ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Miller Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
TRAVIS SISK, )
Defendant-Appellant, )
)
v. ) 49S00-9908-CR-424
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9710-CF-159801
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On Direct Appeal
October 5, 2000
DICKSON, Justice
Travis Sisk was found guilty of the June 23, 1999, murder of Conceto
Davis, and sentenced to 60 years. The defendant asserts three claims on
appeal: (1) erroneous admission of dying declarations; (2) erroneous
admission of defendant's prior drug use; and (3) insufficient evidence. We
affirm.
The defendant contends that the trial court erred in admitting
statements of the victim to police after he had been shot. At trial, the
defendant objected, asserting that the question called for inadmissible
hearsay. Ind. Evidence Rule 802. The trial court overruled the objection,
citing the dying declaration exception to the hearsay rules. Evid. R. 804
(b)(2). On appeal, the defendant argues that the State did not lay an
adequate foundation to show that the victim believed his death was
imminent. He did not present this contention to the trial court. We need
not determine whether the defendant's objection at trial was sufficient to
preserve the issue for appeal, however, because we find that the substance
of the officer's testimony regarding the victim's statement was separately
received in evidence from two other witnesses without objection.
The erroneous admission of evidence does not require reversal when
evidence of the same probative value is admitted without objection.
Davidson v. State, 558 N.E.2d 1077, 1089 (Ind. 1990). Patricia Vasquez, a
neighbor of the victim, testified that just after he was shot, the victim
told her that "Travis" shot him. Record at 287. The defendant did not
object to this testimony. The victim's wife, Theresa Davis, testified that
her husband told her that "Travis and them did it." Record at 303-04. The
defendant did not object to this testimony. We decline to reverse on this
issue.
The defendant next contends that the trial court erred in admitting
the neighbor's testimony regarding a robbery in which money and drugs were
taken from the defendant two nights before the murder. Claiming that this
evidence was admitted over his objection, the defendant cites page 269 of
the Record, which is a transcript of a hearing in advance of opening
statements. Brief of Appellant at 3. The defendant did not object when
the testimony was presented at trial. Record at 280-82. This Court has
consistently held that a party may not assert on appeal a claim of trial
court error in the overruling of a motion in limine seeking the exclusion
of evidence unless the party objected to the evidence at the time the
evidence was offered. Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993).
The defendant's claim therefore does not warrant appellate review.
The defendant contends that his conviction for murder is not
supported by sufficient evidence. The defendant argues inconsistencies in
witness testimony, the fact that the police did not find the murder weapon,
the inconclusive nature of the gunshot residue test, and the assertion that
"in that neighborhood there are many reasons to elude the police without
having committed murder." Brief of Appellant at 14.
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and reasonable inferences
favorable to the judgment, and neither reweighing the evidence nor
assessing the credibility of the witnesses, we conclude that no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000). A murder
conviction may be based on wholly circumstantial evidence. Ogle v. State,
698 N.E.2d 1146, 1150 (Ind. 1998).
The evidence favorable to the judgment established that the victim
was fatally shot in the vicinity of the apartment where he resided with his
family. The defendant had been seen in the victim's apartment building a
short time before the shooting. Approximately two days earlier, the
defendant had been robbed and believed that the victim was involved. As
the victim lay bleeding on the sidewalk awaiting the paramedics, he named
the defendant as the person who shot him. The defendant attempted to flee
from the police. We find that the evidence was sufficient for a reasonable
jury to have found the defendant guilty of murder beyond a reasonable
doubt. The trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.