Moore v. State

• Decision Date: 27 October 1989
• Docket Number: No. 45S00-8811-CR-927,45S00-8811-CR-927
• Citation: 545 N.E.2d 828
• Parties: Wendell MOORE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 828

545 N.E.2d 828

Wendell MOORE, Appellant, v. STATE of Indiana, Appellee.

No. 45S00-8811-CR-927.

Supreme Court of Indiana.

Oct. 27, 1989.

Albert Marshall, Appellate Public Defender, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Public Defender, Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the Lake Superior Court, Defendant-Appellant Wendell Moore was found guilty of Robbery, a Class A felony, for which he received a term of thirty-five (35) years, and Resisting Law Enforcement, a Class D felony, for which he received a term of four (4) years, said terms to run concurrently.

Two issues are presented for our review in this direct appeal:

1. denial of Defendant's Motion for Severance of the counts charging Robbery and Resisting Law Enforcement; and,

2. denial of Defendant's Objection to Final Instruction No. 9.

The facts most favorable to the State show that on December 19, 1987, Moore entered and robbed a Clark Service Station in East Chicago, taking approximately three thousand five hundred dollars ($3,500). Maria Martinez, an attendant at the station, testified that Moore committed the robbery and beat her in the perpetration of it. Russell Blovas testified that he was present at the station, witnessed the robbery and the assault on Miss Martinez, and he himself was physically assaulted by Moore during the robbery.

About three days later, on December 22, 1987, police officer Slivko attempted to arrest Moore for the robbery and Moore attempted to flee from him. Officer Slivko testified he was physically assaulted by Moore and Moore had to be physically subdued before he could be placed in the squad car pursuant to his arrest.

Moore presented two alibi witnesses who testified he was at another place at the time this incident occurred.

I

Moore moved to sever the two counts for purposes of trial and that motion was denied. The applicable Indiana Code sections, IC 35-34-1-9, 35-34-1-10 and 35-34-1-11, provide in pertinent part, as follows:

[35-34-1-9(a)(2) ] 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:

. . . . .

are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

* * * * * *

[35-34-1-10(b) ] When a defendant has been charged with two (2) or more offenses in two (2) or more indictments or informations and the offenses could have been joined in the same indictment or information under section (9)(a)(2) of this chapter, the court, upon motion of the defendant or the prosecuting attorney, or on its own motion, shall join for trial all of such indictments or informations unless the court, in the interests of justice, orders that one (1) or more of such offenses shall be tried separately. Such motion shall be made before commencement of trial on either of the offenses charged.

* * * * * *

[35-34-1-11(a) ] Whenever 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, the defendant shall have a right to severance of the offenses. In all other cases 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 defendant's 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.

These code sections have been interpreted to provide that a defendant has an absolute right to severance of offenses only if they are joined solely on the ground that they are of the same or similar character. In all other cases, severance is within the sound discretion of the trial court, and should be granted whenever the "court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense." Douglas v State (1984), Ind., 464 N.E.2d 318, 319-20; Grimes v. State (1983), Ind., 454 N.E.2d 388, 389-90; IC 35-34-1-11(a).

The two counts of robbery and resisting arrest were not joined on grounds that they were of the same or similar character. They obviously were joined because they were based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan pursuant to IC 35-34-1-9(a)(2). Therefore, Moore had no absolute right to severance. It was within the trial court's discretion to determine whether severance of the offenses was proper. Douglas, supra; Grimes, supra. The trial court needed to take into consideration the number of offenses charged, the complexity of the evidence to be offered, and whether the trier of fact would be able to distinguish the evidence and apply the law intelligently as to each offense. IC 35-34-1-11(a). Appellant points out no such complexity here nor do we detect any. The fact the jury might be influenced by damaging testimony showing the commission of both crimes does not necessarily warrant severance where, as here, both crimes are connected by a continuous series of acts, and at least a substantial amount of the evidence of both would be presented in the trial of either. No reversible error is presented in the trial court's denial of severance.

II

Defendant objected to the trial court's...