Robin McFarland v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
Oct 12 2012, 9:21 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRIS P. FRAZIER GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBIN MCFARLAND, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1203-CR-239
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc T. Rothenberg, Judge
Cause No. 49F09-0910-FD-46425
October 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Robin McFarland appeals her conviction for class D felony theft following a bench
trial. She argues that the trial court abused its discretion in admitting State’s Exhibit 1, a six-
photo array including McFarland’s photograph, because the out-of-court identification
procedure was unduly suggestive.
At trial, McFarland initially made an objection to the admission of Exhibit 1 based on
inadequate foundation, which the trial court sustained. Tr. at 24-25. Later, McFarland
objected to the admission of Exhibit 1 on the ground that there were other photo arrays
shown to the State’s witness that the defense had not seen. Id. at 48. The trial court granted
a continuance to permit the defense to examine the other photo arrays, which were the photo
arrays prepared regarding the other suspects in the crime. When trial resumed, defense
counsel stated that he had had a chance to review the other photo lineups and had no
objection to the admission of Exhibit 1. Id. at 56-57. Exhibit 1 was admitted.
McFarland specifically stated that she had no objection to Exhibit 1. When a party
expressly agrees to the admission of evidence, any error in its admission is invited error.
Oldham v. State, 779 N.E.2d 1162, 1171 (Ind. Ct. App. 2002), trans. denied (2003).
“Invited errors are not subject to appellate review, and a party therefore may not invite error,
and then subsequently argue that the error requires reversal.” Id. As any admission of
Exhibit 1 was invited error, it does not constitute reversible error. We therefore affirm
McFarland’s conviction.
Affirmed.
RILEY, J., and BAILEY, J., concur.
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