A jury fоund appellant William T. Phillips, Jr. guilty of murdering Jerry J. Cas-sell, and the trial court imposed the presumptive sentence of fifty-five years. Phillips appeals, claiming prosecutorial misconduct and improper admission of character evidence. We affirm.
Facts
At about 3:00 in the afternoon on April 9, 1998, Phillips shot and killed Cassell in Phillips’ home. Neighbors sаw Cassell enter the house and cuss loudly. Phillips then shot Cassell once in the left eye with a shotgun fired at close rаnge. Cassell fell backward onto the front porch. Phillips dragged the body inside onto a rug and then shut the door. He рut on rubber gloves, cleaned the porch, tore up the rug, put it in the basement, took the shotgun apart, hid it under thе couch, and put the spent shotshell casing into the living room heat register.
When the police came tо his house, he attempted to hide in the attic. He then approached an officer and admitted that he had killed Cassell.
I. Prosecutorial Misconduct
Phillips contends that several of ■ the prosecutor’s remarks during closing argument constituted miscоnduct and warranted reversal. Specifically, he points to evidence supporting the theory that there
Phillips’ counsel objеcted to the prosecutor’s comments the first time they were uttered, and the trial judge issued an admonition sua sрonte, telling the jury to rely on its memory of the evidence. The prosecutor then continued in the same vein, making the same comments to which Phillips’ counsel had already objected. While defense counsel did not renew his objection or request an additional admonishment, he did counter the prosecutor’s characterizаtion of the facts with his own version.
A defendant must do more than simply object promptly to alleged errors in clоsing argument. “To preserve an issue regarding the propriety of closing argument for appeal, a defеndant ... must also request an admonishment, and if further relief is desired, defendant must move for a mistrial.”
Wright v. State,
Here, Phillips’ counsel objected, but did not request an admonition, probably beсause the court gave one so promptly that a request was not necessary. We deem the issue preserved.
As for the merits of the claim, Phillips’ counsel correctly cites the standard for assessing claims of prosecutorial misconduct under
Maldonado v. State,
At trial, counsel for the parties vigorously disputed how many sets of keys there were, when and where the kеys were recovered, which ones were in evidence, and so on. Each lawyer disagreed with the other’s characterization of the evidence, but both seemed to have a basis in the evidence for their pоsitions. There was no misconduct. Judge Gull reminded the jury it should rely on its own memory of the evidence to sort out this dispute giving the matter the attention it warranted.
II. Evidence of Prior Altercation Between Defendant and Victim
Defense counsel claims error in the admission of evidence of “a prior physical altercation between Mr. Cаssell and Mr. Phillips.” (Appellant’s Br. at 15.) He argues that the evidence is inadmissible under Indiana Evidence Rule 404(b).
Rule 404(b) provides that evidence of other misconduct may not be admitted to prove that a defendant acted in cоnformity with a certain character trait. The rule was designed to prevent finders of fact from assessing present guilt on a defendant’s past propensities.
Hicks v. State,
The analysis of admissibility under Rule 404(b) incorporates the relevancy test of Rule 401 and the balancing test of Rule 403.
Hicks,
Relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Evid.R. 403. We review this balance for an abuse of discrеtion.
Hicks,
Conclusion
For the foregoing reasons, we affirm Phillips’ conviction.
