MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 9:53 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Conley, August 12, 2016
Appellant-Defendant, Court of Appeals Case No.
79A02-1512-CR-2342
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1508-F5-45
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 operating a motor vehicle while privileges 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 privileges 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 Procedural 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. Around 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 working on what was later identified as
Dexter’s motorcycle in the friend’s driveway. When Lock realized that Conley
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was unable to start the motorcycle, he offered to help. Conley accepted Lock’s
assistance and told Lock that the motorcycle belonged to his father. Around
1:00 p.m. that day, Conley was driving Dexter’s motorcycle when it broke
down on I-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 was 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 over his radio, Conley asked
O’Connor to “take him away from there to get him out of there because the
bike was hot – was stolen.” Id. at 138. O’Connor told Conley that he “didn’t
want to be involved” and that he could not give him a ride. Id.
[4] After Matlock successfully jumpstarted the motorcycle, Conley drove away on
it. O’Connor immediately called the police to report Conley’s statement that
the motorcycle was stolen. Then, as O’Connor exited I-65 a little while later,
he saw Conley pushing the motorcycle into the parking lot of a gas station.
O’Connor again called the police to report his observation.
[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.
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O’Connor to obtain a description of Conley. Trooper Smith and another officer
subsequently located Conley behind a liquor store on the side of a nearby hotel.
[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 earlier, that it had broken down on the interstate, and that he took off after
a guy jumpstarted 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 “runner bikes” for the Outlaw motorcycle gang
approximately eighteen months prior. Tr. at 236. In his statements to police,
Conley indicated that as a runner, he transported drugs for the gang.
[7] The State charged Conley with level 5 felony operating a motor vehicle 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
Outlaw motorcycle gang arguing that the statements constituted improper
character evidence 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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more general references to gang involvement were relevant and admissible to
show Conley’s motive and/or plan for stealing Dexter’s motorcycle.
[8] A jury trial was subsequently held on the auto theft count. Conley renewed his
objection to the admissibility of his statements referencing gang 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 court 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 level 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, resulting 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
evidence 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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2016). An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts and circumstances and the error affects a party’s
substantial rights. Id. We do not reweigh the evidence, and we consider only
the evidence that is either favorable to the ruling or unrefuted evidence
favorable to the defendant. Id.
[11] During trial, the State moved to admit two redacted statements 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. Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013). However, the
trial court overruled Conley’s objection 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 evidence of his motive or plan
in stealing Dexter’s motorcycle. See Ind. Evidence Rule 404(b)(2) (permitting
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
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prior bad acts is relevant to a matter at issue other than the defendant’s
propensity to commit the charged acts. Bishop v. State, 40 N.E.3d 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 its
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 evidence of Conley’s gang activity was highly relevant to a matter at
issue 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 the 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 its 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 murder 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).
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Section 2 – Conley has not met his burden to demonstrate that
his sentence is inappropriate.
[13] Conley next claims that 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. 2006). 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 on 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). The sentencing range for a level 6
felony is between six months and two and one-half years, with an advisory
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sentence of one year. Ind. Code § 35-50-2-7. The sentencing range for the
habitual offender enhancement of a level 6 felony is between two and six years.
Ind. Code § 35-50-2-8. 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 year 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 offenses on different days, and he does not
claim that his crimes arose out of the same “episode of criminal conduct” as
contemplated by Indiana Code Section 35-50-1-2. 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 for 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 § 35-50-1-2.
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aggravating circumstances that Conley does not challenge. He has not shown
that the nature of his offenses warrants sentence revision.
[16] As for Conley’s character, he concedes that he has an extensive criminal history
spanning more than twenty years. While 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 pretrial release on
different 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 probation revoked six times. The record further 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 quite poorly on Conley’s
character and is a strong indication 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 affirm his convictions and sentence.
[17] Affirmed.
Kirsch, J., and May, J., concur.
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