MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Feb 07 2020, 9:22 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Kelly A. Kelly                                           Jesse R. Drum
Deputy Public Defender                                   Supervising Deputy
Indianapolis, Indiana                                    Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryant Dowdy,                                            February 7, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1561
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Cook-
Appellee-Respondent,                                     Crawford, Judge
                                                         The Honorable Steven Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1708-PC-28301



Robb, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020                 Page 1 of 20
                                Case Summary and Issue
[1]   In January 2013, Bryant Dowdy was charged with murder, felony murder, and

      robbery in one cause (“Patel case”) and in February 2013 with murder and

      attempted murder in another cause (“Clanton case”). The crimes occurred

      approximately twenty-four hours apart and the victims in the Clanton case

      participated with Dowdy in the crime leading to the Patel case. The Clanton

      case went to trial first; Dowdy was convicted of both charges and sentenced to

      seventy-five years. The Patel case went to trial approximately one year later;

      Dowdy was found guilty of all charges but was sentenced only for murder and

      robbery. His sixty-year sentence in the Patel case was ordered to be served

      consecutively to his sentence in the Clanton case. Dowdy’s convictions and

      sentences in both cases were affirmed on appeal. See Dowdy v. State, 2016 WL

      6665388 (Ind. Ct. App. Nov. 10, 2016) (“Patel appeal”); Dowdy v. State, 2016

      WL 4245424 (Ind. Ct. App. Aug. 11, 2016) (“Clanton appeal”), trans. denied.


[2]   In 2017, Dowdy filed a petition for post-conviction relief in the Patel case,

      alleging the charges in the Patel and Clanton cases should have been joined and

      his trial counsel was ineffective for failing to move to dismiss the charges in the

      Patel case after he was convicted in the Clanton case. After an evidentiary

      hearing, the post-conviction court denied the petition. Dowdy now appeals,

      raising one issue that we restate as whether his trial counsel in the Patel case

      was ineffective for failing to move to dismiss the charges in that case.

      Concluding the post-conviction court did not clearly err in finding Dowdy’s



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 2 of 20
      trial counsel was not ineffective, we affirm the denial of Dowdy’s petition for

      post-conviction relief.



                            Facts and Procedural History
                                      I. Underlying Crimes
[3]   On December 16, 2012, Nishant Patel listed an iPhone for sale on Craigslist.

      Dominique Clanton showed the ad to Dowdy, and they decided to rob Patel.

      Dowdy texted Patel to say that he was interested in the phone, and they agreed

      to meet the following afternoon at an apartment complex.


[4]   On December 17, Dowdy and another man arrived at the apartment complex

      first, followed by Dominique and his cousin, Eric Clanton. Dowdy was armed

      with a shotgun. When Patel arrived at the arranged location, Dominique and

      the other man went to his car to talk to him. Dominique noticed that, in

      addition to the phone box, Patel had a handgun in his lap. They spoke about

      the phone and the selling price, and then, while Dominique and the other man

      pretended to gather money from their wallets, Dowdy approached the car with

      his shotgun pointed at Patel. Dowdy shot Patel in the face, killing him. When

      Dowdy, Dominique, and Eric met up later that night, Dominique saw the

      phone and Patel’s handgun in Dowdy’s possession.


[5]   The next day, Dowdy met Dominique and Eric because Eric had a buyer for

      the stolen phone. Dominique drove Eric’s car to the meeting spot with Eric

      riding in the front passenger seat. Dowdy arrived on foot and got into the back

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 3 of 20
      seat behind Eric. Dowdy gave the phone to Eric and then shot both Eric and

      Dominique in the head. Dowdy got out of the car on the driver’s side and ran.

      Dominique fell out of the car through the open door and yelled for help before

      he collapsed. A nearby driver called 911 after he heard the gunshots, saw

      Dowdy exit the car and run, and saw Dominique fall out of the car.


