Brenda Varo v. State of Indiana

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:
VALERIE K. BOOTS GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
Apr 25 2013, 9:23 am
IN THE
COURT OF APPEALS OF INDIANA
BRENDA VARO, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1203-CR-144
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
Cause No. 49G06-1104-FB-25422
April 25, 2013
MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION
NAJAM, Judge
Brenda Varo has filed a petition for rehearing asking that we address an alleged
omission in our memorandum decision. See Varo v. State, No. 49A05-1203-CR-144
(Ind. Ct. App. 2012). We grant Varo’s petition for rehearing for the limited purpose of
addressing a single issue, namely, whether our memorandum decision omitted an issue
raised on appeal, namely, whether the trial court erred when it instructed the jury on the
offense of criminal gang activity. Upon review, we agree with Varo that our decision
does not address one of the issues raised in her appeal, namely, whether the trial court
erred when it instructed the jury on the offense of criminal gang activity. We conclude
that the error, if any, was waived. With that addition, we reaffirm our decision.
In 2010, the State charged Varo with conspiracy to commit aggravated battery, as
a Class B felony (“Count I”); conspiracy to commit battery, as a Class C felony (“Count
2”); and criminal gang activity, as a Class D felony (“Count 3”), arising from the
shooting of Chris Marin. Before trial began, the parties discussed the jury instructions
regarding Count 3. Varo requested the trial court instruct the jury on the definition of
“criminal gang” found in Indiana Code Section 35-45-9-1 because “it’s one of the
essential elements” of the offense. Transcript at 27. The State did not object, and the
trial court agreed to add that preliminary instruction. But Varo did not object to the
existing instruction on criminal gang activity, which mirrors the language of Indiana
Code Section 35-45-9-3 defining that offense. Rather, she approved the jury instructions
with the addition of the statutory definition of a criminal gang.
“It is well-established in both common law and rule that a party wishing to
preserve instructional error for appeal must identify the specific grounds for objection at
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the time of trial.” Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012) (citations omitted);
Ind. Crim. Rule 8(B) (“No error with respect to the giving of instructions shall be
available as a cause for new trial or on appeal, except upon the specific objections made
as above required.”); Ind. Trial Rule 51(C) (“No party may claim as error the giving of an
instruction unless he objects thereto . . . stating distinctly the matter to which he objects
and the grounds of his objection.”). A specific and timely objection is required “to
ensure that the trial court has every opportunity to avoid error ‘that might otherwise
require reversal and result in a miscarriage of justice and a waste of time and resources.’”
Kane, 976 N.E.2d at 1231 (citations omitted). Here, Varo contended for the first time on
appeal that the jury was not adequately instructed on the offense of criminal gang
activity. At trial, Varo requested the trial court instruct the jury on the definition of
“criminal gang” found in Indiana Code Section 35-45-9-1, and the trial court complied.
She does not show by citation to the record that she objected to the jury instructions on
Count 3, nor has our review of the record disclosed any such objection. As such, we hold
that Varo has waived the issue for review. See id. In all other respects, we affirm our
memorandum decision.
Affirmed on rehearing.
KIRSCH, J., and MAY, J., concur.
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