Gary Oswalt v. State of Indiana

FOR PUBLICATION Sep 30 2013, 9:56 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana

ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

GARY OSWALT, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1208-CR-684
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Thomas M. Hakes, Judge
Cause No. 35C01-1104-FA-80

September 30, 2013

OPINION - FOR PUBLICATION

BROWN, Judge
 Gary Oswalt appeals his convictions and sentence for two counts of child

molesting as class A felonies, child solicitation as a class D felony, and five counts of

possession of child pornography as class D felonies. Oswalt raises five issues which we

revise and restate as:

I. Whether the trial court abused its discretion when it refused to
dismiss two jurors for cause, and then a third juror for cause after
Oswalt claims he had exhausted his peremptory strikes;

II. Whether the trial court abused its discretion in denying Oswalt’s
motion to dismiss five counts of child pornography as class D
felonies;

III. Whether the evidence is sufficient to sustain Oswalt’s convictions
for five counts of possession of child pornography as class D
felonies;

IV. Whether Oswalt was denied a fair trial due to the charges of
possession of child pornography; and

V. Whether Oswalt’s sentence is inappropriate in light of the nature of
the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

J.B. was born on September 12, 1994 and after her parents’ divorce, lived with her

father and visited her mother. On September 25, 2002, J.B.’s mother married Oswalt and

moved in with him. When J.B. was about seven years old, she and Oswalt were in a

swimming pool and Oswalt showed J.B. his testicles and asked her if she wanted to touch

them. She did and thought they felt bumpy. J.B. told her mother about the incident, but

her mother did not believe her.

2
 At a later time, Oswalt was in his bedroom and as J.B. walked by he asked her if

she wanted to see something. Oswalt was sitting on the bed with his legs covered by a

blanket. When J.B. walked in the room, Oswalt removed the blanket and exposed his

erect penis. Oswalt asked J.B. if she wanted to touch his penis, and J.B. touched his

penis with her hands. Oswalt asked J.B. to touch his penis with her mouth, and she

touched his penis with her tongue. After J.B. stopped, Oswalt told J.B. that “it was our

little secret,” which was something that he would say multiple times. Transcript at 529.

Oswalt drove a truck for a living, and J.B. and other children sometimes took trips

with him. Oswalt usually picked J.B. to accompany him. Oswalt told J.B.’s mother that

he wanted J.B. on trips with him because he did not “get along very well” with her and

that if J.B. went with him they “could talk things out and she couldn’t get away from

him.” Id. at 794. During the trips, J.B. touched Oswalt’s penis with her hands and

mouth. Oswalt touched J.B.’s “privates” and vagina with his fingers both inside and

outside. Id. at 534. During a trip to Texas, Oswalt tried inserting his penis into J.B. and

it hurt J.B. “a lot.” Id. These trips occurred over a period of years. When J.B. would not

want to go on the trips with him, Oswalt would become frustrated with her, start “guilting

her down, kind of making her feel like she’s the bad guy.” Id. at 748.

While Oswalt and J.B. were in a tent in the backyard of his house, Oswalt talked

about using his mouth on J.B.’s vagina. Oswalt then touched J.B.’s vagina with his

mouth and hands and put his tongue inside her “vagina hole.” Id. at 543.

J.B. began to like the attention that Oswalt was giving her. Initially, she thought

that the activities between her and Oswalt were perfectly normal and she trusted him.

3
After an assembly in elementary school regarding child molestation, J.B. realized that

Oswalt was doing something wrong. She went to Oswalt and questioned what she was

doing with him, and Oswalt told her that “all daughters and daddies do it.” Id. at 547.

Oswalt then showed J.B. websites with pictures of girls her age and men his age, and this

convinced J.B. to keep doing things with him. Oswalt was aware that Hermione Granger,

a character in Harry Potter, was J.B.’s favorite character and that J.B. viewed her as a role

model, and he showed J.B. a naked picture of Hermione Granger. Oswalt also showed

J.B. images of fathers and daughters on a laptop computer. He told her that her mother

would not believe her and that it was their “little secret.” Id. at 592.

The touches between Oswalt and J.B. stopped before J.B. became fourteen years

old. Oswalt told J.B. that he wanted to “do the touches again” and would “do . . . guilt

trips like nobody loves [him] anymore, things like that.” Id. at 549. This continued until

the day before J.B.’s sixteenth birthday, September 11, 2010, when Oswalt sent J.B. a

text message that stated: “For your b-day present from me to you. . . a full massage. . . .

You probably wont [sic] let me though. It would hurt me if you dont. [sic] lol. Nothing

kinky.lol.” State’s Exhibit 5.

After hearing a sermon at her youth group about doing the right thing, J.B. wrote a

letter to her mother because she was feeling guilty and thought that her mother had the

right to know. Near the end of February 2011, the letter fell out of J.B.’s purse and her

stepmother found it. J.B.’s father and stepmother discussed the letter with J.B.

J.B.’s mother also discussed the letter with her. When her mother confronted

Oswalt, he initially stated that he was innocent and that he could not believe J.B. was

4
“doing this.” Transcript at 822. Oswalt blamed J.B.’s mother for the allegations that

were coming out because she “couldn’t get [her] daughter to shut up.” Id. at 823. Oswalt

made J.B.’s mother call J.B. and threaten her that Oswalt would press charges against

J.B.’s boyfriend, who was older than J.B., if she continued pressing charges against him.

J.B.’s father eventually contacted the police. On April 2, 2011, J.B. was

interviewed at a child advocacy center. Her mother consented to a search of two

computers, a desktop and a laptop.

Huntington Police Detective Matthew Hughes found four sites in the “recent

history” of the computer including “www.youngestgirlsforyou.com, www.

incestroom.com[,] www.mysexydaughter.net, and . . . www.dadsfuckdaughter.net.” Id.

at 439-440. Detective Hughes sent both computers for further examination. Jeremy

Chapman, a forensic examiner with the Indiana State Police, did not retrieve any images

of child pornography from the desktop computer but retrieved nine images and one

movie as evidence from the laptop which had been deleted from the computer. Chapman

found an image that was reported to be the actress that played Hermione in Harry Potter

and a movie titled “PTHC – Open-NOBULL_family fun dad teaches bro and sis abt 9,10

kid sex incest pedophilia boy girl 12.38.mpg.”1 State’s Exhibit 12 at 4. The movie had a

creation date of 8:44 a.m. on May 24, 2010, and had a “last access date” of 7:25 a.m. on

January 28, 2011. Transcript at 691. One of the images of child pornography had a

creation date of September 21, 2009, and the image was last accessed on January 28,

2011.

1
Chapman testified that “PTHC” stands for “pre-teen hardcore.” Transcript at 689.

5
 On April 28, 2011, the State charged Oswalt with Count I, child molesting as a

class A felony; Count II, child molesting as a class A felony; Count III, child molesting

as a class C felony; and Count IV, child solicitation as a class D felony. On August 19,

2011, the State moved to amend the charging information to add Counts V, VI, VII, VIII,

and IX, which all alleged possession of child pornography as class D felonies. The court

granted the State’s motion to amend.

