Grove v. State

456 N.E.2d 735, 1983 Ind. App. LEXIS 3629

Opinion

ON PETITION FOR REHEARING

MILLER, Judge.

Charles ("Buddy") Grove petitions for rehearing of our opinion, Grove v. State, (1983) Ind.App., 449 N.E.2d 1122, asking this court to vacate our earlier opinion and reverse his theft conviction. While we deny his petition, we address an issued raised therein and clarify our earlier opinion.

During the trial, hearsay testimony of one Joe Mahfouz was admitted, not for proof of the truth thereof-that the caller was the defendant Grove-but as explanatory of other evidence. Grove objected to the evidence as hearsay and, when his objection was overruled, orally requested the court to instruct the jury that the evidence was being admitted for a limited purpose.

On rehearing, Grove insists that our opinion could be interpreted as requiring a party, during the trial, to submit a written cautionary instruction or suffer waiver of the issue. Such was not our intention. By way of clarification, we now state that, based on authorities cited in our original opinion, the waiver on Grove's part arose when he failed to tender a written final instruction on the issue.

Petition for rehearing denied.

CONOVER, P.J., and RATLIFF, J. (sitting by designation), concur.