Wise v. State

26 N.E.3d 137, 2015 Ind. App. LEXIS 92, 2015 WL 630458
CourtIndiana Court of Appeals
DecidedFebruary 13, 2015
DocketNo. 49A02-1406-CR-408
StatusPublished
Cited by23 cases

This text of 26 N.E.3d 137 (Wise v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wise v. State, 26 N.E.3d 137, 2015 Ind. App. LEXIS 92, 2015 WL 630458 (Ind. Ct. App. 2015).

Opinion

BAILEY, Judge.

Case Summary

[1] David Wise (‘Wise”) was convicted of one count of Rape,1 and five counts of Criminal Deviate Conduct,2 all as Class B felonies. He now appeals.

[2] We affirm.

Issues

[3] Wise raises two issues for our review. We restate these as:

I. Whether the trial court abused its discretion when it admitted into evidence handheld camera recordings of videos from a cellular phone; and
II. Whether the trial court abused its discretion when, under Evidence Rule 412, it did not compel certain testimony from Wise’s ex-wife.

Facts and Procedural History

[4] Wise and M.B. were married in 1998. The couple lived together until March 2009.

[5] At some point in 2005 or 2006, M.B. obtained a prescription for Xanax as treatment for anxiety problems. Because the medication made her extremely drowsy, M.B. ceased her use of the medication soon after filling the prescription.

[6] Also during 2005, Wise and M.B. were experiencing difficulties in their marriage. M.B. routinely drank canned soda, and sometime in 2006, Wise began attempting to sneak Xanax into M.B.’s drinks. M.B. detected this on several occasions and confronted Wise about it.

[7] Over time, M.B. became suspicious of Wise. One day in October 2008, Wise left his cellular phone at home, and M.B. discovered it. She accessed the phone and found three videos on it. One video depicted Wise having sexual intercourse with M.B.; two videos depicted Wise attempting to engage in oral sex with M.B. M.B. had no recall of these incidents.

[8] Not knowing how to retain videos directly from the phone, M.B. played the videos on Wise’s phone and recorded the [140]*140playback with a second handheld camcorder. She also changed the filenames of the cellular phone’s Arideos, replacing the date-stamp filenames with phrases she chose so that Wise would know she had seen the recordings. M.B. subsequently informed Wise that she had found the Andeos.

[9] The couple eventually divorced, and correspondence leading up to the divorce between Wise and M.B. included acknowl-edgements by Wise of “drugging you to take advantage of you out of desperation” (Ex. 4 at 9), and “taking advantage of you in your sleep” but that “all I thought of was that next fix of sex.” (Ex. 3 at.6.) Wise had also admitted to this behavior to a friend, Melissa Miller (“Miller”).

[10] On May 6, 2011, M.B. contacted the Indianapolis Metropolitan Police Department to report Wise’s conduct.3 After an investigation, Wise was arrested.

[11] On August 24, 2011, Wise was charged with one count of Rape and five counts of Criminal Deviate Conduct.

[12] During the pretrial proceedings, M.B. was deposed. During the deposition, Wise sought to obtain testimony from M.B. concerning extramarital relationships, Avith the claimed purpose of raising questions as to the identity of the individual depicted in the video recordings. The State objected, and Wise moved the trial court to compel M.B.’s testimony on the purported affairs. The trial court denied Wise’s motion.

[13] Also during the pretrial proceedings, Wise sought an order in limine that would preclude from admission into evidence the video recordings. Wise claimed that the recordings did not satisfy the requirements of the “silent Avitness” theory, that the recordings could not be properly authenticated, and that admission of the recordings would -violate his right to confrontation under the Sixth Amendment to the United States Constitution. The trial court denied Wise’s motion.

[14] A jury trial was conducted on April 28 and 29, 2014. During the trial, Wise timely objected to the admission of the video recordings, and sought to introduce evidence concerning M.B.’s purported extramarital affairs. The trial court admitted the videos into e-vidence, and did not permit Wise to introduce evidence concerning the purported affairs. At the trial’s conclusion, the jury found Wise guilty as charged.

[15] On May 16, 2014, a sentencing hearing was conducted. At the hearing’s conclusion, the trial court entered judgments of conviction against Wise. The court then sentenced Wise to ten years imprisonment for each offense, -with the sentences for Criminal Deviate Conduct run consecutively to the sentence for Rape. The trial court suspended to probation all five of the sentences for Criminal Deviate Conduct, suspended two years of the Rape sentence to probation, and ordered eight yéars of the Rape sentence served on in-home detention.4 This yielded an aggregate sentence of twenty years, -with twelve years suspended to probation.

[16] This appeal ensued.

Discussion and Decision

Admissibility of the Video Recordings

[17] On appeal, Wise’s first contention is that the trial court abused its discretion when it admitted into evidence the A/ideo recordings. Rulings on the admissibility [141]*141of evidence fall within the sound discretion of the trial court. Mays v. State, 907 N.E.2d 128, 131 (Ind.Ct.App.2009), trans. denied. We review such rulings for an abuse of that discretion, which occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id. Wise challenges the trial court’s admission of the video recordings on three bases: the “silent witness” theory and authentication; best evidence principles; and confrontation. We address each of these in turn.

“Silent Witness” and Authentication

[18] Wise’s first challenge to the trial court’s ruling on the admissibility of the video recordings contends that the recordings are inadmissible because they are not capable of being authenticated under the “silent witness” theory.

[19] The “silent witness” theory, as first adopted by this Court, permits the admission of photographs as substantive evidence, rather than merely as demonstrative evidence, so long as the photographic evidence is also relevant. Bergner v. State, 397 N.E.2d 1012, 1014-15 (Ind.Ct.App.1979).5 Addressing solely the question of foundation, the Bergner Court hesitated to set forth “extensive, absolute foundation requirements,” and instead required a “strong showing of the photograph’s competency and authenticity.” Id. at 1017. Thus, the Bergner Court warned against the problems of distortion of images and the possibility of alteration of images in a manner that misrepresents the images taken. Where images were taken by automatic devices, the Bergner Court stated, “there should be evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and chain of custody of the film-after its removal from the camera.” Id.

[20] The “silent witness” theory has continued in use since its adoption by Indiana courts in 1979, and has since been extended to the use of video recordings. See, e.g., Mays, 907 N.E.2d at 131-32. As applied to video recordings:

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Cite This Page — Counsel Stack

Bluebook (online)
26 N.E.3d 137, 2015 Ind. App. LEXIS 92, 2015 WL 630458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-state-indctapp-2015.