MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 27 2017, 10:41 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alan K. Wilson Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Ray Wilson, July 27, 2017 Appellant-Defendant, Court of Appeals Case No. 18A02-1612-CR-2949 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Linda Ralu Wolf, Appellee-Plaintiff Judge Trial Court Cause No. 18C03-1005-FB-13
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 1 of 8 [1] Marcus Wilson appeals following his convictions for Class B felony criminal
deviate conduct and Class D felony criminal confinement. He raises the
following issues on appeal:
1. Did the trial court abuse its discretion in excluding opinion evidence concerning the victim’s possible intoxication?
2. Is Wilson’s fourteen-year sentence inappropriate?
[2] We affirm.
Facts & Procedural History
[3] On November 28, 2009, Nigel Butterfield ran into his friend, Wilson. Nigel
invited Wilson over for a drink, and the two went to the home Nigel shared
with his wife, J.B., and their two-year-old daughter. J.B. did not know Wilson
and asked Nigel to make him leave because she did not want strangers in their
house and around their sleeping daughter. Nigel ignored J.B.’s requests, and
Nigel, J.B., and Wilson all stayed up until the early morning hours drinking
and listening to music.
[4] Nigel eventually passed out in the living room and J.B. said that she should go
to bed, but Wilson did not leave. Wilson asked J.B. to come into the kitchen
because he wanted to tell her something about Nigel, and when she did so,
Wilson slammed her up against the kitchen counter and put his hand over her
mouth. Wilson then forced J.B. into the bathroom, where he pushed her to the
floor and began to strangle her. Wilson threatened to kill J.B. if she screamed,
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 2 of 8 and he told her that she would be fine if she just did what he said. Wilson then
dropped his pants and exposed his penis. J.B. begged him not to rape her, and
he forced her to perform oral sex on him until he ejaculated in her mouth. He
then ordered her to swallow his semen. Before leaving the apartment, Wilson
told J.B. to go ahead and call the police because he deserved it. J.B. waited
until she thought Wilson was gone, then checked on her daughter before
running to a neighbor’s house and calling 911. Wilson was apprehended a
short time later.
[5] As a result of these events, Wilson was charged with Class B felony criminal
deviate conduct and Class D felony criminal confinement. A warrant for
Wilson’s arrest was issued on May 19, 2010, but he was not arrested until
February 2013. A jury trial commenced on November 21, 2016, at the
conclusion of which Wilson was found guilty as charged. On December 19,
2016, Wilson was sentenced to concurrent terms of fourteen years for criminal
deviate conduct and two years for criminal confinement, resulting in an
aggregate sentence of fourteen years executed in the Department of Correction.
Wilson now appeals.
Discussion & Decision
1. Exclusion of Opinion Testimony
[6] Wilson first argues that the trial court abused its discretion when it did not
permit him to question the 911 operator concerning his opinion on whether J.B.
sounded intoxicated during the 911 call. Trial courts are afforded wide
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 3 of 8 discretion in ruling on the admissibility of evidence, and our review of such
decisions is limited to determining whether the court abused that discretion.
Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it. Id. Moreover, even if a trial court abuses
its discretion in admitting or excluding evidence, we will not reverse if the error
is harmless. Bell v. State, 29 N.E.3d 137, 143 (Ind. Ct. App. 2015), trans. denied.
“An error will be deemed harmless if its probable impact on the jury, in light of
all of the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.” Id. “[B]efore a federal constitutional error
may be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Hall v. State, 36 N.E.3d 459, 467 (Ind.
2015) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
[7] At trial, Wilson asked the 911 operator whether he believed J.B. sounded
intoxicated. The State objected, arguing Wilson had not established that the
witness was qualified to give an opinion on that subject. The trial court
sustained the objection, noting that the jury had heard the recorded 911 call and
could make its own determination as to whether J.B. sounded intoxicated.
Wilson did not make an offer of proof. On appeal, Wilson argues that the 911
operator’s opinion was admissible under Ind. Evidence Rule 701 and that the
exclusion of such testimony violated Wilson’s constitutional right to confront
and cross-examine witnesses.
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 4 of 8 [8] Wilson has waived these arguments by failing to make an offer of proof
concerning the 911 operator’s opinion as to whether J.B. sounded intoxicated.
See Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (noting that an
offer of proof is required to preserve an error predicated upon the exclusion of a
witness’s testimony), trans. denied. Waiver notwithstanding, and assuming
arguendo that the testimony at issue was improperly excluded, any resulting
error was harmless beyond a reasonable doubt. J.B. admitted that she had been
drinking that night, and the members of the jury listened to J.B.’s recorded 911
call and were therefore able to judge for themselves whether J.B. sounded
intoxicated and decide what, if any, impact that had on their assessment of her
credibility. We have little difficulty concluding that hearing the 911 operator’s
opinions on the subject of J.B.’s intoxication would have made no appreciable
impact on the jury. Accordingly, Wilson has not established reversible error on
this basis.
2. Sentencing
[9] Wilson also argues that his fourteen-year sentence is inappropriate in light of
the nature of the offense and his character.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 27 2017, 10:41 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alan K. Wilson Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Ray Wilson, July 27, 2017 Appellant-Defendant, Court of Appeals Case No. 18A02-1612-CR-2949 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Linda Ralu Wolf, Appellee-Plaintiff Judge Trial Court Cause No. 18C03-1005-FB-13
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 1 of 8 [1] Marcus Wilson appeals following his convictions for Class B felony criminal
deviate conduct and Class D felony criminal confinement. He raises the
following issues on appeal:
1. Did the trial court abuse its discretion in excluding opinion evidence concerning the victim’s possible intoxication?
2. Is Wilson’s fourteen-year sentence inappropriate?
[2] We affirm.
Facts & Procedural History
[3] On November 28, 2009, Nigel Butterfield ran into his friend, Wilson. Nigel
invited Wilson over for a drink, and the two went to the home Nigel shared
with his wife, J.B., and their two-year-old daughter. J.B. did not know Wilson
and asked Nigel to make him leave because she did not want strangers in their
house and around their sleeping daughter. Nigel ignored J.B.’s requests, and
Nigel, J.B., and Wilson all stayed up until the early morning hours drinking
and listening to music.
[4] Nigel eventually passed out in the living room and J.B. said that she should go
to bed, but Wilson did not leave. Wilson asked J.B. to come into the kitchen
because he wanted to tell her something about Nigel, and when she did so,
Wilson slammed her up against the kitchen counter and put his hand over her
mouth. Wilson then forced J.B. into the bathroom, where he pushed her to the
floor and began to strangle her. Wilson threatened to kill J.B. if she screamed,
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 2 of 8 and he told her that she would be fine if she just did what he said. Wilson then
dropped his pants and exposed his penis. J.B. begged him not to rape her, and
he forced her to perform oral sex on him until he ejaculated in her mouth. He
then ordered her to swallow his semen. Before leaving the apartment, Wilson
told J.B. to go ahead and call the police because he deserved it. J.B. waited
until she thought Wilson was gone, then checked on her daughter before
running to a neighbor’s house and calling 911. Wilson was apprehended a
short time later.
[5] As a result of these events, Wilson was charged with Class B felony criminal
deviate conduct and Class D felony criminal confinement. A warrant for
Wilson’s arrest was issued on May 19, 2010, but he was not arrested until
February 2013. A jury trial commenced on November 21, 2016, at the
conclusion of which Wilson was found guilty as charged. On December 19,
2016, Wilson was sentenced to concurrent terms of fourteen years for criminal
deviate conduct and two years for criminal confinement, resulting in an
aggregate sentence of fourteen years executed in the Department of Correction.
Wilson now appeals.
Discussion & Decision
1. Exclusion of Opinion Testimony
[6] Wilson first argues that the trial court abused its discretion when it did not
permit him to question the 911 operator concerning his opinion on whether J.B.
sounded intoxicated during the 911 call. Trial courts are afforded wide
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 3 of 8 discretion in ruling on the admissibility of evidence, and our review of such
decisions is limited to determining whether the court abused that discretion.
Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it. Id. Moreover, even if a trial court abuses
its discretion in admitting or excluding evidence, we will not reverse if the error
is harmless. Bell v. State, 29 N.E.3d 137, 143 (Ind. Ct. App. 2015), trans. denied.
