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
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KURT A. YOUNG                                    GREGORY F. ZOELLER
Nashville, Indiana                               Attorney General of Indiana

                                                 ANGELA N. SANCHEZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                                  FILED
                                                                               Aug 27 2012, 9:48 am

                              IN THE
                                                                                       CLERK
                    COURT OF APPEALS OF INDIANA                                      of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




LLOYD E. LYNCH,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A04-1111-CR-604
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1008-FB-62290


                                      August 27, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Lloyd E. Lynch appeals his conviction of Class B felony confinement.1 Lynch

argues the trial court abused its discretion by permitting R.S. to testify Lynch said he

would bury her “with the rest of them.” (Tr. at 277.) Because any possible error was

harmless, we affirm.

                          FACTS AND PROCEDURAL HISTORY

        On July 30, 2010, R.S. was drinking with Lynch at his home in Indianapolis.

Lynch became angry, hit R.S. on the side of her head, and then continued to punch and

kick R.S. Lynch repeatedly threatened R.S., held a knife to her throat, and prevented her

from leaving his house. R.S. tried to escape twice, but each time Lynch chased after her

and caught her. During her second escape attempt, a neighbor saw Lynch dragging R.S.

back to his house, so Lynch dropped R.S. and fled. R.S. left with the neighbor and called

the police. R.S. later identified Lynch, and he was arrested.

        Lynch was charged with Class B felony criminal confinement, Class C felony

battery,2 and Class D felony strangulation.3 In a pre-trial conference, Lynch objected to

the State’s intended introduction of R.S.’s testimony that Lynch said to her, “I will bury

you in the back with the rest of them.” (Id. at 277.) The trial judge overruled the

objection, permitting R.S. to so testify at trial.4 Lynch was convicted of Class B felony

criminal confinement.5


1
  Ind. Code § 35-42-3-3.
2
  Ind. Code § 35-42-2-1.
3
  Ind. Code § 35-42-2-9.
4
   The trial court noted Lynch’s pre-trial objection, but Lynch did not renew his objection when the
testimony was offered at trial. Normally, a pretrial motion does not preserve an issue for appeal, and the
                                                    2
                                 DISCUSSION AND DECISION

        Lynch contends permitting R.S. to testify Lynch said he would bury her “with the

rest of them” violated Indiana Evidence Rules 404(b) and 403, and thus should not have

been admitted.

        Errors in the admission or exclusion of evidence are to be to be disregarded as

harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Hardin v.

State, 611 N.E.2d 123, 131 (Ind. 1993). “An error will be found harmless if its probable

impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as

not to affect the substantial rights of the parties.” Fleener v. State, 656 N.E.2d 1140,

1142 (Ind. 1995).

        To convict Lynch, the State had to prove beyond a reasonable doubt that he

criminally confined R.S. Indiana Code § 35-42-3-3, in relevant part, provides:

         (a) A person who knowingly or intentionally:
               (1) confines another person without the other person’s consent; or
               (2) removes another person, by fraud, force, or threat of force, from
               one (1) place to another; commits criminal confinement . . .
        (b) The offense of criminal confinement defined in subsection (a) is: . . .
               (2) a class B felony if it:
                       (A) is committed while armed with a deadly weapon;
                       (B) results in serious bodily injury to a person other than the
                       confining or removing person; or

failure to make a contemporaneous object at trial waives the issue for appeal. Brown v. State, 783 N.E.2d
1121, 1125 (Ind. 2003). The fundamental error doctrine is an exception to the general rule that the failure
to object at trial precludes consideration of an issue on appeal. Benson v. State, 763 N.E.2d 748, 755 (Ind.
2002). Lynch cannot show fundamental error because any error was harmless, as discussed infra.
5
 All three counts were heard by a jury on July 18, 2011. The jury found Lynch guilty of Class C felony
battery and Class D felony strangulation, but the court declared a mistrial on the Class B felony criminal
confinement count. The second trial for the count of class B felony criminal confinement was held on
October 6, 2011, and is the subject of this appeal.
                                                     3
                       (C) is committed on an aircraft.

The jury heard voluminous graphic testimony that permitted a conviction under Ind.

Code § 35-42-3-3.

       During trial, R.S. testified the following facts occurred on the night in question.

Lynch threatened her, saying she would “not leave the house alive.” (Tr. at 277.) Lynch

repeatedly punched her with a closed fist and kicked her throughout the night of the

incident. R.S. did not feel like she could leave the house because Lynch had her trapped.

R.S. tried to call the police with her cell phone but Lynch jerked the phone out of her

hand and threw it in the other room. R.S. tried to escape out the bathroom window, but

Lynch broke the locked door and “grabbed me by the hair and drug [sic] me back to the

kitchen screaming, how dare I try to escape.” (Id. at 281.)6

       When R.S. was able, she attempted to run away again and made it out the door,

but Lynch caught up to her and dragged her back to the house by her hair. After being

dragged to the house, R.S. held on to the railing on the porch as Lynch kept trying to pull

her into his house. R.S.’s testimony as to this final fact was confirmed by testimony from

a neighbor who witnessed Lynch’s attempt to get R.S. back into her house against her

will. Officer Englemann testified there was blood throughout the house and R.S. was

injured.




6R.S. testified Lynch held a knife against her neck after her first escape attempt. A knife is a deadly
weapon for purposes of Ind. Code § 35-42-3-3(b)(2). Griesinger v. State, 699 N.E.2d 279, 283 (Ind. Ct.
App. 1998).
                                                  4
      In light of the overwhelming evidence of Lynch’s confinement of R.S., the

statement Lynch would bury R.S. “with the rest of them” could not have impacted

Lynch’s substantial rights. See Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)

(improper admission of evidence is harmless when the conviction is supported by such

substantial independent evidence of guilt that there is no substantial likelihood that the

questioned evidence contributed to the conviction). Accordingly, we affirm.

       Affirmed.

NAJAM, J., and KIRSCH, J., concur.




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