MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Apr 09 2020, 7:58 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Matthew B. Mackenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel R. Collar II,                                      April 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1632
        v.                                                Appeal from the Noble Circuit
State of Indiana,                                         Court

Appellee-Plaintiff                                        The Honorable Michael J. Kramer,
                                                          Judge
                                                          Trial Court Cause No.
                                                          57C01-1902-F5-8



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020                    Page 1 of 15
[1]   Daniel R. Collar II appeals his conviction of Level 5 felony intimidation. 1

      Collar raises three issues on appeal, which we restate as: (1) whether Collar was

      deprived of his right to a speedy trial under the Sixth Amendment to the United

      States Constitution and Article I, Section 12 of the Indiana Constitution; (2)

      whether the trial court abused its discretion by admitting security video

      evidence as certified business records under Indiana Evidence Rule 802(6); and

      (3) whether a sentence of 12 years is inappropriate in light of the nature of the

      offense and character of the offender. We affirm.



                                Facts and Procedural History
[2]   On January 17, 2019, an affidavit to support a charge of intimidation against

      Collar was filed by a Ligonier City Police Department officer. The affidavit

      stated:


                 [On December 24, 2018,] [Collar] hid and waited masked up for
                 [Timothy Swank] to exit [the Lassos Handy Dandy] Gas station
                 and then walked up behind [Swank] and made a verbal threat
                 and drew a deadly weapon on [Swank], which constitutes a
                 communication of a threat to another person with the intent
                 [that: (1) the other person engage in conduct against the other
                 person’s will; and (2) the other person be placed in fear for a prior
                 lawful act] . . . .


                 [Collar] fled the scene and has been unable to be located. . . .




      1
          Ind. Code § 35-45-2-1(a)(1) & (b)(2)(A).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 2 of 15
              [Collar] has done this on a prior a acation [sic] without involving
              a deadly weapon, but [Swank] didn’t report the crime. [Swank]
              state [sic] that [Collar] believes [Swank] is speaking with
              [Collar’s] ex-girlfriend. . . .


      (App. Vol. II at 17-8.) Based thereon, on February 20, 2019, the State charged

      Collar with Level 5 felony intimidation.


[3]   On March 7, 2019, Collar moved for a speedy trial, pro se. On March 11, 2019,

      a public defender accepted appointment and filed an appearance. On April 8,

      2019, the public defender renewed Collar’s motion for a speedy trial during the

      pre-trial hearing. On April 26, 2019, the State alleged Collar was a habitual

      criminal offender. On April 29, 2019, the public defender confirmed with the

      court that Collar was to receive a speedy trial. On May 16, 2019, Collar filed a

      letter pro se requesting charges be dismissed on the grounds that he did not

      receive a fast and speedy trial. The court forwarded that letter to the public

      defender.


[4]   On May 21, 2019, the court held day one of Collar’s bifurcated jury trial, and

      the public defender asked the court to rule on Collar’s motion to dismiss. The

      court denied Collar’s motion because the earliest possible date for Collar’s trial

      on the court’s calendar was May 21, 2019. During the trial, the State moved to

      admit State’s Exhibits 1 and 4 through 82, which allegedly depicted security

      video recordings from Lassos Handy Dandy gas station on December 24, 2018.

      Collar objected, but the judge overruled the objection and admitted the exhibits.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 3 of 15
[5]   Later on, the State called Melissa Cruz—a Lassos Handy Dandy gas station

      employee, who was working when the incident occurred—to testify. Cruz

      testified that the victim came into the gas station “freaking out that somebody

      had pulled a knife on him in the parking lot.” (Tr. Vol. II at 146). On May 22,

      2019, the jury returned a guilty verdict for Level 5 felony intimidation. During

      the sentence enhancement proceeding, the jury also determined that Collar was

      a habitual offender2 and the trial court adjudicated him as such. On June 24,

      2019, the trial court sentenced Collar to twelve years in the Indiana Department

      of Correction, with one hundred and ten days of credit for time served.



