Eric P. Wheeler v. State of Indiana

FILED
Feb 28 2018, 7:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jonathan A. Leachman Curtis T. Hill, Jr.
Fifer Law Office Attorney General of Indiana
New Albany, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric P. Wheeler, February 28, 2018
Appellant-Defendant, Court of Appeals Case No.
88A05-1703-CR-541
v. Appeal from the Washington
Circuit Court
State of Indiana, The Honorable Larry W. Medlock,
Appellee-Plaintiff. Judge
Trial Court Cause No.
88C01-1510-F5-596
Mathias, Judge.
[1] Following a jury trial in Washington Circuit Court, Eric P. Wheeler
(“Wheeler”) was convicted of Class A misdemeanor operating a motor vehicle
with an alcohol concentration equivalent of 0.15 and determined to be an
habitual vehicular substance offender. The trial court sentenced Wheeler to one
year suspended to probation on the Class A misdemeanor conviction and five
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and one-half years executed for being an habitual vehicular substance offender.
Wheeler appeals and presents five issues, which we consolidate, reorder, and
restate as the following three:
I. Whether the trial court erred by permitting the State to amend the
charging information to eliminate one of the alleged predicate
offenses;
II. Whether the trial court abused its discretion in the admission of
toxicology evidence of Wheeler’s blood sample; and
III. Whether Wheeler’s sentence is inappropriate.
[2] We affirm.
Facts and Procedural History
[3] On the night of October 23, 2015, Washington County Sheriff’s Deputies Brad
Naugle (“Deputy Naugle”) and Joe Keltner (“Deputy Keltner”) were
dispatched to the scene of a single-vehicle roll-over accident on State Road 60 in
Washington County. There were no injuries in the single-vehicle accident, and
a wrecker tow truck was on scene to remove the damaged car. As the tow-truck
operator, Steve Borden (“Borden”), attempted to load the wrecked car onto the
tow truck, Deputy Naugle got in his patrol car to complete an incident report. A
local teenager, Dillon Moore (“Moore”), who had been riding along with
Deputy Naugle that night, was standing behind Deputy Naugle’s patrol car.
Deputy Keltner was in the road waving a blue and red wand to warn oncoming
traffic to stop. This warning was in addition to the flashing emergency lights on
the patrol cars and the wrecker truck. As Deputy Keltner directed traffic, he
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observed a Toyota pickup truck approaching the scene of the accident without
slowing down. When he realized the truck was not going to stop, Deputy
Keltner yelled out a warning to the others.
[4] Deputy Keltner attempted to jump out of the way of the fast-approaching
pickup truck but was only partially successful; the truck struck his legs as he
was in mid-air, causing him to be thrown into a ditch. The pickup truck then
struck the driver’s side door of Deputy Naugle’s car, knocking the door off.
Deputy Naugle had been sitting with one leg outside the vehicle with his door
open and was barely able to get himself fully inside the vehicle before it was
struck. The pickup truck also hit the tow truck, which knocked Borden
underneath the vehicle he was attaching to the tow truck. Moore was hit by
flying debris and knocked down.
[5] Immediately after the impact, Deputy Naugle checked himself for injuries and
noted that he had pain in his head, neck, upper leg, and abdomen. He then got
out of his car to check on the others. He saw Deputy Keltner get up off the
ground and heard him report that he had been struck in the legs. He then went
behind his car to check on Moore, who collapsed in front of him. Borden also
got up off the ground after the accident, relatively unscathed. Deputy Naugle
called for an ambulance and went to check on the driver of the pickup truck,
later identified as Wheeler.
[6] When Deputy Naugle got to the pickup truck, Wheeler reached toward the
passenger’s side of his truck. Deputy Naugle told Wheeler to keep his hands on
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the steering wheel where he could see them, but Wheeler still tried to reach
toward the other side of the truck and told Deputy Naugle, “F**k you.” Tr.
Vol. 2, p. 221. Deputy Naugle repeated his warning, but Wheeler still ignored
him and repeated his vulgar comment. Wheeler then got out of his vehicle and
approached the deputy in an aggressive manner. This caused Deputy Naugle to
pull out his taser and order Wheeler to put his hands on his vehicle. Still,
Wheeler did not comply but instead threatened to sue Deputy Naugle and got
back into his truck. Deputy Keltner came over to help, and the two of them
removed Wheeler from the vehicle and placed him in handcuffs.
