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

JOHN C. BOHDAN                                   GREGORY F. ZOELLER
Deputy Public Defender                           Attorney General of Indiana
Fort Wayne, Indiana
                                                 ANDREW FALK
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                                                                           Apr 17 2014, 10:01 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

BEN L. MACON,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A03-1309-CR-364
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                             Cause No. 02D05-1305-FB-93




                                       April 17, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                 Case Summary and Issue

       Following a jury trial, Ben Macon was found not guilty of Count I, robbery as a

Class B felony, and Count II, battery as a Class C felony, but Macon was found guilty of

Count III, battery by body waste as a Class D felony. Macon appeals the trial court’s

denial of his Motion for Severance of Counts and Separate Trials, raising the following

issue for our review: whether the trial court erred by denying Macon’s motion to sever

Count III from Counts I and II and hold two separate trials. Concluding Macon was not

entitled to a severance of offenses as a matter of right, we affirm.

                               Facts and Procedural History

       On May 13, 2013, Macon entered the apartment owned by James Hogue, who was

an acquaintance of Macon’s. The discussion quickly became heated as a dispute arose

regarding whether Macon owed money to Hogue. Hogue grabbed a knife and threatened

Macon, at which point Macon struck Hogue with a meat tenderizer. After Macon left,

Hogue called 911.      Hogue told police that Macon had entered Hogue’s apartment

uninvited, attacked Hogue, and stole money from him.

       Police caught up with Macon the following day and arrested him based on

Hogue’s account of the incident. Officer Christopher Brautzsch and Officer Jon Bonar

transported Macon to the Allen County Jail.            However, Macon had a chronic leg

condition, and Allen County policy required that Macon be medically cleared before

admittance to the jail.    The officers took Macon to the local hospital, and Macon

remained uncooperative throughout the ordeal. Upon arrival at the hospital, Macon

stepped out of the police car and stood within inches of Officer Bonar. Macon then

began yelling at Officer Bonar and spit in his face.
                                              2
       Macon was charged as follows: Count I, robbery as a Class B felony; Count II,

battery as a Class C felony; and Count III, battery by body waste as a Class D felony.

Counts I and II were based on the altercation that occurred between Macon and Hogue.

Count III related to Macon’s act of spitting on Officer Bonar after Macon was arrested

the next day. Prior to the commencement of Macon’s jury trial, Macon moved to sever

Count III from Counts I and II and to hold separate trials. The trial court denied Macon’s

motion, and the trial was held as scheduled. The jury found Macon not guilty of Counts I

and II but guilty of Count III. Macon received a three year sentence. This appeal

followed.

                                 Discussion and Decision

                                  I. Standard of Review

       Macon argues he was entitled to have his offenses severed and that the trial court

erred by denying his motion to sever. The following statute provides when the severance

of offenses is appropriate for charges against a criminal defendant:

       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 a 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.

Ind. Code § 35-34-1-11(a). The statute creates two classifications: (1) severance of

offenses as a matter of right and (2) severance of offenses by trial court discretion. Id.

                                             3
Whether a defendant is entitled to severance as a matter of right is reviewed de novo.

Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App. 2003), trans. denied. Conversely,

where a defendant is not entitled to severance as a matter of right, we review the trial

court’s denial of severance for an abuse of discretion. Craig v. State, 730 N.E.2d 1262,

1265 (Ind. 2000).

                                II. Severance of Offenses

       Macon was not entitled to have his counts severed as a matter of right. As stated

above, a defendant is entitled to severance as a matter of right when his offenses have

been joined together “solely on the ground that they are of the same or similar character.”

Ind. Code § 35-34-1-11(a). The State argues the offenses were not joined solely on the

ground that they were the same or similar in character. Rather, the State asserts that

Count III was joined with Counts I and II because Count III was related to the officers’

investigation of the circumstances surrounding Counts I and II. Indeed, Macon’s act of

spitting in Officer Bonar’s face occurred after he was arrested on suspicion of robbery

and battery. We agree that the offenses in this case were not entirely separate and distinct

acts, nor were they joined solely because they were similar in character. The charged

offenses were based on a series of acts that were connected together, and Macon’s

offenses could be properly joined on that basis. See Ind. Code § 35-34-1-9(a)(2) (“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 . . . are based on the same conduct or




                                             4
on a series of acts connected together . . . .”). Therefore, we do not believe Macon was

entitled to severance as a matter of right.1

                                                   Conclusion

         Concluding the trial court did not err by denying Macon’s motion to sever and

hold separate trials, we affirm.

         Affirmed.

RILEY, J. and BRADFORD, J., concur.




         1
           Macon argues only that he was entitled to severance as a matter of right, and his brief does not provide an
argument that the trial court abused its discretion by failing to conclude severance was appropriate to promote a fair
determination of Macon’s guilt or innocence. See Ind. Code § 35-34-1-11. Because Macon did not develop an
argument that the trial court abused its discretion, we consider that potential argument forfeited. See Mallory v.
State, 954 N.E.2.d 933, 936 (Ind. Ct. App. 2011).
                                                          5
