                                                                         FILED
                                                                    Feb 28 2018, 7:58 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jonathan A. Leachman                                       Curtis T. Hill, Jr.
      Fifer Law Office                                           Attorney General of Indiana
      New Albany, Indiana                                        Jesse R. Drum
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Eric P. Wheeler,                                           February 28, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 88A05-1703-CR-541
              v.                                                 Appeal from the Washington
                                                                 Circuit Court
      State of Indiana,                                          The Honorable Larry W. Medlock,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 88C01-1510-F5-596



      Mathias, Judge.

[1]   Following a jury trial in Washington Circuit Court, Eric P. Wheeler

      (“Wheeler”) was convicted of Class A misdemeanor operating a motor vehicle

      with an alcohol concentration equivalent of 0.15 and determined to be an

      habitual vehicular substance offender. The trial court sentenced Wheeler to one

      year suspended to probation on the Class A misdemeanor conviction and five
      Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018              Page 1 of 23
      and one-half years executed for being an habitual vehicular substance offender.

      Wheeler appeals and presents five issues, which we consolidate, reorder, and

      restate as the following three:


              I.       Whether the trial court erred by permitting the State to amend the
                       charging information to eliminate one of the alleged predicate
                       offenses;

              II.      Whether the trial court abused its discretion in the admission of
                       toxicology evidence of Wheeler’s blood sample; and

              III.     Whether Wheeler’s sentence is inappropriate.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On the night of October 23, 2015, Washington County Sheriff’s Deputies Brad

      Naugle (“Deputy Naugle”) and Joe Keltner (“Deputy Keltner”) were

      dispatched to the scene of a single-vehicle roll-over accident on State Road 60 in

      Washington County. There were no injuries in the single-vehicle accident, and

      a wrecker tow truck was on scene to remove the damaged car. As the tow-truck

      operator, Steve Borden (“Borden”), attempted to load the wrecked car onto the

      tow truck, Deputy Naugle got in his patrol car to complete an incident report. A

      local teenager, Dillon Moore (“Moore”), who had been riding along with

      Deputy Naugle that night, was standing behind Deputy Naugle’s patrol car.

      Deputy Keltner was in the road waving a blue and red wand to warn oncoming

      traffic to stop. This warning was in addition to the flashing emergency lights on

      the patrol cars and the wrecker truck. As Deputy Keltner directed traffic, he


      Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 2 of 23
      observed a Toyota pickup truck approaching the scene of the accident without

      slowing down. When he realized the truck was not going to stop, Deputy

      Keltner yelled out a warning to the others.


[4]   Deputy Keltner attempted to jump out of the way of the fast-approaching

      pickup truck but was only partially successful; the truck struck his legs as he

      was in mid-air, causing him to be thrown into a ditch. The pickup truck then

      struck the driver’s side door of Deputy Naugle’s car, knocking the door off.

      Deputy Naugle had been sitting with one leg outside the vehicle with his door

      open and was barely able to get himself fully inside the vehicle before it was

      struck. The pickup truck also hit the tow truck, which knocked Borden

      underneath the vehicle he was attaching to the tow truck. Moore was hit by

      flying debris and knocked down.


[5]   Immediately after the impact, Deputy Naugle checked himself for injuries and

      noted that he had pain in his head, neck, upper leg, and abdomen. He then got

      out of his car to check on the others. He saw Deputy Keltner get up off the

      ground and heard him report that he had been struck in the legs. He then went

      behind his car to check on Moore, who collapsed in front of him. Borden also

      got up off the ground after the accident, relatively unscathed. Deputy Naugle

      called for an ambulance and went to check on the driver of the pickup truck,

      later identified as Wheeler.


[6]   When Deputy Naugle got to the pickup truck, Wheeler reached toward the

      passenger’s side of his truck. Deputy Naugle told Wheeler to keep his hands on


      Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 3 of 23
      the steering wheel where he could see them, but Wheeler still tried to reach

      toward the other side of the truck and told Deputy Naugle, “F**k you.” Tr.

