Volume 39 Issue 7 February 17, 2012

Hampton v. State, No. 84S04-1103-PC-161, __ N.E.2d __ (Ind., Feb. 14, 2012).

When the evidence of the actus reus of the crime is entirely circumstantial, an instruction is required that “[i]n determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.” Pattern Instruction on the topic inappropriately has the jury rather than the judge determine whether evidence is all circumstantial, and mens rea evidence should not be subject to the special instruction. In this case, DNA evidence would appropriately have been considered as circumstantial.

Sanjari v. State, No. 20S03-1105-CR-268, __M N.E.2d __ (Ind., Feb. 16, 2012).

“Indiana Code Section 35-46-1-5 permits a separate class D felony conviction for nonsupport of each dependent child, but only one such offense may be enhanced to a class C felony where the unpaid support for one or more of such children is $15,000 or more.”

State v. Holtsclaw, No. 49A02-1108-CR-743, __ N.E.2d __ (Ind. Ct. App., Feb. 16, 2012).

State cannot appeal the denial of a motion to correct error, so that here motion to correct aimed at successful motion to suppress could not be appealed and appeal of suppression motion itself was untimely.

Bloomington Magazine, Inc. v. Kiang, No. 53A05-1012-SC-790, ___ N.E.2d ___ (Ind. Ct. App., Feb. 13, 2012).

The professional relationship between the trial court judge and attorney who served as the chairman of the judge’s election committee was not so remote in time so as to dispel the appearance of an impropriety such that a reasonable person would have a rational basis for doubting the judge’s impartiality.

Berryhill v. Parkview Hosp., No. 02A04-1108-SC-40, ___ N.E.2d ___ (Ind. Ct. App., Feb. 16, 2012).

In detaining an individual, “security guards ‘act[ed] according to’ Indiana Code Article 12-26, which governs the voluntary and involuntary treatment of mentally ill individuals, and ‘assist[ed] in the detention, care, and treatment of an individual alleged … to have a mental illness’ for purposes of Indiana Code Section 12-26-2-6(a)” and are entitled to immunity from the individual’s false imprisonment claim.



Hampton v. State, No. 84S04-1103-PC-161, __ N.E.2d __ (Ind., Feb. 14, 2012).

DICKSON, J.

            We affirm the denial of the defendant’s post-conviction claim of ineffective assistance of appellate counsel but hold that an instruction on the requirement of proof beyond a reasonable doubt does not obviate the necessity, where the conduct of the defendant constituting the commission of a charged offense is proven exclusively by circumstantial evidence, of an additional jury instruction advising the jury that proof by circumstantial evidence must be so conclusive and sure as to exclude every reasonable theory of innocence.

            . . . .

            In appealing a denial of post-conviction relief, the defendant has asserted a single claim: that his appellate attorney rendered constitutionally ineffective assistance of counsel by failing to assert on direct appeal that the trial court erred in refusing, over defense objections, to instruct the jury that “[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.” See Ind. Pattern Jury Instruction—Criminal 12.01 (Indiana Judges Association, 2d ed. 1991) (emphasis added).  [Footnote omitted.]  (This instruction has often previously been given using the word “hypothesis” instead of “theory,” but we favor “theory” as more understandable to jurors. See, e.g., 2 W.W. Thornton, Instructions to Juries §§ 2312–13 (1914).)  . . . .

            The Court of Appeals affirmed the denial of post-conviction relief, believing that the “instruction on proof beyond a reasonable doubt . . . nicely covered the issue and rendered harmless any potential error” in refusing the tendered instruction. Hampton v. State, 936 N.E.2d 1274, 1276–77 (Ind. Ct. App. 2010). Although we ultimately reject the defendant’s claim of post-conviction court error, we granted transfer to provide clarification for the bench and bar regarding the “reasonable theory of innocence” instruction because we disagree with the Court of Appeals that the giving of a conventional reasonable doubt instruction renders unnecessary the giving of the “reasonable theory of innocence” instruction.

            . . . .

            The importance of a “reasonable theory of innocence” instruction is deeply imbedded in Indiana jurisprudence. Nichols v. State, 591 N.E.2d 134, 136 (Ind. 1992) (citing Sumner v. State, 5 Blackf. 579 (Ind. 1841)). Our cases have long recognized the need for such an instruction where appropriate.  . . . “[T]his Court has never departed from the conviction that the ['reasonable theory of innocence'] standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect.” Spears, 272 Ind. at 638, 401 N.E.2d at 335.

            We note that a number of more recent American appellate decisions appear to place less emphasis on the need for similar instructions. See Irene Merker Rosenberg & Yale L. Rosen-berg, “Perhaps What Ye Say Is Based Only on Conjecture”—Circumstantial Evidence, Then and Now, 31 Hous. L. Rev. 1371, 1400–01 nn.121–22 (1995) (noting that at least twenty-nine states have eliminated a specific jury instruction on circumstantial evidence).  [Footnote omitted.] This trend sprang after the United States Supreme Court’s decision in Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954), in which the Court rejected a claim of reversible error for the refusal “to instruct [the jury] that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. at 139, 75 S. Ct. at 137, 99 L. Ed. at 166. Without extensive explanation, the Court concluded that “the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” Id. at 139–40, 75 S. Ct. at 137, 99 L. Ed. at 166. We understand Holland to hold that including an additional “reasonable theory of innocence” instruction is not required but not that it is constitutionally erroneous.

            . . . .

