MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Jul 27 2017, 10:41 am
the defense of res judicata, collateral
                                                                            CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alan K. Wilson                                           Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Marcus Ray Wilson,                                       July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1612-CR-2949
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolf,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         18C03-1005-FB-13



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017            Page 1 of 8
[1]   Marcus Wilson appeals following his convictions for Class B felony criminal

      deviate conduct and Class D felony criminal confinement. He raises the

      following issues on appeal:


              1. Did the trial court abuse its discretion in excluding opinion
              evidence concerning the victim’s possible intoxication?


              2. Is Wilson’s fourteen-year sentence inappropriate?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On November 28, 2009, Nigel Butterfield ran into his friend, Wilson. Nigel

      invited Wilson over for a drink, and the two went to the home Nigel shared

      with his wife, J.B., and their two-year-old daughter. J.B. did not know Wilson

      and asked Nigel to make him leave because she did not want strangers in their

      house and around their sleeping daughter. Nigel ignored J.B.’s requests, and

      Nigel, J.B., and Wilson all stayed up until the early morning hours drinking

      and listening to music.


[4]   Nigel eventually passed out in the living room and J.B. said that she should go

      to bed, but Wilson did not leave. Wilson asked J.B. to come into the kitchen

      because he wanted to tell her something about Nigel, and when she did so,

      Wilson slammed her up against the kitchen counter and put his hand over her

      mouth. Wilson then forced J.B. into the bathroom, where he pushed her to the

      floor and began to strangle her. Wilson threatened to kill J.B. if she screamed,


      Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 2 of 8
      and he told her that she would be fine if she just did what he said. Wilson then

      dropped his pants and exposed his penis. J.B. begged him not to rape her, and

      he forced her to perform oral sex on him until he ejaculated in her mouth. He

      then ordered her to swallow his semen. Before leaving the apartment, Wilson

      told J.B. to go ahead and call the police because he deserved it. J.B. waited

      until she thought Wilson was gone, then checked on her daughter before

      running to a neighbor’s house and calling 911. Wilson was apprehended a

      short time later.


[5]   As a result of these events, Wilson was charged with Class B felony criminal

      deviate conduct and Class D felony criminal confinement. A warrant for

      Wilson’s arrest was issued on May 19, 2010, but he was not arrested until

      February 2013. A jury trial commenced on November 21, 2016, at the

      conclusion of which Wilson was found guilty as charged. On December 19,

      2016, Wilson was sentenced to concurrent terms of fourteen years for criminal

      deviate conduct and two years for criminal confinement, resulting in an

      aggregate sentence of fourteen years executed in the Department of Correction.

      Wilson now appeals.


                                          Discussion & Decision


                                  1. Exclusion of Opinion Testimony


[6]   Wilson first argues that the trial court abused its discretion when it did not

      permit him to question the 911 operator concerning his opinion on whether J.B.

      sounded intoxicated during the 911 call. Trial courts are afforded wide

      Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 3 of 8
      discretion in ruling on the admissibility of evidence, and our review of such

      decisions is limited to determining whether the court abused that discretion.

      Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion

      occurs when the trial court’s decision is clearly against the logic and effect of

      the facts and circumstances before it. Id. Moreover, even if a trial court abuses

      its discretion in admitting or excluding evidence, we will not reverse if the error

      is harmless. Bell v. State, 29 N.E.3d 137, 143 (Ind. Ct. App. 2015), trans. denied.

      “An error will be deemed harmless if its probable impact on the jury, in light of

      all of the evidence in the case, is sufficiently minor so as not to affect the

      substantial rights of the parties.” Id. “[B]efore a federal constitutional error

      may be held harmless, the court must be able to declare a belief that it was

      harmless beyond a reasonable doubt.” Hall v. State, 36 N.E.3d 459, 467 (Ind.

      2015) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).


