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

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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1632 | April 9, 2020 Page 1 of 15

[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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