Court of Appeals of IndianaHearing oral argument at

North Newton High SchoolMorocco, IN

Tuesday, October 23 @ 9:00 a.m.

Pierre A. Smith, Jr.v.

State of Indiana18A-CR-00478

On appeal from the Marion Superior Court

SYNOPSIS IMPD Officer William Wogan observed Pierre Smith commit a traffic violation and began to follow Smith. The officer saw Smith suddenly pull over and hit a curb. Smith was moving around in the vehicle shifting between the middle of the car and the driver’s seat. The officer activated his lights to initiate a traffic stop. Smith resumed driving northbound, but eventually came to a stop on 13th Street. Smith did not have a valid driver’s license but was cooperative, and he did not have any warrants. Therefore, the officers told Smith to have a valid driver pick him up.

The officers returned to the area where Smith hit the curb on LaSalle Street. The officers were curious because Smith’s driving behavior seemed evasive. Officer Wogan saw a handgun laying in the grass approximately 15 feet from the street where Smith hit the curb. From its appearance, the officer did not believe that the gun had been laying in the grass long. Recalling Smith’s movement in the vehicle and his evasive driving behavior, the officer concluded that Smith threw the firearm out of the passenger window of his car.

Just after the officers found the gun, Smith drove past them and made eye contact with Officer Wogan. The officers initiated a second traffic stop, and because he did not have a handgun permit, Smith was arrested for unlawfully carrying a firearm. Smith was convicted in Marion Superior Court of Level 4 felony unlawful possession of a firearm by a serious violent felon. Smith appeals and argues that the State presented insufficient evidence to prove that he constructively possessed the firearm.

Riley continued from p. 3Centre of Eldoret, Kenya (LACE), which provides legal access to justice for HIV/AIDS patients in the AMPATH medical center. In 2011, Judge Riley traveled with the Washington, D.C.-based International Judicial Academy to The Hague, Netherlands, to observe the International Criminal Court and two International Criminal Tribunals that are hearing cases from Sierra Leone and the former Yugoslavia. And in 2012 she participated in the 3rd Sino-U.S. Law Conference, which was held in Beijing at the National Judges College of the People’s Republic of China, which oversees all aspects of that country’s judicial training, placement and promotion. In 2013 Judge Riley attended the Justice Academy of Turkey where she presented her paper about Ethic Rules in the U.S. Judge Riley has two sons and two grandsons. She was retained on the Court by election in 1996, 2006, and 2016.

Mathias continued from p. 3 Judge Mathias is keenly interested in the intersection of law and technology and often consults and speaks on tech topics to attorneys and judges. Throughout the 2000s, he helped select and implement the Odyssey Case Management System that brought the management of Indiana’s court records into the 21st Century. More recently, Judge Mathias has been appointed by the Indiana Supreme Court to lead a statewide court technology effort, including implementation of e-filing. Judge Mathias is a longtime supporter of We the People, a national civics education program sponsored in Indiana by the Indiana Bar Foundation. He coaches high school We the People teams in Indiana’s 5th Congressional District and helps organize We the People competitions in the 3rd Congressional District. In 2010, he received the Indiana Bar Foundation’s William G. Baker Civic Education Award for his contributions to civics education. Judge Mathias has been married for 40 years and is the proud father of two sons who teach at the high school level in Indiana. His wife, Carlabeth, an Indiana public school teacher and counselor for 30 years, now has a private practice in which she counsels children and families and serves as a consultant to schools throughout Indiana. Judge Mathias enjoys Macintosh computers, technology in general and photography. He also enjoys spending many Saturdays during the school year helping to build theatrical sets for Hamilton Southeastern High School.

