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:

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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. 
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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.