Carter v. State

634 N.E.2d 830, 1994 Ind. App. LEXIS 618, 1994 WL 226999
Indiana Court of Appeals·Decided May 31, 1994·No. 45A04-9306-CR-234·Published·Cited by 27 cases

Opinion

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Michael Carter appeals from his conviction for two counts of criminal recklessness. We affirm.

ISSUES

Carter raises three issues for our review which we restate as follows:

1. Whether the trial court erred in admitting evidence of Carter's prior uncharged criminal activity.
2, Whether the trial court erred in admitting statements Carter made to police during custodial interrogation.
3. Whether the evidence is sufficient to support Carter's conviction.

FACTS AND PROCEDURAL HISTORY

The record reveals that on the night of August 22, 1992, the victims, Bennie Bailey and his mother Alice Brown, were at their home in Gary, Indiana. The sound of breaking glass caused Bailey to look outside to further investigate. He observed a group of youths who frequently gathered on the corner near his house. The group had placed a glass storm door in the street and it had been run over by a car. Bailey then overheard a discussion among the youths about getting some garbage cans to block the street. Concerned that the group was going to steal their garbage can, Bailey and Brown went to the backdoor of their house. They observed Carter in their backyard picking up one of the garbage cans. Bailey and Brown yelled at Carter to stop, and Carter fired a shot toward them. Bailey then grabbed his rifle and fired back at Carter. Several shots were fired with Carter firing three to five times at Bailey.

Carter was taken into custody and charged by information with two counts of attempted murder, a class A felony. 1 Carter was found guilty by a jury of two counts of criminal recklessness, a class D felony. He was sentenced to three years on each count to be served concurrently. The trial court judge suspended one year, thus Carter received an aggregate sentence of two years.

DISCUSSION AND DECISION

I. Prior Uncharged Criminal Activity

Carter contends that the trial court erred when it admitted over defense's continuing objection evidence of his prior uncharged misconduct. Specifically, Carter takes issue with the trial court's admission of the victims' testimony that Carter was a part of a group of youths that frequently gathered on the street corner near the victims' home and that the victims had called the police concerning this group of youths on numerous occasions in the past. Additionally, Officer Terry Lee of the Gary Police Department testified that Carter had been arrested on other charges. The jury was admonished regarding this information and informed that Carter had been picked up on a misdemeanor traffic violation. Appellant's Brief at 9-12.

The State argues that Carter failed to preserve this error for appeal. Carter, by counsel, filed a pretrial motion in limine to exclude this anticipated testimony of prior bad acts. After lengthy argument, the trial court denied the motion in limine and Carter's counsel requested that a continuing objection be noted for the record.

The purpose of a motion in limine is to prevent the display of potentially prejudicial material to the jury until the trial court has the opportunity to rule .on its admissibility. Boyd v. State (1991), Ind., 564 N.E.2d 519, 524. As such, a motion in limine is not a final ruling on the admissibility of evidence and a ruling on a motion in limine does not preserve error for appeal. Id. Thus, appellate review in this case would have to be based on the trial court's final evidentiary rulings at trial. Review of the record, however, reveals that Carter's counsel failed to object at trial. The testimony that was the subject of Carter's motion in limine was admitted without any objection by Carter's *833 counsel. -It is incumbent upon a defendant to object to the introduction of the challenged evidence at trial and specify the grounds upon which the objection is premised. Abner v. State (1985), Ind., 479 N.E.2d 1254, 1259. It is well-settled that "when a defendant does not properly bring an objection to the trial court's attention so that the trial court may rule on it at the appropriate time, he is deemed to have waived that possible error." Ingram v. State (1989), Ind., 547 N.E.2d 823, 829.

The question becomes whether counsel's continuing objection noted on the record preserves error for appeal. While we approve of the use of continuing objections, they are insufficient to preserve error for appeal. Hobson v. State (1986), Ind.App., 495 N.E.2d 741, 744. Carter should have renewed his objection at trial when the testimony was offered. Having failed to timely renew his objection, he waived this allegation of error.

Notwithstanding waiver, Carter's contention lacks merit. Ind. Evidence Rule 404(b) provides in pertinent part as follows:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

Evid.R. 404(b) 2 However, even otherwise admissible evidence is inadmissible if the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence. Hardin v. State (1993), Ind., 611 N.E.2d 123, 128. We do not find that the prior uncharged misconduct was admitted to show action in conformity with a particular character trait. The trial court properly admitted the evidence to prove something other than Carter's bad character or his propensity to commit the charged crime. The record clearly indicates that the trial judge relied on the motive, state of mind and identity exceptions to the general prohibition of prior uncharged misconduct. We also do not find that the admission of the evidence unfairly affected the outcome of the trial. Because the evidence of Carter's uncharged prior misconduct was admitted for purposes permitted under Rule 404(b) and because we do not find the evidence to be unduly prejudicial, we conclude that the trial court did not err in admitting it.

II. Admissibility of Carter's Statements

Carter next contends that the trial court erred by admitting over defense's objection statements made by Carter while in police custody. Appellant's Brief at 13-14. Detective Lee testified at trial that on August 30, 1992, he advised Carter of his Miranda warnings and attempted to elicit a statement from him about the shooting. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. - Carter told Officer Lee that he knew nothing about a shooting.

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Carter v. State, 634 N.E.2d 830, 1994 Ind. App. LEXIS 618, 1994 WL 226999 (Ind. Ct. App. 1994).

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