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
                                                               Jan 27 2014, 9:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

R. PATRICK MAGRATH                                GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP                        Attorney General of Indiana
Madison, Indiana
                                                  RYAN D. JOHANNINGSMEIER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DANIEL LEE PIERCE,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 78A05-1305-CR-211
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE SWITZERLAND CIRCUIT COURT
                           The Honorable W. Gregory Coy, Judge
                               Cause No. 78C01-1201-FA-3



                                       January 27, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Daniel Lee Pierce appeals his convictions for one count of child molesting, as a

Class A felony; four counts of child molesting, as Class C felonies; and two counts of

child molesting, as Class D felonies, following a jury trial. Pierce presents three issues

for our review, and the State presents an issue on cross-appeal. However, we need only

consider the following two issues:

      1.     Whether the trial court erred when it denied his motion to sever the
             counts under Indiana Code Section 35-34-1-11.

      2.     Whether the trial court abused its discretion when it limited his
             cross-examination of one of the victims and when it admitted
             evidence regarding pornography.

      We reverse and remand for a new trial.

                      FACTS AND PROCEDURAL HISTORY

      In December 1999, Pierce and his wife Lori moved to Vevay. Lori is paralyzed,

uses a wheelchair, and requires in-home nursing care. Initially the couple lived in the

Vevay Apartments, but later they moved to a single-story house on Seminary Street. The

home has two bedrooms, both at the back of the house. Lori used one bedroom and

Pierce slept in the other room, which they also called the computer room. The home had

two computers, one of which was in Pierce’s bedroom. Pierce and Lori have two adult

children, a daughter, Amber, and a son, Bryan. Amber has a daughter, K.P., born in

October 2003, and Amber’s then-husband has two daughters, B.H., born in April 1998,

and V.H., born in November 1999.

      K.P., B.H., and V.H. occasionally spent the night at the Pierce home, sometimes

without any other children present. In November 2011, seven-year-old K.P. was visiting
                                            2
her three-year-old half-brother at his home when his grandmother found the two children

naked in a closet. On December 28, personnel at the Child Abuse Center interviewed

K.P. and V.H. regarding allegations against Pierce. Both children alleged that Pierce had

molested them.         Subsequently, Detective Kip Main of the Indiana State Police

interviewed K.P. and V.H. and, later, B.H. Eventually, all three girls alleged that Pierce

had molested them either at his home or in his truck, and K.P. said that Pierce had shown

her “naked people” doing “nasty stuff” in movies. Transcript at 53-54.

        In the meantime, Pierce was admitted to a mental health facility.1 While there, he

telephoned Lori and asked her to remove the computers from their home. Lori asked for

assistance from Melody Reese, one of Lori’s home healthcare providers and a neighbor

of the Pierces. But instead of getting rid of the computers, Reese contacted Detective

Main and arranged to deliver the computers to law enforcement. With the help of another

neighbor and caretaker of Lori, Reese delivered the computers to the police later the same

day. Subsequent forensic analysis of the computer from Pierce’s bedroom showed an

internet history that included pornographic web sites involving “an overwhelming theme

of young girls in compromising positions and videos related to that nature of girls.”

Transcript at 242. Some of the pornography sites visited included “PappaF***Me.com,”

“FirstTimeWithDaddy.com,” and “F***meDaddy.org.” Id. at 245.

        On January 5, 2012, Pierce was arrested, and Detective Main interviewed him at

the Switzerland County Jail. During his interview, Pierce admitted to Detective Main

that he had accessed pornography on his computer. The State charged Pierce with one


        1
          The parties do not explain Pierce’s admission to the facility, nor do they cite to the record to
show the details of his admission or treatment.
                                                    3
count of child molesting, as a Class A felony (“Count I”); two counts of child molesting,

as Class C felonies (“Counts II and III”); and two counts of child solicitation, as Class D

felonies (“Counts IV and V”). V.H. and K.P. were the victims named in those counts.

On January 31, 2012, the State added another count of child molesting, as a Class C

felony (“Count VI”), regarding A.R., Pierce’s niece. And on March 16, 2012, the State

filed two additional counts of child molesting, as Class C felonies (“Counts VII and

VIII”), regarding B.H.

