ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT V. CLUTTER JEFFREY A. MODISETT
Clark, Quinn, Moses & Clark Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
DERRICK HARVEY, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-9902-CR-148 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
or similar character. He also contends, in the alternative, the denial of severance was an
abuse of the trial court's discretion. The State argues Harvey is not entitled to severance as
a matter of right as the charges were not joined because of their similarity but because
Harvey engaged in an ongoing scheme or plan to rob evidenced by a common modus
operandi. We agree with the State.
Two or more offenses may be joined in the same indictment when they are either of the same or similar character or constitute part of a single scheme or plan. Ind. Code § 35- 34-1-9. If offenses are joined solely on the ground that they are of the same or similar character, a defendant is entitled to severance as a matter of right and the trial court has no discretion to deny a motion to sever. § 35-34-1-11(a); see also Valentin v. State, 567 N.E.2d 792, 794 (Ind. 1991). If, however, offenses are joined as being part of a single scheme or plan, it is within the trial court's discretion to grant severance when it is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense. § 35- 34-1-11(a). See Goodman v. State, 708 N.E.2d 901, 902 (Ind. Ct. App. 1999).
Crimes will be considered part of a single scheme or plan for purposes of § 35-34-1- 9(a)(2) when there is evidence linking the crimes by a common modus operandi. See Ben- Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind. 1997). Modus operandi refers to a pattern of criminal behavior so distinctive that separate crimes may be recognized as the work of the same wrongdoer. Goodman, 708 N.E.2d at 903; see also Penley v. State, 506 N.E.2d 806, 810 (Ind. 1987). The methodology of the crimes must be both strikingly similar and
unique in such a way as to attribute the crime to a single person. Goodman, 708 N.E.2d at
903. Unlike Goodman, where we did not find a pattern among the thefts of sundry items
over a one-month period in rural Greene county at all distinctive, we do find a distinct
pattern among the two robberies in this case so as to suggest they were part of a single
scheme or plan to rob.
In this case, both robberies took place at approximately the same time of day in the same part of Indianapolis between Ditch Road and Michigan Road on West 86th Street just four days apart. The suspects in both robberies were identified as two black men, one very tall, the other fairly short. The roles played by the suspects during the robberies were similar. In both robberies, the larger Morgan wielded the handgun and physically manipulated the victims while the smaller Harvey assisted. In both robberies, Morgan pistol-whipped the victim after emptying the cash register. While some of these similarities are inherent in many robberies, we find these facts sufficient to show a series of acts connected together induced by the common motive to rob. Harvey, therefore, was not entitled to severance as a matter of right.
Since Harvey was not entitled to severance as a matter of right, we must next examine whether the trial court abused its discretion in denying his motion to sever. When determining whether to grant severance in a case where there is no automatic right, a trial court considers: (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. Ind. Code § 35-34-1-11(a)(1)-(3). Whether
charges are severed under § 35-34-1-11(a) is within the sound discretion of the trial court
and will be upheld absent a showing of clear error. Harvey must show in light of what
actually occurred at trial, the denial of a separate trial subjected him to . . . prejudice.
Brown v. State, 650 N.E.2d 304, 306 (Ind. 1995) (quoting Hunt v. State, 455 N.E.2d 307,
312 (Ind. 1983)).
Harvey presents no evidence that either the number of offenses charged or the complexity of the evidence offered subjected him to prejudice. Given that Harvey was acquitted of all charges stemming from the first robbery, it appears the jury was able to distinguish the evidence and apply the law intelligently as to each offense. Additionally, even had the offenses been erroneously united, it has long been the law of this state that acquittal of charges from one joined offense makes the misjoinder unavailable for reversal of the judgment. See Myers v. State, 92 Ind. 390, 395 (1883). As such, we find the trial court did not abuse its discretion by denying Harvey's motion to sever.
2. Conviction of Lesser Included Offense
Harvey argues his convictions of robbery and criminal confinement violate Ind. Code § 35-38-1-6See footnote 3 because confinement, in this context, is a lesser included offense of robbery.
