Preview:

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.

FILED
May 28 2008, 11:31 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: L. ROSS ROWLAND Public Defender's Office Muncie, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TAMMY M. WADE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 18A02-0712-CR-1095

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Wayne J. Lennington, Judge Cause No. 18C05-0602-FC-1

May 28, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Tammy M. Wade appeals her conviction for Identity Deception, as a Class D felony, following a bench trial. She presents two issues for review, namely: 1. Whether the trial court abused its discretion when it excluded evidence of the relationship between Wade and the victim. Whether the trial court reached inconsistent judgments.

2.

We affirm. FACTS AND PROCEDURAL HISTORY From 1996 to 2005, Wade and Nicole N. Bernard (formerly Nicole N. Harris)1 were in a relationship. The couple lived and worked together and shared joint checking and savings accounts. In 2005, Bernard received a $1,500 charge card bill from Capitol One. Bernard stated that she had neither applied for the Capitol One card, nor had she made any charges. Bernard obtained a copy of the application, which was made using her name, address, birthdate, and social security number. However, the signature on the application was not Bernard's. When Bernard asked Wade about the bill, Wade acknowledged that she had applied for and used the card, but she stated that she had applied for the card in her own name and had listed Bernard as a secondary user. Bernard then ended her relationship with Wade and asked her to move out. In a later conversation, Wade again told Bernard that the card was in Wade's name. And later still, Wade told Bernard that she would pay Bernard back.

Nicole Harris married, becoming Nicole Bernard, sometime after the end of her relationship with Wade.

1

2

Bernard reported the unauthorized credit card application to the police, and the State charged Wade with one count of forgery, as a Class C felony, and one count of identity deception, as a Class D felony. At the conclusion of a bench trial on June 19, 2007, the court took the case under advisement. Later that day, the court found Wade not guilty of forgery but guilty of identity deception. On July 11, 2007, the court sentenced Wade to 18 months in the Indiana Department of Correction, suspended to probation; 90 days home detention as a condition of probation; and fines, costs, and restitution. On August 15, 2007, Wade filed a motion to correct error, which the trial court denied after a hearing. Wade now appeals. DISCUSSION AND DECISION Issue One: Exclusion of Evidence A trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Clark v. State, 804 N.E.2d 196, 198 (Ind. Ct. App. 2004). When reviewing a trial court's ruling on a motion to suppress, the appellate court will examine the evidence most favorable to the ruling, together with any uncontradicted evidence. State v. Joe, 693 N.E.2d 573, 57475 (Ind. Ct. App. 1998), trans. denied. That is, we will neither reweigh the evidence nor judge the credibility of witnesses. Clark, 804 N.E.2d at 198. But error may not be based on a ruling excluding evidence unless a substantial right of a party is affected and the substance of the excluded evidence "was made known to the court by a proper offer of proof, or was apparent from the context within which questions were asked." Ind. Evidence Rule 103(a)(2).
3

Wade contends that the trial court abused its discretion when it refused to allow Wade to testify about the nature of her break-up with Bernard. In particular, Wade argues that such testimony should have been admitted "`to fill in the background of the narrative and give it interest, color, and lifelikeness.'" Appellant's Brief at 8 (quoting McFarland v. State, 27 Ind. 105, 390 N.E.2d 989, 993 (1979) (quoting I McCormick

Download Tammy M. Wade v. State of Indiana.pdf

Indiana Law