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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. "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

  2. 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."

  3. 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.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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