            We believe that discarding the “reasonable theory of innocence” jury instruction is unwise. While a criminal conviction may properly rest entirely upon circumstantial evidence, there is a qualitative difference between direct and circumstantial evidence with respect to the degree of reliability and certainty they provide as proof of guilt. Such a supplemental instruction is a safeguard urging jurors to carefully examine the inferences they draw from the evidence presented, thereby helping to assure that the jury’s reasoning is sound. Additionally, it serves to “reiterat[e] the magnitude of the ['proof beyond a reasonable doubt'] standard to juries when the evidence before them is purely circumstantial.” Nichols, 591 N.E.2d at 136. In this regard, the “reasonable theory of innocence” instruction informs the jury that if a reasonable theory of innocence can be made of the circumstantial evidence, then there exists a reasonable doubt, and the defendant is entitled to the benefit of that doubt.

            Such a “reasonable theory of innocence” instruction, when appropriate, is not satisfied by the instruction on reasonable doubt. The State argues that our statement in Nichols—that the “reasonable theory of innocence” instruction is a way of restating “proof beyond a reasonable doubt”—renders the instruction “duplicitous.”  [Footnote omitted.]  Appellee’s Br. at 12. To the contrary, providing the jury with an additional cautionary instruction in evaluating circumstantial evidence not only supports but further enhances the concept of requiring proof beyond a reasonable doubt. It admonishes the jury to tread lightly where the evidentiary gap between logical certainty and guilt is more tenuous. For these reasons, we find it altogether appropriate that juries receive, where appropriate, a “reasonable theory of innocence” instruction in addition to the standard reasonable doubt instruction.

B. Language of the Instruction

            This special advisement has traditionally been accomplished in Indiana by an instruction like the one rejected by the trial court in the present case. Language within Indiana Pattern Jury Instruction 12.01 provides: “Where proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.” Ind. Pattern Jury Instruction—Criminal 12.01 (emphasis added). Effective juror comprehension and application, however, are compromised by impediments in the instruction’s language—especially the uncertainties embedded in the phrases “proof of guilt” and “by circumstantial evidence only.”

            First, the instruction’s language—that it applies where proof of “guilt” is “circumstantial only”—is potentially confusing. “Proof of guilt” could require that any evidence which supports an individual element of the charged offense be circumstantial, or it could require that all the evidence related to all elements of a charge be circumstantial. Compare Spears, 272 Ind. at 636–40, 401 N.E.2d at 334–35 (finding sufficient absence of direct evidence to warrant “reasonable theory of innocence” instruction despite direct evidence that the defendant and the victim were fighting earlier in the evening and that the victim was later found unconscious in the hallway, and that he died from skull fractures likely caused when his head hit the floor), with Davenport v. State, 749 N.E.2d 1144, 1149–50 (Ind. 2001) (affirming refusal of “reasonable theory of innocence” instruction where victim died of strangulation and had thirty-nine injuries and witness observed defendant beating on the victim several hours earlier). In most criminal prosecutions, there is some direct evidence that the charged crime was committed by someone. Thus, if the phrase “by circumstantial evidence only” is construed to not require jurors to consider whether there exist reasonable alternative theories of innocence whenever the occurrence of a criminal offense is shown in part by direct evidence, then the instruction would rarely, if ever, be used. On the other hand, the mens rea element for a criminal offense is almost inevitably, absent a defendant’s confession or admission, a matter of circumstantial proof. Thus, requiring jurors to consider the possible existence of an alternate reasonable theory of innocence whenever proof of the mens rea element is circumstantial would lead to use of the instruction in most all criminal cases. See Spears, 272 Ind. at 639–40, 401 N.E.2d at 335 (requiring the “reasonable theory of innocence” instruction when circumstantial evidence is the exclusive proof of the actus reus [footnote omitted] but not when used to prove the mens rea: “To hold otherwise would require a circumstantial evidence instruction in every case involving a crime containing the element of intent. Unnecessary confusion would result from such a course.”).

            From our review of jurisdictions employing an instruction similar to our “reasonable theory of innocence” instruction, we find no consistent approach to resolving these issues.  . . . .

            . . . .

            These issues are not clarified by the present pattern instruction, which fails to clearly inform jurors whether the requirement of heightened scrutiny of circumstantial evidence applies only when there is a complete absence of direct evidence on every element of an offense, or when there is an absence of direct evidence with respect to a significant element or crucial component of guilt, or when there is an absence of direct evidence proving any single element of the charged statutory offense, or otherwise.

            Second, the instruction unnecessarily calls upon the jury to determine whether evidence of guilt is “circumstantial.” Such an evaluation is already the province of the trial judge in deciding whether such instruction is required in light of the nature of the evidence presented. Distinguishing between direct and circumstantial evidence as proof of a particular fact is a legal determination appropriate for judicial evaluation. It may require intricate legal analysis.

            . . . .

            C. Reformulating the Use and Language of the Instruction

            To preserve our historic recognition that juries in criminal cases should be reminded to use particular caution when considering whether to find guilt based solely on crucial circumstantial evidence, we conclude that a special instruction is appropriate, but we reformulate the manner of use and language of the instruction. First, we find it inappropriate to include language burdening the jury with the task of deciding whether to apply the reasonable theory of innocence standard. Whether an instruction is supported by the evidence is a matter for the trial court to determine, and it need not be reevaluated by the jury. Second, because Indiana jurisprudence recognizes the importance of such an instruction in certain cases involving circumstantial evidence but our case law reveals a reluctance to find reversible error for failure to give the instruction if there is substantial direct evidence of guilt, we elect to apply the approach taken in Spears and direct that the “reasonable theory of innocence” instruction is appropriate only where the trial court finds that the evidence showing that the conduct of the defendant constituting the commission of a charged offense, the actus reus, is proven exclusively by circumstantial evidence. As discussed above, to deny the availability of a “reasonable theory of innocence” instruction whenever there is any direct evidence of the fact that a criminal offense has occurred, however, could render the instruction unlikely ever to be used, but requiring the instruction whenever there is no direct evidence of any single element would compel its use in almost all criminal cases because mens rea is often shown only by circumstantial evidence.

