ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                       Curtis T. Hill, Jr.
Office of the Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                            Katherine M. Cooper
Mark A. Bates                                               Andrew A. Kobe
Schererville, Indiana                                       Deputy Attorneys General
                                                            Indianapolis, Indiana
______________________________________________________________________________


                                            In the                                            FILED

                         Indiana Supreme Court
                                                                                          Jun 22 2017, 1:19 pm

                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                _________________________________                            Court of Appeals
                                                                                               and Tax Court


                                      No. 45S03-1703-CR-172

REGINALD HARRIS,
                                                                    Appellant (Defendant),


                                                v.

STATE OF INDIANA,
                                                                    Appellee (Plaintiff).

                                _________________________________

       Appeal from the Lake Superior Court Criminal Division 1, No. 45G01-1412-F5-41
                          The Honorable Salvador Vasquez, Judge
                          _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1605-CR-1168
                            _________________________________

                                          June 22, 2017

Rush, Chief Justice.

        Reginald Harris and his girlfriend, Summer Snow, separately appeal their convictions for
battery against a public safety official and resisting law enforcement. They each challenge the
admission of Snow’s gun at their joint trial, arguing that it was not relevant and that its unfair
prejudice made it inadmissible. For the reasons given in Snow’s case—issued today as a
companion opinion—the trial court was within its discretion to admit the gun. And though the
gun was not relevant to Harris’s crimes, he failed to seek a separate trial or a limiting
instruction—thus waiving any argument that the gun’s admission denied him a fair trial. We
affirm his convictions.

                                   Facts and Procedural History

        After fighting with police officer Terry Peck, Reginald Harris and Summer Snow were
convicted of battery against a public safety official and resisting law enforcement. Since we give
the full facts in today’s companion opinion, Snow v. State, No. 45S03-1703-CR-169, ___ N.E.3d
___, slip op. at 2–4 (June 22, 2017), we summarize them here.

        Early one November morning, Summer Snow was fighting with her boyfriend, Reginald
Harris. After she kicked him out of her house, he went to the driveway and sat in her car. Snow
tried to kick him out of her car as well, calling the police when he refused to leave.

        Officer Terry Peck responded, and asked Harris to step out of the vehicle. Harris refused,
so Peck tried to remove him—resulting in a scuffle where Harris pulled Peck into the car and hit
him repeatedly. Officer Peck eventually handcuffed Harris and locked him in the back of a patrol
car. After fighting with Snow, Officer Peck arrested her as well. As he did so, a gun she was
carrying fell, hit his knee and boot, and landed on the ground.

        The State charged Harris with Level 5 felony battery against a public safety official and
Level 6 felony resisting law enforcement.1 Neither Harris nor Snow was charged with a gun-
related offense. At the ensuing joint jury trial, the same attorney represented both Snow and
Harris. The State introduced the gun into evidence over the defendants’ objection, and the jury
found Harris guilty as charged.

        Harris and Snow separately appealed, challenging the gun’s admission at trial. The Court
of Appeals affirmed Harris’s convictions in a split decision. Harris v. State, 66 N.E.3d 628, 629
(Ind. Ct. App. 2016). Harris petitioned for transfer, arguing that the Court of Appeals incorrectly



1
  The State charged Snow with two counts of Level 5 felony battery against a public safety official, and
one count each of Level 6 felony resisting law enforcement and Class B misdemeanor disorderly conduct.
She was convicted of one count of Level 5 battery against a public safety official and Level 6 felony re-
sisting law enforcement. We affirm her convictions in today’s companion opinion, Snow v. State, No.
45S03-1703-CR-169, ___ N.E.3d ___ (June 22, 2017).



                                                   2
applied the defunct res gestae standard. The State did not respond. We granted transfer, thereby
vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

                                        Standard of Review

       The trial court admitted Snow’s gun over Harris and Snow’s objection; we review this
evidentiary ruling for an abuse of discretion. Zanders v. State, 73 N.E.3d 178, 181 (Ind. 2017).
Harris also alleged at oral argument that the gun’s admission denied him a fair trial. Because he
waived this claim, we review it for fundamental error—an “extremely narrow exception to the
waiver rule” where Harris bears the heavy burden of showing that a fair trial was impossible.
Gibson v. State, 51 N.E.3d 204, 212 (Ind. 2016).

                                     Discussion and Decision

       As we hold in our companion Snow opinion, res gestae is not proper grounds for the
admission of evidence. Slip op. at 5–6. Instead, we look to our Rules of Evidence, and under
those rules it was within the trial court’s discretion to admit Snow’s gun into evidence. Id. So we
reject Harris’s argument that admitting the gun was error.

       Harris also claimed for the first time at oral argument that because the gun was not
relevant to his charges, its admission prejudiced his right to a fair trial. Harris is correct that the
gun has no relevance to the charges: he was sitting handcuffed in the back seat of a patrol car
before the gun made its way onto the scene.

       But Harris has waived his fair trial argument for two reasons. First, issues are waived
when raised for the first time at oral argument. Humphrey v. State, 73 N.E.3d 677, 687 n.2 (Ind.
2017). And second, Harris did not take any steps in the trial court to distance himself from
Snow’s case or her handgun. He never moved for a separate trial from Snow’s, “thereby waiving
his right to a separate trial.” Fredrick v. State, 755 N.E.2d 1078, 1081 (Ind. 2001). He also never
requested a limiting instruction telling the jury to consider Snow’s gun only for her charges. See
Sanchez v. State, 675 N.E.2d 306, 308–09 (Ind. 1996) (finding a claim waived when the
defendant neither tendered a limiting instruction nor objected to the trial court’s final
instructions); Sims v. Pappas, 73 N.E.3d 700, 707 (Ind. 2017) (“Importantly, the party seeking to
limit the evidence has the duty to request the instruction.”).




                                                  3
       Because Harris waived this argument, he can prevail only by meeting the “daunting”
fundamental error standard. Griffith v. State, 59 N.E.3d 947, 956 (Ind. 2016). This requires him
to show that the trial court should have raised the issue sua sponte due to a blatant violation of
basic and elementary principles, undeniable harm or potential for harm, and prejudice that makes
a fair trial impossible. Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017); Knapp v. State, 9 N.E.3d
1274, 1281 (Ind. 2014).

       We cannot find fundamental error—or any error—in the trial court’s decision not to give
a limiting instruction sua sponte. The trial court has “no affirmative duty to consider giving an
admonishment in the absence of a party’s request.” Washington v. State, 808 N.E.2d 617, 624–
25 (Ind. 2004) (citing Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999)); see also Sims, 73 N.E.3d
at 707. And the trial court, at both the beginning and end of trial, instructed the jury as follows:

               Although the defendants are being tried jointly, you must give
               separate consideration to each defendant. In doing so, you must
               analyze what the evidence in the case shows with respect to each
               defendant. Each defendant is entitled to have their case decided on
               the evidence and the law applicable to them.

The jury, then, was appropriately instructed—especially since Harris did not request a limiting
instruction.

                                            Conclusion

       As we hold in Snow, the trial court was within its discretion to admit the gun. Harris
cannot show any error—much less fundamental error—to overcome the waiver of his unfair trial
argument. We thus affirm the trial court.

David, Massa, and Slaughter, JJ., concur.




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