MEMORANDUM DECISION                                                                  FILED
                                                                                Apr 27 2017, 10:13 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
regarded as precedent or cited before any                                             and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Nicole Rutter-Hirth                                      Curtis T. Hill, Jr.
Rion, Rion & Rion, LPA, Inc.                             Attorney General of Indiana
Dayton, Ohio
                                                         J.T. Whitehead
Jennifer Lukemeyer                                       Deputy Attorney General
Voyles, Zahn & Paul                                      Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Todd Stigleman,                                          April 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A01-1608-CR-1783
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Charles Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89D01-1405-FA-11



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017           Page 1 of 25
                               Case Summary and Issues
[1]   Following a jury trial, Todd Stigleman was convicted of four counts of

      kidnapping as Class A felonies, eight counts of criminal confinement as Class C

      felonies, and two counts of stalking as Class C felonies. Todd also admitted to

      being an habitual offender. The trial court later vacated all convictions of

      criminal confinement and sentenced Todd to seventy-six years in the Indiana

      Department of Correction. Todd now appeals, raising three issues for our

      review: (1) whether the trial court abused its discretion in denying Todd’s

      motion to sever, (2) whether the trial court abused its discretion in admitting

      evidence, and (3) whether his sentence is inappropriate in light of the nature of

      the offenses and his character. Concluding the trial court did not abuse its

      discretion in denying Todd’s motion to sever or in admitting evidence and that

      Todd’s sentence is not inappropriate, we affirm his conviction and sentence.



                            Facts and Procedural History                               1




[2]   Todd and Kelli Stigleman were married in 2004 and had one child, Joshua,

      during their relationship. Kelli has another son, Joseph, from a prior

      relationship. Kelli has worked for Cracker Barrel for sixteen years; Todd did

      not work during their marriage, but received social security disability payments.

      Todd and Kelli lived together in their marital residence in Cambridge City,




      1
       We held oral argument at Valparaiso University Law School on April 7, 2017. We thank counsel for their
      oral advocacy and extend our appreciation to the faculty, staff, and students for their hospitality.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017        Page 2 of 25
      Indiana, which Kelli purchased from her parents pursuant to an installment

      contract.


[3]   In early February of 2014, Kelli left Todd and moved in with her parents. She

      offered Josh the option to live with her at her parents’ house, but he declined

      because he wished to live with his father. Josh was homeschooled and very

      close to his father. Shortly after Kelli left, Todd attempted to reconcile their

      relationship several times, but with no luck. On February 21, 2014, Todd filed

      for divorce in the Wayne County Superior Court. Thereafter, events quickly

      escalated.


[4]   In March of 2014, Kelli filed an emergency motion to amend the parties’

      provisional orders seeking to stop Todd from contacting her, as he had started

      “harassing [her], [making] several phone calls to [her] cell phone, to [her]

      parents’ house, to [her] work and just was non-stop showing up everywhere

      [she] seemed to be . . . .” Transcript, Volume II at 69. The trial court granted

      Kelli’s motion and ordered parenting time exchanges with Josh to occur at the

      Cambridge City Police Station.


[5]   On March 19, 2014, Kelli attended an appointment at the Wayne County

      Health Department after work. While she was filling out paperwork following

      her appointment, Josh unexpectedly appeared at the Health Department. Kelli

      and Todd were supposed to have a parenting time exchange that evening and

      she thought it strange Josh showed up at that time. Josh asked Kelli for the

      keys to her van so he could wait outside, and she complied. As she walked to


      Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 3 of 25
      her van, she saw Todd walking toward her. Todd grabbed her arm and pushed

      her into her van and said, “we’re going to talk.” Id. at 74. Kelli resisted and

      said she would take Josh and leave, and Todd responded, “no, we’re going to

      talk.” Id. Todd pushed Kelli into the passenger’s seat, started the car, and

      drove to their marital residence in Cambridge City. Josh was on his cellphone

      in the backseat and it appeared to Kelli that he was giving someone directions

      to follow the van. The lock on the passenger door was broken at the time, so

      Kelli could not escape. At the marital residence, Todd took Kelli’s phone and

      kept her keys. He told her, “I’m sorry, I want you to come back, why are you

      doing this to me, I don’t understand why you’re doing this . . . .” Id. at 77. At

      one point while Kelli was sitting on the couch, she reiterated her position she

      did not want to talk to him. Todd became very upset and towered over her

      while wielding a knife. He pushed her back onto the couch, put the knife to her

      throat, and said “if you tell anybody about this, you’ll find out what the

      consequences are . . . .” Id. at 80. Todd gave Kelli the knife and told her to

      stab him in his abdomen; she declined. Josh then came downstairs to ask his

      parents to stop yelling, made eye contact with Kelli, and silently indicated to

      her that Todd “[was] faking.” Id.


