ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Pinnow Jeffrey A. Modisett
Attorney at Law Attorney General of Indiana
Deputy Attorney General
INDIANA SUPREME COURT
ANTHONY MCGREGOR, )
v. ) 49S00-9902-CR-115
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark F. Renner, Magistrate
Cause No. 49G04-9802-CF-030289
On Direct Appeal
March 24, 2000
The defendant-appellant, Anthony McGregor, was convicted of rape, as a class A felony,
and found to be a habitual offender.See footnote We affirm.
The defendant first challenges the trial court's choice of a jury instruction regarding
reasonable doubt. The court gave the instruction expressly approved in
State, 665 N.E.2d 893, 902 (Ind. 1996). The defendant requests that we
reconsider our holding in Winegeart. The State urges that the defendant waived
this claim on appellate review by failing to object contemporaneously to the giving
of this instruction as a final instruction, even though the defendant did object
to the giving of this instruction as a preliminary instruction.
Indiana Trial Rule 51(C) declares in part: "No party may claim as
error the giving of an instruction unless he objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to which he objects
and the grounds of his objection." See also Ind. Crim. Rule 8(B)
& (H). The appellate review of a claim of instruction error requires
a timely and precise trial objection. Scisney v. State, 701 N.E.2d 847,
849 (Ind. 1998). We require that an instruction objection at trial be
timely, clear, and specific to inform the trial court of the claimed error,
to afford an opportunity for timely correction and thus prevention of inadvertent error,
and to facilitate appellate review. Mitchem v. State, 685 N.E.2d 671, 675
(Ind. 1997); Smith v. State, 565 N.E.2d 1059, 1061 (Ind. 1991), overruled on
other grounds Albaugh v. State, 721 N.E.2d 1233, 1235 & n.5 (Ind. 1999);
Harvey v. State, 546 N.E.2d 844, 846 (Ind. 1989). The purpose is
not to create a procedural trap. Scisney, 701 N.E.2d at 848.
In the present case, the defendant timely objected to the trial court's preliminary
instruction No. 6 regarding reasonable doubt and tendered its proposed instruction as a
replacement. The trial court denied the defendant's request to give his tendered
instruction and instead gave its own instruction as proposed. The trial concluded
the next day. At the close of evidence, the defense did not
object to the court's reasonable doubt instruction, even though the court indicated that
it would again give the preliminary instructions as part of the final instructions.
In this two-day trial, where the defendant timely objected to the trial court's
proposed preliminary instruction on reasonable doubt, clearly presented to the trial court the
same objection he now raises on appeal, but did not again recite the
objection when the trial court re-read its preliminary instructions as part of the
final instructions, we decline to find waiver. See Lee v. State, 424
N.E.2d 1011, 1012 (Ind. 1981); but cf. Phillips v. State, 496 N.E.2d 87,
89 (Ind. 1986).
However, we find that the trial court did not err in giving its
reasonable doubt instruction. We expressly approved this instruction in Winegeart and have
since frequently considered and repeatedly approved the instruction, rejecting challenges such as those
made by the defendant here. See, e.g., Turnley v. State, No. 49S00-9812-CR-757,
2000 WL 295214, ___ N.E.2d ___, ___ (Ind. Mar. 21, 2000); Williams v.
State, No. 49S00-9901-CR-45, 2000 WL 254379, at *2, *3, ___ N.E.2d ___, ___
(Ind. Mar. 7, 2000); Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind. 1999);
Ford v. State, 718 N.E.2d 1104, 1105 (Ind. 1999); Barber v. State, 715
N.E.2d 848, 851-52 (Ind. 1999); Williams v. State, 714 N.E.2d 644, 650 (Ind.
1999), cert. denied 2000 WL 198110 (U.S. Ind. Feb. 22, 2000); Young v.
State, 696 N.E.2d 386, 390 (Ind. 1998); Tobias v. State, 666 N.E.2d 68,
69 (Ind. 1996). We decline to reconsider Winegeart.
The defendant also contends that the trial court abused its discretion by not
instructing the jury at the beginning of the habitual offender stage that the
jury was the judge of the law and the facts, although the jury
was twice previously so instructed. The defendant acknowledges that he failed to
request that the trial court again read this instruction to the jury and
that he failed to object to habitual offender phase final instruction No. 29,,
but the defendant asserts a claim of fundamental error to avoid the application
of procedural default. This is not fundamental error. Seay v. State,
698 N.E.2d 732, 737 (Ind. 1998). We find that this claim was
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-4-1.
Ind. Code § 35-50-2-8.