author: WENTWORTH, J.

text:
    Vern R. GRABBE, Petitioner, v. CARROLL COUNTY ASSESSOR, Neda K. Duff, Respondent.
    No. 49T10-1108-TA-51.
    Tax Court of Indiana.
    Dec. 31, 2013.
    See also 1 N.E.3d 233, 2013 WL 6858795.

      Vern R. Grabbe, Lee, IL, pro se.
    Gregory F. Zoeller, Attorney General of Indiana, John P. Lowrey, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   WENTWORTH, J.

This case concerns whether the Indiana Board of Tax Review erred in upholding the 2009 assessment of Vern R. Grabbe's agricultural property. The Court finds it did not.

FACTS AND PROCEDURAL HISTORY

The subject property, two contiguous parcels of agricultural land, is located in Carroll County. One parcel consists of 3.664 acres and contains one hog building ("the 020 parcel"); the second parcel consists of 19.266 acres and contains two hog buildings and a utility shed ("the 015 parcel"). For the 2009 tax year, the subject property was assessed at $274,500 ($30,900 for land and $243,600 for improvements).

Grabbe believed the assessment was too high and sought review first with the Carroll County Property Tax Assessment Board of Appeals and then with the Indiana Board. On February 22, 2011, the Indiana Board held a hearing during which Grabbe presented four self-prepared anal-yses to demonstrate that the assessed value of the subject property should only be $218,262. On June 21, 2011, the Indiana Board issued a final determination finding that each of Grabbe's analyses lacked probative value. Consequently, the Indiana Board upheld the assessment in its entirety.

On August 1, 2011, Grabbe initiated this original tax appeal. The Court heard oral argument on March 9, 2012. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden to demonstrate that it is invalid. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010). Consequently, Grabbe must demonstrate to the Court that the Indiana Board's final determination is arbitrary, capricious, an abuse of discretion, unsupported by substantial or reliable evidence, or otherwise not in accordance with law. See Inp.CopE § 33-26-6-6(e)(1), (5) (2013).

LAW

In Indiana, real property is assessed on the basis of its market value-in-use: the value "of a property for its current use, as reflected by the utility received by the owner or a similar user, from the property." 2002 Rear Property Assessment Manual (Manual) (2004 Reprint) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp)) at 2. To determine a property's market value-in-use, assessing officials refer. to a series of guidelines that explain the valuation process for both land and improvements. See Real Property Assessment Guidelines For 2002-Version A (Guidelines) (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 and 2. While assessments made pursuant to these guidelines are presumed to: be accurate, a taxpayer may rebut this presumption with evidence that indicates that the assessment does not accurately reflect the property's market-value-in-use. Manual at 5. "Such evidence may include actual construction costs, sales information regarding the subject or comparable properties, appraisals that are relevant to the market value-in-use of the property, and any other information compiled in accordance with generally accepted appraisal principles." Id. Moreover, the taxpayer must show that his suggested value accurately reflects the property's true market value-in-use (and, consequently, that the assessor's assessed value does not). See Eckerling v. Wayne Twp. Assessor, 841 N.E.2d 674, 678 (Ind. Tax Ct.2006).

ANALYSIS

While Grabbe raises several issues on appeal, the Court restates the dispositive issue as whether the Indiana Board's final determination must be reversed because it is unsupported by substantial and reliable evidence and is contrary to law. In support of his claim, Grabbe asserts that because he presented probative evidence consisting of his analyses using an allocation approach, a cost approach, an income approach, and a market data approach, the Indiana Board erred in upholding his property's $274,500 assessment.

The Allocation Approach

Grabbe first provided an alternate value calculation based on the allocated April 17, 2008, sales price of his property. This allocation approach valued the subject property at $218,262 ($30,900 for the land and $187,362 for the hog buildings). (See Cert. Admin. R. at 123-28.) To determine the value of the hog buildings, Grabbe allocated the subject property's April 17, 2008, sales price of $350,000 between each parcel, valuing the 020 parcel at $146,611 and the 015 parcel at $203,389. (See Cert. Admin. R. at 123-28.) From these figures, Grabbe deducted: (1) the value of the one-acre homesites on each parcel as recorded on the property record cards ($11,240 for the 020 parcel and $3,890 for the 015 parcel); (2) the value of the remaining land, which was based on Grabbe's "recollection" of the per acre sales price of nearby land ($14,098 for the 020 parcel and $96,831 for the 015 parcel); and (8) the value of the personal property located on the parcels at the time of sale ($9,021 for the 020 parcel and $27,558 for the O15 parcel) based on his 2009 personal property tax returns. (See Cert. Admin. R. at 123-28, 175-80, 313-14, 320-22.) Grabbe contends that the Indiana Board erred in determining that this approach lacked probative value because his allocation of value between the hog buildings, the personal property, the agricultural land, and the non-agricultural land was "logical." (See Pet'r Br. at 7-8.)

Grabbe's allocation approach appears to incorporate two different appraisal methodologies, the allocation method and the abstraction method. The allocation method, which is used to estimate the value of land, "is based on typical ratios of land value to improvement value for specific categories of real property." Appraisal Inst., The Appraisal of Real Estate 335, 340 (12th ed.2001); see also Int'l Ass'n or Assessing Officers, Property Asssessment Valuation 88 (2nd ed.1996). The abstraction method, which is also used to estimate the value of land, "involves subtracting the depreciated replacement cost of improvements from the sale price of an improved property[; tlhe remainder is an indication of the land value for that property." Int'l Ass'n or Assessing Officers, supra, at 88-89; see also Appraisal Inst., supra, at 339-40. The certified administrative record, however, does not indicate whether Grabbe's use of these two methodologies comported with any generally accepted appraisal principles, which is required to rebut the presumption of accuracy accorded to an assessment made pursuant to Indiana's assessment guidelines. See Manual at 5.

For example, Grabbe explained how he allocated the sales price to each parcel, stating, "I allocated $146,611 as the purchase price to [the 020 parcel] and then I allocated $203,389 to [the O15 parcel]. Now again, I really don't care which way they go because the total is what I'm more interested in." (Cert. Admin. R. at 314.). Moreover, Grabbe did not present any evidence to show that his assumptions about how much of the purchase price to allocate were reliable by relating them, for example, to the market values-in-use of similar properties. See Aprpraisal Inst., supra, at 340 (explaining that the allocation approach requires the use of market data). Consequently, the Court finds that the Indiana Board's determination that Grabbe's allocation approach lacked probative value was based on substantial evidence and consistent with the law.

The Cost Approach

Grabbe also presented an estimated value of his property using a cost approach analysis, which valued the property at $188,320 ($30,900 for the land and $157,420 for the hog buildings) (See Cert. Admin. R. at 208.) Grabbe estimated the value of the property under the cost approach by taking an obsolescence depreciation adjustment for the hog buildings' antiquated designs and use of lagoon manure storage systems. See note 4. (See also Cert. Admin. R. at 163-72, 322-27.)

The Indiana Board determined that Grabbe's cost approach lacked probative value because it failed to link the identified causes of obsolescence to an actual loss in property value. (See Cert. Admin. R. at 49-50 (explaining, for example, that Grabbe did not show that a hog facility with a lagoon manure storage system was worth 15% less than a facility with a deep pit manure storage system).) Grabbe, however, claims that the Indiana Board's rejection of his cost approach seeks the "impossible" with respect to the quantification of obsolescence. More specifically, he explains that while the quantification of obsolescence involves the use of the sales comparison approach, a lack of sales data on hog facilities makes it virtually impossible to quantify the obsolescence affecting the subject property. (See Oral Arg. Tr. at 39; Pet'r Br. at 9.)