                                     Discussion and Decision
                                                    1. Speedy Trial
[6]   Collar argues the trial court erroneously deprived him of his guaranteed right to

      a speedy trial. The Sixth Amendment to the United States Constitution and

      Article 1, Section 12 of the Indiana Constitution guarantee an accused’s right to

      a speedy trial. Dean v. State, 901 N.E.2d 648, 652 (Ind. Ct. App. 2009), trans.

      denied. The provisions of Indiana Criminal Rule 4 implement the defendant’s

      speedy trial right by establishing deadlines by which trials must be held. Id.

      Criminal Rule 4 places an “affirmative duty” on the State to bring a defendant

      to trial. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind. 2012). However, “the




      2
          On appeal, Collar does not challenge the habitual offender adjudication.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 4 of 15
      purpose of Criminal Rule 4 is not to provide defendants with a technical means

      to avoid trial but rather to assure speedy trials.” Id.


[7]   Subsection (B)(1) of Criminal Rule 4 provides:


              If any defendant held in jail on an indictment or an affidavit shall
              move for an early trial, he shall be discharged if not brought to
              trial within seventy (70) calendar days from the date of such
              motion, except where a continuance within said period is had on
              his motion, or the delay is otherwise caused by his act, or where
              there was not sufficient time to try him during such seventy (70)
              calendar days because of the congestion of the court calendar.
              Provided, however, that in the last-mentioned circumstance, the
              prosecuting attorney shall file a timely motion for continuance as
              set forth in subdivision (A) of this rule. Provided further, that a
              trial court may take note of congestion or an emergency without
              the necessity of a motion, and upon so finding may order a
              continuance. Any continuance granted due to a congested
              calendar or emergency shall be reduced to an order, which order
              shall also set the case for trial within a reasonable time.


      Thus, “in order for the meaning of the rule not to be eviscerated, it is essential

      that courts honor requests made for speedy trials by scheduling trial dates

      within the time prescribed by the rule.” McKay v. State, 714 N.E.2d 1182, 1188

      (Ind. Ct. App. 1999). Our Indiana Supreme Court has referred to this rule as a

      requirement that speedy trial motions receive “particularized priority

      treatment.” Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). A trial judge does

      not have to “wipe his or her calendar clean, or jam a trial into an opening in a

      schedule or courtroom that lacks the space, time, and resources to

      accommodate it.” Austin v. State, 997 N.E.2d 1027, 1041 (Ind. Ct. App. 2013).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 5 of 15
      “They must, however, be mindful of their calendar and the seventy-day window

      and exercise all reasonable diligence to preserve the defendant’s right to a

      speedy trial.” Id.


[8]   Here, Collar moved for a speedy trial on March 7, 2019. The seventieth day

      would have been May 16, 2019. However, the earliest possible date for the

      court was May 21, 2019, five days after the deadline set forth in Criminal Rule

      4(B). 3 The basis for Collar’s argument is that “the trial court failed to reduce to

      a written order its continuance of [his] trial outside the 70-day period.” (App.

      Br. at 22.) However, the trial court noted that May 21 was the first available

      date it could try Collar’s case. (Tr. Vol. II at 16.) Further, the transcript

      indicates that: (1) counsel 4 and the court had conflicts on several days before

      May 16; (2) everyone was trying to accommodate Collar’s request for a speedy

      trial; and (3) May 21 was the earliest possible date when all the witnesses were

      there. (Tr. Vol. II at 15; Tr. Vol. II at 20; Tr. Vol. II at 36.) The trial court’s

      decision to set Collar’s trial beyond the seventy-day speedy trial window was

      not clearly erroneous. See Austin v. State, 997 N.E.2d 1027, 1042-43 (Ind. 2013)

      (“although the trial court here did not issue a written order further explaining its

      finding of congestion, the transcript of the pre-trial conference indicates that

      several circumstances supported its determination”). 5


      3
          We note that two of those days fell on the weekend.
      4
       In the transcript, defense counsel does not state which counsel had conflicts during the weeks before May
      16. (See Tr. Vol. II at 15.)
      5
       While we hold the trial court here did not err, we remind the trial court to follow the requirements of
      Criminal Rule 4 in the future.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020                      Page 6 of 15
                        2. Admission of the Security Video Evidence
[9]    Collar argues the trial court abused its discretion when it overruled his objection

       to the admission of the security video evidence. The trial court’s ruling on the

       admission or exclusion of evidence is reviewed for abuse of discretion. Cherry v.

