Court of Appeals of Indiana | Memorandum Opinion 20A05-1606-CR-1462 | June 13, 2017 Page 1 of 13

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

Sean P. Hilgendorf

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Clyde Kissel,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 13, 2017

Court of Appeals Cause No.

20A05-1606-CR-1462

Appeal from the Elkhart Superior 

Court

The Honorable Teresa L. Cataldo, 

Judge

Trial Court Cause No. 20D03-1307-

FA-37

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Clyde Kissel (Kissel), appeals his conviction for four

Counts of attempted child molesting, Class A felonies, Ind. Code §§ 35-42-4-

3(a)(1); -41-5-1 (2005); and two Counts of child molesting, Class C felonies, I.C. 

§ 35-42-4-3(b) (2005).

[2] We affirm. 

ISSUES

[3] Kissel presents two issue on appeal, which we restate as follows: 

(1) Whether the trial court abused its discretion in denying Kissel’s motion to 

sever; and 

(2) Whether the State presented sufficient evidence beyond a reasonable doubt 

to support Kissel’s convictions. 

FACTS AND PROCEDURAL HISTORY

[4] S.R., born in 1995, and R.R., born in 1997, live with their mother (Mother), 

father, and two brothers in Edwardsburg, Michigan. Kissel is father to Mother 

and is, therefore, S.R.’s and R.R.’s maternal grandfather. Kissel and his wife 

(Grandmother) lived in a 3,800 square-foot house by the St. Joseph river, in 

Elkhart, Indiana. 

[5] Almost every major holiday, Mother’s four children, including S.R. and R.R.,

would spend time at Kissel’s house. In 2005, Kissel lost his job, and 

Grandmother traveled a lot for work. Due to Grandmother’s prolonged
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absence, Kissel expressed to Mother that he could “handle one, maybe [] two,” 

but not all four children at the same time for visits. (Transcript p. 125). In 

2005, ten-year-old S.R. was visiting Kissel at his home. While sitting on the 

couch, Kissel used a back massager on S.R.’s back, and then turned S.R. 

around and rolled the back massager on her chest, and then down to S.R.’s 

pants zipper. At that point, Kissel paused and told S.R. that “it would feel”

better if she took off her pants. (Tr. p. 208). S.R. did not remove her pants;

however, Kissel continued to rub the massager against S.R.’s vagina, over her 

pants. S.R. voiced to Kissel that she needed to use the bathroom. When S.R.

returned, she did not sit on the couch; instead, she sat on the floor and told 

Kissel that she “just wanted to pet the dog and watch TV.” (Tr. p. 209). On 

another occasion, still in the same year, Kissel picked up S.R. from her home so 

that she could spend a night at his house. When Kissel and S.R. got to the 

house, Kissel asked S.R. if she wanted to take a shower. S.R. thought that she 

would be showering alone, but Kissel followed her and stated that they could 

both shower together. In the shower, Kissel washed S.R.’s entire body. At that 

moment, Kissel instructed S.R. to do the same to him. Avoiding Kissel’s penis 

area, S.R. washed Kissel’s stomach, arms, and legs. Kissel instructed S.R. to 

also wash his penis, and so she did. After the shower, Kissel informed S.R. that 

she could sleep in his bed since Grandmother was out of town that night. Also, 

Kissel expressed to S.R. that she was not required to sleep with her pants since 

he did not sleep with his either. When they got in bed, Kissel pulled S.R. “on 

top of his stomach,” and rubbed her entire body with his hands. (Tr. p. 216).

Kissel thereafter reached down for his “penis and started rubbing it” against
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S.R.’s vagina, causing her pain. (Tr. p. 216). On another occasion, Kissel 

pulled down S.R.’s pants to her knees, and using a back massager, he rubbed 

S.R.’s “clitoris” over her underwear. (Tr. p. 208). 

[6] In 2005, R.R. was about eight years old. While visiting Kissel, she and Kissel 

went for a swim in the pool on Kissel’s property. Later in the day, 

Grandmother requested R.R. to accompany her to the store. However, Kissel 

convinced R.R. to remain behind by stating, “[N]o, let’s just hang around the 

house, just me and you, and [Grandmother] can go to the store.” (Tr. p. 169). 

When Grandmother left, Kissel told R.R. that they needed to wash off the 

chlorine from their bodies. R.R. accompanied Kissel to the master bedroom 

bathroom. Because Kissel did not want Grandmother knowing that he and 

R.R. had taken a shower, he put up R.R.’s hair, which had been dry following 

her earlier swim. In the shower, both took turns washing each other. 