The cost approach estimates the value of the land as if vacant and then adds the depreciated cost of the improvements as if new to arrive at a total estimate of value. Manual at 3. Functional obsolescence, the type of obsolescence at issue here, is a form of depreciation that reflects a loss of value caused by an improvement's internal inutilities. See Guidelines, Bk. 2, App. F at 4. Generally, the type of inutility present in an improvement influences the methodology used in quantifying functional obsolescence. See Guidelines, Bk. 2, App. F at 9-12; see also, e.g., Appraisal Inst., supra, at 403-12. Thus, Grabbe was not limited to the use of the sales comparison approach to quantify the claimed functional obsolescence. Nonetheless, Grabbe failed to present any objective evidence other than his own conclusory assumptions, and therefore, the Indiana Board's determination that Grabbe's cost approach lacked probative value is based on substantial and reliable evidence and comports with the law.

The Income Approach

Grabbe also presented an estimate of his property's value at $191,401 using an income approach analysis. (See Cert. Admin. R. at 204.) Grabbe arrived at this value by deducting $47,558 in expenses (including $3,420 in property taxes) from the property's 2002 and 2003 gross rent of $90,000 to arrive at a net income of $42,442. (See Cert. Admin. R. at 204, 302.) Next, Grabbe applied a 20% capitalization rate to the net income, which was derived from the appraisal of another hog farm. (See Cert. Admin. R. at 204, 302.) To that figure (La, $212,210), Grabbe added a land value of $15,770 (as derived from the property record cards) and then deducted $36,579 of personal property for a total of $191,401. (See Cert. Admin. R. at 204, 302-03.)

The Indiana Board determined that Grabbe's income approach estimate lacked probative value because Grabbe improperly deducted property taxes as an expense and he did not support his use of a 20% capitalization rate. (See Cert. Admin. R. at 48.) Grabbe contends, however, that the Indiana Board erred in determining that his income approach lacked probative value because the Indiana Board's "high standards" and "unreasonable requirements" regarding this approach effectively require taxpayers to submit appraisals to prove the invalidity of their assessments. (See Oral Arg. Tr. at 9-10; Pet'r Br. at 8-9.) According to Grabbe, that level of evaluation conflicts with current Indiana law that plainly provides that a taxpayer need not submit an appraisal to appeal an assessment. (See Pet'r Br. at 8-9.) See also Ind.Code § 6-1.1-15-3(f) (2010).

This Court has repeatedly stated that the valuation of property is the formulation of an opinion, not an exact science. See, e.g., Millennium Real Estate Inv., LLC v. Assessor, Benton Unty., 979 N.E.2d 192, 197 (Ind. Tax Ct.2012), review denied; Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 502 (Ind. Tax Ct.2010). Nonetheless, Indiana law makes clear that the probative value of an opinion depends on whether the proponent of that opinion has shown that he adhered to generally recognized appraisal principles in formulating the opinion. See Manual at 3, 5. This requirement remains the same whether an assessing official, an appraiser, or a taxpayer is the proponent of the opinion. See, e.g., Inland Steel Co. v. State Bd. of Tax Comm'rs, 739 N.E.2d 201, 220 (Ind.Tax Ct.2000) (explaining that an appraiser's use of a producer price index does not, in and of itself, establish that he complied with generally accepted appraisal standards), review denied. The Indiana Board, therefore, did not adopt an unreasonable requirement or apply some artificially high standard in determining the probative value of Grabbe's income approach.

Grabbe did not demonstrate that his deduction of property taxes as an expense was proper under generally accepted appraisal standards. See Millennium, 979 N.E.2d at 196-97 (discussing the propriety of deducting property taxes as an expense for ad valorem tax purposes). Moreover, while Grabbe's evidence provided that the capitalization rates of certain hog facilities ranged from 8% to 20%, he did not provide any evidence demonstrating why a rate of 20% is proper in this case or why the property from which he derived his 20% capitalization rate was comparable to his own property. (See Cert. Admin. R. at 204-07, 301-03.) Consequently, the Court finds that the Indiana Board's determination that Grabbe's income approach lacked probative value is supported by substantial and reliable evidence and is not contrary to law.

The Market Data Approach

Finally, Grabbe calculated the value of his property using a market data approach, which valued the subject property at $184,311 based on the sales data from three other hog farms (hereinafter, "the comparison farms"). (See Cert. Admin. R. at 210.) Thus, Grabbe's market data approach is comparable to the sales comparison approach to value, which "estimates the total value of the property directly by comparing it to similar, or comparable, properties that have sold in the market." Manual at 3. Grabbe's market data approach involved four steps:

Step 1) Determined the value of the hog buildings on the comparison farms by deducting from their total sales prices the value of the homes, certain land, and tool sheds on these properties;
Step 2) Calculated the "price per pig space" of the hog buildings on the comparison farms by dividing the number of pig spaces in each building by the value of the building as determined in Step 1;
Step 3) Determined the value of his hog buildings (which included the value of the personal property) by multiplying their price per pig space by their number of pig spaces;
Step 4) Arrived at a final estimate of value for his property by adding the value of the land and the value of the hog buildings, and then subtracting the value of the personal property.

(See Cert. Admin. R. at 210-17, 304-08.)

The Indiana Board determined that Grabbe's market data approach lacked probative value because he neither explained nor submitted any documentary evidence to indicate how he determined the value of the homes, the other land, and the tool sheds on the comparison farms. (See Cert. Admin. R. at 50-51.) Grabbe claims, however, that the Indiana Board erred in finding that his market data approach lacked probative value because the certified administrative record contains evidence of the values of those items. (See Pet'r Br. at 10.) To support this claim, Grabbe directs the Court to three photocopied pages of an Indiana Board final determination in another case. (See Pet'r Br. at 10 (citing Ex. 2).) That evidence, however, was not presented to the Indiana Board during the course of the administrative proceedings in this case and, therefore, the Court may not consider it now. See State Bd. of Tax Comm'rs v. Gatling Gun Club, Inc., 420 N.E.2d 1324, 1326-28 (Ind.Ct.App.1981) (explaining that the Court generally may not consider evidence that a taxpayer fails to submit to the Indiana Board); see also Inp.Copr § 83-26-6-8 (2010). Accordingly, Grabbe failed to demonstrate that the Indiana Board's determination that his market data approach lacked probative value is unsupported by substantial and reliable evidence or is contrary to law.

CONCLUSION

For the above-stated reasons, the Court finds that the Indiana Board's determination upholding the 2009 assessment of Grabbe's agricultural property is supported by substantial and reliable evidence and is not contrary to law. Accordingly, the Indiana Board's final determination is AFFIRMED.

      . For example, Grabbe claims that the Indiana Board's final determination must be reversed because each paragraph of the final determination contains one or more errors. (See Pet'r Br. at 1-18.) Grabbe also claims that the Indiana Board showed bias because it failed to describe the subject property as "agricultural" or "farm" land, it repeatedly stated "Mr. Grabbe argues" or "Petitioner argues" instead of he "put forth" or he "testified[,]" and it merely assumed the Assessor used Indiana's assessment guidelines to assess his property. (See Pet'r Br. at 1-2, 4-5.) These conclusory claims, however, are not dispositive.

      . Grabbe's land value of $30,900 was the same as the Assessor's valuation of the land. (See Cert. Admin. R. at 175-81.) In addition, it appears that Grabbe is not challenging the valuation of his utility shed because he only provided an estimate of value for his hog buildings. (See, e.g., Cert. Admin. R. at 123-26.)

