Daniel R. Collar II v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 09 2020, 7:58 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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel R. Collar II, April 9, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1632
v. Appeal from the Noble Circuit
State of Indiana, Court
Appellee-Plaintiff The Honorable Michael J. Kramer,
Judge
Trial Court Cause No.
57C01-1902-F5-8
May, Judge.
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[1] Daniel R. Collar II appeals his conviction of Level 5 felony intimidation. 1
Collar raises three issues on appeal, which we restate as: (1) whether Collar was
deprived of his right to a speedy trial under the Sixth Amendment to the United
States Constitution and Article I, Section 12 of the Indiana Constitution; (2)
whether the trial court abused its discretion by admitting security video
evidence as certified business records under Indiana Evidence Rule 802(6); and
(3) whether a sentence of 12 years is inappropriate in light of the nature of the
offense and character of the offender. We affirm.
Facts and Procedural History
[2] On January 17, 2019, an affidavit to support a charge of intimidation against
Collar was filed by a Ligonier City Police Department officer. The affidavit
stated:
[On December 24, 2018,] [Collar] hid and waited masked up for
[Timothy Swank] to exit [the Lassos Handy Dandy] Gas station
and then walked up behind [Swank] and made a verbal threat
and drew a deadly weapon on [Swank], which constitutes a
communication of a threat to another person with the intent
[that: (1) the other person engage in conduct against the other
person’s will; and (2) the other person be placed in fear for a prior
lawful act] . . . .
[Collar] fled the scene and has been unable to be located. . . .
1
Ind. Code § 35-45-2-1(a)(1) & (b)(2)(A).
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[Collar] has done this on a prior a acation [sic] without involving
a deadly weapon, but [Swank] didn’t report the crime. [Swank]
state [sic] that [Collar] believes [Swank] is speaking with
[Collar’s] ex-girlfriend. . . .
(App. Vol. II at 17-8.) Based thereon, on February 20, 2019, the State charged
Collar with Level 5 felony intimidation.
[3] On March 7, 2019, Collar moved for a speedy trial, pro se. On March 11, 2019,
a public defender accepted appointment and filed an appearance. On April 8,
2019, the public defender renewed Collar’s motion for a speedy trial during the
pre-trial hearing. On April 26, 2019, the State alleged Collar was a habitual
criminal offender. On April 29, 2019, the public defender confirmed with the
court that Collar was to receive a speedy trial. On May 16, 2019, Collar filed a
letter pro se requesting charges be dismissed on the grounds that he did not
receive a fast and speedy trial. The court forwarded that letter to the public
defender.
[4] On May 21, 2019, the court held day one of Collar’s bifurcated jury trial, and
the public defender asked the court to rule on Collar’s motion to dismiss. The
court denied Collar’s motion because the earliest possible date for Collar’s trial
on the court’s calendar was May 21, 2019. During the trial, the State moved to
admit State’s Exhibits 1 and 4 through 82, which allegedly depicted security
video recordings from Lassos Handy Dandy gas station on December 24, 2018.
Collar objected, but the judge overruled the objection and admitted the exhibits.
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[5] Later on, the State called Melissa Cruz—a Lassos Handy Dandy gas station
employee, who was working when the incident occurred—to testify. Cruz
testified that the victim came into the gas station “freaking out that somebody
had pulled a knife on him in the parking lot.” (Tr. Vol. II at 146). On May 22,
2019, the jury returned a guilty verdict for Level 5 felony intimidation. During
the sentence enhancement proceeding, the jury also determined that Collar was
a habitual offender2 and the trial court adjudicated him as such. On June 24,
2019, the trial court sentenced Collar to twelve years in the Indiana Department
of Correction, with one hundred and ten days of credit for time served.
