      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
      this Memorandum Decision shall not be                             May 27 2016, 8:07 am

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


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      John T. Wilson                                          Gregory F. Zoeller
      Anderson, Indiana                                       Attorney General
                                                              Chandra K. Hein
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Joseph Kriete,                                   May 27, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              48A04-1508-CR-1152
              v.                                              Appeal from the Madison Circuit
                                                              Court
      State of Indiana,                                       The Honorable Thomas Newman
      Appellee-Plaintiff                                      Jr., Judge
                                                              Trial Court Cause No.
                                                              48C03-1411-F4-2003



      Mathias, Judge.


[1]   Daniel Joseph Kriete (“Kriete”) was convicted in Madison Circuit Court of

      three counts of Level 4 felony burglary and five counts of Class A misdemeanor


      Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016        Page 1 of 9
      theft. He was ordered to serve thirty-six years in the Department of Correction.

      Kriete appeals and argues that the trial court erred in denying his pre-trial

      motion for severance of the charges.


[2]   We affirm.

                                         Facts and Procedural History


[3]   In October 2014, Marianne Abney (“Abney”) left her residence in Madison

      County, Indiana for a vacation.1 When she returned on October 15, 2014,

      Abney noticed that the door between her garage and utility room was broken.

      After looking around inside, Abney noted that “all of [her] jewelry had been

      taken.” Tr. p. 351. She reported the incident to the police.


[4]   Sixteen days later, Robin Pickett (“Pickett”) returned home from work with her

      daughter on October 31, 2014 around 4:00 p.m. and noticed that her back door

      was “wide open.” Tr. p. 454. After entering her home, Pickett discovered that

      her television, three laptops, and a couple of HDMI cables were missing.

      Pickett immediately called the police to report the incident.


[5]   Six days after Pickett’s discovery, on November 6, 2014, Kay Krall (“Krall”)

      was on vacation with her husband. That same day, Krall’s neighbor, James

      Davis (“Davis”) was outside checking his mail and noticed a suspicious vehicle

      parked in Krall’s driveway. Davis approached the car and asked the two men




      1
          All subsequent incidents occurred in Madison County, Indiana.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016   Page 2 of 9
      inside who they were and why they were there. The driver told Davis that they

      were there to do work for Tim Johnson. Davis responded by telling the men

      that no one named Tim Johnson lived in the neighborhood and again inquired

      why the men were in Krall’s driveway. Without answering Davis’s question,

      the men sped away, nearly running over Davis’s toes. Davis was able to write

      down the license plate number and called Krall to let her know what had

      occurred.


[6]   Krall then contacted her son-in-law, Peter Hopkins (“Hopkins”), and asked him

      to go to her house to look around. Hopkins observed that the back door was

      half opened and “just kind of swinging.” Tr. p. 289. Hopkins told Davis that

      someone had broken into the house, and Davis called the police. Meanwhile,

      next-door neighbor Penny Wilson (“Wilson”) watched a man run through her

      backyard carrying a bag. Wilson then saw the man jump into the backseat of a

      car that sped away. Officers secured the home because the Kralls were still on

      vacation, but after Krall returned, she reported that jewelry and a coin

      collection were missing.


[7]   Later that same day, Beth Manis (“Manis”) returned home from work to find

      her back door kicked in and CDs and DVDs scattered all over the living room

      floor. Manis later discovered that CDs, DVDs, several pieces of jewelry, an

      iPad, a game system, and some games were missing. She notified the police of

      the incident.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016   Page 3 of 9
[8]    Five days later, on November 11, 2014, Timothy Lee, DVM (“Dr. Lee”)

       returned home from work around 4:00 p.m. to let his dog outside and was

       surprised to find that his front door was unlocked.2 After Dr. Lee went inside

       the house, he found that his bedroom had been ransacked and discovered that

       several pieces of jewelry, a watch, his wallet, and numerous personal items

       were missing.

[9]    The Anderson Police Department assigned Detective Trent Chamberlain

       (“Detective Chamberlain”)3 to investigate all of these Fall, 2014 burglaries. The

       first report he received was from the November 6, 2014 incident at Krall’s

       home. He then compiled a list of other burglaries in the area to characterize the

       method of entry, method of operation, and types of items taken. Detective

       Chamberlain discovered that there were five burglaries in the Anderson,

       Indiana area that were recent, involved stolen jewelry and electronics, and

       involved a door being forced or pried open.


[10]   Based on the description of the vehicle and the license plate number provided to

       police by Davis, Detective Chamberlain discovered that the car was registered

       to the father of Michael Showecker (“Showecker”). Officers on the Madison

       County Drug Task Force were familiar with Showecker and identified him as a

       heroin addict who had been seen driving around a vehicle matching the




       2
        Dr. Lee stated that his wife left the back door unlocked, so he believed that the intruder entered through the
       back door and left through the front door.
       3
           The charging information refers to Detective Chamberlain as “Trent Chamberlin.”

       Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016                 Page 4 of 9
       description of the vehicle that Davis saw at Krall’s residence. Detective

       Chamberlain received further information that the same vehicle was parked

       behind a local motel and that Showecker was with another man named Michael

       Taylor (“Taylor”). After receiving this tip, Detective Chamberlain verified that

       the plate number matched the one from the report and checked with the front

       desk attendant to determine if a room was registered in either one of their

       names. He discovered that a room was registered to Michael Taylor.


