Ford v. State
| Decision Date | 27 April 1987 |
| Docket Number | No. 45A03-8609-CR-261,45A03-8609-CR-261 |
| Parties | Clarence FORD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Scott L. King, Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Clarence Ford appeals his conviction of official misconduct, a Class A misdemeanor, after a jury trial in the Lake County Superior Court, Criminal Division.
The facts, as taken most favorably to the verdict, are as follows:
In mid-November 1983, Clarence Ford, a uniformed patrol officer with the Police Department of the City of Gary, arrested and took into custody J.D. Collins and Newton Washington in the L.R.C. liquor store parking lot in Gary after confiscating several marijuana cigarettes that Collins threw under Ford's police car. After taking Collins and Washington into custody, Ford requested and received $5.00 from Collins and kept the marijuana cigarettes in return for releasing Collins and Washington. Ford was ultimately charged with two counts of bribery, a Class C felony, and the jury returned verdicts of not guilty to Count I and guilty to the lesser included offense of official misconduct under Count II, which related to the incident described above.
Ford brings a sole allegation of error for review: that the trial court committed error in denying his motion for severance of offenses.
The joinder of charged offenses in a criminal trial is governed by IND. CODE Sec. 35-34-1-9(a)(1) and (2) (1982), which reads:
"35-43-1-9 Joinder of offenses or defendants
Sec. 9. (a) Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, 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."
Whenever separate charges are joined together solely on the ground stated in IND. CODE Sec. 35-34-1-9(a)(1) above, i.e. because they are of the same or similar character, the criminal defendant has a right to a severance of the offenses. IND. CODE Sec. 35-34-1-11 (1982). When the offenses are joined for the reason stated in IND. CODE Sec. 35-34-1-9(a)(2) above, i.e. because 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 defendant does not have an absolute right to severance of the offenses and the trial court is allowed discretion in determining whether or not to sever the offenses. IND. CODE Sec. 35-34-1-11. Ford argues that the two offenses with which he was charged were only related by being of the same or similar character as described in IND. CODE Sec. 35-34-1-9(a)(1), and thus he had a statutory right to the granting of his motion to sever made pursuant to IND. CODE Sec. 35-34-1-11.
The allegation of error brought to this Court by Ford has been waived by his failure to renew his motion to sever the offenses, originally made prior to trial, after it was overruled. The statutory requirement that a motion to sever must be renewed on the same grounds in order to preserve any alleged error for review is clearly set out in IND. CODE Sec. 35-34-1-12(b) (1982) (Emphasis added.)
See also, Hobson v....
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