Discussion and Decision
1. Speedy Trial
[6] Collar argues the trial court erroneously deprived him of his guaranteed right to
a speedy trial. The Sixth Amendment to the United States Constitution and
Article 1, Section 12 of the Indiana Constitution guarantee an accused’s right to
a speedy trial. Dean v. State, 901 N.E.2d 648, 652 (Ind. Ct. App. 2009), trans.
denied. The provisions of Indiana Criminal Rule 4 implement the defendant’s
speedy trial right by establishing deadlines by which trials must be held. Id.
Criminal Rule 4 places an “affirmative duty” on the State to bring a defendant
to trial. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind. 2012). However, “the
2
On appeal, Collar does not challenge the habitual offender adjudication.
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purpose of Criminal Rule 4 is not to provide defendants with a technical means
to avoid trial but rather to assure speedy trials.” Id.
[7] Subsection (B)(1) of Criminal Rule 4 provides:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such
motion, except where a continuance within said period is had on
his motion, or the delay is otherwise caused by his act, or where
there was not sufficient time to try him during such seventy (70)
calendar days because of the congestion of the court calendar.
Provided, however, that in the last-mentioned circumstance, the
prosecuting attorney shall file a timely motion for continuance as
set forth in subdivision (A) of this rule. Provided further, that a
trial court may take note of congestion or an emergency without
the necessity of a motion, and upon so finding may order a
continuance. Any continuance granted due to a congested
calendar or emergency shall be reduced to an order, which order
shall also set the case for trial within a reasonable time.
Thus, “in order for the meaning of the rule not to be eviscerated, it is essential
that courts honor requests made for speedy trials by scheduling trial dates
within the time prescribed by the rule.” McKay v. State, 714 N.E.2d 1182, 1188
(Ind. Ct. App. 1999). Our Indiana Supreme Court has referred to this rule as a
requirement that speedy trial motions receive “particularized priority
treatment.” Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). A trial judge does
not have to “wipe his or her calendar clean, or jam a trial into an opening in a
schedule or courtroom that lacks the space, time, and resources to
accommodate it.” Austin v. State, 997 N.E.2d 1027, 1041 (Ind. Ct. App. 2013).
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“They must, however, be mindful of their calendar and the seventy-day window
and exercise all reasonable diligence to preserve the defendant’s right to a
speedy trial.” Id.
[8] Here, Collar moved for a speedy trial on March 7, 2019. The seventieth day
would have been May 16, 2019. However, the earliest possible date for the
court was May 21, 2019, five days after the deadline set forth in Criminal Rule
4(B). 3 The basis for Collar’s argument is that “the trial court failed to reduce to
a written order its continuance of [his] trial outside the 70-day period.” (App.
Br. at 22.) However, the trial court noted that May 21 was the first available
date it could try Collar’s case. (Tr. Vol. II at 16.) Further, the transcript
indicates that: (1) counsel 4 and the court had conflicts on several days before
May 16; (2) everyone was trying to accommodate Collar’s request for a speedy
trial; and (3) May 21 was the earliest possible date when all the witnesses were
there. (Tr. Vol. II at 15; Tr. Vol. II at 20; Tr. Vol. II at 36.) The trial court’s
decision to set Collar’s trial beyond the seventy-day speedy trial window was
not clearly erroneous. See Austin v. State, 997 N.E.2d 1027, 1042-43 (Ind. 2013)
(“although the trial court here did not issue a written order further explaining its
finding of congestion, the transcript of the pre-trial conference indicates that
several circumstances supported its determination”). 5
3
We note that two of those days fell on the weekend.
4
In the transcript, defense counsel does not state which counsel had conflicts during the weeks before May
16. (See Tr. Vol. II at 15.)
5
While we hold the trial court here did not err, we remind the trial court to follow the requirements of
Criminal Rule 4 in the future.
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2. Admission of the Security Video Evidence
[9] Collar argues the trial court abused its discretion when it overruled his objection
to the admission of the security video evidence. The trial court’s ruling on the
admission or exclusion of evidence is reviewed for abuse of discretion. Cherry v.