[11]   Detective Chamberlain and Officer William Richardson (“Officer Richardson”)

       then knocked on the door of Taylor’s room and found Showecker and Taylor

       inside along with several pieces of Krall’s jewelry. After searching the car

       parked outside, the officers also found more jewelry that belonged to Krall, as

       well as Manis’s iPad. Showecker and Taylor were then arrested.


[12]   Showecker and Taylor cooperated with the police and indicated that they were

       helping appellant Kriete burglarize homes in the area. They told police that they

       would sit in the car while Kriete would break in and steal valuables. They also

       admitted that they were at Krall’s residence on November 6, 2014 to help

       Kriete, that they drove off after they were questioned by Davis, and that they

       picked up Kriete “down the road.” Tr. p. 498. Further, Taylor admitted to

       pawning several items at a cash for gold shop. The three men split the proceeds,

       but Kriete took the largest percentage of profit.


[13]   The police later discovered that Kriete was staying at an abandoned house and

       renting a storage unit in Madison County. While executing a search warrant,


       Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016   Page 5 of 9
       officers located several stolen pieces of jewelry in the house and items belonging

       to Abney, Manis, and Dr. Lee in the storage unit. When Kriete was arrested, he

       was wearing Dr. Lee’s watch and carrying his missing wallet.


[14]   The State charged Kriete with Level 4 felony burglary and Class A

       misdemeanor theft on November 14, 2014. On March 31, 2015, the State

       amended the charging information to add an additional four counts of Level 4

       felony burglary and four counts of Class A misdemeanor theft. Kriete filed a

       motion for severance of the charges on May 16, 2015.4


[15]   A jury trial was held on June 16-18, 2015. The jury convicted Kriete on all

       counts except for Level 4 felony burglary of Abney’s home and Level 4 felony

       burglary of Dr. Lee’s home. This amounted to three Level 4 felony burglary and

       five Class A misdemeanor theft convictions. A sentencing hearing was held on

       July 13, 2015. The trial court ordered Kriete to serve twelve years for each

       Level 4 felony burglary conviction consecutive and one year for the five Class A

       misdemeanor convictions concurrent in the Department of Correction. His total

       sentence was thirty-six years. Kriete now appeals.




       4
        However, the trial court did not issue an order related to Kriete’s motion for severance, so it was presumed
       denied as the trial continued with all offenses.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016                Page 6 of 9
                                          Discussion and Decision


[16]   Kriete argues that the trial court erred in denying his pre-trial motion for

       severance of charges. He specifically asserts that he was entitled to severance as

       a matter of right under Indiana Code section 35-34-1-11(a), which provides:


               Whenever two (2) or more offenses have been joined for trial in
               the same indictment or information solely on the ground that
               they are of the same or similar character, the defendant shall
               have a right to severance of the offenses. In all other cases the
               court, upon motion of the defendant or the prosecutor, shall
               grant a severance of offenses whenever the court determines that
               severance is appropriate to promote a fair determination of the
               defendant’s guilt or innocence of each offense considering: (1) the
               number of offenses charged; (2) the complexity of the evidence to
               be offered; and (3) whether the trier of fact will be able to
               distinguish the evidence and apply the law intelligently as to each
               offense.


[17]   Although Indiana Code section 35-34-1-22(a) provides severance as a matter of

       right in limited circumstances, Indiana Code section 35-34-1-12(b) states:


               If a defendant’s pretrial motion for severance of offenses or
               motion for a separate trial is overruled, the motion may be
               renewed on the same ground before or at the close of all the
               evidence during trial. The right to severance of offenses or
               separate trial is waived by failure to renew the motion.


[18]   Here, the trial court denied Kriete’s pre-trial motion for severance. At the close

       of the evidence, Kriete failed to renew the motion for severance. As a result, his

       right to severance of offenses was waived by failure to renew.



       Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016   Page 7 of 9
[19]   Waiver notwithstanding, we will address Kriete’s alternative argument that the

       trial court erred in denying his motion, on discretionary severance grounds. If

       severance is not a matter of right, Indiana Code section 35-34-1-11(a) provides

       in relevant part:

                the court, upon motion of the defendant or prosecutor, shall
                grant a severance of offenses whenever the court determines that
                severance is appropriate to promote a fair determination of the
                defendant’s guilt or innocence of each offense considering: (1) the
                number of offenses charged; (2) the complexity of the evidence to
                be offered; and (3) whether the trier of fact will be able to
                distinguish the evidence and apply the law intelligently as to each
                offense.


       We review the trial court’s refusal to sever charges under these circumstances

       for an abuse of discretion. Bowser v. State, 984 N.E.2d 236, 239 (Ind. Ct. App.

       2013).

[20]   Here, Kriete was charged with five counts of burglary and five counts of theft.

       The State presented evidence for each burglary and theft charge through witness

       testimony and photographs of stolen items that were recovered by the police in

       various locations that implicated Kriete. None of the evidence was particularly

       complex. Further, the court clearly identified each offense and named each

       victim in the jury instructions. The jury then convicted Kriete on three counts of

       burglary and five counts of theft but acquitted him on two counts of burglary.

       This result demonstrates that the jury was able to distinguish the evidence

       related to each charge and apply the law intelligently to each offense.



       Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016   Page 8 of 9
       Accordingly, we cannot say that the trial court abused its discretion in denying

       Kriete’s pre-trial motion for discretionary severance.

[21]   For all of these reasons, we conclude that by failing to renew his motion for

       severance before or at the close of evidence, Kriete waived the issue presented

       in this appeal. Waiver notwithstanding, we conclude that the trial court did not

       abuse its discretion in denying Kriete’s pre-trial motion, on discretionary

       severance grounds, either.


[22]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016   Page 9 of 9