[6]   Indianapolis Metropolitan Police Department officers arrived at the scene and

      discovered Dominique on the road and Eric slumped over unresponsive in the

      front passenger seat of the vehicle. Officers discovered the iPhone in its box on

      the floorboard in front of Eric. Dominique had been shot in the back of the

      head, was transported by ambulance to the hospital, and survived. Eric

      suffered three gunshot wounds to his head and died as a result. The gun used to

      shoot Eric and Dominique was Patel’s.


                         II. Trial and Appellate Proceedings
[7]   On January 14, 2013, the State charged Dowdy with murder, felony murder,

      and Class A felony robbery in the Patel case. On February 26, 2013, the State

      charged Dowdy with the murder of Eric and the attempted murder of

      Dominique in the Clanton case. Attorney Carl Epstein represented Dowdy in

      both cases.


[8]   The Clanton case went to trial first, with a jury trial beginning on April 27,

      2015. The State filed a notice of intent to offer 404(b) evidence relating to the

      events of December 17, 2012, to show Dowdy’s “motive for committing the

      crime under this cause where Eric Clanton and Dominique Clanton are

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 4 of 20
      victims.” [Post-Conviction] Exhibits, Volume I at 32. The State argued that

      “the motive for the [Clanton case] is what happened on – is because of the

      robbery on the [Patel case].” Transcript [of Clanton Trial], Supplemental

      Volume at 7.1 Over Dowdy’s objection that evidence from the Patel case was

      “extrinsic, that it’s unrelated to this case,” id. at 8, the trial court allowed the

      State to present evidence regarding the events of December 17, 2012, noting

      that “overall it’s [the State’s] theory of the case that the first [crime] is tied to the

      second,” id. at 11.2 Dominique testified about the robbery on December 17 and

      the meeting with Dowdy on December 18. The jury found Dowdy guilty of the

      murder of Eric and the attempted murder of Dominique, and the trial court

      sentenced him to consecutive terms of fifty years for murder and twenty-five

      years for attempted murder.


[9]   The Patel case went to trial on April 18, 2016. Again, the State filed a notice of

      intent to offer 404(b) evidence to show identity, motive, and intent, arguing the

      shootings of Eric and Dominique on December 18, 2012, were committed with

      “the sole purpose of covering up the shooting of [] Patel one day prior.” [Post-

      Conviction] Exhibits, Vol. I at 16-17. The trial court allowed the State to admit

      the evidence. The State called Dominique to testify about the events of both




      1
          Our citation to the prior cases’ transcripts is based on the .pdf pagination.
      2
       During the Clanton case, the State referred to the Patel crime only as a robbery. See id. at 6 (the State
      noting that it “will not mention the term ‘murder’ in its case-in-chief. The State will refer to the first [crime]
      as a robbery.”

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020                       Page 5 of 20
       December 17 and 18, and before his testimony shifted to the events of

       December 18, the trial court gave the jury the following admonishment:


               Now the testimony of Mr. Clanton will be shifted at this point to
               events that took place . . . the 18th of December, and those events
               are not to be considered by you for what happened. Certain
               elements the State is using to establish their theory of the case,
               and that is elements of corroboration and elements of identity to
               establish their case concerning what you’ve been hearing about.


       The Transcript [of Patel Trial], Volume I at 234-35.3 A jury found Dowdy

       guilty of all charges. The trial court entered judgment of conviction only for

       murder and robbery and sentenced Dowdy to a term of sixty years for murder

       and a concurrent term of four years for robbery. The trial court ordered

       Dowdy’s sentence in the Patel case to be served consecutively to his sentence in

       the Clanton case.


[10]   Dowdy filed a direct appeal in each case. In the Clanton appeal, one of the

       issues Dowdy raised was whether the trial court abused its discretion in

       allowing the State to admit evidence of the events from December 17, 2012.