      Vol. 2, p. 221. Deputy Naugle repeated his warning, but Wheeler still ignored

      him and repeated his vulgar comment. Wheeler then got out of his vehicle and

      approached the deputy in an aggressive manner. This caused Deputy Naugle to

      pull out his taser and order Wheeler to put his hands on his vehicle. Still,

      Wheeler did not comply but instead threatened to sue Deputy Naugle and got

      back into his truck. Deputy Keltner came over to help, and the two of them

      removed Wheeler from the vehicle and placed him in handcuffs.


[7]   Deputy Naugle detected the odor of alcohol on Wheeler. But due to the injuries

      to him and Deputy Keltner, he decided to radio for assistance so other officers

      could investigate Wheeler. Salem Police Department Officer Chris Cauble

      (“Officer Cauble”) arrived on the scene. Officer Cauble too noticed the smell of

      alcohol on Wheeler. He also observed that Wheeler’s eyes were red and that his

      speech was slurred. Because of the recent accident, Officer Cauble did not

      conduct any field sobriety tests. Instead, he read Wheeler the Indiana implied

      consent law, and Wheeler agreed to submit to a blood draw. Officer Cauble

      then took Wheeler to the hospital for a blood draw.


[8]   At the hospital, Wheeler’s blood was drawn by medical technologist Lynn

      Mach (“Mach”). Serum testing at the hospital indicated that Wheeler had a

      blood alcohol concentration of 0.215. Tr. Vol. 2, pp. 29–30. Mach also drew

      two vials of Wheeler’s blood for further testing. Mach mislabeled the first vial

      as coming from “Chris Wheeler,” but properly labelled the second as coming

      Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 4 of 23
       from “Eric Wheeler.” Id. at 62–63. Mach later suspected that she mislabeled the

       one vial because she was speaking with Officer Chris Cauble at the time and

       used his first name instead of Wheeler’s first name.


[9]    As a result of this incident, the State charged Wheeler on October 26, 2015 as

       follows:


                    • Count 1: Level 6 felony operating a vehicle while intoxicated with
                      a prior conviction for operating while intoxicated within the past
                      five years;
                    • Count 2: Level 5 felony operating a vehicle while intoxicated
                      causing serious bodily injury to Moore;
                    • Count 3: Level 5 felony operating a vehicle while intoxicated
                      causing serious bodily injury to Deputy Keltner;
                    • Count 4: Level 5 felony operating a vehicle while intoxicated
                      causing serious bodily injury to Deputy Naugle;
                    • Count 5: Class A misdemeanor resisting law enforcement;
                    • Count 6: Class A misdemeanor operating a vehicle while
                      intoxicated with an alcohol concentration equivalent of at least
                      0.15; and
                    • Count 7: Class A misdemeanor operating a vehicle while
                      intoxicated in a manner that endangered a person.


[10]   On December 22, 2015, the State filed an additional information alleging that

       Wheeler was an habitual vehicular substance offender, listing three prior

       offenses. On December 28, 2015, the State filed a motion to add Count 8,

       another charge of Class A misdemeanor resisting law enforcement. The trial

       court granted this motion that same day. Almost one year later, on December

       22, 2016, the State moved to dismiss Counts 2, 3, 4, and 8, which the trial court

       granted. This left the following renumbered counts:

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 5 of 23
                    • Count 1: Level 6 felony operating a vehicle while intoxicated with
                      a prior conviction for operating while intoxicated within the past
                      five years;
                    • Count 2: Class A misdemeanor resisting law enforcement; and
                    • Count 3: Class A misdemeanor operating a vehicle while
                      intoxicated with an alcohol concentration equivalent of at least
                      0.15;
                    • Count 4: Class A misdemeanor operating a vehicle while
                      intoxicated in a manner that endangered a person


[11]   Forensic scientist Cheryl Anderson (“Anderson”) of the Indiana State

       Department of Toxicology tested the mislabeled vial of Wheeler’s blood on

       March 15 and 16, 2016. The tests of this vial indicated that Wheeler’s blood

       alcohol concentration was 0.184. The second vial, which was properly labeled,

       was not tested until January 30, 2017, two days before Wheeler’s trial, and

       indicated that Wheeler’s blood alcohol concentration was 0.179.