[6]   Several hours later, Kelli was able to obtain her keys and phone; she drove

      straight to her parents’ house where her father called the police and filed a

      police report. A few days after filing the report, Kelli made an appointment for

      Josh to speak to the police. Todd began following her in his car as she drove

      Josh to the police station. As she parked at the police station, Todd yanked


      Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 4 of 25
      Josh from the car and said “he’s not talking to the cops . . . .” Id. at 83. Josh

      never gave a statement to the police.


[7]   On April 4, 2014,2 Kelli finished work at Cracker Barrel around 8:00 p.m. She

      walked to her van and noticed her van door had been opened but not shut

      properly, as it was slightly ajar. As she went to close it, Todd, dressed in all

      black, jumped out from behind her van, put his hand over her mouth, and said,

      “what are you trying to do, get me put in jail?” Id. at 110. A struggle ensued

      and Todd and Kelli fell to the ground. Kelli attempted to yell for help but could

      not because Todd’s hand was covering her mouth. Todd then told her Josh was

      injured and in the hospital, so she stopped struggling and yelling for help. Kelli

      told Todd she would meet him at the hospital, and as she began backing out of

      her parking spot, Todd opened the door and jumped in her van. He told her

      that he lied to her, Josh was not hurt, and they “were going to talk.” Id. at 112.

      Todd then forced her out of the driver’s seat and drove them to the marital

      residence. When they arrived at the marital residence, Todd parked her van

      near the back of the house so it could not be seen from the street. Todd forced

      her into the home and kept her phone and her keys. Todd followed her from

      room to room, not letting her out of his sight, and begging her to get back

      together. Eventually, she obtained her keys and phone and left.




      2
       Kelli’s testimony refers to this day as April 14 and April 4. See Tr., Vol. II at 109, 143. Because the State
      uses April 4, and Todd uses “Date unknown,” Corrected Appellant’s Brief at 11, we opt to use April 4.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017               Page 5 of 25
[8]   A similar incident occurred on April 18, 2014, when Kelli and Todd met in the

      parking lot of a carwash across from the police station to exchange custody of

      Josh. As Josh approached Kelli’s van, Todd walked behind him and pushed

      him out of the way while holding a knife at waist level. Todd again told Kelli,

      “we’re going to talk.” Id. at 117. He forced his way into her van, pushed her

      into the passenger’s seat, and drove around Cambridge City until they stopped

      in the Cambridge City Public Library’s parking lot. Todd told Josh to get out

      and walk to the Dollar Store, which was a couple blocks away. Kelli felt as

      though she could not leave the vehicle because Todd had the knife lying on his

      leg. A short while later, Josh returned and informed Todd he saw Kelli’s father

      driving around town, presumably looking for her. Todd became agitated and

      drove the van back to the marital residence. At the house, Todd forced Kelli to

      call her father and tell him everything was fine and she was going to spend the

      night at the house to help Josh with his homework. Kelli spent the night at the

      house because Todd kept her keys and phone and refused to let her leave.


[9]   When she awoke the next morning, she saw Todd outside tampering under the

      hood of her van, “pulling wires and stuff.” Id. at 120. She said she needed to

      get to work and Todd gave her the keys to her van; the van would not start so

      Todd volunteered to take her to work. But Kelli needed her work clothes, so

      Todd drove her to her parents’ house to retrieve them. Kelli went inside her

      parents’ house and did not come back out. Kelli’s father again called the police.

      This time, Kelli met with Officer Chad Wissler at the Cambridge City Police

      Department. As they were completing the interview, Kelli noticed Todd in the


      Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 6 of 25
       parking lot outside the police department. Officer Wissler stepped outside and

       had a brief conversation with Todd; he then noticed Todd was holding a yellow

       “Post-It” note and a pen. After Todd left, Officer Wissler removed a note from

       the window of Kelli’s van. The note read, “you lied, I know you were here.”

       Tr., Vol. III at 148.


[10]   On April 24, 2014, as Kelli was driving on the I-70 exit ramp to Cambridge

       City, Todd’s car approached her from behind at a high rate of speed. Kelli was

       speaking to her brother, David Moore, on her cell phone at the time. As she

       drove onto the exit ramp, she stopped at the stoplight and prepared to make a

       left turn; there were cars behind her and directly to her right. Todd drove his

       vehicle in between the cars in the left and right hand lanes, stopping in front of

       Kelli’s van and blocking her from driving. Todd exited his vehicle and walked

       to the driver’s side door of Kelli’s van and reached in and took her phone. He

       then proceeded to get in Kelli’s van and forced her from the driver’s seat. Todd

       drove the van a short distance away, parked, exited the van, and walked back to

       his car to move it and parked it on the edge of the interstate overpass. Todd

       then drove the van to a rural, isolated area a few minutes away.