Tavitas continued from p. 3From 2009 through 2013, she served as a board member for Indiana Legal Services, Inc. She was elected as a board member of the Notre Dame Law School Association Board in 2010. She served as a judicial appointee member of the Indiana Supreme Court Domestic Relations Committee from 2012 through 2018 and now serves on the Civil Instructions Committee. Judge Tavitas is an active member of several national, state, and local bar associations. She has served as a moot court judge for the Notre Dame Law School Trial Advocacy Program, and as a judge for the "We the People" Program sponsored by the Indiana State Bar Association. She was named Most Influential Woman of Northwest Indiana in the Law in 2015. She is a frequent speaker for lawyers, judges, and court staff trainings throughout Indiana. Her favorite activities include spending time with her three children and her granddaughter. She enjoys reading, Notre Dame football games, traveling, hiking, and the arts.

Today’s Panel of Judges

The Honorable Patricia A. Riley

Jasper County

The Honorable Paul D. Mathias

Allen County

Patricia A. Riley, was named to the Court of Appeals of Indiana by Governor Evan Bayh in January of 1994. A native of Rensselaer, Indiana, Judge Riley earned her bachelor’s degree from Indiana University-Bloomington in 1971 and her law degree from the Indiana University School of Law-Indianapolis in 1974. Early in her career she served as a Deputy Prosecutor in Marion County and a public defender in Marion and Jasper counties before entering into private practice in Jasper County. She served as a judge of the Jasper Superior Court from 1990 to 1993. She is a former associate professor at St. Joseph’s College in Rensselaer and the Indiana University School of Law-Indianapolis. Judge Riley’s legal memberships include the Indianapolis Bar Association, the Marion County Bar Association, and the Indiana State Bar Association. Judge Riley is the former chair of the Appellate Practice Section of the Indiana State Bar Association, and is a member of the ABA’s Judicial Division. She is a member of the Indiana Judges Association and the National Association of Women Judges. Judge Riley’s civic associations include being on the Board of Directors of Recycle Force. She serves on the Board of Visitors of the Robert H. McKinney School of Law – Alumni Association, and is a member of the Indianapolis Metro Rotary Club. She also has extensive international legal experience. In 2008, she co-founded the Legal Aidcontinued on p. 4 continued on p. 4

Paul D. Mathias, is a fifth-generation Hoosier who deeply believes that Indiana is a special place to live. He is honored to serve on the Court of Appeals, where he strives daily to reflect and protect Hoosier values within the law. Judge Mathias practiced law in Fort Wayne, concentrating in construction law, personal injury, and appellate practice. He was appointed Referee of the Allen County Small Claims Court in 1985 and served as Judge of the Allen Superior Court from 1989-2000 when he was appointed to the Court of Appeals. He was retained by election to the court in 2002 and 2012. Judge Mathias’s professional achievements are rooted in a strong education. He attended public schools in Fort Wayne, where he was a National Merit Finalist and college scholarship recipient. In 1976 Judge Mathias graduated cum laude from Harvard University with a bachelor’s degree in General Studies, concentrating in Government. He earned his law degree in 1979 from Indiana University School of Law-Bloomington, where he was a member of the Sherman Minton Moot Court Team and the Order of Barristers. Judge Mathias was an officer of the Indiana Judges Association from 1993-1999 and its president from 1997-1999. He is deeply honored to be one of only 92 Hoosiers to receive the Centennial Service Award from the Indiana State Bar Association, and he was named a Sagamore of the Wabash by two governors.

Elizabeth F. Tavitas, was appointed to the Court of Appeals by Governor Eric Holcomb and began her service on Aug. 6, 2018.

Judge Tavitas received her B.A. degree, cum laude, from the University of Notre Dame in 1985, and earned her J.D. degree from the Notre Dame Law School in 1990. She was admitted to the Indiana Bar; United States District Court, Northern District of Indiana; and United States District Court, Southern District of Indiana in 1990. She is a 2007 Indiana Judicial College graduate and a graduate of the 2012 Indiana Graduate Program for Judges.

Prior to her appointment to the Court of Appeals, Judge Tavitas served for more than 12 years as Judge of the Superior Court of Lake County, Civil Division.

