MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this                                Jul 18 2018, 9:16 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                             CLERK
                                                                           Indiana Supreme Court
purpose of establishing the defense of res judicata,                          Court of Appeals
                                                                                and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Timothy P. Broden                                      Curtis T. Hill, Jr.
Lafayette, Indiana                                     Attorney General of Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy M. See,                                            July 18, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A05-1712-CR-2930

        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven P. Meyer,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           79D02-1608-F1-14




Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018               Page 1 of 7
[1]   Between November of 2015 and July of 2016, Tina Russell; her children L.R.,

      R.R., and B.J.; Shavon Richardson; her children T.R., T.R., and J.R.; and

      Timothy See lived together at several locations in Lafayette. Russell’s and

      Richardson’s children called See “papaw[,]” and Russell’s children did not refer

      to any other individual by that name. Tr. Vol. 2, p. 92. Russell was familiar

      with See as he had raised her when she was little, and See would often watch

      hers and Richardson’s children while the women were at work.


[2]   Once, while See was watching the six-year-old L.R., he brought L.R. into the

      bedroom. See and L.R. were not wearing any clothes, and See touched L.R.’s

      penis. L.R. described a penis as a “thing” and described See’s as “hairy.” Id. at

      54. As See was touching L.R.’s penis he also touched his own penis until he

      ejaculated. After See ejaculated, he told L.R. to keep what had occurred a

      secret.


[3]   On August 17, 2016, the State charged See with two counts of Level 1 felony

      child molesting for molesting L.R., one of which was later amended to a Level

      4 felony. The State also charged See with two counts of child molesting as

      Level 1 and Level 4 felonies pertaining to B.J., Level 4 felony child molesting

      pertaining to J.T., and Level 4 felony child molesting pertaining to one of

      Richardson’s children with the initials T.R. On July 12, 2017, See moved to

      sever the counts filed in his case pursuant to Indiana Code 35-34-1-12 (1981),

      arguing that all charges pertaining to each alleged victim should be tried

      separately. The State filed an objection to See’s motion, alleging that the four

      separate victims in the instant case were siblings, the offenses were committed

      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018   Page 2 of 7
      while See was providing childcare for the victims, the crimes were of a similar

      character and occurred in the same location, and a severance of the offenses

      would cause undue trauma for the young victims who would have to testify

      multiple times regarding offenses against themselves and against others to

      which they were witnesses. On September 5, 2017, the trial court denied See’s

      motion to sever, noting that (1) both parties conceded See was not entitled to

      severance as a matter of right pursuant to Indiana Code 35-34-1-1(a) (1994) as

      the charges were not joined solely on the grounds of similar character and (2)

      the operative facts were sufficiently connected to justify joinder. The trial court

      also considered the appropriateness of discretionary severance pursuant to

      Indiana Code 35-34-1-11(a) (1981) and declined to do so.


[4]   See proceeded to a jury trial on all counts on October 10, 2017, and was

      convicted of molesting L.R. as charged in amended Count IV, while three other

      charges were dismissed pursuant to directed verdicts and two of the three

      submitted to the jury resulted in acquittal. See admitted his status as a habitual

      offender. On November 17, 2017, the trial court sentenced See to ten years of

      incarceration for the Level 4 felony child molesting conviction, enhanced six

      years by virtue of his habitual offender status.


                              1. Sufficiency of the Evidence
[5]   When reviewing the sufficiency of the evidence, we neither weigh the evidence

      nor resolve questions of credibility. Jordan v. State, 656 N.E.2d 816 (Ind. 1995).

      We look only to the evidence of probative value and the reasonable inferences


      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018   Page 3 of 7
      to be drawn therefrom which support the verdict. Id. If from that viewpoint

      there is evidence of probative value from which a reasonable trier of fact could

      conclude that See was guilty beyond a reasonable doubt, we will affirm the

      conviction. Spangler v. State, 607 N.E.2d 720 (Ind. 1993). “[I]t is precisely

      within the domain of the trier of fact to sift through conflicting accounts of

      events. Not only must the fact-finder determine whom to believe, but also what

      portions of conflicting testimony to believe.” In re J.L.T., 712 N.E.2d 7, 11

      (Ind. Ct. App. 1999), trans. denied.


