MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Feb 13 2017, 5:38 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
Michael Frischkorn                                       Curtis T. Hill, Jr.
Frischkorn Law LLC                                       Attorney General of Indiana
Fortville, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Goodman,                                         February 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A04-1608-CR-1937
        v.                                               Appeal from the Hancock Superior
                                                         Court
State of Indiana,                                        The Honorable Terry Snow, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         30D01-1507-F5-1145



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 1 of 7
                               Case Summary and Issues
[1]   Following a jury trial, Charles Goodman was convicted of operating a vehicle

      while intoxicated causing death, a Level 4 felony, and driving with a suspended

      license, a Class A infraction. The trial court sentenced Goodman to six years in

      the Indiana Department of Correction, with three years suspended. Goodman

      appeals, raising two issues for our review: (1) whether the trial court abused its

      discretion in admitting evidence, and (2) whether his sentence is inappropriate

      in light of the nature of the offenses and his character. Concluding any error in

      the admission of evidence is harmless and Goodman’s sentence is not

      inappropriate, we affirm.



                            Facts and Procedural History
[2]   On July 28, 2015, Goodman drove a bus full of churchgoers, including

      children, to a church convention in Ohio. While heading eastbound on

      Interstate 70 east of Indianapolis, the bus veered off the interstate, struck a tree,

      and flipped over. When police officers arrived at the scene, they discovered

      Goodman and a child, J.W., trapped under the bus. When the bus was lifted,

      J.W. was pronounced dead. Goodman was airlifted to Methodist Hospital in

      Indianapolis. There, he stated he fell asleep while driving and consented to a

      blood draw. Goodman’s blood tested positive for a metabolite of cocaine.

      Several other bus passengers were also injured and required hospital care.




      Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 2 of 7
[3]   On July 30, 2015, the State charged Goodman with reckless homicide, a Level

      5 felony, and driving with a suspended license, a Class A infraction. On

      October 20, 2015, the State amended the charging information to include a

      count of operating a vehicle while intoxicated causing death as a Level 4 felony.

      At trial, the State moved to admit a photograph of J.W.’s corpse. Goodman

      objected, claiming the photograph was unduly prejudicial. The trial court

      overruled his objection. In addition, an Indiana State Police Department

      accident reconstructionist testified the cause of the crash was driver fatigue

      “coupled with the fact of [Goodman’s] blood test results . . . .” Transcript,

      Volume III, at 13. The jury found Goodman guilty of operating a vehicle while

      intoxicated causing death and driving with a suspended license. The trial court

      entered judgment of conviction and sentenced Goodman to six years in the

      Department of Correction, with three years suspended.



                                 Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[4]   We review a trial court’s admission of evidence for an abuse of discretion.

      McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. “An

      abuse of discretion occurs if a trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before the court.” Id. We reverse a

      trial court’s erroneous decision to admit evidence only when the decision affects

      a party’s substantial rights. McVey, 863 N.E.2d at 440. However, “[a]ny error

      Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 3 of 7
      caused by the admission of evidence is harmless error for which we will not

      reverse a conviction if the erroneously admitted evidence was cumulative of

      other evidence appropriately admitted.” Id. In other words, improperly

      admitted evidence “is harmless error when the conviction is supported by such

      substantial independent evidence of guilt as to satisfy the reviewing court that

      there is no substantial likelihood that the questioned evidence contributed to the

      conviction.” Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993).


                                             B. Photograph
[5]   Goodman contends the trial court abused its discretion in admitting a

      photograph of J.W.’s corpse. Specifically, he claims the photograph was

      unduly prejudicial. The State counters the photograph allowed it to meet its

      burden of proof by showing J.W.’s identity and the accident caused his death.


[6]   Despite some photographs’ potential to arouse the passions of jurors, a

      photograph is admissible unless its probative value is substantially outweighed

      by the danger of unfair prejudice. Lee v. State, 735 N.E.2d 1169, 1172 (Ind. Ct.

      App. 2000) (citing Ind. Evidence Rule 403).


              Photographs depicting matters that a witness describes in
              testimony are generally admissible, and photographs depicting
              the crime scene are admissible as long as they are relevant and
              competent aids to the jury. The fact that a photograph or
              videotape may depict gruesome details of a crime is not a
              sufficient basis for exclusion.


      Id. (citations omitted).


      Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 4 of 7
[7]   At the outset, we note the State’s claim the evidence was probative to the extent

      it satisfied the elements of the crime of driving while intoxicated causing death

      is disingenuous. Certainly, the photograph did lend credence to the State’s

      theory J.W. died as a result of the accident, but we reject the State’s assertion it

      could not satisfy the element of proving J.W.’s identity and death through other

      means. In fact, even without the photograph, it is apparent from the record

      J.W. was the victim of the crime. Nonetheless, we conclude any error in the

      admission of the photograph is harmless. The crime required the State to prove

      Goodman caused J.W.’s death when operating a vehicle with a schedule I or II

      controlled substance or its metabolite in his blood. Ind. Code § 9-30-5-5(b)(2).

      The State presented sufficient evidence establishing Goodman was driving the

      bus, J.W. was a passenger on that bus, the bus veered off the road and crashed,

      J.W. perished, and shortly following the accident, Goodman’s blood tested

      positive for a metabolite of cocaine. See Ind. Code § 35-48-2-6(b)(4) (listing

      cocaine as a schedule II narcotic). Therefore, even assuming the trial court

      erred in admitting the photograph, its admission does not amount to reversible

      error.


                                 II. Inappropriate Sentence
[8]   Indiana Appellate Rule 7(B) provides, “The Court 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.” The defendant bears the burden of

      persuading this court his or her sentence is inappropriate. Childress v. State, 848

      Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 5 of 7
       N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence

       as inappropriate turns on “the culpability of the defendant, the severity of the

       crime, the damage done to others, and myriad other factors that come to light

       in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

       principal role of appellate review is to “leaven the outliers,” not achieve the

       perceived “correct” result in each case. Id. at 1225.


[9]    The advisory sentence is the starting point the legislature selected as an

       appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d

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

       Goodman was convicted of driving a vehicle while intoxicated causing death as

       a Level 4 felony. Indiana Code section 35-50-2-5.5 states a person who

       commits a Level 4 felony shall be imprisoned for a fixed term of between two

       and twelve years, with the advisory sentence being six years. The trial court

       sentenced Goodman to six years in the Department of Correction, with three

       years suspended.


[10]   As to the nature of the offenses, we note Goodman was in a position of care

       and custody over the passengers of the bus, some of whom were children, and

       he accepted this responsibility with a suspended license and a metabolite of

       cocaine in his blood. As to his character, Goodman failed to take responsibility

       for his crimes, claiming others must have planted the cocaine in food or

       medicine he previously consumed and blaming the accident on mechanical

       issues with the bus. We further note Goodman only received the advisory

       sentence with half of that suspended to probation. We conclude Goodman’s

       Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 6 of 7
       sentence is not inappropriate in light of the nature of the offenses and his

       character.



                                               Conclusion
[11]   The admission of the photograph was at most harmless error and Goodman’s

       sentence is not inappropriate. Accordingly, we affirm.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A04-1608-CR-1937 | February 13, 2017   Page 7 of 7
