MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 09 2017, 6:59 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. O’Connor Curtis T. Hill, Jr.
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sherwin E. Jones, August 9, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2538
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy J. Barbar,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G02-1508-FC-27286
Mathias, Judge.
[1] After a jury trial in Marion Superior Court, Sherwin E. Jones (“Jones”) was
convicted of Level 5 felony sexual misconduct with a minor and acquitted of
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Level 4 felony child molesting. In this appeal, Jones claims he was entitled to
severance of the two charges as a matter of right and seeks a new trial on the
Level 5 felony charge.
[2] We affirm.
Facts and Procedural Posture
[3] From July 2014 to January 2015, Jones lived in a house in Indianapolis,
Indiana, with two of his adult brothers. Among other children, Jones had two
daughters, L.J. and K.J., from a past long-term relationship. At the time, L.J.
was eleven or twelve years old, and K.J. was fourteen. Together with their
brother and sisters, L.J. and K.J. would stay at Jones’s house over the weekend
and during the summer when they were not in school. Jones’s brothers’
children, L.J. and K.J.’s cousins, would sometimes stay at the house as well.
Between the three men and their children, the home was often crowded with
“eight, nine girls[,]” one or two boys, and the three brothers. Tr. p. 104.
[4] The house had three bedrooms, which were occupied by one brother each.
Jones’s children would often sleep in his room in his bed. One night over the
Fourth of July holiday of 2014, K.J. was asleep in Jones’s bed. She was awoken
by the feeling of Jones fondling her breasts and touching her groin. K.J.
abruptly got out of bed and went to the restroom. K.J. and Jones never said
anything to each other about what happened.
[5] In January 2015, K.J. told her mother what Jones had done. In response to her
mother’s questioning, L.J. then alleged that Jones had done the same to her —
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that is, fondled her as she lay asleep in his bed during an overnight visit with her
sisters — sometime after July 2014.
[6] On August 3, 2015, the State charged Jones by information in Marion Superior
Court, later amended to charge Level 4 felony child molesting as to L.J.
(“Count I”) and Level 5 felony sexual misconduct with a minor as to K.J.
(“Count II”). Jones moved to sever the charges on January 13, 2016. After a
hearing on March 30, 2015, the court took the motion under advisement and
denied it by written order on April 14, 2016. Jones was tried before a Marion
County jury on July 28, 2016. The jury found him guilty as charged on Count II
but not guilty on Count I. On October 17, 2016, Jones was sentenced to a three-
year term, suspended to probation.
[7] This timely appeal followed. Jones claims the trial court erred in denying his
motion to sever Counts I and II.
Standard of Review
[8] “The degree of deference owed to a trial court’s ruling on a motion for
severance depends on the basis for joinder.” Pierce v. State, 29 N.E.3d 1258,
1264 (Ind. 2015). Where the offenses have been joined under Indiana Code
Section 35-34-1-9(a)(1) because they are of the same or similar character, we
review the ruling de novo. Id. But where the offenses have been joined under
Section 35-34-1-9(a)(2) because they are connected or are parts of whole, we
review the ruling for an abuse of discretion. Id.
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Discussion and Decision
[9] A criminal defendant is entitled as matter of right to severance of the charges
against him, and severance is therefore mandatory for the trial court, if the
charges have been joined solely because they are of the same or similar
character under Indiana Code Section 35-34-1-9(a)(1). Ind. Code § 35-34-1-
11(a); Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015). But if the offenses are
joined for another reason — under Section 35-34-1-9(a)(2), if they “are based on
the same conduct or on a series of acts connected together or constituting parts
of a single scheme or plan[]” — the trial court may in its discretion determine
that “severance is appropriate to promote a fair determination of the
defendant’s guilt or innocence” in view of “the number of offenses charged; the
complexity of the evidence to be offered; and whether the trier of fact will be
able to distinguish the evidence and apply the law intelligently to each offense.”
I.C. § 35-34-1-11(a)(1) through (3); Jackson v. State, 938 N.E.2d 29, 37 (Ind. Ct.
App. 2010), trans. denied. The mandatory-severance inquiry looks to the nature
of the charges; the discretionary-severance inquiry looks to the operative facts
underlying those charges. Pierce, 29 N.E.3d at 1265.
[10] Here, Jones’s motion to sever Counts I and II argued both mandatory and
discretionary grounds for severance: that the charges should be severed both as
a matter of right and to promote a fair determination of Jones’s guilt or
innocence. Appellant’s App. p. 56. By its order of April 14, 2016, the trial court
ruled that Jones was “not entitled to severance a matter of right[,]” id. at 87,
because the charges against him were not joined solely because they were of the
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same or similar character, but the court did not appear to address the propriety
of discretionary severance. In any event, Jones appears to confine his argument
on appeal to mandatory severance. Appellant’s Br. at 11 (“Mr. Jones should
have been entitled to severance as a matter of right.”), 15 (“[I]t is clear that Mr.
Jones should have been entitled to severance as a matter of right in this case.”).
We therefore confine our review to mandatory severance. Pierce, 29 N.E.3d at
1264 n.3.
[11] Jones appears to concede that the trial court’s denial of his motion to sever as a
matter of right was correct under current law: “The trial court’s order,” Jones
says, “finds plenty of support in the caselaw and, indeed, the order cites several
similar cases.” Appellant’s Br. at 12. We agree, as outlined below.