       We held the evidence was admissible under Rule 404(b) because it was not

       introduced to show Dowdy’s propensity to commit a crime or that his behavior

       was in conformity with a character trait. 2016 WL 4245424 at *6. Instead,




       3
        Dominique was reminded before he began testifying that he was “not to discuss the fact that Eric Clanton
       has been killed [or] that there has been a trial and conviction of [Dowdy] in his other case.” Id. at 206.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020                Page 6 of 20
               [t]he testimony of Dominique regarding the events of December
               17, 2012 was necessary for the jury to understand the
               relationships between Dowdy, Dominique, and Eric and the
               context of the subsequent meeting and shooting of Dominique
               and Eric on December 18, 2012. The testimony further explained
               why Dominique contacted Dowdy on December 18, 2012 to say
               that he had a buyer lined up for the iPhone, why Dominique and
               Eric arranged a meeting with Dowdy, and why Dowdy handed a
               white box containing an iPhone to Eric while seated in the
               Camaro. Additionally, the challenged evidence was offered to
               establish Dowdy’s motive to commit the crimes against
               Dominique and Eric on December 18, 2012, and Dowdy’s
               identity as the person who committed the crimes.


       Id. Dowdy’s convictions for murder and attempted murder were affirmed.


[11]   In the Patel appeal, Dowdy raised the sole issue of whether the trial court erred

       in admitting evidence related to the events of December 18, 2012. The State

       responded that “the events of December 18 were intrinsic to the events of

       December 17[.]” 2016 WL 6665388 at *3. We agreed that the events of

       December 18 were part of the “complete story of this case” and that they were

       used to prove Dowdy’s identity as the perpetrator of the crimes against Patel.

       Id. “As such, this evidence was relevant to a matter other than Dowdy’s

       propensity to commit the charged offenses.” Id. Dowdy’s convictions for

       murder and robbery were affirmed.


                            III. Post-Conviction Proceedings
[12]   On July 17, 2017, Dowdy filed a pro se petition for post-conviction relief

       challenging his convictions in the Patel case. Dowdy’s petition was later


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 7 of 20
       amended by counsel to allege he was entitled to relief because his trial counsel’s

       failure to move to dismiss the charges in the Patel case under Indiana’s

       successive prosecution statute, Ind. Code § 35-41-4-4, amounted to ineffective

       assistance.


[13]   The post-conviction court held an evidentiary hearing on November 12, 2018.

       Dowdy’s trial counsel, Carl Epstein, was the sole witness at the post-conviction

       hearing. Epstein testified that he represented Dowdy in both the Clanton and

       Patel cases from 2012 to 2016. Epstein was admitted to the practice of law in

       1981 and was licensed during the time he represented Dowdy but was

       suspended at the time of the post-conviction hearing. Epstein admitted he did

       not file a motion to dismiss the charges in the Patel case on the basis that it was

       a barred subsequent prosecution; he stated he was “[a]pparently not” familiar

       with the Indiana subsequently barred prosecution statute at the time he

       represented Dowdy and filing a motion to dismiss “didn’t occur to [him] at the

       time.” Transcript of [Post-Conviction] Evidence, Volume II at 6, 8. The post-

       conviction court took judicial notice of its records in the underlying criminal

       cases and admitted into evidence the appellate records from the two cases.


[14]   On June 12, 2019, the post-conviction court entered its Findings of Fact and

       Conclusions of Law Denying Post-Conviction Relief, concluding:


               The two criminal events arguably had a common genesis,
               however the [Patel case] arose out of a robbery, while the
               [Clanton case] arose out of an entirely different motive . . . . The
               two murders were not perpetrated within a short period of time,
               nor did they occur in a limited locale. Thus, while the murders

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 8 of 20
               may have had points of congruency, it cannot be found that they
               had a common motive or that they shared a distinctive nature.
               Moreover, other than the fact that both murders involved guns, it
               is apparent that the robbery and murder of Patel did not share
               common modus operandi with the second killing. As such, the
               [Patel case and the Clanton case] are not ones that “should have
               been charged together.” Accordingly, if [Dowdy’s] trial counsel
               had made a motion to dismiss . . . it is unlikely that such a
               motion would have been granted and, as such, [Dowdy’s] trial
               counsel was not ineffective for failing to make the motion.


       Appealed Order at 10.



                                  Discussion and Decision
                       I. Post-Conviction Standard of Review
[15]   Dowdy appeals the denial of his petition for post-conviction relief. Post-

       conviction proceedings are not a “super-appeal.” Garrett v. State, 992 N.E.2d

       710, 718 (Ind. 2013) (quotation marks omitted). Rather, they provide “a

       narrow remedy to raise issues that were not known at the time of the original

       trial or were unavailable on direct appeal.” Id.