      . Grabbe also claims the Indiana Board erred in discounting his testimony regarding the per acre sales price of the nearby land because he testified under oath and his testimony was not contradicted. (See Pet'r Br. at 6-8). The Indiana Board discounted Grabbe's testimony because, among other things, he did not present any substantiating evidence. (See Cert. Admin. R. at 46-47.) The Court, therefore, finds Grabbe's claim improperly invites the Court to reweigh his testimony and assess his credibility, two functions that this Court may not undertake on appeal. See Freudenberg-NOK Gen. P'ship v. State Bd. of Tax Comm'rs, 715 N.E.2d 1026, 1030 (Ind. Tax Ct.1999), review denied.

      . Grabbe arrived at the $157,420 value by: (1) multiplying the adjusted rates of the buildings (as recorded on the property record cards) by their square footage; and (2) adjusting that figure by the amount of physical depreciation (as recorded on the property record cards) and obsolescence depreciation (as computed by Grabbe). (See Cert. Admin. R. at 163, 167, 208, 303-04.)

      . Grabbe also claims that the Indiana Board should have reduced the assessment on the 020 parcel because he established, and the Assessor agreed, that the measurements of the hog building on that parcel were overstated by 1,296 square feet. (See Cert. Admin. R. at 319-20, 374; Pet'r Br. at 10). The Indiana Board found, however, that Grabbe's market-based evidence did not establish that a reduction was proper. (See Cert. Admin. R. at 45 (explaining that the subject property's sales price less the value of the personal property still exceeded its assessed value).)

      . Under the income approach, the income expected to be earned by a property is estimated, allowing for reasonable expenses and other losses to arrive at net operating income (NOI). Hometowne Assocs., L.P. v. Maley, 839 N.E.2d 269, 275 (Ind. Tax Ct.2005). The NOI is then converted to a present value by dividing it by a capitalization rate which
      generally reflects the annual rate of return necessary to attract investment capital and is influenced by such factors as "apparent risk, market attitudes toward future inflation, the prospective rates of return for alternative investments, the rates of return earned by comparable properties in the past, the supply of and demand for mortgage funds, and the availability of tax shelters."
      Id. (citation omitted).

      . The Indiana Board also determined that Grabbe's income approach lacked probative value because he "only made vague references to 'predominate lease contract arrangements' to support his income estimate and unnamed 'universities and private sources' to support his expense calculations." (Cert. Admin. R. at 48.) This determination is not supported by substantial evidence because Grabbe's income and expense estimates were based on the subject property's actual income and expenses, not the cited data. Nonetheless, given the totality of the evidence, this error by itself does not warrant reversal of the Indiana Board's determination with respect to the probative value of Grabbe's income approach.

      . Grabbe estimated his price per pig space at $42.50 because he believed his property was most like his third comparable, a hog facility located in another county, which he valued at $40.13 per pig space. (See Cert. Admin. R. at 210, 306-07.)

      . Grabbe also claims that the Indiana Board erred in permitting Brian Thomas of Ad Valo-rem Solutions to represent the Assessor during the Indiana Board hearing because the Power of Attorney form was defective: the Assessor was the named taxpayer, the last four digits of the social security number were not provided, no employer identification number was provided, and the term of representation was improper (e., "current-2020"}. (See Pet'r Br. at 15-16, Ex. 5.) The Indiana Board found the Power of Attorney form contained the information required under 52 LAC. 2-3-2. (See Cert. Admin. R. at 36 n. 2). The Court, having reviewed the requirements of 52 I.A.C. 2-3-2, finds that the Indiana Board's determination is based on substantial and reliable evidence and is not contrary to law.


source: Caselaw Access Project

license: Public Domain

text:
    Vern R. GRABBE, Petitioner, v. CARROLL COUNTY ASSESSOR, Neda K. Duff, Respondent.
    No. 49T10-1206-TA-35.
    Tax Court of Indiana.
    Dec. 31, 2013.
    Vern R. Grabbe, Lee, IL, Petitioner Appearing Pro Se.
    Beth H. Henkel, Law Office of Beth Henkel, LLC, Indianapolis, IN, Attorney for Respondent.
   WENTWORTH, J.

This case concerns whether the Indiana Board of Tax Review erred in applying Vern R. Grabbe's 2009 agricultural property assessment to the 2010 tax year. The Court finds it did not.

FACTS AND PROCEDURAL HISTORY

Vern Grabbe owns two contiguous parcels of agricultural land in Carroll County ("the subject property"). One parcel consists of 3.664 acres and contains one hog building ("the 020 parcel"); the other parcel consists of 19.266 acres and contains two hog buildings and a utility shed ("the 015 parcel"). For the 2010 tax year, the subject property was assessed at $306,900 ($31,500 for land and $275,400 for improvements), an 11% increase over the previous year's assessment of $274,500 ($30,900 for land and $243,600 for improvements).

Grabbe subsequently challenged the assessed values assigned to his hog buildings, first with the Carroll County Property Tax Assessment Board of Appeals and then with the Indiana Board. On February 14, 2012, the Indiana Board held a hearing during which Grabbe presented, among other things, four self-prepared analyses as evidence to demonstrate that the assessed value of the subject property should only be $218,862. In response, the Assessor conceded that the valuations of the hog buildings on the 015 parcel were incorrect, but argued that the original assessment should nonetheless be upheld. On May 10, 2012, the Indiana Board issued a final determination, valuing Grabbe's property the same as its 2009 assessed value of $274,500.

On June 18, 2012, Grabbe filed this original tax appeal. The Court heard oral argument on March 8, 2018. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden to demonstrate that it is invalid. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind.Tax Ct.2010). Consequently, Grabbe must demonstrate to the Court that the Indiana Board's final determination is arbitrary, capricious, an abuse of discretion, unsupported by substantial or reliable evidence, or otherwise not in accordance with law. See Ind.Code § 33-26-6-6(e)(1), (5) (2013).

ANALYSIS

The Indiana Board's final determination, as a preliminary matter, found that the Assessor bore the burden of showing that the 2010 assessment of the subject property was correct under the 5% burden-shifting rule contained in Indiana Code § 6-1.1-15-17.2. Neither party presents any real dispute as to this determination on appeal.

Grabbe, however, appeals two issues that the Court restates as: (1) whether the Indiana Board's determination that Grabbe's evidence failed to make a prima facie case that his assessment should be reduced to $218,862 for the 2010 tax year is supported by substantial and reliable evidence or is contrary to law, and (2) whether the Indiana Board's determination that Grabbe's 2010 assessment must be reduced to its 2009 assessed value is contrary to law.

(1)

Grabbe first contends that the Indiana Board's determination that he failed to make a prima facie case because his evidence consisting of four analyses an allocation approach, a cost approach, an income approach, and a market data approach-lacked probative value is incorrect. (See Pet'r Br. at 4-6.) As a result, Grabbe requests that the Court reduce his assessment to $218,862 for the 2010 tax year.

This Court has previously explained that when a taxpayer challenges the validity of his assessment he must make a prima facie case by presenting probative evidence regarding the alleged assessment error. See Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 468 (Ind. Tax Ct.2005), review demied. Moreover, the Court has explained that evidence is probative if it is "sufficient to establish a given fact that, if not contradicted, will remain sufficient." Meadowbrook N. Apts. v. Conner, 854 N.E.2d 950, 953 (Ind. Tax Ct.2005) (citation omitted). Slightly over two years ago, Grabbe initiated an original tax appeal challenging the subject property's 2009 assessment. See Grabbe v. Carroll Cnty. Assessor (Grabbe I), No. 49T10-1108-TA-51, slip op. at 2, 1 N.E.3d 226, 227, 2013 WL 6858577 (Ind. Tax Ct. Dec. 31, 2018). In that case, Grabbe presented the same four analyses as here-an allocation approach, a cost approach, an income approach, and a market data approach-to show that his 2009 assessment was incorrect. See id. at 228-32. The Court affirmed the Indiana Board's finding in the prior appeal that each of Grabbe's analyses lacked probative value because he failed to show that his analyses comported with generally accepted appraisal principles. See id. at 227-33.