       On June 18, 2012, Pierce filed a motion to sever the counts. Following a hearing

on June 19, the trial court denied that motion. On September 14, the State again filed two

additional counts of child molesting, as Class A felonies (“Counts IX and X”), as to V.H.

But on September 19, the State filed a motion to dismiss Count I with prejudice, which

the trial court granted.

       On October 30, Pierce filed a motion to dismiss Counts IX and X. The trial court

denied the motion on January 18, 2013. Over Pierce’s objection, the trial court set all

remaining counts, Counts II through X, for trial. However, the trial date was continued.

And on March 5, the State filed amended informations for Counts II, IV, and IX,

changing the dates upon which the alleged offenses had occurred. The trial court allowed

the amendments.

       On March 8 and March 11, Pierce filed motions in limine. The trial court granted

the motions in part, excluding evidence pertaining to a polygraph test taken by Pierce,

Pierce’s prior criminal conduct, and prior contacts with Ohio Child Services without first

obtaining permission outside the presence of the jury. The court also granted the motions


                                            4
in part as to alleged pornography and alleged child pornography, ordering that the State’s

witnesses could testify as to being shown child pornography, that the State could not

show the images to the jury, and that the State’s forensic examiner could testify only after

an offer of proof. The trial court denied the motions as to a “Secret Treasures brand

lingerie/nightgown” that one of Lori’s caretakers saw one of the victims wearing when

she exited Pierce’s bedroom early one morning and text message pictures of naked men.

Appellant’s App. at 293. The trial court also granted the State’s motion in limine in part,

excluding evidence of B.H.’s past sexual conduct without first obtaining permission

outside the presence of the jury.

       The jury trial on Counts II through X commenced on March 12. Before trial,

Pierce renewed his motion to sever the counts, but the trial court denied that motion.

During trial, B.H. testified that she had lied during a forensic interview because she

would get in trouble if she “was ever to say something like that again.” Transcript at 82.

Despite the trial court’s order on the State’s motion in limine, Pierce then sought to

introduce evidence that B.H. had previously made false allegations to a reporting

authority. The trial court denied Pierce’s request to make an offer to prove to preserve

the record. Also at trial, the court admitted over Pierce’s objections the State’s evidence

showing the internet history on Pierce’s computer.

       At the close of the State’s evidence, Pierce moved for a directed verdict. The

State stipulated that the evidence did not support Count X, and the charge was dismissed.

The trial court denied the motion as to Counts II through IX. Pierce then presented his

case. At the close of all of the evidence, the trial court instructed the jury, in part giving


                                              5
proposed instruction number 3 over Pierce’s objection: “The State is not required to

prove that the crime charged was committed during a particular time period alleged in the

charging information.” Appellant’s App. at 309. And on March 15, the jury found

Pierce not guilty of Count VI but guilty of Counts II, III, IV, V, VII, VIII, and IX.

        At the sentencing hearing on April 12, the trial court identified several aggravators

and mitigators and found that they balanced. The court then sentenced Pierce to a total of

thirty-eight years, with eight years suspended, for an aggregate term of thirty years

executed. With regard to the Class A felony, Pierce was sentenced to thirty years with

six years suspended, to be served concurrent with the other two counts regarding the

same victim and consecutive to the sentences imposed on the counts pertaining to each of

the other victims. The trial court also found that Pierce was a sexually violent predator

under Indiana Code Section 35-38-1-7.5(b)(1)(c) and a credit restricted felon under

Indiana Code Section 35-31.5-2-72. Pierce now appeals.