On February 29, 2012, Oswalt moved for severance of the charges of possession

of child pornography from the remaining charges, and also filed a motion to dismiss

Counts III, V, VI, VIII, and IX alleging that the charges were outside the statute of

limitations. On March 15, 2012, the court denied Oswalt’s motion for severance, denied

his motion to dismiss Counts V, VI, VIII, and IX, and granted his motion to dismiss

Count III.

During voir dire, Juror No. 7 stated: “I see somebody over there that I know, I

don’t know if they’re involved in the case and if they were I, a relative I might have a

problem.” Id. at 179-180. At a sidebar conversation, Oswalt’s counsel indicated that he

did not know what Juror No. 7 was talking about and that he was hesitant to “bring it out

in front of everybody,” and the court stated: “Why don’t you just ask her if, go through

the . . . list of witnesses, go through the witnesses and ask if she knows or anybody knows

any of the witnesses, let’s do that.” Id. at 180-181. Juror No. 7 then identified the person

she recognized as a woman, that she knew her sisters, did not remember her last name,

and stated: “I would rather not sit on a jury for somebody that’s her . . . .” Id. at 182.

The following exchange then occurred:

6
 DEFENSE COUNSEL: It’d be fairer if you were not part of that jury
then, is what you’re saying?

JUROR #7: It, I believe if it, if they weren’t involved somehow in this
case that I could be fair but if they were then I would probably be . . .

DEFENSE COUNSEL: Unfair.

JUROR #7: Not unfair but just . . .

DEFENSE COUNSEL: Bias one way or the other?

JUROR #7: Rather not have to cause their family or not cause their family
but be involved in a family problem.

*****

DEFENSE COUNSEL: . . . . [C]an you be fair to Mr. Oswalt?

*****

JUROR #7: I can . . .

DEFENSE COUNSEL: Assuming that you’re [sic] problem is taken
care of can you be fair?

JUROR #7: Yes.

Id. at 182-185. The court then read the witness list and the following exchange occurred:

COURT: Okay. [Juror No. 7] I have uh, just a couple questions. I
went through the list of witnesses and the only witness that you knew was
the one witness that you’d already mentioned, is that correct?

JUROR #7: As far as names, yeah.

COURT: Understood, um, let’s assume for a minute that you would
know someone, would you still be able to listen to the evidence given in the
case and the instructions given by me, the judge, to you and make a
decision on that evidence and instructions alone?

JUROR #7: Yes.

7
 COURT: I would understand that it might make it more difficult but it
wouldn’t stop you from making a fair and impartial decision, would it?

JUROR #7: No.

Id. at 187.

Oswalt’s counsel moved to strike Juror No. 7 for cause and stated that she was

“familiar with Mr. Oswalt’s mother and that family cause they’re the only people that’s

sitting over there and particularly with her saying she’d rather not, I can’t imagine her

being unfair, I didn’t go into it any further cause I saw who it was I think that’s sufficient

for cause.” Id. at 188-189. The court indicated that its concern was that Juror No. 7 had

indicated that she would listen to all the evidence and the instructions and would make a

decision based on that alone. The court indicated that it would ask her if she had any

knowledge about the case. Oswalt’s counsel stated: “If she has knowledge about the

family that may give her indirect knowledge about the case and in addition to that I’m, I,

the reason I stopped and I came up to you, I’m afraid we could pollute a whole jury if she

spouts off.” Id. at 189. The court indicated that it would not let her “say anything about

that.” Id. After further discussion, Oswalt’s attorney asked: “Is there any way I can uh,

ask her questions individually without anybody else being around, any witnesses being

around?” Id. at 192. The court answered: “No, I’ll go so far as to ask her if she knows

anything about the case . . . or any knowledge she has about the family would cause her

to be . . . .” Id. Oswalt’s counsel then stated: “I’ll just take her for, I’ll just take as a

preempt.” Id.

Juror No. 13 indicated that he assumed that Oswalt was guilty, but later indicated

that he could remain impartial and “not make a decision on guilt until [he] heard the
8
evidence or decide if [Oswalt was] innocent until [he] heard the evidence.” Id. at 229.

Oswalt’s counsel moved to strike Juror No. 13 for cause, the court denied the motion, and

Oswald used a peremptory strike against Juror No. 13.

After further discussions, Oswalt’s counsel had used nine peremptory strikes

against potential jurors. Juror No. 28 indicated that he felt that he could be fair but upon

further questioning indicated that the nature of the charges was going to make it more

difficult for him to be fair. Specifically, Juror No. 28 stated:

I mean I got uh, I got three little brothers and then I’ve got uh, three nieces
now and uh, and I’ve got three nephews and I mean just with them
spending time with them and you know, the, for something like that to
happen to them would be hard I mean to deal with that’s a, I mean it, it’d be
hard for me to make it fair towards I think, Mr. Oswalt and then uh, I guess
I mean the whole situation uh, to be fair towards him, you know, I feel that
I’d be bias towards.

Id. at 272. The following exchange then occurred:

DEFENSE COUNSEL: So do you feel like you could be fair?

JUROR #28: Yeah, I mean I could be fair if needed to be.

DEFENSE COUNSEL: And, and you say you could be fair, do you
mean by that, that if you or [sic] Mr. Oswalt and someone in your mindset
was sitting on the jury you’d be happy with that?

JUROR #28: Uh, probably not, I mean.

DEFENSE COUNSEL: Okay, probably not.

JUROR #28: Exactly.

DEFENSE COUNSEL: And, and why would you say probably not?

JUROR #28: Cause you’d want somebody to have a fair trial, I mean, you
want a, a jury that’s open minded and willing to hear everything and uh,
that’s, I mean that’s what you’d want.

9
 DEFENSE COUNSEL: So someone with your mindset you wouldn’t
want on your jury because you don’t think it’d be fair.

JUROR #28: Yep, yeah.

DEFENSE COUNSEL: And, and to that extent you don’t think you
would be fair.

JUROR #28: I believe that I gotta be (inaudible).

DEFENSE COUNSEL: Okay and even if the evidence is, is very clear,
if the evidence is Mr. Oswalt did not commit these crimes you need to have
...

JUROR #28: If the . . .

DEFENSE COUNSEL: . . . would you still be looking at it with colored
glasses thinking well he probably did it anyway.

JUROR #28: I, I, I mean from what, from what the trial is I don’t think I
could be fair towards . . .

DEFENSE COUNSEL: You don’t think you can . . .

JUROR #28: Yeah I don’t think I could.

DEFENSE COUNSEL: Regardless as a practical matter.

JUROR #28: Yeah.

Id. at 273-274.

After questioning other potential jurors, Oswalt’s counsel moved to strike Juror

No. 25 as a peremptory challenge and moved to strike Juror No. 28 and another juror for

cause. The court then questioned Juror No. 28 as follows:

COURT: Let me ask [Juror No. 28] a question. . . . do you agree that
any individual who comes before the court or the jury is innocent until
proven . . .

