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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:
MARCE GONZALEZ, JR.
Dyer, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
FILED
IN THE
COURT OF APPEALS OF INDIANA
Dec 27 2011, 9:31 am
CLERK
of the supreme court,
court of appeals and
tax court
RONNIE MAJOR,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 45A03-1105-CR-220
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diane Ross Boswell, Judge
Cause No. 45G03-0810-FA-37
December 27, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Ronnie Major (“Major”) appeals from his conviction for battery1 as a Class C felony.
Major presents the following restated issues for our review:
I.
Whether the State committed prosecutorial misconduct during Major’s
trial; and
II.
Whether the trial court abused its discretion by allowing medical
testimony beyond the doctor’s scope of expertise.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 5, 2008, Ant-won Fortier (“Fortier”) returned to Gary from Indianapolis
with Jocelyn Blair (“Blair”) and a woman Fortier knew as “Sugar-Booty.” When they
arrived at Blair’s house, Sugar-Booty exited Fortier’s vehicle and began to walk toward the
house. Fortier, who had been driving, and Blair were still sitting in the vehicle when Major
arrived. Major parked his car approximately ten to fifteen feet from Fortier’s vehicle.
Major, who was Blair’s former boyfriend, immediately proceeded to shout obscenities
at Blair and punched her while she was seated in Fortier’s vehicle. Fortier asked Major to
leave because Blair’s children had come outside of the house. Major responded with more
obscenities and talked about needing his money and his truck.
Fortier again asked Major to leave, and Major continued to curse at Fortier. Major
approached Fortier with his fist balled and started swinging toward him. Major and Fortier
both threw punches and fought. Major ripped Fortier’s shirt and tore off his chain and
charm. They continued to fight, but eventually separated. Major continued to yell at Fortier,
1
See Ind. Code § 35-42-2-1.
2
and Fortier continued to ask Major to leave.
Major walked toward his vehicle and pulled a gun from his back while he was fifteen
feet from Fortier. Major then aimed his gun at Fortier. Fortier said, “Oh, you’re going to
shoot me now?” Tr. at 97. Major walked toward Fortier who stood still. Major tried to hit
Fortier with the gun, but Fortier threw up his arm and then heard a shot. Fortier received an
injury to his back and three wounds to his neck. He fell to the ground, and Major ran toward
Blair.
Major left soon thereafter, and people began shouting that Fortier had been shot.
Fortier went to the house, but left to drive himself to the hospital. Blair, who accompanied
him, took over driving because Fortier started to bleed profusely during the trip. Fortier was
hospitalized for three to four days. He suffered four bullet wounds on his upper shoulder and
left neck area.
The State charged Major with attempted murder, a Class A felony, aggravated battery
as a Class B felony, battery as a Class C felony, and battery as a Class A misdemeanor. The
jury found Major guilty of battery as a Class C felony. The trial court entered a judgment of
conviction on that count and sentenced Major to a term of six years, with two years executed.
Major now appeals.
DISCUSSION AND DECISION
I. Prosecutorial Misconduct
Major claims that the State engaged in prosecutorial misconduct during his jury trial
through the repeated use of evidentiary harpoons. When reviewing a claim of prosecutorial
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misconduct, we must first consider whether the prosecutor engaged in misconduct. Williams
v. State, 724 N.E.2d 1070, 1080 (Ind. 2000). We then consider whether the alleged
misconduct placed the defendant in a position of grave peril to which he should not have
been subjected. Id. “Whether a prosecutor’s argument constitutes misconduct is measured
by reference to case law and the Rules of Professional Conduct.” Cooper v. State, 854
N.E.2d 831, 835 (Ind. 2006). “The gravity of peril is measured by the probable persuasive
effect of the misconduct on the jury’s decision rather than the degree of impropriety of the
conduct.” Id.
Prior to trial, the defense filed a motion in limine asking the trial court to prohibit
Fortier from testifying that he had been shot three times. The trial court granted the motion
and explained that Fortier would be allowed to describe the injuries that he received, but
would not be able to characterize it as being shot three times. Tr. at 21. However, during his
cross-examination of Fortier, defense counsel asked Fortier if he told people at the hospital
that he had been shot just once. Id. at 120. The State objected, citing the prior order in
limine with which it had complied. The trial court alerted defense counsel that he had
potentially opened the door for the admission of that testimony. Later, during the crossexamination of Dr. Hung Dang (“Dr. Dang”), the physician who treated Fortier at the
hospital, Major elicited testimony that Fortier told him that he only remembered being shot
once. Id. at 231. The defense asked Dr. Dang to explain how Fortier could have received
four bullet wounds from one shot. Id. During closing argument, defense counsel argued that
only one bullet caused all four injuries.
