      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D),                                     Apr 14 2016, 9:19 am

      this Memorandum Decision shall not be                                          CLERK
                                                                                 Indiana Supreme Court
      regarded as precedent or cited before any                                     Court of Appeals
                                                                                      and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Brent B. Gibson                                          Gregory F. Zoeller
      Lafayette, Indiana                                       Attorney General of Indiana
                                                               Jodi Kathryn Stein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      David Oxley,                                             April 14, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               38A02-1507-CR-1028
              v.                                               Appeal from the Jay Circuit Court
                                                               The Honorable Brian D.
      State of Indiana,                                        Hutchison, Judge
      Appellee-Plaintiff                                       Trial Court Cause No.
                                                               38C01-1205-FC-14



      Mathias, Judge.


[1]   David Oxley (“Oxley”) was convicted in Jay Circuit Court of Class C felony

      reckless homicide. He appeals his conviction and raises four issues, which we

      consolidate and restate as:
      Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016              Page 1 of 11
          I.   Whether Oxley was prejudiced when the trial court excluded the

               testimony of his expert witness;

          II. Whether Oxley was prejudiced and is entitled to a new trial due to

               certain statements made during the State’s closing argument; and,

          III. Whether the evidence is sufficient to sustain Oxley’s Class C felony

               reckless homicide conviction.

[2]   We affirm.


                                     Facts and Procedural History

[3]   On January 7, 2012, Oxley spent the evening with friends and, over the course

      of the evening, consumed several beers. At approximately 10:00 p.m., Oxley

      and Mathew Marshall (“Marshall”) left a friend’s residence in separate vehicles.

      Marshall was ahead of Oxley until they turned north onto County Road 250

      West, which is a paved, two-lane county road that does not have speed limit or

      do-not-pass signs.

[4]   As they proceeded north on County Road 250 West, Oxley passed Marshall

      and safely returned to the northbound lane. A few minutes later, Oxley moved

      into the southbound lane to pass a truck in the northbound lane driven by Josh

      Hess (“Hess”). Hess had three passengers in his truck: Tyler Bruggerman,

      Nicole Bertke, and Lauren Bruns. Tyler was in the front passenger seat and

      observed that as Oxley tried to pass Hess’s truck, Hess sped up to prevent Oxley

      from passing.


      Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 2 of 11
[5]   Oxley and Hess traveled side-by-side on County Road 250 West for almost a

      mile, during which the trucks passed over two culverts and through an

      intersection. The two trucks jockeyed back and forth, slowing and increasing

      their speeds. As they approached the crest of a hill, Oxley remained in the

      southbound traffic lane.


[6]   At the crest of the hill, Oxley hit a sedan head-on killing the driver Michael

      Limbert (“Limbert”). Marshall had been following Oxley and Hess but could

      not keep up with their rate of speed. When he arrived at the scene just seconds

      after the collision, Marshall checked on Limbert first. Limbert was already

      clearly dead. Oxley’s truck was engulfed in flames, and Marshall pulled Oxley

      from the truck. Oxley sustained serious injuries as a result of the accident.


[7]   After the collision, Hess’s truck rolled several times until it came to rest in an

      adjacent field. Bertke, who was in the rear passenger seat of Hess’s truck, was

      also seriously injured.


[8]   On May 24, 2012, Oxley was charged with Class C felony reckless homicide

      and two counts of Class D felony criminal recklessness resulting in serious

      bodily injury. A jury trial was held in August 2013, and Oxley was acquitted of

      the Class D felony charges. However, the jury was deadlocked on the reckless

      homicide charge. Shortly thereafter, Oxley moved to dismiss the reckless

      homicide charge. His motion was denied, and that denial was affirmed on

      interlocutory appeal.




      Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 3 of 11
[9]    A second jury trial on the reckless homicide charge commenced on June 10,

       2015. During trial, Oxley wanted to present testimony from Phil Dickenson

       (“Dickenson”), who is a crash reconstruction expert. Although the State agreed

       that Dickenson is an expert in his field, the State argued that he should not be

       allowed to testify concerning information or facts that he obtained from Officer

       Merkling’s initial crash investigation report because the officer was not called as

       a State’s witness and was not under subpoena by Oxley. The trial court agreed

       with the State and concluded that Dickenson could not give his opinion about

       how the crash occurred by relying on facts obtained from examining Officer

       Merkling’s report or the initial crash investigation report, which were not

       admitted into evidence.


[10]   At the close of evidence, Oxley argued that Hess’s actions were the intervening

       cause of the accident. The jury disagreed and found Oxley guilty of Class C

       felony reckless homicide. Oxley was ordered to serve a four-year sentence, with

       two years executed at the Department of Correction and two years suspended

       to formal probation. Oxley now appeals.


                                            Excluded Testimony

[11]   Questions regarding the admission or exclusion of evidence are within the

       discretion of the trial judge and are reviewed on appeal only for an abuse of that

       discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.

       The trial court abuses its discretion only if its decision is clearly against the logic

       and effect of the facts and circumstances before it, or if the court has

       misinterpreted the law. Id.
       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 4 of 11
[12]   Furthermore, whether rooted in the Due Process Clause of the Fourteenth

       Amendment or the Compulsory Process or Confrontation clauses of the Sixth

       Amendment, the United States Constitution guarantees criminal defendants a

       meaningful opportunity to present a complete defense. Hyser v. State, 996

       N.E.2d 443, 447 (Ind. Ct. App. 2013), trans. denied. The Indiana Supreme Court

       has stated:

               The right to offer the testimony of witnesses . . . is in plain terms
               the right to present a defense, the right to present the defendant’s
               version of the facts as well as the prosecution’s to the jury so it
               may decide where the truth lies. Just as an accused has the right
               to confront the prosecution’s witnesses for the purpose of
               challenging their testimony, he has the right to present his own
               witnesses to establish a defense. This right is a fundamental
               element of due process of law.


       Kubsch v. State, 784 N.E.2d 905, 924 (Ind. 2003).


[13]   “When competent, reliable evidence is excluded that is central to the

       defendant's case, this right is abridged.” Hyser, 996 N.E.2d at 448. However, a

       criminal defendant does not enjoy an unlimited constitutional right to offer

       exculpatory evidence, as the right is subject to reasonable restrictions. Hubbard

       v. State, 742 N.E.2d 919, 922-23 (Ind. 2001). Evidence to support the defense

       theory must comply with applicable evidentiary rules. Kubsch, 784 N.E.2d 926.


[14]   At trial, the State conceded that Dickenson was an expert in accident

       reconstruction but argued that his testimony should be excluded because, in

       forming his opinion, he relied on reports that were not admitted at trial,


       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 5 of 11
       including police reports, photos and diagrams.1 The trial court agreed and

       excluded Dickenson’s testimony.

[15]   However, “[e]xperts may testify to opinions based on inadmissible evidence,

       provided that it is of the type reasonably relied upon by experts in the field.”

       Ind. Evid. R. 703. Therefore, “under some circumstances, Rule 703 allows an

       expert witness to testify to opinions based on facts not before the jury.” Schmidt

       v. State, 816 N.E.2d 925, 938 (Ind. Ct. App. 2004), trans. denied.


[16]   The State apparently concedes that the trial court erred when it excluded

       Dickenson’s testimony because it argues only that “the trial court’s ruling

       excluding Dickenson’s testimony was harmless error.” Appellee’s Br. at 15. It is

       well established that “not every trial error requires reversal. Errors in the

       admission or exclusion of evidence are to be disregarded as harmless error

       unless they affect the substantial rights of the party.” Lewis v. State, 34 N.E.3d

       240, 248 (Ind. 2015). To determine whether an error in the introduction of

       evidence affected the appellant's substantial rights, we must assess the probable

       impact of that evidence upon the jury. Id.


[17]   If his testimony had not been excluded, Dickenson would have testified that

       Oxley’s and Hess’s vehicles were traveling side-by-side at approximately 60 to

       65 miles per hour when Oxley’s vehicle collided with Limbert’s vehicle. Tr. pp.




