ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Pinnow Jeffrey A. Modisett
Attorney at Law Attorney General of Indiana
Greenwood, Indiana
Kathryn Janeway
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
ANTHONY MCGREGOR, )
Defendant-Appellant, )
)
v. ) 49S00-9902-CR-115
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark F. Renner, Magistrate
Cause No. 49G04-9802-CF-030289
_________________________________________________
On Direct Appeal
March 24, 2000
DICKSON, Justice
The defendant-appellant, Anthony McGregor, was convicted of rape, as a
class A felony,[1] and found to be a habitual offender.[2] We affirm.
The defendant first challenges the trial court's choice of a jury
instruction regarding reasonable doubt. The court gave the instruction
expressly approved in Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996).
The defendant requests that we reconsider our holding in Winegeart. The
State urges that the defendant waived this claim on appellate review by
failing to object contemporaneously to the giving of this instruction as a
final instruction, even though the defendant did object to the giving of
this instruction as a preliminary instruction.
Indiana Trial Rule 51(C) declares in part: "No party may claim as
error the giving of an instruction unless he objects thereto before the
jury retires to consider its verdict, stating distinctly the matter to
which he objects and the grounds of his objection." See also Ind. Crim.
Rule 8(B) & (H). The appellate review of a claim of instruction error
requires a timely and precise trial objection. Scisney v. State, 701
N.E.2d 847, 849 (Ind. 1998). We require that an instruction objection at
trial be timely, clear, and specific to inform the trial court of the
claimed error, to afford an opportunity for timely correction and thus
prevention of inadvertent error, and to facilitate appellate review.
Mitchem v. State, 685 N.E.2d 671, 675 (Ind. 1997); Smith v. State, 565
N.E.2d 1059, 1061 (Ind. 1991), overruled on other grounds Albaugh v. State,
721 N.E.2d 1233, 1235 & n.5 (Ind. 1999); Harvey v. State, 546 N.E.2d 844,
846 (Ind. 1989). The purpose is not to create a procedural trap. Scisney,
701 N.E.2d at 848.
In the present case, the defendant timely objected to the trial
court's preliminary instruction No. 6 regarding reasonable doubt and
tendered its proposed instruction as a replacement. The trial court denied
the defendant's request to give his tendered instruction and instead gave
its own instruction as proposed. The trial concluded the next day. At the
close of evidence, the defense did not object to the court's reasonable
doubt instruction, even though the court indicated that it would again give
the preliminary instructions as part of the final instructions.
In this two-day trial, where the defendant timely objected to the
trial court's proposed preliminary instruction on reasonable doubt, clearly
presented to the trial court the same objection he now raises on appeal,
but did not again recite the objection when the trial court re-read its
preliminary instructions as part of the final instructions, we decline to
find waiver. See Lee v. State, 424 N.E.2d 1011, 1012 (Ind. 1981); but cf.
Phillips v. State, 496 N.E.2d 87, 89 (Ind. 1986).
However, we find that the trial court did not err in giving its
reasonable doubt instruction. We expressly approved this instruction in
Winegeart and have since frequently considered and repeatedly approved the
instruction, rejecting challenges such as those made by the defendant here.
See, e.g., Turnley v. State, No. 49S00-9812-CR-757, 2000 WL 295214, ___
N.E.2d ___, ___ (Ind. Mar. 21, 2000); Williams v. State, No. 49S00-9901-CR-
45, 2000 WL 254379, at *2, *3, ___ N.E.2d ___, ___ (Ind. Mar. 7, 2000);
Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind. 1999); Ford v. State, 718
N.E.2d 1104, 1105 (Ind. 1999); Barber v. State, 715 N.E.2d 848, 851-52
(Ind. 1999); Williams v. State, 714 N.E.2d 644, 650 (Ind. 1999), cert.
denied 2000 WL 198110 (U.S. Ind. Feb. 22, 2000); Young v. State, 696 N.E.2d
386, 390 (Ind. 1998); Tobias v. State, 666 N.E.2d 68, 69 (Ind. 1996). We
decline to reconsider Winegeart.
The defendant also contends that the trial court abused its discretion
by not instructing the jury at the beginning of the habitual offender stage
that the jury was the judge of the law and the facts, although the jury was
twice previously so instructed. The defendant acknowledges that he failed
to request that the trial court again read this instruction to the jury and
that he failed to object to habitual offender phase final instruction No.
29,, but the defendant asserts a claim of fundamental error to avoid the
application of procedural default. This is not fundamental error. Seay v.
State, 698 N.E.2d 732, 737 (Ind. 1998). We find that this claim was
forfeited.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-4-1.
[2] Ind. Code § 35-50-2-8.