[11]   Along the way, Todd was “irate, . . . shouting and hollering and getting kind of

       up in [her] face . . . .” Tr., Vol. II at 130. Todd pulled off the side of the road

       and began yelling at Kelli, asking why she involved the police and child

       protective services. After several minutes of yelling, Todd grabbed Kelli’s arm

       and pulled her to the back of the van, telling her, “we’re going to have sex . . . .”



       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 7 of 25
       Id. at 135. Todd then forced Kelli to have sex with him. Shortly thereafter, the

       police arrived after receiving a call from Kelli’s brother and arrested Todd.


[12]   A little after midnight on April 25, Todd demanded Kelli return Josh to him, as

       it was his day to have custody. The Cambridge City Police Department

       arranged for Officer Stephen Foster to be present at the exchange. At the

       exchange, Officer Foster heard Todd tell Kelli, “you need to watch your back,

       bitch.” Tr., Vol. III at 78.


[13]   On May 2, 2014, the State charged Todd with fourteen counts: Counts I-IV,

       kidnapping, as Class A felonies; Counts V-XII, criminal confinement, as Class

       C felonies; and Counts XIII and XIV, stalking, as Class C felonies. The State

       also alleged Todd was an habitual offender. On March 21, 2016, Todd filed a

       motion for severance of the counts alleging they were joined because they are of

       the same or similar character. The trial court denied Todd’s motion.


[14]   At trial, the State presented and the trial court admitted into evidence other

       “bad acts” committed by Todd. Specifically, Officer Wissler testified that on

       May 1, 2014, he received a call from Lincoln High School to investigate an

       incident involving Kelli’s van. The van, which was driven to school by her son,

       Joe, had the driver’s side front and rear tires deflated. Officer Wissler obtained

       surveillance footage and observed a man enter the parking lot carrying a red

       and white umbrella. The man then kneeled down next to and tampered with

       each tire. Kelli told Officer Wissler the umbrella was one she recognized from

       the marital residence. Officer Wissler also stated other surveillance footage


       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 8 of 25
       caught a vehicle matching Todd’s driving around the school near that time.

       Further, on October 24, 2014, Officer Wissler responded to a complaint from

       Josh Stigleman. The complaint alleged drugs and a firearm were left on the

       front porch of Kelli’s home. At this time, Kelli was again living in the marital

       residence, as Todd had been evicted. Officer Wissler arrived at the home,

       spoke to Kelli, and noticed a yellow shoebox on the front porch. A search of

       the shoebox revealed marijuana, heroin, and a handgun. After speaking with

       Josh and obtaining a search warrant for his cell phone, Officer Wissler

       discovered text messages from Todd instructing Josh on how to plant the

       incriminating evidence. Josh stated Todd told him to do it because “[h]e didn’t

       want to go to jail.” Tr., Vol. IV at 40. The trial court also admitted into

       evidence letters written by Todd from prison asking his new girlfriend to testify

       she was with him on April 4 and April 18, 2014, even though they had not yet

       met at that point.


[15]   A jury found Todd guilty as charged and the trial court entered judgment of

       conviction on all counts. At sentencing, the trial court vacated all counts of

       criminal confinement and amended its judgment of conviction to reflect only

       Todd’s convictions for kidnapping and stalking. The trial court sentenced Todd

       to forty years for each count of kidnapping, to run concurrently; six years for

       each count of stalking, to run concurrently with one another and consecutively

       to the kidnapping counts; and an additional thirty years for the habitual

       offender enhancement. Todd’s total aggregate sentence is seventy-six years




       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 9 of 25
       with no time suspended. Todd now appeals. Additional facts will be added as

       necessary.



                                  Discussion and Decision
                                         I. Motion to Sever
[16]   Todd contends the trial court abused its discretion in denying his motion to

       sever the counts. Specifically, Todd alleges a separate trial should have been

       afforded to him for the counts related to each date on which he committed a

       crime. Todd makes two arguments to support his claim: (1) he was entitled to

       severance as a matter of right because the crimes were joined solely because

       they are of the same or similar character, and (2) severance was appropriate

       under Indiana Code section 35-34-1-11(a).


                                       A. Standard of Review
[17]   The basis for joinder determines the amount of deference owed to a trial court’s

       ruling on a motion for severance. Pierce v. State, 29 N.E.3d 1258, 1264 (Ind.

