 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
                                                         Sep 09 2014, 6:16 am
 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:

KIMBERLY A. JACKSON                                  GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     ERIC P. BABBS
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

HOMER BALLARD,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 84A05-1310-CR-524
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable Michael J. Lewis, Judge
                              Cause No. 84D06-1009-FB-3223


                                         September 9, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                        Case Summary

       Homer Ballard appeals his convictions of two counts of Class B felony robbery

raising several arguments. We hold that Ballard was not entitled to severance of the two

robberies as a matter of right because the offenses were linked by a single scheme or plan

due to the striking similarities between the offenses, such as the details of the robberies and

Ballard’s choice of dark sunglasses and clothing. The trial court also did not abuse its

discretion in denying Ballard’s motion to sever because Ballard failed to make a showing

that the complexity of the evidence rendered the jury incapable of rendering a verdict where

there were only two robberies and each witness was clear in his or her testimony as to

which robbery the testimony related to. We also hold that the trial court did not err in

admitting evidence of uncharged robberies under the identity exception to Indiana

Evidence Rule 404(b) where the similarities between the robberies and the robber’s

sunglasses and clothing were substantial. Ballard has waived appellate review of whether

the trial court erred in admitting the gun found during a search of his room at his sister’s

house in Texas because he failed to make a contemporaneous objection to its admission.

Further, any error in the admission of the gun was harmless where there was substantial

evidence of guilt, including eyewitness and license-plate identification, satisfying us that

there is no substantial likelihood the gun contributed to the convictions. Last, the trial court

did not err in sentencing Ballard. Specifically, the trial court did not err in failing to identify

the lack of threatened harm to a person or property as a significant mitigating factor where

Ballard pointed a weapon at the victims and ordered them to comply with his demands. In

addition, Ballard’s forty-year aggregate sentence for two Class B felony robberies was not


                                                2
inappropriate given that Ballard has an extensive criminal history and showed disdain for

law enforcement and the criminal-justice system during the interview for his pre-sentence

investigation report.

                              Facts and Procedural History

       At approximately 2:00 p.m. on March 22, 2010, fifty-six-year-old Ballard entered

an Advance America in Terre Haute, walked up to the counter, pointed a dark handgun at

employee Amanda McMillin, threw a white canvas bag on the counter, and told McMillin

to put money in it. After McMillin filled the bag, Ballard told McMillin and her manager

to sit down in the back of the store. Ballard was wearing aviator sunglasses, jeans, and a

hooded sweatshirt.

       At approximately 3:00 p.m. on April 5, 2010, Ballard entered another Advance

America in Terre Haute, pointed a black handgun at employee Christine Lien, and told her

to fill a bag with paper money but no coins. After Lien filled the bag, Ballard told her to

turn around and sit down. Ballard was wearing dark sunglasses, dark jeans, and a

fisherman’s hat.

       On September 29, 2010, the State charged Ballard with two counts of armed robbery

as Class B felonies. Ballard filed a motion to sever the counts, which the trial court denied.

The State filed notice that it was intending to introduce misconduct evidence pursuant to

Indiana Evidence Rule 404(b). Specifically, the State informed Ballard that it intended to

introduce evidence that Ballard had committed four additional robberies on March 8, 2010,

March 22, 2010, and April 9, 2010. Ballard responded that evidence of the other robberies

was irrelevant except to show his allegedly bad character. Following a hearing, the trial


                                              3
court concluded that the State could “address other incidences involving the defendant, but

only for the purpose of identification.” Appellant’s App. p. 143.

       During Ballard’s August 2013 trial, McMillan, Lien, and an Advance America

customer all identified him in court. In addition, the evidence revealed that at 5:45 p.m. on

March 8, 2010, Ballard entered an Advance America in Jasper, Indiana, pointed a handgun

at manager Amy Jones, placed a sack on the counter, and told her to give him her money.

Jones took Ballard to the back of the store and filled a bag of money for him. Ballard told

Jones to sit down on the floor and wait for five minutes until he left the store. Ballard was

wearing aviator sunglasses and a hooded sweatshirt. Jones identified Ballard in a photo

array and at trial. Before Jones testified, the trial court instructed the jury that her testimony

was being offered solely on the issue of the defendant’s identity and should be considered

only for that purpose.

