                                                                          FILED
                                                                     Jun 30 2016, 5:32 am
MEMORANDUM DECISION
                                                                          CLERK
                                                                      Indiana Supreme Court

Pursuant to Ind. Appellate Rule 65(D), this                              Court of Appeals
                                                                           and Tax Court

Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Gregory F. Zoeller
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Don Johnson,                                             June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1511-CR-1866
        v.
                                                         Appeal from the Marion
                                                         Superior Court
State of Indiana,
                                                         The Honorable Lisa Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1402-FA-9708



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016          Page 1 of 12
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Don Johnson (Johnson), appeals the denial of his motion

      to sever.


[2]   We affirm.


                                                     ISSUE

[3]   Johnson raises one issue on appeal, which we restate as: Whether the trial

      court abused its discretion in denying Johnson’s motion for severance.


                           FACTS AND PROCEDURAL HISTORY

[4]   On January 21, 2014, T.W. was meeting her friends, A.L. and T.J., at an

      apartment on the corner of 46th and Winthrop, in Indianapolis, Indiana. When

      she arrived at that location, she tried calling her friends for the specific address

      of where they were meeting, but her calls went unanswered. T.W. was not sure

      which apartment her friends were in, so she walked into the apartment building

      to look for them. As she was walking in, Johnson held the door open for her.

      T.W. knew Johnson as “Tony” and she described him as a friend from the

      “neighborhood.” (Transcript p. 30). As T.W. began walking down the

      hallway, Johnson followed her and tripped her. T.W. fell, her knee popped,

      and she hit her head on the floor. While on the ground, Johnson grabbed

      T.W.’s cell phone. When T.W. looked up, she saw Johnson holding a box

      cutter in his hand. Johnson declared that he wanted “some free pussy” and he

      proceeded to drag T.W. to an adjacent empty apartment. (Tr. p. 34). Johnson

      directed T.W. to take off her clothes; however, T.W. was unable to since her

      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 2 of 12
      knee was hurting. T.W. informed Johnson that if he wanted her clothes off,

      “he had to do it himself.” (Tr. p. 37). Johnson told T.W. to remain quiet and if

      she screamed, he was going to kill her. After removing T.W.’s pants and

      underwear, Johnson removed his pants. T.W. begged Johnson to use a

      condom, which he did. With one hand on T.W.’s neck, and the other holding

      the box cutter, Johnson penetrated T.W.’s vagina with his penis. At some

      point, Johnson removed his hand from T.W.’s neck and pulled T.W.’s “titty

      out [] and licked it.” (Tr. p. 40). After three humps or so, Johnson got up and

      instructed T.W. to get dressed. Because T.W. was incapable of dressing herself,

      she asked Johnson to help her. T.W. could not walk, so Johnson aided her out

      of the apartment building and he gave back her cell phone. By that time, A.L.

      had arrived and was in her car waiting. T.W. told A.L. what had happened

      and she requested A.L. to take her to the hospital. T.W. had a complete

      physical examination, including an x-ray of her right knee and a sexual assault

      examination. No sign of injury was detected on the x-ray.


[5]   A couple of weeks later, on February 5, 2014, A.O. had a date to meet a man

      named Tony, who was later identified as Johnson. A.O. and Johnson met

      through a phone line dating site. On that day, Johnson arrived at A.O.’s house

      at around 8:30 p.m. with a bag of peanuts and a bottle of liquor. A.O.’s three-

      year-old son was asleep at the time. The couple drank the liquor, talked, and

      watched a movie. As the night progressed, Johnson wanted to smoke a

      cigarette in the living room, but A.O. informed him that she did not allow it, so

      they both went into the bathroom to smoke. While in there, Johnson “flashed


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 3 of 12
      himself and showed his penis.” (Tr. p 170). A.O. told Johnson, “this is not

      what I’m looking for. You know I’m looking for love. You know, I at least

      want to get to know . . . you first before I . . . have sex . . . .” (Tr. p. 170). The

      two went back to the living room and continued to watch the movie while

      talking.