The certified administrative record in this case reveals that Grabbe used the same four analyses to estimate the value of the subject property for the 2010 tax year. (Compare Cert. Admin. R. at 109-12, 117-18, 126, 148-55, 158-67, 212-38, 260-76 and Revised Cert. Admin. R. at 310-13, 317-22 (all regarding Grabbe's 2010 analy-ses)) with Grabbe I, No. 49T10-1108-TA-51, slip op., at 4-12, 1 N.E.3d at 228-33 (describing Grabbe's 2009 analyses). In addition, the administrative record in this case reveals that once again Grabbe did not present evidence to demonstrate that his use of these analyses comported with generally accepted appraisal principles. Consequently, the Court finds that the Indiana Board's determination that Grabbe failed to make a prima facie case because his evidence lacked probative value is supported by substantial and reliable evidence and is not contrary to law.

(2)

Grabbe also maintains that the Indiana Board's determination that the 2010 assessment of his property should be the same as the 2009 assessment of his property is contrary to law. Grabbe claims that once the Assessor failed to meet its burden to show that his 2010 assessment was correct under the 5% burden-shifting rule, the Indiana Board should have adopted his uncontradieted valuation of the subject property rather than use the prior year's assessed value. (See Oral Arg. Tr. at 10; Pet'r Reply Br. at 2, 6-8; Petr Br. at 2.) Grabbe reasons that the General Assembly enacted the 5% burden-shifting rule in order to put taxpayers and assessors "on a bit more level playing field." (Pet'r Reply Br. at 6.) Moreover, Grabbe maintains that the 5% burden-shifting rule does not require that a prior assessment be the default value when an assessing official fails to meet his burden. (See Pet'r Reply Br. at 2, 6-8.)

Here, the Indiana Board first determined that the Assessor failed to establish that the 11% increase to Grabbe's 2009 assessment for the 2010 tax year was correct. (See Cert. Admin. R. at 63-64.) The Indiana Board also determined that Grabbe's evidence that his property should be assessed for less than its 2009 assessed value lacked probative value, and therefore, the Indiana Board had no reason to conclude that Grabbe's valuation of the subject property was indicative of its 2010 market value-in-use. (See Cert. Admin. R. at 64-70.) Accordingly, the Indiana Board applied the subject property's 2009 assessment, which the Court finds was reasonable given that neither of the parties presented probative evidence as to the subject property's market value-in-use for the 2010 tax year. Consequently, the Court finds that the Indiana Board's determination that Grabbe's 2010 assessment must be reduced to its 2009 assessed value is not contrary to law.

CONCLUSION

For the above-stated reasons, the Indiana Board correctly applied Grabbe's 2009 agricultural property assessment to the 2010 tax year. Accordingly, the Indiana Board's final determination is AFFIRMED.

      . During the Indiana Board hearing, one of Grabbe's witnesses testified that the hog buildings on the O15 parcel were partially slatted and contained "V-shaped" pits that were, at most, 3 to 3 !4 feet deep. (See Cert. Admin. R. at 187-97.) Based on that testimony, the Assessor conceded that she erred in valuing the buildings as if they had full slats and 8-foot deep pits. (See Cert. Admin. R. at 290-92.)

      . The Assessor did claim that the Indiana Board erred in retroactively applying Indiana Code § 6-1.1-15-17.2. (See Oral Arg. Tr. at 48-49, 57.) Nonetheless, this argument is meaningless after the Court's decision in Orange County Assessor v. Stout, 996 N.E.2d 871, 873-75 (Ind. Tax Ct.2013).

      . In 2010, Indiana's real property assessments were to reflect a property's market value-in-use (%.e., the value of a property "for its current use, as reflected by the utility received by the owner or a similar user, from the property'"). See 2002 Rear Property Assessment Manual (2004 Reprint) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 2.

      . Grabbe also claims that the Indiana Board's reinstatement of his 2009 assessment for the 2010 tax year effectively required him to show that the 2009 assessment was wrong. (See Oral Arg. Tr. at 27-29; Pet'r Reply Br. at 7-8.) Grabbe is mistaken because the 2009 tax year was not at issue, and therefore, he was not required to demonstrate that the subject property's 2009 assessment was incorrect.


author: RUCKER, Justice.

text:
    Tyrice J. HALLIBURTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 20S00-1206-LW-560.
    Supreme Court of Indiana.
    Dec. 19, 2013.

      Joel C. Wieneke, Cara Schaefer Wien-eke, Wieneke Law Office, LLC, Plainfield, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Kelly A. Mik-los, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

The State charged Tyrice J. Halliburton with murder and alleged he was a habitual offender. The State also sought life imprisonment without parole. After a trial by jury Halliburton was found guilty as charged and the jury recommended life imprisonment. Following this recommendation, the trial court sentenced Halliburton accordingly. He now appeals contending the trial court erred in admitting certain evidence and gave the jury an erroneous limiting instruction. We affirm the judgment of the trial court.

Facts and Procedural History

On March 18, 2008, responding to a 911 call, police discovered the lifeless body of Sheena Kiska in her apartment in Bristol, Indiana. The base of her skull was fractured, a stab wound of great force had gone through a rib and organs, and a knife wound had severed her carotid artery as well as the jugular veins on both sides of her neck. In all, Kiska had received more than fifty stab wounds. Multiple bloody knives were found in the apartment, and blood splatters, smears, and droplets were abundant in the apartment. Two days later officers returned to the apartment to conduct further investigation but were unable to gain entry because other officers had changed the lock on the door for security reasons. Halliburton, who lived in the apartment next door, observed the officers having difficulty entering Kiska's residence and retrieved a tool from his own apartment that appeared to be "a little screwdriver that kind of hald] a bend on the top of it." Tr. at 225. With the officers' permission, Halliburton used the serewdriver to unlock the door in a manner the officers "had never seen" before. Tr. at 225.

Halliburton was interviewed by the police three different times in the days following Kiska's death. During the first and second interviews, Halliburton stated that he left for a veterinary appointment at 1:15 the afternoon of the killing but claimed to have seen Kiska and her daughter standing outside by a white truck when he left, During the third interview, Halliburton initially began by reiterating his prior story but then offered a different account of what he had seen that day. During this interview, Halliburton claimed that he saw another resident in the hallway exiting Kiska's apartment as he was leaving for the veterinarian. He further declared that he heard noises coming from Kiska's apartment at which point he "propped the door just a little bit," Tr. at 420, and "saw [the resident] in there cutting her up." Tr. at 421. Halliburton described the layout of Kiska's apartment and was "[vlery detailed" about where the furniture was located and where the attack occurred. Tr. at 426. He identified the exact locations of where she had been stabbed and said that Kiska's face looked like "a piece of meat." Tr. at 429. Halliburton also said that Kiska had been attacked because "she came in at the wrong time." Tr. at 481. After the interview, the investigating officer tried to confirm Halliburton's claim with respect to where he said he had been standing when he peered through Kiska's door and purportedly witnessed the attack. However, the officer determined that it would have been physically impossible for Halliburton to have seen the attack from a crack in the door; instead he had to have been at least "two to three feet" inside the apartment. Tr. at 488. Around this same time officers recovered from Halliburton's car a DVD player that had been taken from Kiska's apartment about a month earlier.