       2015). A defendant is entitled to severance as a matter of right where the

       offenses have been joined solely because they are of the same or similar

       character. Id. Because a trial court has no discretion to deny such a motion, we

       review its decision de novo. Id. But where the offenses have been joined

       because the defendant’s underlying acts are connected together, we review the

       trial court’s decision for an abuse of discretion. Id. Likewise, a trial court’s




       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 10 of 25
       refusal to sever counts under Indiana Code section 35-34-1-11(a) is reviewed for

       an abuse of discretion. Craig v. State, 730 N.E.2d 1262, 1265 (Ind. 2000).


                     B. Stigleman Was Not Entitled to Severance
[18]   Stigleman argues he was entitled to a separate trial for each date on which he

       committed a crime; therefore, he alleges the trial court erred in denying his

       motion to sever the counts. Indiana Code section 35-34-1-9(a) permits the

       joinder of offenses 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 on a series of acts
               connected together or constituting parts of a single scheme or
               plan.


       However, when “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). In other words, Todd is not entitled to

       severance as of right if section 35-34-1-9(a)(2) is met. See Pierce, 29 N.E.3d at

       1265.


[19]   In Pierce, our supreme court succinctly summarized the law in regards to

       severance.

               [Indiana Code subsection 35-34-1-9(a)(1)] refers to the nature of
               the charged offenses; subsection (9)(a)(2) refers to the operative

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 11 of 25
        facts underlying those charges. These two subsections are not
        coextensive: offenses that are of the same or similar character
        may be premised on totally unrelated circumstances and
        evidence. For example, although a defendant may be charged
        with multiple burglaries (the same statutory offense), if the
        burglaries are factually distinct in terms of their timing, victims,
        method of entry, transport vehicle, and types of items taken, they
        fit squarely under subsection (9)(a)(1) but not (9)(a)(2), and
        severance is available as a matter of right. Maymon v. State, 870
        N.E.2d 523, 526-28 (Ind. Ct. App. 2007), clarified on reh’g, 875
        N.E.2d 375 (Ind. Ct. App. 2007). In some instances, of course,
        crimes that are of the same or similar character may also be based
        [on] a series of connected acts. See, e.g., Jameison v. State, 268
        Ind. 599, 601, 377 N.E.2d 404, 406 (1978) (“In the case at bar the
        burglaries were of service stations on I-74 in Shelby County. In
        both entry was gained by breaking a window and radios were
        stolen. Thus the crimes charged undoubtedly constituted a series
        of connected acts.”), abrogated on other grounds, Mitchell v. State,
        535 N.E.2d 498 (Ind. 1989).


        To determine whether offenses warrant joinder under subsection
        (9)(a)(2), we ask whether the operative facts establish a pattern of
        activity beyond mere satisfaction of the statutory elements. It is
        well-settled that a common modus operandi and motive can
        sufficiently link crimes committed on different victims. In Craig
        v. State, the defendant molested two young girls in a strikingly
        similar way, by asking them to take a “taste test,” covering their
        eyes with tape, inserting his penis into their mouths, and
        instructing them to suck on it. 730 N.E.2d at 1264-65. And his
        common motive—“to satisfy [his] sexual desires”—further tied
        the crimes. Id. at 1265. Because “[those] similarities [were]
        sufficient to establish that the molestation of each victim was the
        handiwork of the same person,” the defendant had no absolute
        right to severance. Id.


Pierce, 29 N.E.3d at 1265-66 (some internal citations omitted).

Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 12 of 25
[20]   Todd cites to two cases to support his assertion the offenses were joined only

       because of their similar character. Specifically, Todd cites to Wilkerson v. State,

       728 N.E.2d 239 (Ind. Ct. App. 2000), and Maymon v. State, 870 N.E.2d 523

       (Ind. Ct. App. 2007), clarified on reh’g, 875 N.E.2d 375 (Ind. Ct. App. 2007),

       trans. denied. In Wilkerson, the defendant was charged with raping two separate

       victims in Anderson, Indiana. In each offense, the defendant broke into a

       residence through a window and forced each victim to submit to oral sex

       followed by vaginal intercourse. The charges were joined for trial and the

       defendant was found guilty as charged. On appeal following the denial of

       defendant’s petition for post-conviction relief, this court held his counsel was

       ineffective for failing to move for a severance of the charges, as they were joined

       solely based on their similar character. This court noted the crimes occurred

       three weeks apart, at different times of day, at different locations, to different

       victims. Moreover, the defendant used different weapons and one victim was

       robbed while the other was not. Wilkerson, 728 N.E.2d at 246-47.