JUROR No. 28: (Inaudible.)

10
 COURT: . . . guilty?

JUROR No. 28: (Inaudible.)

COURT: Would you be able to if I instructed you to do so to listen to
the evidence, listen to the instructions given to the court and make a
decision only upon the evidence and instructions that you hear in court?

JUROR No. 28: Yep.

COURT: Now you indicated that you wouldn’t be fair. If I instruct . . .

JUROR No. 28: I, I don’t feel, I mean I, I don’t feel comfortable with
it.

COURT: I understand that.

JUROR No. 28: That’s what I’m trying to . . .

COURT: Okay. So it’s not a, not a not being fair, you don’t feel
comfortable just being here.

JUROR No. 28: Yeah, I mean, not being here.

COURT: Okay, but you understand the items that I just went through.

JUROR [No. 28]: Yes sir.

Id. at 284-285. The court then questioned the other juror and stated: “I’ll give you cause

on that one but I won’t give you cause on that one.” Id. at 286.

Oswalt’s counsel then stated: “Okay and with regards to [Juror No. 28] I believe

that [Juror No. 25] is my last preempt.”2 Id. Oswalt’s counsel also stated: “So I will ask

for [Juror No. 28] uh, I can’t preempt him but I’m going to say that I would preempt him

if I could.” Id. The following exchange then occurred:

2
Oswalt’s counsel actually stated: “Okay and with regards to juror number four I believe that
[Juror No. 25] is my last preempt.” Transcript at 286. However, this was the third round of twelve
potential jurors and Juror No. 28 was sitting in the fourth seat so it appears that Oswalt’s counsel was
referring to Juror No. 28 when he stated “juror number four.”
11
 COURT: . . . [Oswalt’s counsel] indicated and he’s making a record he is
preempting [Juror No. 25] but you feel that I should grant cause on [Juror
No. 28].

DEFENSE COUNSEL: Right.

COURT: Okay.

DEFENSE COUNSEL: And, and . . .

COURT: And that’s fine, I understand.

DEFENSE COUNSEL: . . . and that’s my last preempt so I can’t use my
preempt on [Juror No. 28]. If, if I counted my preempts right.

COURT: You’re, you’re correct.

Id. at 287. After further discussion, the following exchange occurred:

DEFENSE COUNSEL: I will, I will take [Juror No. 28] as a preempt
and [Juror No. 25] I want as a, as a preempt, uh, but I can’t have it, either
way I’m not, I’ve got a record that says I’m not getting that and I’m out of
preempts and I’m not getting who I want.

COURT: Let me understand, what you’re doing is you’re asking the
court to instead of taking [Juror No. 25] as a preempt you’re going to take
[Juror No. 28]. . . .

DEFENSE COUNSEL: (Inaudible.)

COURT: . . . as a preempt.

DEFENSE COUNSEL: Actually I’m just going to, I’m sorry, this awful,
just leave [Juror No. 25] as the preempt, leave [Juror No. 28] as the cause
that’s been denied.

STATE: Okay.

DEFENSE COUNSEL: Cause that’s the order of how they’re going to
be chosen.

Id. at 289-290. The court then placed Juror No. 28 on the jury.

12
 On June 28, 2012, the jury found Oswalt guilty of Counts I and II alleging child

molesting as class A felonies; Count IV, child solicitation as a class D felony; and Counts

V, VI, VII, VIII, and IX, possession of child pornography as class D felonies. The court

found the fact that Oswalt was in a position of trust as an aggravating factor and Oswalt’s

lack of criminal history and hardship on family as mitigating factors. The court found

that the aggravating factor outweighed the mitigating factors and sentenced Oswalt to

forty years for Counts I and II with sixteen years suspended, two years with one year

suspended for Count IV, and two years with one year suspended for Counts V, VI, VII,

VIII, and IX. The court ordered that Counts V, VI, VII, VIII, and IX be served

concurrent with each other and that “Counts I, II, IV and (V-IX) shall run consecutive to

each other for a total executed sentence of fifty (50) years and thirty-four (34) years on

probation.” Appellant’s Appendix at 11. In other words, the court sentenced Oswalt to

an aggregate sentence of eighty-four years with fifty years executed and thirty-four years

on probation.

DISCUSSION

I.

The first issue is whether the trial court abused its discretion when it refused to

dismiss Juror Nos. 7, 13, and 28. Oswalt argues in part that Juror No. 7 indicated that she

knew relatives and did not want to be involved with Oswalt’s family. Oswalt contends

that “[t]he only way for [him] to know the answer to [why she did not want to be

involved] without the other jurors potentially developing negative attitudes towards [him]

was to have individual voir dire.” Appellant’s Brief at 14. He also argues that “[i]f

13
individual voir dire was to be denied, then [Juror No. 7] could and should have been

excused for cause.” Id. at 14-15.

Oswalt contends that Juror No. 13 should have been excused for cause because he

stated that he assumed that Oswalt was guilty prior to the start of the trial. Oswalt asserts

that while the State attempted to rehabilitate Juror No. 13, the “rehabilitation of [Juror

No. 13] is not convincing when one realizes he had a friend who was a victim of

molestation.” Id. at 21. Oswalt also contends that Juror No. 28 should have been

excused for cause because he stated that he could not be fair and was not comfortable

being there.

The State argues that only Juror No. 28 actually sat on the jury and the issue of

whether the defendant had an impartial jury must focus on one or more of the jurors who

actually sat and rendered the decision. Appellee’s Brief at 17 (citing Ward v. State, 903

N.E.2d 946, 954-955 (Ind. 2009), adhered to on reh’g, 908 N.E.2d 595 (Ind. 2009), cert.

denied, 546 U.S. 926, 126 S. Ct. 395 (2005)). The State contends that Oswalt waived

appellate review of his claim regarding Juror No. 28 because he had not exhausted his

peremptory challenges at the time that the court denied his request to strike Juror No. 28

for cause. The State contends that “[a]fter the trial court denied Defendant’s motion to

strike Juror 28 for cause, Defendant debated whether to use his final peremptory strike to

remove Juror 28 instead of Juror 25.” Id. at 20 (citing Transcript at 286-290). The

State’s position is that Oswalt elected not to use his final peremptory to remove Juror No.

28 and instead used it on Juror No. 25 even though he had not sought to have Juror No.

25 removed for cause. The State concludes that Oswalt waived his argument regarding

14
Juror No. 28 because he “had not exhausted his peremptory challenges at the time that the

trial court refused to remove Juror 28, but Defendant nevertheless elected not to remove

him from the jury.” Id. at 21. Further, the State says that, waiver notwithstanding, the

court reasonably questioned Juror No. 28 to clarify his confusing testimony. In his reply

brief, Oswalt argues that he did not waive appellate review by failing to exhaust his

peremptory challenges.

The right to a fair trial before an impartial jury is a cornerstone of our criminal

justice system. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). In substance, it requires

that a criminal defendant be given a fair trial by a panel of impartial, indifferent jurors.