            We thus hold that, when the trial court determines that the defendant’s conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.

            . . . .

            As proof of the defendant’s guilt with respect to the offense of rape, [footnote omitted] the DNA evidence requires the inferential step that intercourse was “compelled by force or imminent threat of force,” or otherwise without the victim’s consent without providing a basis upon which that inference may be made. See Ind. Code § 35-42-4-1(a). “Direct evidence is a proposition which is consistent only with either the proposed conclusion or its contradictory; circumstantial evidence is consistent with both the proposed conclusion and its contradictory.” Lyman Ray Patterson, The Types of Evidence: An Analysis, 19 Vand. L. Rev. 1, 5–6 (1965). (emphasis added). In this context, the State asserts that DNA found in the victim and matched to the defendant, if accepted by the jury, is consistent only with the State’s “proposed conclusion” that the defendant raped the victim. We disagree. This same evidence is equally consistent with the contradictory proposition that the defendant and the victim engaged in consensual intercourse. [Footnote omitted.]  To the extent that the DNA provided direct evidence of the defendant’s presence or relationship with the victim at or before the time the crimes were committed, it was not direct evidence of the defendant’s physical conduct comprising the actus reus of the charged offense of rape.

            The same analysis applies to the role of the DNA evidence with respect to the crimes of murder and criminal deviate conduct in this case. As to both offenses, the DNA evidence, while consistent with a conclusion that the perpetrator of these crimes was the defendant, is simultaneously consistent with a conclusion that the defendant was at some point in the presence of the victim but did not “kill” her or force her “to perform or submit to deviate sexual conduct.” Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-42-4-2 (criminal deviate conduct).

            Application of our analysis today leads us to conclude that the DNA evidence in the present case should be considered as circumstantial and not direct evidence of the defendant’s conduct comprising the physical components of each of the charged criminal offenses (actus reus).  . . . .

Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.

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Sanjari v. State, No. 20S03-1105-CR-268, __M N.E.2d __ (Ind., Feb. 16, 2012).

DICKSON, J.

            Often discussed under the general rubric of Indiana double jeopardy jurisprudence, we recognize “a series of rules of statutory construction and common law that are separate and in addition to the protections afforded by the Indiana Double Jeopardy Clause.” Spivey v. State, 761 N.E.2d 831, 834 (Ind. 2002). Among these are situations in which an “enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.” Richardson v. State, 717 N.E.2d 32, 56 (Ind. 1999) (Sullivan, J., concurring) (emphasis omitted). This principle is reflected in the statutory provision prohibiting the entry of judgment and sentence on separate counts charging both an offense and an included offense. See Ind. Code § 35-38-1-6. We generally consider claims of multiple sentencing enhancements as matters of statutory interpretation, Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010), and there is a “general rule against double enhancements absent explicit legislative direction.” Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007); see also Nicoson, 938 N.E.2d at 663 (stating that the general rule against double enhancement “remains intact”).

            The statutory provision defining the criminal offense of nonsupport of a dependent child states in relevant part:

A person who knowingly or intentionally fails to provide support to the person’s dependent child commits nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).

Ind. Code § 35-46-1-5(a) (emphasis added). This language establishes the class C felony as an enhancement of the Class D felony when the “total amount of unpaid support” equals or exceeds $15,000. Because the second sentence begins “the offense,” thus relating back to the class D felony defined in the first sentence, the class C felony has no independent meaning without the underlying class D offense of “knowingly or intentionally fail[ing] to provide support.” See State v. Land, 688 N.E.2d 1307, 1310 (Ind. Ct. App. 1997) (analyzing a previous version of Indiana Code Section 35-46-1-5(a) and reaching the same conclusion), trans. denied. Hence, the elements of the class C offense include the elements of the class D offense. That offense is singular in nature penalizing the knowing or intentional “fail[ure] to provide support to the person’s dependent child” thus “commit[ing] nonsupport of a child.” Id. (emphasis added). But that same offense may incur stiffer penalty—that is, it may be enhanced—if the unpaid support due and owing equals or exceeds $15,000. See id. The accumulation of support arrearage is not, in and of itself, a separate offense. See Land, 688 N.E.2d at 1311 (“Our statute criminalizes the present act of failing to provide child support and enhances it if the amount due and owing at the time of the underlying act is in excess of $1[5],000. Our statute does not criminalize the failure to pay past due support.”).

            Before 1996, the criminal nonsupport statute provided only for a class D felony. In 1996, the legislature then added the second sentence which read as follows: “However, the offense is a Class C felony if the amount of unpaid support that is due and owing is at least ten thousand dollars ($10,000).” P.L. 213-1996, sec. 4, 1996 Ind. Acts 2658. Under this version, the amount “due and owing” is linked directly to the underlying offense, nonsupport of a dependent child. The Court of Appeals, in construing the language of the 1996 version of the statute, noted this distinction in State v. Moore, 688 N.E.2d 917, 918 (Ind. Ct. App. 1997). In Moore, the State charged the defendant with multiple class C felonies based upon “the aggregate amount in arrears for all of [Moore's] children.” Id. The trial court dismissed the charges and the Court of Appeals affirmed because the support arrearage did not reach the minimum amount “with respect to any individual child.” Id. In response to the State’s argument that the arrearage should be aggregated, the court stated:

[T]he language of the statute does not support this construction. [Indiana Code Section] 35-46-1-5(a) makes only one reference as to whom the support is owed: “the person’s dependent child.” Since the legislature declined to mention the term “children” with regard to the Class “C” felony, it is not appropriate to incorporate the word here.

