Craig v. State

ATTORNEY FOR APPELLANT

Anthony L. Kraus
Auburn, Indiana

ATTORNEYS FOR APPELLEE

Karen Freeman-Wilson
Attorney General of Indiana

James B. Martin
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

JIMMY A. CRAIG, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 17S00-9911-CR-638
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE DEKALB CIRCUIT COURT
The Honorable Paul R. Cherry, Judge
Cause No. 17C01-9811-CF-031
__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

June 30, 2000

BOEHM, Justice.
Jimmy A. Craig was convicted of child molesting as a Class A felony
and of being a habitual offender. He was sentenced to fifty years for
child molesting, enhanced by thirty years for the habitual, for a total
sentence of eighty years imprisonment. In this direct appeal he contends
that (1) the trial court erred in denying his motion to sever; (2) there is
insufficient evidence to support his conviction for child molesting; (3)
the trial court erred in admitting exhibits in support of the habitual
offender enhancement thereby rendering the evidence insufficient to support
it. We affirm the trial court.
Factual and Procedural Background
On September 9, 1998, nine-year-old C.R. spent the night at Craig’s
house. C.R. and Craig’s daughter, age eight, were in the same Brownie
troop, and Craig and his wife were leaders of the troop. As the girls
watched television, Craig told C.R. that he later wanted to try the “taste
test” with her. He explained that he had “this rubber thing that he puts
on bottles.” C.R. later went into Craig’s bedroom where he was lying on
the bed wearing only a pair of shorts. While C.R.’s eyes were uncovered,
Craig had her taste a variety of foods from plastic bottles that he had
brought in the room. He then covered her eyes with duct tape, told her to
put her hands under her bottom, and poured a cherry substance in her mouth.
Craig then put “something with the little bottle top on it” in her mouth.
C.R. described this object as “like a thumb but it was much bigger.” It
did not have a thumbnail. The object was soft and warm, and Craig told her
to “[s]uck on it.” Eventually a substance that tasted like “urine” came
out of it. C.R. spit out the substance and tore the tape off of her eyes.
She saw Craig standing with his hands raised in the air. He said, “What
did I do, what did I do?” Craig never showed C.R. the rubber bottle top
that he had purportedly placed in her mouth. Minutes after the incident,
Craig asked C.R. if she was going to tell on him.
The next morning, after C.R. told her teacher about the incident, she
was interviewed by a case manager from the DeKalb County Division of Family
and Children. Police then obtained a court order for a blood draw from
Craig. The blood draw ultimately proved useless because no physical
evidence was found on which to base a comparison, but after the blood draw
Craig agreed to go to the police station for questioning. A detective told
Craig that he needed to talk to him about an incident involving C.R., and
Craig responded, “There was no inappropriate touching.” When the detective
stated that he had contrary information, Craig said he was not capable of
getting an erection because of medication he was taking.
Craig was charged with the molestation of C.R. and the molestation of
C.W., a six year old from the Brownie troop, in an incident alleged to have
occurred five or six days earlier. He was also charged with being a
habitual offender. On the day before trial, Craig filed a motion to sever
the two child molesting counts, which was denied. At trial C.W. testified
that Craig covered her eyes with tape and put marshmallows and “chocolate
stuff” in her mouth. She did not recall anything else being put in her
mouth, and the State dismissed the first count of molestation after her
testimony. Craig was convicted of the molestation of C.R., found to be a
habitual offender, and sentenced to eighty years imprisonment.
I. Motion to Sever
Craig first contends that the trial court erred by denying his
pretrial motion to sever. The statute provides that two or more offenses,
stated in separate counts, may be joined in the same indictment or
information 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(a) (1998). The State
charged Craig with two Class A felony counts of child molesting. Count I
alleged that Craig placed his penis in the mouth of six-year-old C.W. on
September 23 or 24, 1998. Count II alleged that Craig placed his penis in
the mouth of nine-year-old C.R. on September 29, 1998. According to the
probable cause affidavits filed with the charges, C.W. told police that
Craig asked her if she wanted to play the “taste test” game. She agreed
and Craig put tape over her eyes so that she could not see what he was
putting in her mouth. At some point Craig
put an object in her mouth that was soft and at first she started to
bite it and [Craig] told her not to. C.W. stated that when he put it
back in her mouth it felt like a thumb. C.W. stated that [Craig] told
her to close her mouth and to suck on it which she did and the nasty
stuff squirted out and it was warm.