                                 DISCUSSION AND DECISION2

                                    Issue One: Motion to Sever

        Pierce contends that the trial court erred when it denied his motion to sever the

counts under Indiana Code Section 35-34-1-11. Two or more offenses may be joined in

the same indictment or information, with each offense stated in a separate count, when


        2
           We initially note that Pierce has not supported any of his contentions in the argument section of
his brief with citations to the record. Such citations are required by Indiana Appellate Rule 46(A)(8)(a).
The failure to include such citations can result in waiver. At a minimum, it complicates both opposing
counsel’s review and our review of the issues and requires extra work in searching the facts section of the
appellate brief for those citations. Although Pierce has supplemented many of his arguments with proper
citations to the record in his Reply Brief, we remind counsel to comply with Rule 46(A)(8)(a) in the
future, and we decline the State’s request that we hold Pierce has waived his arguments on appeal for
failing to comply with Rule 46(A)(8)(a).

                                                     6
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 on a series of acts connected together or

constituting parts of a single scheme or plan.” Ind. Code § 35-34-1-9. “Whenever two

(2) or more offenses have been 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 to a severance of the offenses.” Ind. Code § 35-34-1-11(a); see also Brown

v. State, 650 N.E.2d 304, 305-06 (Ind. 1995). Because the court has no discretion

whether to sever charges that were joined solely on the ground that they were of the same

or similar character, we review the trial court’s decision denying Pierce’s motion de

novo.3 See Jackson v. State, 938 N.E.2d 29, 36 (Ind. Ct. App. 2010), trans. denied.

        In support of his contention that his charges should have been severed, Pierce

relies on Justice Rucker’s lengthy dissent from the denial of transfer in Wells v. State,

983 N.E.2d 132 (Ind. 2013). There, Justice Rucker, joined by Justice Dickson, explained

that he would have granted a petition to transfer in that case in order to “provide guidance

and clarity on an area of the law in need of both[,]” namely, application of the statutes

pertaining to severance. Id. at 132 (Rucker, J., dissenting). Justice Rucker then opined

that the “traditional approach in resolving claims of severance [as a matter of right] fails

to provide meaningful guidance to either the bench or the bar and thus lends itself to

inconsistent results, even where the facts are very similar.”                 Id. at 137 (Rucker, J.,

dissenting). As a result, he set out the standard that he would have applied. We share

        3
          The second part of Indiana Code Section 35-34-1-11 provides that the trial court has discretion
whether to grant severance when charges are not joined solely on the ground that they are of the same or
similar character. Pierce presents no argument under that part of the statute. Thus, we limit our review to
whether his absolute right to a severance of the offenses was violated. Booker v. State, 790 N.E.2d 491,
494 (Ind. Ct. App. 2003) (citation omitted), trans. denied.
                                                    7
Justice Rucker’s view that the law on claims of severance is confusing and that our

traditional approach is in need of reconsideration. Id. at 139 (Rucker, J., dissenting).

Nevertheless, we are bound by precedent from majority opinions. Thus, we apply the

current standard, set out here, to determine whether the trial erred when it denied Pierce’s

motion to sever.

        The essence of our inquiry is whether Pierce’s charges were joined solely because

they were of the same or similar character.4 The State contends that additional factors

support joinder of the charges, namely, “a common modus operandi, a distinctive nature,

and the same motive.” Appellee’s Brief at 27. We cannot agree with the State.

        To show that charges were not joined solely because they were the same or similar

in character, the State may show that the charges contain a common modus operandi, thus

establishing that the charges were joined because they were the work of the same person.

As our Supreme Court has explained:

        The State (and, indeed, some of the authorities) have used “common
        design” and “modus operandi ” interchangeably, but the concepts are quite
        distinguishable. A common design refers to a larger criminal scheme of
        which the crime charged is only a portion. Modus operandi means,
        literally, “method of working,” and refers to a pattern of criminal behavior
        so distinctive that separate crimes are recognizable as the handiwork of the
        same wrongdoer. (Citations omitted). A common design is frequently
        relevant to show the motive for the crime charged. Modus operandi is most
        useful in showing that the accused is the perpetrator of the crime charged.

