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Opinions March 8, 2011

March 8, 2011
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The Indiana Supreme Court posted no opinions before IL deadline.

Indiana Court of Appeals

Lisa Gray v. State of Indiana
82A01-1005-CR-223
Criminal. Reverses Gray’s conviction of possession of marijuana as a Class A misdemeanor. She contended there was insufficient evidence that she constructively possessed the marijuana. Judge Cale Bradford dissents, writing that Gray was in close proximity to the marijuana and that it was in plain view, as officers had testified at trial.

Anderson Property Management LLC v. H. Anthony Miller, Jr. LLC.
43A03-1003-PL-239
Civil. Reverses trial court’s holding that the mediated agreement is enforceable and the trial court’s order that the parties execute and record the amendment to negative easement and perform their respective obligations of the mediated agreement. Also vacates trial court’s order that each party shall pay its own attorneys fees and instructs the trial court to consider this issue when it enters final judgment in this proceeding. Remands with instructions.

Mark Lesh v. Richard Chandler and Marilyn Chandler
44A05-1003-PL-197
Civil. Affirms trial court’s conclusion Lesh’s actions amounted to a private nuisance. Reverses trial court’s decision to extend the protective order dated April 26, 2006, because the proceedings on which that order was based were dismissed with prejudice by stipulation of the parties on Sept. 28, 2006. As the protective order was not in effect after Sept. 28, 2006, the finding that Lesh violated its terms is reversed. Remands for redaction of the language in Judgment Items C and G regarding the protective order. Also affirms the permanent injunction entered against Lesh, the contempt finding against Lesh, and the damages awarded in favor of the Chandlers.

Anna Quimby v. Becovic Management Group, Inc.
49A05-0912-CV-747
Civil. Affirms dismissal of Quimby’s wage claim against Becovic Management Group. She had assigned that claim to the Department of Labor, where it was resolved. Claimants who proceed under the Wage Claim statute submit their claim to the DOL rather than filing a complaint with the trial court. Immediately above her signature, the form filed with the DOL stated, “Pursuant to IC 22-2-9-5, I hereby assign to the Commissioner of Labor all my rights, title and interest in and to the above certified claim for processing in accordance with the provisions of IC 22-2-9-1, et seq.”

In the Matter of J.C., Alleged to be CHINS; K.M. and J.C. v. Indiana Dept. of Child Services, et al. (NFP)
49A02-1007-JC-878
Juvenile. Affirms CHINS determination and remands for corrections to juvenile court’s orders that improperly reflect that J.C. was removed from the home during the underlying proceedings.

Robert D. Baxton, Jr. v. State of Indiana (NFP)
82A01-1006-CR-294
Criminal. Affirms conviction of robbery as a Class B felony.

Joseph M. Ferry v. State of Indiana (NFP)
49A05-1006-CR-379
Criminal. Affirms conviction of Class A misdemeanor criminal conversion.

Glen Leroy Rusher v. State of Indiana (NFP)
48A02-1006-CR-656
Criminal. Affirms revocation of probation.

A.G. v. State of Indiana (NFP)
71A05-1007-JV-450
Juvenile. Affirms adjudication as a delinquent child for receiving stolen property, which would be a Class D felony if committed by an adult; and criminal trespass, which would be a Class A misdemeanor if committed by an adult.

Town of Highland and Highland Sanitary District v. Lee Lieberman, et al. (NFP)
45A05-1003-CT-178
Civil. Affirms denial of motion for summary judgment by Town of Highland and the Highland Sanitary District, and remands for trial.

Anthony Scott v. State of Indiana (NFP)
49A02-1007-CR-810
Criminal. Affirms Scott’s conviction of Class A misdemeanor resisting law enforcement.

Vincent Demus v. State of Indiana (NFP)
66A03-1008-CR-442
Criminal. Affirms convictions of Class D felony possession of marijuana, Class D felony resisting law enforcement, Class B misdemeanor reckless driving, and Class C misdemeanor operating a vehicle with a controlled substance in his body.

Mark Kennedy v. State of Indiana (NFP)
49A04-1005-CR-265
Criminal. Affirms convictions of attempted murder, a Class A felony; and carrying a handgun without a license, a Class A misdemeanor. Also affirms adjudication that found him to be a habitual offender.

L.H. v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)
93A02-1003-EX-327
Civil. Affirms decision of the review board to deny L.H.’s unemployment benefits.

Devon Walton v. State of Indiana (NFP)
32A05-1007-CR-483
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement by fleeing.

Willie J. Herman, Jr. v. State of Indiana (NFP)
02A03-1006-CR-359
Criminal. Affirms sentence for Class D felony possession of marijuana.

The Indiana Tax Court posted no opinions before IL deadline.
 

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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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