Court of Appeals of Indiana | Memorandum Decision 18A02-1612-CR-2949 | July 27, 2017 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Alan K. Wilson

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marcus Ray Wilson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 27, 2017

Court of Appeals Case No.

18A02-1612-CR-2949

Appeal from the Delaware Circuit 

Court

The Honorable Linda Ralu Wolf, 

Judge

Trial Court Cause No.

18C03-1005-FB-13

Altice, Judge.

Case Summary
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[1] Marcus Wilson appeals following his convictions for Class B felony criminal 

deviate conduct and Class D felony criminal confinement. He raises the 

following issues on appeal:

1. Did the trial court abuse its discretion in excluding opinion 

evidence concerning the victim’s possible intoxication?

2. Is Wilson’s fourteen-year sentence inappropriate?

[2] We affirm.

Facts & Procedural History

[3] On November 28, 2009, Nigel Butterfield ran into his friend, Wilson. Nigel 

invited Wilson over for a drink, and the two went to the home Nigel shared 

with his wife, J.B., and their two-year-old daughter. J.B. did not know Wilson 

and asked Nigel to make him leave because she did not want strangers in their 

house and around their sleeping daughter. Nigel ignored J.B.’s requests, and 

Nigel, J.B., and Wilson all stayed up until the early morning hours drinking 

and listening to music. 

[4] Nigel eventually passed out in the living room and J.B. said that she should go 

to bed, but Wilson did not leave. Wilson asked J.B. to come into the kitchen 

because he wanted to tell her something about Nigel, and when she did so, 

Wilson slammed her up against the kitchen counter and put his hand over her 

mouth. Wilson then forced J.B. into the bathroom, where he pushed her to the 

floor and began to strangle her. Wilson threatened to kill J.B. if she screamed, 
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and he told her that she would be fine if she just did what he said. Wilson then 

dropped his pants and exposed his penis. J.B. begged him not to rape her, and 

he forced her to perform oral sex on him until he ejaculated in her mouth. He 

then ordered her to swallow his semen. Before leaving the apartment, Wilson 

told J.B. to go ahead and call the police because he deserved it. J.B. waited 

until she thought Wilson was gone, then checked on her daughter before 

running to a neighbor’s house and calling 911. Wilson was apprehended a 

short time later. 

[5] As a result of these events, Wilson was charged with Class B felony criminal 

deviate conduct and Class D felony criminal confinement. A warrant for 

Wilson’s arrest was issued on May 19, 2010, but he was not arrested until 

February 2013. A jury trial commenced on November 21, 2016, at the 

conclusion of which Wilson was found guilty as charged. On December 19, 

2016, Wilson was sentenced to concurrent terms of fourteen years for criminal 

deviate conduct and two years for criminal confinement, resulting in an 

aggregate sentence of fourteen years executed in the Department of Correction. 

Wilson now appeals.

Discussion & Decision

1. Exclusion of Opinion Testimony

[6] Wilson first argues that the trial court abused its discretion when it did not 

permit him to question the 911 operator concerning his opinion on whether J.B. 

sounded intoxicated during the 911 call. Trial courts are afforded wide 
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discretion in ruling on the admissibility of evidence, and our review of such 

decisions is limited to determining whether the court abused that discretion. 

Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion 

occurs when the trial court’s decision is clearly against the logic and effect of 

the facts and circumstances before it. Id. Moreover, even if a trial court abuses 

its discretion in admitting or excluding evidence, we will not reverse if the error 

is harmless. Bell v. State, 29 N.E.3d 137, 143 (Ind. Ct. App. 2015), trans. denied. 

“An error will be deemed harmless if its probable impact on the jury, in light of 

all of the evidence in the case, is sufficiently minor so as not to affect the 

substantial rights of the parties.” Id. “[B]efore a federal constitutional error 

may be held harmless, the court must be able to declare a belief that it was 

harmless beyond a reasonable doubt.” Hall v. State, 36 N.E.3d 459, 467 (Ind. 

2015) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

[7] At trial, Wilson asked the 911 operator whether he believed J.B. sounded 

intoxicated. The State objected, arguing Wilson had not established that the 

witness was qualified to give an opinion on that subject. The trial court 

sustained the objection, noting that the jury had heard the recorded 911 call and 

could make its own determination as to whether J.B. sounded intoxicated. 

