      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any                           Aug 09 2017, 6:59 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                  CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
      estoppel, or the law of the case.                                         and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Timothy J. O’Connor                                      Curtis T. Hill, Jr.
      O’Connor & Auersch                                       Attorney General of Indiana
      Indianapolis, Indiana
                                                               Katherine Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Sherwin E. Jones,                                        August 9, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1611-CR-2538
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Amy J. Barbar,
      Appellee-Plaintiff.                                      Magistrate
                                                               Trial Court Cause No.
                                                               49G02-1508-FC-27286



      Mathias, Judge.


[1]   After a jury trial in Marion Superior Court, Sherwin E. Jones (“Jones”) was

      convicted of Level 5 felony sexual misconduct with a minor and acquitted of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017        Page 1 of 8
      Level 4 felony child molesting. In this appeal, Jones claims he was entitled to

      severance of the two charges as a matter of right and seeks a new trial on the

      Level 5 felony charge.


[2]   We affirm.


                                 Facts and Procedural Posture
[3]   From July 2014 to January 2015, Jones lived in a house in Indianapolis,

      Indiana, with two of his adult brothers. Among other children, Jones had two

      daughters, L.J. and K.J., from a past long-term relationship. At the time, L.J.

      was eleven or twelve years old, and K.J. was fourteen. Together with their

      brother and sisters, L.J. and K.J. would stay at Jones’s house over the weekend

      and during the summer when they were not in school. Jones’s brothers’

      children, L.J. and K.J.’s cousins, would sometimes stay at the house as well.

      Between the three men and their children, the home was often crowded with

      “eight, nine girls[,]” one or two boys, and the three brothers. Tr. p. 104.


[4]   The house had three bedrooms, which were occupied by one brother each.

      Jones’s children would often sleep in his room in his bed. One night over the

      Fourth of July holiday of 2014, K.J. was asleep in Jones’s bed. She was awoken

      by the feeling of Jones fondling her breasts and touching her groin. K.J.

      abruptly got out of bed and went to the restroom. K.J. and Jones never said

      anything to each other about what happened.


[5]   In January 2015, K.J. told her mother what Jones had done. In response to her

      mother’s questioning, L.J. then alleged that Jones had done the same to her —
      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 2 of 8
      that is, fondled her as she lay asleep in his bed during an overnight visit with her

      sisters — sometime after July 2014.


[6]   On August 3, 2015, the State charged Jones by information in Marion Superior

      Court, later amended to charge Level 4 felony child molesting as to L.J.

      (“Count I”) and Level 5 felony sexual misconduct with a minor as to K.J.

      (“Count II”). Jones moved to sever the charges on January 13, 2016. After a

      hearing on March 30, 2015, the court took the motion under advisement and

      denied it by written order on April 14, 2016. Jones was tried before a Marion

      County jury on July 28, 2016. The jury found him guilty as charged on Count II

      but not guilty on Count I. On October 17, 2016, Jones was sentenced to a three-

      year term, suspended to probation.


[7]   This timely appeal followed. Jones claims the trial court erred in denying his

      motion to sever Counts I and II.


                                         Standard of Review
[8]   “The degree of deference owed to a trial court’s ruling on a motion for

      severance depends on the basis for joinder.” Pierce v. State, 29 N.E.3d 1258,

      1264 (Ind. 2015). Where the offenses have been joined under Indiana Code

      Section 35-34-1-9(a)(1) because they are of the same or similar character, we

      review the ruling de novo. Id. But where the offenses have been joined under

      Section 35-34-1-9(a)(2) because they are connected or are parts of whole, we

      review the ruling for an abuse of discretion. Id.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 3 of 8
                                      Discussion and Decision
[9]    A criminal defendant is entitled as matter of right to severance of the charges

       against him, and severance is therefore mandatory for the trial court, if the

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

       character under Indiana Code Section 35-34-1-9(a)(1). Ind. Code § 35-34-1-

       11(a); Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015). But if the offenses are

       joined for another reason — under Section 35-34-1-9(a)(2), if they “are based on

       the same conduct or on a series of acts connected together or constituting parts

       of a single scheme or plan[]” — the trial court may in its discretion determine

       that “severance is appropriate to promote a fair determination of the

       defendant’s guilt or innocence” in view of “the number of offenses charged; the

       complexity of the evidence to be offered; and whether the trier of fact will be

       able to distinguish the evidence and apply the law intelligently to each offense.”

       I.C. § 35-34-1-11(a)(1) through (3); Jackson v. State, 938 N.E.2d 29, 37 (Ind. Ct.

       App. 2010), trans. denied. The mandatory-severance inquiry looks to the nature

       of the charges; the discretionary-severance inquiry looks to the operative facts

       underlying those charges. Pierce, 29 N.E.3d at 1265.


[10]   Here, Jones’s motion to sever Counts I and II argued both mandatory and

       discretionary grounds for severance: that the charges should be severed both as

       a matter of right and to promote a fair determination of Jones’s guilt or

       innocence. Appellant’s App. p. 56. By its order of April 14, 2016, the trial court

       ruled that Jones was “not entitled to severance a matter of right[,]” id. at 87,

       because the charges against him were not joined solely because they were of the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 4 of 8
       same or similar character, but the court did not appear to address the propriety

       of discretionary severance. In any event, Jones appears to confine his argument

       on appeal to mandatory severance. Appellant’s Br. at 11 (“Mr. Jones should

       have been entitled to severance as a matter of right.”), 15 (“[I]t is clear that Mr.

       Jones should have been entitled to severance as a matter of right in this case.”).

       We therefore confine our review to mandatory severance. Pierce, 29 N.E.3d at

       1264 n.3.

