MEMORANDUM DECISION                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Jul 02 2018, 5:31 am

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

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Brian A. Karle                                         Curtis T. Hill, Jr.
Ball Eggleston, PC                                     Attorney General of Indiana
Lafayette, Indiana                                     Justin F. Roebel
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Anthony Wise,                                              July 2, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           54A01-1711-CR-2710
        v.                                                 Appeal from the Montgomery
                                                           Superior Court
State of Indiana,                                          The Honorable Heather Barajas,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           54D01-1706-F5-1711



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018         Page 1 of 6
[1]   Anthony Wise’s driving privileges were suspended for life in 2005 following a

      conviction for driving as a habitual traffic violator. On June 13, 2017, Wise

      was released from jail in another cause and ordered to check in with probation

      officer Brenda Payne two or three times a week. Wise informed Payne that his

      license was suspended but that his uncle was available any time to drive him to

      his appointments. Wise had a meeting with Payne set for June 19, 2017, at

      11:30 a.m. Around that time, Payne was at her desk watching the lobby and

      the outside of her building through security cameras. Payne watched as a

      vehicle parked and as Wise exited the driver’s side of the vehicle. Payne took

      screen shots of the parked car and of Wise standing by the car. Time stamps

      indicated that Payne took the picture of the car at 11:31:42 and of Wise

      standing outside the driver’s side of the car at 11:31:56. When asked, Wise

      admitted that he had driven to the appointment.


[2]   On June 23, 2017, the State charged Wise with Level 5 felony operating a

      vehicle after driving privileges were suspended for life. At trial, Payne

      acknowledged that in a deposition she stated that the June 19, 2017,

      appointment was scheduled for 10:30 a.m. instead of 11:30. Wise’s counsel

      read the prior testimony into the record, and Payne acknowledged giving that

      testimony. Payne explained that she must have been referring to the wrong

      appointment. Wise moved to admit two pages from Payne’s deposition. The

      State objected that the evidence was hearsay and improper because Payne had

      already admitted that she probably said it. The trial court explained that it

      typically did not admit only select pages of depositions and inquired whether



      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018   Page 2 of 6
      Wise wanted to publish the deposition or admit the whole deposition. Wise

      responded that he did not want to take the time to have it read or for the jury to

      read it and withdrew the exhibit. The jury found Wise guilty as charged. On

      November 9, 2017, the trial court sentenced Wise to five years of incarceration.


                                     1. Payne’s Deposition
[3]   Wise contends that the trial court abused its discretion in excluding the two

      pages of Payne’s deposition. A trial court’s ruling on the admission or

      exclusion of evidence is reviewed for an abuse of discretion that results in

      prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). A trial court’s

      evidentiary decision will be reversed for an abuse of discretion only where the

      court’s decision is clearly against the logic and effect of the facts and

      circumstances, or when the court misinterprets the law. Id. The appellate court

      may affirm the trial court’s ruling if it is sustainable on any legal basis in the

      record, even if it was not the reason enunciated by the trial court. Wilson v.

      State, 39 N.E.3d 705 (Ind. Ct. App. 2015), trans. denied; Wells v. State, 30 N.E.3d

      1256 (Ind. Ct. App. 2015), trans. denied.


[4]   Even if we assume, arguendo, that the trial court abused its discretion in some

      way with regard to excluding the two pages of Payne’s deposition, any such

      error could only be considered harmless. When a trial court erroneously

      excludes or admits evidence, if its “probable impact on the [factfinder], in light

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

      substantial rights of the parties,” the error is harmless. Daniels v. State, 683



      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018   Page 3 of 6
      N.E.2d 557, 559 (Ind. 1997) (citing Schwestak v. State, 674 N.E.2d 962 (Ind.

      1996)). Here, Wise sought to introduce evidence that Payne testified during a

      deposition that the June 19, 2017, appointment was scheduled for 10:30. Payne

      had already acknowledged as much on the stand, and the prior testimony was

      read into the record. It is well-settled that “[w]here the wrongfully excluded

      [evidence] is merely cumulative of other evidence presented, its exclusion is

      harmless error.” Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). Because

      the deposition evidence at issue is, at best, cumulative of other evidence

      admitted at trial, any error that the trial court may have made in excluding it

      was harmless.


                                               2. Sentence
[5]   Wise contends that his five-year sentence for Level 5 felony operating a vehicle

      after driving privileges were suspended for life is inappropriately harsh. 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.” Ind. Appellate

      Rule 7(B). “Although appellate review of sentences must give due

      consideration to the trial court’s sentence because of the special expertise of the

      trial bench in making sentencing decisions, Appellate Rule 7(B) is an

      authorization to revise sentences when certain broad conditions are satisfied.”

      Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

      and quotation marks omitted). “[W]hether we regard a sentence as appropriate

      at the end of the day turns on our sense of the culpability of the defendant, the


      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018   Page 4 of 6
      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). In addition to the “due consideration” we are required to give to the

      trial court’s sentencing decision, “we understand and recognize the unique

      perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

      866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Indiana Code section 35-50-2-6

      (2014) provides, in part, that “[a] person who commits a Level 5 felony … shall

      be imprisoned for a fixed term of between two (2) and eight (8) years, with the

      advisory sentence being four (4) years.” So, Wise’s five-year executed sentence

      represents a small enhancement over the advisory for his crime.


[6]   While Wise’s offense does not seem to have endangered or injured anyone, its

      utter needlessness stands out. Because Wise needed to bring another driver

      with him in any event (to support the lie that he was not driving), one is left to

      wonder why he did not simply have the other person drive. Moreover, this was

      not an emergency where Wise drove out of necessity. Wise was not driving a

      gravely injured person to the hospital, for example. The wholly gratuitous

      nature of Wise’s offense supports the imposition of an enhanced sentence.


[7]   Wise’s character also supports the imposition of an enhanced sentence. Wise,

      forty-four years old as of sentencing, has an extensive criminal history dating

      back to 1994. He has a history of violating the terms of his probation; he was

      released on bond when he committed the present offense; and he has not taken

      advantage of prior opportunities to address his admitted drug problems. More

      specifically, Wise’s prior criminal record includes felony convictions for two


      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018   Page 5 of 6
      counts of operating while intoxicated, operating as a habitual traffic violator,

      identity deception, possession of a controlled substance, and possession of a

      narcotic drug. Wise has also amassed eight prior misdemeanor convictions.

      Wise has been found to have violated the terms of probation or community

      corrections seven times and has had three suspended sentences at least partially

      revoked. Additionally, Wise had been released from incarceration only six

      days prior to the instant offense and had already violated the terms of his

      release by using controlled substances and moving without approval. Despite

      his many contacts with the criminal justice system, Wise has not chosen to

      reform himself, even admitting that he had never sought any help for his

      addiction issues. Wise has failed to establish that his five-year sentence is

      inappropriate in light of the nature of his offense and his character.


[8]   Judgment affirmed.


      Vaidik, C.J., and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2710 | July 2, 2018   Page 6 of 6