[12]   Immediately prior to trial, Wheeler moved to suppress the results of the tests of

       the second vial of blood because it was not disclosed to him until shortly before

       trial.1 Wheeler argued that the late disclosure of this blood test by the State

       should be sanctioned by exclusion of the test results of that vial. The trial court

       denied the motion to suppress. When the trial court made its ruling, Wheeler

       moved for a continuance to allow preparation to address this evidence. The

       State did not oppose the motion, but the trial court nevertheless denied the

       motion. The court did, however, recess until the following day, to allow



       1
         Wheeler filed his motion on January 30, 2017, the same day that the State disclosed to him the results of the
       second vial.

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018                       Page 6 of 23
       Wheeler’s counsel the opportunity to depose the State’s witness sponsoring the

       blood evidence.


[13]   A jury trial took place on February 1–3, 2017. On the last day of trial, the State

       moved to amend the information alleging Wheeler to be an habitual vehicular

       substance offender by removing the reference to the second of the three listed

       prior convictions. The trial court granted the State’s motion over Wheeler’s

       objection. The jury ultimately found Wheeler guilty of the first three of the

       remaining and renumbered counts: Counts 1, 2, and 3, but acquitted him on

       Count 4. The jury then found that Wheeler was an habitual vehicular substance

       offender.


[14]   The trial court held a sentencing hearing on February 13, 2017. Due to

       concerns about double jeopardy, the court entered judgment of conviction on

       renumbered Count 3 only for Class A misdemeanor operating a vehicle while

       intoxicated with an alcohol concentration equivalent of at least 0.15. The court

       imposed a sentence of one year, suspended to probation, and attached to this an

       habitual vehicular substance offender enhancement of five and one-half years

       executed. Wheeler now appeals.


                              I. Amendment of Charging Information

[15]   Wheeler first argues that the trial court erred by permitting the State to amend

       the charging information which alleged that he was an habitual vehicular

       substance offender. The statute governing the amendment of charging

       instruments provides:


       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 7 of 23
        (a) An indictment or information which charges the commission
        of an offense may not be dismissed but may be amended on
        motion by the prosecuting attorney at any time because of any
        immaterial defect, including:
              (1) any miswriting, misspelling, or grammatical error;
              (2) any misjoinder of parties[,] defendant or offenses
              charged;
              (3) the presence of any unnecessary repugnant allegation;
              (4) the failure to negate any exception, excuse, or provision
              contained in the statute defining the offense;
              (5) the use of alternative or disjunctive allegations as to the acts,
              means, intents, or results charged;
              (6) any mistake in the name of the court or county in the
              title of the action, or the statutory provision alleged to have
              been violated;
              (7) the failure to state the time or place at which the offense
              was committed where the time or place is not of the essence
              of the offense;
              (8) the failure to state an amount of value or price of any
              matter where that value or price is not of the essence of the
              offense; or
              (9) any other defect which does not prejudice the substantial rights
              of the defendant.

        (b) The indictment or information may be amended in matters of
        substance and the names of material witnesses may be added, by
        the prosecuting attorney, upon giving written notice to the
        defendant at any time:
              (1) up to:
                   (A) thirty (30) days if the defendant is charged with a
                   felony; or
                   (B) fifteen (15) days if the defendant is charged only with
                   one (1) or more misdemeanors;

Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018           Page 8 of 23
              before the omnibus date; or
              (2) before the commencement of trial;
        if the amendment does not prejudice the substantial rights of the
        defendant. When the information or indictment is amended, it
        shall be signed by the prosecuting attorney or a deputy
        prosecuting attorney.

        (c) Upon motion of the prosecuting attorney, the court may, at any time
        before, during, or after the trial, permit an amendment to the indictment
        or information in respect to any defect, imperfection, or omission in form
        which does not prejudice the substantial rights of the defendant.

        (d) Before amendment of any indictment or information other
        than amendment as provided in subsection (b), the court shall
        give all parties adequate notice of the intended amendment and
        an opportunity to be heard. Upon permitting such amendment,
        the court shall, upon motion by the defendant, order any
        continuance of the proceedings which may be necessary to
        accord the defendant adequate opportunity to prepare the
        defendant’s defense.