Judge Tavitas served as a deputy prosecutor in the Lake County Prosecutor's Office; served as a juvenile public defender in the Lake Superior Court, Juvenile Division; and also maintained a private practice. In 1998, she was appointed to the position of referee in the Lake Superior Court, Juvenile Division, where she served until 2006. During that time, Judge Tavitas served on the Juvenile Benchbook Committee.

She served as Chair of the NWI Volunteer Lawyers, Inc. from 2007 through 2012, and currently continues to serve as a board member. She previously served as a judicial appointee member of the Indiana Pro Bono Commission from 2007 through 2012. continued on p. 4

Attorneys For The PartiesAppellant AttorneyDeb Markisohn is a graduate of IU McKinney School of Law. She is a career public defender and has worked for the Marion County Public Defender Agency for the last ten years. She has previously argued before the Indiana Court of Appeals and the Indiana Supreme Court.

Appellee AttorneysIan McLean is a native of Crawfordsville, Indiana. He is a graduate of Grinnell College and Indiana University’s Maurer School of Law. Following law school, he clerked for the Hon. Clarkson S. Fisher, United States District Court for the District of New Jersey, and Hon. Pasco M. Bowman II, United States Court of Appeals for the Eighth Circuit. Mr. McLean has served as a deputy prosecutor for Union County and Montgomery County, Indiana. He was in private practice in Crawfordsville from 1995 until 2007 when he joined the Attorney General’s office. Mr. McLean is the author of “Criminal Law and Natural Law” in Common Truths: New Perspectives in Natural Law (ISI Books, 2000) and “The Fuzzy Picture of Hitler’s Pope,” 32 Political Science Re-viewer (2003). He and his wife, Sharon, reside in Crawfordsville with their daughter.

About the Court of AppealsAs the second-highest court in Indiana, the Court of Appeals hears appeals from the state’s trial courts and some state agencies. The Court does not preside over trials and must accept all appeals sent to it, with the exception of:

• Cases in which the death penalty or life-without-parole is rendered (appealed directly to the IndianaSupreme Court);

• Cases in which statutes are declared unconstitutional by a trial court (automatically appealed to theSupreme Court);

• Attorney disciplinary cases (which also go to the Supreme Court); and,• Cases involving taxation (which go to the Indiana Tax Court).

As a result, the 15 members of the Court issue approximately 2,000 written opinions each year. A decision of the Court of Appeals of Indiana is final unless granted further review by the Indiana Supreme Court.

The Court hears cases only in three-judge panels. All panels have statewide jurisdiction and rotate three times per year. Cases are randomly assigned. In addition, there is no deadline for the Court to reach a decision in each case; however, the Court strives to issue decisions within four months of receiving an appeal. Opinions are often issued earlier.

What happens after oral argument? After oral argument, the judges confer to decide the outcome. A designated writing judge drafts an opinion for the others’ review. Final language may involve several drafts and significant collaboration. Generally, opinions affirm or reverse lower court rulings in whole. But some affirm in part, some reverse in part, and some do both. Not infrequently, the opinion instructs the trial court about the next appropriate course of action. Many opinions are unanimous, although non-unanimous decisions (2-1) are not uncommon. Dissenting judges usually express their views in a separate opinion that becomes part of the permanent record of the case. Judges might also write separate, concurring opinions that emphasize different points of law or facts than the main opinion. No rules or laws govern how fast the court must issue an opinion. But the court strives to decide cases within four months of receiving all briefs, transcripts and other records. Once issued, all opinions are published on www.courts.in.gov and maintained in the permanent records of the Clerk of Appellate Courts. Parties can appeal decisions of the Court of Appeals to the Indiana Supreme Court by filing a petition to transfer within a prescribed number of days. But transfer is not automatic; the Supreme Court can grant or deny transfer with or without giving a reason. If the petition is denied, the Appeals Court decision stands.

The Honorable Elizabeth F. Tavitas

Lake County