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Opinions Nov. 13, 2013

November 13, 2013
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Indiana Supreme Court
The following opinions were posted after IL deadline Tuesday
.
Jamar Washington v. State of Indiana
49S02-1212-CR-669
Criminal. Affirms trial court jury instruction regarding defense of another as the correct statement of law, holding that Washington’s tendered instruction that the court declined to use was not required. Remands for correction of the sentencing abstract to reflect that Washington was convicted of resisting law enforcement as a Class A misdemeanor rather than as a Class D felony.  

Billy Russell v. State of Indiana
49S04-1311-CR-741
Criminal. Affirms convictions for murder and Class B felony possession of a firearm by a serious violent felon. Finds the trial court did not err in refusing to give Russell’s tendered jury instruction assessing his claim of self-defense. Concludes that partially bifurcating the trial did not prejudice Russell.

Today's opinions
Indiana Supreme Court

Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and the Common Council of the City of Logansport
09S00-1307-PL-476
Civil plenary. Affirms trial court dismissal of a suit challenging the city’s planned public-private partnership to convert a coal-fired power plant to generate electricity by burning refuse. Justices held that the Indiana Public-Private Agreements statute does not require a local legislative body to adopt an enabling statute before it may issue requests for proposals or begin contract negotiations.


Indiana Court of Appeals
Robert Kuntz, Kunodu, Inc., and B-K Interests, LLC v. EVI, LLC
02A03-1301-PL-14
Civil plenary. Affirms order granting preliminary injunction based on trial court’s finding that Kuntz had violated the terms of his noncompete agreement. Reverses and remands the trial court extending the duration of the noncompete and awarding attorney fees to EVI. The COA points out a preliminary injunction is not a final judgment and is meant only to preserve the status quo as it existed prior to the dispute.

David Williams v. State of Indiana
67A01-1302-CR-87
Criminal. Affirms conviction and aggregate 99-year sentence for eight counts of Class A felony child molestation and once count of Class B felony incest. Finds Williams’ confession to police was voluntary and not coerced. Ruled the convictions for incest and child molesting do not constitute double jeopardy. Holds even though the trial court may have abused its discretion in considering Williams’ IRAS score as an aggravating factor, the 99-year sentence is not inappropriate.

Charles Cole v. State of Indiana
49A02-1308-CR-680
Criminal. Reverses an increase of bond from $2,500 surety to $10,000 surety on a Class D felony charge of possession of methamphetamine, holding that the increase was an abuse of discretion. No new evidence supported the increase that was twice as high as the maximum under local court rules, and the requirements for increasing bail under Ind. Code 35-33-8-5 were not satisfied.

State of Indiana v. Molly Gray
62A01-1303-CR-108
Criminal. Affirms on interlocutory appeal the trial court’s suppression of drug evidence collected after a drug-sniffing police dog indicated the presence of narcotics in a van pulled over in a traffic stop. The free-air sniff conducted by the canine was not incidental to the traffic stop and the officer lacked reasonable suspicion to justify increasing the duration of the stop.

Timothy W. Mackall, and Stephanie K. Mackall v. Cathedral Trustees, Inc., d/b/a Cathedral High School (NFP)
49A02-1304-CC-290
Civil collections. Affirms trial court award of $47,510 in attorney fees in favor of Cathedral.

In the Matter of E.B. (Minor Child), Child in Need of Services and R.K. (Mother) v. The Indiana Department of Child Services (NFP)
84A01-1303-JC-95
Juvenile. Affirms adjudication of E.B. as a child in need of services.

Billy Bulu Gercilus v. State of Indiana (NFP)
18A02-1303-CR-246
Criminal. Affirms conviction of two counts of Class D felony battery resulting in bodily injury and one count of Class A misdemeanor interfering with the reporting of a crime.

Tammy Price v. Review Board of the Indiana Department of Workforce Development and WC Fern Exposition Services(NFP)
93A02-1304-EX-369
Agency action. Affirms denial of unemployment benefits.
 
Zigfried Davis v. State of Indiana (NFP)
71A05-1303-CR-124
Criminal. Affirms conviction of Class D felony possession of cocaine.

Shaun A. Fry v. State of Indiana (NFP)
50A03-1305-CR-170
Criminal. Affirms in part and reverses in part convictions after a bench trial of Class D felony operating a vehicle while intoxicated endangering a person, Class A misdemeanor resisting law enforcement and Class C misdemeanor operating a vehicle without receiving a license. Vacates the felony conviction and remands for new trial because there is no evidence in the record that Fry knowingly, voluntarily and intelligently waived his right to a jury trial.  
 
Brenda Painter v. State of Indiana (NFP)
48A02-1304-CR-346
Criminal. Affirms 22-year aggregate sentence for conviction of two counts of Class B felony dealing in methamphetamine.


Indiana Tax Court issued no opinions by IL deadline. 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline .
 

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  3. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  4. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  5. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

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