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Thursday, December 29, 2005

Ind. Decisions - Court of Appeals issues four today [Updated]

In Anthony Z. Banks v. State of Indiana Judge Vaidik writes:

Anthony Z. Banks appeals his conviction for Promoting Prostitution, a Class C felony. Specifically, he contends that the trial court erred in excluding his testimony concerning what a police officer told him during the undercover operation on grounds that it constituted hearsay. Because a statement made by a police officer within the scope of his employment constitutes a statement by a party opponent, the police officer’s statements in this case are not hearsay and were improperly excluded. However, in light of the evidence that Banks was able to present to the jury regarding his version of the events, the error is harmless. We therefore affirm.
In Ricky Smith v. State of Indiana Judge Vaidik writes:
Ricky Smith appeals his conviction for Stalking as a Class C Felony, arguing that the trial court erred in admitting the cell phone records of his victim. Alternatively, Smith argues that his sentence is inappropriate in light of the nature of the offense and character of the offender. Finding that the cell phone records were properly admitted and that the sentence is appropriate in this case, we affirm.
[Update] The 12/31/05 Evansville Courier& Press had a report on this decision.

On Nov. 29th the Supreme Court send Joseph Kincaid v. State of Indiana back to the Court of Appeals to consider his Blakely claim. Today's decision by Judge Sharpnack does so, and affirms Kincaid's sentence.

In Edward and Jayne Rhoades v. Heritage Investments, LLC and Timothy E. Moll, Chief Judge Kirsch concludes:

Having determined the trial court correctly considered Rhoades a licensee, we must now determine whether the trial court properly determined that Heritage was entitled to judgment as a matter of law on the issue of whether it breached the duty it owed to Rhoades. A landowner’s only duties to a licensee are to refrain from willfully and wantonly injuring the licensee and to warn the licensee of any latent danger on the premises of which the owner has knowledge. Wright v. Int’l Harvester Co., Inc., 528 N.E.2d 837, 839 (Ind. Ct. App 1988), trans. denied.

Here, Rhoades has failed to show or even allege that Heritage renovated the building and rebuilt the stairway with the wanton and willful intent to injure Rhoades or anyone else. Rather, Rhoades’ sole contention is that there is a genuine issue of fact regarding whether the stairway, which was dimly lit and lacked guardrails and handrails, constituted a latent danger. Latent is defined as concealed or dormant. Black’s Law Dictionary 898 (8th ed. 2004). In his deposition, Rhoades admitted that he knew that the building was dimly lit and the staircase lacked guardrails and handrails before he ascended it. He cannot now argue that these alleged defects were latent dangers. Undisputed facts found in the designated materials support the trial court’s determination that, as a matter of law, Heritage did not violate any duty owed to Rhoades as a licensee. We therefore conclude that the trial court properly entered summary judgment in favor of Heritage. Affirmed.

Posted by Marcia Oddi on December 29, 2005 10:00 AM
Posted to Ind. App.Ct. Decisions