### 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.
A TTORNEY FOR A PPELLANT Timothy P. Broden Lafayette, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller A ttorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Mark Conley , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff August 12, 2016 Court of Appeals Ca se No. 79A02

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- 2342 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Co urt Cause No. 79D02

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Crone , Judge .

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### Case Summary
[1] Mark Conley appeals his convictions and sentence for level 6 felony auto theft and level 6 felony operatin g a motor vehicle while privil eges are suspended as a habitual traffic violator (“HTV”)

. The trial court also found Conley to be a habitual offender. The trial court sentenced Conley to consecutive terms of two and one

- half years for auto theft, enhanced by five years based upon the habitual offender finding, and two and one

- half years for operating a motor vehicle while pr ivileges are suspended as an HTV , for an aggregate sentence of ten years. On appeal, Conley argues that the trial court abused its discretion in admitting certain evidence at trial. He also asserts that his sentence is inappropriate in light of the nature of his offenses and his character. Finding no abuse of discretion and that he has not met his burden to demonstrate that his sentence is inappropriate, we affirm. 

### Facts and Proced ural History
[2] On Thursday, August 6, 2015, Michael Dexter parked his 1975 Harley Davidson FXC motorcycle in his driveway on Schuyler Avenue in Tippecanoe County . A round 7:30 the next morning, Dexter discovered that his motorcycle was gone , and he contacted the police to report it stolen

. That Sunday, Dexter could hear his motorcycle being driven somewhere through his neighborhood.

[3] Around noon on Monday, August 10, 2015, Matthew Lock was walking by a friend’s house when he saw Conley w orking on what was l ater identified as Dexter’s motorcycle in the friend’s driveway . When Lock realized that Conley

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- 65. Adam O’Connor pulled over to offer assistance. Indiana Department of Transportation employee Danny Matlock also stopped to assist Conley. 1 Conley told the men that he w as having “some mechanical issues” with the motorcycle and that the battery was dead. Tr. at 80. When Matlock gave the license plate number of the motorcycle ove r his radio, Conley asked O’Connor t o “take him away from there to get him out of there becau se the bike was hot

– was stolen.” Id. at 138. O’Connor told Conley that h e “didn’t want to be involved” and that he could not give him a ride. Id

.
[4] After Matlock successfully jump started the motorcycle, Conley drove away on it. O’Connor immediately cal led the police to report Conley’s statement that the motorcycle wa s stolen. Then, as O’Connor ex ited I

- 65 a little while later, he saw Conley pushing the motorcycle int o the parking lot of a gas station. O’Connor again called the police to report his obs ervation.

[5] Indiana State Police Trooper Andrew Smith responded to the gas station and found the motorcycle unattended near the air pumps. He confirmed through dispatch that the motorcycle had been reported stolen and then spoke to

1 Specifically, Matlock worked for the “Traffic Management Division, Hoosier [H]elpers.” Tr. at 78. One of his job duties was to respond to emergencies on the interstate. Court of Appeals of Indiana | Memorandum Decision 79A02

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[6] The motorcycle was towed and examined for fingerprints. Conley’s fingerprint was found on the motorcycle’s air breather cover. Conley was transported to the police station and was interviewed on two separate occasions. In one interview, Conley initially claimed that he had been drinking beer and hitchhiking, but that he did not know anything about a motorcycle. However, he eventually admitted to being a “runner” for the Outlaw motorcycle gang and that he had been stealing motorcycles for the gang on a daily basis. Id . at 7; State’s Ex. 13. Conley admitted that he had stolen Dexter’s motorcycle a few days earlie r, that it had broken down on the interstate, and that he took off afte r a guy jump started it for him. In a second interview, Conley admitted to stealing Dexter’s motorcycle from a driveway on Schuyler Avenue. He stated that he had started stealing “runn er bikes” for the Outlaw motorcycle gang approx imately eighteen months prior. Tr. at 236. In his statements to police, Conley ind icated that as a runner, he transported drugs for the gang.