Id. Jurors need not be totally ignorant of the facts or issues involved in a case; rather, a

constitutionally impartial juror is one who is able and willing to lay aside his or her prior

knowledge and opinions, follow the law as instructed by the trial judge, and render a

verdict based solely on the evidence presented in court. Id.; see also Monserrate v. State,

265 Ind. 153, 156, 352 N.E.2d 721, 723 (1976) (addressing jury selection following

publicity of a case, indicating that to hold that the mere existence of any preconceived

notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the

presumption of a prospective juror’s impartiality would be to establish an impossible

standard, and holding that it is sufficient if the juror can lay aside his impression or

opinion and render a verdict based on the evidence presented in court). The presence of

even one biased juror on the jury is a structural error requiring a new trial. Whiting, 969

N.E.2d at 28.

15
 The trial court has broad discretionary power in regulating the form and substance

of voir dire examination. Hadley v. State, 496 N.E.2d 67, 72 (Ind. 1986). Individualized

voir dire of prospective jurors may be required where the circumstances are highly

unusual or potentially damaging to the defendant. Id. Nonetheless, the defendant has no

absolute right to have each juror separately sequestered and questioned outside the

presence of other jurors. Id. at 72-73.

Challenges for cause are the primary means by which biased jurors are struck.

Whiting, 969 N.E.2d at 29. There are no limits on the number of for-cause challenges,

but each must be supported by specified causes or reasons that demonstrate that, as a

matter of law, the venire member is not qualified to serve. Id. The trial court has the

inherent authority and responsibility to dismiss biased jurors for cause, either sua sponte

or upon counsel’s motion, and is afforded broad discretion in making these decisions. Id.

On appeal, we afford substantial deference to the trial judge’s decision respecting a

challenge for cause and will find error only if the decision is illogical or arbitrary. Id.

“A juror’s lack of knowledge or misunderstanding of the law will not necessarily

disqualify him if the juror indicates that he or she can apply the law as instructed by the

court, and refusal to strike a juror for cause under such circumstances is neither illogical

nor arbitrary.” Gooch v. State, 685 N.E.2d 152, 154 (Ind. Ct. App. 1997). “Moreover,

when a juror has some preconceived notion about the guilt of a defendant, the trial court

may, within its discretion, refuse a motion to strike for cause if the juror states that he or

she will impartially render a verdict based upon the evidence.” Id. Ind. Code § 35-37-1-

5(a) provides that “[t]he following are good causes for challenge to any person called as a

16
juror in any criminal trial: . . . [t]hat the person has formed or expressed an opinion as to

the guilt or innocence of the defendant. However, such an opinion is subject to

subsection (b),” which provides:

If a person called as a juror states that the person has formed or expressed
an opinion as to the guilt or innocence of the defendant, the court or the
parties shall proceed to examine the juror on oath as to the grounds of the
juror’s opinion. If the juror’s opinion appears to have been founded upon
reading newspaper statements, communications, comments, reports,
rumors, or hearsay, and if:

(1) the juror’s opinion appears not to have been founded upon:

(A) conversation with a witness of the transaction;
(B) reading reports of a witness’ testimony; or
(C) hearing a witness testify;

(2) the juror states on oath that the juror feels able,
notwithstanding the juror’s opinion, to render an impartial
verdict upon the law and evidence; and

(3) the court is satisfied that the juror will render an impartial
verdict;

the court may admit the juror as competent to serve in the case.

Ind. Jury Rule 18(a) provides: “In criminal cases the defendant and prosecution

each may challenge peremptorily: . . . ten (10) jurors when neither the death penalty nor

life without parole is sought in prosecutions for murder, and Class A, B, or C felonies,

including enhancements . . . .” Similarly, Ind. Code § 35-37-1-3(b) governs peremptory

challenges by a defendant and provides: “In prosecutions for . . . Class A, Class B, or

Class C felonies, the defendant may challenge, peremptorily, ten (10) jurors.” Generally,

“a peremptory challenge may be for no cause whatsoever.” Bond v. State, 273 Ind. 233,

17
237, 403 N.E.2d 812, 816 (1980). Ind. Trial Rule 47(D) governs the examination of

jurors and provides:

The court shall permit the parties or their attorneys to conduct the
examination of prospective jurors, and may conduct examination itself.
The court’s examination may include questions, if any, submitted in writing
by any party or attorney. If the court conducts the examination, it shall
permit the parties or their attorneys to supplement the examination by
further inquiry. The court may impose an advance time limitation upon
such examination by the parties or their attorneys. At the expiration of said
limitation, the court shall liberally grant additional reasonable time upon a
showing of good cause related to the nature of the case, the quantity of
prospective jurors examined and juror vacancies remaining, and the manner
and content of the inquiries and responses given by the prospective jurors.
The court may prohibit the parties and their attorneys from examination
which is repetitive, argumentative, or otherwise improper but shall permit
reasonable inquiry of the panel and individual prospective jurors.

“To preserve for appeal a claim that the trial judge erred in denying a challenge for

cause, the defendant must demonstrate that he or she either used a peremptory challenge

to remove the challenged juror or had already exhausted his or her allotment of

peremptories.” Whiting, 969 N.E.2d at 29-30. It is not sufficient that peremptories are

eventually exhausted if such challenges were available when the for-cause challenge was

denied but the juror was not struck. Id. at 30. The Indiana Supreme Court has

“consistently held that to preserve any error the defendant bears the burden of

demonstrating that at the time she challenged the jurors for cause, she had exhausted her

peremptory challenges.” Robinson v. State, 453 N.E.2d 280, 281-282 (Ind. 1983). An

appellate court will review a trial court’s denial of a challenge for cause only if the

defendant complies with the exhaustion rule. Whiting, 969 N.E.2d at 30. Even where a

defendant preserves a claim by striking the challenged juror peremptorily, reversible error

occurs only where the defendant eventually exhausts all peremptories and is forced to
18
accept either an incompetent or an objectionable juror. Id. “An ‘incompetent’ juror is

one who is removable for cause, while an ‘objectionable’ juror is one who is not

removable for cause but whom the party wishes to strike.”3 Id. at 30 n.7.

“The exhaustion rule is sound policy.” Id. “In [Merritt v. Evansville-

Vanderburgh Sch. Corp., 765 N.E.2d 1232, 1236 (Ind. 2002)], Chief Justice Shepard,

writing for a unanimous Court, explained that permitting litigants ‘to seek a new trial

when they had a remedial tool available and chose not to use it could lead to harsh

results.’” Id. An additional policy reason supports the exhaustion rule. Id. at 31.

“Reviewing courts are properly resistant to second-guessing the trial judge’s estimation

of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of

factors impossible to capture fully in the record—among them, the prospective juror’s

inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” Id.

(quoting Skilling v. United States, ___ U.S. ___, 130 S. Ct. 2896, 2918 (2010)).