[6]   After a while, A.O. noticed that Johnson was acting strange, and A.O. felt as if

      Johnson wanted to have sex with her or scope out her home so that he could

      rob her. Feeling troubled, she asked Johnson to leave. After Johnson left, A.O.

      called him to figure out why he was behaving oddly. The two argued on the

      phone, and after about twenty minutes, Johnson returned to A.O.’s apartment

      and asked A.O. to let him in as he wanted to apologize. When A.O. opened

      the door, Johnson pushed his way through and A.O. sat down waiting for an

      apology. Instead, Johnson shouted, “[b]itch get up” and he pulled out a pocket

      knife and told A.O. to open her mouth. (Tr. p. 174-75). With the knife inside

      A.O.’s mouth, Johnson forced A.O. to go to her bedroom. Johnson threatened

      A.O. by telling her that if she did not comply with his commands, he would kill

      her three-year-old son. While forcing her into the bedroom, Johnson yelled,

      “Bitch, stop screaming. I’m going to kill you and your son.” (Tr. p. 175). In

      the process of that ordeal, the knife sliced A.O.’s mouth.


[7]   In the bedroom, Johnson pushed A.O.’s face down on the bed, and he hit her

      several times in the head using both fists. According to A.O., it hurt and she

      “kind of like blacked out for a minute and then I came back to myself.” (Tr. p.

      176). When A.O. regained consciousness, he found Johnson calling her “all

      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 4 of 12
      kinds of fat Bs . . . [a]nd he was like, you think you’re too good, and stuff. And

      then he got out this rope and told me to put my hands behind my back.” (Tr. p.

      176). As A.O. stood up to put her hands together, she pushed Johnson to the

      side and ran out of her apartment. A.O. ran to a neighbor’s apartment and

      requested that they call the police. As she ran for help, A.O. could hear

      Johnson ransacking her apartment. Shortly thereafter, A.O. returned to her

      apartment to retrieve her son, but she was met by Johnson who came running

      out of the apartment. Johnson struck A.O. in the head and she fell on her

      knees. As he ran out, Johnson grabbed A.O.’s cell phone. After Johnson had

      disappeared, the police arrived. On February 13, 2014, Detective Gary Smith

      of the Indianapolis Metropolitan Police Department (Detective Smith) went to

      A.O.’s house and presented a photo array, and immediately A.O. identified

      Johnson, being the man that assaulted her.


[8]   On February 28, 2014, the State charged Johnson with Count I, rape, a Class A

      felony; Count II, rape, a Class A felony; Count III, criminal deviate conduct, a

      Class A felony; Count IV, criminal deviate conduct, a Class A felony; Count V,

      criminal confinement, a Class B felony; Count VI, intimidation, a Class C

      felony; Count VII, criminal confinement, a Class B felony; Count VIII, battery,

      a Class A misdemeanor; Count IX, battery, a Class A misdemeanor; Count X,

      robbery, a Class B felony; Count XI, sexual battery, a Class C felony; Count

      XII, sexual battery, a Class C felony; Count XIII, rape, a Class A felony; Count

      XIV, rape, a Class A felony; Count XV, burglary, a Class A felony; Count XVI,

      criminal confinement, a Class B felony; Count XVII, intimidation, a Class C


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 5 of 12
       felony; Count XVIII, battery, a Class A misdemeanor; Count XIX, battery, a

       Class C felony; and Count XX, robbery, a Class B felony.


[9]    Counts I through VI were in relation to a prior incident on October 15, 2013.

       The probable cause affidavit stated that seventeen-year-old S.H. was walking to

       her friend’s house at around 9:00 p.m., and Johnson, who was armed with a

       knife, approached S.H. from behind, wrapped his arm around S.H.’s waist, and

       stuck a knife to her side. The affidavit further stated that Johnson walked S.H.

       backwards for some distance and ordered her to get into a van. S.H. was fearful

       and she pleaded with Johnson to let her go. Johnson stated that he would kill

       her if she said anything. Johnson forcefully penetrated S.H.’s vagina using his

       penis. After raping S.H., Johnson ordered S.H. to put her pants back on, and

       told her to stop crying or he would kill her. Johnson drove S.H. a couple of

       blocks before stopping at East 37th Street and Broadway Avenue, in

       Indianapolis, Indiana. S.H. ran home, told her sister and mother that she had

       been raped, and, in turn, S.H.’s mother called the police.