[16]   Post-conviction proceedings are civil in nature and the petitioner must therefore

       establish his claims by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5). A petitioner who has been denied relief faces a “rigorous standard of

       review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). To prevail, the

       petitioner must show that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 9 of 20
       court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). When reviewing the post-

       conviction court’s order denying relief, we will “not defer to the post-conviction

       court’s legal conclusions,” and the “findings and judgment will be reversed only

       upon a showing of clear error—that which leaves us with a definite and firm

       conviction that a mistake has been made.” Humphrey v. State, 73 N.E.3d 677,

       682 (Ind. 2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000),

       cert. denied, 534 U.S. 830 (2001)). The post-conviction court is the sole judge of

       the weight of the evidence and the credibility of witnesses. Fisher v. State, 810

       N.E.2d 674, 679 (Ind. 2004).


                         II. Ineffective Assistance of Counsel
                                       A. Standard of Review
[17]   Dowdy contends his trial counsel was ineffective for failing to move to dismiss

       charges that he claims were barred from prosecution. The Sixth Amendment to

       the United States Constitution guarantees a criminal defendant the right to

       counsel and mandates “that the right to counsel is the right to the effective

       assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)

       (quotation omitted).


[18]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland, 466 U.S. 687, 694). A counsel’s

       performance is deficient if it falls below an objective standard of reasonableness

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 10 of 20
       based on prevailing professional norms. Id. And a petitioner is prejudiced by

       such deficient performance if there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different. Id. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

       Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at

       824. When we consider a claim of ineffective assistance of counsel, we apply a

       “strong presumption . . . that counsel rendered adequate assistance and made

       all significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002).


                                     B. Successive Prosecution
[19]   Dowdy claims his counsel was ineffective for failing to move to dismiss the

       charges in the Patel case because they were barred by Indiana’s successive

       prosecution statute after he was tried and convicted in the Clanton case. An

       ineffective assistance of counsel claim based on failure to make a motion to

       dismiss requires the petitioner to show a reasonable probability that the motion

       would have been granted if made. Garrett, 992 N.E.2d at 723. Dowdy

       contends that if his counsel had made a motion to dismiss in the Patel case, it

       would have been granted because the offenses in the two cases were a series of

       connected acts that should have been tried in a single prosecution. Because

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 11 of 20
       they were not, Dowdy argues the State was precluded by Indiana Code section

       35-41-4-4(a) from proceeding as to the second case.


[20]   Pursuant to Indiana Code section 35-34-1-4(a)(7), a defendant may move to

       dismiss a prosecution prior to trial if the “prosecution is barred by reason of a

       previous prosecution.” Indiana’s successive prosecution statute provides:


               A prosecution is barred if all of the following exist:


               (1) There was a former prosecution of the defendant for a
               different offense or for the same offense based on different facts.


               (2) The former prosecution resulted in an acquittal or a
               conviction of the defendant or in an improper termination under
               section 3 of this chapter.


               (3) The instant prosecution is for an offense with which the
               defendant should have been charged in the former prosecution.


       Ind. Code § 35-41-4-4(a). The first two provisions are met in this case: Dowdy

       was convicted in the Clanton case of murder and attempted murder. Thus, if

       Dowdy’s counsel had made a motion to dismiss the Patel case, the outcome of

       the motion would have hinged on whether the offenses charged in the Patel

       case should have been joined with the charges in the Clanton case.