State, 57 N.E.3d 867, 875 (Ind. Ct. App. 2016), trans. denied. An abuse of
discretion occurs if the trial court misinterpreted the law or if its decision was
clearly against the logic and effect of the facts and circumstances before it.
Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied.
Relevant evidence is admissible unless it is hearsay. Ind. Evid. Rule 802.
Hearsay is a statement that: (1) is not made by the declarant while testifying at
the trial or hearing; and (2) is offered in evidence to prove the truth of the
matter asserted. Ind. Evid. Rule 801.
[10] “[E]rrors in the admission of evidence are to be disregarded unless they affect
the substantial rights of a party.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.
2012), reh’g denied. To determine whether an error in the admission of evidence
affected the defendant’s substantial rights, we consider the probable impact the
evidence had on the jury. Shepherd v. State, 902 N.E.2d 360, 364 (Ind. Ct. App.
2009), trans. denied. The question is not whether there is sufficient evidence to
support the conviction absent the erroneously admitted evidence, but whether
the inadmissible evidence was likely to have had a prejudicial impact on the
jury. Id.
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[11] After asking Lassos Handy Dandy’s loss prevention specialist, Sawyer Blevins,
a number of authenticating questions, the State moved to admit State’s Exhibits
1 and 4 through 82 which allegedly depicted the security recordings that the
store made on December 24, 2018. According to Indiana Evidence Rule
803(6), a record—of an act, event, condition, opinion, or diagnosis—is not
inadmissible if:
(A) [T]he record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) [T]he record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) [M]aking the record was a regular practice of that activity;
(D) [A]ll these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902 (11) 6 [] or with a statute
permitting certification; and
(E) [N]either the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness.
[12] Before the trial court admitted the exhibits proffered by the State, Collar’s
counsel requested permission to ask preliminary questions:
[Collar]: Uh, Mr. Blevins you didn’t design the video system did
you?
[Witness]: No.
[Collar]: Uh, did you install it?
[Witness]: No.
[Collar]: Uh, but you uh, did have a look at this time period on
Christmas Eve from the actual uh, DVR itself?
6
See Ind. R. Evid. 902(11) (stating “certified domestic records of a regularly conducted activity” are self-
authenticating meaning “they require no extrinsic evidence of authenticity in order to be admitted” “unless
the source of information indicate a lack of trustworthiness…”).
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[Witness]: Just the burns.
[Collar]: Just the burns?
[Witness]: Yes.
[Collar]: So you don’t know if the burns are fair and accurate
copies of what was recorded on the DVR is that right?
[Witness]: Can you rephrase that?
[Collar]: Sure; when someone asks you uh, whether or not you
had a recording device you went and looked at the DVR itself in
terms of what was recorded during that time period?
[Witness]: Huh-uh.
[Collar]: You did not?
[Witness]: My supervisor was the one who burned it.
[Collar]: Okay so you didn’t burn it and you didn’t compare it
burnt [sic] in the actual recording is that right?
[Witness]: No.
(Tr. Vol. II at 109-10.) Based thereon, Collar’s counsel argued no adequate
foundation was laid, and the trial court agreed.
[13] The State again attempted to lay foundation for admission by questioning
whether maintaining the records was a regular practice of Lassos Handy
Dandy’s business, to which Collar’s counsel objected:
[State]: Your honor if [sic] may just [sic] a couple omitted
questions first of all as a loss prevention officer uh, you are
responsible, you and your supervisor ar [sic] responsible for
maintaining the records from these, from there (indiscernible) is
that right?
[Witness]: Yes we are the keeper of the records.
[State]: You are the keeper of records and this is a record that is
maintained within the course of you [sic] business?
[Witness]: Yes.
[State]: And these are records that were developed uh, as part of
your course of business uh, on that December 24th 2018?
[Witness]: Yes.
[State]: And you contemporaneously reviewed that footage uh,
with your supervisor is that right?
[Witness]: Yes.