[10]   For the incident involving T.W., the State charged Johnson with Counts VII

       through XIV, which included: criminal confinement, a Class B felony; two

       Counts of battery, Class A misdemeanors; robbery, a Class B felony; two

       Counts of sexual battery, Class C felonies; and two Counts of rape, Class A

       felonies. For the incident involving A.O., the State charged Johnson with

       Counts XV through XX, which included: burglary, a Class A felony; criminal

       confinement, a Class B felony; intimidation, a Class C felony; battery, a Class

       A misdemeanor; battery, a Class C felony; and robbery, a Class B felony.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 6 of 12
[11]   On September 15, 2014, Johnson filed a motion to sever, arguing that the

       charges relating to S.H., T.W., and A.O., ought to be tried in three separate

       trials. Specifically, Johnson claimed that he would be denied a fair

       determination of his guilt or innocence, and that the trial court had the

       discretion pursuant to I.C. § 35-34-1-11, to order for the severance of the

       charges. The State did not object to the severance of Counts I through VI,

       however, it objected to the severing of Counts VII through XIV relating to

       T.W., and Counts XV through XX relating to A.O. Specifically, the State

       argued that the facts and circumstances of the charges relating to T.W. and

       A.O., were sufficiently connected together to demonstrate a common modus

       operandi, i.e., T.W. knew Johnson as Tony, and that Johnson identified himself

       as Tony to A.O. The trial court granted Johnson’s motion only to sever Counts

       I through VI, but denied severing Counts VII through XX.


[12]   A bifurcated jury trial was held for Counts VII through XX on September 21-

       22, 2015. 1 Also, Johnson renewed his motion for severance, and, again, the




       1
         At the start of trial, Counts VII through XX, were renumbered as Counts I through XIV. We note that the
       abstract of the judgement correlates to the Information. However, for the purpose of clarity, we will avoid
       further reference to the numbered Counts in our opinion hereon, and we will only refer to the offenses that
       pertain to each victim.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016            Page 7 of 12
       trial court denied it. At the close of the State’s case, Johnson moved for a

       directed verdict on battery, a Class A misdemeanor; and robbery, a Class B

       felony, against T.W. The trial court only granted Johnson a directed verdict on

       the misdemeanor battery.


[13]   Johnson’s defense was that he met T.W. through T.W.’s boyfriend. Johnson

       admitted the he saw T.W. on January 21, 2014, and had met with T.W. and

       T.W.’s boyfriend for the purpose of selling marijuana. He further testified that

       he got into a fight with T.W.’s boyfriend after T.W.’s boyfriend offered him

       counterfeit money. Johnson claimed that T.W. hit him while he was fighting

       with her boyfriend, and in the process of the scuffle, he grabbed, pushed, and

       spat on T.W.


[14]   With regards to A.O., Johnson admitted that he had met A.O. on a phone chat

       line site. Johnson claimed that A.O. had indicated in the site that “she was

       looking for someone that was being generous” which Johnson recognized as

       code for prostitution. (Tr. p. 321). Johnson stated that he had agreed to meet

       with A.O. in her apartment on February 5, 2014. Johnson stated that

               the deal was for -- to exchange sex -- money for sex. And it was -- oral
               sex is what she was supposed to be giving me. And I kept on asking
               her, What’s up? What’s up? And she was like, let’s not rush. We got
               all night. And I’m like, I got to get back home to my mom, because I
               take care of my mom. She’s at dialysis three times a week. So I’m
               like, I ain’t got all night. I got to get back home. So I’m like, You
               playing. So I’m like, I got to go. So I gets up. I leave. So when I
               leave, I gets ready to leave. I get in the car and getting ready to leave
               and everything, and she calls me right back and says, Okay. Okay.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 8 of 12
       (Tr. pp. 330-31). Johnson claimed that when he returned to A.O.’s apartment,

       A.O. performed fellatio on him, and in the process, he pulled off A.O.’s wig

       and he began laughing at her. According to Johnson, A.O. became upset and

       stated, “[W]hat the fuck are you laughing at? I’m like you. And she got to

       calling me bitches and motherfucker . . . .” (Tr. p. 332). Johnson testified that

       he was to pay A.O. $30 for a full fellatio, but because it was not completed, he

       “peeled off $15.00 and threw it on the table and said. There go your money.

       She was like, no, motherfucker, you owe me $30.” (Tr. p. 332). According to

       Johnson, A.O. was angry, and she blocked the door demanding full pay.

       Johnson claimed that there was a tussle by the door but he elbowed his way out

       of A.O.’s apartment.