“Clearly, ‘the in-the-moment voir dire affords the trial court a more intimate and

immediate basis for assessing a venire member’s fitness for jury service.’” Id. (quoting

Skilling, ___ U.S. at ___, 130 S. Ct. at 2918). The trial judge is in the best position to

assess the demeanor of prospective jurors. Whitehair v. State, 654 N.E.2d 296, 306 (Ind.

Ct. App. 1995). “If the trial court refuses to remove the juror for cause and the defendant

3
The Court in Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232, 1236 n.6 (Ind.
2002), noted: “The various state positions on this issue occupy points along a continuum. For example,
New Jersey, like Oklahoma, requires an appellant to show that an incompetent juror actually served to
prevail on a claim of wrongful denial of a challenge for cause. Arkansas, Florida, and Texas all follow a
more lenient approach similar to Indiana’s, and require only that the appellant show that an objectionable
juror served because he used a peremptory strike to correct an erroneous denial of a for-cause challenge.
Colorado is even more generous, requiring only that the appellant show the use of a peremptory strike to
correct an erroneous denial of a challenge for cause and exhaustion of all available peremptories.”
19
chooses not to remove the juror peremptorily, then there is a fairly strong indication that

the parties who viewed the whole picture did not consider the juror sufficiently biased to

warrant removal.” Whiting, 969 N.E.2d at 31. “It is therefore difficult for an appellate

court to justify holding otherwise on the basis of the cold record, which presents only a

small part of the whole picture.” Id.

To the extent that the State argues that we need not address Oswalt’s arguments

regarding Juror No. 7 and Juror No. 13, we will discuss Ward v. State, 903 N.E.2d 946

(Ind. 2009), which was cited by the State. In Ward, the defendant argued that the trial

court erred in failing to grant his for-cause challenges as to ten jurors because their

opinions and responses showed a tendency to recommend the death penalty automatically

upon the fact of the defendant’s guilt, and that he was prejudiced because he had to use

all of his peremptory challenges on these jurors and was thus forced to accept other jurors

who although not challengeable for cause were biased against his evidence. 903 N.E.2d

at 954.

The Court discussed Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273 (1988), in

which the trial court denied the defense’s for-cause challenge to a prospective juror, and

the defense exercised a peremptory challenge, ultimately using all of its allotted

peremptory challenges. Id.; 487 U.S. at 83-84, 108 S. Ct. at 2276. The defense did not,

however, challenge for cause any of the jurors who actually decided the case. 487 U.S. at

84, 108 S. Ct. at 2276. The Ross Court found that any claim that the jury was partial

must focus not on the removed juror, but rather on the jurors who ultimately sat. Id. at

86, 108 S. Ct. 2277. The Court in Ross stated:

20
 Petitioner was undoubtedly required to exercise a peremptory challenge to
cure the trial court’s error. But we reject the notion that the loss of a
peremptory challenge constitutes a violation of the constitutional right to an
impartial jury. We have long recognized that peremptory challenges are
not of constitutional dimension. They are a means to achieve the end of an
impartial jury. So long as the jury that sits is impartial, the fact that the
defendant had to use a peremptory challenge to achieve that result does not
mean the Sixth Amendment was violated. We conclude that no violation of
petitioner’s right to an impartial jury occurred.

Id. at 88, 108 S. Ct. at 2278 (internal citations omitted). The Ross Court concluded that

failing to dismiss the juror for cause, while error, did not deprive petitioner of an

impartial jury or of any interest provided by the State.4 Id. at 91, 108 S. Ct. at 2280.

The Indiana Supreme Court held that “[i]n light of this reasoning, it is irrelevant

whether the trial court erred in denying any of the defendant’s challenges for cause,” and

that “[v]iewed properly through Ross’s lens, the issue of whether the defendant had an

impartial jury must focus on one or more of the jurors who actually sat and rendered the

decision.” Ward, 903 N.E.2d at 954-955. The Court declined the defendant’s request for

reversal premised on the trial court’s failure to grant his challenges for cause with respect

to jurors he later removed by peremptory challenge. Id. at 955. On rehearing, the Court

stated: “Relying upon Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L.Ed.2d 80

(1988), we held that even if the trial court erred in denying the defendant’s for-cause

challenges, the salient inquiry is whether any of the jurors who ultimately sat was

biased.” 908 N.E.2d 595, 596 (Ind. 2009). The Court observed that on rehearing it

understood that the defendant sought in his appeal not only to assert error in his loss of

4
We note that the Court in Whiting observed that the Supreme Court in Ross “rejected a
constitutional challenge to Oklahoma’s exhaustion rule, which is more stringent than Indiana’s.”
Whiting, 969 N.E.2d at 32 (citing Merritt, 765 N.E.2d at 1236).
21
peremptory challenges due to the trial court’s denial of his challenges for cause, but also

specifically to claim error in denying the for-cause challenge to Juror No. 105 and in

permitting him to remain on the jury. Id. The Court addressed Juror No. 105’s

comments, concluded that the trial court did not act illogically or arbitrarily in denying

the defendant’s for-cause challenge to Juror No. 105 and permitting him to serve on the

jury, did not address the for-cause challenges to the other jurors, and declined to revise its

previous opinion affirming the trial court’s death sentence.5 Id. at 599.

To the extent that the original opinion in Ward and the opinion on rehearing

suggest that we need not address Oswalt’s for-cause motions related to Juror No. 7 and

Juror No. 13 because they did not actually end up serving on the jury, we observe that in

2012, three years after Ward, the Indiana Supreme Court handed down Whiting which, as

mentioned earlier, held that the issue of the propriety of a refusal to grant a motion to

strike for cause can be preserved by the use of a peremptory challenge. Specifically, the

Court held: “Indiana law is well settled. To preserve for appeal a claim that the trial

judge erred in denying a challenge for cause, the defendant must demonstrate that he or

she either used a peremptory challenge to remove the challenged juror or had already

exhausted his or her allotment of peremptories.” Whiting, 969 N.E.2d at 29-30 (citing

Merritt, 765 N.E.2d at 1235; Robinson, 453 N.E.2d at 282; Monserrate, 265 Ind. at 157,

352 N.E.2d at 723). The Court also indicated that the use of a peremptory strike can

preserve the issue for appeal. Specifically, the Court stated that “even where a defendant

preserves a claim by striking the challenged juror peremptorily, reversible error occurs

5
In its opinion on rehearing in Ward, the Court did not explicitly address whether Juror No. 105
was objectionable.
22
only where the defendant eventually exhausts all peremptories and is forced to accept

either an incompetent or an objectionable juror.” Id. at 30 (emphasis deleted and added).

Based upon Whiting, we will address Oswalt’s arguments regarding Juror No. 7 and

Juror No. 13. See also Merritt, 765 N.E.2d at 1237 (“[Y]ou must use any available

peremptories to correct erroneous denials of challenges for cause. If on appeal you then

prove both the erroneous denial and that you were unable to strike another objectionable

juror because you exhausted your peremptories, you are entitled to a new trial, full

stop.”).

