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,                     FILED
                                                           Jun 19 2012, 9:10 am
collateral estoppel, or the law of the
case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN                              GREGORY F. ZOELLER
Evansville, Indiana                              Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL PRIDDY,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 31A01-1110-CR-455
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )



                    APPEAL FROM THE HARRISON SUPERIOR COURT
                          The Honorable Roger D. Davis, Judge
                             Cause No. 31D01-1003-FB-189


                                       June 19, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       Michael Priddy appeals his convictions and sentence for eight counts of Class B

felony child molesting. We affirm.

                                           Issues

       Priddy raises two issues on appeal, which we restate as:

              I.     whether the trial court was required to sever the
                     charges; and

              II.    whether     his     seventy-five-year      sentence   is
                     inappropriate.

                                           Facts

       L.J. and K.J.’s family lived in Palmyra from June 2008 until the summer of 2009.

During this time period, L.J. was thirteen to fourteen years old, and K.J. was twelve to

thirteen years old. Several other adults lived with the family in Palmyra, including

Priddy. At this time Priddy was nineteen to twenty years old, unemployed, and receiving

Social Security disability payments for his learning disabilities.

       While in Palmyra, L.J.’s father, Robert James, Sr., forced her to have sexual

intercourse and oral sex with Priddy on multiple occasions. Priddy often paid James for

sex with L.J., and James often watched them have sex. L.J. believed that she had sex

with Priddy three to four times in her bedroom and over twenty times in the shed behind

her home, where Priddy often lived.




                                              2
      On one occasion James forced K.J. to have sex with Priddy in L.J.’s room. Priddy

was only able to insert his penis a short distance into her vagina because, as he stated,

K.J. was too “tight.” Tr. pp. 388-393.

      On September 29, 2009, L.J. informed her school principal of the abuse. L.J.,

K.J., and the other children were removed from their parents’ home. The two girls were

later interviewed by authorities. L.J. and K.J. are currently undergoing treatment for the

sexual, physical, and mental abuse they suffered.

      The State charged Priddy with thirteen counts of Class B felony child molesting.

Counts I through IV related to events involving K.J., and counts V through XIII related to

events involving L.J. Priddy moved to sever counts one through four involving K.J. from

the remaining counts involving L.J. The motion was discussed at a pretrial conference at

which time the State made clear its plans to dismiss counts two through four, leaving one

charge relating to K.J. The severance motion was again discussed at Priddy’s jury trial.

After the State’s dismissal of counts two through four, the charges were renumbered, and

the trial court denied Priddy’s severance motion. The jury found Priddy not guilty of two

counts and guilty of the remaining eight counts, including the one count involving K.J.

      Multiple sentencing hearings were held at which time Priddy testified about his

mental health issues and periods of hospitalization. Priddy testified he had attempted

suicide on numerous occasions. He testified that his mental health issues were less

severe while on medication, but while in jail awaiting trial, where he received his

medications regularly, he still was often reprimanded for unruly behavior.
                                            3
       The trial court found that Priddy’s young age and mental health were mitigating

circumstances but found that there was no connection between Priddy’s mental health

and his actions against L.J. and K.J. The trial court found his criminal history and the

nature of the offense to be aggravating circumstances. The trial court found the most

significant aggravating circumstances to be the multiple victims involved as well as the

frequency of the molestations.

       The trial court sentenced Priddy to fifteen years imprisonment for the one count

relating to K.J. and fifteen years each for the seven remaining counts relating to L.J. Four

of the counts relating to L.J. were to run consecutive to each other, and the three

remaining counts relating to L.J. were to run concurrently to the other sentences. In total

Priddy received an executed sentence of seventy-five years with no time suspended.

Priddy now appeals.