       State, 57 N.E.3d 867, 875 (Ind. Ct. App. 2016), trans. denied. An abuse of

       discretion occurs if the trial court misinterpreted the law or if its decision was

       clearly against the logic and effect of the facts and circumstances before it.

       Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied.

       Relevant evidence is admissible unless it is hearsay. Ind. Evid. Rule 802.

       Hearsay is a statement that: (1) is not made by the declarant while testifying at

       the trial or hearing; and (2) is offered in evidence to prove the truth of the

       matter asserted. Ind. Evid. Rule 801.


[10]   “[E]rrors in the admission of evidence are to be disregarded unless they affect

       the substantial rights of a party.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012), reh’g denied. To determine whether an error in the admission of evidence

       affected the defendant’s substantial rights, we consider the probable impact the

       evidence had on the jury. Shepherd v. State, 902 N.E.2d 360, 364 (Ind. Ct. App.

       2009), trans. denied. The question is not whether there is sufficient evidence to

       support the conviction absent the erroneously admitted evidence, but whether

       the inadmissible evidence was likely to have had a prejudicial impact on the

       jury. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 7 of 15
[11]   After asking Lassos Handy Dandy’s loss prevention specialist, Sawyer Blevins,

       a number of authenticating questions, the State moved to admit State’s Exhibits

       1 and 4 through 82 which allegedly depicted the security recordings that the

       store made on December 24, 2018. According to Indiana Evidence Rule

       803(6), a record—of an act, event, condition, opinion, or diagnosis—is not

       inadmissible if:

               (A) [T]he record was made at or near the time by—or from
                   information transmitted by—someone with knowledge;
               (B) [T]he record was kept in the course of a regularly conducted
                   activity of a business, organization, occupation, or calling,
                   whether or not for profit;
               (C) [M]aking the record was a regular practice of that activity;
               (D) [A]ll these conditions are shown by the testimony of the
                   custodian or another qualified witness, or by a certification
                   that complies with Rule 902 (11) 6 [] or with a statute
                   permitting certification; and
               (E) [N]either the source of information nor the method or
                   circumstances of preparation indicate a lack of
                   trustworthiness.


[12]   Before the trial court admitted the exhibits proffered by the State, Collar’s

       counsel requested permission to ask preliminary questions:


                [Collar]: Uh, Mr. Blevins you didn’t design the video system did
                you?
                [Witness]: No.
                [Collar]: Uh, did you install it?
                [Witness]: No.
                [Collar]: Uh, but you uh, did have a look at this time period on
                Christmas Eve from the actual uh, DVR itself?
       6
         See Ind. R. Evid. 902(11) (stating “certified domestic records of a regularly conducted activity” are self-
       authenticating meaning “they require no extrinsic evidence of authenticity in order to be admitted” “unless
       the source of information indicate a lack of trustworthiness…”).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020                      Page 8 of 15
               [Witness]: Just the burns.
               [Collar]: Just the burns?
               [Witness]: Yes.
               [Collar]: So you don’t know if the burns are fair and accurate
               copies of what was recorded on the DVR is that right?
               [Witness]: Can you rephrase that?
               [Collar]: Sure; when someone asks you uh, whether or not you
               had a recording device you went and looked at the DVR itself in
               terms of what was recorded during that time period?
               [Witness]: Huh-uh.
               [Collar]: You did not?
               [Witness]: My supervisor was the one who burned it.
               [Collar]: Okay so you didn’t burn it and you didn’t compare it
               burnt [sic] in the actual recording is that right?
               [Witness]: No.


       (Tr. Vol. II at 109-10.) Based thereon, Collar’s counsel argued no adequate

       foundation was laid, and the trial court agreed.