[7] Deputy Naugle detected the odor of alcohol on Wheeler. But due to the injuries
to him and Deputy Keltner, he decided to radio for assistance so other officers
could investigate Wheeler. Salem Police Department Officer Chris Cauble
(“Officer Cauble”) arrived on the scene. Officer Cauble too noticed the smell of
alcohol on Wheeler. He also observed that Wheeler’s eyes were red and that his
speech was slurred. Because of the recent accident, Officer Cauble did not
conduct any field sobriety tests. Instead, he read Wheeler the Indiana implied
consent law, and Wheeler agreed to submit to a blood draw. Officer Cauble
then took Wheeler to the hospital for a blood draw.
[8] At the hospital, Wheeler’s blood was drawn by medical technologist Lynn
Mach (“Mach”). Serum testing at the hospital indicated that Wheeler had a
blood alcohol concentration of 0.215. Tr. Vol. 2, pp. 29–30. Mach also drew
two vials of Wheeler’s blood for further testing. Mach mislabeled the first vial
as coming from “Chris Wheeler,” but properly labelled the second as coming
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from “Eric Wheeler.” Id. at 62–63. Mach later suspected that she mislabeled the
one vial because she was speaking with Officer Chris Cauble at the time and
used his first name instead of Wheeler’s first name.
[9] As a result of this incident, the State charged Wheeler on October 26, 2015 as
follows:
• Count 1: Level 6 felony operating a vehicle while intoxicated with
a prior conviction for operating while intoxicated within the past
five years;
• Count 2: Level 5 felony operating a vehicle while intoxicated
causing serious bodily injury to Moore;
• Count 3: Level 5 felony operating a vehicle while intoxicated
causing serious bodily injury to Deputy Keltner;
• Count 4: Level 5 felony operating a vehicle while intoxicated
causing serious bodily injury to Deputy Naugle;
• Count 5: Class A misdemeanor resisting law enforcement;
• Count 6: Class A misdemeanor operating a vehicle while
intoxicated with an alcohol concentration equivalent of at least
0.15; and
• Count 7: Class A misdemeanor operating a vehicle while
intoxicated in a manner that endangered a person.
[10] On December 22, 2015, the State filed an additional information alleging that
Wheeler was an habitual vehicular substance offender, listing three prior
offenses. On December 28, 2015, the State filed a motion to add Count 8,
another charge of Class A misdemeanor resisting law enforcement. The trial
court granted this motion that same day. Almost one year later, on December
22, 2016, the State moved to dismiss Counts 2, 3, 4, and 8, which the trial court
granted. This left the following renumbered counts:
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• Count 1: Level 6 felony operating a vehicle while intoxicated with
a prior conviction for operating while intoxicated within the past
five years;
• Count 2: Class A misdemeanor resisting law enforcement; and
• Count 3: Class A misdemeanor operating a vehicle while
intoxicated with an alcohol concentration equivalent of at least
0.15;
• Count 4: Class A misdemeanor operating a vehicle while
intoxicated in a manner that endangered a person
[11] Forensic scientist Cheryl Anderson (“Anderson”) of the Indiana State
Department of Toxicology tested the mislabeled vial of Wheeler’s blood on
March 15 and 16, 2016. The tests of this vial indicated that Wheeler’s blood
alcohol concentration was 0.184. The second vial, which was properly labeled,
was not tested until January 30, 2017, two days before Wheeler’s trial, and
indicated that Wheeler’s blood alcohol concentration was 0.179.
[12] Immediately prior to trial, Wheeler moved to suppress the results of the tests of
the second vial of blood because it was not disclosed to him until shortly before
trial.1 Wheeler argued that the late disclosure of this blood test by the State
should be sanctioned by exclusion of the test results of that vial. The trial court
denied the motion to suppress. When the trial court made its ruling, Wheeler
moved for a continuance to allow preparation to address this evidence. The
State did not oppose the motion, but the trial court nevertheless denied the
motion. The court did, however, recess until the following day, to allow
1
Wheeler filed his motion on January 30, 2017, the same day that the State disclosed to him the results of the
second vial.
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Wheeler’s counsel the opportunity to depose the State’s witness sponsoring the
blood evidence.