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[State]: Alright um, and uh, with that your honor it’s a business
records exception if there’s any hear say [sic] issue to it um, and
uh, so I believe that there’s been a foundation laid that these are
[sic] continue within the business records for that date on
December 24th 2018 from their records as a business.
[Collar]: My objection uh, isn’t related to the business records
acceptation [sic] it’s rather um, he’s asking him to, the State is
asking this witness to vouch for uh, the authenticity of the burn
as it relates to the actual recording itself; based upon my
questioning on [sic] Mr. Blevins I don’t believe he’s done both.
[Court]: I will over rule [sic] the objection and admit the exhibits.
*****
[Collar]: Judge can, so I don’t have to interrupt again uh, can
you show this as a continuing objection?
[Court]: I’ll show the continuing objection to the exhibits.
(Id. at 110-11.)
[14] Collar asserts the exhibits were inadmissible hearsay because they were not
authenticated as required. Unless hearsay falls into one of a number of
exceptions, it is inadmissible at trial. 7 Evid. Rule 802. As noted in its argument
before the trial court, the State claimed the exhibits fell into one of the hearsay
exceptions, specifically that they were records of a regularly conducted activity.
Blevins testified that the burned disc was an accurate depiction of the store on
December 24, 2018. However, Collar’s issue is that Blevins never testified that
he saw the original footage. Instead, he answered in the negative when Collar’s
counsel asked “Okay so you didn’t burn it and you didn’t compare it burnt [sic]
7
See Ind. Evidence Rule 803-04 (hearsay exceptions include records of regularly conducted activity, absence
of a record of a regularly conducted activity, family records, judgment of a previous conviction, former
testimony, and statement against interest).
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in the actual recording is that right?” (Tr. Vol. II at 110), and he testified that
he looked at “[j]ust the burns.” (Id. at 109.) Blevins testified that his supervisor
watched the original footage and burned it onto a disc. For those reasons,
Collar argues the State failed to authenticate the burned discs. We disagree.
[15] Blevins’ testimony reveals that: (A) the burned discs were made by someone
with knowledge, i.e., his supervisor; (B) the burned discs were kept in the
course of Lassos Handy Dandy’s business; 8 (C) making the discs was a regular
part of his role as a loss prevention officer; and (D) conditions in (A)-(C) were
shown by a qualified witness’s testimony, i.e., Blevins’ testimony. Finally, any
lack of trustworthiness was nullified because Blevins—Lassos Handy Dandy’s
loss prevention officer—authenticated the burned discs that were prepared as
part of Lassos Handy Dandy’s business conduct. Thus, we conclude that
Blevins’ testimony meets all the requirements for admission of the burned discs
as business records under Indiana Evidence Rule 803(6). See Rolland v. State,
851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006) (the proponent of a business
records exhibit exception “may authenticate it by calling a witness who has a
functional understanding of the record keeping process of the business with
8
[State]: And as it relates to those discs um, how do you know that you’ve looked at those discs?
[Witness]: Um, my signature’s on them or my initial.
[State]: So you reviewed it [and] marked it [with] an initial?
[Witness]: Yes.
(Tr. Vol. II at 108).
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respect to the specific entry, transaction, or declaration contained in the
document”).
3. Inappropriate Sentence
[16] Collar asserts his sentence is inappropriate. Under Indiana Appellate Rule
7(B), we may revise a sentence if, after due consideration of the trial court’s
decision, we determine the sentence is inappropriate in light of the nature of the
offense and the character of the offender. Adams v. State, 120 N.E.3d 1058,
1064 (Ind. Ct. App. 2019). We consider aggravating, mitigating, and any other
factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.
App. 2013). Our goal is to decide whether the appellant’s sentence is
inappropriate, not whether some other sentence would be more appropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Powell bears the
burden of demonstrating his sentence is inappropriate. See Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006) (“defendant must persuade the appellate court
that his or her sentence has met this inappropriateness standard of review”).
