MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Feb 28 2018, 10:40 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Robert W. Gevers, II                                     Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Floyd B. Sells,                                          February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A03-1708-CR-1980
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Kevin P. Wallace,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         17D01-1610-FA-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018            Page 1 of 6
[1]   Floyd Sells appeals his convictions for Class A Felony Rape, 1 Class A Felony

      Criminal Deviate Conduct,2 and Class B Felony Child Molesting.3 Sells argues

      that the trial court erroneously admitted certain testimony. Finding no error,

      we affirm.


                                                     Facts
[2]   On July 9, 1987, Sells married S.O., who had four young children from a

      previous marriage: J.B., F.B., P.B.C., and A.B. Sells and S.O. were married

      for approximately eleven years. In 1992, when F.B. was eleven and P.B.C. was

      nine years old, the family moved to a house on High Street in Garrett (the High

      Street House); in 1995, when F.B. was fourteen or fifteen and P.B.C. was

      twelve or thirteen, they moved to a house on King Street in Garrett (the King

      Street House).


[3]   Over the years, Sells molested his young stepchildren hundreds of times. The

      molestations were frequently accompanied by threats of violence, weapons, and

      warnings to keep quiet or the entire family would be killed. Examples of the

      frequent incidents include:


             • Around Christmas time in the High Street House, Sells had anal
               intercourse with twelve-year-old F.B. Sells told F.B. that if he did not
               allow the act to occur, he would kill F.B.’s family in front of him and



      1
          Ind. Code § 35-42-4-1.
      2
          I.C. § 35-42-4-2.
      3
          I.C. § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018   Page 2 of 6
              then kill F.B. At the High Street House, Sells sometimes raped F.B. two
              or three times a week, adding up to over a hundred times when F.B. was
              twelve to fifteen years old.
          •   In the King Street house, Sells frequently forced F.B. to perform oral
              sex. On more than one occasion, when F.B. refused, Sells put a shotgun
              in F.B.’s mouth and threatened to kill F.B., his siblings, and their mother
              if F.B. refused to perform oral sex. On another occasion, Sells forced
              F.B. to perform oral sex while Sells held a knife to his neck and
              threatened to slice his throat.
          •   As F.B. got older, he became stronger and more able to defend against
              Sells’s advances. But when F.B. defended himself, Sells told him he
              either had to let his siblings perform the acts on Sells or he would kill
              F.B. and his siblings. Sells then forced F.B. to choose one of his siblings
              to go into the room with Sells.
          •   In 1995, Sells bent eleven-year-old P.B.C. over a banister and had sexual
              intercourse with her, threatening to kill her and her family if she
              refused. She testified that he raped her so many times and in so many
              places that she could not remember them all.
          •   In the summer of 1995, five-year-old K.G., who was Sells’s niece, stayed
              with Sells and his family for the weekend. At some point, Sells put his
              penis in K.G.’s mouth and then had sexual intercourse with her,
              threatening to kill her family if she told anyone.

[4]   On October 5, 2016, the State charged Sells with Class A felony rape and two

      counts of Class A felony criminal deviate conduct, later joining those charges

      with another pending action in which Sells was facing a Class B felony child

      molesting charge.


[5]   Sells’s jury trial took place on April 19-20, 2017. F.B., P.B.C., and K.G. (all

      now adults) testified regarding Sells’s crimes during their respective

      childhoods. During the trial, P.B.C. testified that at some point, she was moved

      into foster care because Sells “beat the crap out of [her]” after she stole her


      Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018   Page 3 of 6
      mother’s wallet. Tr. Vol. II p. 61-62. She also testified that Sells had “given

      [her] bloody noses and bloody mouths, but those are nothing.” Id. at 62. Sells

      did not object to this testimony.


[6]   After the State presented its case-in-chief, Sells filed a motion for a directed

      verdict. The trial court granted the motion with respect to one of the criminal

      deviate conduct charges. At the close of the trial, the jury found Sells guilty of

      rape, criminal deviate conduct and child molesting. On July 27, 2017, the trial

      court sentenced Sells to consecutive terms of thirty years for rape, thirty years

      for criminal deviate conduct, and ten years for child molesting, for an aggregate

      sentence of seventy years imprisonment. Sells now appeals.


                                   Discussion and Decision
[7]   Sells’s primary argument on appeal is that the trial court erred by permitting the

      victims to testify regarding the many offenses he had committed over the years

      when the State charged him with only one count of rape, one count of child

      molest, and two counts of criminal deviate conduct. The admission or

      exclusion of evidence is within the trial court’s discretion, and we will reverse

      only if the trial court’s decision clearly contravenes the logic and effect of the

      facts and circumstances before it or if the trial court has misinterpreted the

      law. E.g., Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App. 2012).


[8]   Sells contends that the admission of the victims’ testimony of multiple rapes

      and other sexual assaults during the charged timeframe violated Indiana

      Evidence Rule 404(b), which provides that evidence of “other crimes, wrongs,

      Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018   Page 4 of 6
       or acts is not admissible to prove the character of a person in order to show

       action in conformity therewith.” It is well established, however, that Rule

       404(b) does not bar evidence of repeated incidents of sex offenses that occurred

       within the charged timeframe because such evidence is direct evidence of guilt

       of the charged offenses and not evidence of other crimes or wrongs. E.g.,

       Marshall v. State, 893 N.E.2d 1170, 1174 (Ind. Ct. App. 2008); see also Baker v.

       State, 948 N.E.2d 1169, 1174-78 (Ind. 2011) (finding that so long as jury is

       properly instructed on unanimity,4 the State may present evidence of a greater

       number of separate criminal offenses than the number charged).


[9]    Here, the testimony of F.B., P.B.C., and K.G. showed that Sells did, indeed,

       engage in the criminal conduct with which he was charged, rather than merely

       show that he had the propensity to do so. Consequently, the trial court did not

       err by permitting the victims to testify as to Sells’s many sex offenses that

       occurred within the timeframe of the charges alleged by the State. 5


[10]   Sells also argues that P.B.C. should not have been permitted to testify that Sells

       had beaten her for stealing her mother’s wallet and had given her bloody noses

       on other occasions. Sells neglected to object to this testimony; therefore, he has

       waived the argument. Waiver notwithstanding, even if the admission of this

       evidence was erroneous, any error would be harmless in light of the voluminous




       4
           Sells does not argue that the jury in this case was not properly instructed on unanimity.
       5
         On the other hand, the trial court properly granted Sells’s motion in limine as to the testimony of at least
       four uncharged victims under Rule 404(b).

       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018              Page 5 of 6
       and compelling evidence supporting Sells’s guilt. Therefore, we decline to

       reverse on this basis.


[11]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018   Page 6 of 6