        (e) An amendment of an indictment or information to include a
        habitual offender charge under IC 35-50-2-8 must be made at least thirty
        (30) days before the commencement of trial. However, upon a showing of
        good cause, the court may permit the filing of a habitual offender charge
        at any time before the commencement of the trial if the amendment does
        not prejudice the substantial rights of the defendant. If the court
        permits the filing of a habitual offender charge less than thirty
        (30) days before the commencement of trial, the court shall grant
        a continuance at the request of the:
              (1) state, for good cause shown; or
              (2) defendant, for any reason.




Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018      Page 9 of 23
       Ind. Code § 35-34-1-5 (“Section 5”) (emphases added). Wheeler argues that the

       State’s amendment of the habitual vehicular substance offender information

       was not permitted under any of the provisions of Section 5.


[16]   Wheeler claims that the State was prohibited from amending the habitual

       offender information under Subsection 5(e) because the State did not move to

       amend the information until well after thirty days before trial. But Subsection

       5(e) governs amendments to include an habitual offender allegation. Here, the

       State did not move to amend the information to include an habitual offender

       allegation. It moved to amend the information to remove an allegation of a

       predicate offense for an habitual offender allegation that had already been

       timely filed.2 Subsection 5(e) is therefore inapplicable.


[17]   Wheeler also claims that the amendment to the habitual offender information

       was impermissible under Subsections 5(b) and (c) because, he argues, the

       amendment to the charging information did “prejudice the substantial rights of

       the defendant.” Both of these subsections preclude amendments which are so

       significant that they prejudice a defendant’s substantial rights. Similarly,

       Subsection 5(a)(9) permits amendments to correct “any other defect which does

       not prejudice the substantial rights of the defendant.” Thus, the question before

       us is whether the amendment of the habitual offender information prejudiced

       Wheeler’s substantial rights. This requires us to consider the habitual vehicular



       2
        The habitual offender allegation was filed on December 22, 2015, and the jury trial took place on February
       3, 2017, over one year later.

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018                    Page 10 of 23
       substance offender statute and the information alleging that Wheeler was an

       habitual vehicular substance offender under this statute.


[18]   The habitual vehicular substance offender statute provides:


               (a) The state may seek to have a person sentenced as a habitual
               vehicular substance offender for any vehicular substance offense
               by alleging, on a page separate from the rest of the charging
               instrument, that the person has accumulated two (2) or three (3)
               prior unrelated vehicular substance offense convictions. If the state alleges
               only two (2) prior unrelated vehicular substance offense convictions, the
               allegation must include that at least one (1) of the prior unrelated
               vehicular substance offense convictions occurred within the ten (10) years
               before the date of the current offense.

               (b) For purposes of subsection (a), a person has accumulated
               two (2) or three (3) prior unrelated vehicular substance offense
               convictions only if:

                     (1) the second prior unrelated vehicular substance offense
                     conviction was committed after commission of and
                     sentencing for the first prior unrelated vehicular substance
                     offense conviction;
                     (2) the offense for which the state seeks to have the person
                     sentenced as a habitual vehicular substance offender was
                     committed after commission of and sentencing for the second
                     prior unrelated vehicular substance offense conviction; and
                     (3) for a conviction requiring proof of three (3) prior
                     unrelated vehicular substance offense felonies, the third prior
                     unrelated vehicular substance offense conviction was
                     committed after commission of and sentencing for the second
                     prior unrelated vehicular substance offense conviction.

               However, a conviction does not count for purposes of subsection
               (a) if it has been set aside or it is a conviction for which the
               person has been pardoned.

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018        Page 11 of 23
               (c) A person is a habitual vehicular substance offender if the jury
               (if the hearing is by jury) or the court (if the hearing is to the
               court alone) finds that the state has proved beyond a reasonable
               doubt that the person has accumulated three (3) or more prior
               unrelated vehicular substance offense convictions at any time, or
               two (2) prior unrelated vehicular substance offense convictions, with at
               least one (1) of the prior unrelated vehicular substance offense convictions
               occurring within ten (10) years of the date of the occurrence of the current
               offense.

