana (NFP)
67A04-1204-CR-189
Criminal. Affirms conviction of Class D felony battery resulting in bodily injury and Class D felony neglect of a dependent. COA found the state presented sufficient evidence to prove Taskey committed the charged offenses.

In the Matter of the Term. of the Parent-Child Rel. of: MS. and M.T.; and A.H. and T.S. v. The Indiana Dept. of Child Services (NFP)
07A04-1204-JT-217
Juvenile Termination of Parental Rights. Affirms involuntary termination of parental rights of A.H. (mother) and T.S. (father) to their respective children.

William C. Davis v. State of Indiana (NFP)
65A04-1206-PC-307
Post Conviction Relief Petition. Affirms denial of post-conviction relief. After the post-conviction court denied Davis’ petition the first time, the COA affirmed much of the decision but remanded for further proceedings related to several of Davis’ claims. The post-conviction court again denied Davis relief and the COA affirmed.

Henry Coyne Woodward v. Kimberlee Ann Norton (NFP)
71A03-1207-DR-311
Domestic Relation. Affirms money judgment in favor of Norton for Woodward’s failure to transfer funds from a retirement account to her. Reverses and remands for proceedings the order finding Woodward in contempt because the judgment that Woodward pay Norton a fixed amount is not enforceable by contempt.

Benito D. Lesiak v. State of Indiana (NFP)
45A03-1204-CR-183
Criminal. Affirms conviction of reckless homicide, a Class C felony.

Dewayne Walker v. State of Indiana (NFP)
02A03-1204-CR-199
Criminal. Affirms conviction of Class B felony burglary, finding trial court did properly deny Walker's request to instruct the jury on the less-included offense of residential entry.

Kenneth Meer v. State of Indiana (NFP)
18A04-1204-CR-193
Criminal. Affirms convictions of rape, as a Class A felony, and criminal deviate conduct, as a Class A felony.

Miles A. Parker v. State of Indiana (NFP)
22A01-1204-CR-151
Criminal. Affirms 20-year aggregate sentence for convictions of three counts of burglary, each as a Class B felony, two counts of attempted burglary, each as a Class B felony, and one count of burglary as a Class C felony.
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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