With respect to Juror No. 7, the record reveals that during questioning from the

court, Juror No. 7 indicated that she would be able to listen to the evidence and the

instructions and make a decision on the evidence and instructions alone and that her

knowledge would not stop her from making a fair and impartial decision. After

discussion between the court and Oswalt’s counsel, the court stated: “I’ll go so far as to

ask her if she knows anything about the case . . . or any knowledge she has about the

family would cause her to be . . . .” Transcript at 192. Oswalt’s counsel then stated: “I’ll

just take her for, I’ll just take as a preempt.” Id. While further questioning by the court

may have revealed additional information, we cannot say based upon the record that the

circumstances were highly unusual or potentially damaging to the defendant or that the

trial court abused its discretion in refusing to strike Juror No. 7 for cause. See Fox v.

State, 717 N.E.2d 957, 962 (Ind. Ct. App. 1999) (affirming the trial court’s denial of

challenge to juror who knew an individual on the witness list but stated he would do his

“very” best to render a fair and impartial verdict), reh’g denied, trans. denied.

23
 To the extent that Oswalt challenges Juror No. 13, we observe that while Juror No.

13 initially indicated that he assumed that Oswalt was guilty, the prosecutor later stated:

“you may not have heard me say it but one of the first things I said when I got up here

and my first panel was the state has the burden of proving guilt beyond a reasonable

doubt, that’s my burden, but I slipped in there a comment too about uh, sitting there today

he’s innocent and it’s our burden to prove beyond a reasonable doubt.” Transcript at 225.

Juror No. 13 later indicated that he could remain impartial and “not make a decision on

guilt until [he] heard the evidence or decide if [Oswalt is] innocent until [he] heard the

evidence.” Id. at 229. After Oswalt’s counsel moved to strike Juror No. 13, the court

stated: “I think [the prosecutor] . . . explained to them that there is the presumption of

innocence, they agreed to that and they agreed to listen to the evidence and in fact I’ve

listed [Juror No. 13] in the same manner.” Id. at 240. We cannot say that the court

abused its discretion by refusing to grant Oswalt’s motion to strike Juror No. 13 for

cause.

Because the court did not abuse its discretion in refusing to strike Juror No. 7 or

Juror No. 13 for cause, Oswalt was not erroneously deprived of peremptory strikes. See

Williams v. State, 426 N.E.2d 662, 669 (Ind. 1981) (addressing the defendant’s argument

that the erroneous denial of his earlier challenges for cause illegally reduced the number

of available peremptory challenges and holding that “[a]s the earlier ruling was not error,

it could not have resulted in an impermissible restriction upon the availability of the

requisite number of peremptory challenges afforded him”).

24
 With respect to Juror No. 28, we cannot say that Oswalt exhausted his peremptory

strikes at the time that he moved to strike this juror. The record reveals that after

questioning Juror No. 25 and Juror No. 28, Oswalt’s counsel moved to strike Juror No.

25 as a peremptory challenge and moved to strike Juror No. 28 and another juror for

cause. However, after further discussion, Oswalt’s counsel stated that he would use his

final peremptory challenge against Juror No. 28 instead of Juror No. 25, but then

ultimately decided to use the final peremptory challenge against Juror No. 25. Thus, the

challenge was available at the time Juror No. 28 was not struck. Based upon the record,

we cannot say that Oswalt has demonstrated that he had already exhausted his allotment

of peremptory strikes at the time that he moved to strike Juror No. 28 for cause.6

Because we find that Oswalt failed to exhaust his peremptory challenges at the time that

he moved to strike Juror No. 28, Oswalt has failed to preserve his claim and has waived

review of the trial court’s denial of his request to strike Juror No. 28 for cause.

II.

The next issue is whether the trial court abused its discretion in denying Oswalt’s

motion to dismiss five counts of child pornography as class D felonies. Oswalt argues

that “[i]f the possession charges were committed within the Statute of Limitation, then

the possession had to have occurred between August 19, 2006 and August 19, 2011.”

6
We acknowledge that at one point Oswalt’s counsel stated: “and that’s my last preempt so I
can’t use my preempt on [Juror No. 28]. If, if I counted my preempts right,” and the court responded:
“You’re, you’re correct.” Transcript at 287. If this was the extent of the discussion, we would agree that
Oswalt had exhausted his peremptory strikes. See Ward v. State, 903 N.E.2d 946, 953 n.7 (Ind. 2009)
(“[T]he defendant points out that the trial court expressly noted that the defense had exhausted its
peremptory challenges as to the regular jurors. We accept the trial court’s determination and treat the
defendant’s claim of complete exhaustion to be accurate.”). However, there was then indecision on the
part of Oswalt’s counsel and discussion on whether to use his final peremptory strike on Juror No. 25 or
Juror No. 28, and he chose to use it on Juror No. 25.
25
Appellant’s Brief at 10. Oswalt also cites to the probable cause affidavit which mentions

that Oswalt showed J.B. pornography on a computer and then states that J.B. “could not

give specific dates of when they occurred. She did estimate them to be at the very least

five years prior.” Id. at 11 (quoting Appellant’s Appendix at 26).

The State argues that “[a]s a preliminary matter, count seven alleges a specific

date range well within the limitations period, so his argument does not apply to that

count,” and that the court properly denied Oswalt’s motion to dismiss the remaining

counts as well. Appellee’s Brief at 12. The State contends that evidence that Oswalt had

a pattern of showing the victim pornographic images similar to those found on his laptop

computer may be relevant to proving his knowledge of and intent to possess the images,

but it does not matter if the images were the same images that he showed the victim

previously. The State contends that the charges and accompanying affidavits were

sufficient to alert Oswalt that the State alleged that he possessed digital images of child

pornography at or near the time that the police seized his computers.

We review a trial court’s ruling on a motion to dismiss a criminal charge for an

abuse of discretion. Reeves v. State, 938 N.E.2d 10, 14 (Ind. Ct. App. 2010), reh’g

denied, trans. denied; State v. Lindsay, 862 N.E.2d 314, 317 (Ind. Ct. App. 2007), trans.

denied. We will reverse a trial court’s decision for an abuse of discretion where the

court’s decision is clearly against the logic and effect of the facts and circumstances.

Reeves, 938 N.E.2d at 14.

A statute of limitation is designed to insure against prejudice and injustice to a

defendant which is occasioned by a delay in prosecution. Lindsay, 862 N.E.2d at 317.

26
The limitation period seeks to strike a balance between a defendant’s interest in being

placed on notice so as to be able to formulate a defense for a crime charged and the

State’s interest in having sufficient time to investigate and develop a case. Id. Any

exception to the limitation period must be construed narrowly and in a light most

favorable to the accused. Id.

Ind. Code § 35-41-4-2 provides that “[e]xcept as otherwise provided in this

section, a prosecution for an offense is barred unless it is commenced . . . within five (5)

years after the commission of the offense, in the case of a . . . Class D felony . . . .”