Penley v. State, 506 N.E.2d 806, 810 (emphasis added) (quoting People v. Barbour, 436

N.E.2d 667, 672 (Ill. App. Ct. 1982). For example, in Piercefield v. State, 877 N.E.2d

1213 (Ind. Ct. App. 2007), trans. denied, the defendant was charged with offenses

        4
           Because the issue is whether Pierce was entitled to severance as a matter of law, we need not
consider his conclusory argument that the joinder of the counts resulted in “the potential for unduely [sic]
prejudicial effect and the likelihood of jury confusion[.]” Appellant’s Brief at 14.
                                                     8
involving inappropriate touching of his stepchildren in the shower and in the bed. The

evidence showed that he had begun showering with his stepdaughter beginning when she

was eight years old under the premise that she could not wash her hair by herself, and he

had showered with his stepson, stating that the child could not wash himself. Both

children testified that they would often have to massage the defendant and that they had

witnessed each other do such things. The trial court rejected the defendant’s argument

that the similarity of the molestations of his stepchildren could not constitute a unique

modus operandi, holding that the facts created “a unique set of circumstances.” Id. at

1218. We agreed with the trial court and, “[b]ecause of the distinct circumstances and

similar modus operandi,” held that the defendant was not entitled to the right of

severance. Id.

       Similarly, in Booker v. State, 790 N.E.2d 491 (Ind. Ct. App. 2003), trans. denied,

we also held that the defendant was not entitled to severance of child molesting charges

as of right. Specifically, we stated as follows:

       the State showed that both D. and D.H. were placed in Booker’s care. The
       evidence showed that the molestation had occurred in the girls’ bedroom
       while they were in bed. Moreover, both girls testified that Booker had used
       his hand to touch them. Finally, the only persons to test positive for
       gonorrhea were Booker and the two victims. [T]he State established that
       the charges were correctly joined because the episodes of molestation were
       the “handiwork of the same person” and not solely because they were of the
       same or similar character.

Id. at 495.

       Here, Pierce’s victims were pre-pubescent girls who were related to him as his

granddaughter or step-granddaughters. Each girl had spent the night with him without



                                              9
other grandchildren present, and all the victims had slept with him alone in his bedroom.

In each case, he had abused his position of trust as a grandparent and caretaker.

       But the similarities end there. K.P. alleged that Pierce had kissed her on the

mouth; had touched her “front private” and “back private” with his hand, Transcript at

48; and had put his “front private” in her mouth, id. at 62, all of which occurred either at

the Seminary Street house or in Pierce’s truck. She also testified that Pierce had shown

her pornography; that she had seen him touch his “private,” id. at 63; that he had entered

the bathroom to shower while she was on the toilet and told her not to leave; and that he

had once joined her in the bathtub.

       In contrast, B.H. testified that, on two different occasions, Pierce had approached

her while she was watching television in Lori’s bedroom on Seminary Street and that he

had stroked her stomach and touched her “boobs.” Id. at 72. V.H. testified that at both

the Vevay Apartments and at the house on Seminary Street she had fallen asleep in

Pierce’s bedroom only to awaken and find him on top of her, touching her breasts and her

vagina with his hands. She also saw him “play” with his penis until “white stuff” came

out. Id. at 97.

       The molestations described by each victim do not have more in common than the

mere repetition of crimes of the same character, namely child molesting. Each victim

described a different venue and different conduct than was perpetrated on the other two

victims. At most, the State’s evidence demonstrates that Pierce’s molestations were

crimes of opportunity, not signature crimes showing that the accused was the perpetrator.

The evidence does not demonstrate “a pattern of criminal behavior so distinctive that


                                            10
separate crimes are recognizable as the handiwork of the same wrongdoer.” Penley, 506

N.E.2d at 810 (quotation omitted).          Therefore, Pierce was entitled to severance of the

counts under Indiana Code Section 35-34-1-11(a).5 Because the trial court lacked the

discretion to deny the motion for severance, we must reverse Pierce’s convictions and

remand for a new trial. See Pardo v. State, 585 N.E.2d 692, 695 (Ind. Ct. App. 1992).