[13] A jury trial took place on February 1–3, 2017. On the last day of trial, the State
moved to amend the information alleging Wheeler to be an habitual vehicular
substance offender by removing the reference to the second of the three listed
prior convictions. The trial court granted the State’s motion over Wheeler’s
objection. The jury ultimately found Wheeler guilty of the first three of the
remaining and renumbered counts: Counts 1, 2, and 3, but acquitted him on
Count 4. The jury then found that Wheeler was an habitual vehicular substance
offender.
[14] The trial court held a sentencing hearing on February 13, 2017. Due to
concerns about double jeopardy, the court entered judgment of conviction on
renumbered Count 3 only for Class A misdemeanor operating a vehicle while
intoxicated with an alcohol concentration equivalent of at least 0.15. The court
imposed a sentence of one year, suspended to probation, and attached to this an
habitual vehicular substance offender enhancement of five and one-half years
executed. Wheeler now appeals.
I. Amendment of Charging Information
[15] Wheeler first argues that the trial court erred by permitting the State to amend
the charging information which alleged that he was an habitual vehicular
substance offender. The statute governing the amendment of charging
instruments provides:
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(a) An indictment or information which charges the commission
of an offense may not be dismissed but may be amended on
motion by the prosecuting attorney at any time because of any
immaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties[,] defendant or offenses
charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the acts,
means, intents, or results charged;
(6) any mistake in the name of the court or county in the
title of the action, or the statutory provision alleged to have
been violated;
(7) the failure to state the time or place at which the offense
was committed where the time or place is not of the essence
of the offense;
(8) the failure to state an amount of value or price of any
matter where that value or price is not of the essence of the
offense; or
(9) any other defect which does not prejudice the substantial rights
of the defendant.
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by
the prosecuting attorney, upon giving written notice to the
defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a
felony; or
(B) fifteen (15) days if the defendant is charged only with
one (1) or more misdemeanors;
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before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the
defendant. When the information or indictment is amended, it
shall be signed by the prosecuting attorney or a deputy
prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any time
before, during, or after the trial, permit an amendment to the indictment
or information in respect to any defect, imperfection, or omission in form
which does not prejudice the substantial rights of the defendant.
(d) Before amendment of any indictment or information other
than amendment as provided in subsection (b), the court shall
give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment,
the court shall, upon motion by the defendant, order any
continuance of the proceedings which may be necessary to
accord the defendant adequate opportunity to prepare the
defendant’s defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8 must be made at least thirty
(30) days before the commencement of trial. However, upon a showing of
good cause, the court may permit the filing of a habitual offender charge
at any time before the commencement of the trial if the amendment does
not prejudice the substantial rights of the defendant. If the court
permits the filing of a habitual offender charge less than thirty
(30) days before the commencement of trial, the court shall grant
a continuance at the request of the:
(1) state, for good cause shown; or
(2) defendant, for any reason.
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Ind. Code § 35-34-1-5 (“Section 5”) (emphases added). Wheeler argues that the
State’s amendment of the habitual vehicular substance offender information
was not permitted under any of the provisions of Section 5.
[16] Wheeler claims that the State was prohibited from amending the habitual
offender information under Subsection 5(e) because the State did not move to
amend the information until well after thirty days before trial. But Subsection
5(e) governs amendments to include an habitual offender allegation. Here, the
State did not move to amend the information to include an habitual offender
allegation. It moved to amend the information to remove an allegation of a
predicate offense for an habitual offender allegation that had already been
timely filed.2 Subsection 5(e) is therefore inapplicable.
[17] Wheeler also claims that the amendment to the habitual offender information
was impermissible under Subsections 5(b) and (c) because, he argues, the
amendment to the charging information did “prejudice the substantial rights of
the defendant.” Both of these subsections preclude amendments which are so
significant that they prejudice a defendant’s substantial rights. Similarly,
Subsection 5(a)(9) permits amendments to correct “any other defect which does
not prejudice the substantial rights of the defendant.” Thus, the question before
us is whether the amendment of the habitual offender information prejudiced
Wheeler’s substantial rights. This requires us to consider the habitual vehicular
2
The habitual offender allegation was filed on December 22, 2015, and the jury trial took place on February
3, 2017, over one year later.
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substance offender statute and the information alleging that Wheeler was an
habitual vehicular substance offender under this statute.