Wilson did not make an offer of proof. On appeal, Wilson argues that the 911 

operator’s opinion was admissible under Ind. Evidence Rule 701 and that the 

exclusion of such testimony violated Wilson’s constitutional right to confront 

and cross-examine witnesses. 
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[8] Wilson has waived these arguments by failing to make an offer of proof 

concerning the 911 operator’s opinion as to whether J.B. sounded intoxicated. 

See Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (noting that an 

offer of proof is required to preserve an error predicated upon the exclusion of a 

witness’s testimony), trans. denied. Waiver notwithstanding, and assuming 

arguendo that the testimony at issue was improperly excluded, any resulting 

error was harmless beyond a reasonable doubt. J.B. admitted that she had been 

drinking that night, and the members of the jury listened to J.B.’s recorded 911 

call and were therefore able to judge for themselves whether J.B. sounded 

intoxicated and decide what, if any, impact that had on their assessment of her 

credibility. We have little difficulty concluding that hearing the 911 operator’s 

opinions on the subject of J.B.’s intoxication would have made no appreciable 

impact on the jury. Accordingly, Wilson has not established reversible error on 

this basis.

2. Sentencing

[9] Wilson also argues that his fourteen-year sentence is inappropriate in light of 

the nature of the offense and his character. Article 7, section 4 of the Indiana 

Constitution grants our Supreme Court the power to review and revise criminal 

sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 

S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court 

authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 

1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if after 

due consideration of the trial court’s decision, the Court finds that the sentence 
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is inappropriate in light of the nature of the offense and the character of the 

offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). 

“Sentencing review under Appellate Rule 7(B) is very deferential to the trial 

court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference 

should prevail unless overcome by compelling evidence portraying in a positive 

light the nature of the offense (such as accompanied by restraint, regard, and 

lack of brutality) and the defendant’s character (such as substantial virtuous 

traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 

111, 122 (Ind. 2015). 

[10] The determination of whether we regard a sentence as inappropriate “turns on 

our sense of the culpability of the defendant, the severity of the crime, the 

damage done to others, and myriad other factors that come to light in a given 

case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895 

N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to 

leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is 

not our goal in this endeavor to achieve the perceived “correct” sentence in 

each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under 

Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, 

the question is whether the sentence imposed is inappropriate.” King v. State, 

894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). 

[11] In order to assess the appropriateness of a sentence, we first look to the 

statutory range established for the classification of the relevant offense. Wilson 

committed a Class B felony and a Class D felony. The sentencing range for a 
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Class B felony is six to twenty years, with an advisory sentence of ten years. 

Ind. Code § 35-50-2-5. The sentencing range for a Class D felony is six months 

to three years, with an advisory sentence of one and a half years. I.C. § 35-50-2-

7. Wilson was sentenced to concurrent terms of fourteen years executed for 

Class B felony criminal deviate conduct and two years for Class D felony 

criminal confinement. Thus, on both counts, he received a sentence greater 

than the advisory, but still well below the maximum.

[12] The nature of the offense does not support appellate revision of Wilson’s 

sentence. Wilson’s behavior in this case was predatory. He waited until Nigel 

passed out and then lured J.B. into the kitchen, where he violently assaulted her 

and forced her into the bathroom. Wilson pushed J.B. to the ground, strangled 

her, and threatened to kill her if she screamed or did not comply with his 

demands. Wilson then exposed himself and J.B. begged him not to rape her. 

Wilson then forced J.B. to perform oral sex on him while J.B.’s husband and 

daughter slept just a few rooms away and when he ejaculated, he ordered her to 

swallow his semen. Wilson’s assertion that he “simply committed the offense 

proscribed by statute, without doing anything that ‘aggravated’ the offense” is 

not supported by the record. Appellant’s Brief at 16. The trial court aptly 

described the facts of this case as “disturbing.” Appellant’s Appendix Vol. 3 at 80.

[13] Considering Wilson’s character, we note that he has a significant criminal 

history, including convictions for battery, public intoxication, criminal 

conversion, visiting a common nuisance, and theft. Additionally, a warrant 

was issued for Wilson’s arrest during the pendency of this case for failure to 
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appear, and his bond was revoked after he was arrested for committing a felony 

drug offense while on pretrial release. Wilson also admitted to frequently using 

methamphetamine and heroin while out on bond in this case. In sum, nothing 

about Wilson’s character persuades us that appellate revision of his sentence is 

warranted.

[14] Judgment affirmed.

[15] Kirsch, J. and Mathias, J., concur.