Thereafter, Kissel took R.R. into his bedroom, made her lie on the bed, and 

informed R.R. that he wanted to show her something. Using a massager that 

“vibrated,” Kissel brushed it against R.R.’s vagina. (Tr. p. 176). When Kissel 

heard the garage door open, thereby indicating that Grandmother was back 

from the store, he stopped and told R.R. to hurry up and get dressed. Kissel 

instructed R.R. to keep the events of that afternoon secret. 

[7] On January 17, 2013, after Mother watched a show on the television about a 

girl who got drunk and was raped by several men, Mother decided to talk to her 

now-teenage daughters, S.R. and R.R. When Mother asked S.R. what she 

would do in a similar situation, S.R. stated that she would fight off the men. 
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Mother disputed S.R.’s response and stated that S.R. would not know what do 

if she was confronted with a similar situation. Mother’s comment upset S.R. 

and both started arguing. While arguing, Mother told S.R., “[D]on’t just sit 

there and act like you have been in this situation before because you don’t know 

anything about it.” (Tr. p. 178). At that point, S.R. “freaked out and started 

screaming at” Mother, and she stated, “[D]on’t tell me this has never happened 

to me because it has, and [Kissel] is the one that did it to me.” (Tr. p. 178). 

S.R. added, “I know you heard me . . . . [Kissel] raped me . . . and it happened 

to” R.R. as well. (Tr. p. 179). 

[8] On July 16, 2013, the State filed an Information, charging Kissel with Counts IIII, Class A felony child molesting with respect to S.R.; Counts IV-V, Class C 

felony child molesting with respect to R.R.; Count VI, Class A felony child 

molesting with respect to R.R.; Count VII, Class A felony child molesting with 

respect to A.B.—Kissel’s other granddaughter (a daughter to Mother’s halfsister); and Count VIII, Class B felony incest with respect to A.B. On May 21, 

2015, Kissel filed a motion to sever the Counts and sought separate trials for all 

three victims. On July 1, 2015, the trial court held a hearing on the motion to 

sever and took the matter under advisement. On August 18, 2015, the trial 

court issued an order denying Kissel’s severance motion. 

[9] On October 9, 2015, the State filed a motion for leave to amend the charging 

Information, which was granted. In the amended charging Information, the 

State dismissed the offenses relating to A.B.—i.e., Count VII, child molesting, a 

Class A felony, and Count VIII, incest, a Class B felony. In addition, the State 
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amended the offenses relating to S.R. —i.e., Counts I-III, from Class A felonies

for child molesting, to Class A felonies, attempted child molesting. 

[10] A three-day jury trial was held from February 15 through February 17, 2016, on 

the amended charging Information. At the close of the State’s case, upon the 

trial court’s approval, the State orally amended Count VI, a Class A felony 

child molesting charge relating to R.R., to a Class A felony attempted child 

molesting. At the end of trial, the jury found Kissel guilty of all charges–i.e.,

four Class A felonies for attempted child molesting (three of which related to 

S.R. and one to R.R.); and two Class C felonies for child molesting on R.R. On 

May 26, 2016, the trial court conducted Kissel’s sentencing hearing. At the 

close of the evidence, the trial court imposed concurrent forty-year sentences on

the three Class A felonies relating to S.R. Additionally, the trial court 

sentenced Kissel to a consecutive forty-year sentence on the remaining Class A 

felony offense relating to R.R. Lastly, the trial court imposed concurrent sixyear sentences on the two Class C felonies for child molesting with respect to

R.R. Kissel’s aggregate sentence is eighty years. 

[11] Kissel now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

I. Motion to Sever

[12] Kissel first argues that the trial court abused its discretion in denying his motion 

to sever. Specifically, Kissel contends that the charges involving S.R. should 

have been severed from the charges involving R.R.
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[13] Under the controlling statute, two or more offenses may properly be joined in 

the same information if 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.” I.C. § 35-34-1-9(a). Indiana Code section 35-34-1-11(a) provides that 

a defendant has “an absolute right to severance of offenses which have been 

joined ‘solely on the ground that they are of the same or similar character.’” 

Davidson v. State, 558 N.E.2d 1077, 1083 (Ind. 1990). Thus, where causes are 

joined solely under subsection 9(a)(1), i.e., same or similar character, the trial 

court has no discretion to deny a severance motion, and we review its decision 

de novo. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015). However, if the 

offenses have been joined under subsection 9(a)(2) because the defendant’s 

underlying acts are connected together, we review the trial court’s ruling for an 

abuse of discretion. Id.