[12] But rather than rely on current law, Jones urges us to adopt the approach to
joinder and severance set out by Justice Rucker in Wells v. State, 983 N.E.2d
132, 132 (Ind. 2013) (Rucker, J., dissenting from denial of transfer). There,
Justice Rucker, joined by then-Chief Justice Dickson, stated that “our
traditional approach [to severance] is in need of reconsideration,” id. at 139, in
favor of an analysis that “recognize[s] the interplay” between joinder rules and
the bar against character-propensity evidence. Id. at 137. Current law’s focus on
whether charges were joined solely because of the same or similar character
undermines defendants’ statutory right to severance, Justice Rucker argued,
since it is “rarely the case” that a given set of facts cannot be more or less
arbitrarily described as “connected” or “based on the same conduct[.]” Id. at
136-37. Justice Rucker, again joined Justice Dickson, renewed his attack on
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current joinder analysis in Pierce. 29 N.E.3d at 1271 (Rucker, J., concurring in
the judgment).
[13] Justice Rucker — and Jones — may well be correct that “our traditional
approach is in need of reconsideration.” Wells, 983 N.E.2d at 139. But it is not
this panel’s place to supply it. Twice in the last four years, in Wells and Pierce,
our supreme court has declined Justice Rucker’s invitation to reconsider
Indiana’s joinder and severance analysis. All three members of the majority that
denied transfer in Wells and joined the lead opinion in Pierce currently sit on the
court, while neither member of the minority in those cases currently does.
Indiana’s joinder rules will remain as they are for the near future, at least.
[14] Jones’s apparent concession of the correctness of the trial court’s ruling on
mandatory severance under current law is well taken. Offenses may be
considered “connected” under Section 35-34-1-9(a)(2) “by a defendant’s efforts
to take advantage of his special relationship with the victims.” Pierce, 29 N.E.3d
at 1266 (citing Turnpaugh v. State, 521 N.E.2d 690 (Ind. 1988) (victims were two
young sisters and defendant’s overnight guests); Heinzman v. State, 895 N.E.2d
716 (Ind. Ct. App. 2008) (victims met defendant through defendant’s work as
Child Protective Services caseworker), trans. denied; Booker v. State, 790 N.E.2d
491 (Ind. Ct. App. 2003) (victims were under defendant’s care), trans. denied).
Offenses may also be considered “connected” under Section 35-34-1-9(a)(2) by
sharing a method or a motive. Id. (citing Craig v. State, 730 N.E.2d 1262 (Ind.
2000) (defendant’s alleged method of molesting two young girls was highly
distinctive; defendant’s motive was to satisfy sexual desire)).
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[15] Here, the trial court found that “Counts I and II involve siblings. There is a
common relationship between the Defendant and the alleged victims. The
crimes are alleged to have occurred against these siblings in the same house, in
the same bed, during visitation periods, and while the children were sleeping.”
Appellant’s App. p. 86. In other words, under Counts I and II, a father was
accused of molesting two of his daughters in the same place in the same way for
the same reason. Even on de novo review, we cannot say that the trial court
erred in concluding that Counts I and II were not joined solely because they
charged offenses of the same or similar character.
[16] Finally, Jones’s failure to argue the point on appeal notwithstanding, any error
arising from the trial court’s denial of discretionary severance was harmless.
When reviewing rulings on discretionary severance, “[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 v. State, 650 N.E.2d 304, 306 (Ind. 1995)
(quotations omitted); Dill v. State, 727 N.E.2d 22, 24 (Ind. Ct. App. 2000), aff’d,
741 N.E.2d 1230 (Ind. 2001).
[17] Jones warns us of the danger of unfairly prejudicial evidentiary “spillover” from
one charge to another in a joint trial, but there is no indication of any such
prejudicial spillover in this case. Jones faced two charges predicated on two
stories told by two accusers. His was essentially a trial on his accusers’
credibility. From its verdicts, the jury apparently believed one of them (K.J.) but
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not the other (L.J.). We perceive no reason, and Jones articulates none, to
suspect that the guilty verdict as to K.J. was influenced in any degree by the
evidence as to L.J., whose testimony the jury by hypothesis did not credit. The
jury simply did not draw the “forbidden inference” of present criminality as to
K.J. from a prior bad act as to L.J. when it rejected the predicate of the
inference. Appellant’s Br. at 13 (quoting Byers v. State, 709 N.E.2d 1024, 1026
(Ind. 1999)). Jones concedes that the split verdict might “prove[] [the jury’s]
ability to parse the evidence” and the law, but argues “it is equally likely that
the jury found the evidence as to both counts weak, but . . . [was] loath to fully
acquit” Jones based on the disturbing nature of the accusations against him.
Appellant’s Br. at 11. This is mere speculation. In light of what actually
occurred at trial, we cannot say that Jones was reversibly prejudiced by any
error in the trial court’s denial of his motion for discretionary severance.
Conclusion
[18] The trial court did not err in denying Jones’s motion for mandatory severance,
and any error arising from its denial of discretionary severance was harmless.
The judgment against Jones is therefore affirmed.
[19] Affirmed.
Kirsch, J., and Altice, J., concur.
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