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Opinions March 25, 2013

March 25, 2013
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Indiana Court of Appeals
Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al.
55A01-1202-CT-53
Civil tort/malpractice. Affirms jury verdict in favor of the hospital, holding that Upham’s counsel failed to request an admonishment and therefore waived the argument that the court should have declared a mistrial because of a prospective juror’s comments that plaintiff’s counsel was motivated by money. There was no abuse of discretion in jury instructions or in the court’s limiting of discovery.  

Ronald G. Arnold and B. Candi Arnold v. Allen Robert Linnemeier and Kathy Sue Linnemeier (NFP)

53A04-1207-PL-368
Civil plenary. Affirms the trial court’s judgment in favor of the Linnemeiers which granted them an easement by prior use and an irrevocable license across the Arnolds’ land for purposes of entering and exiting.

Jesse R. Luckey v. State of Indiana (NFP)
34A04-1208-CR-399
Criminal. Reverses order revoking Luckey’s probation in two underlying cases arising from his convictions for possession of a controlled substance as a Class D felony, possession of marijuana as a Class D felony and possession of paraphernalia as a Class A misdemeanor. Ruled although the evidence was sufficient for the trial court to find probable cause that Luckey had committed the new offenses, it was insufficient to establish the commission of such crimes by preponderance of the evidence.

Aaron Brown v. State of Indiana (NFP)
49A02-1207-CR-546
Criminal. Affirms convictions of Class D felony possession of marijuana and Class A misdemeanor driving with a suspended license. Found the trial court did not abuse its discretion when it admitted the evidence obtained incident to Brown’s arrest.

Alejandro Gomez-Aviles v. State of Indiana (NFP)
49A02-1209-CR-728
Criminal. Affirms convictions of two counts of child molesting, each as a Class A felony; two counts of child molesting, each as a Class C felony; and four counts of sexual misconduct with a minor, each as a Class C felony. Found corpus delicti had been established so the admission of Gomez-Aviles videotaped confession did not constitute a fundamental error. Also ruled Gomez-Aviles did not carry his burden of demonstrating prosecutorial misconduct.

Rev. Carl Z. Liggins and The Board of Trustees of Mt. Olive Missionary Baptist Church, Inc. v. William Bagley, Raymond Gaines, Gregg Merriweather, Stevie Bonds, Curtis Godfre, et al. (NFP)
49A02-1203-CT-184
Civil tort.  Reverses trial court’s order directing Mount Olive Missionary Baptist Church to hold a general meeting to consider the retention of Rev. Liggins. Found the trustees did not fail to follow the procedures set out in the bylaws concerning the renewal or extension of the pastor’s contract because the bylaws did not give a procedure for how to handle a contract renewal or extension.

Jaime A. Herrera v. State of Indiana (NFP)

45A05-1208-PC-440
Post conviction. Affirms denial of Harrera’s petition for post-conviction relief. Ruled that Herrera’s proposed sentencing challenge was meritless and, therefore, he did not demonstrate his appellate counsel was ineffective.

Mark Kevin Liston v. State of Indiana (NFP)
45A05-1207-CR-385
Criminal. Dismisses Liston’s appeal of the trial judge’s order rescinding the referee’s order granting his petition for post-conviction relief. Liston did not request the trial court to certify its order for interlocutory appeal and did not request the Court of Appeals to accept jurisdiction.

Sherry L. Pruitt v. State of Indiana (NFP)

58A01-1206-CR-275
Criminal. Affirms the revocation of Pruitt’s probation and the order that she serve incarcerated the three years remaining on her sentences. Remands for the court to correct a clerical error and enter a modified abstract of judgment that lists both cause numbers under which the revocation was adjudicated.  
 

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  1. Two cops shot execution style in NYC. Was it first amendment protest, or was it incitement to lawlessness? Some are keeping track of the body bags: http://www.breitbart.com/big-government/2014/12/13/al-sharpton-leads-thousands-in-saturday-march-on-washington-dc/

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

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