The probable cause affidavit filed in support of Count II alleged that
Craig asked C.R. if she wanted to play the “taste test” game and placed
tape over her eyes so she could not see. Craig told C.R.
that he had put a rubber end on something and she needed to ‘suck on
it till the juice came out.’ C.R. stated that she had to open her
mouth real wide. C.R. stated that it was like a thumb but a lot
bigger. . . . C.R. stated that [Craig] was breathing like he was
running (panting) and that her mouth was filled with a warm substance
that C.R. stated tasted like urine and she did spit it out.

Craig argues that he was entitled to a severance as a matter of right,
and that even if he had no right to sever, the trial court abused its
discretion in refusing a severance. Indiana Code § 35-34-1-11(a) provides
defendants with the right to severance where “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 . . . .” As the
statute explicitly states, severance is required as a matter of right under
this provision only if the sole ground for joining is that the offenses are
of the same or similar character. See Ben-Yisrayl v. State, 690 N.E.2d
1141, 1145 (Ind. 1997). Offenses may be sufficiently “connected together”
to justify joinder under subsection 9(a)(2) “if the State can establish
that a common modus operandi linked the crimes and that the same motive
induced that criminal behavior.” Id. at 1145 (citing Davidson v. State,
558 N.E.2d 1077, 1083 (Ind. 1990)).[1]
The molestations of C.W. and C.R. have the same modus operandi. Each
victim was a member of the Brownie troop led by Craig and his wife and was
spending the night at Craig’s house. The incidents occurred within the
same week. Craig asked each girl to take the “taste test” and covered the
eyes of each with tape. He then put an object in their mouths and
instructed them to suck on it. These similarities are sufficient to
establish that the molestation of each victim was the handiwork of the same
person. The motive of both offenses was the same—to satisfy Craig’s sexual
desires.
If severance is not a matter of right, Indiana Code § 35-34-1-11(a)
provides that:
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.

