Heinzman v. State

895 N.E.2d 716, 2008 Ind. App. LEXIS 2444, 2008 WL 4756896
CourtIndiana Court of Appeals
DecidedOctober 31, 2008
Docket29A04-0710-CR-553
StatusPublished
Cited by14 cases

This text of 895 N.E.2d 716 (Heinzman v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heinzman v. State, 895 N.E.2d 716, 2008 Ind. App. LEXIS 2444, 2008 WL 4756896 (Ind. Ct. App. 2008).

Opinions

OPINION

MAY, Judge.

Cory Heinzman, a Child Protective Services caseworker with the Indiana Family and Social Services Administration (FSSA), was convicted after a jury trial of sixteen counts including official misconduct and various sexual offenses involving minors. He argues on appeal his charges should have been severed for trial, the State did not establish venue with regard to one victim, and there was insufficient evidence of official misconduct. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Heinzman was employed in Hamilton County as a Child Protective Services (CPS) caseworker. In August of 2003, Heinzman met R.S.,- then thirteen years old, when he was assigned to investigate R.S.’s allegation his mother had abused him. Heinzman went to the family home, where R.S. recanted the allegation and Heinzman spoke with R.S.’s mother. Heinzman returned to the home the following week and left some Wal-Mart gift cards to be used for food and clothing.

R.S. was sent to a residential treatment facility. Heinzman wrote to R.S. and sent him gifts while he was there. On several occasions beginning a few weeks after R.S. returned home, Heinzman drove R.S. various places and took R.S. to a movie, on which occasions he touched R.S. inappropriately. Heinzman bought movies for R.S., but R.S. had to perform oral sex on Heinzman to get the movies.

Heinzman met J.F., then fifteen, when J.F. was living in a residential treatment facility. He visited J.F. at one of the facilities, sent J.F. postcards, and approved J.F.’s home visits. On some off-premises visits, lasting three or four hours, Heinzman drove J.F. around and touched him inappropriately in the car.

Heinzman was tried in a single proceeding in Hamilton County for the charges involving both victims.

DISCUSSION AND DECISION

1. Severance
Ind.Code § 35-34-l-9(a) provides:
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.
Under Ind.Code § 35-34-l-ll(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 a severance of the offenses. In all other cases the court, [720]*720upon 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
(8) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Accordingly, severance is required as a matter of right under subsection 11(a) only when the offenses are joined solely because they are of the same or similar character. Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind.1997). When the offenses are joined under subsection 9(a)(2), the court must grant a severance only if it is appropriate to promote a fair determination of the defendant’s guilt or innocence based on subsections 11(a)(1) through (3). Id. Unless the defendant is entitled to severance as a matter of right under Ind.Code § 35-34-l-ll(a), whether to sever multiple charges is a matter within the trial court’s discretion and a denial of severance will be reversed only on a showing of clear error. Davidson v. State, 558 N.E.2d 1077, 1083 (Ind.1990).

Charges may be sufficiently connected as a “single scheme or plan” to justify joinder if the State can establish they are connected by a distinctive nature, a common modus operandi linked the crimes, and the same motive induced the criminal behavior. Wilkerson v. State, 728 N.E.2d 239, 246 (Ind.Ct.App.2000). “Mo-dus operandi” means “method of working,” and refers to a pattern of criminal behavior so distinctive that separate crimes may be recognized as the work of the same wrongdoer. Id. Mere repetition of similar crimes does not by itself warrant admission of the evidence of those crimes under the modus operandi rule; the inquiry must be whether the crimes are “so strikingly similar that one can say with reasonable certainty that one and the same person committed them.” Id. Not only must the methodology of the two crimes be strikingly similar, but the method must be unique in ways that attribute the crimes to one person. Id.

In Wilkerson, we noted the inherent similarities in all sex crimes, the common use of disguises, and the frequent late night or early morning timing of residential intrusions. We accordingly did not find Wilkerson’s attacks revealed a distinctive modus operandi as the connection between the two crimes was limited:

Both are sex crimes that occurred in Anderson, Indiana; however, they occurred three weeks apart, at different times of the day, at different locations, to different victims. Further, different weapons were used and one victim was robbed while the other was not. The assault on T.S. occurred on July 8, 1985, at 1:00 a.m. She awoke to find a man straddling her with scissors at her throat. He had entered her apartment through a window and was wearing nothing except a shirt covering his face. He forced her to submit to oral sex followed by sexual intercourse. He then demanded money and emptied her purse taking a cigarette, a cigarette lighter, money, and some food stamps. T.S. was unable to identify her attacker. The assault on A.W. occurred at approximately 10:30 p.m. on July 25, 1985. The man broke in thru [sic] a window, grabbed her, and forced her to submit to intercourse and oral sex. During the attack, Wilkerson was dressed and held a switchblade to her neck. Also, A.W. had seen Wilkerson on two occasions prior to the attack, and on one occasion [721]*721he offered her $100 to have intercourse. A.W. identified Wilkerson as the man who raped her.

Id. at 247.

We found the charges were joined because the offenses were of “the same or similar character” and if Wilkerson had moved to sever the charges, the trial court would not have had discretion to deny the motion.

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Bluebook (online)
895 N.E.2d 716, 2008 Ind. App. LEXIS 2444, 2008 WL 4756896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heinzman-v-state-indctapp-2008.