The investigation continued, and in August 2010, Halliburton sent a letter to the police saying, "I want to clear [the resident's] name. I didn't really see him doing it." Tr. at 433-34. In January 2011, the State charged Halliburton with murder. Alleging he committed the murder by intentionally killing the victim while committing or attempting to commit burglary-pursuant to Indiana Code section 35-50-2-9(b)(1)(B)-the State filed an amended information in January 2012 seeking life imprisonment without parole. The State also charged Halliburton as a habitual offender.

Trial began April 16, 2012. During the guilt phase, testimony largely from State's witness Nicole DeFronzo revealed that in early 2008 she and her then-boyfriend Halliburton lived together in an apartment next door to Kiska. On March 18, 2008, Halliburton took his cat to a veterinary appointment where he had arranged to meet DeFronzo. Halliburton told De-Fronzo that he had entered Kiska's apartment when she was not there. However, Kiska came home unexpectedly, and a struggle ensued resulting in her brutal death. More precisely, according to De-Fronzo, Halliburton told her that when Kiska came home, "he didn't want to get caught so he killed her." Tr. at 523. Halliburton left Kiska's apartment and changed his bloody clothes. DeFronzo helped dispose of the clothes and they drove to the home of DeFronzo's mother, a registered nurse, who bandaged a wound on Halliburton's hand. For over three years DeFronzo did not reveal to anyone what Halliburton had told her about Kis-ka's death. Nor had she revealed her own complicity in helping get rid of evidence.

During trial the State introduced numerous exhibits including photographs of the crime scene, pre and post autopsy photographs, and a rib bone of the victim that had been removed during autopsy. The State also introduced evidence that Halliburton had committed a burglary of Kiska's apartment approximately a month prior to the killing; and for which the trial court gave a limiting instruction. Further the State called DeFronzo's mother as a witness who testified, among other things, that she had counseled her daughter to come forward with what she knew and "to tell the truth." Tr. at 484.

The jury found Halliburton guilty of murder as charged. At the penalty phase of trial, the jury recommended life imprisonment without parole. And thereafter Halliburton admitted to being a habitual offender. Following a sentencing hearing the trial court sentenced Halliburton consistent with the jury's recommendation. Halliburton seeks review raising four claims of error which we rephrase as the following two: (1) did the trial court err in admitting certain evidence, and (2) was the trial court's limiting instruction erroneous. Pursuant to Indiana Appellate Rule 4(A)(1)(a) this Court has mandatory and exclusive jurisdiction over this appeal. Additional relevant facts are set forth below.

Discussion

I. Admission of Evidence

Halliburton alleges the trial court erred in admitting the following: various pre and post autopsy photographs, purported bad acts evidence of Halliburton's prior involvement in a burglary at the victim's home, and alleged vouching testimony from one of the State's witnesses. "A trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its rulings only where it is shown that the court abused that discretion." Turner, 953 N.E.2d at 1045. "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and cireum-stances before it." Id.

A. Admission of Photographs

The trial court admitted into evidence exhibits which Halliburton characterizes as "#7 gruesome photographs depicting all or part of Kiska's body after her murder." Br. of Appellant at 8-9 (emphasis in original). However, Halliburton objected only to five of these photographs: State's Exhibits 11, 12, 68, 76, and 77. Thus we examine whether the trial court abused its discretion in admitting these five exhibits over Halliburton's objection. As for the remaining photographs, Halliburton has the burden of demonstrating that their admission amounted to fundamental error.

State's Exhibits 11 and 12 show two different angles of Kiska's body as seen by the investigating officer when he arrived on the crime seene. In both photographs the face of the body is covered in blood and there are apparent knife wounds to the neck. Halliburton objected to their admission into evidence on grounds they "[would inflame] the passions of the jury, and that [they] would be highly prejudicial to be admitted." Tr. at 79, 82.

"[Glenerally, photographs depict, ing the crime scene and victim's body are admissible as long as they are relevant and competent aids to the jury." Woods v. State, 677 N.E.2d 499, 504 (Ind.1997). In this appeal Halliburton does not contend the photographs were irrelevant. Instead he makes the more general claim that the exhibits are "gruesome" and serve to "in-fiame[ ] the emotions of the jury." Br. of Appellant at 6-7. We would agree that these two photographs depicting the vice-tim's blood-stained face are at least graphic if not gruesome. But "(elven gory and revolting photographs may be admissible as long as they are relevant to some material issue or show seenes that a witness could describe orally." Amburgey v. State, 696 N.E.2d 44, 45 (Ind.1998) (emphasis added). Further, "[allthough a photograph may arouse the passions of the jurors, it is admissible unless 'its probative value is substantially outweighed by the danger of unfair prejudice"" Cutter v. State, 725 N.E.2d 401, 406 (Ind.2000) (internal citations omitted).

In this case the record shows that Michael Swallow-Chief of Police of the Bristol Police Department-was the first officer to arrive on the crime seene and one of the officers who first entered Kiska's apartment. Chief Swallow testified to the state of the apartment as he found it and the condition and location of Kiska's bloodied body on the living room floor. He observed "a large amount of what appeared to be blood in the vicinity of the body"-"between the body and the door, and then right with the body as well." Tr. at 61, 62. Two bloody knives were visible at the scene-one lying in the hallway area and another in close proximity to Kiska's body. He also described the extent of the wounds that he observed on Kiska's neck and face. Chief Swallow testified that the State's Exhibits 11 and 12 accurately represented his observations on the day Kiska was killed. Because the photographs depicted the very scene that the witness described in his testimony, because Halliburton does not contend the photographs were irrelevant or immaterial, and because he has not demonstrated their probative value was substantially outweighed by the danger of unfair prejudice, we conclude the trial court did not abuse its discretion by admitting the exhibits into evidence.

Exhibits 68, 76, and 77 are autopsy photographs showing the victim's neck and the skin pulled away from the victim's skull. Halliburton objected to the admission of these exhibits into evidence on the same ground that he objected to Exhibits 11 and 12, namely, they "[would inflame] the passions of the jury, and that [they] would be highly prejudicial to be admitted." Tr. at 79, 82. In this appeal Halliburton acknowledges this Court has held that autopsy photographs of a victim "are relevant not only to prove his or her identity, but serve as an aid to understanding the pathologist's findings on the cause of death." Br. of Appellant at 10 (quoting Woods, 677 N.E.2d at 504). But he then appears to contend that because there was no dispute concerning Kiska's identity and cause of death the exhibits were inadmissi-blet. Id. This argument fails A claim similar to the one Halliburton makes here was made and rejected in Butler v. State, 647 N.E.2d 631 (Ind.1995). In that case the defendant argued the trial court erroneously admitted into evidence autopsy photographs and a videotape of the crime seene because the cause of death was not at issue and thus "the only other possible purpose in introducing the photographs was to inflame the emotions of the jurors." Id. at 633. In rejecting this argument the Court observed: "[T}here is no rule limiting the facts in issue when one party unilaterally concedes or offers to stipulate that a fact be taken as proved." Id. at 634. Instead, we concluded: "In a homicide case, the identity of the alleged victim and the assailant, the injury to the alleged victim and its source, the death of the alleged victim and its cause, and the physical surroundings in which the injury and death occurred, would all be facts of consequence in the determination of guilt of the accused." Id. We reach the same conclusion here.

Further we have acknowledged that autopsy photographs often present unique problems because the pathologist has manipulated the body in some way during the autopsy. Corbett v. State, 764 N.E.2d 622, 627 (Ind.2002). And autopsy photographs are generally inadmissible if they show the body in an altered condition. Id. However, "there are situations where some alteration of the body is allowed where necessary to demonstrate the testimony being given." Swingley v. State, 739 N.E.2d 132, 134 (Ind.2000). For example in Fentress v. State, 702 N.E.2d 721, 722 (Ind.1998), we held admissible two photographs that depicted the victim's skull with the hair and skin pulled away from it. Because the pathologist had explained what he had done and the alteration was necessary to determine the extent of the victim's injuries, we found that the "potential for confusion [was] minimal" and that the probative value outweighed the prejudicial effect. Id. at 722. The same is true in the case before us.