Specifically, while confinement is not always an inherently lesser included offense of robbery, Harvey contends the State's charging information and evidence at trial preclude conviction on both counts. We agree with Harvey and find his conviction of confinement violates § 35-38-1-6.See footnote 4 As the statutory analysis is determinative in this case, we need not address Harvey's claim under the Indiana Constitution. Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (it is the duty of the court not to enter upon the consideration of a
constitutional question where the court can perceive another ground upon which it may
properly rest its decision) (citing Bureau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559
Ind. Code § 35-38-1-6 protects defendants charged with an offense and an included offense from being found guilty of both charges as this is tantamount to convicting a defendant twice for the same conduct. An offense may be either inherently or factually included in another offense for purposes of § 35-38-1-6. An offense is inherently included in another when it may be established by proof of the same material elements or less than all the material elements defining the greater crime charged. Ind. Code § 25-41-1-16(1); see Goudy, 689 N.E.2d at 697; Wright, 658 N.E.2d at 566. An offense is factually included in another when the charging instrument alleges the means used to commit the crime charged include all of the elements of the alleged lesser included offense. Wright, 658 N.E.2d at 567; Moore v. State, 698 N.E.2d 1203, 1207-08 (Ind. Ct. App. 1998). We find the confinement as charged both inherently and factually included in the robbery.
To support Harvey's conviction of robbery as a Class B felony, the State had to prove Harvey (1) knowingly or intentionally (2) took property from another (3) through use or threat of force (4) while armed with a deadly weapon. Ind. Code § 35-42-5-1. To convict on the charge of criminal confinement, the State was required to show Harvey (1) knowingly or intentionally (2) confined another without consent (3) by using a deadly weapon. § 35-42-3-3. In this case, confinement is inherently included in robbery because
the use or threat of force element needed to support the conviction of robbery is not
distinct from the confinement' element needed to support the conviction of criminal
confinement. Confinement exists when there is a substantial interference with liberty
without consent. Any amount of force can cause a confinement because force, however
brief, equals confinement. Wethington v. State, 560 N.E.2d 496, 508 (Ind. 1990), citing
Ryle v. State, 549 N.E.2d 81, 85 (Ind. Ct. App. 1990). Unless there is force used beyond
that which is inherently necessary in any robbery, there cannot be a separate conviction of
confinement. Id.; Tingle v. State, 632 N.E.2d 345, 350 (Ind. 1994). Cf. Harris v. State, No.
49S00-9701-CR-0033, 1999 WL 744156, at *4 (Ind. Sept. 23, 1999) (affirming convictions
for both confinement and robbery because the facts indicated confinement well beyond that
used to commit the robbery); Brown v. State, 671 N.E.2d 401, 410 (Ind. 1996) (same).
Here, the force which supported the conviction of robbery was the same force which created the confinement. Therefore, the elements of confinement and use or threat of force may not be considered distinct in this case. Since confinement and force are not distinct statutory elements in this context, the elements of criminal confinement do not require proof of an additional element not contained in robbery. As a result, confinement is inherently included in robbery and conviction of both would violate Harvey's rights under Ind. Code § 35-38-1-6.
Additionally, based on the language of the charging information, the confinement is factually included in the robbery. An offense is factually included when the means used to
commit the greater crime charged satisfy the elements of the alleged lesser offense. In other
words, a trial court will look to the defendant's conduct as charged; if that conduct satisfies
all the elements of another charged offense, then the defendant is entitled to an instruction
on that offense as being lesser and included. Wright, 658 N.E.2d at 567. Logic dictates that
if one is afforded the protection of an instruction for a lesser included offense, one should
also be afforded the protection from dual convictions of both the greater and lesser offenses
in violation of Ind. Code § 35-38-1-6. Moore, 698 N.E.2d at 1209.
In this case, the only element of force charged creating a substantial interference with liberty was that inherent in the robbery itself. The language of the charging instrument makes no distinction between the factual basis for the confinement and the force necessary to prove the use or threat of force element of robbery. Harvey was charged under Counts VI and VII as follows:
Derrick L. Harvey, on or about November 7, 1996, did knowingly,
while armed with a deadly weapon, that is: a handgun, take from the person or
presence of Tara Harper property, that is: United States currency, by putting
Tara Harper in fear or by using or threatening the use of force on Tara Harper;
Derrick L. Harvey, on or about November 7, 1996, did knowingly,
while armed with a deadly weapon, that is: a handgun, confine Tara Harper,
without the consent of Tara Harper, by detaining Tara Harper in business
located at 1210 West 86th Street and not allowing her to leave.
(R. at 29-30).
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