ATTORNEY FOR APPELLANT
Anthony L. Kraus
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
James B. Martin
Deputy Attorney General
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
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 Craigs house.
C.R. and Craigs 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 Craigs 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.
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)).
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 Craigs 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 sameto satisfy Craigs sexual desires.
If severance is not a matter of right, Indiana Code § 35-34-1-11(a) provides
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 defendants 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 courts refusal to sever charges under these circumstances is reviewed for
an abuse of discretion.
Kahlenbeck v. State, 719 N.E.2d 1213, 1216 (Ind.
II. Sufficiency of the Evidence for Child Molesting
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.
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 jurys 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 jurys 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. Craigs
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
States 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 courts 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.
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
defendants name and either the same cause number or Department of Corrections prisoner
number that appears on the certification page.
The same is true of States 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 Craigs juvenile record. The certification of that exhibit states that
it contains copies of Craigs 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 Craigs 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.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Modus operandi "refers to a pattern of criminal behavior so distinctive that
separate crimes are recognizable as the handiwork of the same wrongdoer."
v. State, 506 N.E.2d 806, 810 (Ind. 1987) (quoting People v. Barbour, 436
N.E.2d 667, 672 (Ill. Ct. App. 1982)).