MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jul 02 2018, 5:31 am
Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Wise, July 2, 2018 Appellant-Defendant, Court of Appeals Case No. 54A01-1711-CR-2710 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Barajas, Appellee-Plaintiff. Judge Trial Court Cause No. 54D01-1706-F5-1711
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 1 of 6 [1] Anthony Wise’s driving privileges were suspended for life in 2005 following a
conviction for driving as a habitual traffic violator. On June 13, 2017, Wise
was released from jail in another cause and ordered to check in with probation
officer Brenda Payne two or three times a week. Wise informed Payne that his
license was suspended but that his uncle was available any time to drive him to
his appointments. Wise had a meeting with Payne set for June 19, 2017, at
11:30 a.m. Around that time, Payne was at her desk watching the lobby and
the outside of her building through security cameras. Payne watched as a
vehicle parked and as Wise exited the driver’s side of the vehicle. Payne took
screen shots of the parked car and of Wise standing by the car. Time stamps
indicated that Payne took the picture of the car at 11:31:42 and of Wise
standing outside the driver’s side of the car at 11:31:56. When asked, Wise
admitted that he had driven to the appointment.
[2] On June 23, 2017, the State charged Wise with Level 5 felony operating a
vehicle after driving privileges were suspended for life. At trial, Payne
acknowledged that in a deposition she stated that the June 19, 2017,
appointment was scheduled for 10:30 a.m. instead of 11:30. Wise’s counsel
read the prior testimony into the record, and Payne acknowledged giving that
testimony. Payne explained that she must have been referring to the wrong
appointment. Wise moved to admit two pages from Payne’s deposition. The
State objected that the evidence was hearsay and improper because Payne had
already admitted that she probably said it. The trial court explained that it
typically did not admit only select pages of depositions and inquired whether
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 2 of 6 Wise wanted to publish the deposition or admit the whole deposition. Wise
responded that he did not want to take the time to have it read or for the jury to
read it and withdrew the exhibit. The jury found Wise guilty as charged. On
November 9, 2017, the trial court sentenced Wise to five years of incarceration.
1. Payne’s Deposition [3] Wise contends that the trial court abused its discretion in excluding the two
pages of Payne’s deposition. A trial court’s ruling on the admission or
exclusion of evidence is reviewed for an abuse of discretion that results in
prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). A trial court’s
evidentiary decision will be reversed for an abuse of discretion only where the
court’s decision is clearly against the logic and effect of the facts and
circumstances, or when the court misinterprets the law. Id. The appellate court
may affirm the trial court’s ruling if it is sustainable on any legal basis in the
record, even if it was not the reason enunciated by the trial court. Wilson v.
State, 39 N.E.3d 705 (Ind. Ct. App. 2015), trans. denied; Wells v. State, 30 N.E.3d
1256 (Ind. Ct. App. 2015), trans. denied.
[4] Even if we assume, arguendo, that the trial court abused its discretion in some
way with regard to excluding the two pages of Payne’s deposition, any such
error could only be considered harmless. When a trial court erroneously
excludes or admits evidence, if its “probable impact on the [factfinder], in light
of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties,” the error is harmless. Daniels v. State, 683
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 3 of 6 N.E.2d 557, 559 (Ind. 1997) (citing Schwestak v. State, 674 N.E.2d 962 (Ind.
1996)). Here, Wise sought to introduce evidence that Payne testified during a
deposition that the June 19, 2017, appointment was scheduled for 10:30. Payne
had already acknowledged as much on the stand, and the prior testimony was
read into the record. It is well-settled that “[w]here the wrongfully excluded
[evidence] is merely cumulative of other evidence presented, its exclusion is
harmless error.” Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). Because
the deposition evidence at issue is, at best, cumulative of other evidence
admitted at trial, any error that the trial court may have made in excluding it
was harmless.
2. Sentence [5] Wise contends that his five-year sentence for Level 5 felony operating a vehicle
after driving privileges were suspended for life is inappropriately harsh. We
“may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light
of the nature of the offense and the character of the offender.” Ind. Appellate
Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[W]hether we regard a sentence as appropriate
at the end of the day turns on our sense of the culpability of the defendant, the
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 4 of 6 severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). In addition to the “due consideration” we are required to give to the
trial court’s sentencing decision, “we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Rutherford v. State,
866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Indiana Code section 35-50-2-6
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jul 02 2018, 5:31 am
Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Wise, July 2, 2018 Appellant-Defendant, Court of Appeals Case No. 54A01-1711-CR-2710 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Barajas, Appellee-Plaintiff. Judge Trial Court Cause No. 54D01-1706-F5-1711
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 1 of 6 [1] Anthony Wise’s driving privileges were suspended for life in 2005 following a
conviction for driving as a habitual traffic violator. On June 13, 2017, Wise
was released from jail in another cause and ordered to check in with probation
officer Brenda Payne two or three times a week. Wise informed Payne that his
license was suspended but that his uncle was available any time to drive him to
his appointments. Wise had a meeting with Payne set for June 19, 2017, at
11:30 a.m. Around that time, Payne was at her desk watching the lobby and
the outside of her building through security cameras. Payne watched as a
vehicle parked and as Wise exited the driver’s side of the vehicle. Payne took
screen shots of the parked car and of Wise standing by the car. Time stamps
indicated that Payne took the picture of the car at 11:31:42 and of Wise
standing outside the driver’s side of the car at 11:31:56. When asked, Wise
admitted that he had driven to the appointment.