[21]   In Maymon, this court again found the defendant received ineffective assistance

       of counsel for failing to move for a severance when the charges were joined

       solely for their similar character. 870 N.E.2d at 528-29. There, the defendant

       committed four burglaries over the course of three months. Different types of

       items were stolen from each residence and the defendant was only successful in

       two of the four burglaries, as he was confronted by the homeowners in the other

       two attempts. Witnesses of the events in two of the burglaries observed a blue

       car at the scene, while the witnesses in the other two burglaries observed a red


       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 13 of 25
       car. This court held the “facts of each charge do not demonstrate that [the

       defendant] committed a series of connected acts or that the incidents were part

       of a single scheme or plan.” Id. at 528.


[22]   Notwithstanding the cases cited by Todd, his argument that his crimes were

       joined solely on the basis of their same or similar character fails. As previously

       noted, to determine whether joinder is appropriate under subsection 9(a)(2),

       “we ask whether the operative facts establish a pattern of activity beyond mere

       satisfaction of the statutory elements.” Pierce, 29 N.E.3d at 1266. Here, as

       argued by the State, the incidents share much more than their criminal

       category. Todd’s actions were connected by his victim, his method, and his

       motive. Kelli was the victim of each crime, with Todd showing up

       unexpectedly at her place of work or somewhere he knew she would be. Each

       time, Todd would force himself into Kelli’s van by intimidation, threat, or trick,

       and tell her they needed to talk. Three of the four kidnappings resulted in Todd

       forcing Kelli back to their marital residence, yelling at her, and/or attempting to

       discuss their marriage. Regarding his motive, it appears as if at first Todd

       desired to reconcile their marriage; however, factoring in the incidents that

       occurred in May and October of 2014, it is clear his original motive eventually

       transformed into harassment and retaliation. In sum, Todd committed the

       same crimes multiple times, in substantially the same way, and against the

       same victim. See id. at 1267. Because the operative facts of Todd’s crimes

       establish a pattern of activity beyond the satisfaction of the statutory elements,

       subsection 9(a)(2) is satisfied and Todd is not entitled to severance as of right.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 14 of 25
[23]   Todd next argues the trial court abused its discretion because severance was

       appropriate under Indiana Code section 35-34-1-11(a). Indiana Code section

       35-34-1-11(a) provides, in relevant part,


               In all other cases the court, upon motion of the defendant or the
               prosecutor, shall grant a severance of offenses whenever the court
               determines that severance is appropriate to promote a fair
               determination of the defendant’s guilt or innocence of each
               offense considering:


               (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.


[24]   Thus, Section 35-34-1-11(a) mandates that a trial court, after considering the

       number of offenses, the complexity of the evidence, and whether the trier of fact

       will be able to distinguish the evidence and apply the law intelligently, sever the

       charges when necessary to promote a fair trial. Here, although there were

       fourteen counts, only three different crimes were charged. Moreover, there was

       only one victim of each count charged, and the State presented Kelli’s

       testimony of the events in chronological order. The offenses were easily

       distinguishable and largely based solely on Kelli’s testimony with corroborating

       evidence provided by law enforcement officers and Kelli’s family. Finally,

       Todd fails to discuss or point out how the jury would have been unable to



       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 15 of 25
       distinguish the evidence and intelligently apply the law in this case.3 Therefore,

       the trial court did not abuse its discretion in denying severance pursuant to

       Indiana Code section 35-34-1-11(a).4


                                     II. Admission of Evidence
                                          A. Standard of Review
[25]   A trial court has broad discretion in ruling on the admissibility of evidence.

       Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). We review its rulings for

       abuse of discretion, which occurs only if the decision was clearly against the

       logic and effect of the facts and circumstances. Id.


                                              B. Other Bad Acts
[26]   Todd argues the trial court abused its discretion in admitting evidence of prior

       bad acts, which he asserts should have been excluded pursuant to Indiana Rule

       of Evidence 404(b). Specifically, Todd challenges the admission of (1) evidence

       he attempted to frame Kelli with drugs and a firearm, (2) evidence he tampered




       3
         The only errors Todd discusses are (1) Kelli’s error stating the second kidnapping occurred on April 4 and
       April 14, 2014, and (2) Kelli’s misstatement (which she later corrected) that she spent the night at the marital
       residence on April 4.
       4
         Todd also contends the trial court was required to consider Indiana Rule of Evidence 404(b) in determining
       whether severance was appropriate. Todd claims “the Indiana Supreme Court held it is necessary to consider
       Evid. R. 404(b) considerations in analyzing severance[,]” and cites to Wells v. State, 983 N.E.2d 132 (Ind.
       2013). Corrected Appellant’s Br. at 26. Our supreme court heard oral argument in Wells, but ultimately
       vacated its order granting transfer and reinstated the memorandum decision of this court. Further, the
       portion of Wells cited to by Todd is a dissent from the denial of transfer. See Wells, 983 N.E.2d at 132-40
       (Rucker, J., dissenting from the denial of transfer). Therefore, Wells is not appropriately considered precedent
       for the point Todd advocates.