[18] The habitual vehicular substance offender statute provides:
(a) The state may seek to have a person sentenced as a habitual
vehicular substance offender for any vehicular substance offense
by alleging, on a page separate from the rest of the charging
instrument, that the person has accumulated two (2) or three (3)
prior unrelated vehicular substance offense convictions. If the state alleges
only two (2) prior unrelated vehicular substance offense convictions, the
allegation must include that at least one (1) of the prior unrelated
vehicular substance offense convictions occurred within the ten (10) years
before the date of the current offense.
(b) For purposes of subsection (a), a person has accumulated
two (2) or three (3) prior unrelated vehicular substance offense
convictions only if:
(1) the second prior unrelated vehicular substance offense
conviction was committed after commission of and
sentencing for the first prior unrelated vehicular substance
offense conviction;
(2) the offense for which the state seeks to have the person
sentenced as a habitual vehicular substance offender was
committed after commission of and sentencing for the second
prior unrelated vehicular substance offense conviction; and
(3) for a conviction requiring proof of three (3) prior
unrelated vehicular substance offense felonies, the third prior
unrelated vehicular substance offense conviction was
committed after commission of and sentencing for the second
prior unrelated vehicular substance offense conviction.
However, a conviction does not count for purposes of subsection
(a) if it has been set aside or it is a conviction for which the
person has been pardoned.
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(c) A person is a habitual vehicular substance offender if the jury
(if the hearing is by jury) or the court (if the hearing is to the
court alone) finds that the state has proved beyond a reasonable
doubt that the person has accumulated three (3) or more prior
unrelated vehicular substance offense convictions at any time, or
two (2) prior unrelated vehicular substance offense convictions, with at
least one (1) of the prior unrelated vehicular substance offense convictions
occurring within ten (10) years of the date of the occurrence of the current
offense.
(d) The court shall sentence a person found to be a habitual
vehicular substance offender to an additional fixed term of at
least one (1) year but not more than eight (8) years of
imprisonment, to be added to the term of imprisonment imposed
under IC 35-50-2 or IC 35-50-3.
(e) Charges filed under this section must be filed in a circuit
court or superior court.
Ind. Code § 9-30-15.5-2 (emphases added).
[19] Pursuant to this statute, the State has an option of alleging that a defendant has
been convicted of two or three prior unrelated vehicular substance offenses. If
the State alleges that the defendant has been convicted of three prior unrelated
vehicular substance offenses, then there is no time limit on the age of the prior
convictions. If, however, the State alleges that the defendant has only two prior
unrelated vehicular substance offense convictions, then the State must also
prove that at least one of the prior unrelated vehicular substance offense
convictions occurred within ten years of the date of the instant offense.
[20] In the present case, the State initially alleged that Wheeler was an habitual
vehicular substance offender as follows:
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1. On September 25, 2010, Eric P. Wheeler committed the
offense of Operating While Intoxicated with a Prior
Conviction, Class D felony, and was convicted of Operating
While Intoxicated With a Prior Conviction, Class D felony,
on August 28, 2013, in the Washington County Superior
Court, Indiana, Cause No. 88D01-1009-FD-561;
2. On January 7, 2006, Eric P. Wheeler committed the offense
of Operating While Intoxicated, Class A misdemeanor, and
was convicted of Operating While Intoxicated, Class A
misdemeanor, on July 11, 2006, in the Floyd County Court,
Indiana, Cause No. 22E0601-CM-43 [sic];
3. On February 17, 2006, Eric P. Wheeler committed the
offense of Operating While Intoxicated, Class A
misdemeanor, and was convicted of Operating While
Intoxicated, Class A misdemeanor, on June 26, 2006, in the
Washington County Superior Court, Indiana, Cause No.
88D01-0602-CM-40;
4. Pursuant to I.C. 9-30-15.5-2, Eric P. Wheeler has
accumulated the requisite prior, unrelated vehicular
substance convictions, and is therefore a Habitual Vehicular
Substance Offender.
Appellant’s App. Vol. II, p. 64. The trial court permitted the State to amend the
information by eliminating the second paragraph.
[21] Wheeler argues that this amendment to the habitual offender information
prejudiced his substantial rights. “A defendant’s substantial rights ‘include a
right to sufficient notice and an opportunity to be heard regarding the charge;
and, if the amendment does not affect any particular defense or change the
positions of either of the parties, it does not violate these rights.’” Erkins v. State,
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13 N.E.3d 400, 405 (Ind. 2014) (quoting Gomez v. State, 907 N.E.2d 607, 611
(Ind. Ct. App. 2009)).
