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Tuesday, October 06, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions) [Corrected]

For publication opinions today (2):

In Jermaine McKinley v. State of Indiana, a 13-page opinion, Judge Robb writes:

Following a jury trial, Jermaine McKinley was convicted of dealing in cocaine as a Class A felony. McKinley appeals his conviction, raising one issue for our review: whether the trial court properly instructed the jury as to the requisite mental state for the offense of possession of cocaine with intent to deliver. Finding no fundamental error in the instruction of the jury, we affirm McKinley’s conviction for dealing in cocaine. * * *

Under of the facts of this case, intent to deliver was the central issue at trial. Although defining “intent to deliver” may have been preferable, terms in common use that can be understood by a person of ordinary intelligence do not always need to be defined. Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App. 1995), trans. denied. Reading the jury instructions as a whole and in the context of all the information given to the jury, we cannot say the instructions were misleading regarding the requirement of intent to deliver. Accordingly, we find no fundamental error in the trial court’s instruction of the jury.

In Jill Miller v. Rosehill Hotels, LLC d/b/a Holiday Inn Express; Intercontinental Hotel Group d/b/a Holiday Inn Express, a 21-page opinion in a slip and fall case, Judge Brown writes:
Jill Miller appeals the trial court’s entry of summary judgment in favor of Rosehill Hotels, LLC d/b/a Holiday Inn Express and Intercontinental Hotel Group d/b/a Holiday Inn Express (together, the “Hotel”) and the denial of her motion to correct error. Miller raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of the Hotel and abused its discretion in denying her motion to correct error. We reverse and remand. * * *

As to whether Miller voluntarily accepted a known and obvious risk of danger as a matter of law, we conclude that a reasonable inference from Miller’s deposition testimony is that she was not aware of the relative slickness of the parking lot and walkways on the Hotel’s property until after she had walked on the parking lot either part or all of the way to her vehicle. To satisfy its burden of making a prima facie showing that it was entitled to summary judgment, the Hotel was required to designate evidence showing that Miller had actual knowledge and appreciation of the specific risks involved and voluntarily accepted those risks. * * * [B]ased on the designated evidence, we cannot say that Miller voluntarily accepted the risk of a known and obvious danger as a matter of law.

In addition, under these circumstances a trier of fact could reasonably determine that the Hotel should have anticipated that Miller would attempt to walk from her vehicle back to the carport or sidewalk despite the obviousness of the risk or danger. * * *

Construing all factual inferences in favor of Miller as the nonmoving party, we conclude that the Hotel failed to carry its burden of establishing that Miller voluntarily accepted a known and obvious risk as a matter of law or that it did not breach its duty to maintain its property in a reasonably safe condition for its invitees as a matter of law. Accordingly, the entry of summary judgment in favor of the Hotel was improper. See Countrymark, 892 N.E.2d at 691-692.

For the foregoing reasons, we reverse the entry of summary judgment in favor of the Hotel and against Miller and remand for further proceedings.

NFP civil decisions today (1):

Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson v. South Spencer School Corp. and Cliff Hagan's Boys' Club of Owensboro, Kentucky, Inc. (mem. dec.)

NFP criminal decisions today (2):

Jason D. Smith v. State of Indiana (mem. dec.)

William M. Cox v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 6, 2015 12:50 PM
Posted to Ind. App.Ct. Decisions