Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                         May 22 2013, 9:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                               GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

THOMAS DUNIGAN,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1210-CR-812
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kimberly Brown, Judge
                          Cause No. 49G16-1206-FD-042281


                                       May 22, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge
       Thomas Dunigan was convicted of domestic battery as a Class D felony, domestic

battery as a Class A misdemeanor, and battery as a Class A misdemeanor. At sentencing

the court merged the battery count into the misdemeanor domestic battery count.

       On appeal Dunigan contends the misdemeanor domestic battery conviction is

barred under the double jeopardy clause of Article 1, Section 14 of the Indiana

Constitution. He also contends it was error for the court to admit photographs of him

taken just after his arrest.

       Dunigan prevails in his first contention as the State correctly concedes that the

misdemeanor conviction is barred by double jeopardy. See Spivey v. State, 761 N.E.2d

831, 832 (Ind. 2002) (stating two challenged offenses constitute the same offense if there

is a reasonable possibility that the evidentiary facts used by the fact-finder to establish the

essential elements of one offense may also have been used to establish the essential

elements of a second challenged offense).

       Dunigan next contends the court erred in admitting “photographs of Thomas

which were taken just after his arrest.” Appellant’s Br. p. 7. His objection was that they

were “more prejudicial than probative.” Tr. p. 63. These he later identifies in his

argument as Exhibits 15, 16, and 18 through 23. All depict Dunigan at the time of his

apprehension and display the effects of his encounter with the K-9 police dog used by the

department. They illustrate the testimony given by the officers at trial.

       During the testimony of Sergeant Brian Clark Exhibits 15 and 20 through 23 were

offered into evidence and counsel for defendant stated, “No objection.”            Tr. p. 85.

                                              2
Accordingly, any error concerning their admission has been waived. Ind. Evidence Rule

103(a)(1); Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

       Exhibits 16 and 19 depict the bandaged leg of Dunigan after his apprehension and

Exhibit 18 depicts his bandaged left arm. Any potential error in the admission of these

exhibits was harmless because it could not have affected the substantial rights of the

defendant. Hogland v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh’g denied.

       Accordingly, it follows that no harmful error has been shown concerning the

exhibits.

       The conviction for domestic battery as a Class A misdemeanor is vacated. In all

other respects the judgment is confirmed.

       Affirmed in part and reversed in part.

RILEY, J., and MAY, J., concur.




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