[22] Wheeler contends that the allowed amendment “eviscerated” his planned
defense to the original information. Appellant’s Br. at 17. That is, he intended
to argue that his conviction in the second-alleged predicate offense had been
modified such that it no longer qualified as a prior unrelated vehicular
substance offense. Wheeler’s entire argument on this issue is predicated upon
his belief that, under the original habitual offender information, the State was
required to prove all three of alleged the prior unrelated offenses. This belief is
incorrect.
[23] The habitual vehicular substance offender statute provides for two alternative
methods of establishing that a defendant is an habitual vehicular substance
offender, i.e., by proving either that the defendant has three or more prior
unrelated convictions for vehicular substance offenses, or that the defendant has
two prior unrelated vehicular substance offense convictions and that one of
these prior convictions occurred within ten years of the instant offense. The
original habitual offender information alleged three prior unrelated habitual
vehicular substance offense convictions, but this did not require the State to
prove all three convictions.
[24] Even under the original information, the State could have established that
Wheeler was an habitual vehicular substance offender by proving any two of
the three alleged convictions, plus showing that one of these two convictions
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occurred within ten years before the date of the instant offense. Accordingly, by
permitting the State to eliminate one of the three alleged prior unrelated
offenses, the trial court did not deprive Wheeler of a defense, as his claimed
defense would have been futile even under the original habitual offender
information.
[25] We therefore find Wheeler’s citation to Nunley v. State, 995 N.E.2d 718 (Ind. Ct.
App. 2013), clarified on reh’g, 4 N.E.3d 669, to be unavailing. In that case, the
State alleged that the defendant was an habitual offender, and the original
habitual offender information listed two prior unrelated convictions to support
the habitual offender count: a conviction for theft and a conviction for
possession of cocaine. Id. at 722. After the trial had started, the State requested
leave to amend the habitual offender charge in order to remove the allegation
that Nunley had a prior unrelated conviction for possession of cocaine and
substitute an allegation that he had additional prior convictions for theft. The
trial court permitted the amendment, and Nunley appealed. On appeal, we held
that the trial court erred in allowing the amendment because it “drastically
changed” the defendant’s available defenses in that, under the original
information, the charged offenses would not have supported an habitual
offender finding. Id. at 723. In contrast, in the present case, even under the
original habitual offender information, the alleged prior convictions would have
sufficed to support an habitual vehicular substance offender finding. Removing
the second alleged conviction did not alter this fact.
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[26] The same is true for Wheeler’s citation to Gibbs v. State, 952 N.E.2d 214 (Ind.
Ct. App. 2011), trans. denied. In that case, the original information charged
Gibbs with an arson that damaged the apartments of his neighbors. The fire,
however, actually only damaged Gibbs’s own apartment. The trial court then
permitted the State to amend the information, after the jury had been
empaneled, to eliminate the reference to the neighbors’ property. On appeal, we
held that this amendment was one of substance because it deprived Gibbs of a
defense. Id. at 221. Here, however, Wheeler’s claimed defense was equally
unviable under the original information as it was under the amended
information.
[27] We therefore conclude that the amendment to the habitual vehicular substance
offender information was for an “immaterial defect,” which includes “the use of
alternative or disjunctive allegations as to the acts, means, intents, or results
charged.” I.C. § 35-34-1-5(a)(5). Because Wheeler has not shown that the
amendment prejudiced his substantial rights, the trial court did not err in
permitting the amendment to the information alleging that Wheeler was an
habitual vehicular substance offender. See Jones v. State, 766 N.E.2d 1258, 1262–
63 (Ind. Ct. App. 2002) (holding that defendant’s substantive rights were not
prejudiced by amendment to charging information that deleted one of two
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alternate bases for the defendant’s criminal liability), abrogated in part by Fajardo
v. State, 859 N.E.2d 1201 (Ind. 2007).3
II. Admission of Blood Test Evidence
[28] Wheeler also argues that the trial court abused its discretion when it admitted
into evidence the test results which were performed only shortly before trial. In
reviewing this claim, we first note that questions regarding the admission of
evidence are entrusted to the sound discretion of the trial court, and we review
such issues only for an abuse of that discretion. Bradley v. State, 770 N.E.2d 382,
385 (Ind. Ct. App. 2002), trans. denied. With regard to the exclusion of evidence
as a sanction for discovery violations, we have noted before:
Trial courts[] are given wide discretionary latitude in discovery
matters and their rulings will be given deference on appeal. The
trial court’s determination of violations and sanctions will be
affirmed absent clear error and resulting prejudice. The most
extreme sanction of [evidence] exclusion should not be employed
unless the . . . breach has been purposeful or intentional or unless
substantial and irreparable prejudice would result[.]