       On March 22, 2010, Ballard entered an Advance America in Bloomington, pointed

a black handgun at manager Shari Torr, and told her to fill his bag with money. After the

manager filled the bag, Ballard told her to go to a back room. Ballard was wearing black

sunglasses, jeans, and a hooded jacket. Before Torr testified, the trial court instructed the

jury that her testimony was being offered solely on the issue of the defendant’s identity and

should be considered only for that purpose.

       On April 9, 2010, at approximately 3:45 p.m., Ballard entered an Advance America

in Marion, Indiana, pointed a black handgun at employee Angela Gray, placed an orange

canvas bag on the counter, and told Gray to fill the bag with money. He did not want any

loose change. Ballard was wearing a fisherman’s hat. Gray identified him in a photo array,


                                                4
which was not available at the time of trial. Before Gray testified, the trial court instructed

the jury that her testimony was being offered solely on the issue of the defendant’s identity

and should be considered only for that purpose.

       Last, on April 9, 2010, at approximately 4:30 p.m., Ballard entered a Check into

Cash in Elwood, pointed a black handgun at employee Amy Moon, and told her to give

him all of her money. After a manager filled Ballard’s bag, he told the employees to go

around the wall and wait there for five minutes while he left the store. Ballard was wearing

dark sunglasses and a fisherman’s hat. Moon identified him in a photo array. Before Moon

testified, the trial court instructed the jury that her testimony was being offered solely on

the issue of the defendant’s identity and should be considered only for that purpose.

       Ballard left the Check into Cash as customer Johnny Pine was walking through the

front door. The employees told Pine that they had just been robbed, and Pine ran after

Ballard. Pine, who saw Ballard get into a small red car, wrote down the car’s license-plate

number and gave it to the police. The police ran the plate number and discovered that it

was registered to Ballard and his 2001 Hyundai.

       Ballard was arrested for the Indiana robberies on May 20, 2010, at his sister Donna

Ingram’s house in Waskom, Texas. At the time, Ballard misidentified himself to the

officers as “Bill.” Police found Ballard’s Hyundai outside Ingram’s house. The Hyundai

logos had been removed and Ford logos were attached in their place. In addition, Ballard’s

Indiana license plate had been removed and placed on the Hyundai’s floorboard, and the

vehicle had an attached counterfeited registration and inspection sticker.




                                              5
       Ingram consented to a search of her home. There, in the bedroom where Ballard

was staying, the police found his social-security card and a black BB gun that looked like

a handgun. Both items were admitted into evidence at trial without contemporaneous

objection. Specifically, the following discourse occurred regarding the admission of the

gun:

       STATE:                     Now I will show you what’s been marked as
                                  state’s Exhibit 1. Can you identify the item
                                  please?

       OFFICER LONG:              Yes, [t]his is the gun that was in the box, that was
                                  located inside the bag that I picked up from
                                  Jasper.

       STATE:                     What would you, what would you call that item?

       OFFICER LONG:              An Airsoft BB gun.

       STATE:                     The state would move to admit state[’]s
                                  Exhibit 1.

       DEFENSE COUNSEL:           May I ask a preliminary question?

       TRIAL COURT:               Go ahead.

       DEFENSE COUNSEL:           That’s the um, object that appears to be a, some
                                  type of BB gun that was found in Waskom,
                                  Texas in Homer’s bedroom where he was staying
                                  at his sister[’s] house?

       OFFICER LONG:              Yes, correct.

       DEFENSE COUNSEL:           No objection.

       TRIAL COURT:               Show 1 admitted without objection.

Tr., vol. 3, p. 76-77.




                                            6
       A jury convicted Ballard of two counts of robbery as Class B felonies. The pre-

sentence investigation report revealed that Ballard has an extensive criminal history,

including convictions for the federal felonies of attempting to obtain the property of a bank

by extortion and attempting extortion by threat of force. In addition, Ballard pled guilty to

Class B felony criminal confinement in 2005 and was sentenced to eighteen years with

eight years suspended. He was still on probation for that offense when he committed the

robberies in this case. At the time of sentencing, Ballard had robbery charges pending in

Monroe and Madison Counties.

       During the pre-sentence investigation interview, Ballard told the probation officer

completing the interview that the proceedings leading to his conviction were “funny.”