Id. (emphasis added).

            In 2001 the legislature again amended the statute by inserting the words “total” and “for one or more children.”2 P.L. 123-2001, sec. 4, 2001 Ind. Acts 575.  [Footnote omitted.] The specification “for one or more children” thus made clear that the enhancement was not limited to the amount of arrearage “per child” but, instead, required the aggregation of the arrearage for all of a defendant’s dependent children. The addition of the modifier “total” before “amount” similarly indicates that the General Assembly intended the defendant’s entire support arrearage to be considered as one single enhancing circumstance for purposes of elevating the offense from a class D to a class C felony. The statute thus provides that a defendant will be subject to conviction for class C felony nonsupport if the amount owed, viewed as an aggregate of all of the defendant’s unpaid support for all dependent children, is $15,000 or more.  [Footnote omitted.]

            We conclude that class C felony nonsupport of a dependent child under Indiana Code Section 35-46-1-5(a) is an enhancement of the class D offense under that same section. The language of the statute authorizes conviction for nonsupport of a dependent child as a class C felony only when the “total amount of unpaid support that is due and owing for one (1) or more children” is at least $15,000. Ind. Code § 35-46-1-5(a). We construe this to mean that the enhancement from a D felony to a C felony is triggered by the existence of an aggregate support arrearage totaling “at least fifteen thousand dollars ($15,000),” regardless of the number of children. Id. In other words, the enhancement to a class C felony requires that every dollar over and above the $15,000 threshold will be included as the basis for the same class C felony. Id.

            This very same factor, the existence of aggregate unpaid support of $15,000 or more, if used to enhance a conviction of nonsupport for one dependent child from a class D felony to a class C felony, may not also be used to enhance a second class D nonsupport conviction with respect to another child without further punishing the defendant “for the very same behavior or harm” to which he is already subject to punishment by the first enhancement. Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring) (emphasis omitted); Spivey, 761 N.E.2d at 834. Our analysis and holding is not affected by whether a defendant was ordered to pay child support in a single regular sum applicable in aggregate to multiple children (so-called “in gross” support).

            The State’s contention—that the amount of unpaid support need not be aggregated but may be attributed to individual dependent children and, if $15,000 or more per child, may warrant a separate class C felony enhancement for each such child—is not presented by the facts of this case. The class C felony offenses charged here, and on which the jury was instructed and returned its verdict, did not segregate and identify different amounts of unpaid support totaling $15,000 or more for each child. Based on the charges as expressed in the jury instructions, it is clear that the same behavior or harm (“total amount of support due and owing for one or more children is at least fifteen thousand ($15,000.00) dollars,” Appellant’s App’x at 895, 897, 916, 918) was used to enhance both of the defendant’s D felony convictions to C felonies. For future clarification, however, we do not consider the attribution of separate $15,000 portions of the aggregate arrearage to separate dependent children a proper basis for seeking separate class C felony convictions as to each child. Such a technique might avoid the statutory construction rule of Richardson and Spivey proscribing multiple punishments for the same behavior or harm. But this prosecutorial maneuver would not satisfy the statutory basis for a class C felony nonsupport conviction, which requires that the aggregate, the “total” amount, of unpaid support for all of the defendant’s dependent children, whether one or more, equal or exceed $15,000.

            In this appeal, the defendant has challenged the trial court’s judgment imposing two class C felony convictions for nonsupport of a dependent child. Finding the judgment to be erroneous, we vacate it and remand this case to the trial court to enter a new judgment on the jury verdicts, with the nonsupport conviction as to one child to be entered as a class D felony and the nonsupport conviction as to the other child, as enhanced by the accumulated arrearage totaling $15,000 or more, to be entered as a class C felony, and to resentence the defendant accordingly. As noted above, we summarily affirm the decision of the Court of Appeals on all other issues.

Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.

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State v. Holtsclaw, No. 49A02-1108-CR-743, __ N.E.2d __ (Ind. Ct. App., Feb. 16, 2012).

BAILEY, J.

            . . . On November 3, 2010, Holtsclaw moved to suppress the chemical tests that supported his charges. The trial court held a hearing on Holtsclaw’s motion on February 8, 2011, and granted it on May 23, 2011. The State then filed a motion to correct error on June 21, 2011 that the trial court denied on July 25, 2011.

            On August 16, 2011, the State dismissed all charges against Holtsclaw.  [Footnote omitted.]  On August 18, 2011, the State filed its notice of appeal. The State appeals from both the trial court’s order granting Holtsclaw’s motion to suppress and the trial court’s order denying its motion to correct error.

Discussion and Decision

            Holtsclaw argues that the State’s appeal should be dismissed because the State is not permitted to appeal the denial of a motion to correct error, and its appeal of the trial court’s order granting the motion to suppress is untimely. The State may appeal from criminal proceedings only when authorized by statute. . . . .

            The statute governing the authority of the State to appeal in criminal matters provides:

Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state in the following cases:

(1) From an order granting a motion to dismiss an indictment or information.

(2) From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.

(3) From an order granting a motion to correct errors.

(4) Upon a question reserved by the state, if the defendant is acquitted.

(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.

(6) From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(A) the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof

is withheld until after judgment;

(B) the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or

(C) the remedy by appeal after judgment is otherwise inadequate.

