ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ross G. Thomas Karen Freeman-Wilson
Stephen W. Dillon Attorney General of Indiana
Dillon Law Office
Indianapolis, Indiana Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
DANIEL K. LASHBROOK, )
Defendant-Appellant, )
)
v. ) 79S00-0003-CR-222
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-9809-CF-98
________________________________________________
On Direct Appeal
February 15, 2002
DICKSON, Justice
The defendant, Daniel Lashbrook, appeals his conviction and sixty-
year sentence for the September 1998, murder[1] of Duane Morton. Finding
that the defendant's appellate claims of multiple evidentiary errors and
excessive sentence are not compelling, we affirm.
The defendant first contends that the trial court erred in excluding
evidence that a person other than the defendant had previously stated that
the victim "was gonna die." As the defense began to present its case, the
State requested a bench conference and moved to exclude anticipated
testimony of defense witnesses that one Nicholas Perez had said that the
victim, Duane Morton, was going to die or that something adverse was going
to happen to him. Defense counsel informed the court that one of the
witnesses "is going to say . . . [that] Perez on three occasions told her
that Duane was gonna die." Record at 1786. After extensive argument of
counsel, the trial court indicated that this evidence would not be
admitted, believing that it would violate the hearsay rule.
The defendant urges on appeal, as he did at trial, that evidence of
Perez saying that Duane Morton "was gonna die" is not inadmissible hearsay
evidence because it was not offered to prove Morton was going to die.
Rather, the evidence is admissible, the defendant contends, "to show that
Perez made the statement and, further, to show that no action was taken by
the police to follow up on the alleged statements." Br. of the Appellant
at 8. The defendant argues that the evidence tends to show that someone
else committed the crime and that it shows that police did not follow up on
all leads in its investigation, and thus that the defendant's guilt is not
proved beyond a reasonable doubt.
A trial court ruling excluding evidence may not be challenged on
appeal "unless a substantial right of the party is affected" and "the
substance of the evidence was made known to the court by a proper offer of
proof, or was apparent from the context within which questions were asked."
Ind.Evidence Rule 103(a)(1). In addition, appellate review of the
exclusion of evidence is not limited to the grounds stated at trial, but
rather the ruling will be upheld if supported by any valid basis.
Feliciano v. State, 477 N.E.2d 86, 88 (Ind. 1985); Moritz v. State, 465
N.E.2d 748, 755 (Ind. 1984).
In Joyner v. State, 678 N.E.2d 386, 389-90 (Ind. 1997), this Court
reversed the trial court's exclusion of evidence that another person may
have committed the crime. In Joyner the defense sought to present evidence
that the other person was having an affair with the victim, worked at the
same place as the victim, had engaged in sexual relations with the victim
the night before her disappearance, had an argument with the victim the day
she was last seen alive, and came to work late the day after her
disappearance, falsifying his tardiness on his time card. In stark
contrast to Joyner, the defendant presents no material evidence that Perez
was connected to the crime. The phrase allegedly uttered by Perez that
Morton "was gonna die" does not tend to show that Perez committed the
murder.
As to the defendant's claim that the excluded evidence should have
been admitted because it tends to show an incomplete police investigation,
we observe that other evidence of the same fact had been previously
admitted. During the presentation of the State's case, the defense cross-
examined West Lafayette Police detective Brian Lowe, and the officer stated
that his investigative report reflected that some women gave him a lead
that Nicholas Perez said that Duane Morton was going to die, and that the
officer did not follow up by having the women interviewed. Thus the jury
had already received the evidentiary facts excluded by the court's ruling
now challenged. Furthermore, one of the defense witnesses later testified
at trial that she was interviewed by Detective Lowe and gave him
information about Perez. The defendant utilized these evidentiary facts
during his closing statement to argue the presence of reasonable doubt
after stating that "Detective [Lowe] testified that Detaria Goings told him
that Nick [Perez] had said Duane's gonna die." Record at 1934. Thus the
admission of further testimony establishing the Perez utterance would have
been cumulative, and its exclusion did not prevent the defendant from
making the same argument to the jury.
We hold that the exclusion of further testimony that Nicholas Perez
was heard to say "Duane was gonna die" did not affect a substantial right
of the defendant, and thus is not a basis for finding reversible error.
Evid.R. 103(a).
The defendant next contends that the trial court erred in admitting
certain testimony regarding prior bad acts, in contravention of Indiana
Evidence Rule 404(b). At trial, he objected to this testimony on grounds
of relevance and did not claim any violation of Rule 404(b). A defendant
may not present one ground for an objection at trial and assert a different
one on appeal. Lampkins v. State, 682 N.E.2d 1268, 1274 (Ind. 1997). This
question is waived because not preserved by objection at trial. See
Williams v. State, 690 N.E.2d 162, 166 (Ind. 1997).
The defendant further contends that the trial court erred in
admitting into evidence a pair of brass knuckles. Overruling an objection
that the exhibit's prejudicial effect outweighed its probative value, the
trial court allowed the evidence because it corroborated a witness's
account of intimidation by the defendant. Record at 1560.
Trial courts are given wide latitude in weighing probative value
against the danger of unfair prejudice, and we review that determination
for abuse of discretion. Houston v. State, 730 N.E.2d 1247, 1251 (Ind.
2000). One of the witnesses testified that the defendant had used the
brass knuckles in an attempt to intimidate that witness into keeping quiet.
The brass knuckles taken from the defendant's possession corroborated the
witness's testimony. The trial court did not abuse its discretion in
admitting this evidence.
The defendant finally contends that his sentence is manifestly
unreasonable. In sentencing the defendant, the trial court discussed and
found as aggravating circumstances the defendant's previous contacts with
the juvenile justice system as a runaway, for possession of an explosive,
and for possession of marijuana; his continued involvement in drug
activity; the fact that the murder was committed the day after the court
prescribed a program of rehabilitation for the defendant's admitted
possession of marijuana and being a runaway; the defendant's probation
status at the time of the crime; the nature and motive for the murder; the
likelihood that the defendant would re-offend; and the recommendation of
the family that the sentence be aggravated. The trial court found as
mitigating circumstances that the defendant was only seventeen at the time
of the murder, the extent of the defendant's activities in the community,
and the defendant's family support. After weighing these circumstances,
the trial court sentenced the defendant to a term of sixty years, five
years less than the maximum term of years and five years more than the
presumptive sentence for murder.[2]
Although this Court is empowered to review and revise criminal
sentences, we will not do so unless the sentence is "manifestly
unreasonable in light of the nature of the offense and the character of the
offender." Former Ind.Appellate Rule 17(B)).[3]
Apparently believing that Duane Morton had taken advantage of him in
a drug deal the night before, the defendant lured him into the country and
shot him in the stomach. When Morton stumbled into a nearby field, the
defendant pursued him. When again confronted by the defendant, Morton
begged for his life, asking the defendant not to shoot him in the face, but
the defendant shot him in the face anyway and watched him die. The
defendant bragged to at least four people about murdering Morton, seeking
to gain a fearsome reputation. The defendant has a juvenile criminal
record, has demonstrated resistance to past rehabilitative attempts, and
murdered out of revenge and to further his drug career.
Given the nature of this offense and the character of this offender,
we decline to find the sentence imposed to be manifestly unreasonable.
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-50-2-3.
[3] This rule is now found at Ind.Appellate Rule 7(B).