Muncy v. State

834 N.E.2d 215, 2005 Ind. App. LEXIS 1750, 2005 WL 2277172

• Court: Indiana Court of Appeals
• Decided: September 20, 2005
• Docket: 03A01-0503-CR-127
• Status: Published

Opinions

OPINION

CRONE, Judge.

Case Summary

Johney I. Muncy appeals his convictions and sentence for class C felony attempted battery, class C felony operating a vehicle after a lifetime suspension, class A misdemeanor operating a vehicle while intoxicated, and an enhancement for being a habitual substance offender. We affirm.

Issues

We restate Muncy's two issues as follows:

I. Whether the trial court committed reversible error in admitting brass knuckles and two pocket knives; and

II. Whether his sentence violates the Sixth Amendment.

Facts and Procedural History

Around 10:30 am. on May 6, 2004, Indiana State Police Trooper Edward Oli-bo stopped a northbound van traveling ninety-one miles per hour on Interstate 65. Muncy, who was driving, stopped the van, went into the back seat, and covered himself with a jacket. His passenger moved into the driver's seat. The van was cluttered with open and closed alcoholic beverage containers. Trooper Olibo ordered Muncy to move to the front of the van. Muncy took off the coat and started to walk toward Trooper Olibo, who noticed a knife in a sheath at his waistband. When Muncy was less than three feet away, Trooper Olibo told him not to reach for the knife and to show him his hands. Muncy refused, grabbed the knife, and pulled it in an aggressive manner toward Trooper Oli-bo. The State charged Muncy with attempted battery, operating a vehicle after a lifetime suspension, and operating a vehicle while intoxicated.¹ The State also alleged that Muncy was a habitual substance offender.

On September 30, 2004, a jury convicted Muncy as charged and found him to be a habitual substance offender. On November 10, 2004, the trial court held a sentencing hearing. Id. at 481. The court found several aggravating factors, specifically: (1) the risk that Muncy will commit another crime; (2) the nature and cireumstances of the crimes; (8) Muncy's extensive criminal history; (4) Muney's character; (5) Munecy's past repeated violations of the conditions of probation; (6) the likelihood that imposition of a reduced or suspended sentence would depreciate the seriousness of the offense; and (7) the attempted battery was against a law enforcement officer during the execution of his duties. The court found no mitigating factors. The court sentenced Muney to concurrent terms of seven years for operating a vehicle after a lifetime suspension and one year for operating while intoxicated, to be served consecutive to a six-year sentence for attempted battery and a five-year habitual substance offender enhancement, for an aggregate sentence of eighteen years. Muncy now appeals.

Discussion and Decision

I. Admission of Weapons

Muncy asserts that the trial court committed reversible error in admitting brass knuckles found in his pocket and two knives found in the van. We disagree.

The admission of evidence is a determination entrusted to the discretion of the trial court. We will reverse a trial court's decision only when the court's action is clearly against the logic and effect of the facts and circumstances before the court. In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. If a trial court abused its discretion by admitting the challenged evidence, we will only reverse for that error if the error is inconsistent with substantial justice or if a substantial right of the party is affected. Any error caused by the admission of evidence is harmless error for which we will not reverse a conviction if the erroneously admitted evidence was cumulative of other evidence appropriately admitted.

Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind.Ct.App.2005) (citations and quotation marks omitted).

Muncy contends that the weapons were not used in the commission of the attempted battery and that their admission created a danger of unfair prejudice that outweighed their probative value. See Ind. Evidence Rule 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."); see also Lycan v. State, 671 N.E.2d 447, 454 (Ind.Ct.App.1996) (stating that, in general, "the introduction of weapons not used in the commission of the crime and not otherwise relevant to the case may have a prejudicial effect."), trans. denied.

Here, however, the weapons themselves were merely cumulative of Trooper Olibo's testimony that he found the brass knuckles and the knives. Muncy did not object at trial to the testimony about the weapons. Therefore, the admission of the weapons was harmless error. See West v. State, 755 N.E.2d 173, 183 (Ind.2001) (stating that admission of knife was not prejudicial when testimony about knife was already admitted).

II Sixth Amendment Challenge

Muncy contends that his sentence violates the Sixth Amendment. Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Muncy argues that his right to trial by jury was violated because his sentence was based on aggravators that were determined by a judge, not a jury. We note, however, that Muney did not object on Sixth Amendment grounds during his sentencing hearing and thereby "forfeited [his] ability to appeal [his] sentence on Blakely grounds." Smylie v. State, 823 N.E.2d 679, 689 (Ind.2005). Muncy did not raise any Blakely concerns during his sentencing hearing in November 2004, even though Blakely had been in effect since June 2004.

Waiver notwithstanding, Muney's criminal history alone was sufficient to support the trial court's imposition of a penalty in excess of the four-year presumptive sentence for a class C felony. "A single aggravating circumstance can justify the imposition of an enhanced sentence." Williams v. State, 818 N.E.2d 970, 976 (Ind.Ct.App.2004). "Therefore, we need not address whether the trial court's finding of other aggravating cireumstances was improper under Blakely because [Muney's] prior criminal history, standing alone, was sufficient to enhance his sentence." Id. Muncy's criminal history includes numerous arrests dating back to 1978, including multiple driving offenses and alcohol offenses. Tr. at 497. Therefore, the trial court did not err in enhance-ing Muncy's sentence for his class C felony convictions.

Affirmed.

NAJAM, J., concurs. BARNES, J., concurs in part and dissents in part, with opinion.

1 . The record suggests that Muncy was originally charged with battery, but the charge was later amended to attempted battery. Appellant's App. at 1; Tr. at 367-68, 409-10. Muncy's appellant's appendix does not contain the charging information.