[6]   In order to convict See of Level 4 felony child molesting, the State was required

      to establish that he, “with a child under fourteen (14) years of age, perform[ed]

      or submit[ted] to any fondling or touching, of either [L.R. or himself], with

      intent to arouse or to satisfy the sexual desires of either [L.R. or himself.]” Ind.

      Code § 35-42-4-3 (2015). See contends only that the State produced insufficient

      evidence to sustain a finding that he was the perpetrator, citing L.R.’s testimony

      that he did not see his “papaw” seated in the courtroom. Following this

      testimony, however, L.R. stated that while he lived with “papaw Tim[,]” he

      had seen him without his clothes on. Tr. Vol. 2, p. 53. L.R. then confirmed

      that “papaw” touched L.R.’s penis, that he was in “papaw[’s]” bedroom when

      that occurred, that “papaw” was not wearing clothes, that “papaw’s” penis

      looked hairy, that “yellow stuff” came out of “papaw’s” penis, and that

      “papaw” told L.R. to keep the event a “secret.” Id. at 52, 53, 54, 55, 56.


[7]   Although L.R. claimed that his “papaw” was not in the courtroom when asked

      to identify him, L.R.’s testimony is clear that it was “papaw” who molested

      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018   Page 4 of 7
      him, and that L.R. was responding to questions about “papaw Tim.” Id. at 51,

      53. Russell confirmed that her children, including L.R., called See “papaw”

      and that there was nobody else her children referred to as “papaw[.]” Id. at 92,

      97. The jury was free to evaluate the testimony presented and determine which

      testimony to believe, as well as which portions of conflicting testimony to

      believe. See J.L.T., 712 N.E.2d at 11. Here, the State presented sufficient

      evidence to allow the jury to determine that “papaw” was See.


                                    2. Severance of Charges
[8]   While conceding that he was not entitled to have his charges severed as of right,

      See contends that the trial court abused its discretion in denying his severance

      motion. Pursuant to Indiana Code section 35-34-1-11(a):

              (a) 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. 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.

[9]   Moreover:

              [i]f […] offenses have been joined because the defendant’s
              underlying acts are connected together, we review a trial court’s

      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018   Page 5 of 7
               ruling on a severance motion for an abuse of discretion. […] If
               the operative facts establish a pattern of activity beyond mere
               satisfaction of the statutory elements, such as that multiple crimes
               have been committed with a common victim, modus operandi,
               and motive, a defendant is not entitled to severance of charges as
               of right. When reviewing discretionary denial of a motion to
               sever, we must consider whether severance was required in order
               to promote a fair determination of the defendant’s guilt or
               innocence after reviewing subsections 1–3 of Indiana Code
               Section 35-34-1-11(a). […] We will reverse denial of a
               discretionary severance motion only for clear error.

       Robinson v. State, 56 N.E.3d 652, 656 (Ind. Ct. App. 2016) (case citations

       omitted), trans. denied. See must also show “that in light of what actually

       occurred at trial, the denial of a separate trial subjected him to such prejudice

       that the trial court abused its discretion in refusing to grant his motion for

       severance.” Hunt v. State, 455 N.E.2d 307, 312 (Ind. 1983).


[10]   Under the circumstances of this case, even if we assume that the trial court

       abused its discretion in refusing to sever the charges against See, he cannot

       establish that he was prejudiced thereby. Of the three charges submitted to the

       jury, See was convicted of one and acquitted of two. Not only is that a strong

       indication that the jury was not confused by the character of the evidence, “it

       has long been the law of this state that acquittal of charges from one joined

       offense makes the misjoinder unavailable for reversal of the judgment.” Harvey

       v. State, 719 N.E.2d 406, 410 (Ind. Ct. App. 1999) (citing Myers v. State, 92 Ind.

       390, 395 (1883)). See has failed to establish that the trial court abused its

       discretion in denying his motion to sever the charges against him.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018   Page 6 of 7
[11]   Judgment affirmed.


[12]   Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2930 | July 18, 2018   Page 7 of 7