The record shows that forensic pathologist, Dr. Joseph Prahlow, conducted the autopsy on Kiska's body. He concluded that the cause of her death was "multiple sharp force injuries." Tr. at 309. During the course of his testimony Dr. Prabhlow stated that the blunt force injuries to Kis-ka's head would be difficult to determine without an internal examination, partially because of the victim's hair. To that end, he explained that during the internal examination, he peeled Kiska's scalp away from the skull to allow him to see "bruises of the sealp area, most of which are distinct from and not associated with any sharp force injuries." Tr. at 271. He pointed out these bruises in Exhibit no. 68. Dr. Prahlow explained that during the internal examination the skull and brain are removed after the sealp has been peeled back, which allows him to see the base of the skull. It was at this point that he was able to discover the fracture to the skull caused by a stab wound to Kiska's right cheek. This fracture is illuminated in Exhibit no. 76. Finally, Dr. Prahlow testified that Exhibit no. 77 is a close-up version of the fracture to Kiska's skull and this photograph shows a probe inserted into the skull in order to point directly to the location of the fracture. We conclude the trial court did not abuse its discretion by admitting into evidence State's Exhibits 68, 76, and 77.

With respect to the remaining twenty-two photographs about which he now complains, Halliburton concedes that he did not object to these exhibits at trial. Halliburton thus asserts that their admission "constituted fundamental error." Br. of Appellant at 9.

"Failure to object at trial waives the issue for review unless fundamental error occurred." Treadway v. State, 924 N.E.2d 621, 633 (Ind.2010). The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes procedural default precluding consideration of the issue on appeal. See Benson v. State, 762 N.E.2d 748, 755 (Ind.2002). We have elaborated on the underlying rationale for this exception:

There are very strong reasons to require objections at trial to preserve error. Important among them is that the trial court can often correct an error if it is called to the court's attention. This can result in enormous savings in time, effort and expense to the parties and the court, including avoiding an appeal and retrial. Moreover, if matters can be heard on appeal despite failure to object at trial, parties detecting such an error may be encouraged to take their chances on the result in the trial court despite the error, secure in the knowledge that a retrial is available. Despite these considerations, the doctrine of fundamental error has been invoked to ensure failure to object where appellate courts have found an error to be sufficiently egregious.

State v. Daniels, 680 N.E.2d 829, 835 (Ind.1997). Hence, "[the Fundamental error' exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). "The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Brown v. State, 929 N.E.2d 204, 207 (Ind.2010) (internal quotation omitted). "This exception is available only in egregious circumstances." Id. (internal quotation omitted).

Concerning the twenty-two photographs at issue, we make the following observations. First, at trial Halliburton did not simply "fail" to object to the exhibits. Instead, on eight separate occasions over the course of a five-day trial during which the State offered the exhibits for admission into evidence, and after inquiry by the trial court, Halliburton expressly said "no objection" or "I have no objection." See n. 4. "The appellant cannot on the one hand state at trial that he has no objection to the admission of evidence and thereafter in this Court claim such admission to be erroneous." Harrison v. State, 258 Ind. 359, 281 N.E.2d 98, 100 (1972). Further, the doctrine of fundamental error is inapplicable to the circumstances presented here. The doctrine presupposes the trial judge erred in performing some duty that the law had charged the judge with performing sua sponte. Presumably a trial judge is aware of her own sua sponte duties. But upon an express declaration of "no objection" a trial judge has no duty to determine which exhibits a party decides, for whatever strategic reasons, to allow into evidence. "[Olnly the interested party himself can really know whether the introduction or exclusion of a particular piece of evidence is in his own best interests." Winston v. State, 165 Ind.App. 369, 332 N.E.2d 229, 233 (1975).

Second, other than repeating the refrain that the exhibits were "gruesome," see Appellant's Br. at 3, 6, 8, 9, 10, 11, Halliburton offers no explanation as to how their alleged erroneous admission made a fair trial impossible or constituted clearly blatant violations of basic and elementary principles of due process. See Brown, 929 N.E.2d at 207. Finally, all of the exhibits about which Halliburton complains were either photographs of the crime scene from various angles which aided the testimony of the on-the-seene investigating officers, or autopsy photographs, which the pathologist relied upon during his trial testimony. We conclude the trial court committed no error, let alone fundamental error, by admitting these photographs into evidence.

B. Purported Vouching Testimony

Next Halliburton complains of error in the introduction of testimony from state's witness Cynthia Bollenbaugh-De-Fronzo's mother. Acknowledging he did not object to Bollenbaugh's testimony, Halliburton again invokes the doctrine of fundamental error. And again we repeat the fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes procedural default precluding consideration of the issue on appeal. Benson, 762 N.E.2d at 755. "[This] exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Mathews, 849 N.E.2d at 587. The error claimed "must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Brown, 929 N.E.2d at 207 (internal quotation omitted). This exception is available only in egregious cireumstances. Id.

Indiana Evidence Rule 704(b) provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." (emphasis added). And this Court has held, "[nlo witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth." Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.2012) (alteration in original) (quoting Barger v. State, 587 N.E.2d 1304, 1308 (Ind.1992) (quotation omitted)); Shepherd v. State, 538 N.E.2d 242, 243 (Ind.1989). But our holding in this regard relates to the proffered testimony at trial. According to Halliburton "testimony from DeFronzo's mother . served no other purpose than to im-permissibly vouch for DeFronzo's credibility, thereby giving DeFronzo's testimony a prejudicial impact that obliterated Halliburton's opportunity to receive a fair trial." Br. of Appellant at 22. The essential facts are these.

Bollenbaugh testified that sometime around 3:30 p.m. on March 18, 2008 Halliburton and her daughter DeFronzo came over to her house after returning from an appointment with a veterinarian. Asserting that Halliburton "had suffered a cat scratch" DeFronzo asked her mother-a registered nurse-to look at the injury. Tr. at 474. Bollenbaugh did so, noted that "it looked like to me a puncture wound," Tr. at 476, cleaned the wound and dressed it. The couple left the house after about an hour. A few minutes later DeFronzo called her mother and told her they "weren't allowed to enter the apartment building. That there was something going on." Tr. at 478. Bollenbaugh later learned that someone had been killed in the apartment next door to her daughter's apartment. The State next inquired: "Did there come a point in time thereafter where you had conversations with your daughter regarding the murder?" Tr. at 480. Bollenbaugh said, "[yles" and the following exchange occurred:

[Q]: And did [DeFronzo] indicate to you and tell you what she knew about the murder of Sheena Kiska?
[A]: Yes.
[Q]: This was on December 25, Christmas day.
[A]: Christmas day.
[Q]: 2011.
[A]: Yes.
[Q]: And was that the first time that your daughter had told you things that she knew about the murder of Sheena Kiska?
[A]: Yes.
[Q]: And onee you were aware of these things, what did you do?
[A]: I begged her to tell the truth.
[Q]: Tell the truth to who?
[A]: To the law enforcement, to-I said you cannot go up and testify and lie. You eannot do it. I said you have to tell the truth. Hock cr It's the right thing to do.
[Q]: So onee she told you what she knew about the murder, she was not interested in stepping forward and telling the truth at first.
[A]: At first, yes.
[Q]: Did there come a point in time when you were able to convince her otherwise?
[A]: Yes.

Tr. at 483-84.