[7] The State charged Conley with level 5 felony operating a motor ve hicle while privileges are forfeited for life and level 6 felony auto theft. The State also alleged that Conley was a habitual offender. Prior to trial, Conley filed a motion to suppress his statements to police referencing his involvement with the Outla w motorcycle gang arguing that the statements constituted improper character ev idence pursuant to Indiana Evidence Rule 404(b)(1). The trial court ruled that any references to drug activity would be redacted but that the
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[8] A jury trial was subsequently held on the auto t heft count. Conley renewed his objection to the admissibility of his statements referencing gan g involvement, but the trial court overruled his objection. The jury found Conley guilty as charged. Conley then waived his right to a jury trial on the remaining charges and, following a bench trial, the trial court found Conley guilty of level 5 felony operating a vehicle while privileges are forfeited for life. The trial co urt also found Conley to be a habitual offender.

[9] During sentencing, the trial court reduced Conley’s level 5 felony conviction to a conviction for the lesser included offense of lev el 6 felony driving while privileges are suspended as an HTV . The court sentenced Conley to consecutive terms of two and one

- half years for each level 6 felony, with the auto theft count enhanced by five years based upon the habitual offender finding, res ulting in an aggregate sentence of ten years. This appeal ensued. 

### Discussion and Decision Section 1

– The trial court did not abuse its discretion in admitting evidence regarding Conley’s gang involvement . [10] Conley first asserts that the trial court abused its discretion in admitting evid ence regarding his gang involvement

. The trial court is afforded wide discretion in ruling on the admissibility of evidence, and we review its ruling only for an abuse of discretion. Beasley v. State , 46 N.E.3d 1232, 1235 (Ind.

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.
[11] During trial, the State moved to admit two redacted st atements that Conley made to police wherein he referenced the fact that he stole motorcycles for the Outlaw motorcycle gang . Conley objected to the evidence as inadmissible pursuant to Indiana Evidence Rule 404(b)(1), which provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” The rationale behind Rule 404(b) is that the jury is precluded from making the “ forbidden inference ” that prior wrongful conduct suggests present guilt. Hal l iburton v. State , 1 N.E.3d 670, 681 (Ind. 2013). However, the trial court overruled Conley’s obj ection and accepted the State’s reasoning that testimony regarding Conley’s involvement in gang activity was admissible pursuant to Indiana Evidence Rule 404(b)(2) as eviden ce of his motive or plan in stealing Dexter’s motorcycle. See Ind. Evidence Rule 4 04(b)(2) (permittin g the introduction of evidence of other crimes, wrongs, or other acts for purposes such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”).

[12] In determining whether the trial court abused its discretion regarding the admissibility of 404(b) evidence, we must determine whether the evidence of Court of Appeals of Indiana | Memorandum Decision 79A02

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. Bishop v. State , 40 N. E.3 d 935, 951 (Ind. Ct. App. 2015 ), trans. denied

. Second, we must balance the probative value of such evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Id ; see Ind. Evidence Rule 403 (relevant evidence may be excluded “if it s probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”) Here, as argued by the State and accepted by the trial court, the eviden ce of Conley’ s gang activity was highly relevant to a matt er at i ssue other than his alleged bad character

. Indeed, Conley’s gang activity was directly relevant to his motive for stealing Dexter’s motorcycle. “Evidence of motive is always relevant in th e proof of a crime.” Wilson v. State , 765 N.E.2d 1265, 1270 (Ind. 2002). 2 Conley does not argue in his appellate brief that the unfair prejudicial impact of the evidence substantially outweighed i ts probative value , and we do not think that it did based upon the high relevance of the evidence. Accordingly, the trial court did not abuse its discretion in admitting the evidence.