       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017              Page 16 of 25
       with the tires on Kelli’s van, (3) evidence he tried to entice his new girlfriend to

       lie at trial, (4) testimony from the guardian ad litem and child protective

       services agent, and (5) testimony of other acts involving Kelli’s family and

       Todd.5


[27]   Indiana Rule of Evidence 404(b) states, in relevant part,


                (1) Prohibited Uses. Evidence 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.


                (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
                admissible for another purpose, such as proving motive,
                opportunity, intent, preparation, plan, knowledge, identity,
                absence of mistake, or lack of accident.


       Rule 404(b) prohibits the State from presenting evidence of a person’s “crime,

       wrong, or other act” to the extent it is used to prove a person’s character and

       demonstrate on a particular occasion a person acted in accordance with that

       character. Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014). The

       purpose of the rule is to protect against the “forbidden inference—that the

       defendant acted badly in the past, and that the defendant’s present, charged

       actions conform with those past bad acts . . . .” Nicholson v. State, 963 N.E.2d




       5
         Todd did not object at trial to the testimony of the guardian ad litem, the child protective services agent, or
       any of the other acts involving Kelli’s family and Todd. Failure to object at trial results in the waiver of the
       claim of error on appeal. See Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017               Page 17 of 25
       1096, 1099-1100 (Ind. 2012) (citation omitted). However, evidence of crimes,

       wrongs, or other acts are admissible if offered for another purpose, such as to

       prove “motive, opportunity, intent, preparation, plan, knowledge, identity,

       absence of mistake, or lack of accident.” Evid. R. 404(b)(2).


[28]   In assessing the admissibility of Rule 404(b) evidence, we (1) determine whether

       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 403.6 Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997).


       1. Evidence Todd tampered with Kelli’s van and tried to frame her with drugs
                                    and a firearm

[29]   Todd first alleges it was improper for the jury to hear evidence concerning his

       tampering with Kelli’s van’s tires on May 1, 2014, and his attempt to frame

       Kelli on October 24, 2014, by having Josh place drugs and a weapon on her

       front porch. Todd asserts the charges for his actions on October 24th are

       pending, and the “proper forum for a jury to hear evidence of that act is in the

       trial for that cause.” Corrected Appellant’s Br. at 19. In rebuttal, the State

       argues these acts are admissible as evidence of Todd’s guilty knowledge.




       6
        Indiana Rule of Evidence 403 permits the trial court to 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.”

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017            Page 18 of 25
[30]   In Matthews v. State, 866 N.E.2d 821 (Ind. Ct. App. 2007), trans. denied, we

       reviewed the admission of testimony that the defendant confessed his crime to,

       threatened, and then shot at a witness for the prosecution. Like Todd, the

       defendant argued the statements were inadmissible pursuant to Rule 404(b), but

       we held:

               Threats by the accused against prosecution witnesses are
               considered attempts to conceal or suppress implicating evidence
               and are relevant and admissible into evidence. Such threats are
               viewed as admissions of guilt and therefore are relevant to
               demonstrate an accused’s guilty knowledge. Accordingly,
               evidence of [the defendant’s] threatening and intimidating
               actions against [witnesses] were admissible for a purpose other
               than to merely show his propensity to engage in wrongful acts.


       Id. at 825 (internal quotation and citation omitted). Todd’s attempt to frame

       Kelli with drugs and guns on October 24, 2014 is fairly straightforward. Todd

       instructed Josh on how and when to plant this incriminating evidence hoping

       Kelli would be arrested. Josh testified Todd wanted him to do this because

       “[h]e didn’t want to go to jail.” Tr., Vol. IV at 40. Todd’s attempt to frame

       Kelli was an attempt to attack the credibility of or suppress her testimony and is

       highly probative of his consciousness of guilt. See Larry v. State, 716 N.E.2d 79,

       81 (Ind. Ct. App. 1999) (holding evidence that the defendant beat up a

       prosecution witness is evidence of guilty knowledge and properly admissible

       under the knowledge exception of Rule 404(b)).


[31]   Similarly, Todd’s deflating of Kelli’s tires on May 1, 2014 is also relevant as

       consciousness of guilt. This event occurred several days after Todd was finally

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 19 of 25
       arrested for his continuing offenses against Kelli. Following his arrest on April

       24, Todd told Kelli, “you need to watch your back, bitch.” Tr., Vol. III at 78.