I.C. § 35-38-4-2 (emphasis supplied).

            Here, the trial court granted Holtsclaw’s motion to suppress on May 23, 2011, which eventually led to the dismissal of all charges. This order was therefore a final judgment that the State could have appealed because “[a] trial court’s grant of a defendant’s motion to suppress is ‘tantamount to a dismissal of the action’ and is ‘appealable as a final judgment under subsection 5’ of Indiana Code Section 35-38-4-2.” State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009) (quoting State v. Snider, 892 N.E.2d 657, 658 (Ind. Ct. App. 2008)). The precise timing of the dismissal of Holtsclaw’s charges makes no difference because “[w]hether there is a final, appealable order is a question of law and not delegated or left to the discretion of a party.” Id.

            Rather than immediately appealing the suppression of evidence, the State opted to file a motion to correct error, and when that motion was denied, the State sought to appeal both the denial of the motion to correct error and the order granting the motion to suppress. However, the language of Indiana Code section 35-38-4-2 only confers on the State the authority to appeal an order granting a motion to correct error. It does not confer the authority to appeal from the denial of a motion to correct error.  . . . Because we must strictly construe the statute, we cannot conclude that the State has the authority to appeal the denial of its motion to correct error in this case.  [Footnote omitted.]

            Without this authority, the State had to file its notice of appeal within thirty days of the trial court’s suppression order. See Ind. App. R. 9(A)(1). The State correctly points out that “if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.” Id. However, we disagree that this provision “triggered anew” the thirty day period in which the State could appeal the trial court’s suppression order. Appellant’s Reply Br. p. 4. The thirty additional days provided for in Appellate Rule 9(A) refers to the additional time a party has to appeal the trial court’s order on the motion to correct error. As we have already discussed, the State has no authority to appeal the denial of its motion to correct error in this case.

            The trial court granted Holtsclaw’s motion to suppress on May 23, 2011. The State filed its notice of appeal of this order on August 18, 2011, well after the thirty day deadline. The State’s appeal is therefore untimely and must be dismissed. See Ind. App. R. 9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited”).

DARDEN, J., concurs.

BAKER, J., dissents with opinion:

            Here, the basis for the State’s appeal is the final judgment with regard to the trial court’s granting of the motion to suppress because it effectively ended the prosecution against Holtsclaw. Rather than filing an immediate appeal, the State sought to resolve the issue by filing a motion to correct error. And once the trial court denied the motion to correct error, it is my view that the time for pursuing the appeal began anew, and a Notice of Appeal was required within thirty days to commence the appeal. That is precisely what the State did in this instance when it filed the Notice of Appeal on August 19, 2011, after the trial court had denied the motion to correct error on July 25. Appellant’s App. p. 8, 47, 70.

            I see nothing in Indiana Code section 35-38-4-2 stating—or even implying—that the language of Appellate Rule 9 should not apply to appeals initiated by the State.  [Footnote omitted.] In my view, foreclosing the State from seeking redress through a more direct route, such as filing a motion to correct error in circumstances such as these, is simply not a sound application of the language embodied in Indiana Code section 35-38-4-2.

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Bloomington Magazine, Inc. v. Kiang, No. 53A05-1012-SC-790, ___ N.E.2d ___ (Ind. Ct. App., Feb. 13, 2012).

Brown, J.

Bloomington Magazine, Inc. (“Bloom”) appeals the trial court’s order denying its Verified Motion to Set Aside Judgment in Trial Court pursuant to Indiana Trial Rule 60(B)(2), 60(B)(3), or alternatively 60(B)(8) (the “Motion to Set Aside”), entered on January 4, 2010, in favor of Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees, Inc. (“Mikado” and “Truffles,” respectively, and collectively, “Kiang”). Bloom raises three issues one of which we find dispositive and which we consolidate and restate as whether the court erred in denying Bloom’s Motion for Change of Venue from Judge / Motion for Disqualification/Recusal (“Motion to Recuse”) and Motion to Set Aside. We reverse and remand.

….

…Bloom’s Motion to Recuse requests that Judge Haughton recuse herself from the hearing on the Motion to Set Aside and notes that the Motion to Set Aside “is based on the trial court’s failure to disclose a political relationship with opposing counsel” and thus would require examination of such failure. Appellant’s Appendix at 49. Both motions also cite to Indiana Code of Judicial Conduct Rule 2.11 as the underlying basis for recusal. Accordingly, the analysis in answering these questions applies with equal force in both instances. We will first examine the court’s denial of Bloom’s Motion to Recuse and will subsequently examine, to the extent necessary, its denial of Bloom’s Motion to Set Aside pursuant to Ind. Trial Rule 60(B).

A ruling upon a motion to recuse rests within the sound discretion of the trial judge and will be reversed only upon a showing of abuse of that discretion. In re Estate of Wheat, 858 N.E.2d 175, 183 (Ind. Ct. App. 2006) (citing In re Guardianship of Hickman, 805 N.E.2d 808, 814 (Ind. Ct. App. 2004), trans. denied). An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it. Id. When reviewing a trial judge’s decision not to disqualify herself, we presume that the trial judge is unbiased. Id. “In order to overcome that presumption, the appellant must demonstrate actual personal bias.” Id. (quoting Hickman, 805 N.E.2d at 815). In addition, the mere appearance of bias and partiality may require recusal if an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge’s impartiality. Patterson v. State, 926 N.E.2d 90, 94 (Ind. Ct. App. 2010). Upon review of a judge’s failure to recuse, we will assume that a judge would have complied with the obligation to recuse had there been any reasonable question concerning impartiality, unless we discern circumstances which support a contrary conclusion. Hite v. Haase, 729 N.E.2d 170, 176 (Ind. Ct. App. 2000) (quoting Moore v. Liggins, 685 N.E.2d 57, 63 (Ind. Ct. App. 1997)); see also Leisure v. Leisure, 589 N.E.2d 1163, 1169 (Ind. Ct. App. 1992), aff’d in part and rev’d in part, 605 N.E.2d 755 (Ind. 1993).