However, because certain evidentiary issues are likely to recur on remand, we briefly

address them.6

                              Issue Two: Admission of Evidence

       Pierce argues that the trial court abused its discretion when it limited his cross-

examination of one of the victims and refused his request to make an offer to prove. He

also contends that the trial court should not have admitted evidence regarding

pornography found on Pierce’s computer. Our standard of review of a trial court’s

admission or exclusion of evidence is an abuse of discretion. Speybroeck v. State, 875

N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court abuses its discretion only if its

decision is clearly against the logic and effect of the facts and circumstances before the

trial court. Dawson v. State, 786 N.E.2d 742, 745 (Ind. Ct. App. 2003), trans. denied. In

reviewing the admissibility of evidence, we consider only the evidence in favor of the

trial court’s ruling and any unrefuted evidence in the defendant’s favor. Id.




       5
          In his appellate brief, Pierce also mentions Indiana Evidence Rule 404(b) with regard to this
issue. However, because we resolve the issue under the severance statute, we need not address this
argument.
       6
          We cannot anticipate whether the sentencing issues raised by Pierce on appeal and the State on
cross-appeal are likely to recur on remand and, thus, we will not address them.
                                                  11
       Pierce first asserts that the trial court improperly limited his cross-examination of

B.H. and denied his request to make an offer to prove. On this issue, Pierce argues, in

relevant part:

       Pierce sought to introduce the fact that B.H. had made false accusations of
       sexual assault[] against other individuals in the past. The State specifically
       obtained a pretrial exclusion of this information in its Motion in
       Limine . . . . B.H., without goading by counsel, volunteered information
       about the prior allegations; “[I]f I was ever to say something like that
       again[], you’re going to be in trouble.” (Tr. 82). Pierce’s counsel sought to
       make an offer of proof rather than violating the Motion in Limine by
       attempting to introduce the information on cross-examination. (Tr. 82). At
       side bar the parties discussed the proffered information and the State argued
       that “[W]e don’t know what the prior allegation is.” (Tr. 83). Thus, the
       issue was an offer of proof regarding the witness[’s] past conduct in making
       false accusations to reporting authorities.

Reply Brief at 3 (some alterations original). The trial court denied Pierce’s request to

make an offer to prove.

       While Pierce has not set out the standard for reviewing the trial court’s denial of

his request to make an offer to prove, we note that offers to prove are “important

procedural tools benefitting not only the parties and the trial court, but especially the

reviewing appellate court.” Littler v. State, 871 N.E.2d 276, 278 n.2 (Ind. 2007). “While

a trial court may exercise reasonable discretion in determining the timing and extent of

such a motion, the court should very rarely completely deny a party’s request to make an

offer of proof, and then only upon clear abuse by the requesting party.” Id. An offer to

prove is required of counsel to preserve error in cross-examination. Arhelger v. State,

714 N.E.2d 659, 665-66 (Ind. Ct. App. 1999) (discussing development of rule requiring

offer to prove on cross-examination). Because an offer to prove was required to allow



                                            12
Pierce to preserve the issue on appeal, we hold that the trial court erred when it denied

Pierce the opportunity to make that proffer.7 See id.

        Pierce also contends that the trial court abused its discretion when it admitted

certain evidence of pornography over his objections, which were based on Indiana

Evidence Rule 404(b). Evidence Rule 404(b) provides, in relevant part, 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.”

        In assessing the admissibility of 404(b) evidence the trial court must: (1)
        determine that the evidence of other crimes, wrongs, or acts is relevant to a
        matter at issue other than the defendant’s propensity to commit the charged
        act and (2) balance the probative value of the evidence against its
        prejudicial effect pursuant to Rule 403.

Haliburton v. State, ___ N.E.2d ___, 2013 WL 6698795, at *8 (Ind. Dec. 19, 2013)

(alteration and quotation omitted).8           “Simply stated, evidence is inadmissible under

Indiana Evidence Rule 404(b) when its only apparent purpose is to prove that the

defendant” is a person who acts in conformity with the character evidence presented.

