FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

ERIC SALTZMANN    STEPHEN CARTER
Anderson, Indiana    Attorney General of Indiana
            
     RICHARD C. WEBSTER    
    Deputy Attorney General
    Indianapolis, Indiana

KURTIS R. HALL,         )
    )
    Appellant-Defendant,     )
                             )
          vs.                )    No. 48A02-0105-CR-285
                             )
STATE OF INDIANA,            )
                             )
    Appellee-Plaintiff.      )

Whether the trial court violated Hall’s right to due process when refusing an instruction on receiving stolen property; and

Whether the trial court improperly sentenced Hall in reliance upon Hall’s habitual offender status as a sentencing aggravator.

Indiana Rule of Evidence 609(b) provides:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

The party seeking to overcome the Rule 609(b) presumption of exclusion must support its probative value argument with specific facts and circumstances upon which the trial court may base a finding of admissibility. Dowdy v. State, 672 N.E.2d 948, 951 (Ind. Ct. App. 1996). In Scalissi v. State, 759 N.E.2d 618 (Ind. 2001), the Indiana Supreme Court discussed the State’s use of impeachment evidence in light of Evid. R. 609(b):
Rule 609(b), unlike Rule 403, is a rule that presumes the exclusion of convictions more than ten years old. … As such, the party seeking to admit such convictions ‘must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.’ … In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record. We review this ruling under Rule 609(b) for an abuse of discretion. … The five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir. 1991), is instructive. The trial court is to consider the following five factors, but this list is not exclusive: ‘(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness’ subsequent history; (3) the similarity between the past crime and the charged crimes; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.’ . . . [W]hen the trial court has erroneously admitted evidence, we ‘disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.’ Ind. Trial Rule 61. We have interpreted this to mean that if, in light of all the evidence in the case, the error has had an insubstantial impact on the jury, the error did not affect the substantial rights of the parties.

Id. at 624-25.
Here, the record does not support Hall’s assertion that the trial court failed to engage in the requisite balancing test. Rather, the trial court acknowledged the requirement of balancing the relevant factors, and indicated that it had considered both the arguments of the State and the defense with regard to those factors. The trial court concluded, in essence, that the series of Choate’s crimes of dishonesty, including a recent conviction, demonstrated that Choate had engaged in a pattern of conduct probative of his credibility. We find no abuse of discretion in the trial court’s admission of impeachment evidence.

Subsection (8)(e) provides:
When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.

In light of his noncompliance with Appellate Rule 46(A)(8), Hall waived his argument that he was denied due process in the trial court’s refusal of his instruction. Moreover, waiver notwithstanding, we are unaware of any authority requiring that the trial court provide a sua sponte written or oral analysis of the reasons for refusal of an instruction to comport with the requirements of procedural due process. See footnote Hall has demonstrated no reversible error.

(Appendix 121.) Hall’s instant sentence was not aggravated solely because of the prior convictions supporting the habitual offender determination. He had a history of convictions independent of those predicate felonies. See footnote Moreover, the trial court properly considered the circumstance that Hall committed the instant offenses while on parole or probation.See footnote Johnson v. State, 725 N.E.2d 864, 868 (Ind. 2000). Inasmuch as Hall’s sentence enhancement is supported by valid aggravating circumstances independent of his status as a habitual offender, resentencing is not required.