[21]   To determine whether an offense “should have been charged” in a former

       prosecution, we look to Indiana’s joinder statute:




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 12 of 20
               (a) Two (2) or more offenses may be joined in the same
               indictment or information, with each offense stated in a separate
               count, when the offenses:


               ***


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


       Ind. Code § 35-34-1-9(a)(2); see also Williams v. State, 762 N.E.2d 1216, 1219

       (Ind. 2002) (noting that the “words ‘should have been charged’ [in Indiana

       Code section 35-41-4-4(a)(3)] must be read in conjunction with Indiana’s

       joinder statute”). Indiana Code section 35-34-1-10 then provides:


               (c) A defendant who has been tried for one (1) offense may
               thereafter move to dismiss an indictment or information for an
               offense which could have been joined for trial with the prior
               offenses under section 9 of this chapter. The motion to dismiss
               shall be made prior to the second trial, and shall be granted if the
               prosecution is barred by reason of the former prosecution.


[22]   To determine whether contemporaneous crimes should have been charged

       together pursuant to section 35-34-1-9(a)(2), we examine “‘whether they are

       connected by a distinctive nature, have a common modus operandi, and a

       common motive.’” Williams, 762 N.E.2d at 1220 (quoting Henderson v. State,

       647 N.E.2d 7, 10 (Ind. Ct. App. 1995) (decided in the context of denial of a

       motion to sever charges)). In other words, the court must consider whether the

       operative facts underlying the charges “establish a pattern of activity beyond


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 13 of 20
       mere satisfaction of the statutory elements.” Pierce v. State, 29 N.E.3d 1258,

       1266 (Ind. 2015).


[23]   Our supreme court has summarized the interplay of these statutes as follows:


               Thus, our legislature has provided that, where two or more
               charges are based on the same conduct or on a series of acts
               constituting parts of a single scheme or plan, they should be
               joined for trial. This statutory scheme provid[es] a check upon
               the otherwise unlimited power of the State to pursue successive
               prosecutions. Where the State chooses to bring multiple
               prosecutions for a series of acts constituting parts of a single
               criminal transaction, it does so at its own peril.


       Williams, 762 N.E.2d at 1219 (quotations and citations omitted).


[24]   Relying on the State’s arguments for admitting 404(b) evidence at both trials

       and the State’s ensuing appellate arguments supporting the admission of the

       evidence that his crimes on December 17 and December 18 were tied together,

       Dowdy claims the two cases against him were based on “a series of connected

       acts subject to mandatory joinder.” Amended Brief of Petitioner-Appellant at

       23. He differentiates this “series of connected acts” from the State’s argument

       and the post-conviction court’s finding that the crimes were not part of a single

       scheme or plan. See id. at 16 (“Dowdy has always argued the two murder cases

       should have been mandatorily joined because they were part of a series of

       connected acts. The post-conviction court ignored Dowdy’s arguments by

       determining he was not entitled to relief because the crimes were not part of a

       common scheme or plan.”). In other words, Dowdy appears to parse Indiana


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 14 of 20
       Code section 35-34-1-9(a)(2) into several discrete parts. Our case law, however,

       has not been so discerning and we believe Dowdy is arguing a distinction

       without a difference.


[25]   In Williams,


               [a]n undercover police officer bought drugs from [the defendant],
               then allowed him to depart and radioed nearby uniformed
               officers to arrest him. [The defendant] fled into a nearby vacant
               apartment. The officers arrested him there, finding more drugs in
               his possession. The State charged [the defendant] with breaking
               into the apartment and possessing cocaine there, and struck a
               plea agreement. It then filed charges against him in another
               courtroom for the undercover buy.


       762 N.E.2d at 1217. The defendant’s motion to dismiss the second case

       pursuant to Indiana Code section 35-41-4-4(a) was denied. On appeal, our

       supreme court reversed, holding that the two cases “were based on a series of acts

       so connected that they constituted parts of a single scheme or plan.” Id. at 1220

       (emphasis added). Thus, it does not appear that “a series of acts connected

       together” and “a series of acts . . . constituting parts of a single scheme or plan”

       are meant to be considered and analyzed differently. In any event, Dowdy does

       not explain how the analysis would be different, as he, too, cites the general rule

       that whether offenses should be joined is determined by analyzing whether they

       are connected by a distinctive nature, linked by a common modus operandi, or

       induced by the same motive. See Amended Br. of Appellant-Petitioner at 14

       (citing State v. D.B., 819 N.E.2d 904, 906 (Ind. Ct. App. 2004), trans. denied).