       Six days later, this incident occurred. As we previously noted, “[t]hreats by the

       accused against prosecution witnesses are considered attempts to conceal or

       suppress implicating evidence and are relevant and admissible into evidence.”

       Matthews, 866 N.E.2d at 825 (citation and quotation omitted).


[32]   As to whether the probative value of this evidence is substantially outweighed

       by a danger of unfair prejudice to Todd, we note Todd’s theory at trial was that

       Kelli also wanted to reconcile their marriage and often willingly accepted his

       attempts to do so, but was blocked by her family. See Corrected Appellant’s Br.

       at 19. Given Todd’s theory of the case, we cannot say evidence of Todd’s

       guilty knowledge of the criminality of his acts was substantially outweighed by

       the danger of unfair prejudice to him. Therefore, we conclude the trial court

       did not abuse its discretion in admitting evidence Todd tampered with Kelli’s

       van’s tires and instructed Josh to plant incriminating evidence on her porch.


          2. Evidence Todd tried to entice his new girlfriend to give false testimony

[33]   The trial court also admitted into evidence the testimony of Nicole Miller,

       Todd’s new girlfriend, and letters written by Todd asking her to give false

       testimony. Todd asserts this evidence was highly prejudicial with no probative

       value. The State again counters that the testimony and letters were offered to

       prove Todd’s guilty knowledge, not his propensity to commit bad acts.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 20 of 25
[34]   In Bowman v. State, 51 N.E.3d 1174 (Ind. 2016), the trial court admitted into

       evidence letters written by the defendant while in prison seeking to secure

       beneficial testimony from two witnesses. Most of the testimony requested by

       the defendant was patently false. Our supreme court affirmed the trial court’s

       ruling the letters were admissible pursuant to Rule 404(b)(2) as evidence of a

       guilty mind. Id. at 1180-81.


[35]   Similarly, the trial court admitted Miller’s testimony and the letters sent to her

       as evidence of “[Todd’s] . . . knowledge.” Tr., Vol. IV at 192. The letters

       reveal Todd asking for favorable testimony and for her to testify she was with

       him on two of the dates he committed his crimes; Miller had not yet met Todd

       on those dates and did not meet Todd in person until May 2 or May 3, 2014.

       The trial court did not abuse its discretion in admitting this evidence.


[36]   Finally, we note any error in the admission of evidence concerning Todd’s

       other acts is harmless. “[E]rrors in the admission of evidence are to be

       disregarded as harmless error unless they affect the substantial rights of a

       party.” VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013) (citation omitted).

       In determining whether a defendant’s substantial rights have been affected, a

       reviewing court must assess the probable impact of the evidence upon the jury.

       Id. The improper admission of evidence is deemed harmless if there is

       substantial independent evidence of guilt supporting a conviction such that we

       can say there is no substantial likelihood that the questioned evidence

       contributed to the conviction. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012). Here, there was substantial independent evidence of Todd’s guilt

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 21 of 25
       beyond that of his other crimes and wrongs. Kelli testified at length about each

       incident in chronological order. Kelli’s testimony was corroborated by

       members of her family and they detailed her relationship struggles with Todd as

       well as her fear of what he may have been capable of doing. Multiple law

       enforcement officers testified about each incident and corroborated Kelli’s

       testimony. In addition, the trial court gave multiple limiting instructions

       ordering the jury to consider the challenged evidence only for the purpose of

       “[Todd’s] intent, motive and/or knowledge.” Tr., Vol. III at 156. In sum,

       there is not a substantial likelihood the jury convicted Todd because of his

       propensity to commit crimes.


                                  III. Inappropriate Sentence
[37]   Todd’s final argument requests we exercise our constitutional authority to

       review and revise his sentence. Indiana Appellate Rule 7(B) provides, “The

       Court may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” The

       defendant bears the burden of persuading this court his or her sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a

       sentence is inappropriate 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

       principal role of appellate review is to “leaven the outliers,” not achieve the

       perceived “correct” result in each case. Id. at 1225.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 22 of 25
[38]   The advisory sentence is the starting point the legislature selected as an

       appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d

       482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Here, Todd

       was convicted and sentenced on four counts of kidnapping, as Class A felonies,

       and two counts of stalking, as Class C felonies. A person convicted of a Class

       A felony shall be imprisoned for a fixed term between twenty and fifty years,

       with the advisory sentence being thirty years. Ind. Code § 35-50-2-4(a). A

       person convicted of a Class C felony shall be imprisoned for a fixed term

       between two and eight years, with the advisory sentence being four years. Ind.

