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. PLOUGH E 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, 2 013

MEMORANDUM DECISION

- NOT FOR PUBLICATION
GARRARD, Senior Judge2

Thomas Dunigan wa s 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 mis demeanor domestic battery conviction is

barred under the double jeopardy clause of Article 1, S ection 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 S tate 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 admitti ng “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 Bria n Clark Exhibits 15 and 20 through 23 were
offered into evidence and counsel for defendant stated, “No objection .” Tr. p. 85

.3

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 subst antial 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 be en shown concerning the

exhibits.

The convic tion for domestic battery as a C lass 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.