2 Although auto theft is not a crime of violence , we note that evidence of gang affiliation is routinely admitted as proof of motive to commit an alleged violent crime. See, e.g., Williams v. State , 690 N.E.2d 162, 173 (Ind. 1997) (conspiracy to commit mur der and murder); Burgett v. State , 758 N.E.2d 571, 579

- 80 (Ind. Ct. App. 2001) (attempted murder) , trans. denied (2002) ; Cadiz v. State , 683 N.E.2d 597, 599

- 600 (Ind. Ct. App. 1997) (attempted murder). Court of Appeals of Indiana | Memorandum Decision 79A02

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### Section 2

– Conley has not met his burden to demonstrate that his sentence is inappropriate.
[13] Conley next claims tha t his sentence is inappropriate and invites this Court to reduce his sentence pursuant to Indiana Appellate Rule 7(B) which provides that we may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, we find that the sentence “is inappropriate in light of the nature of the offense and the character of the offender.” The defendant bears the burden to persuade this Court that his or her sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 200 6). Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court’s judgment “should receive considerable deference.” Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008)

. The principal role of appellate review is to attempt to “leaven the outliers.” Id

. at 1225. Appellate review “should focus on the forest

— the aggregate
sentence

— rather than the trees

— consecutive or concurrent, number of counts, or length of the sentence o n any individual count.” Id. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id . at 1224.

[14] Regarding the nature of the offenses, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State , 9 N.E.3d 653, 657 (Ind. 2014). Th e sentencing range for a level 6 felony is between six months and two and one

- half years, with an advisory

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- 7. The sentencing range for the habitual offender enhancement of a level 6 felony is between two and six years. Ind. Code § 35

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- 8. Conley received consecutive two and one

- half year sentences for his two convictions, with a five

- year habitual offender sentence enhancement on his auto theft conviction.

[15] Conley makes no argument that the individual two and one

- half ye ar sentences for his level 6 felonies are inappropriate in light of the nature of those offenses. Instead , he complains that those sentences should be concurrent rather than consecutive because his crimes of auto theft and operating a motor vehicle while privileges are suspended as an HTV were “intertwined.” Appellant’s Br. at 8. We are not persuaded that consecutive sentences are unwarranted. Conley committed two separate offense s on different days , and he does not claim that his crimes arose out of th e same “episode of criminal conduct” as contemplated by Indiana Code Section 35

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- 2. 3 He committed auto theft on August 6, 2015, and he committed operating a motor vehicle while privileges are suspended as an HTV , likely repeatedly, over the next several days culminating in his arrest on August 10, 2015. It was proper for the trial court to impose consecutive sentences for separate statutory offenses. Zachary v. State , 469 N.E.2d 744, 749 (Ind. 1984). Moreover, the trial court found numerous

3 That section provides that the aggregate sentence fo r conduct constituting a single episode of criminal conduct, except in situations involving “crimes of violence,” may not exceed the advisory sentence for the class of felony that is one level higher than the most serious felony for which the defendant is convicted. See Ind. Code § 35

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- 2. Court of Appeals of Indiana | Memorandum Decision 79A02

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- 2342 | A u g u s t 1 2 , 2 0 1 6 Page 9 of 10agg ravating circumstances that Conley does not challenge. He has not shown that the nature of his offenses warrant s sentence revision.

[16] As for Conley’s character , he concedes that he has an extensive criminal history spanning more than twenty years. Wh ile he states that “some degree” of his criminal history “is embodied in the habitual offender enhancement,” he has numerous convictions that are wholly unrelated. Appellant’s Br. at 8

. At the time Conley committed the current offenses, he was on pre trial rele ase on diffe rent charges for the same felony offenses, as well as on three misdemeanor charges for resisting law enforcement, theft, and criminal trespass. Prior attempts at leniency and rehabilitation have proven unsuccessful , as Conley has had his proba tion revoked six times. The record fur ther shows that Conley has a long history of drug and alcohol abuse and has routinely failed to complete the treatment offered to him. All of this reflects qui te poorly on Conley’s character and is a strong indicatio n that he is both unwilling and unable to alter his criminal and self

- destructive behavior. Under the circumstances, Conley has not demonstrated that the ten

- year aggregate sentence imposed by the trial
court is inappropriate in light of the nature of his offenses or his character. Accordingly, we affi rm his convictions and sentence

.
[17] Affirmed.
Kirsch, J., and May, J., concur.

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