[7]   At trial, Wilson asked the 911 operator whether he believed J.B. sounded

      intoxicated. The State objected, arguing Wilson had not established that the

      witness was qualified to give an opinion on that subject. The trial court

      sustained the objection, noting that the jury had heard the recorded 911 call and

      could make its own determination as to whether J.B. sounded intoxicated.

      Wilson did not make an offer of proof. On appeal, Wilson argues that the 911

      operator’s opinion was admissible under Ind. Evidence Rule 701 and that the

      exclusion of such testimony violated Wilson’s constitutional right to confront

      and cross-examine witnesses.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 4 of 8
[8]   Wilson has waived these arguments by failing to make an offer of proof

      concerning the 911 operator’s opinion as to whether J.B. sounded intoxicated.

      See Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (noting that an

      offer of proof is required to preserve an error predicated upon the exclusion of a

      witness’s testimony), trans. denied. Waiver notwithstanding, and assuming

      arguendo that the testimony at issue was improperly excluded, any resulting

      error was harmless beyond a reasonable doubt. J.B. admitted that she had been

      drinking that night, and the members of the jury listened to J.B.’s recorded 911

      call and were therefore able to judge for themselves whether J.B. sounded

      intoxicated and decide what, if any, impact that had on their assessment of her

      credibility. We have little difficulty concluding that hearing the 911 operator’s

      opinions on the subject of J.B.’s intoxication would have made no appreciable

      impact on the jury. Accordingly, Wilson has not established reversible error on

      this basis.


                                                2. Sentencing


[9]   Wilson also argues that his fourteen-year sentence is inappropriate in light of

      the nature of the offense and his character. Article 7, section 4 of the Indiana

      Constitution grants our Supreme Court the power to review and revise criminal

      sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135

      S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court

      authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

      1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if after

      due consideration of the trial court’s decision, the Court finds that the sentence

      Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 5 of 8
       is inappropriate in light of the nature of the offense and the character of the

       offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[10]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).


[11]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offense. Wilson

       committed a Class B felony and a Class D felony. The sentencing range for a

       Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 6 of 8
       Class B felony is six to twenty years, with an advisory sentence of ten years.

       Ind. Code § 35-50-2-5. The sentencing range for a Class D felony is six months

       to three years, with an advisory sentence of one and a half years. I.C. § 35-50-2-

       7. Wilson was sentenced to concurrent terms of fourteen years executed for

       Class B felony criminal deviate conduct and two years for Class D felony

       criminal confinement. Thus, on both counts, he received a sentence greater

       than the advisory, but still well below the maximum.


[12]   The nature of the offense does not support appellate revision of Wilson’s

       sentence. Wilson’s behavior in this case was predatory. He waited until Nigel

       passed out and then lured J.B. into the kitchen, where he violently assaulted her

       and forced her into the bathroom. Wilson pushed J.B. to the ground, strangled

       her, and threatened to kill her if she screamed or did not comply with his

       demands. Wilson then exposed himself and J.B. begged him not to rape her.

       Wilson then forced J.B. to perform oral sex on him while J.B.’s husband and

       daughter slept just a few rooms away and when he ejaculated, he ordered her to

       swallow his semen. Wilson’s assertion that he “simply committed the offense

       proscribed by statute, without doing anything that ‘aggravated’ the offense” is

       not supported by the record. Appellant’s Brief at 16. The trial court aptly

       described the facts of this case as “disturbing.” Appellant’s Appendix Vol. 3 at 80.


[13]   Considering Wilson’s character, we note that he has a significant criminal

       history, including convictions for battery, public intoxication, criminal

       conversion, visiting a common nuisance, and theft. Additionally, a warrant

       was issued for Wilson’s arrest during the pendency of this case for failure to

       Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 7 of 8
       appear, and his bond was revoked after he was arrested for committing a felony

       drug offense while on pretrial release. Wilson also admitted to frequently using

       methamphetamine and heroin while out on bond in this case. In sum, nothing

       about Wilson’s character persuades us that appellate revision of his sentence is

       warranted.


[14]   Judgment affirmed.


[15]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017   Page 8 of 8