                                         Analysis

                                  I. Severance of Charges

       Priddy argues that the trial court erred in not severing the charge relating to K.J.

from the charges relating to L.J.     The State argues that Priddy waived any claims

regarding the denial of his severance motion by not appropriately renewing the motion at

trial. Indiana Code Section 35-34-1-12 provides “The right to severance of offenses or

separate trial is waived by failure to make the motion at the appropriate time.” Priddy

contends that the statute requires a renewal of the motion only if the motion for severance

had been denied prior to trial. We agree.
                                             4
       Priddy’s motion for severance is distinguishable from the motion in question in

Hobson. Hobson v. State, 495 N.E.2d 741, 744 (Ind. Ct. App. 1986). In Hobson the

pretrial motion for severance was made the morning of trial, was denied, and then

Hobson later failed to renew the motion during trial.           Priddy’s pretrial motion for

severance was made in advance of the trial and taken under advisement. Priddy’s motion

was denied immediately after the jury had been selected on the day of the trial. This

discussion at trial is more than sufficient to preserve the issue, and any other motion

following the conclusion of evidence would have been futile and unnecessary. Priddy did

not waive any claims regarding the severance motion.

       Indiana law provides:

                  Two or more offenses can be joined in the same
              indictment or information, with each offense stated in a
              different count, when the offenses:

              1)        are of the same or similar character, even if not part of
                        a single scheme or plan; or

              2)        are based on the same conduct or a series of acts
                        connected together or constituting parts of a single
                        scheme or plan.

Indiana Code Section 35-34-1-9(a). Priddy concedes that his offenses were of the same

or similar character.

       However, Priddy argues that his offenses were joined solely because of their same

or similar character, and therefore, he is entitled to severance as a matter of right. Indiana

Code Section 35-34-1-11(a) provides that “whenever two or more offenses have been

                                                5
joined for trial in the same indictment or information solely on the ground that they are of

the same or similar character, the defendant shall have a right of severance of the

offenses.” Severance is required as a matter of right if the sole reason for joinder is the

same or similar character of the offenses. The trial court has no discretion to deny a

defendant’s motion for severance in such a situation. Jackson v. State, 938 N.E.2d 29,

35-36 (Ind. Ct. App. 2010), trans. denied. The State contends that, beyond the same or

similar character of his acts, Priddy developed a continuing scheme that included a series

of connected acts.

        We find sufficient evidence to support the trial court’s denial of Priddy’s motion

for severance.1      Priddy’s offenses had more in common than the same or similar

character. The molestation of the two sisters was a distinctive, unusual scheme in that it

occurred in the same house, in the same bedroom, over the same period of time, and at

their father’s instigation. James abused L.J. when she refused to have sex with Priddy,

and Priddy took advantage of this fear with both L.J. and K.J. Priddy’s actions evidenced

a continued scheme with repeated acts occurring in the same location over the same

period of time, which is sufficient to allow joinder. See Philson v. State, 899 N.E.2d 14,

17 (Ind. Ct. App. 2008) (finding that charges related to sex acts committed upon siblings

in the same house over the same period of time did not have to be severed), trans. denied;



1
  The State relies on an inference that connects the payment provided to L.J. with the molestation of K.J.
Priddy gave money to L.J. who would later give the money to James, but we find insufficient evidence in
the record to support the State’s claim that the same payment activity occurred with Priddy and K.J. The
remaining facts in the record, however, are more than sufficient to support the trial court’s decision.
                                                    6
Blanchard v. State, 802 N.E.2d 14, 24 (Ind. Ct. App. 2004) (finding that charges

involving twins living in the same household did not have to be severed because of a

series of connected acts).

       Priddy alternatively argues that, even if he was not entitled to severance as a

matter of right, the trial court abused its discretion by refusing to grant his motion for

severance. Under the abuse of discretion standard, the trial court must determine whether

the severance is appropriate to promote a fair determination of defendant’s guilt or

innocence of each offense. Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App. 2003),

trans. denied. In making such a determination, Indiana Code Section 35-34-1-11(a)

mandates the trial court to consider: (1) the number of offenses charged; (2) the

complexity of the evidence to be offered; and (3) whether the trier of fact will be able to

distinguish the evidence and apply the law intelligently as to each offense.