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An order in limine is not a final determination of the admissibility of the evidence
referred to in the motion. Smith v. State, 506 N.E.2d 31, 35 (Ind. 1987). In order to preserve
error in the overruling of a pre-trial motion in limine, the appealing party must object to the
admission of the evidence at the time it is offered. Simmons v. State, 760 N.E.2d 1154, 1158
(Ind. Ct. App. 2002). Failure to object at trial constitutes waiver of review unless an error is
so fundamental that it denied the accused a fair trial. Mitchell v. State, 455 N.E.2d 1131,
1132 (Ind. 1983). Our Supreme Court has stated that the doctrine of fundamental error is
only available in egregious circumstances. See Brown v. State, 799 N.E.2d 1064, 1068 (Ind.
2003) (fundamental error available only in egregious circumstances).
During the cross-examination of Fortier, Major opened the door to the admission of
evidence of the number of shots that were fired, the characterization which Major
successfully prohibited by way of the motion in limine. “A party may not invite error, then
later argue that the error supports reversal, because error invited by the complaining party is
not reversible error.” Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995). “Generally, when a
defendant injects an issue into the trial, he opens the door to otherwise inadmissible
evidence.” Stokes v. State, 908 N.E.2d 295, 302 (Ind. Ct. App. 2009). Thus, any argument
on appeal that the State committed prosecutorial misconduct by way of violation of the order
in limine fails. The error was invited by Major during cross-examination.
Furthermore, Major has failed to establish fundamental error. Major has failed to
show that he was deprived of a fair trial. He introduced evidence that only one bullet caused
the injuries to Fortier. He also introduced, through his own testimony and during cross-
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examination, his defenses of self-defense and accident. There was no fundamental error
here.
We disagree with Major’s characterization of the State’s conduct as prosecutorial
misconduct through the repeated use of evidentiary harpoons. An evidentiary harpoon is the
placing of inadmissible evidence before the jury with the deliberate purpose of prejudicing
the jury against a defendant. Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002). The
evidentiary harpoon doctrine is a type of prosecutorial misconduct. Roberts v. State, 712
N.E.2d 23, 34 (Ind. Ct. App. 1999). However, a claim of prosecutorial misconduct is waived
when the defendant fails to immediately object, request an admonishment, and then move for
a mistrial. Reynolds v. State, 797 N.E.2d 864, 868 (Ind. Ct. App. 2003).
The portions of the record to which Major cites in support of his argument do not
show an objection based upon a violation of the order in limine. Instead, when Major did
object, the basis of the objection, more often than not, was foundational. We conclude that
Major has failed to establish that the State engaged in prosecutorial misconduct.
II. Medical Testimony
Major also challenges the trial court’s admission of certain medical testimony
claiming that in so doing the trial court abused its discretion. A trial court has broad
discretion in ruling on the admissibility of evidence. Edwards v. State, 930 N.E.2d 48, 50
(Ind. Ct. App. 2010). We will reverse a trial court’s ruling on the admissibility of the
evidence only when the trial court abuses its discretion. Id. An abuse of discretion occurs if
the decision is clearly against the logic and effect of the facts and circumstances before the
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trial court. Boggs v. State, 928 N.E.2d 855, 862 (Ind. Ct. App. 2010).
In particular, Major claims that Dr. Dang was not qualified to give expert opinions on
the number of times the victim was shot, which wounds were entrance wounds and which
were exit wounds, and the trajectory of the bullet or bullets. Indiana Evidence Rule 702
provides as follows:
(a) If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that
the scientific principles upon which the expert testimony rests are reliable.
In support of this argument, Major cites to the portion of the transcript containing Dr. Dang’s
direct testimony and deems it all to be “speculative.” Appellee’s Br. at 17 (citing Tr. at 196212).
We agree with the State that Major has failed to sufficiently develop his argument
with appropriate citations to the record and, thus, has waived this argument for review. See
Ind. App. Rule 46(A)(8)(a) (each contention must be supported by citations to parts of
appendix or record on appeal); Johnson v. State, 675 N.E.2d 678, 684 (Ind. 1996) (under
prior codification of same rule, insufficient statement of supporting citations to record does
not enable reviewing court to comprehend allegations in brief).
Potential waiver notwithstanding, we conclude that the trial court did not abuse its
discretion. Dr. Dang was Fortier’s treating physician at the hospital and had knowledge of
his wounds and the treatment of those wounds. His experience was in general surgery to the
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abdominal area, and he testified that he had treated many gunshots wounds. Dr. Dang
explained that through his experience in the treatment of gunshot wounds and through his
medical education he learned the difference between entrance and exit wounds and testified
about those differences. On cross-examination, he testified about Fortier’s wounds in such a
way that supported Major’s argument that Fortier’s wounds were caused by one bullet.
Furthermore, the trial court sustained Major’s objection to testimony about bullet trajectory.
The trial court did not abuse its discretion as Dr. Dang was not allowed to testify beyond the
scope of his expertise.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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