"Indiana Evidence Rule 704(b) prohibits a witness from testifying about whether a witness has testified truthfully." Whedon v. State, 900 N.E.2d 498, 506 (Ind.Ct.App.2009) (emphasis added) (citation omitted), aff'd 905 N.E.2d 408 (Ind.2009). The record makes clear that during Bollenbaugh's testimony, she stated only what she told DeFronzo. Nowhere in the record does Bollenbaugh claim DeFronzo's testimony was truthful or even that the testimony DeFronzo offered at trial was even consistent with what Bollenbaugh had previously been told. In fact, with the agreement of the parties, the trial court permitted the State to lead the witness during that portion of the examination undoubtedly to ensure that Bollenbaugh did not proffer hearsay statements from her conversation with DeFronzo or any otherwise inadmissible testimony. Even accepting that Bol-lenbaugh convinced her daughter "to tell the truth" "(tlo the law enforcement," Tr. at 484, the testimony elicited at trial never revealed comments declaring what Bollen-baugh believed "the truth" to be. And most importantly Bollenbaugh never claimed that DeFronzo's testimony at trial was truthful. Contrary to Halliburton's insistence that we simply draw such an inference, our jurisprudence requires more. See, e.g., Bufkin v. State, 700 N.E.2d 1147, 1150 (Ind.1998) (finding error when witness bolstered another witness' testimony by declaring that he found the witness to be "credible"); Head v. State, 519 N.E.2d 151, 153 (Ind.1988) (concluding "it was entirely improper for [the State's] witness to review each item of the child's testimony and to specifically vouch for the truthfulness of such testimony"). See also Wilson v. United States, 149 F.Supp.2d 1045, 1050 (N.D.Ind.2001) (concluding that "[witness'] testimony did not constitute improper vouching or bolstering because he did not express a personal opinion as to [another witness'] credibility nor imply that evidence not before the jury supported a finding that [defendant] was guilty"). On this issue we find no error, fundamental or otherwise.

C. Evidence of Other Crimes

For his last elaim concerning the admission of evidence Halliburton asserts the trial court erred in admitting evidence that he committed a burglary of Kiska's apartment a few weeks before she was killed contrary to Indiana Evidence Rule 404(b). The Rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a eriminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 404(b) "is designed to prevent the jury from making the 'forbidden inference' that prior wrongful conduct suggests present guilt." Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.1999); see also Bassett v. State, 795 N.E.2d 1050, 10583 (Ind.2003) (noting the purpose behind Rule 404(b) is to "prevent[] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . he has a tendency to commit other crimes") (internal quotation omitted). "In assessing the admissibility of 404(b) evidence [the] trial court must: (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403." Wilson v. State, 765 N.E.2d 1265, 1270 (Ind.2002) (quotation omitted).

The facts supporting Halliburton's claim are as follows. Prior to trial the State filed in open court and served upon Halliburton its "Formal Notice Of State's Intent To Use 404(b) Evidence," which included evidence that Halliburton committed a burglary of Kiska's residence on or about February 4, 2008. App. at 48.

When the State first proceeded to introduce such evidence through the testimony of investigating officer, Chief Deputy Mike Albin, counsel for Halliburton objected, and outside the presence of the jury declared:

I think that if information about a prior burglary comes in, combined with some of the testimony that we have heard or may hear in the future, that it will be highty prejudicial to Mr. Halliburton, and the jury will make an unfortunate and inappropriate or improper leap to conclude that Mr. Halliburton, in fact, committed the burglary in February; and therefore, was going to commit another burglary on March 18, 2008. I think it's highly prejudicial.

Tr. at 240 (emphasis added). After entertaining arguments of counsel, the trial court ruled: "For now at this point in the trial, the objection is sustained for this evidence to come through this witness at this time." Tr. at 246.

Later during trial the State called De-Fronzo as a witness. During the course of her testimony the State asked whether she was "aware of whether or not Tyrice Halliburton had been in ... Sheena's apartment before." Tr. at 545. Counsel objected, the jury was excused, and extensive arguments ensued, which included voir dire of DeFronzo. See Tr. at 546-54. At the conclusion of which the trial court summarized events as follows: "Mr. [Halliburton's Counsel] first objected to Chief Deputy Albin's testimony on the grounds that it was prejudicial and the prejudice would outweigh the probative value as set forth in 404(b). Is that correct?" To which counsel replied: "That's correct, sir." Tr. at 554-55 (emphasis added). The trial court continued: "And you're making that same objection, now, Mr. [Halliburton's counsel], relative to Ms. DeFronzo's testimony that we just heard out of the jury's presence?" Tr. at 555. To which counsel replied: "That's correct." Tr. at 555. When counsel then proceeded to further elaborate, the trial court interjected: "Well, that's what I said. You're saying it has some probative value, but the prejudice outweighs the probative value" Tr. at 555 (emphasis added). To which counsel responded: "Yes. Yes. That's my argument." Tr. at 555. The trial court then gave a lengthy recitation of why it thought the evidence was relevant, and why it would be admissible for the limited purpose of proving motive, intent, preparation, plan, absence of mistake or fact. See Tr. at 556-58. The trial court ultimately concluded: "I think the probative value outweighs the prejudice. . . ." Tr. at 558.

Although counsel for Halliburton objected to the admission of the evidence, the trial court declared: "If the defendant wants a limiting instruction, I will give it. That's a yes. You shook your head." Tr. at 558. To which counsel replied: "That would be a yes, sir." Tr. at 558. After the jury returned the trial court gave a limiting instruction that we will discuss below in Part II. DeFronzo continued her testimony and recounted that in February 2008, Halliburton entered Kiska's home without her permission or consent, told DeFronzo about the incident, and showed her the items he had taken including a laptop computer, a camcorder, a lock box with cash in it, and a DVD player. Halliburton did not tell DeFronzo how he gained entry.

In this appeal, Halliburton argues the trial court erred in admitting evidence of the burglary because "the prior burglary did not fit within one of the rule 404(b) exceptions as it related to the only charge Halliburton was facing in this case: intentional murder." Br. of Appellant at 14. According to Halliburton "[blecause evidence of the prior burglary constituted bad character evidence and was not admissible under any of the exceptions listed in Rule 404(b), the trial court improperly admitted it into evidence." Br. of Appellant at 17.

The law in Indiana is well settled that "a defendant may not argue one ground for objection at trial and then raise new grounds on appeal." Turner, 953 N.E.2d at 1058 (quoting Gill v. State, 730 N.E.2d 709, 711 (Ind.2000)). As above recited, at trial Halliburton objected to testimony concerning the prior burglary on grounds that its probative value was outweighed by its prejudicial impact. Essentially Halliburton's objection was based not on Rule 404 but Rule 403 which declares in pertinent part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." Halliburton made no claim at trial that evidence of the burglary did not fit any of the 404(b) exceptions; nor did he contend at trial that evidence of the burglary was bad character evidence prohibited by Rule 404(b). Accordingly Halliburton has waived this claim of error for appellate review. See Gill, 730 N.E.2d at 711.

II. Limiting Instructions

As indicated above, before De-Fronzo resumed her testimony, at Halliburton's request the trial court gave the jury a limiting instruction. Halliburton now contends the instruction was "improper." Br. of Appellant at 20. However, Halliburton did not object to the instruction. And "[nlothing is preserved on appeal where a defendant fails to object to a limiting instruction." Stahl v. State, 616 N.E.2d 9, 13 (Ind.1993). Thus, as with most of Halliburton's claims we view this issue also through the lens of fundamental error.