“Generally, the State is required to allege facts in the Information sufficient to bring the

charge within the statutory limitation period.” Willner v. State, 602 N.E.2d 507, 508

(Ind. 1992); see also Ind. Code § 35-34-1-2(a)(5) (providing that a charging information

“shall be in writing and allege the commission of an offense by . . . stating the date of the

offense with sufficient particularity to show that the offense was committed within the

period of limitations applicable to that offense”). One of the reasons for this requirement

is to ensure that only timely-filed charges proceed to trial. Willner, 602 N.E.2d at 508

(citing Ulmer v. State, 14 Ind. 52, 55 (1859)). Indeed, “[a]n information alleging a time

outside the statute of limitations which does not allege facts sufficient to constitute an

exception to the statute is subject to a motion to dismiss.” Greichunos v. State, 457

N.E.2d 615, 617 (Ind. Ct. App. 1983).

Counts V through IX each alleged possession of child pornography as class D

felony, and each was filed on August 19, 2011. As pointed out by the State, Count VII

alleged that Oswalt possessed child pornography “[o]n or about September 21, 2009 until

27
April 2, 2011 . . . .” Appellant’s Appendix at 58. Thus, the State alleged facts in the

charging information related to Count VII to bring the charge within the statutory

limitation period. Counts V, VI, VIII, and IX alleged possession of child pornography as

class D felonies and each stated in part that “[o]n or before April 2, 2011, in Huntington

County, Indiana, Gary Wayne Oswalt knowingly or intentionally possessed” child

pornography. Id. at 56-60. We conclude that the language used in Counts V, VI, VIII,

and IX alleged facts that bring the charges within the statutory limitation period.

Even assuming that we may examine the probable cause affidavit, the portion of

the affidavit to which Oswalt points suggests only that Oswalt showed J.B. pictures on a

computer prior to five years earlier but not that the pictures that he showed her more than

five years ago were the same pictures that the State was alleging under Counts V through

IX or that Oswalt did not possess child pornography within the five years prior to the

filing of the charging information. Under the circumstances, we cannot say that the trial

court abused its discretion in denying Oswalt’s motion to dismiss the charges of

possession of child pornography.

III.

The next issue is whether the evidence is sufficient to sustain Oswalt’s convictions

for five counts of possession of child pornography as class D felonies. Oswalt does not

dispute that there was pornography on the computer but argues that “how the images

were on the computer and the ability to know such images were present demonstrates the

lack of sufficient evidence to support a conviction of the Defendant on the possession

charges.” Appellant’s Brief at 12. Oswalt points out that the expert “spoke of a creation

28
date of the pornographic exhibits and established that a creation date is not the date an

image is placed on a computer, but the date it is placed at a given location.” Id. Oswalt

argues that “[i]n order to have sufficient evidence to convict [him] the State needed to

prove he knew the images were on the computer and that he knew they were on the

computer after August 19, 2006. This the State did not do.” Id. at 13. The State argues

that the evidence was sufficient to permit the jury to conclude that Oswalt knowingly or

intentionally possessed the pornography within the limitations period.

When reviewing claims of insufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.

1995), reh’g denied. Rather, we look to the evidence and the reasonable inferences

therefrom that support the verdict. Id. We will affirm the convictions if there exists

evidence of probative value from which a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. Id.

In April 2011, which was the time alleged in the relevant counts, Ind. Code § 35-

42-4-4, which governs the offense of possession of child pornography as a class D felony,

provided:

A person who knowingly or intentionally possesses:

(1) a picture;

(2) a drawing;

(3) a photograph;

(4) a negative image;

(5) undeveloped film;

29
 (6) a motion picture;

(7) a videotape;

(8) a digitized image; or

(9) any pictorial representation;

that depicts or describes sexual conduct by a child who the person knows is
less than sixteen (16) years of age or who appears to be less than sixteen
(16) years of age, and that lacks serious literary, artistic, political, or
scientific value commits possession of child pornography, a Class D felony.

(Subsequently amended by Pub. L. No. 6-2012, § 226 (eff. Feb. 22, 2012); Pub. L. No.

181-2013, § 1 (eff. May 7, 2013); Pub. L. No. 214-2013, § 38 (eff. July 1, 2013); Pub. L.

No. 158-2013, § 440 (eff. July 1, 2014)).

The record reveals that Oswalt’s wife testified that the laptop computer was

purchased in June 2006. Thus, the computer was purchased about two months prior to

the beginning of the five-year statute of limitations period. Jeremy Chapman, a forensic

examiner with the Indiana State Police, testified that he retrieved nine images and one

movie as evidence from Oswalt’s laptop that were deleted from the computer and that the

charges related to four of the images and the movie. The movie had a creation date of

8:44 a.m. on Monday May 24, 2010, and had a “last access date” of 7:25 a.m. on Friday

January 28, 2011. Transcript at 691. J.B.’s mother testified that Oswalt would typically

“take a run out on Monday night,” that he would usually be at the house when she left for

work in the morning, that the laptop was usually at the house when she left for work on

Monday mornings, and that “Friday was debatable on whether or not he had his kids that

weekend.” Id. at 812-813. Chapman explained on cross-examination that a file is given

a creation date every time that the file is moved to a different folder and that the date that
30
the image was last accessed does not necessarily mean that a person looked at it because

the file could be accessed for a virus scan. The creation date for an image under Count

VII was 9:37 a.m. on Monday September 21, 2009, and the image was last accessed at

7:30 a.m. on Friday January 28, 2011. An image related to Count VI contained a logo

that was the same as the logo for the image related to Count VII, and the logo appeared

on three of the four images.

On redirect examination, Chapman testified that someone downloaded the movie

onto the computer, that he was not aware of any “process by which you would get you

know, more than half of two hundred and twenty that were consistent with pornography

or child pornography on a computer through a virus or some way.” Id. at 724.

Chapman also testified that what he saw in the internet browsing history was consistent

with someone who was looking for child pornography and that he was not surprised to

find examples of child pornography. Detective Hughes found four sites in the “recent

history” of the computer including “www.youngestgirlsforyou.com,

www.incestroom.com[,] www.mysexydaughter.net, and . . . www.dadsfuckdaughter.net.”

Id. at 439-440.

J.B. testified that Oswalt primarily used the laptop, that the rule was that the laptop

computer had to be in the same room as Oswalt and her mother, that she never looked up

any child pornography on the laptop, that she was never allowed to take the laptop into

her bedroom, that she did not remember seeing her brothers take the laptop into the

bedroom, that she never saw her brothers or mother looking at child pornography on the

laptop, and that the only person in her family that she knew that ever showed her

31
inappropriate pictures of children was Oswalt. J.B.’s mother testified that she never

searched for nor looked at child pornography or searched for incest.

Based upon our review of the record, we conclude that evidence of probative value

exists from which the jury could have found that Oswalt committed the charged offenses.

IV.

The next issue is whether Oswalt was denied a fair trial due to the charges of

possession of child pornography. Oswalt appears to argue that the charges related to

possession of child pornography so permeated the trial as to make a fair trial impossible.