[15]   The jury acquitted Johnson of all but one of the charges involving T.W., i.e., a

       Class A misdemeanor battery. With regards to the crimes against A.O., the

       jury found Johnson guilty of five of the six Counts against A.O. Specifically,

       Johnson was found guilty of one Count of burglary, one Count of criminal

       confinement, one Count of intimidation, and two Counts of battery. The jury

       returned a not guilty finding on robbery, a Class B felony.


[16]   On October 21, 2015, the trial court conducted a sentencing hearing. At the

       request of the State, the trial court dismissed Counts one through six relating to

       S.H. The trial court declined to enter convictions for all charges except for the

       misdemeanor, battery against T.W., and the Class A burglary offense against




       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 9 of 12
       A.O. 2 The trial court sentenced Johnson to concurrent sentences of one year

       for the battery offense and nine years for the burglary offense.


[17]   Johnson now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

[18]   Indiana Code section 35-34-l-9(a), allows joinder of offenses in the same

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

       the offenses:

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


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


[19]   If two or more offenses are joined solely because they are of the same or similar

       character, as permitted in subsection 9(a)(1), a defendant is entitled to severance

       as a matter of right, and the trial court has no discretion to deny a defendant’s

       motion. Ind. Code § 35-34-1-11(a); Jackson v. State, 938 N.E.2d 29, 35 (Ind. Ct.

       App. 2010), trans. denied. However, if the State can establish that a common




       2
         Due to double jeopardy concerns, the trial court vacated four of Johnson’s convictions of the crimes
       committed against A.O. Specifically, the trial court vacated Johnson’s convictions of criminal confinement,
       intimidation, and two counts of battery.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016           Page 10 of 12
       modus operandi linked the crimes and that the same motive induced that criminal

       behavior, then the offenses are sufficiently connected that joinder is justified

       under subsection 9(a)(2), and a defendant is not entitled to severance as a

       matter of right. See Garcia-Torres v. State, 949 N.E.2d 1229, 1232 n. 5 (Ind.

       2011).


[20]   Where severance is not a matter of right, a defendant may request, and the trial

       court shall grant, a severance if the trial court “determines that severance is

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

       innocence of each offense.” I.C. § 35-34-1-11(a).


[21]   Johnson was accused of committing various offenses against three different

       complaining witness on three separate dates. The Counts relating to S.H., the

       first victim, were severed. However, the Counts relating to T.W. and A.O.

       were not severed because, in both instances, Johnson used Tony as a

       pseudonym, thus depicting a common modus operandi. Johnson concedes that

       he was not entitled to severance as a matter of right; however, he argues that

       the “number of charges and the similarities among the various charges likely

       made it difficult for the jury to distinguish the evidence and apply the law fairly

       and intelligently to each offense.” (Appellant’s Br. p. 11). Accordingly,

       Johnson maintains that although he was acquitted of seven of the fourteen

       charges against him, he may have been acquitted of all fourteen had he been

       granted separate trials. The State, in turn, argues that Johnson’s acquittal of

       seven of the fourteen charges against him, “demonstrates that the jury was able



       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 11 of 12
       to parse the evidence and apply the law intelligently.” (Appellee’s Br. p. 12).

       We agree.


[22]   The State presented the evidence, victim-by-victim, which also included DNA

       evidence and photographs. The State, in its closing argument, summarized the

       offenses victim-by-victim. The Counts and the victims of each Count were

       clearly set out in the jury instructions; and, throughout trial, the jurors asked

       several questions that indicated they understood the evidence and could

       distinguish between the different victims. Although there were numerous

       charges, our review of the evidence reveals that the evidence offered was not

       complex, and the trier of fact would have been able to apply the law

       intelligently as to each offense. Accordingly, we find no evidence, nor does

       Johnson point us to any, where the jury had difficulty distinguishing evidence

       as it related to each of the fourteen Counts he was charged with or that the jury

       had difficulty applying the law to each offense. Johnson has also failed to show

       that he was prejudiced by the denial of separate trials for the crimes against

       T.W. and A.O. In light of the foregoing, we conclude that the trial court did

       not abuse its discretion in denying Johnson’s motion to sever.


                                               CONCLUSION

[23]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in denying Johnson’s motion for severance.


[24]   Affirmed.


[25]   Kirsch, J. and Pyle, J. concur

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1866 | June 30, 2016   Page 12 of 12
