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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
Mar 08 2011, 9:34 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: RUTH JOHNSON ELLEN M. O'CONNOR Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana WADE JAMES HORNBACHER Deputy Attorney General Indianapolis, Indiana

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

No. 49A04-1005-CR-265

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge Cause No. 49G06-0910-FA-86143

March 8, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Following a jury trial, Mark Kennedy was convicted of attempted murder,1 a Class A felony, and carrying a handgun without a license,2 a Class A misdemeanor, and was adjudged to be an habitual offender.3 Kennedy now appeals and asks for a new trial, claiming that the trial court abused its discretion by denying his motion for a mistrial after the State, during opening statements, referred to alleged prior bad acts, which violated the trial court's order in limine. We affirm. FACTS AND PROCEDURAL HISTORY On the afternoon of September 12, 2009, Edward Culver returned to his Indianapolis residence after working at Ziebart, where he had been employed for eighteen years. Culver did not have a bank account and often carried between $800 and $2000 in cash in his wallet. That evening, around 5:00 or 5:30 p.m., Culver was sitting at his computer playing online games, when there was a knock at his door. He opened it to find Kennedy, an acquaintance and former Ziebart coworker, along with a woman, whom Culver had met once before. Kennedy had worked for Ziebart for approximately one year, but had not worked there for some months prior to showing up at Culver's home. During that time period, Kennedy had begun working for another former-Ziebart employee, a manager, who left Ziebart employment and started his own automobile detailing business. Since leaving Ziebart,

1

See Ind. Code

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