[2] On June 23, 2017, the State charged Wise with Level 5 felony operating a
vehicle after driving privileges were suspended for life. At trial, Payne
acknowledged that in a deposition she stated that the June 19, 2017,
appointment was scheduled for 10:30 a.m. instead of 11:30. Wise’s counsel
read the prior testimony into the record, and Payne acknowledged giving that
testimony. Payne explained that she must have been referring to the wrong
appointment. Wise moved to admit two pages from Payne’s deposition. The
State objected that the evidence was hearsay and improper because Payne had
already admitted that she probably said it. The trial court explained that it
typically did not admit only select pages of depositions and inquired whether
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 2 of 6 Wise wanted to publish the deposition or admit the whole deposition. Wise
responded that he did not want to take the time to have it read or for the jury to
read it and withdrew the exhibit. The jury found Wise guilty as charged. On
November 9, 2017, the trial court sentenced Wise to five years of incarceration.
1. Payne’s Deposition [3] Wise contends that the trial court abused its discretion in excluding the two
pages of Payne’s deposition. A trial court’s ruling on the admission or
exclusion of evidence is reviewed for an abuse of discretion that results in
prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). A trial court’s
evidentiary decision will be reversed for an abuse of discretion only where the
court’s decision is clearly against the logic and effect of the facts and
circumstances, or when the court misinterprets the law. Id. The appellate court
may affirm the trial court’s ruling if it is sustainable on any legal basis in the
record, even if it was not the reason enunciated by the trial court. Wilson v.
State, 39 N.E.3d 705 (Ind. Ct. App. 2015), trans. denied; Wells v. State, 30 N.E.3d
1256 (Ind. Ct. App. 2015), trans. denied.
[4] Even if we assume, arguendo, that the trial court abused its discretion in some
way with regard to excluding the two pages of Payne’s deposition, any such
error could only be considered harmless. When a trial court erroneously
excludes or admits evidence, if its “probable impact on the [factfinder], in light
of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties,” the error is harmless. Daniels v. State, 683
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 3 of 6 N.E.2d 557, 559 (Ind. 1997) (citing Schwestak v. State, 674 N.E.2d 962 (Ind.
1996)). Here, Wise sought to introduce evidence that Payne testified during a
deposition that the June 19, 2017, appointment was scheduled for 10:30. Payne
had already acknowledged as much on the stand, and the prior testimony was
read into the record. It is well-settled that “[w]here the wrongfully excluded
[evidence] is merely cumulative of other evidence presented, its exclusion is
harmless error.” Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). Because
the deposition evidence at issue is, at best, cumulative of other evidence
admitted at trial, any error that the trial court may have made in excluding it
was harmless.
2. Sentence [5] Wise contends that his five-year sentence for Level 5 felony operating a vehicle
after driving privileges were suspended for life is inappropriately harsh. We
“may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light
of the nature of the offense and the character of the offender.” Ind. Appellate
Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[W]hether we regard a sentence as appropriate
at the end of the day turns on our sense of the culpability of the defendant, the
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 4 of 6 severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). In addition to the “due consideration” we are required to give to the
trial court’s sentencing decision, “we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Rutherford v. State,
866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Indiana Code section 35-50-2-6
(2014) provides, in part, that “[a] person who commits a Level 5 felony … shall
be imprisoned for a fixed term of between two (2) and eight (8) years, with the
advisory sentence being four (4) years.” So, Wise’s five-year executed sentence
represents a small enhancement over the advisory for his crime.
[6] While Wise’s offense does not seem to have endangered or injured anyone, its
utter needlessness stands out. Because Wise needed to bring another driver
with him in any event (to support the lie that he was not driving), one is left to
wonder why he did not simply have the other person drive. Moreover, this was
not an emergency where Wise drove out of necessity. Wise was not driving a
gravely injured person to the hospital, for example. The wholly gratuitous
nature of Wise’s offense supports the imposition of an enhanced sentence.
[7] Wise’s character also supports the imposition of an enhanced sentence. Wise,
forty-four years old as of sentencing, has an extensive criminal history dating
back to 1994. He has a history of violating the terms of his probation; he was
released on bond when he committed the present offense; and he has not taken
advantage of prior opportunities to address his admitted drug problems. More
specifically, Wise’s prior criminal record includes felony convictions for two
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 5 of 6 counts of operating while intoxicated, operating as a habitual traffic violator,
identity deception, possession of a controlled substance, and possession of a
narcotic drug. Wise has also amassed eight prior misdemeanor convictions.
Wise has been found to have violated the terms of probation or community
corrections seven times and has had three suspended sentences at least partially
revoked. Additionally, Wise had been released from incarceration only six
days prior to the instant offense and had already violated the terms of his
release by using controlled substances and moving without approval. Despite
his many contacts with the criminal justice system, Wise has not chosen to
reform himself, even admitting that he had never sought any help for his
addiction issues. Wise has failed to establish that his five-year sentence is
inappropriate in light of the nature of his offense and his character.
[8] Judgment affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018 Page 6 of 6