Appellant’s App. p. 342. Specifically, he explained that he would like to have all the

money the State spent on his trial. He also stated that he “hated cops” and thought the

criminal-justice system was “a joke.” Ballard chuckled when he told the interviewer that

he was “not a terrorist . . . yet.” Id. The probation officer completing the report determined

that Ballard “possesses substantial criminal attitudes [and] shows disdain for law

enforcement and the justice system as a whole.” Id. Ballard blamed his criminal behavior

on medicine he took for bronchitis in the 1990’s.

       Following a sentencing hearing, the trial court sentenced Ballard to twenty years for

each conviction, to run consecutively for a total sentence of forty years. Ballard appeals

his convictions and sentence.




                                              7
                                  Discussion and Decision

                                         I. Severance

       Ballard argues that he was entitled to severance of the two robberies as a matter of

right, and, in the alternative, that even if no right to sever existed, the trial court erred in

denying his motion to sever. Indiana Code section 35-34-1-11(a) provides defendants with

the right to severance where “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.” As the statute explicitly states, severance is required as a matter of right under

this provision only if the sole ground for joining is that the offenses are of a same or similar

character. Hall v. State, 870 N.E.2d 449, 461 (Ind. Ct. App. 2007), trans. denied.

       If, however, the offenses are joined as being part of a single scheme or plan, it is

within the trial court’s discretion to grant the severance when it is “appropriate to promote

a fair determination of the defendant’s guilt or innocence of each offense.” I.C. § 35-34-

1-11(a). See Harvey v. State, 719 N.E.2d 406, 409 (Ind. Ct. App. 1999). Crimes will be

considered part of a single plan or scheme when there is evidence linking the crimes by a

common modus operandi. Id. Modus operandi “refers to a pattern of criminal behavior so

distinctive that separate crimes may be recognized as the work of the same wrongdoer.”

Goodman v. State, 708 N.E.2d 901, 903 (Ind. Ct. App. 1999). The methodology of the

crimes must be strikingly similar and unique in such a way as to attribute the crime to a

single person. Id. Unlike Goodman, where we did not find a pattern among the thefts of

items over a one-month period in rural Greene County to be distinctive, we do find a




                                               8
distinct pattern among the two robberies in this case so as to suggest they were part of a

single scheme or plan to rob.

       Here, both robberies took place at approximately the same time of day at two

different branches of the same business in Terre Haute just a few weeks apart. The robber

pointed a dark handgun at both employees, told them to fill a bag with money, and told

them to sit down, usually at the back of the store, as he left each center. He wore dark

sunglasses and jeans at both robberies.       These similarities are sufficient to show a

distinctive pattern of criminal behavior. Ballard was therefore not entitled to severance as

a matter of right.

       Because Ballard was not entitled to severance as a matter of right, we must next

determine whether the trial court erred in denying his motion to sever. When determining

whether to grant severance in a case where there is no automatic right, a trial court

considers 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 as to each offense. Ind. Code § 35-34-1-11(a). Whether charges are severed

is within the sound discretion of the trial court and will be upheld absent an abuse of that

discretion. Harvey, 719 N.E.2d at 409. Ballard must also show that in light of what

actually occurred at trial, the denial of separate trials subjected him to prejudice. Id.

        Our review of the evidence reveals that various witnesses testified about each of

the two robberies. Each witness was clear in his or her testimony as to which robbery his

or her testimony related to. The evidence was not complex, and the trier of fact would have

been able to apply the law intelligently as to each offense. Ballard has failed to make a


                                              9
showing that the complexity of the evidence rendered the jury incapable of rendering a

verdict or that he was prejudiced by the joinder of the charges. The trial court did not abuse

its discretion in denying Ballard’s motion to sever.

                                II. Admission of Evidence

       Ballard also argues that the trial court erred in admitting evidence. Specifically, he

argues that the trial court erred in admitting into evidence testimony about additional Cash

Advance robberies for which he was not charged, as well as a gun found during a search

of his bedroom at his sister’s house in Texas. The trial court is afforded wide discretion in

ruling on the admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind.

2012). We review evidentiary decisions for an abuse of discretion and reverse only when

the decision is clearly against the logic and effect of the facts and circumstances. Id.

                                 A. Evidence of Other Robberies

       Ballard first argues that the trial court abused its discretion in admitting evidence of

the robberies for which he was not charged. Admission of evidence of other acts of

misconduct is governed by Indiana Evidence Rule 404(b), which provides:

       (1) 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) 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. . . .

