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Opinions Nov. 17, 2010

November 17, 2010
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7th Circuit Court of Appeals
United States of America v. Rosalio Cruz-Rea and Zoyla Garcia-Rea
09-3591, 10-1355
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms convictions of and sentences of Cruz-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute 500 grams or more of cocaine, and convictions of and sentences for Garcia-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine. The government didn’t abuse its discretion in determining that the government laid sufficient foundation for an officer’s voice identification testimony under Fed. Evid. Rule 901(b)(5). Affirms in all other respects.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Randy Horton v. State of Indiana
48A04-1001-CR-89
Criminal. Affirms convictions of and sentences for six counts of Class A felony child molesting and three counts of Class C felony child molesting. The trial court did not abuse its discretion in admitting a videotaped interview of a child-witness under the recorded recollection exception to the hearsay rule, and his sentence is not inappropriate considering the nature of the offenses and Horton’s character.

Darrian Bunch v. State of Indiana
49A04-1002-CR-120
Criminal. Reverses two of the three convictions of and sentences for criminal confinement against the same victim because they constituted only one distinct confinement and the convictions violate the Indiana Double Jeopardy clause. Remands with instructions that those two convictions and sentences be vacated. Affirms his other convictions and sentences for robbery, burglary, intimidation, criminal confinement pertaining to other victims, and carrying a handgun without a license.

R.A. v. State of Indiana
71A04-1005-JV-340
Juvenile. Reverses order that R.A. be committed to the Indiana Department of Correction given the facts of the case and the statutory policy favoring the least-harsh disposition. Remands with instructions for the juvenile court to vacate its dispositional decree and order his placement in an appropriate rehabilitative setting.

The Village Pines at the Pines of Greenwood Homeowners' Assn. Inc. v. The Pines of Greenwood Homeowners' Assn. Inc.
41A01-0912-CV-568
Civil. Reverses trial court ruling as it erred when it concluded that the controlling ordinances did not require the creation of a master homeowners’ association and for the shared use of amenities located in The Pines development. Remands for the trial court to order the parties to engage in mediation.

Gregory M. Small v. Frank A. Rogers

29A02-1001-PL-30
Civil plenary. Reverses summary judgment in favor of Rogers in his complaint for contribution against Small for the payments of interest under his guaranties that Rogers made to banks. The evidence shows that Rogers paid only a portion of the amounts due under the promissory notes and far less than his proportionate share of the debts owed to the banks, so the right to contribution does not apply in this case.

Marty McConnell v. State of Indiana (NFP)
18A02-1004-CR-400
Criminal. Affirms sentence following guilty plea to five counts of Class C felony robbery and one count of Class C felony possession of cocaine.

Anthony J. Woods v. State of Indiana (NFP)
49A04-1003-CR-158
Criminal. Affirms conviction of Class B felony possession of cocaine within 1,000 feet of a family housing complex.

Curtis E. Cash v. State of Indiana (NFP)
67A05-1005-CR-288
Criminal. Affirms convictions of and sentence for Class B felony attempted burglary, Class C felony attempted burglary, and being a habitual offender.

Kyle E. Beals v. State of Indiana (NFP)
49A02-1004-CR-453
Criminal. Affirms probation revocation and order Beals serve his previously suspended sentence.

Lisa Burress v. Brad Wells (NFP)
82A01-1003-DR-128
Domestic relation. Affirms modification of primary physical custody in favor of Wells and holding Burress in contempt.

Robert Burch, et al. v. Vern Penner (NFP)
85A04-1003-PL-169
Civil plenary. Affirms denial of the Burches’ motion for relief from judgment.

Tracy Trimble v. State of Indiana (NFP)
49A04-1003-CR-163
Criminal. Affirms convictions of Class D felony domestic battery and Class D felony strangulation. Remands with instructions to amend the abstract of judgment.

K.W. v. L.W. (NFP)
54A05-1003-DR-181
Domestic relation. Affirms order awarding L.W. primary physical custody of the parties’ minor child.

Michele Michaylo and Paul Michaylo v. Event Experts (NFP)
02A04-1007-SC-432
Small claims. Affirms judgment against Michaylo and in favor of Event Express for $5,800 in a dispute over a corporate sponsorship agreement.

Steve D. Eller v. State of Indiana (NFP)

14A05-0912-PC-690
Post conviction. Affirms denial of petition for post-conviction relief.

Hirman Jackson v. State of Indiana (NFP)
79A02-1001-CR-85
Criminal. Vacates conviction of and sentence for possession of a schedule I controlled substance as a Class D felony and affirms conviction of and sentence for dealing in a schedule I controlled substance as a Class B felony. Remands for a determination of Jackson’s ability to reimburse the county in part for the costs of his representation.

Jared Beeler v. State of Indiana (NFP)

02A05-1002-CR-153
Criminal. Affirms sentence following guilty plea to Class C felony child molesting, Class C felony vicarious sexual gratification, and Class A felony attempted child molesting.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court granted one transfer and denied 11 for the week ending Nov. 12.
 

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  1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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