MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Dec 29 2016, 8:36 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Barbra A. Stooksbury                                    Gregory F. Zoeller
LaPorte, Indiana                                        Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry A. Conn,                                          December 29, 2016
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        46A03-1604-CR-1007
        v.                                              Appeal from the LaPorte Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas J.
Appellee-Respondent                                     Alevizos, Judge
                                                        Trial Court Cause No.
                                                        46C01-1508-F5-712



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 1 of 9
[1]   Larry Conn appeals his convictions for Operating a Vehicle After a Lifetime

      Suspension,1 a Level 5 Felony; and False Informing,2 a Class B Misdemeanor.

      He argues that one of his statements should not have been admitted into

      evidence, that there is insufficient evidence supporting his convictions, and that

      his sentence is inappropriate in light of the nature of the offenses and his

      character. Finding no error and that the sentence is not inappropriate, we

      affirm.


                                                    Facts
[2]   On August 7, 2015, around noon, Police Officer Aaron Stobaugh was driving in

      a southbound lane in LaPorte County when he noticed that a driver heading

      north, later identified as Conn, was not wearing a seatbelt. Officer Stobaugh

      turned his car around, caught up to Conn, and pulled him over.


[3]   When asked for his license, Conn said that he had lost it. He identified himself

      as “Daryl Conn,” and said that he was born in 1956. When asked his date of

      birth, he could not remember. Eventually, he revealed that he was Larry Conn

      and gave the correct date of birth. He explained to the officer that he had lied

      because his license was suspended. The officer returned to his car to check

      Conn’s records; the database revealed that Conn’s license was suspended and

      that Conn was a habitual traffic violator with a lifetime suspension. When the




      1
          Ind. Code § 9-30-10-17(a)(1).
      2
          Ind. Code § 35-44.1-2-3(d)(1).


      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 2 of 9
      officer walked back to Conn’s car, Conn confirmed that his license had been

      suspended because he was a habitual traffic violator.


[4]   The officer ordered Conn out of his car. As Conn exited, the officer noticed the

      smell of alcohol. Conn was swaying as he walked and slurring his speech, and

      his eyes were red. The officer asked Conn to perform a field sobriety test but

      Conn refused, explaining “that he didn’t want to perform the test because he

      thought that his drinking the night prior would cause him to fail the test on that

      particular date and time.” Tr. p. 153. Another officer arrived, and a search of

      the car and the area around it revealed a water bottle filled with a cold liquid

      that smelled like alcohol that had been thrown out the window, along with a

      mason jar filled with ice cubes and a clear liquid that smelled like alcohol under

      one of the seats.


[5]   On August 11, 2015, the State charged Conn with operating a vehicle after a

      lifetime suspension, a Level 5 felony; giving a false identity statement, a Class A

      misdemeanor; and operating a vehicle while intoxicated, a Class C

      misdemeanor. The State later amended the second charge to be false

      informing, a Class B misdemeanor.


[6]   At his February 29 and March 1, 2016, trial, Conn testified in his defense. He

      testified that his mother, who suffers from Alzheimer’s disease and dementia,

      called him on the morning of August 7 and told him that she could see her late

      husband standing outside her house. He sought to prove that he feared for his




      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 3 of 9
      mother’s safety and only decided to drive that day because it was an

      emergency.


[7]   The jury found Conn guilty of operating a vehicle after a lifetime suspension

      and false informing, but not guilty of operating a vehicle while intoxicated.

      Following a March 31, 2016, sentencing hearing, the trial court sentenced Conn

      to three years for operating a vehicle after a lifetime suspension and ninety days

      for false informing, with those sentences running concurrently. Conn now

      appeals.


                                   Discussion and Decision
[8]   Conn has three arguments on appeal. He argues the following: (1) that the trial

      court erred by admitting his statement to the police that he was a habitual traffic

      offender; (2) that there was insufficient evidence supporting his convictions; and

      (3) that Conn’s sentence is inappropriate in light of the nature of the offense and

      his character.


                              I. Conn’s Statement to Police
[9]   Conn argues that the trial court should not have permitted the police officer to

      testify about Conn’s admission that he was a habitual traffic offender. He

      believes that this testimony violates Indiana Rule of Evidence 403, which

      provides that “[t]he court may exclude relevant evidence if its probative value is

      substantially outweighed by a danger of one or more of the following: unfair

      prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

      presenting cumulative evidence.”

      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 4 of 9
[10]   Generally, admission of evidence is a matter of discretion for the trial court.

       Pribie v. State, 46 N.E.3d 1241, 1246 (Ind. Ct. App. 2015). Such decisions will

       be reversed only when admission is clearly against the logic and effect of the

       facts and circumstances and the error affects a party’s substantial rights. Id.

       Moreover, reversible error cannot be predicated upon a trial court’s erroneous

       admission of evidence that is merely cumulative of other evidence that has

       already been properly admitted. Davis v. Garrett, 887 N.E.2d 942, 947 (Ind. Ct.