Ind. Trial Rule 79(C) governs the disqualification or recusal of a judge and provides:

A judge shall disqualify and recuse whenever the judge, the judge’s spouse, a person within the third degree of relationship to either of them, the spouse of such a person, or a person residing in the judge’s household:

(1) is a party to the proceeding, or an officer, director or trustee of a party;

(2) is acting as a lawyer in the proceeding;

(3) is known by the judge to have an interest that could be substantially affected by the proceeding; or

(4) is associated with the pending litigation in such fashion as to require disqualification under the Code of Judicial Conduct or otherwise.

Canon 2 of the Indiana Code of Judicial Conduct commands: “A Judge Shall Perform the Duties of Judicial Office Impartially, Competently, and Diligently.” Ind. Judicial Conduct Rule 2.11 governs the disqualification of judges and provides in part:

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding. . . .

Also, Rule 2.11 contains comments which are provided for “guidance regarding the purpose, meaning, and proper application of the Rules” and to “identify aspirational goals for judges,” Ind. Code of Judicial Conduct, Scope at 3-4, including:

[1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term “recusal” is used interchangeably with the term “disqualification.”

[2] A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

* * * * *

[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

Ind. Code of Judicial Conduct Rule 2.11 cmt. 1-2, 5.

Bloom argues that “[i]f any question is presented as to impartiality, the court should err on the side of recusal,” and cites to a discussion penned by Chief Justice Shepard regarding the case of Tyson v. State, 622 N.E.2d 457 (Ind. 1993). Appellant’s Brief at 15. Bloom argues that “[w]hile the facts in Tyson differed from the facts in the present case, Tyson is instructive of the standard that should be observed in considering recusal when impartiality may be questioned,” which it cites as follows:

“[T]he question is not whether the judge’s impartiality is impaired in fact, but whether there exists a reasonable basis for questioning the judge’s impartiality.” A judge has a duty to promote public confidence in the impartiality of the judiciary. [Tyson, 622 N.E.2d at 459]. “[A] judge who sits on a case notwithstanding legitimate grounds for recusal can damage public confidence in his impartiality for years to come.” Id. at 460. “Indiana practice has always leaned toward recusal where reasonable questions about impartiality exist.” Id. “In a close case where impartiality might reasonably be questioned, a judge must recuse.” Id.

Id.

Bloom argues that Abrams was not aware of the relationship between Grodner and Judge Haughton in advance of the trial, that this relationship was relevant to him and presented questions to him about impartiality, that he has “asserted that had the fact been known he would have requested a new judge prior to the trial,” and that “[g]iven the nature of the issues raised, a reasonable question as to impartiality is presented concerning the propriety of whether the trial judge should have made a determination on the Motion to Set Aside” and thus “recusal would have been proper for consideration” of that motion. Id. at 16. Bloom also notes that Judge Haughton had personal knowledge of her relationship with Grodner and cites to her statements at the hearings in which “the court discussed the relationship and at one point in the hearing on December 2, 2010, indicated that she felt like she was testifying.” Id. (citing Appellant’s Appendix at 140).

Kiang argues that “[t]wo important distinctions” exist between this case and the matter in Tyson, namely that “in this case there are no allegations of ex-parte communications and the request for recusal was made after the order was entered.” Appellees’ Brief at 9. Kiang focuses on the Code’s requirement that a judge need only “disqualify herself from a proceeding [] where her impartiality ‘might reasonably be questioned,’” and argues that “Bloom has not shown that an objective person, knowledgeable of all the circumstances would have a reasonable basis for doubting the judge’s impartiality.” Id. Kiang argues that “[i]n fact, Bloom and his counsel admitted there was no evidence the judge’s order was the result of bias” and that “Bloom failed to demonstrate that the judge did anything improper.” Id.

The crux of Bloom’s contention is that Attorney Grodner’s position as chairman of Judge Haughton’s 2008 election campaign presented a situation such that her impartiality during trial might reasonably be questioned, that her failure to disclose this information in advance of trial was to be the subject of the December 2, 2010 hearing on Bloom’s Motion to Set Aside, and that accordingly she should have granted its Motion to Recuse in advance of that hearing. In evaluating whether Judge Haughton abused her discretion in denying Bloom’s motion, we find certain cases, discussed below, instructive.

First, decisions from at least one court have made the proximity in time in which an attorney serves on a judicial campaign committee to the current matter the relevant inquiry in determining whether a trial court judge should grant a motion to disqualify. In Neiman-Marcus Grp., Inc. v. Robinson, the Florida District Court of Appeal, Fourth District, held that “where a judge selects an attorney to serve in the special role of campaign treasurer in an election campaign, and the campaign is not remote in time from the date the relationship is revealed to the opposing party, disqualification is warranted.” 829 So.2d 967, 968 (Fla. Dist. Ct. App. 2002). In that case, at the conclusion of a summary judgment hearing, “the trial judge informed the parties that the Respondents‟ attorney served as his campaign treasurer in his reelection campaign,” and the petitioners moved for disqualification of the judge. Id. The trial court denied the motion, noting that “disqualification wasn’t warranted since the judge’s campaign ended before the motion for disqualification was filed.” Id.

