Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2538 | August 9, 2017 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Timothy J. O’Connor

O’Connor & Auersch

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sherwin E. Jones,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 9, 2017

Court of Appeals Case No.

49A02-1611-CR-2538

Appeal from the Marion Superior 

Court

The Honorable Amy J. Barbar, 

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 threeyear 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.