He mentions the definition of fundamental error but does not apply the doctrine to this

case. He cites Lannan v. State, 600 N.E.2d 1334 (Ind. 1992), for the proposition that that

case “eliminated the depraved sexual instinct concept, however, the trying of

pornography with child molest charges creates essentially the same difficulty as using

past crimes to demonstrate a propensity to commit additional sexually related crimes.”

Appellant’s Brief at 21. Oswalt argues that “[f]airness, in this type of case requires the

possession charges to be tried separately.” Id. at 22.

The State contends that Oswalt has waived his claim for failure to make a cogent

argument. The State also argues that Oswalt does not challenge the trial court’s denial of

his motion to have the charges severed and has waived such an argument. The State’s

position is that, waiver notwithstanding, Oswalt received a fair trial on all of the charges

and his unsupported assertions do not establish that fundamental error occurred.

To the extent that Oswalt cites Lannan, we observe that the Court in Lannan

addressed the defendant’s argument that the Court should abandon the “depraved sexual

32
instinct” exception under which evidence about uncharged acts was admitted. 600

N.E.2d at 1335. The Court abandoned the exception and focused its inquiry on whether

prior acts were admissible under any exception in Ind. Evidence Rule 404(b). Id. at

1341. The Court in Lannan dealt with evidence of uncharged conduct, unlike the

situation here. Specifically, the Court held: “Had the State filed an additional count (or

counts) charging Lannan with fondling V.E. (or both girls), their testimony would have

been admissible as direct evidence of a fact in issue. However, these crimes and V.E.’s

allegations of additional instances of intercourse were uncharged.” Id. Accordingly, we

do not find Lannan instructive. Given that Lannan is the only authority cited by Oswalt

other than cases he mentions related to fundamental error, we cannot say that he has

developed a cogent argument that the trial court erred by denying his motion to sever the

charges of possession of child pornography. Consequently, such arguments are waived.7

See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the

defendant’s contention was waived because it was “supported neither by cogent argument

nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding

that the defendant waived argument on appeal by failing to develop a cogent argument).

7
We acknowledge that in Wells v. State, 983 N.E.2d 132, 132 (Ind. 2013), the Court published an
order vacating its prior order granting transfer in a case involving the issue of a trial court’s denial of a
motion for severance of offenses pursuant to Ind. Code § 35-34-1-11. Justice Rucker authored a
dissenting opinion in which Chief Justice Dickson concurred. Justice Rucker concluded that under the
facts of that case, he would grant transfer and remand the case to the trial court for a hearing to determine
“(1) whether the offenses with respect to each alleged victim are of the same or similar character; (2)
whether evidence of each of the offenses is relevant to some material issue at trial of all the other offenses
under Indiana Evidence Rule 404(b); and (3) whether the evidence of the other offenses even though
relevant should be excluded under Indiana Evidence Rule 403.” 983 N.E.2d at 139-140. Justice Rucker
also wrote that “[i]f the hearing reveals that evidence of the offenses for which Wells is charged would be
inadmissible in separate trials of the same offenses, then he would be entitled to severance as a matter of
right under Indiana Code section 35-34-1-1[1].” Id. at 140. Oswalt does not cite Ind. Code § 35-34-1-11
or Ind. Evidence Rules 403 and 404 or develop an argument beyond citing to Lannan.
33
 Waiver notwithstanding, we note that two or more offenses may be joined in the

same indictment or information, with each offense stated in a separate count, when the

offenses: “(1) are of the same or similar character, even if not part of a single scheme or

plan; or (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 (2004). “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.” Ind. Code § 35-34-1-11(a) (2004). See also

Brown v. State, 650 N.E.2d 304, 305-306 (Ind. 1995). “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 . . .” Ind. Code § 35-34-1-11(a). In doing

so, the trial court is to consider: (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);

Brown, 650 N.E.2d at 305-306. Where severance is not mandated by Ind. Code § 35-34-

1-11(a), “[w]e will only reverse the judgment and order new, separate trials if the

defendant can ‘show that in light of what actually occurred at trial, the denial of a

separate trial subjected him to such prejudice that the trial court abused its discretion in

refusing to grant his motion for severance.’” Brown, 650 N.E.2d at 306 (quoting Hunt v.

State, 455 N.E.2d 307, 312 (Ind. 1983)). See also Craig v. State, 730 N.E.2d 1262, 1265

(Ind. 2000) (“A trial court’s refusal to sever charges under these circumstances is

34
reviewed for an abuse of discretion.”). Oswalt has failed to show prejudice, and we find

no abuse of discretion here.

V.

The next issue is whether Oswalt’s sentence is inappropriate in light of the nature

of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that

we “may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, [we find] that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Under this rule, the burden is on the defendant

to persuade the appellate court that his or her sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Oswalt concedes that he violated an extremely serious position of trust but alleges

that “the injury done to the victim may have been less because no physical threats were

made, no additional physical injury inflicted and [J.B.] apparently maintained her sense

of self.” Appellant’s Brief at 23. Oswalt argues that J.B. “also retained a sense of control

over the abuse in that it was her idea for the sexual touches to stop, even though [he]

wanted the touches to continue.” Id. at 24. Oswalt also argues that “[t]he duration of the

oral sex in the bedroom which constituted Count II was for a very short amount of time

not more than thirty (30) seconds, and she is the one that stopped.” Id.

The State maintains that Oswalt horribly abused his position of trust as J.B.’s

stepfather to abuse her over a seven-year period, and that he possessed four digital

images and a video depicting child pornography and there were indications that he had

formerly possessed many more such videos that could not be recovered. The State

35
alleges that Oswalt did not lead a law-abiding life for many years as he repeatedly

molested J.B., and that Oswalt “blamed J.B.’s mother when the allegations were revealed

for not muzzling J.B.” and had J.B.’s mother threaten to retaliate against J.B.’s older

boyfriend if J.B. persisted and pressed charges against him. Appellee’s Brief at 26.

Our review of the nature of the offense reveals that Oswalt was J.B.’s stepfather

and molested her over the course of seven years. Oswalt told J.B. that “it was our little

secret” on multiple occasions. Transcript at 529. After a presentation on molestation at

school, J.B. questioned what she was doing with Oswalt, and he told her that “all

daughters and daddies do it.” Id. at 547. He then showed J.B. websites with pictures of

girls her age and men his age, and this convinced J.B. to keep doing such things with

Oswalt. Oswalt also possessed child pornography on his computer.

Our review of the character of the offender reveals that Oswalt has no criminal

history. The PSI stated that Oswalt “scored as low risk to re-offend, but was

automatically overrode to HIGH risk due to the nature of the offense.” Appellant’s

Appendix at 243.

After due consideration of the trial court’s decision, we cannot say that the

sentence imposed by the trial court is inappropriate in light of the nature of the offense

and the character of the offender.

For the foregoing reasons, we affirm Oswalt’s convictions and sentence.

Affirmed.

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

36