The instruction at issue declared:

You're about to hear evidence that is being offered for a limited purpose. The evidence that you are about to hear is not being offered to prove the character of any person. It is offered for the limited purpose of establishing proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. It's admissible for that limited purpose because I have ruled that is relevant, and the probative value outweighs any prejudice there may be. The evidence, as I said, is being admitted for this limited purpose and for no other purpose.

Tr. at 559 (emphasis added). Essentially focusing on the highlighted language of the instruction, Halliburton contends the trial court improperly vouched for the credibility of the evidence as well as commented on the weight the jury should give the evidence.

It is mandatory for a trial court, upon request, to give a limiting instruction or an admonishment where evidence is introduced for limited purposes. See Evid. R. 105 ("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."). However, we have long held that "an instruction directed to the testimony of one witness erroneously invades the province of the jury when the instruction intimates an opinion on the credibility of a witness or the weight to be given to his testimony." Pope v. State, 737 N.E.2d 374, 378 (Ind.2000) (quoting Fox v. State, 497 N.E.2d 221, 225 (Ind.1986); see also Taylor v. State, 257 Ind. 664, 278 N.E.2d 273, 275 (1972) ("An instruction in a criminal case is erroneous, as an invasion of the province of the jury, if it intimates an opinion of the credibility of a witness or the weight to be given to his testimony.").

Here the instruction did not imply that the trial court had formed an opinion on the credibility of a witness or the weight the jury was to give the witness' testimony. However, the instruction nonetheless advised the jury that the trial court had made a preliminary determination that the testimony the jury was about to hear is "relevant" and that the trial court had made a preliminary determination that the probative value of such testimony "outweighs any prejudice there may be." Tr. at 559. Although appropriate as an evi-dentiary ruling, the highlighted portion of the limiting instruction should not have been read to the jury in that it had no role in the matter. "The court and not the jury determines the admissibility of evidence, and the foundation for the admission of secondary evidence is a matter alone for the court and not for the jury." Sprague v. State, 208 Ind. 581, 181 N.E. 507, 512 (1982); Pritchard v. State, 248 Ind. 566, 230 N.E.2d 416, 417 (1967) ("This being a criminal case, the determination of the admissibility of the evidence is a function alone of the trial court...." (citations omitted).

In the end we conclude the limiting instruction was given in error. However, Halliburton makes no claim the error was fundamental. And we find no such error to have occurred.

Conclusion

We affirm the judgment of the trial court.

DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.

      . The record is silent on the disposition of Halliburton's habitual offender adjudication. The trial court noted: "If I were called upon to impose a term of [years] it would be 65 for the murder and 30 for the habitual, consecutive to each other for a total sentence of 95 years; but that's not the situation here...." Tr. at 800. It is unclear whether the trial court took the position that it would be redundant and unnecessary to enhance Halliburton's life without parole sentence or whether the trial court was under the impression that it was prohibited from doing so. On this latter point we observe there is no statutory bar to enhancing a sentence of life without parole with a term of years for a habitual offender adjudication. The express language of the habitual offender statute provides in pertinent part: "The court shall sentence a person found to be a habitual offender to an additional fixed term...." LC. § 35-50-2-8(h) (emphasis added). And in a slightly different context trial courts routinely impose sentences of life without parole along with a consecutive term of years. See, e.g., Turner v. State, 953 N.E.2d 1039, 1045 (Ind.2011) (defendant sentenced to life without parole plus eighty-eight years upon convictions for murder, robbery, burglary, and seven counts of criminal confinement); Treadway v. State, 924 N.E.2d 621, 626-27 (Ind.2010) (defendant sentenced to life without parole plus twenty years upon convictions for murder and robbery); see also Ward v. State, 903 N.E.2d 946, 950 n. 4 (Ind.2009) (defendant sentenced to death plus fifty years upon convictions for murder and rape). In any event the State did not object to the trial court's sentencing order and makes no claim in this regard on appeal. Thus error, if any, is waived.

      . Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ind. Evidence Rule 401. Evidence is material "if there is a reasonable likelihood that it might have affected the outcome of the trial." Samaniego v. State, 679 N.E.2d 944, 948 (Ind.Ct.App.1997), trans. denied.

      . Halliburton's objection to Exhibits 68, 76, and 77 was actually made to the bench outside the hearing of the jury. However, the trial court declared: "The record reflects essentially the same objection that he's making now that was made specifically on Exhibits 11 and 12." Tr. at 277. To which counsel responded: "Correct, sir." Tr. at 277. The trial court continued, "[alud you're reiterating the same objection" and counsel replied, "[yles, sir." Tr. at 277.

      , We say "appears to contend" because Halliburton does not specifically focus on Exhibits 68, 76, and 77. Instead Halliburton includes these exhibits with his argument concerning the twenty-two other exhibits admitted into evidence and to which he expressly declared, "no objection" or ""I have no objection." See Tr. at 78, 79 (Exhibit 10); Tr. at 129 (Exhibit 15); Tr. at 138 (Exhibit 26); Tr. at 159 (Exhibit 32); Tr. at 170 (Exhibit 37); Tr. at 276 (Exhibits 64, 65, 69, 70, 72 and 75); Tr. at 293 (Exhibits 80 through 84); Tr. at 302 (Exhibits 88 through 91, and 94 through 96).

      . Halliburton also asserts fundamental error with respect to the admission into evidence of State's Exhibit 54-a container holding "two pieces of bone" identified as the victim's "fourth rib." Tr. at 214. As with the now challenged twenty-two photographs, Halliburton also said, "[njo objection, your honor" when the exhibit was introduced. Tr. at 217. However there is no indication in the record before us demonstrating this exhibit was ever shown to the jury. The State specifically moved to "defer publication at this time on [Exhibit 54]." And the trial court ruled: "Publication of Exhibit 54 ... will occur, if requested, without objection." Tr. at 217. Our review of the record does not reveal that the State ever requested publication, and there is no other reference to Exhibit 54 in the trial transcript. Indeed, neither the physical exhibit itself nor a photograph of the exhibit appears in the record before us. Thus error, if any there be, is harmless.

      . Although Halliburton cites nearly three pages of testimony in his appellate brief, the thrust of his argument is based primarily on the aforementioned colloquy.

      . Assuming for the sake of argument that evidence of the burglary was inadmissible character evidence, and as Halliburton contends, does not fit within any of the Rule 404(b) exceptions, he still has failed to show how introduction of the evidence amounted to fundamental error. The evidence supporting the jury's guilty of murder verdict was overwhelming. Indeed Halliburton makes no claim challenging the sufficiency of the evidence. Where evidence of guilt is overwhelming any error in the admission of evidence is not fundamental. See Sobolewski v. State, 889 N.E.2d 849, 858 (Ind.Ct.App.2008) (finding "harmless" and not "fundamental" any error in the State's use of Defendant's silence "given the overwhelming evidence offered to impeach [the Defendant] as well as the evidence of his guilt."), trans. denied.

      . Later during trial the State recalled to the stand Chief Deputy Albin who testified, among other things, about a DVD player that was taken in the February burglary and later recovered from Halliburton's car. Prior to his testimony on this point the trial court gave the jury a similar limiting instruction. See Tr. at 616-17. Again, Halliburton did not object.

      . The Indiana Pattern Jury Instruction resolves this concern:
      Evidence has been introduced that the Defendant was involved in (crimes) (a crime) (wrongful conduct) (bad acts) other than (those) (that) charged in the information. This evidence has been received solely on the issue of Defendant's (identity) (motive) (intent) (preparation) (plan) (knowledge) (absence of mistake) (absence of accident) (sanity). This evidence should be considered by you only for that limited purpose.
      Indiana Pattern Jury Instructions-Criminal 12.17 (2013).
      The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judges Association and the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally approved for use, they are tacitly recognized by Indiana Trial Rule 51(E).