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Wise v. State

Court of Appeals of Indiana

February 13, 2015

David Wise, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 138

Appeal from the Marion Superior Court. The Honorable Kurt Eisgruber. 49G01-1108-FB-59703.

ATTORNEY FOR APPELLANT: Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana.

Bailey, Judge. Robb, J., and Brown, J., concur.

OPINION

Page 139

Bailey, Judge.

Case Summary

[¶ 1] David Wise (" Wise" ) was convicted of one count of Rape,[1] and five counts of Criminal Deviate Conduct,[2] all as Class B felonies. He now appeals.

[¶ 2] We affirm.

Issues

[¶ 3] Wise raises two issues for our review. We restate these as:

I. Whether the trial court abused its discretion when it admitted into evidence handheld camera recordings of videos from a cellular phone; and
II. Whether the trial court abused its discretion when, under Evidence Rule 412, it did not compel certain testimony from Wise's ex-wife.

Facts and Procedural History

[¶ 4] Wise and M.B. were married in 1998. The couple lived together until March 2009.

[¶ 5] At some point in 2005 or 2006, M.B. obtained a prescription for Xanax as treatment for anxiety problems. Because the medication made her extremely drowsy, M.B. ceased her use of the medication soon after filling the prescription.

[¶ 6] Also during 2005, Wise and M.B. were experiencing difficulties in their marriage. M.B. routinely drank canned soda, and sometime in 2006, Wise began attempting to sneak Xanax into M.B.'s drinks. M.B. detected this on several occasions and confronted Wise about it.

[¶ 7] Over time, M.B. became suspicious of Wise. One day in October 2008, Wise left his cellular phone at home, and M.B. discovered it. She accessed the phone and found three videos on it. One video depicted Wise having sexual intercourse with M.B.; two videos depicted Wise attempting to engage in oral sex with M.B. M.B. had no recall of these incidents.

[¶ 8] Not knowing how to retain videos directly from the phone, M.B. played the videos on Wise's phone and recorded the

Page 140

playback with a second handheld camcorder. She also changed the filenames of the cellular phone's videos, replacing the date-stamp filenames with phrases she chose so that Wise would know she had seen the recordings. M.B. subsequently informed Wise that she had found the videos.

[¶ 9] The couple eventually divorced, and correspondence leading up to the divorce between Wise and M.B. included acknowledgements by Wise of " drugging you to take advantage of you out of desperation" (Ex. 4 at 9), and " taking advantage of you in your sleep" but that " all I thought of was that next fix of sex." (Ex. 3 at 6.) Wise had also admitted to this behavior to a friend, Melissa Miller (" Miller" ).

[¶ 10] On May 6, 2011, M.B. contacted the Indianapolis Metropolitan Police Department to report Wise's conduct.[3] After an investigation, Wise was arrested.

[¶ 11] On August 24, 2011, Wise was charged with one count of Rape and five counts of Criminal Deviate Conduct.

[¶ 12] During the pretrial proceedings, M.B. was deposed. During the deposition, Wise sought to obtain testimony from M.B. concerning extramarital relationships, with the claimed purpose of raising questions as to the identity of the individual depicted in the video recordings. The State objected, and Wise moved the trial court to compel M.B.'s testimony on the purported affairs. The trial court denied Wise's motion.

[¶ 13] Also during the pretrial proceedings, Wise sought an order in limine that would preclude from admission into evidence the video recordings. Wise claimed that the recordings did not satisfy the requirements of the " silent witness" theory, that the recordings could not be properly authenticated, and that admission of the recordings would violate his right to confrontation under the Sixth Amendment to the United States Constitution. The trial court denied Wise's motion.

[¶ 14] A jury trial was conducted on April 28 and 29, 2014. During the trial, Wise timely objected to the admission of the video recordings, and sought to introduce evidence concerning M.B.'s purported extramarital affairs. The trial court admitted the videos into evidence, and did not permit Wise to introduce evidence concerning the ...


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