               (d) The court shall sentence a person found to be a habitual
               vehicular substance offender to an additional fixed term of at
               least one (1) year but not more than eight (8) years of
               imprisonment, to be added to the term of imprisonment imposed
               under IC 35-50-2 or IC 35-50-3.

               (e) Charges filed under this section must be filed in a circuit
               court or superior court.


       Ind. Code § 9-30-15.5-2 (emphases added).


[19]   Pursuant to this statute, the State has an option of alleging that a defendant has

       been convicted of two or three prior unrelated vehicular substance offenses. If

       the State alleges that the defendant has been convicted of three prior unrelated

       vehicular substance offenses, then there is no time limit on the age of the prior

       convictions. If, however, the State alleges that the defendant has only two prior

       unrelated vehicular substance offense convictions, then the State must also

       prove that at least one of the prior unrelated vehicular substance offense

       convictions occurred within ten years of the date of the instant offense.


[20]   In the present case, the State initially alleged that Wheeler was an habitual

       vehicular substance offender as follows:

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018       Page 12 of 23
               1. On September 25, 2010, Eric P. Wheeler committed the
                  offense of Operating While Intoxicated with a Prior
                  Conviction, Class D felony, and was convicted of Operating
                  While Intoxicated With a Prior Conviction, Class D felony,
                  on August 28, 2013, in the Washington County Superior
                  Court, Indiana, Cause No. 88D01-1009-FD-561;

               2. On January 7, 2006, Eric P. Wheeler committed the offense
                  of Operating While Intoxicated, Class A misdemeanor, and
                  was convicted of Operating While Intoxicated, Class A
                  misdemeanor, on July 11, 2006, in the Floyd County Court,
                  Indiana, Cause No. 22E0601-CM-43 [sic];

               3. On February 17, 2006, Eric P. Wheeler committed the
                  offense of Operating While Intoxicated, Class A
                  misdemeanor, and was convicted of Operating While
                  Intoxicated, Class A misdemeanor, on June 26, 2006, in the
                  Washington County Superior Court, Indiana, Cause No.
                  88D01-0602-CM-40;

               4. Pursuant to I.C. 9-30-15.5-2, Eric P. Wheeler has
                  accumulated the requisite prior, unrelated vehicular
                  substance convictions, and is therefore a Habitual Vehicular
                  Substance Offender.


       Appellant’s App. Vol. II, p. 64. The trial court permitted the State to amend the

       information by eliminating the second paragraph.

[21]   Wheeler argues that this amendment to the habitual offender information

       prejudiced his substantial rights. “A defendant’s substantial rights ‘include a

       right to sufficient notice and an opportunity to be heard regarding the charge;

       and, if the amendment does not affect any particular defense or change the

       positions of either of the parties, it does not violate these rights.’” Erkins v. State,


       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 13 of 23
       13 N.E.3d 400, 405 (Ind. 2014) (quoting Gomez v. State, 907 N.E.2d 607, 611

       (Ind. Ct. App. 2009)).


[22]   Wheeler contends that the allowed amendment “eviscerated” his planned

       defense to the original information. Appellant’s Br. at 17. That is, he intended

       to argue that his conviction in the second-alleged predicate offense had been

       modified such that it no longer qualified as a prior unrelated vehicular

       substance offense. Wheeler’s entire argument on this issue is predicated upon

       his belief that, under the original habitual offender information, the State was

       required to prove all three of alleged the prior unrelated offenses. This belief is

       incorrect.


[23]   The habitual vehicular substance offender statute provides for two alternative

       methods of establishing that a defendant is an habitual vehicular substance

       offender, i.e., by proving either that the defendant has three or more prior

       unrelated convictions for vehicular substance offenses, or that the defendant has

       two prior unrelated vehicular substance offense convictions and that one of

       these prior convictions occurred within ten years of the instant offense. The

       original habitual offender information alleged three prior unrelated habitual

       vehicular substance offense convictions, but this did not require the State to

       prove all three convictions.