On appeal, the court began its analysis by recognizing previous precedent that “an attorney’s involvement with the reelection committee of a judge’s ongoing campaign may be grounds for disqualification of the judge,” but it disagreed that a bright line between ongoing and concluded campaigns exists. Id. (citing Caleffe v. Vitale, 488 So.2d 627 (Fla. Dist. Ct. App. 1986)). The court agreed with another Florida decision that “disqualification ‘for a period of time, perhaps two years, until . . . considering all the circumstances . . . , [the judge’s] impartiality cannot reasonably be questioned,’” was appropriate “guidance” that trial judges should follow in considering motions to disqualify. Id. (citing Barber v. Mackenzie, 562 So.2d 755 (Fla. Dist. Ct. App. 1990), rev. denied, 576 So.2d 288 (Fla. 1991) (quoting Fla. Sup.Ct. Comm. on Stds. of Conduct Concerning Judges, Op. 84-23 (Oct. 26, 1984))). The court ordered the trial judge on remand to enter an order of disqualification, noting that “[h]ere, a matter of days separated the conclusion of the campaign and the date the judge revealed the basis for disqualification,” and that therefore “the relationship was not so remote in time as to dispel any appearance of impropriety.” Id.

In so holding, the court distinguished Garcia v. Am. Income Life Ins. Co., which held that “no error is shown in the denial of plaintiffs‟ post-trial motion to disqualify the trial judge” based upon the fact that defense counsel’s wife was the trial court judge’s campaign manager in the judge’s last re-election campaign “because the subject campaign was four years prior to the motion to disqualify in this case, and, thus, was too remote in time to engender a well-grounded fear by the plaintiffs that they would not receive a fair trial or hearing at the hands of the judge.” 664 So.2d 301, 302 (Fla. Dist. Ct. App. 1995), rev. denied, 673 So.2d 29 (Fla. 1996); see Neiman-Marcus, 829 So.2d at 969. See also Gluth Bros. Const., Inc. v. Union Nat. Bank, 548 N.E.2d 1364, 1368-1369 (Ill. App. Ct. 1989) (holding that trial judge was not required to recuse from a matter in which one of the parties’ litigants had served as his campaign manager nearly six years previous and examining Caleffe, 488 So.2d at 629), appeal denied, 553 N.E.2d 395 (Ill. 1990).

Here, we find that the professional relationship between Judge Haughton and Attorney Grodner, in which Grodner served as the chairman of Judge Haughton’s 2008 election committee, was not so remote in time so as to dispel the appearance of an impropriety such that a reasonable person would have a rational basis for doubting her impartiality. We find particularly relevant that Grodner’s appearance in this matter was filed in February 2009, which was three months following the election at issue. Despite the fact that the Motion to Recuse was filed in August 2010, that motion requested recusal from a Trial Rule 60(B) hearing concerning Judge Haughton’s failure to recuse herself from a hearing taking place months earlier, in November 2009, at which Attorney Grodner had represented Kiang. Also, the chronological case summary reveals that following the filing of his appearance and leading up to the bench trial, Grodner filed documents in this matter in Judge Haughton’s court in March 2009, April 2009, June 2009, and August 2009. We also note that the Motion to Recuse itself was filed within two years of the 2008 election.

Thus, we conclude that the trial court abused its discretion by denying Bloom’s Motion to Recuse from hearing the Motion to Set Aside, and accordingly we remand for a hearing on Bloom’s Motion to Set Aside to be heard by a special judge in accordance with Ind. Trial Rule 79. [Footnote omitted.]

For the foregoing reasons, we reverse the court’s denial of Bloom’s Motion to Recuse, and we remand for proceedings consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., and BAILEY, J., concur.

 

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Berryhill v. Parkview Hosp., No. 02A04-1108-SC-40, ___ N.E.2d ___ (Ind. Ct. App., Feb. 16, 2012).

Crone, J.

Case Summary

Raymond Dale Berryhill, who had suffered a stroke and other health problems, became agitated and fought with his wife. His family persuaded him to go to the emergency room at Parkview Hospital (“Parkview”), where he voluntarily checked himself in and underwent some medical tests. Berryhill became loud and aggressive. Berryhill’s physician was concerned that he might be a danger to himself or others, so he ordered him to be taken to a secured room and sedated. Two Parkview security guards tried to calm Berryhill down, but he resisted and demanded to go home, so they escorted him to the secured room and placed him in restraints. After Berryhill’s outburst, his wife filed an application for Berryhill to be detained and examined at Parkview Behavioral Health, from which he was released two days later.

Berryhill sued Parkview, alleging that the security guards’ actions constituted false imprisonment. The trial court concluded that Parkview was immune from liability based on a statute that covers persons who assist in detentions. Berryhill now appeals, claiming that the immunity statute does not apply because he was not detained for purposes of the statute until after his wife filed the application for detention. We disagree with Berryhill and affirm the trial court’s judgment.

….

The gist of Berryhill’s claim against Parkview is false imprisonment, which has been defined as “the unlawful restraint upon one’s freedom of movement or the deprivation of one’s liberty without consent.” Earles v. Perkins, 788 N.E.2d 1260, 1265 (Ind. Ct. App. 2003). [Footnote omitted.]  Berryhill argues that the trial court erred in finding that “[t]here was very little evidence submitted by either party” regarding his alleged attempt to leave the hospital before he was restrained by the security guards. Appellant‟s App. at 23. We agree with Berryhill on this point. Kay testified that Berryhill “was going to leave” the hospital, Tr. at 10, as did one of the security guards, and Berryhill swore out an affidavit to this effect. Parkview did not offer any contrary evidence. [Footnotes omitted.]   As such, the evidence is undisputed that Berryhill attempted to leave the hospital but was restrained by Parkview’s security guards.

