Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018 Page 1 of 23

ATTORNEY FOR APPELLANT

Jonathan A. Leachman

Fifer Law Office

New Albany, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Eric P. Wheeler,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 28, 2018

Court of Appeals Case No. 

88A05-1703-CR-541

Appeal from the Washington 

Circuit Court

The Honorable Larry W. Medlock, 

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 wellmarked 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 
Court of Appeals of Indiana | Opinion 88A05-1703-CR-541 | February 28, 2018 Page 22 of 23

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 alcoholrelated 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.