availability defense in Indiana

2013Because of the availability of the doctrine of collateral estoppel, we choose not to extend the Richardson actual evidence test to this situation.” Buggs, 844 N.E.2d at 201-02 .

2013Because of the availability of the doctrine of collateral estoppel, we choose not to extend the Richardson actual evidence test to this situation.” Buggs, 844 N.E.2d at 201-02 .

2007Fowler, 829 N.E.2d at 469 .

2006As we observed in Fowler , although federal and state evidence *468 rules "offer guidance as to the meaning of 'available for cross-examination’ as Crawford uses that term” we nonetheless "cannot import the availability doctrine of Rule 804(a) wholesale into Crawford.” Fowler, 829 N.E.2d at 469 . 5 .

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1996Ind.Code 35-42-4-3(b) (1995 supp.) states in pertinent part: A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a class C felony. [2] The majority correctly notes that a last-minute amendment to an information is not allowed if it would "substantially prejudice a defendant in terms of his opportunity to prepare his defense," citing Todd v. State, 566 N.E.2d 67, 69 (Ind.Ct.App.

1996Sharp v. State, 534 N.E.2d 708 , (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 (1990) (emphasis added).

1993The court held, "A defect is material only if the prosecutor's amendment affects the availability of a defense or the applicability of evidence which existed under the original information." Id. at 972 quoting Humphrey v. State (1978), 268 Ind. 597, 598 , 377 N.E.2d 631, 632 .

1993The court held, "A defect is material only if the prosecutor's amendment affects the availability of a defense or the applicability of evidence which existed under the original information." Id. at 972 quoting Humphrey v. State (1978), 268 Ind. 597, 598 , 377 N.E.2d 631, 632 .

2014To determine the availability of such exception requires considering whether the agent “made representations to the [policyholder], which, if true, would have covered their loss and also tolled the running of the limitations period.” Id.

2009Our Supreme Court closely examined the language and purpose of the notice provision in the Tort Claims Act, observing that "[the availability of a claim by a named plaintiff on behalf of a class is consistent with the language of the Act and also supported by provisions that do not appear." Id. at 1162 .

1999In State v. Gullion, 546 N.E.2d 121 (Ind.Ct.App.1989), this court held that the State could amend even after thirty (30) days prior to the omnibus date provided the defendant was given adequate notice and hearing on the amendment, and allowing a continuance, if requested, to allow the defendant to prepare his case.

1994The privilege "can be asserted 'in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.' " Maness v. Meyers (1975), 419 U.S. 449, 464 , 95 S.Ct. 584, 594 , 42 LEd.2d 574, 587 (quoting Kastigar v. United States (1972), 406 U.S. 441, 444 , 92 S.Ct. 1653, 1656 , 32 LEd.2d 212). 5 .

1994The privilege "can be asserted 'in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.' " Maness v. Meyers (1975), 419 U.S. 449, 464 , 95 S.Ct. 584, 594 , 42 LEd.2d 574, 587 (quoting Kastigar v. United States (1972), 406 U.S. 441, 444 , 92 S.Ct. 1653, 1656 , 32 LEd.2d 212). 5 .

1994The privilege "can be asserted 'in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.' " Maness v. Meyers (1975), 419 U.S. 449, 464 , 95 S.Ct. 584, 594 , 42 LEd.2d 574, 587 (quoting Kastigar v. United States (1972), 406 U.S. 441, 444 , 92 S.Ct. 1653, 1656 , 32 LEd.2d 212). 5 .

1994The privilege "can be asserted 'in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.' " Maness v. Meyers (1975), 419 U.S. 449, 464 , 95 S.Ct. 584, 594 , 42 LEd.2d 574, 587 (quoting Kastigar v. United States (1972), 406 U.S. 441, 444 , 92 S.Ct. 1653, 1656 , 32 LEd.2d 212). 5 .

1993In affirming Lacy's conviction the court indicated it failed to see how Lacy was deprived of a defense and specifically noted "appellant did not interpose an alibi defense, which we have recognized is the kind of situation which would make an amendment as to the date of the offense material by depriving the defendant of a defense." Lacy, 438 N.E.2d at 972 .

1993Sharp v. State (1989), Ind., 534 N.E.2d 708 , cert. denied, (1990), 494 U.S. 1031 , 110 S.Ct. 1481 , 108 L.Ed.2d 617 ; Lacy, 438 N.E.2d at 972 .

1991In Montgomery v. State (1988), Ind., 521 N.E.2d 1306 , reh. denied, cert. denied, 488 U.S. 840 , 109 S.Ct. 108 , 102 L.Ed.2d 83 , our supreme court held counsel is not ineffective when he chooses not to raise the defense of intoxication where the defense is doomed to failure because the evidence shows the defendant had a lucid recollection of what happened and was capable of taking steps to cover up the crime.

1991In Montgomery v. State (1988), Ind., 521 N.E.2d 1306 , reh. denied, cert. denied, 488 U.S. 840 , 109 S.Ct. 108 , 102 L.Ed.2d 83 , our supreme court held counsel is not ineffective when he chooses not to raise the defense of intoxication where the defense is doomed to failure because the evidence shows the defendant had a lucid recollection of what happened and was capable of taking steps to cover up the crime.