A trial court’s refusal to sever charges under these circumstances is
reviewed for an abuse of discretion. Kahlenbeck v. State, 719 N.E.2d 1213,
1216 (Ind. 1999).
This case involved only two charges and a total of nine witnesses.
The evidence was not complex but rather consisted primarily of the
testimony of the two alleged victims and those who had spoken to them after
the offenses. A jury would have no difficulty distinguishing the evidence
and applying the law intelligently to each count. In Davidson, we observed
there was “little danger of a jury being confused or overwhelmed with
facts, considering only two charges were joined for trial. The evidence is
largely circumstantial, but at its conclusion a clear picture emerges of
two separate instances of the commission of infanticide for financial
gain.” 558 N.E.2d at 1083. The same is true here. The trial court did
not abuse its discretion in denying the motion for severance.
II. Sufficiency of the Evidence for Child Molesting
Craig contends that there is insufficient evidence to support his
conviction for the molestation of C.R. Our standard for reviewing a claim
of sufficiency of the evidence is well settled. We do not reweigh the
evidence or judge the credibility of witnesses. Spurlock v. State, 675
N.E.2d 312, 314 (Ind. 1996). We look to the evidence and the reasonable
inferences therefrom that support the verdict and will affirm a conviction
if evidence of probative value exists from which a jury could find the
defendant guilty beyond a reasonable doubt. Id.
Craig suggests that the State failed to present any direct evidence
that he placed his penis in C.R.’s mouth. The absence of direct evidence
entitles a defendant to a jury instruction to the effect that: “[w]here
proof of guilt is by circumstantial evidence only, it must be so conclusive
in character and point so surely and unerringly to the guilt of the accused
as to exclude every reasonable theory of innocence.” 2 Indiana Pattern
Jury Instructions (Criminal) 12.01 (2d ed. 1991). But we review the
sufficiency of evidence to support a jury’s verdict based solely on
circumstantial evidence under a different standard. This Court need not
find that the evidence overcomes every reasonable hypothesis of innocence
but only that an inference may be drawn from the circumstantial evidence
that supports the jury’s verdict. Owens v. State, 514 N.E.2d 1257, 1258
(Ind. 1987); accord Vehorn v. State, 717 N.E.2d 869, 876 (Ind. 1999) (“On
appeal, the circumstantial evidence need not overcome every reasonable
hypothesis of innocence. It is enough if an inference reasonably tending
to support the verdict can be drawn from the circumstantial evidence.”)
(citation omitted).
Craig is correct that no witness saw him put his penis in C.R.’s
mouth. Craig and C.R. were the only ones in the room and her eyes were
covered with tape. The jury could nevertheless reasonably draw an
inference from C.R.’s testimony that an act of molestation occurred.
Craig’s statements to police also support an inference of his guilt. This
is sufficient evidence to support his conviction for child molesting.
III. Habitual Offender
As a final point Craig attacks the admission of documentary evidence
during the habitual offender phase. The habitual offender charge alleged
that, prior to the molestation of C.R., Craig had accumulated two prior
unrelated felony convictions: a 1981 burglary conviction from Kosciusko
County and a 1985 burglary conviction from Wisconsin. The State sought to
prove the predicate offenses in part through certified public documents.
State’s exhibit one is a packet of certified documents from the
Indiana Department of Correction. The cover page contains a certification
that the attached seven documents are true and correct copies of records
for Craig. However, four of the seven documents on the list of attached
documents are whited-out, and only the remaining three listed documents are
attached. The whited-out documents apparently pertain to a conviction from
Whitley County, which the State redacted at the trial court’s instruction.
Although Craig agreed that these other documents should not be submitted to
the jury, he contended at trial, and now on appeal, that removing these
pages from a certified document rendered the documents uncertified and
therefore inadmissible. He cites no authority in support of this
contention.
The admission of documentary evidence at trial requires the proponent
to show that the evidence has been authenticated, or simply put, that the
evidence “is what its proponent claims.” Ind. Evidence Rule 901(a). A
piece of evidence may be authenticated by any method provided by rule of
this Court, statute, or the state constitution. Evid. R. 901(a)(10).
Where the document at issue is a domestic public record, certified in
accordance with Trial Rule 44(A)(1), the document is self-authenticating
and no extrinsic evidence is necessary for its admission. Ind. Evidence
Rule 902(1).
This Court has previously rejected challenges to the admissibility of
a multi-page exhibit that contained a certification attached to the top of
the copies stating that the “foregoing” was correctly taken and copied from
the original record. See, e.g., Chanley v. State, 583 N.E.2d 126, 131
(Ind. 1991); Miller v. State, 563 N.E.2d 578, 584 (Ind. 1990). In Miller,
we held “the placement of the certificate on the top of the papers rather
than on the back in no way causes any confusion as to the authenticity of
the papers.” 563 N.E.2d at 584. We reach the same conclusion here, where
the certification clearly refers to the three attached documents but omits
other documents unrelated to the case and prejudicial to the defendant.
There is no question about the authenticity of the three remaining
documents that bear the defendant’s name and either the same cause number
or Department of Corrections prisoner number that appears on the
certification page.
The same is true of State’s exhibit three, the certified records from
Wisconsin. Although it is not clear from the record, it appears that
rather than whiting out information, the prosecutor removed documents that
contained information about other offenses and Craig’s juvenile record.
The certification of that exhibit states that it contains copies of Craig’s
fingerprint cards, photographs, and final disposition reports. It includes
his prison identification number and date of birth. Unlike exhibit one, it
does not list the specific documents attached. Nevertheless, each of the
attached documents bears Craig’s name, date of birth, and prison
identification number. Whatever documents may have been removed do not
affect the authenticity of those that remained.
In sum, the trial court properly admitted exhibits one and three.
These exhibits, in combination with the other evidence presented during the
habitual offender phase of the trial, constitute sufficient evidence of
probative value from which a reasonable jury could have found that Craig
had committed two prior unrelated felonies.
Conclusion
The judgment of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.

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[1] Modus operandi "refers to a pattern of criminal behavior so distinctive
that separate crimes are recognizable as the handiwork of the same
wrongdoer." Penley v. State, 506 N.E.2d 806, 810 (Ind. 1987) (quoting
People v. Barbour, 436 N.E.2d 667, 672 (Ill. Ct. App. 1982)).