Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                      May 15 2014, 6:13 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY OF APPELLANT:                           ATTORNEYS FOR APPELLEE:

THOMAS P. KELLER                                 GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 JUSTIN F. ROEBEL
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RAYTERRION WHEELER,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A03-1310-CR-391
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                            The Honorable Jerome Frese, Judge
                             Cause No. 71D03-1211-MR-14




                                        May 15, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                    Case Summary and Issue

       Rayterrion Wheeler appeals his conviction for murder, raising a single issue for our

review: whether the trial court abused its discretion by preventing Wheeler from impeaching a

witness with evidence of convictions that were more than ten years old.    Concluding the trial

court’s decision was not an abuse of discretion, we affirm.

                                  Facts and Procedural History

       The facts most favorable to Wheeler’s conviction are as follows. On November 9, 2012,

Wheeler and Herbert Brown went to the residence of Angela Turner for the purpose of

purchasing drugs. While in the living room, a verbal altercation ensued between Wheeler and

another man, Mack Caldwell. Wheeler then pulled a gun and shot Caldwell in the chest, killing

Caldwell. Wheeler and Brown immediately left the residence and fled down an alley. As they

ran, Wheeler and Brown discarded several articles of clothing. One witness saw Wheeler fleeing

the residence and believed Wheeler looked to be concealing something under his jacket.

       On November 11, 2012, Wheeler was charged with murder. A four-day jury trial was

held in June 2013. Turner testified that she witnessed Wheeler shoot Caldwell. Among the

State’s other witnesses was Byron Canada. Canada was Wheeler’s cellmate in the St. Joseph

County jail. Canada testified that Wheeler confessed to the murder for which he was charged.

At that time, Canada was serving an eleven-and-one-half year prison sentence after pleading

guilty to approximately thirty counts of mail fraud, wire fraud, and money laundering, which

were based on conduct that occurred from 2004 through 2009. Wheeler was permitted to

impeach Canada with evidence of those convictions. However, the trial court refused to let

Wheeler impeach Canada with additional fraud convictions from 1994, 1990, and 1978.

       The jury found Wheeler guilty of murder. On September 18, 2013, the trial court

sentenced Wheeler to sixty years, with fifty years executed in the Indiana Department of

Correction and ten years suspended to probation. Wheeler now brings this appeal.
                                               2
                                    Discussion and Decision

                                    I. Standard of Review

       Wheeler argues the trial court erred by denying his request to impeach Canada with

evidence of convictions that were more than ten years old. A trial court’s ruling to admit or

exclude evidence under Indiana Evidence Rule 609(b) is reviewed for an abuse of discretion.

Scalissi v. State, 759 N.E.2d 618, 624 (Ind. 2001). An abuse of discretion occurs when the trial

court’s decision is clearly against the logic and effect of the facts and circumstances. Hale v.

State, 976 N.E.2d 119, 123 (Ind. Ct. App. 2012).

                  II. Impeachment by Evidence of a Criminal Conviction

       For the purpose of impeaching a witness, “evidence that the witness has been convicted

of a crime or an attempt of a crime shall be admitted but only if the crime committed or

attempted is (1) . . . or (2) a crime involving dishonesty or false statement.” Ind. Evidence Rule

609(a) (2013). However, if a witness’s conviction is more than ten years old, evidence of the

conviction is admissible only if “the probative value of the conviction supported by specific facts

and circumstances substantially outweighs its prejudicial effect” and “the proponent gives to the

adverse party sufficient advance written notice of intent to use such evidence . . . .” Ind.

Evidence Rule 609(b) (2013). Generally, Rule 609(b) “presumes the exclusion of convictions

more than ten years old.” Scalissi, 759 N.E.2d at 624.

       Here, Wheeler failed to provide the State with written notice of his intent to use Canada’s

older convictions for impeachment purposes. That failure alone is sufficient grounds to deny

Wheeler’s use of the convictions in question. See Ind. Evidence Rule 609(b). Wheeler asks that

we overlook this shortcoming and consider Wheeler’s reference to Canada’s convictions during

opening statements as sufficient notice under the rule. But Rule 609(b)’s requirement of written




                                                3
notice is explicit; the trial court did not excuse Wheeler’s failure, nor did the State. We must

decline Wheeler’s invitation to ignore the rule’s requirement of written notice.

       Even setting aside Wheeler’s failure to provide notice, we would not conclude the trial

court’s decision to disallow use of Canada’s additional convictions was an abuse of discretion.

Convictions more than ten years old are presumed inadmissible and may be admitted only where

there is a finding that their probative value substantially outweighs any prejudice. There would

have been little probative value to evidence of Canada’s convictions from 1994, 1990, and 1978.

Wheeler was able to impeach Canada with evidence of numerous recent convictions for

fraudulent acts occurring between 2004 and 2009 and for which Canada was currently

incarcerated. Those convictions alone demonstrated a pattern of dishonest conduct over an

extended period of time, which Wheeler stated on appeal was his goal. We cannot find the trial

court’s decision was an abuse of discretion.

                                           Conclusion

       Concluding the trial court’s decision to prohibit Wheeler’s use of convictions more than

ten years old for impeachment purposes was not an abuse of discretion, we affirm.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




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