       1
        Dickenson also personally viewed the location where the accident occurred and viewed photos of the
       damage to the vehicles, some of which were admitted into evidence. Tr. p. 108.

       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016        Page 6 of 11
       126-27. Oxley was unable to avoid the collision due to the position of all three

       vehicles on the roadway, but Hess could have driven his vehicle off to the right

       of the roadway. Tr. pp. 127-28. Oxley also wanted to elicit testimony that

       “black boxes” from the vehicles were not seized and analyzed.

[18]   Dickenson’s proffered testimony is cumulative of other evidence offered at trial.

       The evidence presented from multiple witnesses established that the vehicles

       were traveling side-by-side when Oxley’s vehicle collided with Limbert’s

       vehicle, and that Oxley and Hess were traveling between 50 to 70 miles per

       hour as they proceeded northbound on County Road 250 West. For all of these

       reasons, we conclude that any error the trial court committed when it excluded

       Dickenson’s testimony was harmless.2 See Pierce v. State, 29 N.E.3d 1258, 1268

       (Ind. 2015) (stating if the wrongfully excluded testimony is merely cumulative

       of other evidence presented at trial, its exclusion is harmless error).

                                         Prosecutorial Misconduct

[19]   On appeal, when we review a claim of prosecutorial misconduct during closing

       argument:




       2
         Oxley also argues that “if the trial court did not abuse its discretion in excluding Defendant’s expert
       witness, then Oxley was denied effective assistance of counsel when trial counsel failed to subpoena
       witnesses and introduce necessary testimony to admit his expert’s testimony.” Appellant’s Br. at 15. In
       support of this claim, Oxley merely argues that Dickenson’s testimony would have “changed the jury’s
       verdict regarding whether Oxley was reckless.” Id. at 16. However, Dickenson’s testimony was cumulative of
       other evidence admitted at trial, and therefore, Oxley cannot establish that he was prejudiced because
       Dickenson’s testimony was not presented to the jury. Moreover, the fact that Hess may have been able to
       move his vehicle to the right of the roadway when the collision occurred is not relevant to whether Oxley
       recklessly operated his vehicle in a manner that resulted in Limbert’s death.

       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016         Page 7 of 11
               we determine (1) whether misconduct occurred, and if so, (2)
               “whether the misconduct, under all of the circumstances, placed
               the defendant in a position of grave peril to which he or she
               would not have been subjected” otherwise.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citation omitted). The gravity of

       peril is determined by the probable persuasive effect of the misconduct on the

       jury’s decision, not on the amount of impropriety of the conduct. Carter v. State,

       956 N.E.2d 167, 169 (Ind. Ct. App. 2011), trans. denied.


[20]   Oxley argues that the State urged the jury to “convict Oxley because Hess was

       also going to have to pay,” which statement was “designed to inflame the

       passions or prejudice of the jury.” Appellant’s Br. at 16. Specifically, during

       closing argument, the prosecutor stated, “Mr. Hess made a terrible decision and

       he’ll have to answer for that. Mr. Oxley is here today before you to answer for

       his part in it.” Tr. p. 143. In response to Oxley’s closing argument, the

       prosecutor also stated:

               Jorden Hess screw[ed] up terribly, sure. But you’re hear today to judge
               David Oxley’s responsibility. This Defendant. That’s your job today. Is
               Jordan Hess a factor in this[?] Yeah. Is alcohol a factor[?] Yeah. Is
               speed a factor[?] Yeah. Is the roadway a factor[?] Yes. All of
               those are factors to consider.


       Tr. p. 158 (emphasis added).


[21]   Oxley’s trial counsel failed to object to these challenged statements. Therefore,

       Oxley must establish both prosecutorial misconduct and additional grounds for

       fundamental error. Carter, 956 N.E.2d at 170. For prosecutorial misconduct to

       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 8 of 11
       be fundamental error, it must make a fair trial impossible or amount to obvious

       blatant violations of basic and elementary principles of due process and present

       an undeniable and substantial potential for harm. Id. Misconduct occurs when a

       prosecutor requests the jury to convict a defendant for any reason other than his

       or her guilt. Id.