       The number of charges in this case is not confusingly large. The State dismissed

three of the charges relating to K.J., which left only ten counts remaining. Furthermore,

the evidence presented at trial was not overly complex.         The evidence in the case

consisted largely of the girls’ testimony, which described Priddy’s molestation. The

girls’ testimony was easy to distinguish and separately described each girl’s independent

experiences. The jury also acquitted Priddy on two of the charges relating to L.J. This

shows that the jury was able to adequately distinguish between the evidence regarding

each count. See Philson, 899 N.E.2d at 18.


                                             7
       Although Priddy did not waive his claims on the issue, he was not entitled to

severance as a matter of right. The trial court also did not abuse its discretion in its denial

of Priddy’s motion for severance.

                                      II. Appropriateness

       Priddy argues that his sentence is inappropriate in light of the nature of the

offenses and his character. Indiana Appellate Rule 7(B) 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. Although Rule 7(B) does not require us to be extremely

deferential to the trial court, we still must give due consideration to that sentence.

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also recognize the

unique perspective that the trial court provides in delivering its sentence. Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “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 a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
                                              8
we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       The nature of these offenses is particularly shocking and heinous.          Priddy

molested two girls who were members of the family with whom he was living at the time.

In the case of L.J., Priddy molested her on multiple occasions over the course of a year.

L.J. was forced to have sex with and perform oral sex on Priddy in return for money

given to her father. Priddy had sex with L.J. in her bedroom and in a tool shed, often

times with her father watching. Priddy also included K.J. in his criminal scheme and had

sexual intercourse with her. The multiple victims and the frequency of the molestations

add to the severity of these offenses.

       The record also demonstrates that Priddy’s character is particularly poor. Priddy

has a criminal history including assault and burglary. The assault was the result of an

altercation between Priddy and his sister in which he struck her multiple times with a

mop handle. While in jail awaiting trial for these offenses, Priddy was reprimanded for

fighting, receiving a tattoo, flooding his cell with water, and receiving stolen property.

He was also on probation in Kentucky at the time of these offenses for burglary.

       The trial court was correct in recognizing his young age as a mitigating

circumstance, but Priddy was nineteen and twenty when the molesting occurred, which is

not necessarily an age young enough to be considered a significant mitigating

circumstance. See Coleman v. Sate, 952 N.E.2d 377, 385 (Ind. Ct. App. 2011) (finding
                                            9
that defendant’s relative youth (twenty-one years old) was not a strong mitigating

circumstance when a ready willingness to commit the crime was present). Priddy was

functioning as an adult and was purposeful in his actions.

       Priddy reports an extensive history of mental illness,        but his accounts are

supported only by his self-reporting. He claims to have been in foster care from the ages

of two to fifteen. During this time period, Priddy claims to have been abused physically

and sexually by a foster parent. At the age of fifteen, Priddy began a three-year period of

hospitalization at River Valley Mental Hospital.       Priddy claims to still experience

psychotic episodes both visually and aurally. Priddy claims to have attempted suicide

thirty times, and he stated in his presentence investigation that he had thoughts of suicide

following the jury’s determination of guilt in the instant offenses. Though these are all

serious allegations of mental illness, they are substantiated only by Priddy’s self-

reporting and consequently, hold less importance in evaluating Priddy’s character.

Furthermore, the trial court found no connection between Priddy’s mental illness and the

instant offenses. Mental illness is not a mitigating circumstance if there is no connection

between the illness and the crime. Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006).

       In light of the frequency of the offenses and the number of victims as well as

Priddy’s poor character, we find that his seventy-five year sentence for eight counts of

Class B felony child molesting is appropriate.




                                            10
                                         Conclusion

      The trial court did not err when it denied Priddy’s motion for severance, and the

sentence is appropriate in light of the nature of the offenses and the character of the

offender. We affirm.

      Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




                                          11
