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Friday, December 13, 2013

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In John Everitt Dickey v. State of Indiana, a 6-page opinion, Judge Mathias writes:

John Everitt Dickey (“Dickey”) was convicted in Clark Circuit Court of two counts of Class A felony child molesting and sentenced to an aggregate term of forty-five years, with five years suspended. Dickey appeals and presents one issue for our review: whether the trial court abused its discretion in admitting into evidence testimony that Dickey had been physically abusive both to the victim and to the victim’s mother. Because Dickey failed to preserve this issue for appeal, we affirm. * * *

Prior to trial, Dickey filed a motion in limine seeking to exclude the evidence of his prior bad acts. However, a trial court’s ruling on a motion in limine is not a final ruling on the admissibility of the evidence in question, and a motion in limine does not preserve the error for appeal. Id. Instead, in order to preserve error in the denial of a motion in limine, the party must also object to the admission of the evidence at the time it is offered. Id.

Here, when the State asked N.O. when Dickey’s relationship with N.O. and her mother began to change, Dickey did object, and the trial court overruled this objection. However, the State then continued to ask N.O. questions that elicited detailed testimony regarding Dickey’s past physical abuse of N.O. and her mother, all without further objection from Dickey. See Tr. pp. 73-79. Dickey’s “renewed” objection to the initial question is insufficient to preserve for appeal the question of error regarding the further questioning by the State. * * *

Of course, this is not to suggest that Dickey’s only alternative was to object to each question by the State. To the contrary, a proper request for a continuing objection, if granted by the trial court, is sufficient to preserve error. * * * Here, however, Dickey did not seek a continuing objection.[2] We therefore conclude that Dickey failed to preserve for appeal the sole issue he now presents to this court.[3]

Accordingly, we affirm the judgment of the trial court.

[2] We note that our Supreme Court has amended Indiana Evidence Rule 103(b), effective January 1, 2014, to provide: “Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” See Order Amending Rules of Evidence, No. 94S00-1301-MS-30 (Ind. Sept. 13, 2013), available at http://www.in.gov/judiciary/files/ order-rules-2013-0913-evidence.pdf. As this rule amendment was not in effect at the time of Dickey’s trial, it is inapplicable to the present case.
[3] We also note that Dickey makes no argument under the fundamental error exception to the contemporaneous objection requirement. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (observing that a claim that has been waived by the failure to contemporaneously object can be reviewed for fundamental error, an “extremely narrow” exception to the contemporaneous objection requirement available only in “egregious circumstances”).

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on December 13, 2013 10:01 AM
Posted to Ind. App.Ct. Decisions