[22]   At trial, Oxley argued that he was not guilty of reckless homicide because

       Hess’s refusal to allow him to pass or return to the northbound lane was the

       cause of the collision between Oxley’s and Limbert’s vehicles. Therefore, the

       prosecutor’s comments on Hess’s conduct were reasonably made in response to

       Oxley’s defense. Moreover, the State specifically argued that the jury consider

       Oxley’s responsibility for the accident when determining his guilt. Under these

       facts and circumstances, the State did not commit any misconduct, and the

       State’s closing argument did not place Oxley in a position of grave peril.

                                             Sufficient Evidence

[23]   When the sufficiency of evidence is challenged, we neither reweigh the

       evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d

       124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126

       (Ind. 2005)), trans. denied. Rather, we recognize the exclusive province of the

       trier of fact to weigh any conflicting evidence and we consider only the

       probative evidence supporting the conviction and the reasonable inferences to

       be drawn therefrom. Id. If there is substantial evidence of probative value from

       which a reasonable trier of fact could have drawn the conclusion that the

       defendant was guilty of the crime charged beyond a reasonable doubt, then the
       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 9 of 11
       verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.

       Ct. App. 2008).

[24]   To prove that Oxley committed Class C felony reckless homicide,3 the State

       was required to establish that Oxley recklessly killed Michael Limbert by

       “operating a motor vehicle in such a reckless manner and high speed resulting

       in an accident wherein [Limbert] died from injuries from said accident.” See

       Appellant’s App. p. 17; Ind. Code § 35-42-1-5 (“A person who recklessly kills

       another human being commits reckless homicide”). “A person engages in

       conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and

       unjustifiable disregard of harm that might result and the disregard involves a

       substantial deviation from acceptable standards of conduct.” Ind. Code § 35-41-

       2-2.


[25]   Oxley argues that the evidence is insufficient to support his conviction because

       Hess’s refusal to allow him over into the northbound lane was an intervening

       cause of Limbert’s death.

                  An intervening cause is an independent force that breaks the
                  causal connection between the actions of the defendant and the
                  injury. In order for an intervening cause to break the chain of
                  criminal responsibility, it must be so extraordinary that it would
                  be unfair to hold the appellant responsible for the actual result. In
                  all other cases, “[a]n individual who inflicts injury upon another
                  is deemed by law to be guilty of homicide if the injury




       3
           The offense is now classified as a Level 5 felony. Ind. Code § 25-42-1-5 (eff. July 1, 2014).


       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016               Page 10 of 11
               contributed mediately or immediately to the death of that
               person.”


       Wooley v. State, 716 N.E.2d 919, 928 (Ind. 1999) (internal citations omitted).


[26]   Oxley contends that Hess’s driving was an intervening cause of Limbert’s death

       because Hess increased and decreased his speed to prevent Oxley from

       returning his vehicle to the northbound lane of traffic. However, Oxley ignores

       the fact that the two vehicles traveled side by side at a high rate of speed on a

       dark country road for nearly one mile before Oxley’s vehicle struck Limbert’s in

       the head-on crash. It was reasonable for the jury to infer that Hess sped up to

       prevent Oxley from passing him. However, it was also reasonable for the jury to

       conclude that Oxley could have significantly decreased his speed to return to

       the northbound lane, and his failure to do so was reckless. For these reasons,

       we conclude that the evidence is sufficient to support Oxley’s conviction for

       Class C felony reckless homicide.

                                                  Conclusion

[27]   The trial court’s error in excluding Dickenson’s testimony did not prejudice

       Oxley and was therefore harmless. Also, the prosecutor’s statements during

       closing argument did not amount to fundamental error. Finally, the evidence is

       sufficient to support Oxley’s Class C felony reckless homicide conviction. For

       all of these reasons, we affirm.

[28]   Affirmed.


       Kirsch, J., and Brown, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 38A02-1507-CR-1028 | April 14, 2016   Page 11 of 11