3
Jones was one of several cases that held that the issue of the propriety of a belated amendment to a charging
instrument should focus on whether the defendant’s substantial rights were prejudiced, and not whether the
challenged amendment was one of form or substance. See Fajardo v. State, 859 N.E.2d 1201, 1206 n.10 (Ind.
2007). Fajardo abrogated this rule and held that the key determination in late amendments to charging
instruments was whether the amendment was one of form (which was permissible) or substance (which was
not). See id. at 1206–07. Our General Assembly quickly responded to Fajardo by amending Section 5, effective
May 8, 2007, to reflect the pre-Fajardo law, i.e., amendments of substance are permitted any time before trial
so long as the defendant’s rights are not prejudiced. Shaw v. State, 82 N.E.3d 886, 891 (Ind. Ct. App. 2017)
(citing Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008)), reh’g denied. Thus, although Fajardo abrogated
Jones, Fajardo itself was later abrogated, returning the law to its pre-Fajardo state, and we perceive no
impediment to citing Jones.
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Id. at 386–87 (citations and internal quotations omitted).
[29] Wheeler claims that the trial court committed reversible error by admitting the
test results of the vial of blood that was tested only two days before the start of
the trial. We are unable to agree.
[30] First, there is no indication that the delay in testing the second vial was in any
way deliberate. The Friday before Wheeler’s trial, the Indiana State
Department of Toxicology called the prosecuting attorney to alert her about the
labeling mistake. The overlooked vial was tested the following Monday, and
the results were almost immediately disclosed to the defense. Although Wheeler
takes the trial court to task for denying his unopposed request for a
continuance, we note that the trial judge recessed the trial for the remainder of
the day and permitted Wheeler’s counsel to depose the State’s witnesses
regarding the belatedly disclosed evidence.4 Thus, the trial court effectively
granted a brief continuance. Wheeler does not explain how this short recess or
continuance was inadequate or how a longer continuance would have assisted
his defense.
[31] Moreover, even if we assume that the trial court abused its discretion in the
admission of this belatedly disclosed evidence, Wheeler would not prevail. It is
well established that we will not reverse a conviction due to evidentiary error
unless this error affects the substantial rights of the defendant. Teague v. State,
4
The trial court also ordered the State to pay the costs of the depositions.
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978 N.E.2d 1183, 1188 (Ind. Ct. App. 2012). An error is harmless if there is
substantial independent evidence of guilt and we are satisfied that there is no
substantial likelihood the challenged evidence contributed to the conviction. Id.
at 1189. If the erroneously admitted evidence was merely cumulative, its
admission is harmless error. Id.[32] Here, the admission of the test results of the belatedly tested vial was merely
cumulative of other evidence to which Wheeler made no objection. Indeed,
Mach testified that the test of Wheeler’s blood serum performed at the hospital
on the night of the accident indicated that Wheeler had a blood alcohol
concentration of 0.215. And Anderson testified that her testing of the timely
tested vial of blood indicated a blood alcohol concentration of 0.184.5 See Tr. p.
155. The evidence regarding the belatedly tested vial of blood was therefore
merely cumulative of the other blood tests. Because it was cumulative, we are
satisfied that there was no substantial likelihood the belatedly tested vial
contributed to the conviction. Accordingly, the admission of these results was at
most harmless error. See Teague, 978 N.E.2d at 1188.
III. Appropriateness of Wheeler’s Sentence
[33] Wheeler also argues that the sentence imposed by the trial court, an aggregate
sentence of five and one-half years executed and one year suspended to
5
Anderson also testified, without apparent objection, that her testing of the belatedly tested vial indicated a
blood alcohol concentration of 0.179. When Anderson’s toxicology report was admitted into evidence,
Wheeler’s counsel made no contemporaneous objection, but the trial court indicated that the report was
admitted “over counsel’s objection.” Tr. p. 156. The State, however, does not argue that Wheeler waived his
claim of evidentiary error by failing to object. So we address Wheeler’s claim on its merits.