       App. 2008).


[11]   We cannot agree that Conn’s statement was unfairly prejudicial. His statement

       to the officer that his license was suspended because he was a habitual traffic

       offender is not the type of information that might inflame the passions of the

       jury or cause it to judge him on inappropriate standards. Indeed, whether he

       was driving with a suspended license was one of the central issues of his trial.

       Moreover, his admission was merely cumulative of the evidence that he was a

       habitual traffic offender, evidence that included a certified driving record with

       the words “habitual traffic violator—life.” State’s Ex. 1. The trial court did not

       err by allowing the officer’s testimony.


                              II. Sufficiency of the Evidence
[12]   Conn argues that there is insufficient evidence to support his convictions.

       When reviewing the sufficiency of the evidence supporting a conviction, we will

       neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51

       N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence


       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 5 of 9
       supporting the judgment and any reasonable inferences that may be drawn

       therefrom, and we will affirm if a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


[13]   The State was required to prove beyond a reasonable doubt that Conn

       “operate[d] a motor vehicle after [his] driving privileges [were] forfeited for life .

       . . .” I.C. § 9-30-10-17. The State presented evidence of both at trial, and Conn

       does not seem to argue otherwise.


[14]   Rather, he points to Indiana Code section 9-30-10-18(a), which provides that “it

       is a defense that the operation of a motor vehicle was necessary to save life or

       limb in an extreme emergency.” He argues that “[a] reasonable person could

       determine that Larry drove the vehicle because he felt his Mother was in

       immediate danger, an extreme emergency.” Appellant’s Br. p. 23.


[15]   Conn has the standard on review exactly backwards: the question is not

       whether a jury could have reasonably believed him; the question is whether a

       reasonable jury could have reasonably disbelieved him. His statutory defense

       places the burden of proof on the defendant to prove the existence of an

       extreme emergency. Ind. Code § 9-30-10-18(a). Because the jury was free to

       wholly disregard his credibility, Knox v. State, 13 N.E.3d 899, 902 (Ind. Ct. App.

       2014), we cannot say that no reasonable jury could have disbelieved his self-

       serving assertions. There is sufficient evidence supporting his driving with a

       suspended license conviction.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 6 of 9
[16]   Conn also argues that there is insufficient evidence to support his conviction for

       false informing. The State was required to prove beyond a reasonable doubt

       that Conn gave “a false report . . . in the official investigation of the

       commission of a crime, knowing the report to be false.” I.C. § 35-44.1-2-3.

       Because the officer testified that Conn gave the wrong name and birthday

       during the course of the investigation, tr. p. 147, there is sufficient evidence that

       Conn committed this crime.


                           III. Appropriateness of the Sentence
[17]   Finally, Conn argues that his sentence is inappropriate in light of the nature of

       the offense and his character.3 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

       principal role of such review is to attempt to leaven the outliers, but not to

       achieve a perceived “correct” sentence. Cardwell v. State, 895 N.E.2d 1219,

       1225 (Ind. 2008). Sentencing is principally a discretionary function in which

       the trial court’s judgment should receive considerable deference. Id. at 1222.




       3
         Conn also purports to argue that the trial court abused its discretion in its sentencing, but does so by arguing
       that “the trial court abused its discretion by outweighing its aggravating factor from its mitigating factors
       while sentencing Larry.” Appellant’s Br. p. 20. However, because under our current statutory sentencing
       regime “a trial court can not now be said to have abused its discretion in failing to ‘properly weigh’ such
       factors,” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218
       (Ind. 2007), this argument is not available on appeal.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016              Page 7 of 9
       The defendant bears the burden of showing us that his sentence is

       inappropriate. Kennedy v. State, 934 N.E.2d 779, 788 (Ind. Ct. App. 2010).


[18]   Conn faced between one and six years for his driving after a lifetime suspension

       conviction, with the advisory sentence being three years. Ind. Code § 35-50-2-

       6(b). The trial court sentenced him to the advisory term for this conviction. He

       faced up to 180 days for his false informing conviction. Ind. Code § 35-50-3-3.

       The trial court sentenced him to ninety days.


[19]   Turning to the nature of the offenses, Conn drove his vehicle after his license

       had been suspended for life. Although he claimed that he was responding to an

       emergency, the jury did not find this claim credible. Then, when pulled over by

       the police, Conn relayed the wrong name and birthdate in an attempt to avoid

       the consequences of his actions. No aspect of his offenses persuades us to revise

       his sentence.


[20]   Turning to Conn’s character, we find a man with sixteen criminal convictions,

       including multiple offenses relating to operating a vehicle while intoxicated and

       multiple offenses relating to driving with a suspended license. His actions in the

       present case are not outliers but repeat a persistent trend of behavior. In short,

       Conn’s character does not persuade us to revise his sentence. We find that

       Conn’s sentence is not inappropriate in light of the nature of the offenses and

       his character.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 8 of 9
[21]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-1007 | December 29, 2016   Page 9 of 9