       This rule was designed to prevent a jury from assessing a defendant’s present guilt

on the basis of past propensities. Allen v. State, 720 N.E.2d 707, 711 (Ind. 1999). When

assessing the admissibility of evidence pursuant to Evidence Rule 404(b), the trial court

must 1) determine whether the evidence of crimes, wrongs, or other acts is relevant to a

                                              10
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

Evidence Rule 403. Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind. Ct. App. 2005).

       Here, the trial court concluded that evidence of the uncharged misconduct was

admissible for the purpose of identity. The identity exception to the general prohibition on

propensity evidence is crafted primarily for signature crimes with a common modus

operandi. Id. at 415. As previously explained, modus operandi refers to a distinctive

pattern of criminal behavior where crimes may be recognized as the work of the same

wrongdoer. Goodman, 708 N.E.2d at 903. The exception’s rationale is that the crimes, or

the means used to commit them, were so similar and unique that it is highly probable that

the same person committed all of them. Wilhelmus, 824 N.E.2d 405.

       Here, all of the robberies were quite similar. They all occurred during the same time

of day within a month of one another at cash-advance stores in central Indiana. In every

instance, the robber pointed a handgun at the employee and told her to fill his bag with

money. He sent employees to the back of the store where possible when he left. The robber

frequently wore aviator sunglasses and either a hooded sweatshirt or jacket or a fisherman’s

hat. These similarities are substantial and unique enough to be relevant in establishing

identity. See Lockridge v. State, 172 Ind. App. 141, 359 N.E.2d 589, 593 (1977) (noting

the similar circumstances surrounding the robberies, which occurred in a short span of time,

were relevant to the issue of identity). The trial court did not err in admitting this evidence

pursuant to the identity exception under Evidence Rule 404(b).




                                              11
       We must now balance the probative value of the evidence against its prejudicial

effect pursuant to Evidence Rule 403. See Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997).

In Embry v. State, 923 N.E.2d 1, 10 (Ind. Ct. App. 2010), trans. denied, this Court found it

significant that the trial court issued a limiting instruction and admonishment to the jury

that 404(b) evidence of prior domestic violence could not be considered proof that the

defendant committed a crime similar to the 404(b) acts. This action by the trial court

supported a finding that the trial court had not abused its discretion by admitting the 404(b)

evidence. Id.

       Likewise, here, the trial court issued a limiting instruction and admonishment to the

jury regarding the 404(b) evidence before each witness testified about the uncharged

crimes. As the jury is presumed to have followed the trial court’s instruction, and because

Ballard has not provided any evidence overcoming this presumption, we find no abuse of

discretion in the trial court’s admission of the 404(b) evidence. See id.

                                           B. Gun

       Ballard also contends that the trial court erred in admitting into evidence the gun

found during a search of his sister’s Texas home.          Specifically, he argues that the

warrantless search of the residence violated his rights under the Fourth Amendment of the

United States Constitution and Article 1, Section 11 of the Indiana Constitution. Ballard,

however, has waived appellate review of this issue because he failed to make a

contemporaneous objection when the gun was admitted into evidence at trial. See Brown

v. State, 929 N.E.2d 204, 207 (Ind. 2010) (stating that the failure to make a




                                             12
contemporaneous objection to the admission of evidence at trial results in waiver of the

error on appeal).

       Waiver notwithstanding, even if the trial court erred in admitting the evidence, the

error was harmless. Generally, errors in the admission of evidence are to be disregarded

unless they affect the substantial rights of a party. Hoglund v. State, 962 N.E.2d 1230,

1238 (Ind. 2012), reh’g denied. We look to the probable impact on the factfinder to

determine the effect of the evidentiary ruling on a defendant’s substantial rights. Id. The

improper admission of evidence is harmless error if the conviction is supported by

substantial independent evidence of guilt satisfying the reviewing court there is no

substantial likelihood the challenged evidence contributed to the conviction. Id. Moreover,

any error in the admission of evidence is harmless if the same or similar evidence has been

admitted without objection or contradiction. Id.