[24]   Even under the original information, the State could have established that

       Wheeler was an habitual vehicular substance offender by proving any two of

       the three alleged convictions, plus showing that one of these two convictions


       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 14 of 23
       occurred within ten years before the date of the instant offense. Accordingly, by

       permitting the State to eliminate one of the three alleged prior unrelated

       offenses, the trial court did not deprive Wheeler of a defense, as his claimed

       defense would have been futile even under the original habitual offender

       information.


[25]   We therefore find Wheeler’s citation to Nunley v. State, 995 N.E.2d 718 (Ind. Ct.

       App. 2013), clarified on reh’g, 4 N.E.3d 669, to be unavailing. In that case, the

       State alleged that the defendant was an habitual offender, and the original

       habitual offender information listed two prior unrelated convictions to support

       the habitual offender count: a conviction for theft and a conviction for

       possession of cocaine. Id. at 722. After the trial had started, the State requested

       leave to amend the habitual offender charge in order to remove the allegation

       that Nunley had a prior unrelated conviction for possession of cocaine and

       substitute an allegation that he had additional prior convictions for theft. The

       trial court permitted the amendment, and Nunley appealed. On appeal, we held

       that the trial court erred in allowing the amendment because it “drastically

       changed” the defendant’s available defenses in that, under the original

       information, the charged offenses would not have supported an habitual

       offender finding. Id. at 723. In contrast, in the present case, even under the

       original habitual offender information, the alleged prior convictions would have

       sufficed to support an habitual vehicular substance offender finding. Removing

       the second alleged conviction did not alter this fact.




       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 15 of 23
[26]   The same is true for Wheeler’s citation to Gibbs v. State, 952 N.E.2d 214 (Ind.

       Ct. App. 2011), trans. denied. In that case, the original information charged

       Gibbs with an arson that damaged the apartments of his neighbors. The fire,

       however, actually only damaged Gibbs’s own apartment. The trial court then

       permitted the State to amend the information, after the jury had been

       empaneled, to eliminate the reference to the neighbors’ property. On appeal, we

       held that this amendment was one of substance because it deprived Gibbs of a

       defense. Id. at 221. Here, however, Wheeler’s claimed defense was equally

       unviable under the original information as it was under the amended

       information.


[27]   We therefore conclude that the amendment to the habitual vehicular substance

       offender information was for an “immaterial defect,” which includes “the use of

       alternative or disjunctive allegations as to the acts, means, intents, or results

       charged.” I.C. § 35-34-1-5(a)(5). Because Wheeler has not shown that the

       amendment prejudiced his substantial rights, the trial court did not err in

       permitting the amendment to the information alleging that Wheeler was an

       habitual vehicular substance offender. See Jones v. State, 766 N.E.2d 1258, 1262–

       63 (Ind. Ct. App. 2002) (holding that defendant’s substantive rights were not

       prejudiced by amendment to charging information that deleted one of two




       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 16 of 23
       alternate bases for the defendant’s criminal liability), abrogated in part by Fajardo

       v. State, 859 N.E.2d 1201 (Ind. 2007).3


                                 II. Admission of Blood Test Evidence

[28]   Wheeler also argues that the trial court abused its discretion when it admitted

       into evidence the test results which were performed only shortly before trial. In

       reviewing this claim, we first note that questions regarding the admission of

       evidence are entrusted to the sound discretion of the trial court, and we review

       such issues only for an abuse of that discretion. Bradley v. State, 770 N.E.2d 382,

       385 (Ind. Ct. App. 2002), trans. denied. With regard to the exclusion of evidence

       as a sanction for discovery violations, we have noted before:


                Trial courts[] are given wide discretionary latitude in discovery
                matters and their rulings will be given deference on appeal. The
                trial court’s determination of violations and sanctions will be
                affirmed absent clear error and resulting prejudice. The most
                extreme sanction of [evidence] exclusion should not be employed
                unless the . . . breach has been purposeful or intentional or unless
                substantial and irreparable prejudice would result[.]