[14] Notably, our statutes require a defendant to comply with certain procedural 

steps to preserve error from the denial of a pre-trial motion for severance:

(b) If a defendant’s pretrial motion for severance of offenses or 

motion for a separate trial is overruled, the motion may be 

renewed on the same grounds before or at the close of all the 

evidence during trial. The right to severance of offenses or 

separate trial is waived by failure to renew the motion.

I.C. § 35-34-1-12. Thus, where a defendant moves for severance before trial, is 

denied severance, and fails to renew that motion by the close of evidence at 

trial, he may not seek appeal from the denial of that motion. Rouster v. State, 
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600 N.E.2d 1342, 1346 (Ind. 1992). Here, Kissel did not renew his pre-trial 

severance motion during trial, and the State claims that he has waived this issue

for appeal. See I.C. § 35-34-1-12(b). We agree with the State that by failing to 

renew his severance motion at the close of the evidence, Kissel waives this issue 

for appeal. Waiver notwithstanding, we will address Kissel’s claim on the 

merits. 

[15] On appeal, Kissel does not advance that he was entitled to severance as a 

matter of right because his offenses were not of the same or similar character; 

rather, Kissel contends that severance was appropriate to promote a fair 

determination of his guilt or innocence for each of the charged offenses. See

I.C. § 35-34-1-11(a). As such, Kissel argues that the trial court abused its 

discretion in denying his motion to sever.

[16] As noted, if the offenses have been joined under subsection 9(a)(2) because the 

defendant’s underlying acts are connected together, we review the trial court’s 

ruling for an abuse of discretion. Pierce, 29 N.E.3d at 1265. Under the abuse of 

discretion standard, the trial court must determine whether the severance is 

appropriate to promote a fair determination of the defendant’s guilt or 

innocence of each offense. Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App. 

2003), trans. denied. In making such a determination, Indiana Code Section 35-

34-1-11(a) mandates the trial court 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.
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[17] The number of charges in this case is not confusingly large. The State had 

initially charged Kissel with eight Counts—five Class A felonies for child 

molesting offenses (three related to S.R., one to R.R., and the other to A.B.); 

two Class C felonies for child molesting offenses relating to R.R.; and one Class 

B felony incest charge relating to A.B. On October 9, 2015, the State dismissed 

the Counts pertaining to A.B. At his jury trial, Kissel was only tried for six 

charges—i.e., four Class A felonies for attempted child molesting (three of 

which related to S.R. and one to R.R.); and two Class C felonies for child 

molesting on R.R. Furthermore, the evidence presented at trial was not overtly 

complex. S.R. testified that Kissel used a massager to rub her vagina, once over 

her pants and another time over her underwear. S.R. also testified that the third 

time Kissel molested her, Kissel pulled her on top of him and rubbed his penis 

against her vagina and he caused her pain. Turning to the offenses against 

R.R., Counts IV and V, R.R. testified to an incident in the shower where Kissel 

washed her body, and under Kissel’s instruction, she bathed his body. R.R. 

testified that after showering, Kissel made her lie on the bed and then he 

massaged her vagina with a vibrating machine. 

[18] We find that the girls’ testimony was easy to distinguish and separately 

described each girl’s independent experiences. See Philson v. State, 899 N.E.2d 

14, 17-18 (Ind. Ct. App. 2008) (finding no abuse of discretion in the trial court’s 

refusal to sever five charges covering two victims as the evidence regarding each 

victim was easily distinguishable and largely based upon each victim’s 

testimony). Finally, it is reasonable to conclude that, in light of the 
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uncomplicated nature of the evidence, there was insignificant risk of juror 

confusion or any doubt that the jurors would not have been able to distinguish 

the evidence and apply the law intelligently to each offense. More importantly, 

the jury instructions clearly defined each offense, and the trial court instructed 

the jury to consider each Count independently based on the law and the 

evidence relating to each Count. Under the foregoing circumstances, we hold 

that the trial court did not abuse its discretion by denying Kissel’s severance 

motion. 

II. Sufficiency of the Evidence

[19] Kissel also contends that the evidence was insufficient to convict him of the 

child molesting offenses. “Upon a challenge to the sufficiency of evidence to 

support a conviction, a reviewing court does not reweigh the evidence or judge 

the credibility of witnesses, and respects the jury’s exclusive province to weigh 

conflicting evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App.

2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We 

consider only probative evidence and reasonable inferences supporting the 

verdict. Id. We must affirm if the probative evidence and reasonable inferences 

drawn from the evidence could have allowed a reasonable trier of fact to find 

the defendant guilty beyond a reasonable doubt. Id.

