BRIEN v. STATE (2023)

MEMORANDUM DECISION

[1] A jury convicted Michael O'Brien (“O'Brien”) of two counts of Level 5 felony intimidation,¹ Level 6 felony killing a domestic animal,² and Class A misdemeanor domestic battery.³ On appeal, O'Brien raises a fundamental error challenge to the trial court's admission of State's Exhibit 53, a series of text messages that O'Brien, while incarcerated, sent to a friend. At trial, after the State had agreed to redact from the text messages a reference to O'Brien's incarceration, the trial court asked O'Brien what was “the Defense position as to State's 53.” (Tr. Vol. 3 at 146-47). O'Brien responded that the defense “would not object as redacted[,]” which, in essence, is the equivalent of saying no objection. (Tr. Vol. 3 at 147). This Court has recently noted that “[o]ur supreme court has stated that ‘we will not review claims, even for fundamental error, when appellants expressly declare at trial that they have no objection.’ ” Maddox v. State, 213 N.E.3d 579, 579 (Ind. Ct. App. 2023) (quoting Taylor v. State, 86 N.E.3d 157, 161 (Ind. 2017), cert. denied). Accordingly, we will not review O'Brien's claim of fundamental error regarding the admission of State's Exhibit 53, and we affirm his convictions. See Maddox, 213 N.E.3d at 579-80.

[2] On cross-appeal, the State correctly points out that the trial court failed to enter a judgment of conviction and a sentence for O'Brien's Class A misdemeanor domestic battery conviction. We, therefore, remand this case to the trial court with instructions to enter a judgment of conviction and sentence for that conviction. See Ind. Code § 35-38-1-1 (requiring the trial court to enter a judgment of conviction after a guilty verdict) and I.C. § 35-50-1-1 (requiring the trial court to sentence a person convicted of an offense).

[3] We affirm O'Brien's convictions and remand with instructions for the trial court to enter a judgment of conviction and a sentence for O'Brien's Class A misdemeanor domestic battery conviction.

[4] Affirmed and remanded with instructions.

FOOTNOTES

1.   Ind. Code § 35-45-2-1.

2.   I.C. § 35-46-3-12.

3.   I.C. § 35-42-2-1.3.

Pyle, Judge.

Vaidik, J., and Mathias, J., concur.