The question then becomes whether Berryhill was unlawfully restrained. [Footnote omitted.]   After Berryhill’s outburst in the emergency room, Kay signed an application for detention pursuant to Indiana Code Section 12-26-5-1, which says:

(a) An individual may be detained in a facility for not more than seventy-two (72) hours under this chapter, excluding Saturdays, Sundays, and legal holidays, if a written application for detention is filed with the facility. The individual may not be detained in a state institution unless the detention is instituted by the state institution.

(b) An application under subsection (a) must contain both of the following:

(1) A statement of the applicant’s belief that the individual is:

(A) mentally ill and either dangerous or gravely disabled; [Footnote omitted.]   and

(B) in need of immediate restraint.

(2) A statement by at least one (1) physician that, based on:

(A) an examination; or

(B) information given the physician;

the individual may be mentally ill and either dangerous or gravely disabled.

Indiana Code Section 12-26-2-6 provides:

(a) A person who without malice, bad faith, or negligence acts according to this article and:

(1) participates in proceedings for the detention or commitment of an individual; or

(2) assists in the detention, care, and treatment of an individual alleged or adjudged to have a mental illness;

is immune from any civil or criminal liability that might otherwise be imposed as a result of the person’s actions.

(b) The immunity provided by this section does not permit a person to do either of the following:

(1) Physically abuse an individual.

(2) Deprive an individual of a personal or civil right except according to this article.

In its amended judgment, the trial court determined that Parkview was entitled to immunity from Berryhill’s false imprisonment claim pursuant to Indiana Code Section 12-26-2-6 because Berryhill failed to establish that Parkview (through its employees, the security guards) acted with malice, bad faith, or negligence, presumably while “act[ing] according to” Indiana Code Article 12-26 and “assist[ing] in the detention, care, and treatment” of Berryhill.

Berryhill does not challenge the legality of the detention itself. [Footnote omitted.]   Rather, Berryhill contends that he was illegally restrained before he was detained pursuant to Indiana Code Section 12-26-5-1. More specifically, Berryhill argues that he could not have been detained before the application for detention was filed, which did not occur until after he was restrained by the security guards.12 In other words, Berryhill argues that a person cannot be considered detained for purposes of Indiana Code Section 12-26-5-1 until after an application is filed. Similarly, Berryhill contends that Parkview is not entitled to immunity pursuant to Indiana Code Section 12-26-2-6 because he was restrained before he was detained for purposes of Indiana Code Section 12-26-5-1. We disagree.

We have said that our objective when construing a statute

is to ascertain and give effect to the legislative intent and to interpret the statute in such a manner as to prevent absurdity and to advance public convenience. In so doing, we must be mindful of the purpose of the statute, as well as the effect of such an interpretation. We presume that our legislature intended its language be applied in a logical manner consistent with the underlying goals and policy of the statute.

KPMG, Peat Marwick, LLP v. Carmel Fin. Corp., 784 N.E.2d 1057, 1060 (Ind. Ct. App. 2003) (citations omitted). We have also said that

[s]tatutes relating to the same general subject matter are in pari materia and should be construed together so as to produce a harmonious statutory scheme. Courts are not bound to adopt a construction that would lead to manifest absurdity in order that the strict letter of the statute may be adhered to. They will rather look to the intention of the legislature, as gathered from the import of the whole act, and will carry out such intention as thus obtained.

Homestead Fin. Corp. v. Southwood Manor LP, 956 N.E.2d 183, 184-85 (Ind. Ct. App. 2011) (citation omitted). Moreover, “[i]t can be just as important to recognize what a statute does not say as to recognize what it does say.” Town of Dyer v. Town of St. John, 919 N.E.2d 1196, 1202 (Ind. Ct. App. 2010). The construction of a statute is a pure question of law. Pannell v. Penfold, 848 N.E.2d 1130, 1132 (Ind. Ct. App. 2006), trans. denied.

Reduced to its essence, Indiana Code Section 12-26-5-1(a) says that “[a]n individual may be detained in a facility for not more than seventy-two (72) hours … if a written application for detention is filed with the facility.” (Emphasis added.) Notably, the statute does not say that an individual may not be detained until after a written application for detention is filed. Indeed, the statute does not specify when the written application must be filed. In this case, the application for detention was based primarily on the very behavior that led to Berryhill being restrained by Parkview’s security guards. We cannot conclude that the legislature intended to leave healthcare facilities and their employees powerless to detain individuals who are mentally ill and either dangerous or gravely disabled before an application for detention is filed. As such, without deciding precisely when Berryhill was detained for purposes of Indiana Code Section 12-26-5-1, we conclude that the security guards “act[ed] according to” Indiana Code Article 12-26, which governs the voluntary and involuntary treatment of mentally ill individuals, and “assist[ed] in the detention, care, and treatment of an individual alleged … to have a mental illness” for purposes of Indiana Code Section 12-26-2-6(a). There is no evidence that the guards acted with malice, bad faith, or negligence (or physically abused Berryhill or deprived him of a personal or civil right except according to Indiana Code Article 12-26), and therefore we conclude that Parkview is entitled to immunity from Berryhill’s false imprisonment claim. Accordingly, we affirm the trial court’s judgment in favor of Parkview. [Footnote omitted.]

Affirmed.

MAY, J., and BROWN, J., concur.

 

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