       3
         Jones was one of several cases that held that the issue of the propriety of a belated amendment to a charging
       instrument should focus on whether the defendant’s substantial rights were prejudiced, and not whether the
       challenged amendment was one of form or substance. See Fajardo v. State, 859 N.E.2d 1201, 1206 n.10 (Ind.
       2007). Fajardo abrogated this rule and held that the key determination in late amendments to charging
       instruments was whether the amendment was one of form (which was permissible) or substance (which was
       not). See id. at 1206–07. Our General Assembly quickly responded to Fajardo by amending Section 5, effective
       May 8, 2007, to reflect the pre-Fajardo law, i.e., amendments of substance are permitted any time before trial
       so long as the defendant’s rights are not prejudiced. Shaw v. State, 82 N.E.3d 886, 891 (Ind. Ct. App. 2017)
       (citing Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008)), reh’g denied. Thus, although Fajardo abrogated
       Jones, Fajardo itself was later abrogated, returning the law to its pre-Fajardo state, and we perceive no
       impediment to citing Jones.

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018                      Page 17 of 23
       Id. at 386–87 (citations and internal quotations omitted).


[29]   Wheeler claims that the trial court committed reversible error by admitting the

       test results of the vial of blood that was tested only two days before the start of

       the trial. We are unable to agree.


[30]   First, there is no indication that the delay in testing the second vial was in any

       way deliberate. The Friday before Wheeler’s trial, the Indiana State

       Department of Toxicology called the prosecuting attorney to alert her about the

       labeling mistake. The overlooked vial was tested the following Monday, and

       the results were almost immediately disclosed to the defense. Although Wheeler

       takes the trial court to task for denying his unopposed request for a

       continuance, we note that the trial judge recessed the trial for the remainder of

       the day and permitted Wheeler’s counsel to depose the State’s witnesses

       regarding the belatedly disclosed evidence.4 Thus, the trial court effectively

       granted a brief continuance. Wheeler does not explain how this short recess or

       continuance was inadequate or how a longer continuance would have assisted

       his defense.


[31]   Moreover, even if we assume that the trial court abused its discretion in the

       admission of this belatedly disclosed evidence, Wheeler would not prevail. It is

       well established that we will not reverse a conviction due to evidentiary error

       unless this error affects the substantial rights of the defendant. Teague v. State,



       4
           The trial court also ordered the State to pay the costs of the depositions.


       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018       Page 18 of 23
       978 N.E.2d 1183, 1188 (Ind. Ct. App. 2012). An error is harmless if there is

       substantial independent evidence of guilt and we are satisfied that there is no

       substantial likelihood the challenged evidence contributed to the conviction. Id.

       at 1189. If the erroneously admitted evidence was merely cumulative, its

       admission is harmless error. Id.


[32]   Here, the admission of the test results of the belatedly tested vial was merely

       cumulative of other evidence to which Wheeler made no objection. Indeed,

       Mach testified that the test of Wheeler’s blood serum performed at the hospital

       on the night of the accident indicated that Wheeler had a blood alcohol

       concentration of 0.215. And Anderson testified that her testing of the timely

       tested vial of blood indicated a blood alcohol concentration of 0.184.5 See Tr. p.

       155. The evidence regarding the belatedly tested vial of blood was therefore

       merely cumulative of the other blood tests. Because it was cumulative, we are

       satisfied that there was no substantial likelihood the belatedly tested vial

       contributed to the conviction. Accordingly, the admission of these results was at

       most harmless error. See Teague, 978 N.E.2d at 1188.


                             III. Appropriateness of Wheeler’s Sentence

[33]   Wheeler also argues that the sentence imposed by the trial court, an aggregate

       sentence of five and one-half years executed and one year suspended to


       5
         Anderson also testified, without apparent objection, that her testing of the belatedly tested vial indicated a
       blood alcohol concentration of 0.179. When Anderson’s toxicology report was admitted into evidence,
       Wheeler’s counsel made no contemporaneous objection, but the trial court indicated that the report was
       admitted “over counsel’s objection.” Tr. p. 156. The State, however, does not argue that Wheeler waived his
       claim of evidentiary error by failing to object. So we address Wheeler’s claim on its merits.