       Code § 35-50-2-6(a). Todd received forty years for each count of kidnapping, to

       run concurrently with each other, and received six years for each count of

       stalking, to run concurrently with each other but consecutive to his kidnapping

       sentences. Todd also received an additional thirty years for being an habitual

       offender. See Ind. Code § 35-50-2-8(a), (h) (2005).7 Todd’s aggregate sentence

       is seventy-six years.




       7
         Under the criminal code in effect when Todd committed these crimes, the trial court was obligated to
       sentence Todd to a minimum of thirty additional years for being an habitual offender. Under the criminal
       code now in effect, the trial court has discretion to sentence an habitual offender convicted of a Level 1
       through Level 4 felony to an additional term between six and twenty years. See Ind. Code § 35-50-2-8(i)(1)
       (2014). Todd alleges the doctrine of amelioration should apply, allowing him to be sentenced under the
       current and more lenient statute. See Lunsford v. State, 640 N.E.2d 59, 60 (Ind. Ct. App. 1994) (citing Vicory v.
       State, 272 Ind. 683, 400 N.E.2d 1380, 1381-82 (1980)). However, the doctrine of amelioration does not apply
       where the legislature, in a specific saving clause, expressly states that crimes committed before the effective
       date of the ameliorative amendment should be prosecuted under prior law. Turner v. State, 870 N.E.2d 1083,
       1087 (Ind. Ct. App. 2007). Here, the General Assembly, in enacting the new criminal code, specifically
       enacted savings clauses. Both Indiana Code section 1-1-5.5-21 and section 1-1-5.5-22 state that the new
       criminal code “does not affect: (1) penalties incurred; (2) crimes committed; or (3) proceedings begun” before
       the effective date of the new criminal code sections. The effective date of the new criminal code as it pertains


       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017              Page 23 of 25
[39]   As to the nature of the offenses, Todd harassed his wife over a period of two

       months and kidnapped her four times. In one instance, Todd told Kelli to stab

       him in the abdomen with a knife; in another, Todd intimidated Kelli with a

       knife. Kelli received scratches to her face during the second kidnapping and

       was forced to have sex with Todd resulting in a torn hymen during the fourth

       kidnapping. Moreover, Todd utilized his fourteen-year-old son in several of the

       kidnappings, often using him as leverage to come in contact with Kelli. Todd

       also persuaded his son to plant drugs and a weapon on Kelli’s porch in an

       attempt to have her arrested. Nothing about the nature of the offenses

       persuades us Todd’s sentence is inappropriate.


[40]   Regarding Todd’s character, Todd has a criminal history beyond that used for

       the habitual offender enhancement which supports an above-advisory sentence.

       Todd has been convicted of four felonies, including a prior stalking offense.

       Although only the prior stalking offense relates to his current offense, see Harris

       v. State, 897 N.E.2d 927, 930 (Ind. 2008) (noting the significance of a

       defendant’s criminal history varies based upon the gravity, nature, and number

       of prior offenses in relation to the current offense), his consistent contacts with

       law enforcement and the judicial system exhibit a disregard for the law and an




       to the habitual offender enhancement is July 1, 2014. Todd committed his offenses in March and April of
       2014. Moreover, these sections provide that “Those penalties, crimes, and proceedings continue and shall be
       imposed and enforced under prior law as if [the new criminal code] had not been enacted.” Id. These
       sections affirmatively state: “The general assembly does not intend the doctrine of amelioration (see Vicory v.
       State [272 Ind. 683], 400 N.E.2d 1380 (1980)) to apply to any SECTION [of the new criminal code].” Id.
       Therefore, the doctrine of amelioration cannot be applied to Todd’s sentencing.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017            Page 24 of 25
       inability or unwillingness to abide by it. Todd also violated a protective order

       and has pending criminal causes relating to his other actions. We also note

       Todd’s repeated attempts to undermine the criminal justice system by taking

       Kelli’s phone so she could not call the police, leaving a note on her van after

       she spoke with a police officer, threatening Kelli with violence if she told

       anyone about his actions, keeping Josh from speaking with police, deflating

       Kelli’s van’s tires, having Josh plant incriminating evidence in an attempt to

       have her arrested, and attempting to have his new girlfriend give false testimony

       in his favor. Simply put, nothing about the nature of the offenses or Todd’s

       character persuades us his sentence is inappropriate.



                                               Conclusion
[41]   The trial court did not abuse its discretion in denying Todd’s motion to sever

       the counts or in admitting evidence and his sentence is not inappropriate in

       light of the nature of the offenses and his character. Accordingly, we affirm

       Todd’s convictions and sentence.


[42]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1608-CR-1783 | April 27, 2017   Page 25 of 25
