Without Limits: Court Of Appeals Of Indiana Finds No Problem With Limiting Instruction Given Before Introduction Of Evidence

Like its federal counterpart, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

But can a party only ask for a limiting instruction under Rule 105 only after the opposing party has introduced evidence admissible for one purpose but inadmissible for another, or can it ask for, and receive, such an instruction before such evidence is introduced? According to the recent opinion of the Court of Appeals of Indiana in State v. Velasquez, 2011 WL 601216 (Ind.App. 2011), the answer is that there is no need to wait.

In Velasquez,  Andy J. Velasquez, II was charged with child molesting as a class A felony and child molesting as a class C felony based upon acts allegedly committed against his stepdaughter G.S. Before trial, the State filed notices of intent to introduce evidence pursuant to Indiana Rule of Evidence 404(b) that Velasquez disciplined G.S. by striking her with a stick, made threats to G.S.'s mother, and made threats to G.S. The trial court held a hearing on this notice and deemed this character evidence admissible at trial.

Thereafter, at trial, before the prosecution introduced this character evidence, defense counsel asked for and the following limiting instruction: 

Evidence may be presented to you of incidents unrelated to the offenses charged. These incidents are only to be considered as they describe the relationship between G.[S]., and [Velasquez]. You may not consider it for any other reason. Specifically, you may not consider it as being evidence of [Velasquez]'s character, nor may it be considered as evidence that [Velasquez] acted in conformity with the acts charged.

The State subsequently presented the character evidence, and the jury later found Velasquez not guilty, prompting the State's appeal. And, according to the State, Rule 105 "allows for a limiting instruction or admonishment only at the time the evidence is offered and admitted." 

The Court of Appeals of Indiana disagreed, finding that 

We do not read Evidence Rule 105  as allowing an admonishment or limiting instruction only at the time evidence is offered. Instead, the purpose of the rule is "to enable a party to request a limiting admonishment at the time the evidence is offered, rather than waiting until the jury instructions."...Thus, a party may seek a limiting instruction or admonishment either prior to trial or at the time evidence is admitted....

In this case, Velasquez's counsel sought a limiting instruction prior to the presentation of evidence. While the more common practice may have been to admonish the jury at the time the character evidence was offered, and a limiting instruction is "usually" given after the presentation of evidence...we cannot say that the trial court in this case abused its discretion in giving a preliminary limiting instruction.

According to the court, the issuance of the instruction was not premature because the State had already secured a ruling that the character evidence at issue was admissible. Finally, the court rejected the State's argument the the instruction was confusing; instead, it applied the general presumption that jurors are presumed to follow courts' instructions.

-CM