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probation, is inappropriate in light of the nature of Wheeler’s offense and
Wheeler’s character.
[34] Indiana Appellate Rule 7(B) provides that 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.” Still, we must exercise deference to a trial
court’s sentencing decision, because Rule 7(B) requires us to give due
consideration to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions. Id. Thus,
although we have the power to review and revise sentences, the principal role of
appellate review should be to attempt to “leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
[35] Our review under Rule 7(B) should focus on “the forest—the aggregate
sentence—rather than the trees—consecutive or concurrent, number of counts,
or length of the sentence on any individual count.” Id. The appropriate question
is not whether another sentence is more appropriate; rather, the question is
whether the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055,
1063 (Ind. Ct. App. 2015). It is the defendant’s burden on appeal to persuade us
that the sentence imposed by the trial court is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)).
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[36] Here, Wheeler was convicted of a Class A misdemeanor and determined to be
an habitual vehicular substance offender. If a person is convicted of a Class A
misdemeanor, the trial court may sentence him to up to one year in prison. Ind.
Code § 35-50-3-2. If a person is determined to be an habitual vehicular
substance offender, the trial court may add an additional sentence of one to
eight years. I.C. § 9-30-15.5-2(d). Thus, Wheeler was facing a sentence of two to
nine years of incarceration, and the trial court sentenced him to an executed
term of five and one-half years and one year suspended to probation.
[37] The nature of Wheeler’s offense does little to convince us that this sentence is
inappropriate. He drove his vehicle while intoxicated and ran into a well-
marked accident scene, hitting a police officer and two vehicles. If not for the
quick response of Deputy Keltner and Deputy Naugle, their injuries could have
been more severe. Indeed, Wheeler is extremely fortunate that no one was
killed. Wheeler’s behavior immediately after the accident was belligerent and
disrespectful. Instead of checking to see if anyone was injured, he cursed at the
deputy and threatened to sue him.
[38] The trial court’s sentence is also supported by Wheeler’s character, as revealed
by his criminal history. In 2004, Wheeler was convicted of an unknown Class C
misdemeanor and sentenced to probation which included alcohol and drug
treatment. In 2006, he was convicted of Class D felony possession of marijuana,
Class C misdemeanor operating a vehicle while intoxicated with a blood
alcohol concentration of 0.08, and Class A misdemeanor operating a vehicle
with an alcohol concentration equivalent of 0.15. And again in 2010, Wheeler
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was convicted of Class D felony operating a vehicle while intoxicated with a
prior conviction and Class A misdemeanor intimidation. The incident that led
to the 2010 conviction bore a similarity to the instant offense in that Wheeler
threatened to “beat up” the arresting officer and make him lose his job. See
Appellant’s App. Vol. 3, p. 120. Wheeler was also arrested in 2011 for
operating a vehicle while intoxicated, but this charge was dismissed as part of a
plea agreement in another case. Additionally, at the time of sentencing,
Wheeler had a pending charge of Class B misdemeanor leaving the scene of an
accident.
[39] Nothing about Wheeler’s character persuades us that his sentence is
inappropriate. Indeed, it is apparent that prior attempts at leniency have failed
to dissuade Wheeler from driving while intoxicated. Simply put, Wheeler is a
recidivist drunk driver whose behavior has been undeterred by his prior contacts
with the criminal justice system, and his prior convictions, as they relate to the
current offense, reflect very poorly on his character. See Wooley v. State, 716
N.E.2d 919, 929 n.4 (Ind. 1999) (noting that a prior conviction for operating
while intoxicated would be a significant aggravator in a subsequent alcohol-
related offense). In short, Wheeler’s sentence is not inappropriate.
Conclusion
[40] The trial court did not err in permitting the State to amend the information
alleging that Wheeler was an habitual vehicular substance offender, nor did the
trial court err in admitting into evidence the results of the tests on the belatedly
tested vial of Wheeler’s blood. Lastly, Wheeler’s sentence is not inappropriate.
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[41] Affirmed.
Najam, J., and Barnes, J., concur.
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