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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.

FILED
Apr 12 2011, 8:42 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: PHILIP R. SKODINSKI South Bend, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRICE WEBB, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A05-1007-CR-517

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Jerome Frese, Judge Cause No. 71D03-0910-MR-23

April 12, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Brice Webb appeals his conviction for murder following a jury trial. He presents the following issues for review: 1. Whether the trial court erred when it allowed the State to charge Webb as an habitual offender beyond the statutory period allowed for amending charges. Whether the trial court abused its discretion when it admitted into evidence a videotape of Webbs interrogation by police but failed to give the jury a preliminary or final limiting instruction on that evidence. Whether the trial court erred when it refused to instruct the jury on the lesser included charge of reckless homicide.

2.

3.

We affirm. FACTS AND PROCEDURAL HISTORY On October 8, 2009, Webb shared an apartment with his girlfriend, Cherlyn Reyes. While their friends Shane Hillebrand and Ashley Gurrister were visiting the apartment that evening, the four watched a movie and drank beer and tequila. Gurrister also showed the others a handgun that she had recently purchased. The four friends played with the gun, firing it into the air outside and posing for photos with it. Gurrister always made sure there was not a bullet in the chamber each time she returned the gun to her purse. Shortly before nine oclock, Webb passed out, and Reyes and Gurrister left to visit a friend. When the women returned, Reyes looked through Webbs phone and found that he had been talking to another woman. "Cherlyn woke him up with a smack across the face[,]" and a verbal and physical fight ensued between the couple. Trial Transcript at
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353. Webb eventually punched Reyes in the jaw, knocking her briefly unconscious. Hillebrand and Gurrister repeatedly worked to break up the fight. After Reyes and Webb settled down, Reyes went in the bathroom and telephoned the woman with whom Webb had been talking on his phone. Webb followed her into the bathroom. When the couple began arguing again, Hillebrand and Gurrister once more broke up the fight. Later in the evening, shortly before midnight, Reyes went to the bathroom to phone a friend, Jessica Hoover. During the call, Webb entered the bathroom and then went to the living room, where he asked Hillebrand for a light for his cigarette. While in the living room, Webb took the gun from Gurristers purse and returned to the bathroom. While Reyes was still on the phone with Hoover, Webb began shouting, and Reyes got quiet. Reyes then said "Brice no," and Webb shot her in the head. Trial Transcript at 179. The phone connection between Reyes phone and Hoover was still live. Hoover heard Webb "screaming in the background, ,,Cherlyn, baby, wake up, wake up. " Id. She also heard a woman say, "Cherlyn, girl, its going to be all right, wake up, wake up, its going to be all right." Id. at 179-80. Hoover immediately called emergency dispatch and asked for someone to check on Reyes. After hearing the shot, Hillebrand and Gurrister headed toward the bathroom. They met Webb in an adjacent room, where he said, "I just shot my babys momma." Id. at 371. Hillebrand took the gun from Webb and told Gurrister to get him out of the apartment. After Gurrister left to take Webb to the home Hillebrand shared with his
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