“An error will be deemed harmless if its probable impact on the jury, in light of
all of the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.” Id. “[B]efore a federal constitutional error
may be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Hall v. State, 36 N.E.3d 459, 467 (Ind.
2015) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
[7] At trial, Wilson asked the 911 operator whether he believed J.B. sounded
intoxicated. The State objected, arguing Wilson had not established that the
witness was qualified to give an opinion on that subject. The trial court
sustained the objection, noting that the jury had heard the recorded 911 call and
could make its own determination as to whether J.B. sounded intoxicated.
Wilson did not make an offer of proof. On appeal, Wilson argues that the 911
operator’s opinion was admissible under Ind. Evidence Rule 701 and that the
exclusion of such testimony violated Wilson’s constitutional right to confront
and cross-examine witnesses.
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 4 of 8 [8] Wilson has waived these arguments by failing to make an offer of proof
concerning the 911 operator’s opinion as to whether J.B. sounded intoxicated.
See Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (noting that an
offer of proof is required to preserve an error predicated upon the exclusion of a
witness’s testimony), trans. denied. Waiver notwithstanding, and assuming
arguendo that the testimony at issue was improperly excluded, any resulting
error was harmless beyond a reasonable doubt. J.B. admitted that she had been
drinking that night, and the members of the jury listened to J.B.’s recorded 911
call and were therefore able to judge for themselves whether J.B. sounded
intoxicated and decide what, if any, impact that had on their assessment of her
credibility. We have little difficulty concluding that hearing the 911 operator’s
opinions on the subject of J.B.’s intoxication would have made no appreciable
impact on the jury. Accordingly, Wilson has not established reversible error on
this basis.
2. Sentencing
[9] Wilson also argues that his fourteen-year sentence is inappropriate in light of
the nature of the offense and his character. Article 7, section 4 of the Indiana
Constitution grants our Supreme Court the power to review and revise criminal
sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135
S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court
authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if after
due consideration of the trial court’s decision, the Court finds that the sentence
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 5 of 8 is inappropriate in light of the nature of the offense and the character of the
offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).
“Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference
should prevail unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[10] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate.” King v. State,
894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).
[11] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense. Wilson
committed a Class B felony and a Class D felony. The sentencing range for a
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 6 of 8 Class B felony is six to twenty years, with an advisory sentence of ten years.
Ind. Code § 35-50-2-5. The sentencing range for a Class D felony is six months
to three years, with an advisory sentence of one and a half years. I.C. § 35-50-2-
7. Wilson was sentenced to concurrent terms of fourteen years executed for
Class B felony criminal deviate conduct and two years for Class D felony
criminal confinement. Thus, on both counts, he received a sentence greater
than the advisory, but still well below the maximum.
[12] The nature of the offense does not support appellate revision of Wilson’s
sentence. Wilson’s behavior in this case was predatory. He waited until Nigel
passed out and then lured J.B. into the kitchen, where he violently assaulted her
and forced her into the bathroom. Wilson pushed J.B. to the ground, strangled
her, and threatened to kill her if she screamed or did not comply with his
demands. Wilson then exposed himself and J.B. begged him not to rape her.
Wilson then forced J.B. to perform oral sex on him while J.B.’s husband and
daughter slept just a few rooms away and when he ejaculated, he ordered her to
swallow his semen. Wilson’s assertion that he “simply committed the offense
proscribed by statute, without doing anything that ‘aggravated’ the offense” is
not supported by the record. Appellant’s Brief at 16. The trial court aptly
described the facts of this case as “disturbing.” Appellant’s Appendix Vol. 3 at 80.
[13] Considering Wilson’s character, we note that he has a significant criminal
history, including convictions for battery, public intoxication, criminal
conversion, visiting a common nuisance, and theft. Additionally, a warrant
was issued for Wilson’s arrest during the pendency of this case for failure to
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 7 of 8 appear, and his bond was revoked after he was arrested for committing a felony
drug offense while on pretrial release. Wilson also admitted to frequently using
methamphetamine and heroin while out on bond in this case. In sum, nothing
about Wilson’s character persuades us that appellate revision of his sentence is
warranted.
[14] Judgment affirmed.
[15] Kirsch, J. and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 8 of 8