Wilson v. State, 931 N.E.2d 914, 919-20 (Ind. Ct. App. 2010) (emphasis added), trans.

denied.     However, where relevant, such character evidence “may be admissible for

purposes other than to show the defendant’s character . . . .” Id. at 920




        7
          Because the trial court erred in refusing to allow Pierce to make an offer to prove, we need not
address the issue of whether the trial court abused its discretion when it limited his cross-examination of
B.H.
        8
          Indiana Evidence Rule 403 provides: “The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

                                                    13
       Here, Pierce argues that the trial court improperly allowed several witnesses to

testify that they had observed pornography on his computer and improperly allowed the

State to present the testimony of an investigating officer regarding the names and

contents of websites that had been viewed on that computer. Pierce argues that the “only

purpose of allowing this testimony was to enflame the emotions of the jury and attempt to

prove Pierce’s guilt by his character.” Appellant’s Brief at 16. We must agree in part.

       As an initial matter, we reject the State’s assertion that Rule 404(b) applies only to

a defendant’s prior illegal acts. See Appellee’s Br. at 36. While it is true that past crimes

are “the paradigm of evidence inadmissible under Rule 404(b),” Swanson v. State, 666

N.E.2d 397, 398 (Ind. 1996), the Rule plainly states that it applies to “a crime, wrong, or

other act,” Evid. R. 404(b) (emphasis added). Here, while the websites at issue were

legal, in its closing argument to the jury the State emphasized that the descriptive nature

of the domain names demonstrated there was “kiddie stuff” on Pierce’s computer.

Transcript at 304. The State used this evidence to demonstrate that Pierce had the

character of a child molester and that he acted in conformity with that character vis-à-vis

his victims.9    Thus, this evidence was relevant only to show Pierce’s propensity to



       9
           The State suggests that Pierce failed to object to Detective Main’s testimony of the domain
names under Rule 404(b). Appellee’s Br. at 35. We acknowledge that Pierce’s objection at trial appears
to have been based on the accuracy of the forensic examination of his computer rather than pursuant to
Rule 404(b), see Transcript at 242, and we agree with the State that Pierce cannot rely on his Motion in
Limine to preserve an issue for appellate review, see Simmons v. State, 760 N.E.2d 1154, 1158 (Ind. Ct.
App. 2002). But during the testimony of the forensic examiner, Pierce did lodge a “404(b)” objection in
addition to challenging the accuracy of the forensic examination. Id. at 204. And it is clear from the
context of Pierce’s objection to Detective Main’s testimony that the parties and the court were aware of
the objections to the forensic examiner’s testimony. See id. at 242-43. We conclude that the Rule 404(b)
question, as it pertains to the names of the websites, was fairly before the trial court for purposes of
preserving the issue for appeal. See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct.
App. 2009), trans. denied.
                                                  14
commit the charged acts, and the trial court abused its discretion to the extent it admitted

the websites.

       However, Pierce has not shown that the admission of testimony that witnesses had

observed pornography in Pierce’s room was erroneous. Indeed, that testimony supported

K.P.’s testimony that Pierce had shown pornography to her. Likewise, the trial court

properly allowed the forensic examiner’s testimony that he had downloaded data from

Pierce’s computer and gave that information to Detective Main as well as Detective

Main’s testimony that the forensic examination of Pierce’s computer had shown

pornography sites in the internet search history. This evidence corroborated the victim’s

testimony. Thus, the evidence that there was pornography on Pierce’s computer, without

more, supported K.P.’s testimony that Pierce had exposed her to pornography and was

not offered only to prove Pierce’s propensity to commit the charged acts.10 See Wilson,

931 N.E.2d at 919-20. Further, the probative value of this evidence was not substantially

outweighed by a danger of unfair prejudice. See Haliburton, ___ N.E.2d at ___, 2013

WL 6698795, at *8. We affirm the trial court’s admission of this evidence.

                                          Conclusion

       The trial court erred when it denied Pierce’s motion to sever the charges under

Indiana Code Section 35-34-1-11. As a result, we reverse Pierce’s convictions and

remand for new trials. Because the evidentiary issues raised by Pierce on appeal are

likely to recur on retrial, we also conclude that: the trial court did not abuse its discretion

when it admitted testimony that witnesses had seen pornography in Pierce’s room, that

       10
          Because we are remanding on other issues, we need not consider Pierce’s argument that the
admission of evidence constitutes cumulative error.