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 15 of 20
[26]   Cases in which we have held successive prosecution was barred have been

       factually similar to Williams in that the crimes have occurred at virtually the

       same time and in the same general location. See D.T.A. v. State, 956 N.E.2d

       195, 198 (Ind. Ct. App. 2011) (concluding successive prosecution for dealing in

       heroin was barred when defendant had already been convicted of visiting a

       common nuisance where the defendant was charged with selling heroin in the

       course of conduct that gave rise to the visiting a common nuisance offense); and

       Haywood v. State, 875 N.E.2d 770, 773-74 (Ind. Ct. App. 2007) (reversing the

       denial of defendant’s motion to dismiss under section 35-41-4-4(a) where the

       defendant was charged separately with operating while intoxicated and resisting

       law enforcement based on events occurring within a short, uninterrupted period

       of time and in the same locale).4


[27]   On the other hand, where a defendant was arrested for operating a vehicle

       while intoxicated and despite being searched at the time of his arrest, was found

       to be in possession of a handgun after his arrival at the jail, we held that




       4
         Dowdy cites D.B. for the proposition that crimes need not occur close in time or place to be joined. See
       Amended Br. of Appellant-Petitioner at 14. In D.B., a juvenile charged in adult court with carjacking called a
       State’s witness several months after being charged and threatened to kill her if she testified against him. The
       State then filed a separate information in the adult court charging the juvenile with intimidation. The court
       did determine the intimidation charge was “sufficiently linked . . . to permit joinder” with the pending
       carjacking charge, 819 N.E.2d at 906, but did so in the context of deciding whether the adult court also had
       jurisdiction over the intimidation count. Indiana’s successive prosecution statute was not in play in D.B.
       Dowdy also cites Elswick v. State, 706 N.E.2d 592 (Ind. Ct. App. 1999), trans. denied. The court in Elswick did
       mention that a conspiracy to commit murder against a victim-witness of an earlier murder and attempted
       murder “could have been joined for trial under I.C. § 35-34-1-9[,]” id. at 595, but did so in the context of
       deciding whether the trial court erred in ordering the sentence for conspiracy to be consecutive to the
       sentences for murder and attempted murder.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020                  Page 16 of 20
       prosecuting him for criminal recklessness after he pleaded guilty to operating

       while intoxicated was not a violation of Indiana Code section 35-41-4-4(a).

       State v. Dixon, 924 N.E.2d 1270, 1273 (Ind. Ct. App. 2010), trans. denied.

       Although the crimes may have shared a “temporal origin,” they did not arise

       within a short period of uninterrupted time or in a limited locale and were not

       connected by a distinctive nature, modus operandi, or common motive. Id.

       Therefore, the defendant’s offenses were not so connected as to constitute a

       single scheme or plan such that they should have been joined. Id.; see also

       Richardson v. State, 800 N.E.2d 639, 645 (Ind. Ct. App. 2003) (where defendant

       was charged with and convicted of forgery for attempting to cash a check he

       had stolen eleven days earlier, his subsequent prosecution for the robbery by

       which he obtained the check was not barred because the two crimes “were

       sufficiently separated by time and place”: “[t]he fact that the property stolen

       from the first crime was used in the commission of the subsequent crime does

       not make the robbery and the forgery offenses part of a single scheme or plan

       that must be tried together.”), trans. denied.


[28]   This case is more akin to Dixon and Richardson than to Williams. We are

       unpersuaded by Dowdy’s attempts to tie the State’s evidentiary arguments at

       his trials to the requirements of joinder. The admitted 404(b) evidence was

       carefully curated such that it only addressed the State’s proffered purposes: to

       show motive and identity in the Clanton case and to show identity in the Patel

       case. Patel’s murder was never mentioned in the Clanton case and Eric’s was

       never mentioned in the Patel case. Had the cases been joined, however, all that


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 17 of 20
       information would have been fair game during trial, and it is entirely possible

       that Dowdy would have wished to move to sever the charges in order to ensure a

       fair determination of his guilt or innocence on each charge. See Ind. Code § 35-

       34-1-11(a).5 Moreover, although the events of December 17 offered a likely

       explanation for why the events of December 18 came to pass, the State could

       have presented the Clanton case without reference to the Patel case. The

       converse is also true: the events of December 18 had little to no bearing on

       what had already occurred to Patel.