       Here, McMillin and Lien both identified Ballard and testified that he pointed a

handgun at them during the robberies. He was also identified by his license-plate number

after he was seen getting into his Hyundai following one of the robberies. This car was

found at his sister’s house in Texas. The Indiana license plate and Hyundai identification

logos had been removed, and a counterfeit registration and inspection sticker as well as

Ford identification logos were attached to the car. Because similar evidence was admitted

without objection and there is substantial evidence of guilt that satisfies us that there is no

substantial likelihood that the gun contributed to Ballard’s conviction, any error in the

admission of the gun was harmless.




                                              13
                                       III. Sentencing

       The trial court sentenced Ballard to twenty years for each conviction, to run

consecutively for a total sentence of forty years. Ballard argues that the trial court failed

to consider a mitigating circumstance that is supported by the record, and that his sentence

is inappropriate in light of the nature of the offenses and the character of the offender.

                                A. Mitigating Circumstance

       Ballard contends that the trial court abused its discretion in sentencing him because

it failed to find as a mitigating circumstance that these offenses neither caused nor

threatened serious harm to a person or property. Specifically, Ballard argues that the “only

weapon which the State identified as belonging to Ballard was the plastic bb gun found

under the pillow of the room where Ballard allegedly slept. The trigger of the bb gun was

broken, so it may not have even been operable.” Appellant’s Br. p. 34.

       A trial court’s sentencing order is reviewed on appeal for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

(Ind. 2007). An abuse of discretion occurs when a decision is clearly against the logic and

effect of the facts and circumstances before the court, or the reasonable, probable, and

actual deductions to be drawn therefrom. Id. A trial court abuses its discretion when it

omits mitigating factors that are clearly supported by the record and advanced for

consideration. Id.

       Although a trial court must consider the mitigating factors presented by a defendant,

the trial court is not required to find that any mitigating factors exist. Harlan v. State, 971

N.E.2d 163, 170 (Ind. Ct. App. 2012). The trial court is also not obligated to explain why


                                              14
any mitigating factors do not exist. Anglemyer, 868 N.E.2d at 493. A defendant who

claims that the trial court failed to identify or find a mitigating factor must establish that

the mitigating evidence was both significant and clearly supported by the record. Id.

       Our review of the evidence reveals that Ballard pointed a weapon at his victims and

ordered them to comply with his demands. This was a threat of serious harm to persons

because even BB guns can be considered deadly weapons. Merriweather v. State, 778

N.E.2d 449, 457 (Ind. Ct. App. 2002). The trial court did not err in failing to identify the

lack of threatened harm to a person or property as a significant mitigating factor.

                                    B. Inappropriate Sentence

       Ballard also argues that his sentence is inappropriate. The Indiana Constitution

authorizes independent appellate review and revision of a trial court’s sentencing decisions.

Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement this authority through Indiana

Appellate Rule 7(B), which provides that we may revise a sentence authorized by statute

if, after due consideration of the trial court’s decision, we find the sentence in inappropriate

in light of the nature of the offense and the character of the offender. Id. Ballard bears the

burden on appeal of showing us that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

       Concerning the nature of the offenses, Ballard entered two separate businesses,

pointed a gun at the employees, and demanded money. Although these offenses are not

particularly egregious where the crimes were brief and no one was injured, it is Ballard’s

character that militates against any downward revision in his sentence. Specifically,

Ballard has an extensive criminal history, including convictions for the federal felonies of


                                              15
attempting to obtain the property of a bank by extortion and attempting extortion by threat

of force. In addition, Ballard pled guilty to Class B felony criminal confinement in 2005

and was sentenced to eighteen years with eight years suspended. He was still on probation

for that offense when he committed the robberies in this case. At the time of the sentencing,

Ballard had robbery charges pending in Monroe and Madison counties. Clearly, Ballard

has not reformed his criminal behavior despite his numerous past contacts with the

criminal-justice system. Abbott v. State, 961 N.E.2d 1016, 1020 (Ind. 2012).

       Further, during his pre-sentence investigation interview, Ballard chuckled when he

told the interviewer that he was not a terrorist—yet. The probation officer completing the

report determined that Ballard “possesses substantial criminal attitudes [and] shows disdain

for law enforcement and the criminal justice system as a whole.” Appellant’s App. p. 342.

In light of the nature of the offenses and his character, Ballard has failed to persuade us

that his sentence is inappropriate.

       Affirmed.

FRIEDLANDER, J. and MAY, J. concur.




                                             16