[13]   The State again attempted to lay foundation for admission by questioning

       whether maintaining the records was a regular practice of Lassos Handy

       Dandy’s business, to which Collar’s counsel objected:


               [State]: Your honor if [sic] may just [sic] a couple omitted
               questions first of all as a loss prevention officer uh, you are
               responsible, you and your supervisor ar [sic] responsible for
               maintaining the records from these, from there (indiscernible) is
               that right?
               [Witness]: Yes we are the keeper of the records.
               [State]: You are the keeper of records and this is a record that is
               maintained within the course of you [sic] business?
               [Witness]: Yes.
               [State]: And these are records that were developed uh, as part of
               your course of business uh, on that December 24th 2018?
               [Witness]: Yes.
               [State]: And you contemporaneously reviewed that footage uh,
               with your supervisor is that right?
               [Witness]: Yes.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 9 of 15
               [State]: Alright um, and uh, with that your honor it’s a business
               records exception if there’s any hear say [sic] issue to it um, and
               uh, so I believe that there’s been a foundation laid that these are
               [sic] continue within the business records for that date on
               December 24th 2018 from their records as a business.
               [Collar]: My objection uh, isn’t related to the business records
               acceptation [sic] it’s rather um, he’s asking him to, the State is
               asking this witness to vouch for uh, the authenticity of the burn
               as it relates to the actual recording itself; based upon my
               questioning on [sic] Mr. Blevins I don’t believe he’s done both.
               [Court]: I will over rule [sic] the objection and admit the exhibits.

                                                        *****


               [Collar]: Judge can, so I don’t have to interrupt again uh, can
               you show this as a continuing objection?
               [Court]: I’ll show the continuing objection to the exhibits.


       (Id. at 110-11.)


[14]   Collar asserts the exhibits were inadmissible hearsay because they were not

       authenticated as required. Unless hearsay falls into one of a number of

       exceptions, it is inadmissible at trial. 7 Evid. Rule 802. As noted in its argument

       before the trial court, the State claimed the exhibits fell into one of the hearsay

       exceptions, specifically that they were records of a regularly conducted activity.

       Blevins testified that the burned disc was an accurate depiction of the store on

       December 24, 2018. However, Collar’s issue is that Blevins never testified that

       he saw the original footage. Instead, he answered in the negative when Collar’s

       counsel asked “Okay so you didn’t burn it and you didn’t compare it burnt [sic]

       7
         See Ind. Evidence Rule 803-04 (hearsay exceptions include records of regularly conducted activity, absence
       of a record of a regularly conducted activity, family records, judgment of a previous conviction, former
       testimony, and statement against interest).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020                  Page 10 of 15
       in the actual recording is that right?” (Tr. Vol. II at 110), and he testified that

       he looked at “[j]ust the burns.” (Id. at 109.) Blevins testified that his supervisor

       watched the original footage and burned it onto a disc. For those reasons,

       Collar argues the State failed to authenticate the burned discs. We disagree.


[15]   Blevins’ testimony reveals that: (A) the burned discs were made by someone

       with knowledge, i.e., his supervisor; (B) the burned discs were kept in the

       course of Lassos Handy Dandy’s business; 8 (C) making the discs was a regular

       part of his role as a loss prevention officer; and (D) conditions in (A)-(C) were

       shown by a qualified witness’s testimony, i.e., Blevins’ testimony. Finally, any

       lack of trustworthiness was nullified because Blevins—Lassos Handy Dandy’s

       loss prevention officer—authenticated the burned discs that were prepared as

       part of Lassos Handy Dandy’s business conduct. Thus, we conclude that

       Blevins’ testimony meets all the requirements for admission of the burned discs

       as business records under Indiana Evidence Rule 803(6). See Rolland v. State,

       851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006) (the proponent of a business

       records exhibit exception “may authenticate it by calling a witness who has a

       functional understanding of the record keeping process of the business with




       8
           [State]: And as it relates to those discs um, how do you know that you’ve looked at those discs?

           [Witness]: Um, my signature’s on them or my initial.
           [State]: So you reviewed it [and] marked it [with] an initial?
           [Witness]: Yes.
           (Tr. Vol. II at 108).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020                      Page 11 of 15
       respect to the specific entry, transaction, or declaration contained in the

       document”).


                                     3. Inappropriate Sentence
[16]   Collar asserts his sentence is inappropriate. Under Indiana Appellate Rule

       7(B), we may revise a sentence if, after due consideration of the trial court’s

       decision, we determine the sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Adams v. State, 120 N.E.3d 1058,

       1064 (Ind. Ct. App. 2019). We consider aggravating, mitigating, and any other

       factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.

       App. 2013). Our goal is to decide whether the appellant’s sentence is

       inappropriate, not whether some other sentence would be more appropriate.

