[Copyrighted Material Omitted]
Appeal from the Switzerland County Circuit Court, No. 78C01-1201-FA-3. The Honorable W. Gregory Coy, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 78A05-1305-CR-211.
ATTORNEY FOR APPELLANT: R. Patrick Magrath, Madison, Indiana.
ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Stephen R. Creason, Ryan D. Johanningsmeier, Deputy Attorneys General, Indianapolis, Indiana.
Massa, Justice. Rush, C.J., and David, J., concur. Rucker, J., concurs in result with separate opinion in which Dickson, J., concurs.
Daniel Pierce appeals his convictions for molesting his three young granddaughters, arguing he was entitled to separate trials on the allegations of each individual victim. We are asked to decide whether his offenses were joined not only for being " of the same or similar character" but also because they were based " on a series of acts connected together" under Indiana Code section 35-34-1-9(a)(2). Because we find Pierce's abuse of girls in his care was sufficiently connected, we hold he is not entitled to new and separate trials. We affirm Pierce's convictions, and we remand only for the purpose of resentencing on one count.
Facts and Procedural History
In November 2011, a caregiver discovered seven-year-old K.P. naked in a closet with her three-year-old half-brother. She
was taken to the Child Advocacy Center, and during a forensic interview, K.P. indicated her grandfather, Daniel Pierce, had molested her. K.P. revealed Pierce would kiss her on her mouth and touch her " front private" with his hand. Tr. at 48-49. He also tried to use his mouth on her front private, but she " got away from him." Tr. at 64. More than once, Pierce showed her " bad stuff" with naked people doing " nasty stuff" on his computer. Tr. at 53-54. K.P. saw him touch his penis with his hand. He tried to get her to touch his penis, getting " mad" and saying he would give her a dollar, but she " never listened to him." Tr. at 64. Pierce also joined her in the bathtub or shower.
Based on K.P.'s allegations, Detective Kip Main began a criminal investigation and interviewed Pierce's two step-granddaughters, V.H. and B.H., as well as his great niece, A.R. Twelve-year-old V.H. regularly spent the night at Pierce's house, usually by herself. One of those nights, she fell asleep and awoke to Pierce on top of her, " rubbing [her] breasts and [her] vagina area" ; despite her attempts to push him off, " he just kept going on with it." Tr. at 94. And on more than one occasion, he placed his mouth on her vagina over her underwear. She would sometimes wear a piece of red lingerie when Pierce would touch her. V.H. also saw Pierce " play" with his penis until " white stuff" came out, which he would put in a cup. Tr. at 97. Thirteen-year-old B.H. would stay over at Pierce's house about twice a month. Once, while she was watching television on the bed, he laid down next to her and " rubbed [her] back and [her] stomach and [her] boobs," first over B.H.'s shirt and then underneath it. Tr. at 73-74. Finally, fourteen-year-old A.R. said Pierce would hug her from behind and cup her breasts for five or ten seconds. He also had her sit between his legs so he could rub her stomach while they watched a movie. When Pierce drove her home after a visit, he told her a story about his penis coming out of his pants.
Pierce's wife, Lori, is paralyzed and requires care in their home. Several of Lori's caretakers observed Pierce interact with the girls in ways they did not think were appropriate. Taffy Scudder noticed Pierce would have the girls sit in his lap, hug them, and " pat them on the tush," but he would push away the boys. Tr. at 86-87. While cleaning, Barbara Stout found a box in Pierce's closet that contained a printout of a pornography site called " Barely 18" showing very young girls performing oral sex, and she found nightgowns with the straps tied to fit the girls. Holly Taylor saw V.H. come out of Pierce's bedroom wearing red, see-through lingerie. She also found pornography in Pierce's nightstand. When Brittany McGowand once walked into Pierce's bedroom, K.P. jumped up from laying in his lap with " this look on her face like she was in the wrong." Tr. at 146. Brittany, too, found pornography in Pierce's nightstand. On two occasions, Melody Reese found Pierce and K.P. in the bathroom while one or both of them were in the shower.