[20] In the instant case, Kissel was charged with four Class A felonies for attempted 

child molesting, and two Class C felonies for child molesting. A conviction for 

child molesting as a Class A felony requires the State to prove, in pertinent part, 

that a person at least twenty-one years of age performed sexual intercourse or 
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deviate sexual conduct on a child who is under fourteen years of age. I.C. § 35-

42-4-3(a)(1) (2005). Deviate sexual conduct means an act involving: (1) a sex 

organ of one (1) person and the mouth or anus of another person; or (2) the 

penetration of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-

94 (2005). Attempt is defined at Indiana Code section 35-41-5-1(a), which 

states that “[a] person attempts to commit a crime when, acting with the 

culpability required for the commission of the crime, he engages in conduct that 

constitutes a substantial step toward commission of the crime.” Therefore, to 

be guilty of Class A felony attempted child molesting as charged in Counts I-III 

and VI, the State must have established beyond a reasonable doubt that Kissel 

took a substantial step toward performing sexual intercourse or deviate sexual 

conduct with S.R. and R.R.

[21] At the time Kissel committed the offenses against S.R., she was about ten years 

old, and Kissel was sixty-three years old. S.R. testified that the first time Kissel 

molested her, Kissel used a back massager to massage her vagina over her 

pants. In another massaging incident, S.R. testified that Kissel pulled her pants 

down to her knees and used a massager to rub her “clitoris” over her 

underwear. (Tr. p. 208). Kissel’s third molesting act against S.R. occurred 

when he picked up S.R. from her home so that she could spend the night alone 

at his house. After taking a shower with S.R., Kissel informed S.R. that she 

could spend the night in his bed since Grandmother was out of town. When 

they both got in bed, Kissel pulled S.R. “on top of his stomach,” and then he

rubbed her entire body with his hands. (Tr. p. 216). Kissel afterwards reached 
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down for his penis and used it to rub S.R.’s vagina, thereby causing her pain. 

Although penetration did not occur, Kissel’s conduct with regard to the first 

two acts of abuse against S.R. points to an inference that he was attempting to 

perform deviate sexual conduct, and the last act against S.R. was an attempt by 

Kissel to penetrate S.R.’s vagina. Turning to the last Class A felony attempted 

child molesting offense against R.R., the record shows that in 2005, R.R. was 

about eight years old, and Kissel was sixty-three years old. Kissel took R.R. 

into his bedroom and made her lie on the bed. Kissel then used a massager to 

rub R.R.’s vagina. Here, the reasonable inference to be drawn from Kissel’s

actions was that he was attempting to perform deviate sexual conduct with R.R. 

[22] Lastly, to establish the offense of child molesting as a Class C felony in this 

case, the State must have proved beyond a reasonable doubt that (1) Kissel (2) 

with R.R., a child under fourteen years of age, (3) performed or submitted to 

fondling or touching of R.R. (4) with the intent to arouse or satisfy the sexual 

desires of either R.R. or Kissel. See I.C. § 35-42-4-3(b). Mere touching alone is 

insufficient to constitute the crime of child molesting. Bass v. State, 947 N.E.2d 

456, 460 (Ind. Ct. App. 2011), trans. denied. The State must also prove beyond a 

reasonable doubt that the act of touching was accompanied by the specific 

intent to arouse or satisfy sexual desires. Id. The intent element of child 

molesting may be established by circumstantial evidence and may be inferred 

from the actor’s conduct and the natural and usual consequence to which such 

conduct usually points. Id. The evidence favorable to the verdict shows that 

Kissel wanted R.R. to remain behind instead of going with Grandmother to the 
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store. Once Grandmother had left and they were home alone, Kissel told R.R. 

they needed to wash off the chlorine. Because Kissel did not want 

Grandmother to know that he and R.R. had taken a shower together, he tied 

back R.R.’s hair in order to avoid getting it wet. In the shower, Kissel put soap 

on his hands and washed R.R.’s body. Kissel instructed R.R. do the same to 

him. Here, it could be inferred that Kissel’s concealed act of showering with 

R.R. while Grandmother had left to go to the store, was not utterly innocent

and that he intended to arouse or satisfy his sexual desires. Based on the 

foregoing, we conclude that the State provided sufficient evidence beyond a 

reasonable doubt to support Kissel’s Class C felony child molesting convictions.

CONCLUSION

[23] Based on the foregoing, we conclude that the trial court did not abuse its 

discretion in denying Kissel’s motion to sever, and the State presented sufficient 

evidence beyond a reasonable doubt to support Kissel’s convictions.

[24] Affirmed. 

[25] Najam, J. and Bradford, J. concur