1991In Montgomery v. State (1988), Ind., 521 N.E.2d 1306 , reh. denied, cert. denied, 488 U.S. 840 , 109 S.Ct. 108 , 102 L.Ed.2d 83 , our supreme court held counsel is not ineffective when he chooses not to raise the defense of intoxication where the defense is doomed to failure because the evidence shows the defendant had a lucid recollection of what happened and was capable of taking steps to cover up the crime.

1991In Montgomery v. State (1988), Ind., 521 N.E.2d 1306 , reh. denied, cert. denied, 488 U.S. 840 , 109 S.Ct. 108 , 102 L.Ed.2d 83 , our supreme court held counsel is not ineffective when he chooses not to raise the defense of intoxication where the defense is doomed to failure because the evidence shows the defendant had a lucid recollection of what happened and was capable of taking steps to cover up the crime.

1991In Montgomery v. State (1988), Ind., 521 N.E.2d 1306 , reh. denied, cert. denied, 488 U.S. 840 , 109 S.Ct. 108 , 102 L.Ed.2d 83 , our supreme court held counsel is not ineffective when he chooses not to raise the defense of intoxication where the defense is doomed to failure because the evidence shows the defendant had a lucid recollection of what happened and was capable of taking steps to cover up the crime.

1991In Montgomery v. State (1988), Ind., 521 N.E.2d 1306 , reh. denied, cert. denied, 488 U.S. 840 , 109 S.Ct. 108 , 102 L.Ed.2d 83 , our supreme court held counsel is not ineffective when he chooses not to raise the defense of intoxication where the defense is doomed to failure because the evidence shows the defendant had a lucid recollection of what happened and was capable of taking steps to cover up the crime.

1990Guy v. Schuldt (1956), 236 Ind. 101 , 138 N.E.2d 891 , the authority upon which Marcum is based, recognized the application of equitable estoppel, but nevertheless stated: Before the doctrine of estoppel may be used to bar the defendant’s use of the statute of limitations, the fraud must be of such character as to prevent inquiry, or to elude investigation, or to mislead the party who claims the cause of action. 236 Ind. at 107 , 138 N.E.2d at 894 .

1990Guy v. Schuldt (1956), 236 Ind. 101 , 138 N.E.2d 891 , the authority upon which Marcum is based, recognized the application of equitable estoppel, but nevertheless stated: Before the doctrine of estoppel may be used to bar the defendant’s use of the statute of limitations, the fraud must be of such character as to prevent inquiry, or to elude investigation, or to mislead the party who claims the cause of action. 236 Ind. at 107 , 138 N.E.2d at 894 .

1990The State contends that given the availability of this claim on direct appeal, appellant’s failure to raise it at that time operates as a waiver of the issue, citing Johnson v. State (1986), Ind., 502 N.E.2d 90 .

1990The State contends that given the availability of this claim on direct appeal, appellant's failure to raise it at that time operates as a waiver of the issue, citing Johnson v. State (1986), Ind., 502 N.E.2d 90 .

1990He maintains that because the initial omission of the court and county of the prior offenses rendered the habitual information insufficient as a matter of law, citing Shutt v. State (1954), 233 Ind. 120 , 117 N.E.2d 268 , the amendment was one not of form but of substance affecting the availability of a defense, citing Abner v. State (1986), Ind., 497 N.E.2d 550 .

1990While that opinion did hold a post-conviction claim of ineffective trial counsel to have been waived by failure to raise it on direct appeal, its cited authority for that proposition, Phillips v. State (1982), Ind., 441 N.E.2d 201 , involved a post-conviction action subsequent to a guilty plea and dealt with no waiver issues.

1990While that opinion did hold a post-conviction claim of ineffective trial counsel to have been waived by failure to raise it on direct appeal, its cited authority for that proposition, Phillips v. State (1982), Ind., 441 N.E.2d 201 , involved a post-conviction action subsequent to a guilty plea and dealt with no waiver issues.

1990He maintains that because the initial omission of the court and county of the prior offenses rendered the habitual information insufficient as a matter of law, citing Shutt v. State (1954), 233 Ind. 120 , 117 N.E.2d 268 , the amendment was one not of form but of substance affecting the availability of a defense, citing Abner v. State (1986), Ind., 497 N.E.2d 550 .

1990He maintains that because the initial omission of the court and county of the prior offenses rendered the habitual information insufficient as a matter of law, citing Shutt v. State (1954), 233 Ind. 120 , 117 N.E.2d 268 , the amendment was one not of form but of substance affecting the availability of a defense, citing Abner v. State (1986), Ind., 497 N.E.2d 550 .

1988The payee or holder of a check, draft, or order that has been dishonored incurs no civil or criminal liability for sending notice under this subsection." The Court of Appeals majority opinion quotes from Suits v. State (1983), Ind. App., 451 N.E.2d 375 , 381 as follows: "A construction which includes notice as part of the defense would place control of the availability of the defense in the hands of the payee or holder.

1988The payee or holder of a 'check, draft, or order that has been dishonored incurs no civil or criminal liability for sending notice under this subsection." The Court of Appeals majority opinion quotes from Suits v. State (1983), Ind.App., 451 N.E.2d 375 , 381 as follows: "A construction which includes notice as part of the defense would place control of the availability of the defense in the hands of the payee or holder.