A month after K.P.'s interview at the Child Advocacy Center, Pierce was admitted to a mental health facility, apparently due to stress over the allegations against him. From the facility, he contacted Lori and asked her to remove his computers from the home. Lori's caretaker Melody overheard Pierce's request and made arrangements for the computers to be delivered to law enforcement. The internet history on Pierce's computer showed visits to several pornographic websites with " an overwhelming theme of young girls in compromising positions and videos related to that nature of girls." Tr. at 242. Some of the domain names visited included " PappaFuckMe.com, FirstTimeWithDaddy.com,
FuckMeDaddy.org, [and] TrickyOldTeacher.com." Tr. at 245.
The State charged Pierce with ten counts: three of child molesting as a Class A felony (Counts 1 and 9, naming V.H. as the victim, and Count 10, naming K.P. as the victim), five of child molesting as a Class C felony (Count 2, naming V.H. as the victim, Count 3, naming K.P. as the victim, Count 6, naming A.R. as the victim, and Counts 7 and 8, naming B.H. as the victim), and two of child solicitation as a Class D felony (Count 4, naming V.H. as the victim, and Count 5, naming K.P. as the victim). Pierce moved to sever the charges, but the trial court denied that motion.
At trial, B.H. testified that Pierce showed her a movie " a long time ago" with " really nasty stuff," including " people  having sex and stuff," although she did not make that allegation in the course of the investigation. Tr. at 80-81. B.H. said she had reported the incident to her stepmom, who didn't believe B.H. because a search of Pierce's house revealed nothing. On cross-examination, B.H. admitted she falsely denied watching pornography with Pierce when the woman at the Child Advocacy Center asked her about " dirty movies." Tr. at 82. B.H. explained she had lied then because she was afraid she would " be in trouble" if she ever said " anything like that again." Tr. at 82. Based on that statement, Pierce's counsel requested permission to make an offer to prove prior allegations, arguing " it has to do with credibility." Tr. at 82. But the trial court denied that request. Pierce's counsel then confronted B.H. with her statement to Detective Main, to whom she had denied ever making prior allegations; B.H. admitted she had lied to the officer, but insisted her trial testimony was the truth:
Q: So today now you say that there was something else even though what I had asked you was " isn't it true that Officer Main said that you had made allegations before" and you said " no" ?
A: Yeah but under oath I might as well tell the truth.
Tr. at 83.
At the close of the State's case, the State consented to dismissing Count 10. The jury convicted Pierce of all remaining counts except Count 6, the only charge that named as A.R. victim. The trial court sentenced Pierce to thirty years (six suspended) for Count 9, four years (one suspended) for each of Counts 2, 3, 7, and 8, and eighteen months (six suspended) for each of Counts 4 and 5. The sentences for Counts 2, 4, and 9 were to run concurrently to each other, as were the sentences for Counts 7 and 8 and Counts 3 and 5. But the sentences for each victim were to run consecutive to each other, such that Pierce's aggregate sentence was thirty-eight years (eight suspended). The trial court also determined Pierce was a credit restricted felon.
Pierce appealed his convictions. He raised several issues, including a claim the trial court erred by denying his motion for severance. In an unpublished opinion, a divided panel of our Court of Appeals reversed Pierce's convictions and remanded for new--and separate--trials. Pierce v. State, No.
78A05-1305-CR-211, slip op. at 11, 3 N.E.3d 1087 (Ind.Ct.App. 2014) (table). It concluded Pierce's actions lacked a distinctive pattern showing he must be the perpetrator; the offenses were joined merely because they were of the " same or similar character," so Pierce was entitled to severance under Indiana Code section 35-34-1-11(a). Id.
at 7, 10. The majority also considered and resolved several evidentiary
issues it believed were " likely to recur on remand." Id.
at 11. It held the trial court erred in denying Pierce the opportunity to make an offer of proof during his cross-examination of B.H., id.
at 12-13; the trial court abused its discretion in admitting the domain names under Indiana Evidence Rule 404(b), id. at 14-15; and the trial court properly admitted witness testimony about pornography because it supported K.P.'s allegation that Pierce showed her pornography, id.
at 15. Judge Baker concurred in part, agreeing for the most part with the disposition of the evidentiary issues, and dissented in part, disagreeing with the severance determination. Id.
at 17 (Baker, J., concurring in part and dissenting in part). He believed joinder was not based solely on the offenses being of the same or similar ...