[11]   Jones appears to concede that the trial court’s denial of his motion to sever as a

       matter of right was correct under current law: “The trial court’s order,” Jones

       says, “finds plenty of support in the caselaw and, indeed, the order cites several

       similar cases.” Appellant’s Br. at 12. We agree, as outlined below.


[12]   But rather than rely on current law, Jones urges us to adopt the approach to

       joinder and severance set out by Justice Rucker in Wells v. State, 983 N.E.2d

       132, 132 (Ind. 2013) (Rucker, J., dissenting from denial of transfer). There,

       Justice Rucker, joined by then-Chief Justice Dickson, stated that “our

       traditional approach [to severance] is in need of reconsideration,” id. at 139, in

       favor of an analysis that “recognize[s] the interplay” between joinder rules and

       the bar against character-propensity evidence. Id. at 137. Current law’s focus on

       whether charges were joined solely because of the same or similar character

       undermines defendants’ statutory right to severance, Justice Rucker argued,

       since it is “rarely the case” that a given set of facts cannot be more or less

       arbitrarily described as “connected” or “based on the same conduct[.]” Id. at

       136-37. Justice Rucker, again joined Justice Dickson, renewed his attack on

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 5 of 8
       current joinder analysis in Pierce. 29 N.E.3d at 1271 (Rucker, J., concurring in

       the judgment).


[13]   Justice Rucker — and Jones — may well be correct that “our traditional

       approach is in need of reconsideration.” Wells, 983 N.E.2d at 139. But it is not

       this panel’s place to supply it. Twice in the last four years, in Wells and Pierce,

       our supreme court has declined Justice Rucker’s invitation to reconsider

       Indiana’s joinder and severance analysis. All three members of the majority that

       denied transfer in Wells and joined the lead opinion in Pierce currently sit on the

       court, while neither member of the minority in those cases currently does.

       Indiana’s joinder rules will remain as they are for the near future, at least.


[14]   Jones’s apparent concession of the correctness of the trial court’s ruling on

       mandatory severance under current law is well taken. Offenses may be

       considered “connected” under Section 35-34-1-9(a)(2) “by a defendant’s efforts

       to take advantage of his special relationship with the victims.” Pierce, 29 N.E.3d

       at 1266 (citing Turnpaugh v. State, 521 N.E.2d 690 (Ind. 1988) (victims were two

       young sisters and defendant’s overnight guests); Heinzman v. State, 895 N.E.2d

       716 (Ind. Ct. App. 2008) (victims met defendant through defendant’s work as

       Child Protective Services caseworker), trans. denied; Booker v. State, 790 N.E.2d

       491 (Ind. Ct. App. 2003) (victims were under defendant’s care), trans. denied).

       Offenses may also be considered “connected” under Section 35-34-1-9(a)(2) by

       sharing a method or a motive. Id. (citing Craig v. State, 730 N.E.2d 1262 (Ind.

       2000) (defendant’s alleged method of molesting two young girls was highly

       distinctive; defendant’s motive was to satisfy sexual desire)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 6 of 8
[15]   Here, the trial court found that “Counts I and II involve siblings. There is a

       common relationship between the Defendant and the alleged victims. The

       crimes are alleged to have occurred against these siblings in the same house, in

       the same bed, during visitation periods, and while the children were sleeping.”

       Appellant’s App. p. 86. In other words, under Counts I and II, a father was

       accused of molesting two of his daughters in the same place in the same way for

       the same reason. Even on de novo review, we cannot say that the trial court

       erred in concluding that Counts I and II were not joined solely because they

       charged offenses of the same or similar character.


[16]   Finally, Jones’s failure to argue the point on appeal notwithstanding, any error

       arising from the trial court’s denial of discretionary severance was harmless.

       When reviewing rulings on discretionary severance, “[w]e will only reverse the

       judgment and order new, separate trials if the defendant can 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.” Brown v. State, 650 N.E.2d 304, 306 (Ind. 1995)

       (quotations omitted); Dill v. State, 727 N.E.2d 22, 24 (Ind. Ct. App. 2000), aff’d,

       741 N.E.2d 1230 (Ind. 2001).


[17]   Jones warns us of the danger of unfairly prejudicial evidentiary “spillover” from

       one charge to another in a joint trial, but there is no indication of any such

       prejudicial spillover in this case. Jones faced two charges predicated on two

       stories told by two accusers. His was essentially a trial on his accusers’

       credibility. From its verdicts, the jury apparently believed one of them (K.J.) but

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 7 of 8
       not the other (L.J.). We perceive no reason, and Jones articulates none, to

       suspect that the guilty verdict as to K.J. was influenced in any degree by the

       evidence as to L.J., whose testimony the jury by hypothesis did not credit. The

       jury simply did not draw the “forbidden inference” of present criminality as to

       K.J. from a prior bad act as to L.J. when it rejected the predicate of the

       inference. Appellant’s Br. at 13 (quoting Byers v. State, 709 N.E.2d 1024, 1026

       (Ind. 1999)). Jones concedes that the split verdict might “prove[] [the jury’s]

       ability to parse the evidence” and the law, but argues “it is equally likely that

       the jury found the evidence as to both counts weak, but . . . [was] loath to fully

       acquit” Jones based on the disturbing nature of the accusations against him.

       Appellant’s Br. at 11. This is mere speculation. In light of what actually

       occurred at trial, we cannot say that Jones was reversibly prejudiced by any

       error in the trial court’s denial of his motion for discretionary severance.


                                                 Conclusion
[18]   The trial court did not err in denying Jones’s motion for mandatory severance,

       and any error arising from its denial of discretionary severance was harmless.

       The judgment against Jones is therefore affirmed.

[19]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017   Page 8 of 8