[17] When considering the nature of the offense, we start by looking at the advisory
sentence to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The
sentencing range for a Level 5 felony is “a fixed term of between one (1) and six
(6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-
2-6(b). If a person convicted of a level 5 felony is found to be a habitual
offender, the court shall sentence said person “to an additional fixed term that is
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between two (2) years and six (6) years.” Ind. Code. § 35-50-2-8(i)(2). Collar
was sentenced to an aggregate sentence of twelve (12) years which he contends
is inappropriate because: (1) Collar’s motivation was “to threaten Swank;” (2)
Swank was not harmed; (3) no evidence of monetary harm arose from the
offense;” and (4) Collar was under the influence of illegal drugs at the time of
the offense. (Appellant Br. at 37.)
[18] Collar not only laid in wait for Swank to exit the gas station, but he drew a
knife once he had the opportunity to approach Swank. He states his motivation
was to threaten Swank which is not only against the law, but an unauthorized
reason to stop the victim from willfully engaging in conduct that is not against
the law. Furthermore, we refuse to make light of Collar’s offense just because
Swank was not harmed and no monetary harm arose from the offense. As the
evidence points out, this was not the first time Collar threatened the victim.
The difference this time around is that Collar decided to aggravate the threat by
drawing a knife which in turn caused a frightened Swank to run back into the
gas station and ask Cruz to call the police. We are not persuaded by Collar’s
argument that he was under the influence of illegal drugs because this was not
the first time he threatened the victim. For those reasons, the sentence is not
inappropriate in light of the nature of Collar’s crime. See Sandleben v. State, 29
N.E.3d 126, 137 (Ind. Ct. App. 2015) (sentence not inappropriate when
defendant, “on two different occasions, closely followed [victim] section by
section and aisle by aisle through a store, surreptitiously videotaping her as he
followed her and causing her to feel scared and nervous”), trans. denied.
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[19] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Powell’s criminal history consists
of: (1) misdemeanors such as minor consuming alcohol; refusal to provide
identity; resisting law enforcement; battery resulting in bodily injury; illegal
possession of an alcoholic beverage; criminal mischief; possession of marijuana;
operating a vehicle with an ACE of .15 or more; disorderly conduct; and public
intoxication; (2) felonies such as attempted murder; attempted robbery;
possession of a controlled substance; residential entry; and burglary; (3)
probation revocations; (4) work release violation; and (5) failures to appear. 9
[20] Collar argues his “prior offenses largely were chronologically distant” and less
serious than his intimidation conviction. (Appellant’s Br. at 39.) However, his
prior offenses did not stop him from committing the offense at issue nor help
him advance his argument about his “good” character. It does not help that
three weeks after intimidating the victim, Collar was charged with Class A
misdemeanor driving while suspended.10 Those are not the actions of someone
who thought about how his “children would suffer from his lengthy sentence.”
(Id. at 38.) Given Powell’s extensive criminal history and his actions, we cannot
say the sentence is inappropriate for his character. See Rasnick v. State, 2
9
We note that approximately three weeks after Collar threatened the victim, Collar was charged with Class
A misdemeanor driving while suspended. (App. Vol. II at 127).
10
Ind. Code § 9-24-19-2.
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N.E.3d 17, 29 (Ind. Ct. App. 2013) (defendant’s sentence not inappropriate
when defendant’s criminal history and the facts in the case “strongly support
the trial court’s sentencing judgment”), trans. denied.
Conclusion
[21] We conclude the May 21, 2019, trial date did not violate Collar’s right to a
speedy trial, as the trial court scheduled the trial on the earliest possible date
due to court congestion. Additionally, the trial court did not abuse its
discretion when it admitted State’s Exhibits 1 and 4 through 82. Finally,
Collar’s sentence is not inappropriate based on the nature of the offense and his
character. Accordingly, we affirm.
[22] Affirmed.
Crone, J., and Pyle, J., concur.
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