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018                        Page 19 of 23
       probation, is inappropriate in light of the nature of Wheeler’s offense and

       Wheeler’s character.


[34]   Indiana Appellate Rule 7(B) provides that 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.” Still, we must exercise deference to a trial

       court’s sentencing decision, because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions. Id. Thus,

       although we have the power to review and revise sentences, the principal role of

       appellate review should be to attempt to “leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).


[35]   Our review under Rule 7(B) should focus on “the forest—the aggregate

       sentence—rather than the trees—consecutive or concurrent, number of counts,

       or length of the sentence on any individual count.” Id. The appropriate question

       is not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055,

       1063 (Ind. Ct. App. 2015). It is the defendant’s burden on appeal to persuade us

       that the sentence imposed by the trial court is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006)).



       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 20 of 23
[36]   Here, Wheeler was convicted of a Class A misdemeanor and determined to be

       an habitual vehicular substance offender. If a person is convicted of a Class A

       misdemeanor, the trial court may sentence him to up to one year in prison. Ind.

       Code § 35-50-3-2. If a person is determined to be an habitual vehicular

       substance offender, the trial court may add an additional sentence of one to

       eight years. I.C. § 9-30-15.5-2(d). Thus, Wheeler was facing a sentence of two to

       nine years of incarceration, and the trial court sentenced him to an executed

       term of five and one-half years and one year suspended to probation.


[37]   The nature of Wheeler’s offense does little to convince us that this sentence is

       inappropriate. He drove his vehicle while intoxicated and ran into a well-

       marked accident scene, hitting a police officer and two vehicles. If not for the

       quick response of Deputy Keltner and Deputy Naugle, their injuries could have

       been more severe. Indeed, Wheeler is extremely fortunate that no one was

       killed. Wheeler’s behavior immediately after the accident was belligerent and

       disrespectful. Instead of checking to see if anyone was injured, he cursed at the

       deputy and threatened to sue him.


[38]   The trial court’s sentence is also supported by Wheeler’s character, as revealed

       by his criminal history. In 2004, Wheeler was convicted of an unknown Class C

       misdemeanor and sentenced to probation which included alcohol and drug

       treatment. In 2006, he was convicted of Class D felony possession of marijuana,

       Class C misdemeanor operating a vehicle while intoxicated with a blood

       alcohol concentration of 0.08, and Class A misdemeanor operating a vehicle

       with an alcohol concentration equivalent of 0.15. And again in 2010, Wheeler

       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 21 of 23
       was convicted of Class D felony operating a vehicle while intoxicated with a

       prior conviction and Class A misdemeanor intimidation. The incident that led

       to the 2010 conviction bore a similarity to the instant offense in that Wheeler

       threatened to “beat up” the arresting officer and make him lose his job. See

       Appellant’s App. Vol. 3, p. 120. Wheeler was also arrested in 2011 for

       operating a vehicle while intoxicated, but this charge was dismissed as part of a

       plea agreement in another case. Additionally, at the time of sentencing,

       Wheeler had a pending charge of Class B misdemeanor leaving the scene of an

       accident.


[39]   Nothing about Wheeler’s character persuades us that his sentence is

       inappropriate. Indeed, it is apparent that prior attempts at leniency have failed

       to dissuade Wheeler from driving while intoxicated. Simply put, Wheeler is a

       recidivist drunk driver whose behavior has been undeterred by his prior contacts

       with the criminal justice system, and his prior convictions, as they relate to the

       current offense, reflect very poorly on his character. See Wooley v. State, 716

       N.E.2d 919, 929 n.4 (Ind. 1999) (noting that a prior conviction for operating

       while intoxicated would be a significant aggravator in a subsequent alcohol-

       related offense). In short, Wheeler’s sentence is not inappropriate.


                                                  Conclusion
[40]   The trial court did not err in permitting the State to amend the information

       alleging that Wheeler was an habitual vehicular substance offender, nor did the

       trial court err in admitting into evidence the results of the tests on the belatedly

       tested vial of Wheeler’s blood. Lastly, Wheeler’s sentence is not inappropriate.
       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 22 of 23
[41]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018   Page 23 of 23