[29]   “Joinder restrictions will only bar successive prosecutions brought for a ‘single

       criminal transaction’ identified by ‘a distinctive nature[,] common modus

       operandi, and a common motive.’” Schmidt v. State, 986 N.E.2d 857, 861 (Ind.

       Ct. App. 2013) (quoting Williams, 762 N.E.2d at 1219), trans. denied. Although

       the facts underlying Dowdy’s criminal offenses on December 18 may have their

       origin in his criminal offenses from December 17, this does not establish a

       pattern of activity identifiable by its distinctive nature or common modus

       operandi or motive. If Dowdy’s plan at the outset was to eliminate witnesses to

       the Patel crime, he, Dominique, and Eric were all together within a short period




       5
         The State is given the initial discretion to charge separate offenses in single or multiple informations. See
       Seay v. State, 550 N.E.2d 1284, 1287 (Ind. 1990). When a defendant has been charged with two or more
       offenses in two or more informations and the offenses could have been joined under section 35-34-1-9(a)(2),
       the court may join for trial all such informations upon the motion of the defendant or the State or on its own
       motion. Ind. Code § 35-34-1-10(b). The flip side of this coin is that if the State does join charges based on
       section 35-34-1-9(a)(2), the defendant may move to sever the charges and the court may grant severance
       when it is appropriate to do so to promote “a fair determination of the defendant’s guilt or innocence.” Ind.
       Code § 35-34-1-11(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020                  Page 18 of 20
       of time after the robbery. Instead, Dowdy’s crimes occurred approximately

       twenty-four hours apart, at different locales, and against different victims.

       Moreover, a modus operandi “refers to a pattern of criminal behavior so

       distinctive that separate crimes are recognizable as the handiwork of the same

       wrongdoer.” Penley v. State, 506 N.E.2d 806, 810 (Ind. 1987). Although

       Dowdy’s crimes all involved a firearm, Dowdy brought his own firearm to the

       Patel crime and then used the firearm he stole from Patel in the Clanton crime.

       And gun violence is all too common to constitute distinctive behavior from

       which a single wrongdoer could be identified. Finally, Dowdy’s motive for the

       Patel crime was robbery and after that crime also turned into a murder, he was

       motivated to commit the Clanton crime to silence witnesses to his first crime.


[30]   Dowdy’s crimes were separated by time and place and were not so connected

       that they constituted parts of a single scheme or plan such that should have

       been joined for trial. Accordingly, had Dowdy’s counsel moved to dismiss the

       Patel case as a barred successive prosecution following his convictions in the

       Clanton case, the trial court would not have been obligated to grant the

       motion.6 The evidence does not lead unerringly and unmistakably to a

       conclusion opposite that reached by the post-conviction court because Dowdy

       has not shown by a preponderance of the evidence that Epstein was ineffective

       for failing to file a motion that would not have been granted. See Richardson,




       6
        Because the failure to file the motion was not ineffective assistance, the fact that Epstein testified at the post-
       conviction hearing that he was not aware he could have filed such a motion does not affect the outcome.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020                     Page 19 of 20
       800 N.E.2d at 645-47 (holding trial counsel was not ineffective for failing to file

       a motion to dismiss an allegedly barred prosecution where the two challenged

       charges were sufficiently separated by time and place such that the State

       properly prosecuted them separately).



                                               Conclusion
[31]   The State’s successive prosecution of the Patel case was not barred by Indiana

       Code section 35-41-4-4(a) because Indiana Code section 35-34-1-9(a)(2) did not

       require the charges to be joined with the charges in the Clanton case. As such,

       Dowdy’s counsel was not ineffective for failing to file a motion to dismiss the

       charges in the Patel case and the post-conviction court did not err in denying

       Dowdy’s petition for post-conviction relief.


[32]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1561 | February 7, 2020   Page 20 of 20