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Powell bears the

       burden of demonstrating his sentence is inappropriate. See Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006) (“defendant must persuade the appellate court

       that his or her sentence has met this inappropriateness standard of review”).


[17]   When considering the nature of the offense, we start by looking at the advisory

       sentence to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The

       sentencing range for a Level 5 felony is “a fixed term of between one (1) and six

       (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-

       2-6(b). If a person convicted of a level 5 felony is found to be a habitual

       offender, the court shall sentence said person “to an additional fixed term that is




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 12 of 15
       between two (2) years and six (6) years.” Ind. Code. § 35-50-2-8(i)(2). Collar

       was sentenced to an aggregate sentence of twelve (12) years which he contends

       is inappropriate because: (1) Collar’s motivation was “to threaten Swank;” (2)

       Swank was not harmed; (3) no evidence of monetary harm arose from the

       offense;” and (4) Collar was under the influence of illegal drugs at the time of

       the offense. (Appellant Br. at 37.)


[18]   Collar not only laid in wait for Swank to exit the gas station, but he drew a

       knife once he had the opportunity to approach Swank. He states his motivation

       was to threaten Swank which is not only against the law, but an unauthorized

       reason to stop the victim from willfully engaging in conduct that is not against

       the law. Furthermore, we refuse to make light of Collar’s offense just because

       Swank was not harmed and no monetary harm arose from the offense. As the

       evidence points out, this was not the first time Collar threatened the victim.

       The difference this time around is that Collar decided to aggravate the threat by

       drawing a knife which in turn caused a frightened Swank to run back into the

       gas station and ask Cruz to call the police. We are not persuaded by Collar’s

       argument that he was under the influence of illegal drugs because this was not

       the first time he threatened the victim. For those reasons, the sentence is not

       inappropriate in light of the nature of Collar’s crime. See Sandleben v. State, 29

       N.E.3d 126, 137 (Ind. Ct. App. 2015) (sentence not inappropriate when

       defendant, “on two different occasions, closely followed [victim] section by

       section and aisle by aisle through a store, surreptitiously videotaping her as he

       followed her and causing her to feel scared and nervous”), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 13 of 15
[19]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id. Powell’s criminal history consists

       of: (1) misdemeanors such as minor consuming alcohol; refusal to provide

       identity; resisting law enforcement; battery resulting in bodily injury; illegal

       possession of an alcoholic beverage; criminal mischief; possession of marijuana;

       operating a vehicle with an ACE of .15 or more; disorderly conduct; and public

       intoxication; (2) felonies such as attempted murder; attempted robbery;

       possession of a controlled substance; residential entry; and burglary; (3)

       probation revocations; (4) work release violation; and (5) failures to appear. 9


[20]   Collar argues his “prior offenses largely were chronologically distant” and less

       serious than his intimidation conviction. (Appellant’s Br. at 39.) However, his

       prior offenses did not stop him from committing the offense at issue nor help

       him advance his argument about his “good” character. It does not help that

       three weeks after intimidating the victim, Collar was charged with Class A

       misdemeanor driving while suspended.10 Those are not the actions of someone

       who thought about how his “children would suffer from his lengthy sentence.”

       (Id. at 38.) Given Powell’s extensive criminal history and his actions, we cannot

       say the sentence is inappropriate for his character. See Rasnick v. State, 2



       9
        We note that approximately three weeks after Collar threatened the victim, Collar was charged with Class
       A misdemeanor driving while suspended. (App. Vol. II at 127).
       10
            Ind. Code § 9-24-19-2.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020                 Page 14 of 15
       N.E.3d 17, 29 (Ind. Ct. App. 2013) (defendant’s sentence not inappropriate

       when defendant’s criminal history and the facts in the case “strongly support

       the trial court’s sentencing judgment”), trans. denied.



                                               Conclusion
[21]   We conclude the May 21, 2019, trial date did not violate Collar’s right to a

       speedy trial, as the trial court scheduled the trial on the earliest possible date

       due to court congestion. Additionally, the trial court did not abuse its

       discretion when it admitted State’s Exhibits 1 and 4 through 82. Finally,

       Collar’s sentence is not inappropriate based on the nature of the offense and his

       character. Accordingly, we affirm.


[22]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020   Page 15 of 15
