Marilyn Odendahl for www.theindianalawyer.com

Although the Indiana Court of Appeals split over whether the jury instruction was erroneous, the panel was unanimous in upholding the defendant’s conviction for theft from Walmart.

Jimmy Wallen, Jr. was charged and convicted of theft, a Class D felony, after he and Athena Dulin, his girlfriend, were observed shoplifting electronics and clothing from Walmart.

He appealed, arguing the jury instruction impermissibly highlights specific evidence and presumes the state has proven each element of the alleged crime.

The majority on the Court of Appeals panel agreed.

“In particular, we find that the instruction is erroneous because it does not afford the jury an opportunity to determine whether the evidence revealing that merchandise was concealed in Dulin’s purse is proof that Wallen intended to deprive Walmart of its value or that he exerted unauthorized control over the property; instead, it prompts the jury to reach such a conclusion,” Judge Patricia Riley wrote in Jimmy Wallen Jr. v. State of Indiana, 79A02-1407-CR-469.

However, Judge John Baker dissented over the question of the jury instruction. He had a different interpretation of Matney v. State, 681 N.E.2d 1152, 1153 (Ind. Ct. App. 1997) reh’g denied; trans. denied, which the majority relied on to reach its conclusion.

Baker maintained unlike Matney, the jury in Wallen was not instructed that evidence of concealment plus removal constitutes prima facie evidence but rather just evidence of intent to deprive.

“In my view, there is a marked distinction between ‘prima facie evidence,’ which necessarily implies a presumption, and ‘evidence’ alone, which merely informs the jury of what facts may constitute evidence of intent,” Baker wrote.

Still the panel unanimously agreed there was overwhelming evidence from which the jury could have independently concluded that Wallen was taking items illegally from the store.

Marilyn Odendahl for www.theindianalawyer.com

Property owners along Lake Michigan will have another chance to make their arguments in a dispute over which part of the beach belongs to them and which belongs to the public.

The Indiana Court of Appeals overturned an order for summary judgment in LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., 46A05-1404-PL-146. The unanimous panel found the LaPorte Circuit Court had improperly granted summary judgment to the town.

Lakefront property owners filed a complaint against Long Beach after the municipality adopted a resolution in 2012 which set the boundary between the public and private beach. The landowners charged the town was unlawfully claiming rights to the lakefront.

After a hearing on pending motions, the trial court entered summary judgment in favor of the town. The court ruled the town’s resolution does not constitute a taking. Instead, the court found the matter of ownership is a pure question of law and more properly dealt with by the Indiana General Assembly or an appellate court with the state of Indiana as a party.

Lakefront owners responded by filing a motion for leave to file an amended complaint in order to add the state of Indiana as a defendant. The chronological case summary does not show the trial court having ruled on the motion but the property owners did appeal.

The Court of Appeals said the issue was whether the state should have been added or joined as a party to the proceedings under Indiana Trial Rule 19 prior to the rulings on the claims of the owners.

“… the trial court did not determine the ownership rights of the Lakefront Owners or public rights to the beach area at issue and thus did not rule on the substantive allegations set forth under Count I of the Lakefront Owners’ complaint,” Judge Elaine Brown wrote. “While the trial court stated that it did not reach that determination because it had determined there was no taking, we observe that the Town did not establish that the Lakefront Owners are precluded from requesting the court to determine their relative property rights notwithstanding whether the designated evidence may or may not establish as a matter of law that there was not an impermissible taking.”

Consequently, the Court of Appeals concluded the trial court should have joined the state as a party to the proceedings. Indeed, the panel noted even the town and the intervening defendants, Alliance for the Great Lakes and Save the Dunes, asserted the owners’ claims are actually against the state.

Yet, the court maintained that adding the state as a defendant does not mean the property owners have no separate claim against the town. The 2012 resolution is a policy for enforcement of the town’s public property ordinances in the disputed area, the appeals court held, and the owners are objecting to the town’s ordinances.
The Court of Appeals remanded for further proceedings with the state of Indiana to be added as a party.