                                                15
Pierce had shown K.P. pornography, that the state police forensic examiner downloaded

data from Pierce’s computer, or that an examination of Pierce’s computer showed

pornography websites in the internet history.      However, the trial court abused its

discretion when it admitted Detective Main’s testimony regarding the names of those

websites, which was offered to show Pierce’s propensity to commit the charged acts.

Further, the trial court erred when it did not allow Pierce to make an offer to prove the

testimony he sought to elicit from B.H. on cross-examination. Thus, we reverse Pierce’s

convictions and the sentences imposed and remand for new trials in accordance with this

decision.

      Reversed and remanded.

CRONE, J., concurs.

BAKER, J., concurring in part and dissenting in part with separate opinion.




                                           16
                              IN THE
                    COURT OF APPEALS OF INDIANA

DANIEL LEE PIERCE,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 78A05-1305-CR-211
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )



BAKER, Judge, concurring in part and dissenting in part.


       While I agree with the majority’s disposition on most of the issues regarding the

admission of evidence, I part ways with its determination that the trial court was required

to sever the counts under Indiana Code section 35-34-1-11. More particularly, I do not

think that Pierce’s counts were joined simply because they constituted the same or similar

character; rather, I believe that the offenses were “based on the same conduct or on a

series of acts connected together or constituting parts of a single scheme or plan.” Ind.

Code § 35-34-1-9.

       In this case, despite the majority’s observation that Pierce’s offenses had few

similarities, memo op. at 10, the testimony that K.P., B.H., and V.H. presented at trial

provided insight into how the abuse perpetrated on each young child was connected and

                                            17
part of a single plan that Pierce had devised to victimize these children, over whom he

had control because he had relatively easy access.

         K.P., the youngest child, testified that Pierce touched her “private” and “kissed

[her] mouth” in a way that she did not like. Tr. p. 47-48. K.P. also stated that Pierce

touched her “back private.” Id. at 48. K.P. further detailed an incident during which she

saw Pierce’s “private” when he got into the bathtub with her. Id. at 52. Finally, K.P.

described Pierce showing her “naked people” doing “bad stuff” on the computer.” Id. at

53.

         B.H., the middle child, testified that Pierce fondled her breasts. Tr. p. 72. B.H.

stated that Pierce fondled her breasts a second time and in the same manner, waiting until

no other children were around and approaching her in a bedroom. Id. at 75. Similar to

K.P., B.H. testified that Pierce showed her a movie that had “really nasty stuff in it.” Id.

at 80.

         V.H., the oldest child, testified that she awoke one night to Pierce “rubbing [her]

breasts and [her] vagina area.” Tr. p. 94. V.H. also testified that Pierce would force her

to submit to oral sex. Id. at 95. V.H. stated that sometimes, Pierce would just fondle her

breasts, while at other times, he would escalate the abuse to fondling her vagina and oral

sex. Id. at 96.

         Although Pierce did not commit exactly the same sexual acts on each child, his

acts escalated with the age of the child. Under these circumstances, Pierce’s offenses are

part of a plan or scheme, and he is not entitled to have his counts severed. See I.C. § 35-

34-1-11. Accordingly, I would not grant him a new trial.


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      Moving forward to the admission of evidence, I agree with the majority’s

disposition of every issue, except for the majority’s determination that the trial court

erred in permitting the admission of the domain names of the pornography websites.

Indeed, similar to the majority’s analysis of how K.P.’s testimony was supported by the

testimony of witnesses who had observed pornography in Pierce’s room, memo op. at 15,

the names of the internet websites bolsters the victims’ testimony. Put another way, the

names of the websites were neither irrelevant nor mere propensity evidence in light of the

children’s testimony that, as stated above, indicates a plan or scheme. See Hicks v. State,

690 N.E.2d 215, 218 (Ind. 1997) (stating that evidence of other wrongs may be

admissible to show “proof of motive, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident”). Consequently, I do not think the trial court erred by

allowing the domain names into evidence and respectfully dissent on that issue as well.




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